UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY GIFT OF Charles G. IJaines / CASES ON PUBLIC CORPORATIONS SELECTED BY HOWARD S. ABBOTT Head of the Department of Corporations, College of Law University of Minnesota St. Paul, Minn. WEST PUBLISHING CO. 1898 r Copyright. 1898, BY WEST PUBLISHING COMPANY. CT/^H TABLE OF CONTENTS. DEFINITION. Page ^ Board of Com'rs of Hamilton County v. Mighels 3 Askew V. Hale County 6 Mills T. Williams . . . 7 LEGISLATIVE AUTHORITY OVER CORPORATE REVENUES. Gutaweller v. People 9 CREATION OF CORPORATION BY IMPLICATION. 10 *Q Broking v. Van Valen ] SUBMISSION OF CHARTER TO VOTE OF PEOPLE. ^ Smith V. Crutcher 11 CORPORATE EXISTENCE NOT OPEN TO COLLATERAL ATTACK. Coler V. Dwight School Tp. of Richland County 12 State V. Whitney 18 POAVER OF LEGISLATURE TO COM- PEL PAYMENT OF DEBTS NOT LEGALLY BINDING. City of Guthrie v. Territory. 19 PUBLIC PO^VERS AND RIGHTS HELD AT WILL OF LEGISLATURE. V^ rince v. Crocker 24 Creditors' Rights cannot be Impaired- Upper Darby Tp. v. Borough of Lansdowne 27 DESCRIPTION OF CORPORATE BOUNDARIES. Town of Enterprise v. State 28 State V. Inhabitants of Town of Pocatello 31 Town of Newport v. Batesville & B. Ry. Co 87 THE POLICE POW^ER— SCOPE AND LIMITATIONS. Coombs V. McDonald . Slaughterhouses. Rund V. Town of Fowler 89 90 ABB.CORP. (ill) iT TABLE OF Cemeteries. Page City of Austin t. Austin City Cemetery Ass'n 91 Public Markets. State V, Sarradat 93 Inspection of Merchandise Offered for Sale. People V. Wagner 95 The Abatement of Nuisances in General. Walker v. Jameson 97 Regulation of Occupations and Amuse- ments. Lacey, Ex parte 101 Construction of Buildings. State V. Jolinson 103 Kaufman v. Stein lOi Impounding of Animals. Cochrane v. City of Frostburgh 107 Regulation of Railways xrithin City Limits. South C5ovington & C. St. Rj. Co. v. Berry. . 110 THE POWER TO INCUR INDEBTED- NESS. State V. Moore 112 For School Houses. Wetmore v. City of Oaliland 115 For Service of Attorneys. Simrall t. City of Covington 118 "Indebtedness" Defined. Kelly V. City of Minneapolis 121 Lewis V. Widber 125 Waat should be Included in Term "Indebtedness." Finlayson v. Vaughn 127 POWER TO CHARTER PRIVATE MONOPOLIES. Rutland Electric Light Co. v. Marble City Electric Light Co 128 City of Breuham v. Brenham Water Co. . 130 OWNERSHIP OF MUNICIPAL MO- NOPOLIES. Liiin V. Borough of Chambei-sburg 139 City of Crawfordsville v. Braden 143 Borough of Mill vale, In re 148 ACTS ULTRA VIRES AFFECTING PUBLIC PROPERTY. Huron Waterworks Co. v. City of Huron. . 151 Condemnation of Land Outside of City Limits. Gallon V. City of Jacksonville 159 CONTEXTS. MUNICIPAL ORDINANCES. Limitations upon Poxirer to Pass Or- dinances. Page State V. Burns 160 Mode of Enactment. City of Vancouver v. Wintler 161 Yeas and Nays. O'Neil V. Tyler 1G2 Preston v. City of Cedar Rapids 163 Several Readings. Swindell v. State 164 Publications. City and County of San Francisco v. Buck- man 168 Publication in the English Language. North Baptist Church v. City of Orange. . 170 Record of Ordinance. City of Hammond v. New York, C. & St. L. Ry. Co 171 Ordinance Affecting Po^ver of Success- ors. Columbus Gaslight & Coke Co. v. City of Columbus 173 Violation of Fourteenth Amendment. State V. Mahner 175 Garrabad, In re 177 Consistency ivith General Laws. State V. Sherard 181 Must be Laivf ul and Reasonable. Hawes v. City of Chicago 182 Must be Impartial and General. City of Saginaw v. McKnight 184 Clements v. Town of Gasper 185 Repeal and Enforcement. Waukesha Hygeia ^Mineral Spring Co. v. President, etc., of Village of Waukesha. . 188 Enforcement by Fines. City of Detroit v. Ft. Wayne & B. I. Ry. Co 190 MUNICIPAL SECURITIES. Can Po\rer to Issue Bonds be Implied. Rathbone v. Board of Com'rs of Iviowa County 192 There must be Express Power. Dodge V. City of Memphis 198 Estoppel by Course of Dealing or Re- citals in Bonds. City of Evansville v. Dennett 200 Board of Sup'rs of Cumberland Co. v. Ran- dolph 205 Mercer County v. Provident Life & Trust Co. of Philadelphia 207 TABLE OF CONTENTS. MUNICIPAL CONTRACTS. Letting of Contract to Bidders. Page McDermott v. Board of Street & Watet Com'rs of Jersey City 214 To Lowest Bidder. Renting v. City of Titusville 210 Frame v. Felix 218 Authority of Municipal OflBLcers to Con- tract. Columbus Water Co. t. City of Columbus 221 LOCAL ASSESSMENTS. j Oshkosh City Ry. Co. v. Winnebago County 228 Power not Inferred from "General Wel- fare" Clause. Nelson v. Town of Homer 230 "What Constitutes a "Local Improve- ment." Pavne t. Village of South Springfield 2.31 Palmer v. City of Danville 232 Preliminary Matters. Buckley v. City of Tacoma 284 City of Atlanta v. Gabbett 239 'When Municipality Liable for Change of Grade. Page Drummond v. City of Eau Claire 270 City of Chicago v. Burcky 272 Municipal Control of Streets. City Council of Augusta r. Burum 274 Inhabitants of City of Trenton v. Trenton Pass. Ry. Co 277 Citv of St. Paul V. Chicago, M. & St. P. Rv. Co 279 Citv of Detroit v. Ft. Wavne & E. Ry. Co.. 282 Davis V. East Tennessee, V. & G. Ry. Co.. 2W) Green v. Eastern Ry. Go. of Minnesota. . . 2S9 Burger v. ilissouri Pac. R. Co 290 City of Chariton v. Fitzsimmons 292 Control of Manner of Use by Public. Wettengel v. City of Denver 291 Commonwealth v. Fonton 290 Commonwealth v. Mulhall 297 Burdett v. Allen 298 Wilson V. Beyers 300 Bridges. City of Rosedale v. Golding. . 302 MUNICIPAL LIABILITY. City of Kansas City v. Lemen 303 Snider v. City of St. Paul 300 Barron v. City of Detroit 308 Methods of Apportionment. Raymond's Estate v. Mayor of Borough of Rutherford 241 Cain V. City of Omaha 245 MUNICIPAL TAXATION. Must be for Public Purpose | Love V. City of Raleigh 2i6 i City of St. Louis v. Western Union Tel. Co 249 City of Chester v. Western Union Tel. Co.. 252 Borough of Sayre v. Phillips 253 What Property Exempt. Von Steen v. City of Beatrice 255 ■ Kilgus V. Trustees of the Orphanage of the ] Good Shepherd 257 Statutory Exemptions, How Construed. City of Clinton v. Henry County 259 Of Corporate Property. Chicago, M. & St. P. Ry. Co. v. City of Mil- waukee 260 Of Agricultural Land. Taylor v. City of W^averly 263 STREETS AND BRIDGES. Failure to Use Street not an Abandon- ment. City of Lawrenceburgli v. Wesler 264 Discretionary Pow^ers as to Vacation of Street. City of Mt Carmel v. Shaw 208 Perfomxance of Discretionary Duties. Tate V. City of Greensborough 310 For Failure to Abate Nuisance. Love V. City of Atlanta 319 For Negligent Supply of Water. Springfield Fire fective that the proceedings would be set aside on certiorari, or the right of the district to act as such would be denied by judgment in quo warranto. At the time these bonds were is- sued the district was acting as a de facto district under at least color of organization. It had elected its district officers; iiad hi 1 1 its district meetings; had voted to borrow mon- ej' to build a schoolhouse; and it appears to bo undisputed that the proceeds of these bonds were used for that purpo.'^.e, and the inliubitants received the benefit thereof. A schoolhouse has been buUt, and school has been taught therein. To allow the defense that the proceedings in the organization were defective to defeat the debt represented by these bonds would, under these circumstan- ces, be to sanction repudiation of an honest obligation. We are firm in the opinion that the legality of the organization of a munic- ipal corporation cannot be thus collaterally attaclied. Citizens of the district wlio are opposed to the formation of such a corpora- tion are not without remedy. Certiorari will reach the action of the countj' superintend- ent when without jurisdiction. People v. Board of Sup'rs, 41 :Mich. G47, 2 N. W. Rep. 904. The statute allows an appeal. Section 25, c. 14, Laws 1879. The corporate ex- istence may be attacked by quo warranto. State v. P>radford, 32 Vt. 50; People v. Clark, 70 N. Y. 518; Cheshire v. Kelley, (111. Sup.V 6 N. E. Rep. 48G; Comp. Laws, § 5348, subd. 3; Territory v. Armstrong, 6 Dak. 22G. 50 N. W. Rep. 832. The evils resulting from a doctrine which would permit the legality of the organization of a municipal cori)0- ration to be inquired into collaterally— in au action to enforce a debt, in a proceeding to collect a tax levied by the de facto corporation, or in a litigation over a tax title growing out of a tax imposed by such municipality — would be as great as the evils which would flow from the collateral inquiry into the title of a person to an office, the functions of which he is in fact exercising. This same argument reaches the objection that no sufficient peti- tion was ever presented and filed, even as- suming that the record sustained the claim- that this requirement of the statute was not complied with. It does not follow, because the organization was illegal for want of power in the comity superintendent, that at all times, in every species of litigation, and by any person, the existence of the de facto district can be assailed. It is no more es- sential to the exercise by tlie county superin- tendent of this power that a petition should be filed than that it should be signed by a majority of the citizens residing in the dis- trict. It is the fact, and not the decision of the superintendent that the fact exist^s, which gives him jurisdiction. A petition is filed lacking the signature of one citizen to make it a petition signed by a majority of the cit- izens; in all other respects the organization is regular; bcmds are issued, a schoolhouse built, and school taught. Is all this to be ig- nored, to be treated as illegal, because there was no de jure district? Who are the real parties interested in defeating such a debt? Tlie taxpayers within the district. In what position are those to object who participated in the organization? They have attempted to form a district. They for a time believed that they had formed it. They elect offi- cers; borrow money on bonds for district purposes; build a schoolhouse therewith; and use tho monej' for other purposes con- nected with the functions of the district. 14 CORPORATE EXISTENCE NOT OPEN TO COLLATERAL ATTACK. On what principle can the existence of the district be denied by them for their benefit? If any within the district refrained from af- firmative action, still they are chargeable with passive acquiescence when they might have acted, and acted effectually, against the de facto existence of the district, and thus have prevented an imposition upon the innocent who were justified in taking that to bo a legal district which was acting as such, and to all appearances was warranted in acting as such. Those who were silent, when in conscience they shoidd have spolcen, have no claim upon the equity of this court. They did not protest; they did not appeal; they did not resort to certiorari; they made no effort to have the district attorney ovei"- throw this de facto district by quo warranto; and when the bonds were voted for they ap- pealed to no chancellor to protect their prop- erty from an illegal debt. Not only the con- siderations which lie at the foundation of the rule protecting the public in dealing with a de facto officer, but also a principle very analogous to that of equitable estoppel, pro- tects those bondholders against repudiation under the forms of the law. If there cannot be a de facto school district, there cannot be a de facto city. If illegality in the proceed- ings to effect organization is fatal to the ex- istence of a district, it is equally as fatal to the existence of a municipal corporation of a higher grade. Given a case where the de- fects in the incorporation of the city are as fatal as in this case, and then deny to that corporation any effect, although a city gov- ernment is in fact inaugurated and carried on, and the consequences would be intoler- able. Open and acknowledged anarchy would for some reasons be preferable. In after years tax titles would be destroyed; every officer of the city would be a tres- passer when the discharge of what would be his duty on the theory of the existence x>t the corporation led to an interference with the property or person of others. Ev- ery police or other peace officer and every magistrate acting under the supposed author- ity of the city government would be liable for extortion, for assault and battery, for false imprisonment, and could be prosecuted criminally for acts done in good faith in the enforcement of the criminal law. An army X)f creditors whose savings have gone into the city treasury, and through the treasury Into public buildings and other public im- provements, find, to their astonishment and dismay, tliat they have received in exchange boautirully lithograi)hed but worthless bonds as souvenirs of their abused confidence. All that has been done in good faith under color of law is only barefaced usurpation, and to be treated as such for all i)urposes. Such a doctrine would be the author of confusion, injustice, and almost endless litigation. The imagination cannot embrace all the gross wrong to which it wouhl lead when pushed, as it must be, to its logical cou.'^equences. On the other hand, no great injury can re- ' suit to the citizens or state by recognizing a de facto corporation; one acting as such under color of organization. If the law is I disregarded in the attempt to organize the ' municipality, the violation of law always can be nipped in the bud by appropriate ju- dicial proceedings. We find that our views are by no means novel. The rule that the existence of a de facto municipal corporation I cannot be collaterally assailed has frequently i been recognized and applied by the courts. Stuart V. School Dist.. 30 Mich. G9; People v. Maynard, 15 Mich. 470; Krutz v. Town Co., 20 Kan. 397; Tisdale v. Town of Minonk, 4G 111. 9; Geneva v. Cole, 61 111. 307; People v. Farnham, 35 111. 5G2; Jameson v. People, 16 111. 257; Sheriy v. Gilmore, (Wis.) 17 N. W. Rep. 252; State v. Railroad Co., (Nev.) 25 Pac. Rep. 296; School Dist. No. 2 v. School Dist. No. 1, (Kan.) 26 Pac. Rep. 43; Railroad Co. v. Wilson, (Kan.) 6 Pac. Rep. 281; Clement v. Everest, 29 Mich. 19; Stockle V. Silsbee, 41 Mich. 615, 2 N. W. Rep. 900; Burt V. Railroad Co., 31 Minn. 472, 18 N. W. Rep. 285, 289; Mendenhall v. Burton, (Kan.) 22 Pac. Rep. 558; School Directors of Union School Dist. No. 4 v. School Di- rectors of New Union School Dist. No. 2, (111. Sup.) 28 N. E. Rep. 49; 15 Amer. & Eng. Enc. Law, 965; 1 Dill. Mun. Corp. § 43; President, etc., v. Thompson, 20 111. 197; Town of Enterprise v. State, (Fla.) 10 South. Rep. 740. See 2 Dill. Mun. Corp. § 894; State V. Weatherby, 45 Mo. 17; Board v. Lewis, 10 Sup. Ct. Rep. 286; Austrian v. Guy, 21 Fed. Rep. 500. In some of the cases time / seems to have been considered an element of some importance, but the public may as | effectually be deceived by a de facto organ- , ization the day after it is complete as a dec- ade thereafter. The time a de facto officer has been in possession of an office is never regarded as controlling. He is as much an \ officer, as to the public, the day after he I intnides into the office as a year later. "The same rule which recognizes the rights of offi- [ cers de facto, recognizes corporations de j facto, and this is nect'ssary for public and i private security." Clement v. Everest, 29 Mich. 19-23. We have treated this power as if the ac- tion were iipon the bonds themselves, be- cause the holders of interest coupons may re- cover if they coifid maintain an action on the bonds under the same circumstances. It is also urged that Uiere was a failure to com- ply with certain conditions precedent to the valid exercise of the power conferred upon such districts by law to borrow money on district bonds. The statute regidating the issuing of such bonds provides, in substance, that they can be issued only when a majority of the electors of the district present and voting at a district meeting shall vote to issue the same. Chapter 24, Laws 18S1, § 1. Section 2 of this act provides: "Before the question of issuing bonds shall be submitted CORPORATE EXISTENCE NOT OPEN TO COLLATERAL ATTACK. 15 to a vote of the district, notices shall be i posted in at least three public and conspicuous places in said district, stating the time and j place of meeting, the amount of bonds that will be recpiired to be issued, and the time in which they shall be made payable, at j least twenty days before the time of meeting; and the voting shall be done by means of ' Avritteu or printed ballots, and all ballots de- posited in favor of issuing bonds shall have thereon the words 'for issuing bonds,' and those opposed thereto shall have thereon the words 'against issuing bonds;' and if the ma- jority of all the votes cast shall be in favor of issuing bonds, the school board, or other prop- er officei-s, shall forthwith proceed to issue bonds in accoixlance with the vote; but if a nrajority of all the votes east are opposed to issuing bonds, then no further action can be had, and the question shall not be again sub- mitted to vote for one year thereafter: pro- vided, however, that the question of issuing bends shall not be sul)mitte<.l to a vote of the district, and no meeting shall be CiiUed for that purpose, vmtil the district school board i shall have been so petitioned, in writing, by j a majority of tlie resident electore of said i school district." It is contended that the school board was not petitioned to submit the question of issuing the bonds to a vote as re- quired by the proviso to section 2. We thinlc the defendant is not in position to raise this point. The plaintiffs are bona fide holdei-s of the coupons. The recital in the bonds is therefore fatal to this defense. Upon their face appeai-s the following statement: "This bond is issued on the 24th day of June, 1SS2, by School District No. 22, county of liichland, D. T., for building and furnishing a school- house, under and in pursuance of, and in strict confonnity with, the provisions of an act of tlie legislative assembly of the terri- tory of Dakota, entitled 'An act to empower school districts to issue bonds for building schoolhouses,' approved March 3, 18S1, and of a vote of said district at a special meeting had on the 29th day of November, ISSl." Upon the back of each bond is the following certificate, signed by the clerk of the dis- trict: "I certify that the within bond is issued in accordance with a vote of School Distiict No. 22, of Richland county, Dakota territoiy, at a special meeting held on the 29th day of November, A. D. 1881, to issue bonds to the amount of twelve hundreil dol- lars." It is obvious from the statute that the otficers by whom the bunds are to be issued are intnistod with the duty of determining whether the statute has been complied with as to all matters necessary to give them au- tliority to issue the bonds. Their statement embodied in these bonds therefore estops the district and its successors from showing aught to the contrary. The rale and the reason lor it liave been so often stated, and are so well known to the profession, that it will sutlice to cite some of the numerous au- thorities on the point: Inhabitants v. Mor- rison, 133 U. S. 523, 10 Sup. Ct. Rep. 333; Oregon v. Jennings, 119 U. S. 74-92, 7 Sup. Ct. Rep. 124; Comity of Moultrie v. Rock- ingham, etc.. Bank, 92 U. S. 631; Venice v. Murdock, Id. 494; Town of Colona v. Eaves, Id. 484; Dixon County v. Field, 111 U. S. S3, 4 Sup. Ct. Rep. 315; Humboldt Tp. v. Long, 92 U. S. 042; Commissioners of Knox Co. V. Aspinwall, 21 How. 539; Fulton V. Town of Kiverton. (Minn.) 44 N. W. Rep. 257; 15 Amer. & Eng. Enc. Law, 1295 et seq.; Burr. Pub. Secur. 299 et seq. It is not necessary that the power to deter- mine these facts should have been expressly conferred upon the district officers by the statute. "It is enough that full control in the matter is given to the otficers named." Inhabitants v. Morrison, 133 U. S. 523, 10 Sup. Ct. Rep. 333; Fulton v. Town of River- ton, (Minn.) 44 N. W. Rep. 257. Nor is it essential that the statement should set forth in detail that all of the vai-ious conditions precedent have been complied with. It is sutficient if it is stated that the bond was issued in pursuance of the statute, designat- ing it in such a manner as to identify it. This is in legal effect a statement that each and all of the necessaiy preliminary steps were talc en to authorize the issue of the bonds. Inhabitants v. MoiTison, 133 U. S. 523, 10 Sup. Ct. Rep. 333; Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. Rep. 315; 15 Amer. & Eng. Enc. Law, 1300; County of Moultrie v. Rockingham, etc., Banlv, 92 U. S. 631. But the statement went much fur- ther. It asserted that the bonds had been issued under and in pui-suance of, and in strict conformity with, the act authorizing their issue, "and of a vote of said district at a special meeting had on the 29th day of November, 1881." The certificate indoreed on the bonds by the clerk was required by the statute to be indorsed thereon. Chapter 24, Laws 1881, § 4. The statute specifies what the certificate shall contain, and this provision was strictly complied with in the issuing of these bonds. This reiiuirenient indicates that it was for the protection of the purchaser of the bonds, who might implicitly rely upon the clerk's certificate as conclusive evidence that all necessary preliminary steps had been legally and rt-gularly taken. We come now to the claim that the plain- tiffs have sued the wrong, corporation. The defendant did not issue these bonds. If lia- ble at all, it must be by virtue of some stat- ute. Chapter 44, Laws 1883, is pointed to as the act which binds the defendant to pay these bonds. This law provides for a new system. The district school system was to be abolished, and the township school sys- tem to take its place. Under this statute it was the duty of the board of county com- missioners to divide all organized counties into school townships. The finding of the court is that on May 23, 1883, the commis- sioners of Richland county duly organized the school township of D wight in that couu- 16 CORPORATE EXISTENCE JTOT OPEX TO COLLATERAL ATTACK. ty, and that the territory -within this new school township embraced nearly all of the territory of the old school district No. 22; and that the schoolhouse and school furniture belonging to the district were received into and are owned by tlie de- fendant. There is sufficient evidence to sup- port the finding that the schoolhouse belong- ing to district No. 22 is witliin the territorial limits of tlie defendant. Under these facts the linbiUty of the defendant on these bonds would be clear, under section 144 of the act, were it not for the provisions of section 136, to wliicli we will in a moment refer. Section 144 provides as follows: "Every school town- ship slmll be liable for, and shall assume and pay fully, according to their legal tenor, ef- fect, and obligation, all the outstanding bonds and the interest thereon, of every school district, the schoolhouse and furnitui-e of wliich are received and inchided within the school township, and owned thereby, the same as if said bonds had been issued by said scliool township; and the law wliich au- thorized the school district to issue bonds shall apply to the school township the same as if it had originally been authorized to is- sue, and had issued, the said bonds. The bonds shall be deemed in law the bonds of the school township, with the same validity for securing and enforcing the payment of principal and interest that they would have had against the district that issued them." There can be no question as to the power of Ine legislature to impose upon a new munici- pality, which includes all or a portion of the territory of an old municipal coi-poration, lia- bility for the debts of the old corporation, wliere the property of the latter is turned over to and received by the former under the law. ]Mt. Pleasant v. Becliwith, 100 U. S. 514; 1 Dill. Mun. Corp. § G3; State v. City of Lake Cily, 25 Minn. 404; City of Winona v. School Dist. No. 82, 40 Minn. 13, 41 N. W. Rep. 5o'J; Demattos v. City of New What- com, (Wa.sli.) 29 Pac. Rep. 933; liaramie County V. Albany County, 92 U. S. 307; Schribor v. Town of Langlade, (Wis.) 29 N. W. Kep. 547, and cases cited in opinion; Kniglit v. Town of Ashland, (Wis.) 21 N. W. Rep. 05-70. See, also, note to State v. Clev- enger, [Neb., 43 Js. W. Rep. 243,] in 20 Amer. St. Rep. 077. Indeed, many of the cases go much further than is necessary to support tliis legislation. But it is contended that School District No. 22 has not ceased to ex- ist; tliat the organization of the defendant is not complete; and tlie argument from these premises is that district No. 22, and not the defendant, is at present liable for these bonds. The section of the statute on Avhich tlie claim rests is section 136. It provides as follows: "The adoption of the system herein provided, and the pa.ssage and approval of this act, shall not have the effect to discon- tinue, abolish, and render null such school districts or their organization as they may now exist in any county, but they shall con- tinue to exist, and their officers to act as such, in law and fact, until the school town- ship organization is complete, so far as it in- cludes any particular district or districts, or the larger part of any particular district. And such township organization shall not be deemed complete, nor such districts so cease to exist, and their officers to act as such, un- til all matters between the district and the township are adjusted, and the property de- livered, funds paid over, and an adjustment is readied for the equalization of taxes and ! propertj^ between the districts wliich enter into the school township, so far as such taxes and property remain permanent in houses, sites, furniture, and other parts of houses and grounds." The next two sections pre- scribe the procedure by which the equaliza- I tion of taxes is to be determined, and the j rules which are to govern such equalization. I Now, it is quite clear to our mind that sec- ! tion 136 was incorporated in the statute merely to keep the old districts alive, for the purpose of adjusting their rights among themselves, so mat taxpayers living in each portion of the new township which formerly constituted a school district should not pay more of the aggregate of the old indebted- ness of the several districts embraced in the township than would be equitable, consider- ing the rights of the taxpayers of the other districts, so included, to the same treatment. The school boards of the several old districts consiituted, with the county superintendent, a body to adjust these matters, and it was necessary to keep the districts alive for this special puri^ose after the organization of the township. The legislature intended to work an immediate, radical revolution in the school system for the whole territory. We do not believe that they contemplated that, while a long drawn out contest was going on to set- tle these questions between the old districts, this new system should be held in abeyance. Moreover, there would be no reason for mak- ing the organization of the school township, and its right to carry on the school system, depend upon the determination of a matter, the prior settlement of which was not essen- tial to the corporate existence of the school township and the administration of the school law. Settlement must inevitably come. Sliould those charged with the duty of mak- ing it fail to obey the law, mandamus would set them in motion. The nature of their de- cision could not be dictated by any court; but they could be compelled to make some decision. The discharge of this duty, wheth- er voluntary or under compulsion, can as well go on after as before the school town- ship becomes liable for the district debts and is authorized to carry on the schools. The township is by the statute made liable for these uouds. It is the formal party against which judgment may be recovered. When execution in the form of mandamus to com- pel a levy of taxes is applied for, the court will observe the decision of the board of ad- CORPORATE EXISTENCE XOT OPEN TO COLLATERAL ATTACK. 17 justment in the apportionment of the bur- den. If no settlement has at that time been vohmtarily reached, the court in a separate proceeding will compel the performance of this duty specially enjoined by law, and when such adjustment is consummated the writ of mandanms to compel the levy of a tax to pay the judgment must observe and follow this adjustment in the apportioning of the tax among the several old districts of the new township. The statute is not clear. The question is by no means free from doubts. If the eye is riveted on section 13G alone there is much force in the defendant's posi- tion. But we must scan the w^hole act to find out its spirit, and in the light of that spirit we must interpret section 136. We can discover a good reason for keeping these dis- tricts alive, after the organization of the school township, for the special purpose of adjustment of equities. We believe it Avould be highly inconvenient to preserve their ex- istence thereafter for general school pur- poses, and that such was not the intention of the lawmaking power. The existence of these districts for this particular purpose is not incompatible with the existence of the school township. It in no manner interferes with the full exercise by the school township of ail its powers. These districts were to be kept alive for a short period, to accomplish a special object entirely foreign to the power conferred upon school townships. Their ut- ter extinction for all purposes contemporane- ously with tlie creation of school townships would have left the latter no more complete- ABB.CORP.— 2 ly in possession of all their functions as mu- nicipal corporations. Finding no error, the judgment is atfirmed. All concur. On Rehearing. (May 31, 1893.) We are asked to grant a rehearing on the assumption that we have overlooked the case of Dartmouth Sav. Bank v. School Dists. Nos. G and 31. 6 Dak. 332, 43 N. W. Rep. 822. We had not overlooked it. We do not regard it as in point. In that case it might be said that there was no color of organization. There was no petition ever tiled, or even signed. In so far as that decision can be re- garded as conflicting with our conclusions we feel constrained to differ from the court which pronounced it. Another matter is referred to in the peti- tion for rehearing which strikes us with much force. It is insisted that, unless w» modify the judgment, it will stand as an u.- qualified judgment against the defendant, to be collected the same as any other judgment against it. To save any question, we wiU modify the judgment so that the collection of it must be enforced according to the pro- visions of sections 130-141, c. 44, Laws 18S3. The district court will modify the judgment by inserting therein the following clause: This judgment is to be enforced subject to the provisions of sections 136-141, c. 44, Laws 1883; the debt on which it is rendered being a debt subject to equalization as there- in provided. Modified and atfirmed. All con- cur. 18 CORPORATE EXISTENCE NOT OPEN TO COLLATERAL ATTACK. STATE ex rel. RESSEL t. WHITNEY et al. (59 N. W. 884, 41 Neb. 613.) Supreme Court of Nebraska. June 27, 1894. Application for mandamus by the state on the relation of T. J. Ressel against S. A. Whitney and others. Granted. W. S. Morlan and Gomer Thomas, for re- lator. R. L. Keester, J. G. Thompson, and John Everson, for respondents. POST, J.i * * * * • * The reliance of the respondents is appar- ently upon the proposition that, on the com- pletion of the census mentioned, the said corporation ceased to be a city of the second class, and became eo instanti a village, and that there exists no authority for the division 1 Part of opinion is omitted. of villages into wards, and that the election of councilmen by wards is without authority and void. To that proposition we cannot give assent. The rule is well settled upon' authority that the existence of a municipal coi^poration cannot be questioned in collat- eral proceeding. In Dillon on Municipal Cor- porations (4th Ed. 43a) it is said: "Where a municipal corporation is acting under color of law, and its existence is not questioned by the state, it cannot be collaterally drawn in question by private parties; and the rule is not different although the constitution may prescribe the manner of incorporation." The conduct of the respondents appears to have been contumacious in the extreme, and is in- excusable in any view of the case. The writ is allowed as prayed, and the costs, including $60 to the referee, will be taxed to the re- spondents Zerbe, Whitney, Sullivan, and Turkington. Writ allowed. POWER OF LEGISLATURE TO COMPEL PAYMENT OF DEBTS. 19 MATOR, ETC., OF CITY OF GUTHRIE v. TERRITORY ex rel. LOSEY. (31 Pac. 190, 1 Okl, 188.) Supreme Court of Oklahoma. Sept. 19, 1892. Appeal from district coux't, Logan county; E. B. Green, Judge. Mandamus by the teiTitory of Oklahoma on the relation of Marquis D. Losey against the mayor and common council of the city of Guthrie, to compel defendants to issue a warrant for the payment of relator's claim for money due him from defendants in x-eturn for duties performed as referee under direc- tion of the court in fixing the amount of cer- tain claims against the city. Defendants made return to relator's alternative writ of mandamus by way of demurrer, which was overruled, and defendants answered. Re- lator's demurrer to the answer was sustain- ed, judgment rendered for relator, and a per- emptory writ issued, commanding defendants to issue tlie warrant. From this judgment, defendants appeal. Affirmed. Bierer & Cotteral, for appellants. H. S. Cunningham, H. E. Asp, and Saml. S. Over- street, for appellee. BURFORD, J. On the 22d day of April, 3889, at the opening of the Oklahoma coun- try to settlement and occupancy, a large num- ber of people settled for town-site purposes upon the lands now occupied by the city of Guthrie. The act of congress approved March 2, 1889, contains a provision that no entry of lands for town-site purposes shall em- brace more than 320 acres in any one entry. To avoid this inhibition, and segregate more lands for the purpose of trade and business, four separate entries were made of these lands, consisting of 320 acres each, and were severally denominated Guthrie, East Guth- rie, Capitol Hill, and West Guthrie. The town-site settlers and occupants of each of these subdivisions organized what were call- ed "provisional governments," under char- ters adopted by the people at public meetings held for such puipose, and each selected municipal officers, made public improve- ments, graded streets, erected buildings, con- structed bridges, adopted laws and ordinan- ces, and arrested, punished, and imprisoned violators of such ordinances. These pro- visional governments assumed and exercised all the powers, functions, and authority of le- gally-constituted municipal corporations, and continued to exercise the same until the month of August, A. D. 1890, when they were con- solidated, and organized as a village corpora- tion, under and piu-suant to the laws of Ne- braska, as adopted and extended over said territory by the act of congress approved May 2, 1890, providing a teiTitorial govern- ment for the territory of Oklahoma; and said village of Guthrie succeeded to all the im- provements, property, books, and documents of the several provisional governments. Dur- ing the existence of the several provisional governments they each contracted and cre- ated in various ways pertaining to their mu- nicipal affairs certain debts, which remained unpaid at the time the said provisional gov- ernments were converted into a legally-consti- tuted municipal corporation. The village of Guthrie continued her corporate existence until after the adjournment of the first terri- torial legislature, when she organized as a city of the first class, under the laws of Okla- homa, and has ever since remained such, with a mayor, common council, and police officers, exercising all the functions and powers of a municipal corporation, and is composed of the same people, and embraces the same terri- tory, as the original provisional governments of Guthrie, East Guthrie, Capitol Hill, and West Guthrie, and has succeeded to all their property and improvements, and has adopted and appropriated the same. During the ses- sion of the first legislature, and after the village of Guthrie had been organized, an act was passed, entitled "An act for the purpose of providing for the allowance and payment of the indebtedness heretofore created by the people and cities of Guthrie, East Guthrie, West Guthrie, and Capitol Hill, now consoli- dated into the city of Guthrie." Chapter 14, art. 1, St. Okla. This act empowers the dis- trict judge of Logan county to appoint three dis- interested persons to act as referees to inquire into and pa.ss upon all claims and demands of every character heretofore issued by the four provisonal governments for all purposes. "The holders of claims are requested to pre- sent them to the referees, supported by affi- davit that the claims are bona fide, and were for money advanced, materials furnished, or labor performed for the benefit of the city requiring the same; and the referees are au- thorized to hear evidence, if they deem nec- essary. The referees are required to give notice of the time for presentation of claims, and after thirty days all demands not pre- sented are barred." Section 4 of said act pi'ovides "that, after the commission or ref- erees shall have passed upon and allowed any and all claims mentioned in this act, they shall make a report to the district court of same, showing the names and amounts al- lowed by them, and also all claims and the names and amounts disallowed by them, for approval or disapproval of the district judge. And all claims allowed and approved by the district judge shall be certified to the mayor and council of the village of Guthrie, who are hereby authorized and directed to issue war- rants upon the village, and payable by the village to the holders and owners, payable in installments, each of the amounts to be in one, two. three, four, and five years, to bear interest at the i*ate of six per cent, per annum from the date of the allowance by the com- mission or referees; aud said mayor and coun- cil of the village of Guthrie shall levy a tax upon the property of the residents of said vil- lage to pay the warrants herein referred to, levying same upon each subdivision hereto- 20 POWER OF LEGISLATURE TO COMPEL PAYMENT OF DEBTS. fore constituting Guthrie. East Guthrie, West Guthrie, and Capitol Hill according to the amount of indebtedness created by the city councils, the mayors, and school boards, here- tofore acting for and in behalf of the people resident of said cities; each of said cities to be liable for and taxable under this act for the amount of indebtedness created by them." Section 5 is as follows: ••That said commis- sion or referees shall be allowed such com- pensation as the district judge may allow them for the services to be performed by them under this act, and the village of Guth- rie shall pay the same to the said commission or referees, upon the order of the district judge." Acting under the provisions of this statute, the district judge of Logan county appointed the relator, with two others, referees or com- missioners, and they qualified and performed the duties required of them in said act, and made their report to the district court. Thereupon the court ordered that the relator be allowed the sum of $425 for his services as such referee, and ordered that the council issue warran^^s of the city of Guthrie there- for. This order was presented to the council in session, and a demand made for the war- rant, which was refused. The relator applied to the district court of Logan county for an alternative writ of mandate, commanding the city to issue said warrant, or show cause why the same should not be done. The city coun- cil made their retiu-n to this writ by way of demurrer, and assigned as cause for demurrer '•that the court had no jurisdiction to grant the relief prayed for;" that the act upon which the claims were based was unconstitu- tional, and in conflict with the organic act of Oklahoma; that the petition does not state facts to entitle the relator to the relief pray- ed for. This demurrer was overruled and ex- ception saved. The city then answered in 11 paragraphs, the first of which was a gen- eral denial of the allegations contained in the petition. The relator demurred to the several answers, and the demurrer was sus- tained as to all of the answers except the first, to which it was overruled. This paragraph was afterwards stridden out, for the reason that the defendant refused to verify the same. The court then rendered judgment for the re- lator, and issued a peremptory writ of man- damus commanding the defendant to issue said warrant. From this judgment the city appeals, and assigns as error the overruling of her demurrer to the petition, and tlie sus- taining of the relator's demurrer to her sev- eral answers. Some of the questions presented by this record are quite novel and difficult, and of no little importance. The subjects have all been treated ably and exhaustively by counsel on both sides, the several briefs exhiliiting evi- dences of great research and careful study. The first question to be determined in this controversy is as to the legal status or charac- ter of the so-called "provisional govern- ments." It is a well-established rule of law that before there can be a de facto municipal corporation there must be some authority for a de jure corporation. A de facto corpora- tion cannot exist where there is no law au- thorizing a de jure corporation. Norton v, Shelby Co., 118 U. S. 426, 6 Sup. Ct. 1121; Evenson v. Ellingson, 67 Wis. 634, 31 N. W, 342. "The proposition which lies at the foundation of the law of coi-porations of this country is that here all corporations, public and private, exist, and can only exist, by vir- tue of express legislative enactment, creating" or authorizing the creation or existence of the corporate body. Legislative sanction is, with us, absolutely essential to lawful corporate existence." Dill. Mun. Corp. § 37. Was there any legislative sanction to the existence of mvmicipal corporations prior to the act of con- gress approved May 2, 189(1? We are unable to find any such authority. These provision- al governments gi*ew out of a necessity made by the absence of legal authority. They were aggi'egations of people associated togeth- er for purpose of mutual benefit and protec- tion. Without any statute law, they became a law unto themselves, and adopted the forms of law and government common among civ- ilized people, and enforced their authority hy the power of public sentiment. They had no legal existence; they were nonentities; they could not bind themselves by contracts, or bind any one else; they were morally bound to make just recompense for that which they received in money, labor, or materials, but no such obligations could be enforced against them. The organic act furnished them a sov- ereign civil government, and supplied the au- thority for constituting de jure municipal cor- porations. Then they became and were de facto corporations until such time as they complied with the laws relating to incorpo- rating villages, and became a de jure corpo- ration. The de jure corporation having succeeded ta \ all the property, public improvements, people, and territory of the provisional governments, ' has the legislature power to compel the de jure government to pay the debts of its illegal unauthorized predecessor? It is a fundament- .■ a] rule that a legislature may, by a retroact- ; ive statute, cure or ratify any defect which it might have, in the first instance, author- ized, unless prohibited by some constitutional / or organic provision; or it may, by a I'etro- ; active statute, legalize any proceedings that it might have authorized. Wade, Retro. Laws, §§ 254, 257, and authorities citest principles of justice require tliat it should make compensation for the value of such property to tlie person from whom it was obtained. The city, in such case, however, sliould be held liable only for the actual value of the property, or what it obtained therefor. 22 POWER OF LEGISLATURE TO COMPEL PAYMENT OF DEBTS. and would not be concluded by the contract price." This proposition is supported by the following cases: Herman v. City of Crete, 9 Neb. 35G, 2 N. W. 722; Maher v. City of Chi- cago, 38 111. 2GG; Louisiana v. Wood, 102 U. S. 294: Chapman v. County of Douglass, 107 U. S. 348, 2 Sup. Ct. 02; Clark v. Saline Co., 9 Neb. 51G, 4 N. W. 246. There is no provision in the federal constitution or tJie organic act of this territory that contravenes the statute au- thorizing the village of Guthrie to pay these debts; and. aside from any question of implied liability for money had and received, or prop- erty appropriated and converted to the use of the city, it seems clear that the legislature did not exceed its authority in enacting said law. Courts cannot overthrow legislative acts upon the ground that they are vicious in their pol- icy, or evil in their tendencies. Statutes must stand, unless found repugnant to some express provision of the organic law or constitution. Mount v. State, 90 Ind. 29; County of Living- ston V. Darlington. 101 U. S. 407. The legisla- ture is to be the judge of the policy or wisdom of the laws they enact, and, so long as they keep within the constitutional restriction, the courts cannot interfere, however unjust they may seem in their operations. Counsel for the present city of Guthrie cites the case of State V. Tappan, 29 Wis. (jC>4. and insist that in that case the court lays down a rule contrary to the docti'ine enunciated in the cases we have here- in cited. A careful examination of that case fails to reveal any serious conflict. The deci- sion is based upon local constitutional resti'ic- tions. and the general conclusion of the court is In harmony with the adjudicated cases. In summing up his conclusion the learned judge states this proposition: "The legislature may authorize a town to levy taxes therein for pub- lic purposes not strictly of a municipal charac- ter, but from which the public have received, or will receive, some direct advantage, or whore the tax is to be expended in defraying the expenses of the government, or in promot- ing the peace, good order, and welfare of so- ciety, or where it is to be expended to pay claims founded in natural justice and equity, or in gratitude for public services or ex- penditures, or to discharge the obligations of charity and humanity, from which no person or cori)oration is exempt." Under this rule the legislatiue might reasonably say to the village of Guthrie: "You have received some advan- tage from the work performed and improve- ments made by these provisional governments, and these claims are founded in natural jus- tice, and we will authorize you to tax your property to pay tliem." The legislature has seen fit to provide for the payment of these claims. It had tlie power to enact such a law. We find the statute in conflict with no superior rule or limitation wliich affects its vitality. It is contended tliat the law is special legis- lation, and hence in conflict with chapter 818, p. 170, 24 Stat., which prohibits the legisla- tures of territories from passing any local or special laws incorporating or amending the charter of any city or town or village, or granting to any city or town any special or ex- clusive privilege, immunity, or franchise. This act does not change or amend the charter, nor does it grant any special privilege or immunity to the village of Guthrie. It simply recog- nizes a moral obligation on her part to pay cer- tain debts created by her predecessors, from which she received some advantage or benefit, and for which she was not legally liable, and provided a speedy and inexpensive method of determining the amounts and authorized the levy of taxes for raising the revenues to meet and pay the same. In construing a provision of the constitution prohibiting special laws, the supreme court of Indiana in Mount v. State, 90 Ind. 29, says: "The granting of relief to- individual claimants is not within the provi- sion of the constitution which prohibits the en- actment of special laws. Each claim stands on its own merits. A general law could not be made applicable; and, when general laws are not applicable, special ones may be enact- ed. It is only when general laws are apphc- able that special laws are forbidden." There is nothing in the act in question that conflict& with the provisions of the act of congress re- ferred to. Nor does the legislature attempt to- confer judicial authority upon the commission- ers. They can render no judgment. But they make a finding, which is reported to the dis- trict court, and this finding and report is sub- ject to revision by the court, and is .subject ta the ordinary rules of practice in reference to reports of referees. The district court renders the judgment and makes the order which binds the city authorities. Chapter 818, § 4, p. 171, 24 Stat., provides that no municipal corpora- tion shall become indebted in any manner ex- ceeding 4 per centum on the value of the tax- able property within such corporation, as shown by the last assessment for territorial and county purposes. The tenth paragraph of appellants' answer to the alternative writ at- tempts to bring the present city within this in- hibition, by alleging that the claims allowed against some of the original subdivisions are in excess of the 4 per cent, limit. The answer di.scloses the fact that the assessed value of taxable property in the provisional govern- ments prior to the organization of the city was at least $592,407, and the total claims allowed amount to $17,779.14, which is less than 4 per cent, of the assessed valuation. And. even if it should appear that the claims are in excess of the limit, it .would not invalidate the stat- ute. This congressional provision is a limit oq the municipal authorities, but does not limit the power of the legislature to levy assess- ments on the property within the corporation by proper legislation. The debts and the tax authorized to be levied to pay them owe their authority to this act, (article 1, c. 14, Laws Okla.;) and the date of taking effect of this act must be taken as the time when the debt was incurred. There was no liability on the village of Guthrie until the legislature created the liability, and the debts were incurred as of POWER or LEGISLATURE TO COMPEL PAYMENT OF DEBTS. 23 that date., There is no showing that the as- sessed valuation of the property liable for said taxes was of less value at that date than when the provisional governments were in control, or that any assessment had ever been made for territorial and county purposes. There was no error in sustaining the demurrer to this paragraph of answer. Having readied the conclusion that the vil- lage of Guthrie was legally liable by legisla- tive enactment for the proper provisional debts, is the city of Guthrie also liable, and can the defendant in the case at bar be required to pay the relator for his services? This question has been passed upon by several courts of the highest resort, and the same conclusion is reached in all. The city of Guthrie succeed- ed to all the rights, franchises, and property of the village of Guthrie, and is bound by all her contracts and obligations. The legislature made the village of Guthi-ie liable for these debts and claims. It constituted a part of her legal liabilities at the time the change was made from the village to the city organization. The new was bound to carry out and recog- nize all the legal conti'acts and liabilities of the old. A municipal corporation cannot escape the payment of just liabilities by a change of name, a change of organization, or a change of boundaries. The remedy may be for a time suspended or defeated, but the obligation rests the same, and the legal successor which talies the people, the territory, the property, and cor- porate benefits will be bound to meet the lia- bilities. Broughton v. Pensacola, 93 U. S. 266; Mobile v. Watson, 116 U. S. 280, 6 Sup. Ct. 398; Girard v. Philadelphia, 7 Wall. 1; Mount Pleasant v. Becliwith, 100 U. S. 514; O'Connor v. Memphis, Lea, 730. It is contended that mandamus is not the proper remedy of the relator in this case, and that he has a remedy at law. It is suflBlcient to say that, in view of our conclusion that the legislature had the power to r^Hiuire these debts to be paid, it also had the power to deter- mine the manner of their payment, and who should audit and determine the amounts. The legislature also provided who should deter- mine the compensation of the referees, and how the same should be paid. If the city of Guthi-ie desired to question the amount of com- pensation, they should have appeared before the district judge at the proper time, and made their objections then, and had their day in court. The law says the judge shall fix the compensation, and order the warrant drawn. This has been done. The city has made no objection before the proper tiibunal at the right time, and she cannot now be heard to question the correctness of the amount or the value of the services rendered. All the of- ficers of the city of Guthrie get their powers and authority from the legislature, and they are bound by the legislative acts, and at all times subject to legislative control. If the legislature has seen fit to talie this question out of their hands, and intrust it to some oth- er person designated by them, the courts have no right to set aside their actions or ques- tion the motive so long as no organic law is violated. There is no discretion in the city officers in reference to compensation of Lo- sey. The only act they can perform is to draw the warrant. It is as much the proper charge against the general city revenue as the salary of any other officer. It is their duty to draw the warrant as directed by the district judge, and mandamus is a proper proceeding to com- pel them, if they refuse. W^e find no error in the record. The judgment of the district court of Logan county is affirmed, at the costs of the appellants. 24 PUBLIC POWERS AND EIGHTS HELD AT AYILL OF LEGISLATUKE. nrXCE et al. T. CROCKER et al. (44 N. E. 446, 16G Mass. 347.) Supreme Judicial Court of Massachusetts. Sufifolk. June 15, ISlXi. fioport from supreme judicial court, Suf- folk county; James M. Morton, Jud^e. Kill by one Prince and others against one Crocker and others to restrain defendants from proceeding to construct a subway under the streets of Boston. A demurrer to the bill was sustained, and the case reported. Dismi-ssed. F. A. Brooks and John D. Bryant, for com- plainants. Solomon Lincoln, for the Boston Transit Commission. ALLEN, J, The general complaint of the plaintiffs, as stated in their bill, is that, if the transit commissioners are permitted to proceed in the execution of the enterprise committed to them by St. 1S94, c. 548, they •will involve the city of Boston in an in- debtedness or liability of many millions of dollars beyond the limit of indebtedness pre- scribed by the laws of the commonwealth, and will do this without the authority of the city council or the consent of the taxpaying citizens; and also that this statute would have the effect to deprive the city of many rights and privileges belonging to its in- habitants, and especially that it would in- fringe rights which relate to the control of the streets and highways of the city by the aldermen and street commissioners; all in violation of the right of the inhabitants of the city to govern themselves. It is provided by section 40 of the statute that the transit commission shall not "take any land or commence the construction of any Bubway or tunnel until this act shall be ac- cepted by a majority of the voters of said city voting at some special election called by the mayor," etc. In the printed copy of the Bubway legislation furnished to us by mu- tual consent of counsel it is stated that this act was accepted at a spec-ial election held July 24, 1894. There is no averment in the bill tliat no such vote of acceptance had beeu passed, and, though the briefs on both sides say little or nothing on this point, yet it is implied in the briefs furnislied by one of the counsel for the plaintiffs (Mr. Bryant) that there had been such an acceptance, and it is then contended that the people at the polls are not the tribunal to determine what debts shall be incurred by or in behalf of the city, because, by a law which stands unrepealed, that question is to be determined by both branches of the city government, and a two- thirds vote of each branch is required to au- thorize the incurring of a debt by the city. As the fact of the acceptance of the statute has significance in certain aspects of the questions presented, we will state at the out- set that, in the al)sence of any averment to the contrary, we assume that such a vote of acceptance was duly passed. This is a fact of which the court should take ju(ilicial no- tice. Andrews v. Knox Co., 70 111. 65; State V. Swift, (39 Ind. 505; Ranch v. Com., 78 Fa. St. 490. Moreover, it is very doubtful, to say the least, whether the plaintiffs, as taxpaying inhabitants, have any standing to maintain the bill in their own names, except upon the assumption that the vote to accept the stat- ute is virtually a vote to raise or to pay mon- ey, within the meaning of Fub. St. c. 27, § 129. In this commonwealth, contrary to what has been held in some other jurisdictions, a suit like the present has been considered not to fall within the general jurisdiction of a court of equity. Baldwin v. Wilbruham, 140 Mass. 4.-J9, 4 N. E. 829; Steele v. Signal Co.. 100 Mass. 36, 35 N. E. 105; Carlton v. City of Salem, 103 Mass. 141. By Pub. St, c. 27. § 129, when a town votes to raise by taxa- tion or pledge of its credit, or to pay from its treasury, any money for a purpose other than those for which it has the legal right and power, it may be restrained by this court upon the suit or petition of not less than 10 taxable inhabitants. The case of Frost V. Belmont, 6 Allen, 152, was brought under St. 1847, c. 37, which was like Pub. St. c. 27, § 129. The case of Lowell v. City of Boston, 111 Mass. 454, was also brought un- der the similar provision found in Gen. St. c. 18, § 79. No point was there made that un- der the statute the petitioners had no right to be heard. It is contended, however, by the present de- fendants that the plaintiffs have no standing to maintain this bill, but in favor of affording a remedy against a use of public money which is supposed to be illegal we think a somewhat liberal construction should be giv- en, and that the vote to accept the statute is sufficient to give the plaintiffs a standing in court under Pub. St. c. 27, § 129. The two principal grounds upon which the plaintiffs contend tliat St. 1894, c. 548, as a whole, is invalid, are that it imposes a heavy debt upon the city, and to a certain extent takes away from the city the control of its streets. The plaintiffs deny the power of the legislature to do either of these things with- out the author; y of the city council, or the consent of the taxpaying citizens of the city. It has, however, been established by a great weight of usage and authority that the legis- lature may impose such a duty and burden upon towns and cities without their own con- sent. We do not deem it necessary to go in- to an extended discussion of this subject, or to consider what objects may be so special or local in their character as not to come within the general rule. As to roads of all kinds and bridges and sewers the doctrine is well established in this commonwealth and else- where that the legislature may prescribe what shall be done, and require cities and towns to bear the expense to such an extent and in such proportions as it may determine. The powei-s which had been given to cities and towns by the legislature by special or by PUBLIC POWERS AND RIGHTS HELD AT WILL OF LEGISLATURE. 25 I general laws are in no sense a contract, and do not become vested rights as against the legislature. Coolidge v. Brookline, 114 Mass. 592, 50G, 597; Inhabitants of Agawam v. Hampden Co., 130 Mass. 528, 530; In re King- man, 153 Mass. .5GG, 573, 57(>, 27 X. E. 778; Peo- ple V. Morris, 13 Wend. 325; Sloan v. State. 8 Blackf. 3(51; Teople v. Flagg, 4G N. Y. 401; City of IMiiladelphia v. Field, 58 Ta. St. 320; Pumphroy v. Mayor, etc., of Baltimore, 47 Md. 145; Dill. Mun. Corp. (4th Ed.) §§ 54, 73, 74, 831, and otlior cases there cited. If this power were otherwise doubtful, in the pres- ent case the statute under consideration is not peremptory and absolute, but it remained inoperative imtil accepted by a majority of the voters of the city. The plaintiffs contend that the statute is to become operative with- out the authority of the city council or the consent of the taxpayiug citizens; but, if a consent were neccssaiy, we know of no au- thority or legal reason for requiring any oth- er consent than that of 'qualitied voters. In Merrick v. Amherst, 12 Allen, 500, 506, the court, while intimating that no consent at all was necessary, said: "To guard against all danger of mistake, and to obtain the highest evidence from those most interested that the imposition of the tax was not unequal or dis- proportionate to the expected benefits, the legislature required that it should be laid on the inhabitants of the town unless two-thirds of the voters at a meeting to be called for the purpose should assent to its imposition." The instances where legislatures have provid- ed that towns or cities or counties might or should bear the whole or a portion of the expense of local improvements in case the 01. 30 X. E. 1142, and cases there cited. But railroads are always held to be built for public use, whether the right to take land or the right to grant pecuniary aid to them is considered. The legislature of this commonwealth has granted aid to railroad corporations from its own treasury. See in.stances cited in King- man, Petitioner, l.")3 Mass. 570, 27 X. E. 778. It has also in a number of instances author- ized cities and towns to furnish such aid by subscribing to stock or otherwise. For illus- trations, see St. 1852, c. 15G; St. 1855, cc. 394, 395; St. 18G0, cc. 34, 184; St. 18G1, c. 98; St. 1802, cc. 50. 78; St. 18G3, cc. 96. 104, 105; St. 18G4, cc. 11, 242, 245, 24G, 249, 200. Finally such municipal aid was authorized b.v general laws. St. 1870, c. 325, § 3; St. 1874, c. 372, § 35; Pub. St. c. 112, § 4G. The constitution- ality of such legislation has not been brought into direct controversy before this court, but indirectly it has been recognized. Kittrodge V. Inliabitants of Xorth Brookfield, 138 Mass. 28G; Com. v. Inhabitants of Williamstown, 1.5G Mass. 70, 30 X. E. 472. And elsewhere it has been established by such a weiglit of judicial authority that we regard it as set- tled. Ok-ott V. Supervisors, IG Wall. G78, G94-G9G; Railroad Co. v. Otoe Co., Id. GG7; Pine Grove Tp. v. Talcott, 19 Wall. GOG; Dill. Mun. Corp. (4th Ed.) §§ 153-158, 508. The building of the subway for the carriage ol 26 PUBLIC POWERS AXD EIGHTS HELD AT WILL OF LEGISLATURE. such passengers as pay the regular fare is therefore for a public use, and it is within the constitutional power of the legislature to or- der or sanction taxation for it. The plaintiffs also contend that the statute is in violation of the fourteenth amendment to the constitution of the United States. This objection is not dwelt upon in argument, and it is enough to say that we think it is un- founded. The plaintiffs further contend that the stat- ute is unconstitutional, because it omits to provide for compensation for property' taken or injured, and especially for taking part of the Common and Public Garden. But the plaintiffs cannot be heard to object to the constitutionality of the statute on grounds which only affect others than themselves. Hingham & Quincy Bridge & Turnpike Corp. Y. Norfolk Co., 6 Allen, 353; Davis v. Coimty Com'rs, 153 Mass. 218, 22S, 26 N. E. 848. So far as other private owners are concerned, the plaintiffs do not represent them, and have no standing to be heard in their behalf. In respect to the matter of providing com- pensation, the stress of the argument of the plaintiffs rests on the contention that there is no provision for compen.sation for so much of the Common and Public Garden as may be taken. It is urged that these were dedicated to the use and enjoyment of the inhabitaats of the town long before the city charter was granted, and that they are held by the city in trust to secure and promote such use; that the city, as trustee for these purposes, is en- titled to compensation if any part of either is taken; and that the fact that the city is the party to pay, as well as to receive, does not affect this argument, because the city acts in two different capacities. If we assume that the plaintiffs are entitled to be heard on this ■ branch of the argument,'^it is well settled that ' land already appropriated to one public use may be taken by autliority or direction of the . legislature for another pul»lic use. Old Colony R. Co. V. Framingham Water Co., 153 Mass. 5(>1, 27 N. E. CG2. We do not need to go into any nice consideration of the precise capacity, interest, or duty of the city on caring for the Common or Public Garden, because both the legislature and the city have consented to such new use of both as may be included within the terms of the statute. If the right to their ase is in the inhabitants of the city, their voib acce])ting the act binds them. If it is in the public at large, as distinguished from the in- habitants of the city, the interests of the pub- lic are under the protection of the legislature. The plaintiffs, in their capacity of taxpaying citizens of Boston, or as voters, or as a con- stituted part of the public at large, can as- sert no right to the continued use of the Com- mon or of the Public Garden as public parks, or to have compensation paid for the sur- render of such use, against the combined ac- tion of the legislature in passing the statute and of the inhabitants of the city in accepting it. Commissioners v. Armstrong, 45 N. Y. 234; Dill. Mun. Corp. (4th Ed.) §§ 598, 650-651a, notes, and cases there cited. Under these cir- cumstances we need not pursue the questions re- lating to the title to and interest of the public in public parks. — questions somewhat discussed in Abbott v. Cottage City, 143 Mass. 521, 10 N. E. 325, and Attorney General v. Abbott, 154 Mass. 323. 28 N. E. 34G. It is also contended by the plaintiffs that if St. 1894, c. 548, bears such a constructio'i as to allow the transit commission to enter the Public Garden with the subway, the stat- ute is unconstitutional, because it impairs the obligation of a contract between the common wealth and the city. This supposed contraci is found in St. 1859, c. 210, § 3, which pro- vided that the commissioners on the Back Bay should fill up and complete at the ex- pense of the commonwealth so much of Ar- lington street as remained to be completed, and the strip of land easterly of said street which had theretofore been released by the commonwealth to the city; and, further, that "no building shall hereafter be erected be- tween Arlington and Charles streets, except such as are expedient for horticultural pur- poses." It is argued that this is a contract that the commonwealth would not erect a building there, and that the subway as con- structed is a building, and, if it is authorized by St. 1894, c. 548, then that the statute is a violation of said contract. The short answer to this argument is that the inhabitants of the city have accepted St. 1894, c. 548, and so have consented to whatever is containe^l there- in. Contracts may be waived by the parties to them. If this was a contract, the city was a party to it, and might waive it. The plaintiffs also contend that the statute is invalid because work to be done under it will increase the debt of the city much be- yond the limit of municipal indebtedness fixed by St. 1885, c. 178, § 2. But the same au- thority which fixed that limit may change it, and section 17, which requires the treasurer of the city to issue bonds, also provides that this debt shall not be included in determin- ing the limit of indebtedness. Similar excep- tions have been very numerous in the legis- lation of the last 10 years. See Blue Book for 1895, p. 805. There is no averment in the bill that the limit of indebtedness as thus ex- tended wiU be exceeded by the issue of the bonds provided for by St. 18i>4, c. 548. i 1 Part of the opinion is omitted. CREDITORS' RIGHTS CANNOT BE IMPAIRED. 27 UPPER DARBY TP. v. BOROUGH OF LANSDOWNE et al. (34 Atl. 574, 174 Pa. St. 203.) Supreme Court of Pennsylvania. March 2, 189G. Appeal from court of common pleas, Dela- ware county. Bill in equity by Upper Darby township agaiiust the borough of Lansdowne to appor- tion indebtedness of the township; the Prov- ident Life & Trust Company and others, holding bonds of the township, being made defendants. P"'rom the decree apportioning the debt as between the township and bor- ough, but holding that it could not be ap- portioned so as to bind the creditors, said bor- ough api>eals. Affirmed. Act June 12, 1878 (P. L. 184), entitled "An act providing for the adjustment of all in- debtedness between a township and one or more lK>roughs erected therefrom, also for the adjustment of the indebtedness of a township changed or merged into one or more boroughs," by section 3 provides: "Whenever any borough has been or may hereafter be erected, as aforesaid, or when- ever any township has been or may here- after be entirely merged into more than one borough, as aforesaid, the court of common pleas of the proper county, sitting in equity, shall have power, upon the application of any one or more creditors of said township or townships, or upon the application of the proper authorities of any said township or townships, borough or boroughs or either of them, by a suit or suits in equity, to ascer- tain the indebtedness of said township or townships, including judgments against the same, at the time of incorporation of eacn of said boroughs respectively, and to equita- bly adjust and apportion said indebtedness between said township or townships and borough or boroughs, and between the sev- eral boroughs into which any township shall have become merged as aforesaid, and shall thereupon decree the proportion of said in- debtedness which each township and bor- ough shall pay; in making said adjustment, as applied to each of said boroughs, refer- ence shall be had to the time of incorpora- tion of such borough, and to the debts then existing, whether since paid or not, and also to the several amounts of township taxes then unexpended; and the said adjustment shall be based upon the assessment of said township or townships for the year in which such borough was incorporated," etc. Lewis Lawrence Smith, for appellant Ed- ward A. Price and Jos. B. Townsend, for ap- pellees. PER CURIAM. The decree appealed from in this case is well made, and conforms to the spirit and letter of the act of the 12th day of June, 1878. The powers of the court are limited to an adjustment of the common indebtedness between the township and bor- ough, so that each may levy and collect, through its own machinery, the amount de- termined by the court to be its proper share. I The act gives to the court no power over the creditor. Each body remains liable to him for the whole of the indebtedness, but, , as between themselves, the amount to be i paid by the township and borough, resx)ect- ively, is fixed; so that, if either pays or is j compelled to pay more than its share, it will I be subrogated to the rights of the creditor ' as to that amount, and be entitled to collect I it from the defaulting body. If the whole I debt should be charged up to each as a lia- bility, a credit should be given to each for so much as the decree fixes as the share of the other. In effect, as between themselves, and for the purpose of striking a balance for the purpose of ascertaining the borrowing power of each, the borough and township will thus be charged only with the amount charged against it in the decree, but the rights of the creditors remain as before. The decree is affirmed, the costs of the ap- peal to be paid by the appellant. 28 DESCRIPTIOX OF CORPOliATE BOUXDARIES. TOWN OF ENTERPRISE et al. v. STATE ex rel. ATTORNEY GENERAL. (10 South. 740, 29 Fla. 128.) Supreme Court of Florida. March 16, 1892. Error to circuit court, Volusia county; J. D. Broome, Judge. Quo warranto proceedings on tlie rel.-itinu of the attorney general against T. B. Bid- ■dulph, S. S. Bennett, Andrew Harold, .S. A. Donald, George H. Count, and William James to test their right to be a corporation under the name of the "Town of Enterprise." From B. judgment of ouster respondents bring er- ror. Reversed. John W. Price, for plaintiffs in error. MABRY, J.i * * * * A second corporation, it is alleged, was formed on March 24. A. D. 1SS4. A fair and complete transcript of the proceedings was prepared by the clerk of said town, embody- ing the notice by which the meeting was con- vened to form said corporation, the number of qualified electors present, the seal, terri- torial limits of said town, and the names of the officers elect, to which the mayor and aldermen attached their signatures, attested by the clerk with .said seal, and filed with the clerk of the circuit court, and marked ^Tiled," but before being recorded was lost, iind cannot now be found. The transcript of the proceedings alleged to have been deliv- ered for record complies with the statute in every respect, except it does not embody the name or style of the corporation. This trans- cript, it seems, in some way disappeared from the clerk's office, and was never I'ecorded. We would not be disposed to pronounce the corporate organization void because of the failure to record the transcript, under the circumstances alleged. If the municipal or- ganization was properly had, and a perfect transcript of the proceedings delivered to the proper officer, whose duty it was to record it, we think the incorporators would then have complied with the re(iuirement of the statute, in so far as the creation of the corporation iimong themselves is concerned. They had the right to re-establish the lost transcript, and have it recorded. It is not necessary for us to say here what would be the effect of a failure on their part to establish the lost record in a direct proceeding by the state to vacate the municipal government thus form- ed. There is, however, a defect in this sec- ond alleged incorporation which demands our consideration. The alleged metes and bounds of this incorporation show that a part of the territory proposed to be incorporated is de- tached and disconnected fromthe other. Sec- tions 1 and 2 of township 19, and sections S5 and 30 in township 18, range 30, constitute one contiguous body; but .section G in town- ship 18, range 31, is a body one mile square, xind distant five miles. We have, then, a 1 Part of the opiuion is omitted. pi-oposed municipal organization, under our general statute for the incorporation of towns and cities, containing, as corporate territory, two separate and detached localities. The query at once presents itself, can this be done? The statute provides that "the male inhabitants of any hamlet, village, or town in this state not less than twenty in number," with the requisite quahfications, may estab- lish for themselves a municipal government. It is alleged in the information that the town of Enterprise was incorporated. In Railway Co. V. Town of Oconto, 50 Wis. 189, G N. W. 607, it was held that the word "town," as used in the constitution of that state, denotes a civil division composed of contiguous ter- ritoiy, and, under the power given to county boards by statute to set off, organize, vacate, and change the boundaries of towns in their respective counties, such boards cannot make a valid order changing the boundaries of a town, so that it shall consist of two separate and distinct tracts of land. In Smith v. Sher- ry, 50 Wis. 210, G N. W. 561, it was said: "The idea of a city or village implies an as- semblage of inhabitants living in the vicinity of each other, and not separated bj' any other intervening civil division of the state." We think that the inhabitants of a hamlet, village, or town recognized as a community of persons authorized to form a municipal government under the general act for the incorporation of cities and towns in force in this state include persons living on contigu- ous territory, and that an attempt to incoiiJO- rate two distinct, detached tracts of land, as corporate territory under one government, is unauthorized and void. 1 Dill. Mun. Corp. § 27. The idea of a municipal government, with outlying detached municipal provinces, was not contemplated by the statute. The machineiT of government provided by the statute is inapplicable to such a state of af- fairs. From the allegations of the informa- tion our conclusion is that the second at- tempted incorporation of the town of Enter- prise was also illegal. The third incorporation in question, as ap- pears from the allegations of the information and the transcript of the proceedings, a cer- tified copy of the record of which is filed as a part of the information, was in compliance with the statute. The corporate name is "Enterprise," and the metes and bounds of the incorporation are defined, and all the other requisites of the statute substantially met. It appears from the information that officers were elected, qualified, and dischar- ged official duties under the two first incor- porations, but, before the formation of the third, it is alleged that the two former in suc- cession were laid aside, and proceedings were instituted to incorporate again. It is a well- established rule that no collateral attack can be made upon the existence of a corpora- tion. Such bodies derive their being from the sovereign will of the people, and, so long as the state does not question their exist- DESCRIPTIOX OF CORPORATE BOUNDARIES. 29 ence, it cannot be controverted in a collateral way on account of irregularities and defects in their organization. President, etc., v. Thompson, 20 111. 197; Hamilton v. Presi- dent, etc., 24 111. 22; 1 Dill. Mun. Corp. § 43a. When the last incoii)oration was formed there was no municipal government in ex- istence under either one of the former at- tempts at incorporation. Whatever might be the effect of an existing municipal gov- ernment under a void incorporation, as to the right of the inhabitants therein to organize a new government in opposition to it, we think that, after an abandonment of such organi- zation, the former proceedings would not pre- clude them from proceeding to organize a jnunicipal government in accordance with the provisions of the statute. The allegation in the information that officers were elected and qualified under the two first incorpora- tions, standing alone, would be no objection against the third incorporation, as it is shown that the organizations under the for- mer were void, and the governments under them abandoned before any proceedings under the latter. The theory here is that the third incorporation is illegal, and the proceedings instituted are to test the right of plaintiffs in error and others to maintain a corporate government. Our investigation so far has conducted us to the conclusion that, as shown by the information, the formation of the third corporation on May 14, A. D. lS8r>, is legal; and, unless there is something in the acts of the legislature in reference to the two first that will change the result, the de- murrer was improperly overruled. The legislature passed a special act on the 22d day of Februaiy, A. D. 1SS5, about one month before the third incorporation was undertaken, providing "that all the acts done and performed in the organization and incorporation of the town of Euteii)rise, in the county of Volusia, are declared to be le- gal and valid in law and eiiuity, and to be considered valid and binding by the laws of the state of Florida." Chapter 3(>34, Laws P'la. lS8."i. The first attempted incorpora- tion, in 1S77, was void for uncertaintj- in the territorial limits and metes and bounds of the incorporation. The second one, in 1884, was void because an attempt was made to incorporate into one municipal govermnent two distinct and detached tracts of land, which was imauthorized by the general law f(jr tlie incorporation of cities and towns. The enactment of this statute was before the adoption of the constitution of lS8o. The constitution of 1808 (sections 21, 22, art. 4) provides that the legislature shall estab- lish a uniform system of county, township, and municipal government, and shall pro- vide, by general law, for incorporating such municipal, educational, agricultural, mechan- ical, mining, and other useful companies or associations as may be deemed necessarj-. Section 17 of same article prohibits special or local laws in certain enumerated cases, which it is not necessary to mention. Under the provisions of the constitution of 18(;S, the legislature could not, by special act, create a municipal corporation, as the clear man- date of that instrument was that provisioa should be made by general law for incorpo- rating such bodies. The attempted incorpo- ration of the town of Enterprise on the 24th day of March, A. D. 1884. to which the spe- cial act was no doubt designed to apply, was not in compliance with the general law on that subject, m this: that it sought to in- corporate two detached territories under one government. This could not be done under the general law. Was it competent for the legislature to validate by special act what had been attempted to be done? We are duly sensible of the rule that an act of the legislature, passed in due form, is not to be held invalid by reason of its being supposed to be in contravention of the provisions of the constitution, in a merely doubtful case, and in sucn case the doubt should turn the scale in favor of the validity of the enact- ment. We recognize the well-settled rule that it is only in cases where the act of the legislature is clearly repugnant to the con- stitution that it will be so declared. In Stange v. City of Dubuque, 62 Iowa, 303, 17 N. W. 518, a special act of the legislature, at- tempting to validate a void ordinance of the city of Dubuque granting a street-railway company the right of way for its railroad ou certain streets of the city, was prouounced void under a constitution prohibiting the leg- islature from parsing local or special laws for the incorporation of cities and towns. It was said: "As the legislature could not, by special act, have authorized the city of Du- buque to pass the ordinance in question-, it follows that it cannot, after the passage of the ordinance, legalize it by special act. The legislature cannot do indirectly what it is in- hibited from doing directly." The follow- ing authorities sustain this position: Ex parte Pritz, 9 Iowa, 30; Davis v. Woohiough, Id. 104; Town of McGregor v. Baylies, 19 Iowa, 43; Smith v. Sherry, supra. The twenty-first section of article 4 of the con- stitution, which provides that "the legisla- ture shall establish a uniform system of mu- nicipal government," was construed in the case of McConihe v. State, 17 Fla. 2.38. It was said: "There is little difficulty in deter- mining the signification of the word 'system.' in this connection. Its general signification is 'plan,' 'arrangement,' 'method,' and, when used in reference to municipal government, it means. sinq)ly, rules and regulations for the organization and government of munici- pal corporations." This being the case, it becomes perfectly clear that the special act in question is in conflict with the constitu- tional requirement of uniformity in the or- ganization of municipal governments, what- ever might be its effect in curing mere de- fects in the procedure in the organization of a municipal government invested with no ^0 DESCRIPTION OF CORPORATE BOUNDARIES. new or different powers than those organized under the general law. 'Uniformity' indi- cates 'consistency,' 'resemblance,' 'sameness,' a 'conformity' to one pattern. For a full dis- cussion of the special laws prohibited, and the uniformity of the operation of the gen- eral legislation under the sections of the con- stitution in question, see, in addition to Mc- Conihe v. State, supra. State v. Stark, 18 Fla. 255; Lake v. State, Id. 501; Ex parte Wells, 21 Fla. 280. If municipal corporations can be formed in violation of the general incor- poration act on this subject, and then legal- ized by special act of the legislature, the uniformity of municipal organization de- manded by the constitution can be dispensed with by special legislation. No such result as this, we think, can be reconciled with the constitution. We conclude that the special act of 1885 cannot have the effect to make valid what has been done in the attempted organizations of the town of Enterprise. The act cannot validate what was done under ei- ther of the first two efforts at inconjoration. In 1887 we find a general act (chapter 3748, Laws Fla.) providing for the legalization of the charters of incorporated cities and towns. This act went into effect after the third in- corporation was had. A perusal of this act will show that it has no application to the two first attempted incorporations. There was no municipal government in existence or operation under either at the time the last act took effect. It applies to cities and towns which then, and for 10 years then last past had, exercised municipal government, and which, on account of certain specified defects in organization, had the legality of their in- corporation brought in question. The first two incorporations had been abandoned, and there were no municipal governments under them, and hence this legislation had no ap- plication to them. The information shows that the incorporation of May 14, A. D. 1885, was in compliance with the statute, and, this being so, we think the demurrer was improp- erly overruled. After the demurrer was overruled, plain- tiffs in error filed an answer, and, on motion of the state, a judgment vacating all former incorporations of the town of Enterprise, or Enterprise, was rendered, as well as a judg- ment of ouster against plaintiffs in error. The motion seems to have been considered as a demurrer to the answer. Great par- ticularity is required in an answer in such proceedings, and a complete legal right must be shown (State v. Saxon, supra); but, on demurrer, a bad plea is a good answer to a defective declaration. The infirmity in the record here is in the information filed by the state. From the state's showing, there is no good cause why plaintiffs in error, and others residing in the corporate limits of En- terprise, should not inaugurate and main- tain the municipal corporation in question. The statute gives them this right. The judgment of the circuit court is re- versed, with directions that the demurrer to the information be sustained. DESCRIPTION OF CORPORATE BOUNDARIES. SI STATE ex rel. HOLCOMB v. INHABITANTS OF TOWN OF POCATELLO. (28 Pac. 411, 2 Idaho, 90S.) Supreme Court of Idaho. Dec. 10, 1891. Appeal from district court, Bingham coun- ty; 1). W. Standrod, Judge. Action in the nature of quo warranto on the rehition of J. T. Holcomb against the in- habitants of the town of Pocatello to have its charter declared void. Judgment for de- fendant. I'hiiutifl: appeals. Attirmed. Geo. H. Gorman and Hawley cV: Reeves, for appellant. Smith &; Smith and T. M. Stew- art, for respondent. SULLIVAN, C. J. This is an action, in the nature of quo warranto, brought in the name of the state by S. C. Winters, district attorney of the fifth judicial district of the state of Idaho, on the relation of J. T. Hol- comb, for the purpose of having declared void the charter, and to forfeit the franchis- es, of the municipal corporation known and designated as the "Inhabitants of the Town of Pocatello." The action is brought under section 4()12 of the Revised Statutes of Ida- ho. The facts as shown by the record are substantially as follows: On the ISth day of March, 1S91, the relator, J. T. Holcomb, ad- dressed his verified petition to S. C. Winters, district attorney of the fifth judicial district of this state, alleging that the said relator resides in the town of I'ocatello, Bingham county, Idaho, and that he is engaged in the business of retailing spirituous, vinous, and malt liquors and cigars, and has been in said business. The complaint alleges that the Inhabitants of the town of Pocatello, in Bingham county, state of Idaho, (under the name of the "Inhabitants of Pocatello,") have since the 'Sid day of April, 1889, used and exercised all the liberties, privileges, and franchises that an incorporated town or vil- lage may use and exercise, under and by vir- tue of the provisions of section 2230 of the Revised .Statutes of Idaho, without any right or authority so to do, to the great damage and prejudice of the state of Idaho and of the relator; that the relator is a resident and tax-payer of said town; and prays that the defendant be excluded from all corporate rights, privileges, liberties, and franchises, and that defendant be adjudged not to be a corporation. The answer denies the allega- tions of the complaint, and for a further de- fense alleges substantially that the town of Pocatello had been duly incorporated on the 23d day of April. 1889, by reason of a com- pliance with the terms and conditions of sec- tion 2224 of the Revised Statutes of Idaho, particularly setting out just what had been done thereunder. A general demurrer was interposed to said answer, and overruled by the coiu't. Thereafter the facts were agreed to by the parties, and the case submitted to the court for decision, upon the pleadings and stipulation of facts. Judgment was ren- dered in favor of the defendant, from which judgment this appeal was taken, and a re- versal of said judgment is demanded, and the appellant specifies two errors therefor. The first error specified is as follows: "In overruling the demurrer to the answer," ITie demurrer raises the question as to whether the answer states facts sutticient to constitute a defense. In other words, the appellant contends that the facts stated in the answer do not show a legal incorporation of said town by the board of county com- missioners, iinder the provisions of said sec- tion 2224 of the Revised Statutes of Idaho. Said section provides as follows: "When a majority of the taxable male inhabitants of any town or village within this territory pre- sent a petition to the board of county com- missioners of the county in which said town or village is situated, setting forth the metes and bounds of their town or village, together with the adjacent boimds, in all not exceed- ing six miles square, which they desire to in- clude therein, and praying that they may be incorporated, and police established for their local government, and the county commis- sioners are satisfied that a majority of the taxable male inhabitants of such town or village have signed such petition, and that the prayer of the petitioners is reasonable, the board of county commissioners may de- clare such town or village incorporated, des- ignating in such order the metes and bounds thereof." The answer, after denying gen- erally and specifically every allegation of the complaint, alleges as a separate defense as follows: (1) That at the regular April (1889) meeting of the board of county commission- ers of Bingham county a petition was filed and presented to said board of county com- missioners, signed by 1G9 citizens, residents and tax-pajers of the town of Pocatello, praying, among other things, that said town of Pocatello be incorporated, said petition being in words and figures as follows, to-wit: "To the honorable board of county commis- sioners of the county of Bingham, in the ter- ritory of Idaho: The undersigned, your pe- titioners, respectfully represent to your hon- orable body that they are residents of the town of Pocatello. That the town of Poca- tello is situated in the county of Bingham, territory of Idaho. That your petitioners con- stitute a majority of the taxable male in- habitants of sai 1 town of Pocatello. That said town is situated witliin the following bound- aries, that is to say: All in township six south, of range thirty-four (34) east, of Boise meridian, to-wit, west one-half section twen- ty-five, (25,) all of section twenty-six. (26.) east one-half of section twenty-seven, (27,) north-west quarter of section thirty-six, (31),) north one-half of section thirty-five, (35,) north-east quarter of south-west quarter sec- tion thirty-five, (35,) north-east quarter of nortli-east quarter of section thirty-four, (34,) in all not exceeding six miles square. And your petitioners pray that they may be in- 32 DESCRIPTION OF CORPORATE BOUNDARIES. corporated and police established for their lo- cal government, and that from thenceforth they may be a body politic and corporate, by the name and style of the "Inhabitants of the Town of Pocatello,' with all powers, rights, and privileges of incoiiDorated towns and vil- lages, as is contemplated, and in such cases especially provided, by the laws of the ter- ritory of Idaho, 1887, Revised Statutes there- of;" and signed by 1G9 residents and tax- payers of said town of Pocatello. And the jiuswer further alleges facts showing a sub- stantial compliance by the board of county commissioners with the provisions of said sec- tion 2224 in the incorporation of said town. The overruling of the demuner was not er- ror. The second specification of error is as fol- lows: "In entering judgment against appel- lant upon the agreed statement of fact sub- mitted." The facts agreed to are substantial- ly as follows: That the relator, J. T. Hol- comb, was a resident and tax-payer of the tdwn of Pi caiello duiiug all the times mention- ed in the pleadings. That the affirmative al- legations of the answer, relating to the peti- tion of a majority of the taxable residents of the town of Pocatello, asking that said to-s\Ti be incorporated under the general statutes of Idaho, and the orders of the board of county commissioners in regard thereto, were true. That the meeting of the board at the time said petition was presented was a regular meeting of said board, and that the minutes of said meeting were not signed by the chairman or clerk. That the minutes of the adjourned meeting referred to in the answer were signed by the chainnan of said board, and that said meeting was an adjourned meeting. It will be observed that the petition required by said section 2224 was presented to the board of county commissioners at the regular April (1889) meeting. That on the 13th day of April, 1889, said board adjourned their said regular meeting until the 29th day of April, 1889, for the liiu-pose, among others, of c-on- sidering said petition. The record made on the 29th day of April, 1889, clearly indicates that the said board had satisfied themselves that the said petition had been signed by a majority of the taxable male inhabitants of said town, and likewise had satisfied them- selves that the prayer of the petitioners was reasonable, thus complying with the statute in those requirements. The record does not sliow what steps were taken to satisfy the board that the recpiisite number of the taxable male inliabitants had signed said petition, and tliat the prayer of the petition was reasonable, but the action of the board in granting the petition conclusively shows that said board complied with said two requirements, to-wit, had satisfied themselves that the required num- ber of persons had signed said petition and that their prayer was reasonable. This brings us to the controlling contention of appellant in this case, which is that said town was not legally incorporated, for the rea- son that the order of the board of commission- ers declaring said town incorporated failed to designate the metes and bounds thereof. The provision of said section 2224 is as follows up- on that point: "The boai'd of county commis- sioners may declai-e such town or village incor- porated, designating in such order the metes and bounds thereof." The reason of this pro- vision is obvious. Tlie boundaries of a mu- nicipality must be fixed and certain, in order that all may know the scope or section of country embraced within tlie corporate lim- its, and over which the mimicipality has juris- diction. The statute requires the board to fix the boundaries of the municipality created by them under said act. In case the boundaries are clearly designated in the petition, and the board by its order refers to such petition, and grants it, without any change or modification, it is a sufficient compliance with said provi- sion of the statute. Certain!}' no one will seri- ouslj^ contend that the boundaries of said town are not set forth in the petition, so that th^'y may be readily ti'aced and easily ascertained therefrom. We are of the opinion that the re- cital in the order of the board refen'ing to the petition is sutficiently explicit to warrant us in regarding the petition as a part of the pro- ceedings, and may consequently be consider- ed in pari materia. People v. Carpenter, 24 N. Y. 80. We think there was a substantial compliance with the statute, and that is all that is required. People v. Railroad Co., 4-5 Cal. 306; Water-Works v. San Francisco, 22 Cal. 440; In re Water-Works, 17 Cal. 132. In the case of Com. v. Halstead, (Pa. Sup.) 7 Atl. Rep. 221, there was a variance in the bound- aries, as given in the petition and draft, or plat on file, and the court says: "It appears, as set forth in the eighth assignment, that an error exists in the petition and decree. The de- scription of the boundaries there given is at variance with the draft or plot on file. The proper distances of the sixth boundary line and the bearings of the seventh are omitted. This is manifestly a mere blunder, and might, per- haps, upon proper showing, be amendable here;" thus holding that amendment of de- scription may be made. The appellant insists on a strict constraction of said section of the statute. Section 4 of the Revised Statutes of Idaho, among other provisions, provides that "the Revised Statutes establish the law of this state respecting tlie subjects to which they re- late, and their provisions, and all proceedings under them, are to be liberally construed, with a view to effect their objects and to promote justice." The proceedings of the board of coun- ty commissioners, under the statute, in the in- conioration of said town, are commande{l by said section 4 to be liberally construed with a view to effect the intended object. The said town was incorporated on the 29th day of April, 1889, and used and exerciseil the liber- ties, privileges, and franchises which it was authorized to use and exercise under the laws of Idaho, without question, until the com- mencement of this suit, on March 24, 1S91. DESCRIPTION OF CORPORATE BOUNDARIES. 33^ Thus for nearly two yeare the legality of said corporation was not questioned. No appeal was taken from the order of the boai'd incor- porating said town. The grievance of the re- lator is that said municipality insisted on tax- ing him $100 per month for retailing cigars and spirituous liquors within the boundaries of said municipality. Charters of municipal corporations, which have for their objects the ABB.CORP.-S protection of the lives and property of the [ people, in densely populated districts, should ' not be overturned and set at naught except , for very grave reasons. The corporate exist- / ence of such municipalities should be main- ' tained, if possible. The judgment of the court below is affirmed, with costs. MORGAN and HUSTON, JJ., concur. 34 WHAT TERRITORY MAY BE AXXEXED. FORSYTH Gt al. v. CITY OF HAMMOND. (41 N. E. 950, 142 Ind. 505.) Supreme Court of Indiana. Nov. 7, 1895. On rehearing. For former report, see 40 N. E. 267. Miller, Winter & Elam, A. L. Jones, J. W, Youcbe, and Tbos. J. Merrifield, for appel- lants. E. D. Crumpacker, for appellee. HOWARD, C. J.' One of the positions tak- en by counsel in support of their petition for a rehearing of this case Is that the circuit court had no jui-isdiction of the appeal from the board of county commissioners, for the reason that the annexation of territoi-y to a city is a legislative, and not a judicial, func- tion, and, as such, in case of unplatted lands, the board of county commissioners is given sole and final jurisdiction in the prem- ises./' The proposition so advanced was not urged in the original argument, nor on the trial of the cause, and is now brought to our attention for the first time; but, as it is a question that affects the jurisdiction of the trial court, and also of this court, it is one that will be entertained at any time. ,/- It may be conceded that annexation of ter- ritoiT to a city is a legislative function. This function is exercised by the common council when it resolves to annex certain described lands to the city, and to present a petition therefor to the county board. It must be ad- mitted, however, as we think, that the after proceedings had upon the petition are of a judicial nature. The petition must give the reasons why, in the opinion of the council, the annexation should take place. The suffi- ciency of such reasons, and whether tliey in fact exist, call for the decision of the tri- bunal appointed to hear the petition. Notice of the presentation of the petition is also pro- vided for, and adverse parties are thus brought in. Whether the proper preliminai-y steps have been taken, whether the reasons given in the petition are true and are suffi- cient, seem to be questions calling for a ju- dicial examination and decision. In a sim- ilar case (Grusenmeyer v. City of Logans- port, 70 Ind. 549) it was said by Woods, J., speaking for this court, that "the decision of the board in such a case is judicial, and not merely administrative or legislative." But if the board, in considering and deciding upon the petition, acts in a judicial capacity, cer- tainly the legislature may, as it has done in this case, provide for an appeal to the courts, to determine whether the city conncil and the county board have complied with the stat- utory requirements in the action taken. It is the law itself, as has been said, that fixes the conditions of annexation; and the office of the board and of the court is lo detennine whether the conditions so prescribed by the law have been complied with. The legisla- ture has expressly provided for such judicial determination by the board and for an appeal therefrom to the courts, and this court has frequently recognized the right to such ap- peal. Section 4224, Rev. St. 1S94 (section 3243, Rev. St. ISSl); Catterlin v. City of Frankfort, 87 Ind. 45; Chandler v. City of Kokomo, 137 Ind. 295, 36 N. E. S47: Wilcox v. City of Tipton (at this term) 42 N. E. 614. See, also, Manufacturing Co. v. Emery (at this term) 41 N. E. 814. See, also. City of Wahoo T. Dickinson, 23 Neb. 426, 36 N. W. 813. In Forsythe v. City of Hammond, 6S Fed. 774, Baker, J., in passing upon an application, made to the United States circuit court for the district of Indiana by one of the appel- lants in the case at bar, to enjoin the api)el- lee from collecting taxes upon the lands an- nexed in this proceeding, speaking of the question now under consideration said: "The i power to hear and determine whether the / conditions prescribed by law for the crea- tion, enlargement, or contraction of a mu- j nicipal body exist is judicial in its nature, and may be appropriately conferred upon the courts. The creation, enlargement, or con- ] traction of a municipal body is not the act of the court, but is the act arwl result of the law. The court simply determines whether the conditions are present which authorize the creation of a municipal body, or the en- largement or contraction of its limits; and, when these conditions are judicially ascer- ' tained, the law, ex proprio vigore, creates the municipal body, or enlarges or conti'acts its boundaries." Counsel next repeat the contention that the action of the common council of East Chi- cago, in attempting to annex to that city cer- tain of the lauds here in controversy, with- out fii-st having secured the assent of the own- ers of that part thereof adjacent to the city, cannot be attacked collaterally in this case. We cited in the original opinion numerous authorities to the proposition that the Juris- diction of an inferior tribunal, as a common council, may be attacked collaterally, and evidence offered to show that the tribunal did not have jurisdiction of the subject mat- ter or of the parties. We have attentively read the acute analj'sis made of those au- thorities by counsel, and are still satisfied that the authorities so cited do establish the truth of the proposition stated. We are in- clined to think that counsel have not careful- ly distinguished between facts as to the ju- risdiction of a body and facts as to the pro- ceedings and acts of that body after jurisdic- tion is shown. If there is jurisdiction, then the decision that follows is conclusive, except on direct attack. But jurisdiction itself may always be inquired into, and it is only after jurisdiction is established, both of the sub- ject matter and of the person, that the de- cision of the tribunal will be invulnerable to collateral attack. As said by this court in Board v. Markle, 46 Ind. 96, cited in the original opinion: "The facts which it is said must be sliown to exist before the matter can be within the jurisdiction of an inferior court. WHAT TERlUTOllY MAY JJE ANNEXED. 35 and Tvhich can be luquirod into collaterally, are such as in the absence of which the court cannot rightfully hear and determine any question touching the matter in controversy. Hence a recital in the record of such facts may be shown to be false." See, also, State V. Hudson, 37 Ind. VJS. As bearing upon the question, see, further. Rape v. Ileaton, 9 Wis. 328; Thompson v. Whitman, IS Wall. 457; Withers v. I'atterson, 27 Tex. 491; !Scott V. McXeal, 154 U. S. 34, 14 Sup. Ct. IIOS; Works, Courts, §§ 20, 23, 2.5, 2G. In the case at bar it is not doubted that the owners of the lands adjacent to the citj of East Chicago, and which it was attemptec to annex to the city, had never assented to such annexation, but that the only petition for annexation presented to the common council was by owners of lands not adjacent to the city; yet the claim is made that the question of the right of the council to annex such ad- jacent lands, and also the nonadjacent lands, I is foreclosed by the record. The city council assumed tbat the petitioners for annexation f were the owners of the lands adjacent to the city, and it is said that this assumption is f conclusive, although in fact the owners of the adjacent Lands did not assent to such annex- ' ation. If that contention were good, why could I not any person go before a city council, claim I falsely to be the owner of adjacent lands, and petition for their annexation to the city, and, ; if the record of the common council should show that upon such petition the lands were annexed, how could the decision be collateral- ly called in question? Tlie law, however, gives the council jurisdiction to annex adjacent lands only on the written assent of the own- ers. It is clear that the common council had no jurisdiction of the subject matter. In cases cited in the original opinion we [ think it is shown that this court has more than once decided practically the same ques- tion here raised, namely, that attempts at annexation of lands to cities made by com- mon councils not having jurisdiction are void, and may be attacked collaterally, as well as directly. City of IndLanapolis v. McAvoy, 86 Ind. 587; City of Delphi v. Startzman, 104 Ind. 343, 3 N. E. 9.S7; City of Indianapolis v. Patterson, 112 Ind. 344, 14 N. E. 551. Counsel devote much argument and research to show that where the jurisibction of an in- ferior tribimal depends upon a fact which such tribunal is re(iuired to ascertain and settle by its decision, such decision, in general, is con- clusive. It needed but a statement of that proposition to establish its truth. But it does not follow that such tribunal, by claiming ju- risdiction, can establish it. If the law fixes wluit is necessary to acquire jurisdiction, the tribunal cannot take jurisdiction not so au- thorized by law. The law requires notice to parties who are to be subjected to the decis- ions of the tiibuual. Jurisdiction, therefore, cannot be takei^ without such notice. But as( the tribunal nmst itself decide whether the no- / tice is sutticient, its decision on such sufficiency / is conclusive. So, when a petition is to be' filed, such petition is necessary to give ju- risdiction, and. the tribunal, by finding that a petition was filed, when in fact it was not, could not take jurisdiction. But as the tri- bunal is the only body to pass upon the suffi- ciency of the petition, whether it is in prop- er form, has the requisite number of signers, and whether the persons signing have the prop- er qualifications, etc, its decision on such questions is final. St(xldard v. Johnson, 75 Ind. 20, one of the leading cases on this subject, and relied upon by counsel, is in harmonj' with this holding. That case decides that the presentation of a petition for the improvement of a highway gave the county commissioners jurisdiction over the subject matter of the petition, and that whether the petition was in all resijects sufficient was a jurisdictional question, which the board had a right to decide for itself. The couii:, however, is careful to say that it is not to be understood as holding that "any peti- tion, however defective or irrelevant, will be deemed sufficient to invoke the jurisdiction of the commissioners to decide upon its suffi- ciency, and to impart validity to that decision as against collateral attack." The correct rule ) is stated in the same case, "that once the I jurisdiction of an inferior tribunal is estab- \ lished over the subject matter and the parties I to a proceeding wliich may be had before it, the same presumptions are indulged in favor I of the regularity of its action as prevails in ' favor of the action of the courts of general powers." Had the common council in the case 1 before us actjuired jurisdiction over the lands to be annexed and lying adjacent to the city, and had it also acquired jurisdiction over the owners of such lands, then the subsequent proceedings, however defective, would not be void; but, not having acliuired jurisdiction over the lands or over its owners, the annex- I ation proceedings were a nullity.i ' 1 Part of the opinion is omitted. 36 APPORTIONMENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. JOHNSON et al. v. CITY OF SAN DIEGO. (No. 19.4S3.) (42 Pac. 249, 109 Cal. 468.) Supreme Court of California. Oct. 9. 1895. In bank. Appeal from superior court, San Diego county; E. S. Torrance, .ludge. Action by P. L. .Tolmson and others against the city of San Diego to determine what proportion, if any, of the bonded indebted- ness of San Diego was properly chargeable on certain territory excluded from that city. From the judgment rendered, defendant ap- peals. Affirmed. William H. Fuller and Clarence L. Barber, for appellant. S. M. Shortridge and Gibson & Titus, for respondents. HEN SHAW, J. Appeals from the judg- ment and from the order denying a new trial. Under an act of the legislature ap- proved March 19. 1S.S9 (St. 1SS9, p. 3oG), a portion of the territory formerly embraced within the corporate limits of the city of San Diego was excluded therefrom. The act referred to was in its nature permissive. It provided for the calling of an election upon petition, at whicli election tlie qualified elect- ors within the territory proposed to be seg- regated should vote separately from the oth- er voters of the mimicipal corporation, and the votes cast in such territory should be canvassed separately from the votes cast by the other electors of the municipality. If a majority of the votes cast in the territory proposed to be excluded and a majority of the votes cast in the municipality proper should both be for the segregation, then, after certain formalities had been complied with, the territory should cease to be a part of the municipal corporation, "provided [so runs the law] that nothing contained in this act shall be held to relieve in any manner whatsoever any part of such territory from any liability for any debt conti'acted by such municipal corporation prior to such exclu- sion: and provided further that such mu- nicipal corporation is herel)y authorized to levy and collect from any territory so exclud- ed from time to time, such sums of money as shall be found due from it on accoimt of its just proportion of liability for any pay- ment on the principal or interest of such debts; such assessment and collection shall be made in the same manner and at the same time that such assessment and collec- tion is levied and made upon tlie property of such municipal corporation for any payment on account of such debts: and provided fur- ther that any such territory so excluded from any municipal cor])oration may at any time tender to the legi.'^lative body of such municipal corporation the amount for which such territory is hable on account of such debts, and after such tender is made such authority as is herein given municipal cor- porations to levy and assess taxes on such excluded territory shall cease." Under this law. the territory known as the "Coronado Beach." which contains the land of these plaintiffs, was excluded from the corporate control of the city of San Diego. At the time of this exclusion, the city of San Diego had a bonded indebtedness of $484,000; and, after this exclusion, the city continued to as- sess and levy taxes upon the detached ter- ritory to meet the requirements of this bond- ed indebtedness, which taxes these plaintiffs duly paid. In 1893 the legislature passed an act entitled "An act providing for the ad- justment, settlement and payment of any in- debtedness existing against any city or mu- nicipal corporation at the time of exclusion of territory therefi'om and the division of property thereof" (St. 189;J, p. 53G). Plain- tiffs availed themselves of the provision of this act to have the court determine what proportion, if any, of the bonded indebted- ness of San Diego, was properly chargeable against the excluded territory. The demur- rer of the defendant city to their petition was overruled; and the court, after hearing evidence, found the existence of the bonded indebtedness; that all of the moneys re- ceived by the city and evidenced by this in- debtedness had been expended for a sewer system, for the purchase of school sites and the ei'ection of schoolhouses, for refunding a pre-existing debt of the city, and for clearing its titles to certain real estate, and for buy- ing certain rights of way; and that no por- tion of the money had been expended upon or within the excluded territory. The value of the property belonging to the city at the time of the segregation was found to be §000.000, all of which remained within its boundaries and under its control after the segregation. It was further found that the city of San Diego had never made any im- provements in the excluded territory, and had never owned any property in it. The ratio of the value of the excluded territory to that of the city immediately pi'eceding the exclusion was as 1 to 14. Under these findings, and in strict accord with the dic- tates of the statute, the court adjudged that there was nothing due or to become due from the excluded territory to the city. Tlie chief contention of the defendant, raised upon demurrer, pressed in its motion for a nonsuit, and urged against the judg- ment, may be thus stated: The property owners of the city and the property owners of the excluded territory, when, in accord- ance with the permissive act of the legisla- ture (St. 1889, p. S.jtj). they elected to segre- gate Coronado Beach, did so under a con- tract expressed in the act itself, by which i the property owners of the excluded terri- i tory were allowed to remove their land from the jurisdiction of the city, with the under- standing that they should continue to pay their pro rata share of the municipal debts existing at the time of the exclusion; that I the rights of the city vested under this con- APPOKTIOXMENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. 37 tract cannot be destroyed or impaired by subsequent lesisl.ition; and tliat, therefore, to the parties to this controversy the stat- ute of 1893 has no applical)ility. This contention is first met by the respond- ents with tlie declaration tliat the act of 1SS9 did not iuiijose or moan to impose a pro rata liabiiity upon the excluded territory, but only a liability for a just proportion of the debt, which proportion was a subject of future as- certainment or determination; and nnich nice argument is advanced in its support. But the language of the proviso, tliat "nothing contained in the act shall be held to relieve in any manner whatsoever any part of such ter- ritory from any lialiility for any debt contract- ed by such mimieipal corporation prior to such exclusion," would seem to be a comprehensive pronunciation that the segregated territory should, after exclusion, be held by the same liabilities as bound it before; and, as before its exclusion it was liable for its pro rata share of these debts, it must be that after ex- clusion it remained subject to the same liabil- ities. We think, therefore, that, by the only just and reasonable interjiretation of which the act in question is susceptil)le, the legisla- ture, in permitting the division, exercised its undoubted power to adjust the burden of the existing corporate debt, and decreed that the excluded territory should continue to bear its former proportion of that burden. The question that is left for consideration is that of the power of the legislature to change and readjust the burden of such an indebted- ness after having, in the act of separation, de- clared in what manner it should be borne. Municipal corporations, in their pul)lic and po- litical aspect, are not only creatures of the state, but are parts of the machinery by which the state conducts its governmental affairs. Except, therefore, as restrained by the consti- tution, the legislature may increase or dimin- ish the powers of such a corporation, — may en- large or restrict its territorial jurisdiction, or may destroy its corporate existence entirely. Says Cooley: "Restraints on the legislative power of control must be found in the consti- tution of the state, or they must rest alone in the legislative discretion. If the legislative ac- tion in these cases operates injuriously to the municipalities or to individuals, the remedy is not with the courts. The courts have no power to interfere, and the people must be looked to, to right, through the ballot box, all these wrongs." Cooley, Const. Lim. (6th I'^d.) p. 229. "A city," says Mr. Justice Field, in New Orleans v. Clark, 95 U. S. 044, "is only a political subdivision of the state, made for the convenient administration of the government. It is an instrumentality, with powers more or less enlarged, according to the requirements of the public, and which may be increased or re- pealed at the will of the legislature." This right of legislative control, arising from the very nature of the creation of such corpora- tions, is established imder the well-settled doc- trine that such corporations have no vested [ rights in powers conferred upon them for civil, political, or administrative pui-poses; or, as Dillon states it: "Legislative acts respecting i the political and governmental powers of mu- ' nicipal corporations not being in the nature of contracts, the provisions thereof may be chan- ged at pleasure where the constitutional rights of creditors and othere are not invaded." Dill. Mun. Corp. (4th Ed.) § (>3. The act of the legislature in relieving Coro- nado Beach from the corporate control of ^^an Diego and in adjusting the burden of tlie city's debt, was imdoubtedly the exercise of a prop- er power directed to the political and govern- mental affairs of the municipality. That the legislature, by the terms of the act segregat- ing the territory, had the right to disp(jse of the common property, and provide the mode and manner of the payment of the connnon debt, imposing its burden in such proportions as it saw fit, is a proposition undisputed and indisputable. It is equally well-settled law that, when the act of segregation is silent as to the common property, and common debts, tJie old corporation retains all the property within its new boundaries, and is charged with the payment of all of the debts. Upon these two propositions the cases are both numerous and harmonious. People v. Alameda Co., 26 Cal. 641; Hughes v. Ewing, 93 Cal. 414, 28 Pac. 1007; Los Angeles Co. v. Orange Co., 97 Cal. 329, 32 Pac. 310; Town of Depere v. Town of Bellevue, 31 Wis. 120; Laramie Co. V. Albany Co., 92 U. S. 307; Lycoming v. Union, l.=5 Pa. St. 160; Mount Pleasant v. Beck with, 100 U. S. 514; Lay ton v. City of New Orleans, 12 La. Ann. 515; Beloit v. Mor- gan, 7 Wall. 019. There is authority, how- ever, holding that, when the legislature has spoken in the original act, rights vest under it which may not be impaired; and it is upon these cases that appellants rely. Thus, in Bowdoinham v. Richmond, 6 Greenl. 93, the supreme court of Maine decided in 1829 that as the act of the legislature dividing the town of Bowdoinham, and incorporating a part of it into a new town, by the name of Richmond, enacted that the latter should be held to pay its proportion towards the support of all pau- pers then on expense in Bowdoinham, a later act exonerating the new town from this lia- bility was void. The court held that by the former act a vested right of action arose in favor of the old town against the new, and that the later act, in destroying this right, im- paired tlie obligation of the contract on the part of Richmond created by the first act. Just how the court reached the conclusion that a contract was created by the first act is not plain, but it seems to have been based some- what upon the conviction that the assent of the old town was necessary to the segregation. The opinion, however, looks for authority to the case of Hampshire Co. v. Franklin Co. (decided in 1S90) 10 Mass. 75. In that case the legislature had created the county of Franklin out of territory formerly a part of the county of Hampshire. The act was si- .•482470 38 APPORTIONMENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. lent as to the disposition of the public prop- erty and the public debt. By an act passed two years later, the legislature provided in effect that if, at the time of the segregation, there were funds belonging to the county of Hampshire in excess of its debts, the new county should be entitled to such proportion of those funds as the assessed value of the prop- erty of the new county bore to the assessed value of the property of the old. The supreme court decided, in accordance with the undoubt- ed rule, that as the first act was silent upon the subject, all of the common property with- in its limits belonged to the old county, which was likewise charged with all existing debts. It further held that rights vested under this act, and that the later act providing for an apportionment violated these rights in attempt- ing to give the property of Hampshire to Franlilin county; in other words, that the later act created a debt from Hampshire to Franklin county which before had not existed. It is to be noticed that in this case the original act was silent as to common property and debts, but as, in such case, the law steps in and makes disposition of them, the silence was deemed equivalent to an affirmative declara- tion of the legislature making disposition which could not afterwards be modified. But, distinguished as are the courts which have announced this doctrine, their views have not been followed, and the decisions them- selves have been elsewhere criticised and re- jected, until it may be safely said that it is the general rule that, where the original act does not make disposition of the common property and debts, the legislature may at any subsecpient time, by later act, apportion them in such manner as seems to be just and equi- table. Under the decisions adopting this rule, the theory of vested rights and contractual re- lations is rejected as being a false quantity in the dealings of the sovereign state with its governmental agents and mandatories; and while it is not denied tliat the state may make a contract with a municipal corporation, or may permit municipal corporations to enter in- to binding contracts with each other, which contracts it cannot impair, these contracts must be in their nature private, although the public may derive a common benefit from them, and the contracting cities are as to them measured by the same rules and entitled to the same protection as would a private corpo- ration. The subject of such a contract, how- ever, can never be a matter of municipal pol- ity or of civil or political power, for the legis- lature itself cannot surrender its supremacy as to these things, and thus abandon its preroga- tives, and strip itself of its inherent and in- alienable right of control. Of the cases so holding, either directly or Impliedly, a fcAV may profitably be mention- ed: In County of Kicl'land v. Coimty of Law- rence, 12 111. 1, the facts were that the for- mer ooimty had been carved out of the teiTl- tory of the latter by an act making no dispo- sition of the county property. The state had given to the county of Lawrence a large sum of money, which it held at the time of seg- regation. By a later act the legislature de- clared that the new county should be entitled to receive from the old a certain proportion of this fund, which sum the old county refused to pay under the claim of vested right and owuei-ship. The supreme court upheld the act, declaring that there was no contract be- tween the stata and the old county, which was merely the state's agent. The case of Hampshire Co. v. Franklin Co., supra, is un- favorably reviewed. In Perry Co. v. Conway Co., 52 Ark. 430, 12 S.W.S77, the original act, detaching territory, made no apportionment of the debt. A later act, which did so, was attacked as unconstitutional. The supreme court there said: "The earlier doctrine (still followed by some courts) was that the act detaching the territoiy must apportion the debt, and that it could not be subsequently taken from the old and imposed upon the new county. Hampshire Co. v. Franklin Co., 16 Mass. 7.5; Bowdoinham v. Richmond, 6 Gi'eenl. 93. The better doctrine is that, ttie power of the legislature to impose the debt of the one county upon another depending up- on the existence of a moral obligation from the new county, or the county receiving new territory, to pay part of the old debt, the legislature may so ordain whenever it finds the moral obligation to exist." In Dunmore's Appeal, 52 Pa. St. 374, four boroughs were erected in a township which was heavily in debt. By act afterwards passed, the burden of the debt was to be appoi"tioned by com- missioner between the boroughs and the township. The supreme court of Pennsyl- vania upheld the act. In Layton v. City of New Orleans, 12 La. Ann. 515, the act of the legislature consolidating several municipali- ties into one government, known as the "City of New Orleans," provided that the debts of each should be liquidated by taxation upon its own inhabitants. Afterwards, by another act, it was provided that the debts should be paid by taxation uniformly upon all the prop- erty of the new city. The coui-t held that the earlier act was not a contract, and no rights vested under it; and that, as in these matters the legislature is supreme, it could change its policy and i-eadjust these debts. In Mayor, etc., of Baltimore v. State, 15 Md. 376, the court say: "The doctrine that there is a fun- damental principle of right and justice in- herent in the nature and spirit of the social compact that rises above and restrains the power of legislation cannot be applied to the legislature when exercising its sovereignty over public charters granted for the pur- pose of government." Says Dill. Mun. Corp. (4th Ed.) § ISO: "But upon the division of the old corporation, and the creation of a new corporation out of a part of its inhabit- ants and territory, or upon the annexation of part of another corporation, the legisla- ture may provide for an equitable appor- tionment or division of the property, and im- APPORTIONMENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. 39 pose upon the new corporation, or upon the people and territory thus disaunexod, the ob- ligation to pay an equitable proportion of the corporate debts. The charters and constitu- ent acts of public and municipal corporations are not, as we have before seen, contracts; and they may be changed at the pleasure of the legislature, subject only to the restraints of special constitutional provisions, if any there be. And it is an ordinary exercise of the legislative dominion over such corpora- tions to provide for their enlargement or di- vision, and, incidental to this, to apportion their property, and direct the manner in which their debts or liabilities shall be met, and by whom. The opinion has been ex- pressed that the partition of the property nuist be made at the time of the division of or change in the coi-poration. since, otherwise, the old corporation becomes, under the rule just above stated, the sole owner of the prop- erty, and heuce cannot be deprived of it by a subsequent act of the legislature. But, in the absence of special constitutional limita- tions upon the legislature, this view cannot, perhaps, be maintained, as it is inconsistent with the necessary supremacy of the legisla- ture over all its corporate and uniucorporate bodies, divisions and parts, and with several well-considered adjudications." To the same general effect are the cases of Laramie Co. v. Albany Co., 92 U. S. 307; Mount Pleasant v. Beckwith. 100 U. S. 514; Scituate v. Wey- mouth, lOS Mass. 128; Willimantic School Soc. V. School Soc. in Windham, 14 Conn. 457; Town of Guilford v. Supervisors of Chenango Co., 13 N. Y. 143. In this state the power of the legislature to make such subsequent adjustments was early declared in People v. Alameda Co., 20 Cal. 041. Alameda county was created out of the territory of Contra Costa county in l«o8. At the time of the separation. Contra Costa county owed for a bridge which had been constructed upon the territory set apart tor Alameda county. The original act made no provision for the payment of this indebted- ness, which thus remained a charge agamsi tlie old county. By two separate later acts, the legislature provided for the- apportion- ment of the debt, putting a part of the bur- den upon Alameda county. These acts were uplield as a proper exercise of legislative power. And, indeed, it is not easy to see how the opposite view can be maintained. Since the legislative power, within consti- tutional limitations, is supreme in the mat- ter, since, in the tirst apportionment, the peijple affected are entitled to no voice (ex- cept through their representatives), and since the act of the legislature is not in the na- ture of a contract, it cannot logically be held that the power has been exhausted by its first exercise. The right still remains to make such future adjustments as the equi- ties maj' suggest. Nor, in the opei-ation of the act in question upon the city of San Die- go, can we perceive any hardship. It had at the time of the segregation $000,000, acquired while Coronado Beach was a part of its ter- ritory, and partially acquired, doubtless, by taxation upon this land. All of this property it retains. All of the moneys evidenced by the bonded indebtedness were expended with- in its present territorial limits, and no dollar of it went to improve the excluded territory. Having all of the common pi-operty and all of the fruits of the common debt, it is cer- tainly not onerous or oppressive that it should be asked to pay for what has been expended for its exclusive benefit. In a cer- tain sense, it is true that Coronado Beach was also benefited by these expenditures. In the same sense, San Mateo county is bene- fited by the public impi-ovements of the city and county of San Francisco; but it has nev- er been asserted that for such benefits a sis- ter county should be called upon to pay. The judgment and order appealed from are af- fiiTued. We concur: BEATTY, C. J.; HARRISON, J.; TEMPLE, J.; VAN FLEET, J.; GAK- OUTTE, J. 40 APPORTIONMENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. RUMSEY V. TOWN OF SAUK CENTRE. (61 N. W. 330, 59 Minn. 316.) Supreme Court of Minnesota. Dec. 7, 1894. Appeal from district court, Stearns countj'; D. B. Searle, Judge. Action by Charles F. Rumsey against the town of Sauk Centre, and on motion of defendant the city of Sauk Centre was made a party defendant. From an order overrul- ing a demurrer by the city to the complaint, it appeals. Affirmed. M. C. Kelsey and Geo. H. Reynolds, for ap- l>ellant. J. L. Washburn and L. E. Judson, Jr., for respondent. MITCHELL, J. This action was orig- inally brought against the town of Sauk Centre alone, but subsequently, on motion of the town, neither the plaintiff nor the city objecting, the city of Sauk Centre was made a party defendant, and plaintiff amended his complaint accordingly. The defendant city demurred to the complaint, on the ground that it did not state a cause of action. From an order overruling this demurrer the citj- appealed. Stated in chron- ological order, the allegations of the com- plaint are as follows: The town of Sauk Centre was a duly-organized township in the county of Stearns. The village of Sauk Centre, situated within the town, was or- ganized as an incorporated village under Gen. Laws 1875. c. 139, and Sp. Laws 1876, c. 16, and so continued until the incorpora- tion of the city of Sauk Centre, in 1889. In December, 1882, the town, in pursuance of the provisions of Sp. Laws 1879, c. 143, is- sued to the Little FaUs & Dakota Railroad Company its bonds to the amount of $12,000, which were afterwards sold and transferred to the plaintiff, and upon which he brings this action. In 1885 the legislature passed an act (Sp. Laws 1S85, c. 296) entitled "An act to provide for the payment of the bonded indebtedness of the town of Sauk Centi-e incurred by said town by the issue of its bonds prior to the year 1883 and to apportion said in- debtedness between the present town of Sauk Centre and the village of Sauk Centre." The provisions of this act were that the bonded indebtedness of the town incurred by the issue of its bonds prior to 1883 should be apportioned and made chargeable to and payable by the town as then con- stituted, and by the village pro rata in the proportion that the valuation of taxable property of the town and village, respect- ively, shall bear to the entire valuation of the taxable property of the town and village collectively, said valuation to be determined by the general tax assessment list last pre- ceding the time when the several install- ments of principal and interest upon such bonds become due and payable; and that the payment of such proportionate shares thereby apportioned should be provided foi", and paid by, and be recoverable against, the town and village, respectively, as they become due, in the same manner as other debts of the town and village, respectively, were by law provided for, made payable and recoverable. In March, 1SS9, the city of Sauk Centre was incorporated by Sp. Laws, 1889, c. 4. The city included the whole of the village, and 880 acres which were outside the village, but within the town. This act provided that upon the election and qualifi- cation of the city officers in April, 1889, the village corporation should cease, and there- upon the city should succeed to, and become vested with and the owner of, all the prop- erty and rights of action which belonged to the village, and should be and become liable for all the debts, obligations, and liabilities then existing against the village for any cause or consideration whatever, in the same manner and to the same extent as if orig- inally contracted or incurred by the city. 1. The allegations of the complaint are full to the effect that the bonds were duly issued by the town by virtue of and in accordance with the provisions of Sp. Laws 1879, c. 143. Whether, in case these allegations are un- true, the recitals in the bonds are sufficient to estop the town or city from asserting the fact against a bona fide purchaser for value and before maturity, is a question not here involved, and hence need not be considered. 2. An examination of the acts under which the village was organized will show that, according to the repeated decisions of this court in similar cases, it remained a part of the town for all purposes, except the vil- lage purposes provided for in the acts. The property within the village was subject to taxation for the payment of these bonds ia the same manner and to the same extent as any other property in the town. Bradish V. Lucken, 38 Minn. 180, 36 N. W. 454. 3. Inasmuch as this condition of things stiU continued, it is not apparent what was the particular necessity for the enactment of the law of 18S5. But the meaning and effect of that act are quite clear. It did not and could not aft'ect or change the rights of the holders of the bonds agaiust the town. But, as between themselves, it practically made the village and the remain- der of the town two separate and distinct districts as respects liability for and the payment of all outstanding bonds of the vil- lage issued prior to 18S3, and apportioned this indebtedness between the two in the ratio of the taxable property within their respective limits. Under this act, the vil- lage would be liable to the holders of the bonds to the extent of the amount appor- tioned to it; and, if the town (outside of the village limits) was compelled to pay more thai! its share, it could have recovered it back from the village. The power of the APPORTIONMENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. 41 legislature to do this is undonbtod. The v.iiaxc was a part of tlu' town which issued the bonds. All the property withiu its lim- its was liable to taxation for their payment. The part apportioned to the villajie did not impose any materially si'eator burden of taxation upon the property within its limits than it was already subject to. The right of the legislature, in all cases not within any constitutional inhibition, to create, alter, di- vide, or abolish all municipal corporations, and to make such division and apportion- ment of the corporate property and debts of old con)oratious, in case of a division of their territory, as the legislature may deem equitable, is well settled. State v. City of Lake City, 25 Minn. 404; City of Winona v. School Dist. No. 82, 40 Minn. 13, 41 N. W. 530. And it can make no difference whether the legislature divides the old corporation only for a particular purpose or for all purposes. The intention of the act of ISS.j to make the village, as a municipal corporation, liable for the designated proportion of the town bonds, is very clear; and, as we consti-ue its provisions, there is no ground for the contention that the holders of the bonds could not recover against the village, but that it would only be liable over to the town. Tlie fact that the city includes SSO acres more than the village neither alters the law of the case, nor involves any prac- tical dlffieulty. The liability of the village being established, the liability of the city, as its successor, under the act of 1SS9, is too clear to re(iuire argument. In case the plaintiff establishes his cause of action, lie will be entitled to judgment against the toAvn by virtue of its contract for the full amount of the bonds,— and against the city, by virtue of the acts of 18S.5 and 1889, to the extent of its proportionate share, as fixed by the act of 1885. There is nothing in the point that the act of 1885 violated section 27, art. 4, of the constitution of the state. Neither is there anything in the ob- jection that it is a legislative exercise of judicial power. It does not assume to pass upon the validity of any outstanding bonds of the town. If there are any such which were not a valid indebtedness of the town, that defense is still available to both the town and the city. Order alflrmed. GILFILLAN, C. J., absent on account of sickness; took no part. 42 APPORTIONMENT OF PROPERTY AND DEBTS IN CASE OP DIVISION. MT, PLEASANT v. BECKWITH. (100 U. S. 514.) Supreme Ck)urt of United States. Oct., 1879. Appeal from the circuit court of the Unit- ed States for the Eastern district of Wiscon- sin. Mr. L. S. Dixon and Mr. John T. Fish, for appellants, Mr. William P. Lynde, for ap- pellee. Mr. Justice CLIFFORD delivered the opin- ion of the court. Explicit authority from the legislature was given to the supervisors of the town of Racine to subscribe for the stock of the rail- road company mentioned in the act confer- ring the power, to an amount not exceeding $50,000, provided a majority of the legal voters of the municipality, at a meeting of the town duly called and held for the pur- pose, shall vote in favor of maliing the pro- posed subscription. Sess. Laws Wis. 1853, p. 11. Pursuant to that authority, the proper offi- cers of the town, on the 6th of December, 1853, subscribed for the capital stocli of the railroad company to the amount of $50,000, and issued one hundred bonds of the cor- poration, each in the sum of $500, in pay- ment of the subscription for the stock, the bonds being made payable in twenty years from date, with coupons attached for annual interest at the rate of seven per cent. Twen- ty of those bonds with their coupons are now held by the complainant, numbered from seventy to eighty-nine, inclusive, and of which he became the lawful holder with- in one month subsequent to their date,— all of which, as he alleges, remain wholly un- paid, principal and interest. Various facts and circumstances are al- leged in the bill of complaint of an equitable nature, and which the complainant insists are of a character to show that he has no remedy at law, and which tend strongly to show that he is entitled to relief in equity. Appended to those several allegations is the prayer of the complainant, that the three re- spondents may answer the matters charged, and that the court will ascertain the respec- tive liabilities of the respondents to the com- plainant, and decree the amount due to him from each of the respondent municipalities, and for general relief. Service was made, and the respective re- spondents appeared and separately demur- red to the bill of complaint. Hearing was had, and the court overruled the several de- murrers and directed that the respondents should answer the matters charged in the bill of complaint by a given day. Separate answers were accordingly filed by the re- spective respondents, no objection being made that they were not filed in time. Sufhcient appears to show that on the 2d of January, 1838, the town of Racine and the town of Mt. Pleasant were by the same act created municipal corporations, with bound- aries as set forth in the bill of complaint. Laws Wis. 1838, p. 168. Four years later, the town of Caledonia was incorporated, her territory being taken from the two towns before mentioned, with- out any provision being made that the new town should bear any portion of the indebt- edness of either of the old towns. Priv. Laws 1842, p. 10. Both parties concur in these propositions, and it appears that the city of Racine, which is a distinct municipality from the town by the same name, was incorporated by the act of the 8th of August, 1848, with bound- aries as correctly set forth in the transcript. Id. 1848, p. 80. Subsequent changes, if any, made in the boundaries o^ these municipalities, not here- in made the subject of comment, are re- garded as immaterial in the present investi- gation. Additional territory was subsequently tak- en from the town of Racine and was annex- ed to the city of Racine, and by a still later act another fraction of her territory was an- nexed to the town of Mt. Pleasant, neither act containing any regulations as to existing indebtedness. Id. 1856, pp. 148-416. Prior to that, to wit, on the 6th of March in the same year, the legislature of the state, by an act of that date, annexed a much lar- ger tract, taken from the towns of Racine and Mt. Pleasant, to the city of Racine, as described in the record; but the supreme court of the state decided that a certain fea- ture of the act was unconstitutional and void. Slauson v. City of Racine, 13 Wis. 398. In consequence of that decision, the towns from which the territory annexed was taken continued to exercise jurisdiction over it for the period of fifteen years longer, until a portion of the same territory then constitut- ing a part of the town of Mt. Pleasant was again annexed to the city of Racine, on the condition that the city "shall assume and pay so much of the municipal indebtedness of the town as the lands described in the first section of that act may be or become legally chargeable with and liable to pay." Priv. Laws Wis. 1871, p. 723. Throughout these several changes, except the last, the annexation in every instance was made without any regulation that the town to which the territory was annexed should pay any portion of the indebtedness of the town from which the territory annex- ed was taken. Still not satisfied, the legis- lature, by the act of the 23d of February, 1857, rearranged the boundaries of each of the three towns, as therein is fully set forth and described. Id. 1857, p. 103. Two years later, the county supervisors changed the name cf the town of Racine to Orwell; but the prior name will be used throughout in this opinion, as less likely to API'ORTIOX.MENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. 43 produce confusion in the statement of facts. From the time the legislature rearranged the l)Oundaries of the three towns they remained without alteration until the legislature, March 30, ISGU, by a public act, vacated and extinguished the corporation and body politic known as the town of Racine, then called Orwell, and enacted that thereafter it should have no existence as a body politic and cor- porate. Sess. Laws Wis. 18G0, p. 21S. Section 2 of the act also provided that all that part of the territory of the town ly- ing north of the described line should be an- nexed to and hereafter form a part of the town of Caledonia, and that all that part of the territory lying south of that line should become and continue to be a part of Mt. I'leasant. Each of the respondent towns refers in their answer to the legislation of the state in re- spect to their incorporation and boundaries, which need not be reproduced, as they are accurately set forth in the preceding state- ment. Two of the respondents, to wit, the town of Mt. Pleasant and the town of Caledonia, deny in their answers that any statute of the state has ever been passed which would authorize the municipal authorities of those towns to levy and collect a tax to pay either the principal or interest of the bonds de- scribed in the bill of complaint, and allege that the corporate authorities of those towns have never assumed or undertaken any trust or duty in the premises, or have ever, in any way, recognized the acts of the town which issued the bonds or the validity of the same. Nor does the answer of the other resi)ond<^nt, to wit, the city of Racine, differ very mate- rially from those tiled by the two tov.us rirst named, except that the pleader avers that the city was only made liable for such por- tion of the indebtedness of the old town as is described in the act enlarging the limits of the respondent city, and pleads as a sepa- rate defence that the complainant has an adequate remedj' at law. Replications were tiled by the complainant, and the parties entered into a stipulation that the proofs should be taken by the mas- ter, and that thej' might be read and used at the final hearing as the evidence in the case, subject to legal objection. Proofs were accordingly taken by the master, and he re- ported the depositions of the witnesses ex- amined, with an agreed statement of facts. Arguments of counsel followed, and the cir- cuit court entered a decree in favor of the complainant against each respondent. Two of the towns, to wit, Mt. Pleasant and Caledonia, appealed to this court, and assign for error the following causes: (1) That the circuit court erred in holding that the appel- lants are liable to pay the debt of -the town of Racine incurred in the purchase of stock in the aforesaid railroad company, or that the debt of that town became the debt of the appellants, to be enforced against them in any form of proceeding. (2) That the cir cuit court erred in holding that the property of the individuals within the jurisdiction of that town constituted the primary fund to which the complainant had the right to look for the payment of his debt, and that the transfer of their property to the jurisdiction of the appellants rendered them liable to pay the debts due to the creditors of the town whose powers and jurisdiction terminated by the transfer. (3) That the circuit court erred in holding that the power of taxation previously vested in the town which issued the bonds in question was, by the act annex- ing its territory to the appellant towns, transferred to the appellants to be severally exercised by them upon all the taxable prop- erty within their respective jurisdictions. (4) That the circuit court erred in holding that it had jurisdiction in equity of the case, or that the appellants are in equity and good conscience liable to pay the claim of the complainant against the town whose territo- ry was annexed to the appellant corpora- tions. Counties, cities, and towns are municipal / corporations created by the authority of the f legislature, and they derive all their powers ' from the source of their creation, except / where the constitution of the state otherwise / provides. They have no inherent jurisdic- I tion to make laws or to adopt governmental regidations, nor can they exercise any other I powers in that regard than such as are ex- ' pressly or impliedly derived from their char- ters or other statutes of the state. Corporations of the kind are composed of all the inhabitants of the territory included within the political organization, each indi- vidual being entitled to participate in its proceedings; but the powers of the organiza- tion may be modified or taken away at the mere will of the legislature, according to its own views of public convenience, and with- out any necessity for the consent of those composing the body politic. Corporate rights and privileges are usually possessed by such municijialities; and it is equally true that they are subject to certain legal obli- gations and duties, which may be increased or diminished at the pleasure of the legis- lature, from which all their powers are de- rived. Institutions of the kind, whether called I cities, towns, or counties, are the auxiliaries of the state in the important business of municipal rule; but they cannot have the least pretension to sustain their privileges / or their existence upon any thing like a con- I tract between themselves and the legisla- ture of the state, because there is not and cannot be any reciprocity of stipulation be- , tween the parties, and for the further rea- son that their objects and duties are utterly incompatible with every thing partaking of the nature of compact. Instead of that, the constant practice is I to divide large municipalities and to con- 44 APPORTIONMENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. solidate small ones, or set off portions of territory from one and annex it to another, to meet the wishes of the residents or to pro- mote the public interests as understood by the legislature,— it being everywhere under- stood that the legislature possesses the pow- er to make such alterations and to apportion the common property and burdens as to them may seem just and equitable. Alterations of the kind are often required to promote the public interests or the con- venience and necessities of the inhabitants; and the public history shows that it has been the constant usage in the states to enlarge or diminish the power of towns, to divide their territory by set-off and annexation, and to make new towns whenever the legisla- ture deems it just and proper that such a change should be made. Old towns may be divided and new ones incorporated out of parts of the territory of those previously or- ganized; and in enacting such regulations the legislature may apportion the common property and the common burdens, and may, as between the parties in interest, settle all the terms and conditions of the division of their territory, or the alteration of the bound- aries, as fixed by any prior law. State legislation may regulate the subject; but if the legislature omits to do so, the pre- sumption, as between the parties, is that they did not consider that any regulation was necessary. Where none is made, in case of division the old corporation owns all the public property within her new limits, and is responsible for all the debts of the corporation contracted before the act of sep- aration was passed. Debts previously con- tracted must be paid entirely by the old corporation, nor has the new municipality any claim to any portion of the public prop- erty, except what falls within her bound- aries, and to that the old corporation has no claim whatever. Laramie Co. v. Albany Co., 92 U. S. 307; Bristol v. New Chester, 3 N. H. 521. Apply these principles to the admitted facts of the case, and it is clear that every one of the described changes made in the limits and boundaries of the respondent mu- nicipalities become wholly immaterial in this investigation, except the last two, as hereaft- er more fully explained. Before the passage of those two acts, the claim of the complainant against the town of Racine was, beyond all question, valid and collectible. Nobody controverts that proposition, and it is clear that no defence to the action could have been sustained for a moment. By the act of March 30, ISCX), the legislature of the state vacated and ex- tinguished the corporation and body politic formerly known as Racine, then called Or- well, and annexed the whole area of the terri- tory included in the mimicipality *o the two adjacent towns of Mt. Pleasant and Caledo- nia, in the proportions and by the boundary lines described in the second section of the legislative act. Had legislation stopped there, it is clear that the city of Racine would not have been liable for any portion of the debt of the extinguished municipal corporation; but it did not stop there, as appears by what follows. Prior to the passage of that act, the old town of Racine was the sole obligor in the bonds held by the complainant; and there certainly is nothing in the provisions of that act which tends in the least degree to create any liability on the part of any other municipality for the indebtedness of that town, except the towns of Mt. Pleasant and Caledonia. Nothing had previously occur- red to create any liability on the part of the city of Racine to pay any proportion of the debts of the old town of Racine, which issued the bonds described in the bill of com- plaint. Until the passage of the act of the 17th of March, 1871, the rights of all parties re- mained unchanged. By that act a portion of the territory formerly belonging to the old town of Racine was set off from the town of Mt. Pleasant and was annexed to the city of Racine. Appended to that act, and a part of it, was the provision that the city to which the described territory was annexed "shall assume and pay so much of the in- debtedness of the town of Racine as the lands described in the first section of the act may be or become legally chargeable with and liable to pay." Priv. Laws Wis. 1871, p. 723. Enough appears in that provision of direct legislation to show that the city of Racine wa^ thereby made liable for the debts of the extinguished town of Racine in the propor- tion therein described; and the clear infer- ence from the provision is that the town of Mt. Pleasant, prior to the passage of that act, was liable for the debts of that old municipality in proportion to the whole ex- tent of the territory annexed to her by the prior act which extinguished the old munici- pal corporation. None, it is presumed, will deny the liability of the city of Racine for those debts in the proportion described in the act creating the liability, and hence it is that the corporate authorities of the city ac- quiesced in the decree of the circuit court without appeal. Parties who do not appeal from the final decree of the circuit court cannot be heard in opposition to the same when the case is regularly brought here by other proper par- ties. They may be heard ip support of the decree and in opposition to every assignment of error, but they cannot be heard to show that the decree below was erroneous. The Stephen Morgan, 94 U. S. 599. Concede that, and it follows that the only question open in the case for examination is whether the other two respondent munici- pal corporations are liable to any extent for the debts of the extinguished municipality, portions of whose territory were transferred APPORTIONMENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. 45 by the legislature into their respective ju- risdictious. ^Ve say, liable to auy extent, because the question of amount was submit- ted to the master, and the record shows that neither of the apjiellants excepted to the master's report. Gordon v. Lewis, 2 Sumn. 143, Fed. Cas. No. 5,013; McMiclcen v. Perin, IS How. 5U7. Nor do either of the assign- ments of error allege that the master com- mitted any error in that regard. Brocliett V. Broclvett, 3 How. 001. Viewed in that light, as the case should be, it is clear that if the appellants are liable at all they are liable for the respective amounts specihed in the decree. Harding V. Handy, 11 Wheat. 103; Story v. Living- ston, 13 Pet. 359. Where one town is by a legislative act merged in two others, it would doubtless be competent for the legislature to regulate the rights, duties, and obligations of the two towns whose limits are thus enlarged; but if that is not done, that it must follow that the two towns succeed to all the public prop- erty and immunities of the extinguished mu- nicipality. Morgan v. City and Town of Be- loit, 7 Wall. G13, 617. It is not the case where the legislature cre- ates a new town out of a part of the terri- tory of an old one, without making provision for the payment of the debts antecedently contracted, as in that case it is settled law that the old corporation retains all the pub- lic property not included within the limits of the new municipality, and Is liable for all the debts contracted by her before the act of separation was passed. Town of De- pere v. Town of Bellevue, 31 Wis. 120, 125. Instead of that, it is the case where the chai'ter of one corporation is vacated and rendered null, the Avhole of its territory be- ing annexed to two others. In such a case, if no legislative arrangements are made, the effect of the annulment and annexation will be that the two enlarged corporations will be entitled to all the public property and im- munities of the one that ceases to exist, and that they will become liable for all the legal debts contracted by her prior to the time when the annexation is carried into opera- tion. Speaking to the same point, the supreme 1 court of Missouri heid that where one cor- poration goes entirely out of existence by be- ing annexed to or merged in another, if no arrangements are made respecting the prop- erty and liabilities of the corporation that ceases to exist, the subsisting corporation will be entitled to all the property and be an- swerable for all the liabilities. Thompson V. Abbott, 61 Mo. 176. 177. Grant that, and it follows that when the corporation firsrt named ceases to exist there is then no power left to control in its be- I half any of its funds, or to pay off any of I its indebtedness. Its property iiasses into | the hands of its successor, and Avhen the benefits are taken the burdens are assumed, I the rule being that the successor who takes the benefits must take the same cum onere, and that the successor town is thereby estop- ped to deny that she is liable to respond for the attendant burdens. Swain v. Sea- mens, 9 Wall. 254, 274; Pickard v. Sears, 6 Adol. & E. 474. Powere of a defined character are usually granted to a municipal corporation, but that does not prevent the legislature from exer- cising unlimited control over their chartei-s. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action when- ever it is deemed unwise, impolitic, or unjust, and even abolish them altogether, in the legis- lative discretion, and substitute in their place those which are different. Cooley, Const. Lim. (4th Ed.) 232. Municipal corporations, says Mr. Justice Field, so far as they are invested with subordi- nate legislative powers for local purposes, are mere instrumentalities of the state for the con- venient administration of their affairs; but when authorized to take stock in a railroad company, and issue their obligations in pay- ment of the stock, they are to that extent to be deemed private corporations, and their obli- gations are secured by all the guaranties which protect the engagements of private individuals. Broughton v. Pensacola, 93 U. S. 266, 269. Modifications of their boundaries may be made, or their names may be changed, or one n;ay be merged in another, or they may be divid- ed and the moieties of their territory may be an- nexed to others; but in all these cases, if the extinguished municipality owes outstanding debts, it wiU be presumed in every such case that the legislature intended that the liabilities as well as the rights of property of tlie coniora- tion which thereby ceases to exist shall accxjm- pany the teiTitory and property into the juris- diction to which the teiTitory is annexed. Colcliester v. Seaber, 3 Burrows, 1866. Neither argument nor authority is necessary to prove that a state legislature cannot pass i a valid law impairing the obligations of a con- 1 tract, as that general proposition is universally' admitted. Contracts under the constitution are as sacred as the constitution that protects them from infraction, and yet the defence in this ca.se. if sustained, will establish tlie proposi- tion that the effect of state legislation may be such as to deprive a party of all means of sus- taining an action of any kind for their enforce- m( nt. Cases, doubtless, ma}' arise when the party cannot collect what is due under the contract; but he ought always to be able by some proper action to reduce his contract to judgment. Suppose it be admitted that the act of the stiite legislature annulling the charter of the municipality indelited to the complainant, with- out making any provision for the payment of outstanding indebtedness, was unconstitutional and void, still it must be admitted that the very act which annulled that charter annexed 46 APPORTIONMENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. all the territory and property of the municipal- ity to the two appellant towns, and that they acquired with that the same power of taxation over the residents and their estates that they previously possessed over the estates of the in- habitants resident within their limits before their boundaries were enlarged. Extinguished municipal corporations neither own propei-ty, nor have they any power to levy taxes to pay debts. Whatever power the ex- tinguished municipahty had to levy taxes ■when the act passed annulling her charter terminated, and from the moment the annexa- tion of her territory was made to the appel- lant towns, the power to tax the property transferred, and the inhabitants residing on it, became vested in the proper authorities of the towns to which the territory and jurisdiction were by that act transferred; from which it follows that for all practical pui-poses the com- plainant was left without judicial remedy to enforce the collection of the bonds or to recover judgment for the amounts they represent. When the appellant to-wns accepted the an- nexation, their authorities Ijnew, or ought to have known, that the extinguished municipal- ity owed debts, and that the act effecting the annexation made no provision for their pay- ment. They had no right to assume that the annulment of the charter of the old town would have the effect to discharge its indebt- edness, or to impair the obligation of the con- tract held by its creditors to enforce tlie same against those holding the territory and juils- diction by the authority from the legislature and the public property and the power of tax- ation previously held and enjoyed by the extin- guished municipality. ' Express provision was made by the act an- nulling the charter of the debtor municipality for annexing its territory to the appellant towns; and, when the annexation became com- plete, the power of taxation previously vested in the inhabitants of the annexed territory as a sei>arate municipality ceased to exist, wheth- er to pay debts or for any other purpose.— the reason being that the power, so far as re- spected its future exercise, was transferred with the territory and the jurisdiction over its inhal)itants to the appellant towns, as enlarged by the annexed territory; from wliich it fol- lows, unless it be held that the extinguishment of the debtor municipality discharged its debts •without payment, which the constitution for- bids, that tlie appellant towns assumed each a proportionate share of the outstanding obliga- tions of the debtor town when they acquired the territory, public property, and municipal jurisdiction over every thing belonging to the extinguislied municipality. Corporations of a municipal character, such as towns, are usually organizf^l in tliis coun- try by special acts or piu-suant to some general state law; and it is clear that their powers and duties differ in some important particu- lai-s from the towns which existed in the par- ent country before the Revolution, where they were created by special charters from tlie crown, and acquired many of their privileges by prescription, without any aid from pailia- ment Coi-porate franchises of the kind grant- ed during that period partook much more largely of the nature of private coi-porations than do tiie municipalities created in this coun- tiy, and known as towns, cities, and counties. Power exists here in the legislature, not only to fix the boundaries of such a municipality when inconwrated, but to enlarge or diminish the same subsequently, without the consent of the residents, by annexation or set-off, unless restrained by the oonstitution, even against the remonstrance of every property holder and voter within the limits of the original munici- pality. Property set off or annexed may be benefit- ed or burdened by the change, and the liability of the residents to taxation may be increased or diminished; but the question, in every case, is entirely within the control of the legislature, and, if no provision is made, every one must submit to the will of the state, as expressed tbrough the legislative depai'tment. Inconven- ience will be suffered by some, while others will be greatly benefited in that regard by the change. Nor is it any objection to the exer- cise of the power that the property annexed or set off will be subjected to increased taxa- tion, or that the town from which it is taken or to which it is annexed will be benefited or prejudiced, unless the constitution prohibits the change, since it is a matter, in the absence of constitutional restriction, which belongs wholly to the legislature to detennine. Courts everywhere in this country hold that, in the division of towns, the legislature may appor- tion the burdens betu'een the two, and may determine the proportion to be borne by each. Sill V. Village of Corning. 15 N. Y. 297; May- or, etc., of City of Baltimore v. State, 15 Md. 376; City of Olney v. Harvey. 50 111. 453; Borough of Dunsmore's Appeal, 52 Pa. St. 374. Public property and the subordinate rights of a municipal corporation are within the control of the legislature; and it is held to be settled law that, where two separate towns are cre- ated out of one, each, in the absence of any statutory regulation, is entitled to hold in sev- eralty the public property of the old corpora- tion which falls within its limits. North Hempsted v. Hempsted, 2 Wend. 109; Hart- ford Bridge Co. v. East.Hartford, 16 Conn. 149, 171. Extensive powers in that regard are doubt- less possessed by tlie legislature; but the con- stitution provides that no state shall pass any "law impairing the obligation of contracts," from which it follows that the legislature, in the exercise of any such power, cannot pass any valid law imjiniriug the right of existing creditoi's of the old municipality. 1 Dill. Mun. Corp. (2d Fxl.) § 41; Van Hoffman v. City of Quincy, 4 Wall. 535. 554; Lee County v. Rog- ers, 7 Wall. 181, 184; Butz v. City of Musca- tine, 8 Wall. 575, 583; Furman v. Xichol. Id. 44, 62. Where a municipal corporation has tlie power APPORTION^IENT OF PROPERTY AND DEBTS IN CASE OF DIVISION. 47 to contract a debt, it has. says Dixon, C. J., by necessaiy implication, autliority to resort to the usual mode of raisiuj; money to pay it, which undoubtedly is taxation. State v. City of Milwaukee, 25 Wis. 122, 133. Whenever the charter of a city, at the time of the issue of bonds, made it the duty of the city autliorities to levy and collect the amount, when reduced to judgment, like other city charges, the same court held that a subse- quent act of the legislature prohibiting the city from levying such a tax would be repugnant to the constitution. Soutter v. City of Madi- son. 15 ^^■is. 30. State control over the division of the terri- tory of the state into cities, towns, and dis- tricts, unless restricted by some constitutional limitation, is supreme, but the same court ad- mits that it cannot be exercised to annul an- other regulation of the constitution. Chandler V. Boston. 112 Mass. 200; Opinion of the Jus- tices, 6 Cush. 580. Cities or towns, whenever they engage in transactions not public in their natiu-e, act un- der the same pecuniary responsibility as indi- viduals, and are as much bound by their en- gagements as ai-e private persons, nor is it in the power of the legislature to authorize them to violate their contracts. Western Sav. Fund Soc. V. City of Philadelphia, 31 Pa. SL 175, 185. Text-writers concede almost unlimited pow- er to the state legislatures in respect to the division of to^\Tis and the alteration of their boundaries, but they all agree that in the exer- cise of these powers they cannot defeat the rights of creditors nor impair the obligation of a valid contract. 1 Dill. Mun. Coi-p. § 128; Blanchard v. Bissell, 11 Ohio St. 9(5; U. S. v. Treasurer of Muscatine Co., 1 Dill. 522, 528, Fed. Cas. No. 16,,538. Concessions of power to municipal corpora- tions are of high importance; but they are not contracts, and consequently are subject to leg- islative control without limitation, unless the legislature oversteps the limits of the constitu- tion. Layton v. New Orleans, 12 La. Ann. 515. Bonds having been issued and used by a city for purchasing land for a park, which was pledged for the payment of the bonds, held, that a subsequent act of the legislature authorizing a sale of a portion of the park, free of all liens existing by virtue of the orig- inal act, was in violation of the federal con- stitution, as impairing the obligation of con- tracts. Commi.ssioners v. Armstrong, 45 N. Y. 2;M, 247. Laws passed by a state Impairing the obliga- tion of a contract are void, and if a state can- not pass such a law, it follows that no agency can do so which acts under the state with dele- gated autliority. Cooley, Const. Lira. (4th Ed.) 241; Ang. & A. Corp. (Utlj Ed.) §S 332. 3:33. Municipal debts cannot be paid by an act of the legislature annulling the charter of the mu- nicipality, and. if not, then the creditors of such a ptilitical division must have some rem- edy after the annulment takes place. With- out officers, or the power of electing such agents, a municipal corporation, if it can be so oalletl, would be an entity very ditticult to be subjected to judicial process or to legal respon- sibility; but when the entity itself is extin- guished, and the inhabitants with its territory and other property are transferred to other municipalities, the suggestion that creditors may pursue their remedy against the original contracting party is little less than a mockery. Public property, with the inhabitants and their estates, and the power of taxation, having been transferred by the authority of the legis- lature to the appellants, the principles of eq- uity and good conscience require that inas- much as they are, and have been for nearly twenty years, in the enjoyment of the benefits resulting from the annexation, they shall in due proportions also bear the burdens. New Orleans v. Clark, 95 U. S. 644, 654. Equitable rules of decision are suflSciently comprehensive in their reach to do justice be- tween parties litigant, and to overcome every ditficultj- which can be suggested in this case. States are divided and subdivided into such municipalities, called counties, cities, towns, and school districts, and the legislatiu-e of ev- ery state is required every year to pass laws modifying their charters and enlarging or di- minishing their boundaries. Nor are the ques- tions presented in this case either new in pxin- ciple or difficult of application. New forms are given to such charters in every day's ex- perience, when the limits of an old corpoi:a- tion are changed by annexation of new terri- tory, or portions of the territory of the old mu- nicipality are set off and annexed to another town. Both corporations in such a case con- tinue, though it may be that the charters are much changed, and that the inhabitants of the teiTitory annexed or set off fall under differ- ent officers and new and very diverse regula- tions. Beckwith v. City of Racine, 7 Biss. 142, 149, Fed. Cas. No. 1,213. Pecuniary burdens may be increased or di- minished by the change; but, in the absence of express provisions regulating the subjtK?t, it will be presumed in every case where both municipalities are continued, that the outstand- ing linbilities of the same remain unaft'ected by such legislation. Unlike that in this case, the charter of the old town was vacated and annulled, from which it follows that the same principles of justice require that the appellant towns, to which the teiTitory, property, and in- habitants of the anniilled municipality were annexed, should become liable for its outstand- ing indebtedness. Decree affirmed. Mr. Justice MILLER, with whom concurred Mr. Justice FIELD and Mr. Justice BRAD- LEY, dissenting: I am of opinion that it requires legislation to make a legal obligation against the new town, and make the apiwrtionment of the debt; and I dissent on that ground from the judgment and opinion of the court in this case. 48 OFFICERS AND AGENTS OF PUBLIC CORPORATIONS. MARQUIS V. CITY OF SANTA ANA. (No. 19,380.) (37 Pac. G50, 103 Cal. GGl.) Supreme Court of California. Sept. 1, 18&4. Department 1. Appeal from superior court, Oran.se county; J. W. Towner, Judge. Action by W. H. Marquis against the city of Santa Ana for salary as assessor. Judg- ment for plaintiff. Defendant appeals. Af- firmed. West & Heathman, for appellant Jas. G. Scarborough, for respondent. m ***** * HARRISON, J.i 2. Section 755 of the munic- ipal government act (St. 188:3, p. 251) provides: "The clerk, treasurer, assessor, mai'shal, city at- torney and recorder shall severally receive at stated times a compensation to be fixed by ordinance by the board of trustees, which compensation shall not be increased or di- minished after their election, or during their several terms of office." The power of the legislature to abolish the office of city treas- urer, or to change the compensation of the officer, or its power to authorize the city to change his compensation during his term of office, is not presented in the present case, as the legislature has neither abolished the office, nor changed the compensation, nor given to the city the authority to make such I change. As the power of the defendant to 1 fix or change the salary of its officers rests I entirely upon statute, the exercise of this power is subject to all the limitations con- tained in the statute. The plaintiff was elected to the office of city assessor after the ( adoption of the ordinance fixing the amount of his salary, and the limitation in the above section that his compensation shall not be increased or diminished during his term of oflice renders the act of the defendant re- pealing the ordinance fixing his salary nuga- , tory. As the defendant could not directly, I by express ordinance for that purpose, di- minish the amount of his salary, the same I result could not be accomplished by it iu- j directly, either by accepting the provisions of the act of ]\[arch 2, 181tl, or by doing away with the neces.sity for his services through its adoption of the ordinance abol- ; ishing the street poll tax. The right of an officer to the salary fixed by law for that office is not impaired by any change that j may be made in tlie duties of the office, or I even by an entire cessation of those duties, so long as the office itself remains in exist- ence. 3. It is urged by the appellant that its election to avail itself of the provisions of the act of March 2, 181)1, had the effect to abolish the office of city assos.sor. As the oflice is, however, created by the legisla- 1 ture, it could not be directly abolished by 1 I'art of the opinion is omitted. the city; much less could its abolition be I implied from any act that did not in terms! purport to abolish it. The office is provided' for in section 752 of the municipal govern- ment act, which has never been repealed; and the act of March 2, 1891, instead of sus- taining the suggestion of an implied repeal of that section, expressly declares that its provisions shall not be given force in any city until it shall have passed an ordinance electing to avail itself thereof, on or before the first Monday in INIarch of each year, thus implying that the office continues to exist. The duties of the city assessor are fixed by , section 787 of the municipal government act; and while it maj^ be conceded that the elec- tion by the defendant to avail itself of the provisions of the act of March 2, 1891, did away with the necessity for the performance by the assessor of any acts connected with the assessment of property, theretofore im- posed upon him, so long as such election remained in force, it does not follow that the office of assessor was thereby abolished. Sec- tion 787 prescribes as one of the duties of this office that "the assessor shall during said term also make a list of all male per- sons residing within the limits of such city over the age of twenty-one years, and shall verify said list by his oath, and shall on or before the first Monday of August in each year deposit the same with the city clerk." It is urged by the defendant that, inasmuch as the only apparent object for which this list is to be made is to form the basis for collecting an annual street poll tax, the re- peal of the ordinance providing for the street poll tax relieved the plaintiff from the duty of preparing this list. The statute, how- ever, under which he holds his office, makes the preparation of this list one of his official duties; and we are not at liberty to assume that the only object of this requirement was to enable the city to collect a street poll tax, or that he would be justified in omitting this official duty prescribed by the statute, even though the city, by its ordinance, ren- dered his act in preparing it of no avail to it. The city had still the power to pass an or- dinance imposing this tax, and might then avail itself of the list thus prepared; but, whether the duties have been increased or diminished, or entirely dispensed with, so long as the office remains, the salary affixed thereto is an incident of the office, and must be paid to the incumbent. We have, how- ever, seen that the office has not been abol- ished; and the defendant does not contend that, if the office is still in existence, the respondent is not its incumbent. It follows that he is entitled to the salary attached to the oflice at the time of his election, and that the action of the court in holding this defense to be unavailing was correct. The judgment is affirmed. We concur: FLEET, J. GAROUTTE, J.; VAN DEFINITION OF PUBLIC OFFICE AND OFFICER. 49 HALL V. STATE OF WISCONSIN. (103 U. S. 5.) Supreme Court of United States. Oct., 1S80. Error to the supreme court of the state of Wisconsin. Mr. Lutlior S. Dixon, for plaintiff in error. Mr. Justice SWAYNE delivered the opinion of the court. This is a writ of error to the supreme court of Wisconsin. The case we are called on to consider is thus disclosed in the record: By an act of the legislature entitled "An act to pi'ovide for a geoloii'ical, mineralogieal, and agricultural survey of the state," approved ^larch 3, 1S57, James Hall, of the state of New York, the plaintiff in error, and Ezra Carr and Edward Daniels, of Wisconsin, were appointed "commissioners" to make the survey. Their duties were specifically defined, and were all of a scientific character. They were required to distribute the func- tions of their work by agreement among them- selves, and to employ such assistants as a ma- jority of them might deem necessary. The governor was required "to make a writ- ten contract with each commissioner" for the performance of his allotted work, and "the compensation therefor, including the charge of each commissioner"; and it was declared that "such contract shall expressly provide that the compensation to such commissioners shall be at a certain rate per annum, to be agreed up- on, and not exceetling the rate of two thousand dollars per annum, and that payment will be made only for such part of the year as such commissioner may actually be engaged in the discharge of his duty a-s such commissioner." In case of a vacancy occiu-ring in the com- mission, the governor was empowered to fill it, and he was authorized to "remove any mem- ber for incompetency or neglect of duty." To carry out tlie provisions of the act, the sum of 5^0.000 per annum for six yeare was ap- propriated, "to be paid to the persons entitled to receive the same." By an act of the legislature of April 2, 1800, Hall was made the principal of the commis- sion, and was vested with the general super- vision and control of the sui'vey. He was required to contract with J. D. Whitney and with Charles Whittlesey for the completion within the year of their respective surveys. To carry into effect these provisions, the gov- ernor was authorized to draw such portion of the original appropriation, not drawn previous to the 29th of May, IS^S, as might be neces- saiy for that purpose, the residue to be other- wise used as directed. By a subsequent act of March 21, 18G2, both the acts before mentioned were repealed with- out qualification. On the 20th of May, 1858, Hall entered into a contract with the governor, whereby it was stipulated on his part that he should perform the duties therein mentioned touching the ABB.CORP.— i survey, "this contract to continue till the third day of March, 1803, unless the said Hall should be removed for incompetency or neglect of duty, * * * or unless a vacancy shall oc- cur in his office by his com act or default." On the part of the state it was stipulated "that the said Hall shall receive for his com- pensation and expenses, including the ex- pense of ills department of said sm'vey, at the rate of $2,000 per annum: * * * jjrovided, that for such time as said Hall or his assist- ants shall not be engaged in the prosecution of his duties, according to the terms of said act and of this contract, deduction shall be made, pro rata, from the sum of his annual compensa- tion and expenses." Hall brought this action upon the conti-act The declaration avers that immediately after the execution of the contract he entered upon the performance of the duties thereby enjoin- ed upon him, and continued in their faithful performance until the time specified in the con- tract for its expiration, to wit, the 3d of March, 1863; that he was not removed by the. governor for incompetency or neglect, nor was any complaint ever made by the governor against him; that he never at any time, di- rectly or indirectly, assented to the repeal of the acts of 1857 and 1860; and that thereafter he continued in the performance of his la- bors the same as before, and that for the year ending March 3, 1863, he devote;d agents of public corporations. STATE ex rel. KUHL:MAN t. ROST, Judge, et al. (No. 11,599.) (16 South. 77G, 47 La. Ann. 53.) Supreme Court of Louisiana. Jan. 2, 1895. Application by B. J. Kuhlman for a writ of proliibition forbiddlni; Emile Rost, judge of the Twenty-First judicial district court, to take cognizance of a cause, and forbidding L. A. Cambre from prosecuting a writ of in- junction enjoining the relator from perform- ing the duties of a police juror. Writ allow- ed. Hamilton N. Gautier, J. L. Gaudet, and E. Howard McCaleb, for relator. Gustave V. Soniat, for respondents. NICHOLLS, C. J. The relator in this case avers that he has been duly appointed and qualified as police juror for the parish of St. Charles, as would appear by an annexed com- mission and oath; that since qualifying as aforesaid he has held said office, performed all the duties thereof, and is the present legal in- cumbent in the actual possession of said office, and is entitled to continue in the possession thereof, to the exclusion of all other persons; that he is in reality an officer de jure et de facto, and no court is competent to enjoin and prohibit him from performing the duties of his said office as long as he remains in possession as aforesaid; that on or about the 17th daj of October, 1894, one L. A. Cambre, alleging and representing that he had been illegally removed from said office of police juror, and that relator was the unlawful, though com- missioned and qualified, incumbent, in full possession of said office, performing the du- ties thereof, obtained from the judge of the Twenty-First judicial district court for St. Charles parish, on such ex parte showing, a mandatory writ of injunction, prohibiting re- lator from in any manner performing the duties of his said office, or attending the meetings of said police jury, until such time as the title to said office should have been judicially determined, thus practically oust- ing relator from office without judicial de- termination of relator's right to his posses- sion of said office; that said Cambre has not, nor has any person, judicially claimed the said efface advei-sely to relator; that relator appeared before the judge, and in open court excepted to his jurisdiction, and moved the court to dissolve the injunction, and to re- voke the order granting the same, upon the ground that the said judge was incompetent, and the court without jurisdiction, ratione materiae, to so enjoin relator, admittedly an officer de facto; that said judge and court persist in usurping jurisdiction, and refuse to revoke the said order, and to set aside the Injunction; that relator has no adequate rem- edy other than the writ of prohibition to be issued by the supreme court; that the cause is not an appealable one, the amount involved being less than $100; that, unless writs of prohibition issue, relator would suf- fer great and irreparable injury, and all highly injurious to the interest of the com- munity. Relator accordingly prayed that this court cause writs of prohibition to issue to the judge of the Twenty-First judicial dis- trict court for the parish of St. Charles, and to L. A. Cambre, forbidding the said judge to take cognizance of said cause, anrl for. bidding the plaintiff Cambre from prosecut- ing his said writ of injunction, and declaring the same inoperative, and for all further nec- essary orders and genei-al and equitable re- lief. Attached to relator's petition is a com- mission of the governor of the state, bearing date October 6, 1894, appointing B. J. Kuhl- man police juror, ward 5, St. Charles parish, vice L. A. Cambre, removed, on which is in- dorsed the oath of office of said Kuhlman as police juror, under said appointment, taken on the 10th October, 1894; also a certified copy of the proceedings of the police juiy of St. Charles at a meeting held on the 10th October, 1894. This meeting was composed of H. L. Youngs, T. C. Madere, A. E. Picard, P. M. Kenner, and B. J. Kuhlman. In the pi'oceedings it is recited that the last three were police jurors recently appointed as such by the governor, vice three other police jurors, whom the governor had removed, viz. Picard, vice Le Sassier, removed; Kenner, vice Sarpy, removed; and Kuhlman, vice Cambre, removed. The two other persons were po- lice jurors who, together with the three who had been removed, constituted the police ju- ry prior to the removals. In the proceedings mentioned it is declared that these two police jurors recognized the three newly-appointed jurors as members of the jury. As so com- posed and organized, the police jui^ proceed- ed to business, and elected L. A. Keller as supervisor of election. Relator's petition considered, this court ordered the judge of the district court and L. A. Cambre to show cause why a writ of piX)hibition should not issue, and be made perpetual, and that in the meantime the said parties be restrained from interfering with Kuhlman, the relator, as a police juror for the parish of St. Charles. It further ordered that a writ of certiorari issue to the district judge, directing him to forwai'd to this court a certified copy of the proceed- ings before him in this matter, to the end that their legality might be ascertained. A transcript was forwarded, as directed by our order. In transmitting the record, the dis- trict judge filed an answer or return, in which he states that on October 17, 1894, the peti- tion in the case was filed; that the petitioner, alleging that ho was in lawful possession of the office of police jui-or of the parish of St. Charles, and that defendant was about to forcibly take possession of said office, in which the interest of petitioner exceeded the sum of .$.")0. prayed for a writ of injunction restraining the defendant from taking pos- session of said office pending a judicial de- termination of his right and title thereto; REMOVAL FROM OFFICE. 63 that, after examining the petition and affi- davit annexed thereto, he granted the writ of injunction on petitioner's furnishing b:>nd In the sum of $200; that no proceedings were taken in the case until Tuesday, October 23, 1891, when the relator, through his coun- sel, by ex parte motions in open court move. for an order setting asiiie the writ of injunc- tion for want of jurisdiction ratione materiae; that no plea to the jurisdiction of respond- ent's court had previously been filed or of- fered; that respondent refused to take im- mediate action on said motions, but requested that the same should be tried by a rule nisi, and contradictorily with the plaintiff; that relator insisted upon immediate action on said ex parte motions, which motions, for that reason, were overruled by respondent, and that thereupon the relator, through his counsel, notified respondent that application would at once be made to this court for writg of prohibition and certiorari; that the ques- tion of jurisdiction vel uon has never been passed upon by him, or even been properly presented; that the proceedings held before respondent court were solely injunction pi*o- ceedings, and that the writ issued in the case was granted on the sworn allegations of the plaintiff that he was in the lawful possession of the office of police juror of the parish of St. Charles, llespoudcnt further avers that he has never usurped jurisdiction, and that he has never refused to revoke his said order or set aside the injunction; that he has not tried to control or interfere with the executive department of the state; that under article 11 of the constitution of the state any incumbent of a public office is en- titled to appeal to the courts to be maintain- ed in the possession of his office pending the judicial determination of the right and title to said office; that it is only in proceedings having such determination for their object that the right of removal of police jurors by the executive can be presented; that under article 201 of the constitution of the state pro- vision is expressly made for the manner and form of removal from office; and finally, that, the proceedings instituted in respondent's court being solely injunction proceedings, no such question was or could have been present- ed in said proceedings; that respondent has acted within the powei*s vested in disitrict judges by the constitution and laws of the state, and that relator is not entitled to the relief asked for. In the petition for injunction filed by Cam bre he alleged: That he was appointed by Gov. Foster as a police juror of the Fifth ward of St. Charles parish. That said ap pointmeut was duly confirmed by the sen ate, and that he had duly takeu his oath of office as such, as would more fully appear by the commission annexed thereto. That since his induction into office ho had always per formed, and still continued to perform, to the best of his knowledge and belief, all the duties incumbent on him. That by virtue of his said appointment and confirmation his term of office did not expire before the next general election, to be held on the first Tues- day next following the third Monday in April, 189G. That he is entitled to all the fees, emoluments, and perquisites attach'^''' and belonging to said office up to said date, and which were as follows: For the regu- lar meeting of November, 1804, $3; for the regular meetings for January, March, May, July, September, and November, 1805, $18; for the regular meetings for January and March, 1800, .$G; that in his said capacity as police juror he was ex officio syndic of the Fifth ward, and as such was entitled to a yearly salary of $2.j; that in his said capac- ity as police juror he was ex officio member of the board of reviewers, and that as such he was entitled to at least one sitting, or $3,— total, $55. That at the last meeting of the police jury, held on the 11th day of Sep- tember, 1804, it was moved that the police jurj' adjourn to the next regular meeting, on the first Monday in November, 1804, which motion was adopted. That since he has not received any notice from the secretary of the police jury, or any other officer, appris- ing him of any extra meeting of the police jury. That he has never been offlL-iaily ap- prised of his removal from said office, and has not been guilty of any crime or cause that should warrant his removal, and there- fore that petitioner is in actual and physical possession de jure and de facto of said office, and entitled to all emoluments thereto at- tached and belonging. That he is inform- ed and verily believes that one B. J. Kuhl- man illegally and wrongfully claims the aforesaid office of petitioner, and, in con- junction with others, did unlawfully meet and assemble in the parish of St. Charles on the 10th day of October, 1804, and did endeavor to transact business as members of the police jury of the parish of St. Charles. That, in order to properly protect the pos- session of petitioner In his aforesaid office against the interference of claimant afore- said, it was necessary that an injunction should issue, ordering and commanding the said Kuhlman to desist and refrain from in- terfering with petitioner in the discharge of his duties as police juror of the Fifth ward of St. Charles parish, and particularly that he be restrained, enjoined, and prohibited from attending, sitting, or in any wise act- ing as police juror as aforesaid, at any time or place, and more particularly the next reg- ular meeting of the police jury on the first Monday of November, 1804, and until the ti- tle to said office shall have been judicially determined. That, unless said injunction be granted, petitioner feared and believed that Kuhlman would endeavor to take the law in his own hands, and, with the assistance of others, practically to oust petitioner, the present incumbent, in advance of judicial determination, and that same would cause petitioner irreparable injury. Petitioner 54 OFFICERS AND AGENTS OF PUBLIC COEPORATIONS. prayed that the court issue an injunction, ordering and commanding L. A. Cambre to desist and refrain from interfering with pe- titioner in the discharge of his duties as police juror and ex officio syndic of the Fifth ward of St Charles parish, and particularly that he be restrained, enjoined, and pro- hibited from attending, sitting, or in any wise acting as police juror as aforesaid, at any time or place, and more particularly on the next regular meeting of the police jury on the first ^londay of November, 1894, and until the title to said office shall have been judicially determined; that the defendant be cited; and that the writ of injunction be made absolute and perpetual. The district judge ordered that a writ of injunction is- sue as prayed for, on petitioner's furnishing bond, with solvent security, and conditioned according to law, in the sum of $200. On petitioner's executing a bond for the amount fixed in favor of Kuhlmanto secure to him the payment of all such damages as he might recover in case it should be de- cided that the injunction was wrongfully ob- tained, a writ of injunction issued as or- dered. The interest which the public might have in the issues raised was ignored, and not attempted to be safeguarded on the bond. The commission referred to in the petition as being attached and made part of it showed that he was appointed as a police juror on the 3d of June, 1S92, and qualified under the commission on the 5th July, 1892. The proceeding of Cambre in the matter of the injunction sued out which has been brought before us in this case, notwith- standing the use of the name of the state in its title, is a private suit of Cambre against Kuhlman. Its object, however, is not so much to stay the payment to Kuhlman of any moneys which, but for the injunction, would be made to him under color of office as a police juror, as through the arm of the judiciaiy to direct, control, and regulate the performance of public duties by officers of another department of the government. When such a result is sought to be brought about, pleadings of an exceedingly specific character, showing exceptionallj- strong facts in aid of the relief asked, must be presented to a court to justify its assuming jurisdic- \ tlon. Mere conclusions of law or conclu- sions of ultimate facts will not suffice, nor should the pleader take anything by failing to bring affirmatively to the knowledge of the court, if known to him, the condition of af- fairs which he must be aware would eventu- ally be advanced as those upon whicli the de- fendant was basing and grounding the claims and pretensions under which he was acting. It is his duty, in such a proceeding, to state, as far as possible, the whole case, to the end that the court may be completely advised in the premises. Nothing should be held back which, if known to the court, would probably infiuence it in determining the ques- tion of its own powers. Usually, vague and general pleadings are not fatal to a demand. Imperfect statement of a cause of action is ordinarily remedied by amendment on excep- tion taken, but in matters of the present character we are of. the opinion that the pleadings in the case alTcct the jurisdiction, and that a court should not act at all un- less a cau.se of action is plainly set out, and is manifest on the face of the papers; and we are of the opinion that it is authorized of its own motion, and in spite of the allega- tions of the petition for the injunction, to take cognizance of matters of which it can legitimately take judicial notice, which enter as factoi's in determining the question of its own powers and duties. The court should be first assured of its own jurisdiction. If a district judge should inadvertently have as- sumed it under circumstances where he should not have done so, we have the power, and it is our duty, under our supervisory con- trol over the lower courts, to set aside the orders given by him. It is of the utmost im- portance that the different departments of the state should not clash, but that each should pursue its legitimate functions free from interference from the other. That there may be cases of such a character as to force the judiciary, in the discharge of its own duty, to review, to declare null and void, a.nd to set aside acts of the legislature or executive departments, is beyond question; but, as we have said, the occasion which would require it to do so at the instance of an individual citizen by way of injunction, which would at once ex parte restrain and change (temporarily, at least) the course which public affairs would naturally have followed but for the injunction, must be clear and patent. Private interests should yield to those of the public. In the case at bar it is clear that Cambre, after having been appointed, commissioned, and qualified as a police juror for the parish of St. Charles by the governor, was subsequently removed by him, and the relator, Kuhlman, appointed in his place; that simultaneously two other po- lice jurors were removed by the governor, and others appointed in their places; that the three new appointees qualified under their commissions, and, presenting them- selves, with their commissions and oaths of office, to the remaining police jurors, they were recognized by the latter as police ju- rors, and a meeting of the police jury was or- ganized, in which the new appointees partici- pated, selecting or electing a supervisor of election at such meeting, and that the in- jtinction which was issued was applied for and granted subsequent to this meeting. In his petition for injunction, Cambre alleges that "one B. J. Kuhlman illegally and wrong- fully claims the office of police juror" (to which he had himself been appointed), but he does not infurm the court, as he should have done, that Kuhlman chiimed the office under a commission from the governor of a date subsequent to that of his own commis- REMOVAL FROM OFFICE. 55 sion, and that the subsequent commission was issued by reason of his own removal from office by the chief executive; and, while he alleges that Kuhlman, in conjunction with others, did unlawfully meet and assemble in the parish of St. Charles on the 10th of October. 1S04, and did endeavor to transact business as members of the police jury of St. Charles, he does not inform the court that the persons with whom he acted in conjunc- tion were two of the police jurors of the par- ish of St. Charles, holding by undisputed ti- tle, and two other persons who, having been appointed by the governor as police jurors. had qualified under the commissions issued to them, and who were recognized, as was Kuhlman, by the older members as police jurors of the parish. He avers that "those parties did unlawfully meet and assemble as police jurors," but he does not state how or why the meeting was unlawful. The ground for that attack is, we infer, to be found in the allegation that the police jury, Avhen it had adjourned before, had adjourned to its next regular meeting, and that he bad not been notified of a called meeting, nor notified of his having been removed from oflice as a police juror. No other reason seems to have been assigned. There is no charge made in the petition that the governor was without power or authority to remove a police juror. If any such claim was intended to be ad- vanced, it was merely iuferentially and con- sequentially advanced under the allegation that, by virtue of his appointment and con- firmation, his term of otfice did not expire before the next general election, to be held on the first Tuesday next following the third Monday in April, 18'JG, and M^e do not think this indirect general allegation fairly raised an issue as to the governor's legal or consti- tutional power of removing a police juror from his office. The issue that he tendered was rather that the governor had acted im- properly, and without cause, than that he had acted without authority,— an issue which (granting the power to remove) was one which should not have been raised, and could not be passed upon by the court. We take judicial notice of Act Xo. 12.5, Ex. Sess. 1877. That act has not been repealed. Whether or not it has become inoperative by reason of the adoption of the constitution Is not a question to be lightly raised, and on general indirect allegations, nor to be raised by the court itself. This statute has been constantly acted upon by the executive of the state since 1S80. The official action of the head of the executive department is pre- sumed to be within the scope of his authori- ty. This presumption is sufficiently strong, under the statute cited, to entitle a person, who has qualified as a statute officer, in an office, the appointment to which is vested in the governor, prima facie to possession of the office. If he is to be kept out of possession at all, it must be, as we have said, under ex- ceptional circumstances, specially set forth, and under a direct issue as to the power of ' the governor. It is shown in this case that not only had Kuhlman been appointed and qualified as police juror, but he had been rec- ognized as such by the other members of the jury, and that together they had organ- ized and held a meeting of that body. Kuhl- man had actually gone into possession of the office, and the allegation that Canibre feared he would seek to take forcible posses- sion of the same is therefore without founda- tion. No action seems to have been taken by the jury after its adjournment until the meeting in which Kuhlman participated; therefore no act of possession of the office by Cambre is shown after his removal by the governor. If the governor had the pow- er to remove him, there was no necessity for official notification to him of the removal to bring it about. The removal of itself operat- ed a divestiture of the office, at least for the purposes of this suit. Had intermediate ac- tion taken place before notice, in which Cam- bre had participated, in ignorance of his re- moval, and were the validity of action taken at that time, and. under these circumstances, contested, a different question would arise. If Cambre was removed from office, he was not entitled to notice of a called meeting of the jury. The legality of the police juiy as a body as it met at the meeting in which Kuhlman participated, and the legality of the meeting, cannot be collaterally raised or disposed of in the injunction suit. We are of the opinion that the district judge, in tak- ing jurisdiction in the matter of the petition praying for an injunction, and in issuing the injunction he did, erred, and that, when the want of jurisdiction was called to his atten- tion and urged, he should have at once dis- charged the injunction. He could have done so of his own motion. There was no neces- sity for action to be taken contradictorily with Cambre. In deciding this case we take oc- casion to refer to the views expressed by the supreme court of Alabama in Beebe v. Rob- inson, 52 Ala. 6G, and to the case of Cameron V. rarker (Okl.) 38 Pac. 14 et seq. For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that the writ of pro- hibition which issued in this matter be pei'- potnated. and that the injunction granted by the district judge of the Twenty-First judi- cial district court of the state of Louisiana for the parish of St. Charles in the matter of L, A. Cambre vs. B. J. Kuhlman (No. SO of the docket of that court) be. and the same is hereby, set aside and discharged. 56 OFFICERS AND AGENTS OF PUBLIC CORPORATIONS. STATE ex rel. RENNER v. CURRY. (33 N. E. G85, 134 Ind. 133.) Supreme Court of Indiana. March 8, 1S93. Appeal from circuit court, Morgan county; Eli F. Ritter, Special Judfie. Petition for mandamus, brouglit by the state on the relation of Charles G. Reuner against Robert Curry. The writ was refused, aud the relator appeals. Affirmed. W. R. Han-ison and C. G. Renner, for appel- lant. Jordan & Mattliews, for appellee. OLDS, J. This is a proceeding in manda- mus to compel the appellee, as mayor of the city of Martinsville, to issue an order to the appellant's relator for the sum of $18, allowed by the common council of said city for serv- ices rendered by the relator as city attorney. The complaint alleges that the relator is the duly-elected city attorney for said city, and qualified and acting as such, and that the com- mon council allowed him the above-named sum for his services, and the appellee, the mayor of said city, refused on demand to is- sue the order therefor, and asked that he be compelled to issue the order. The appellee an- swered in three paragraphs. The first para- graph is a general denial. A reply was filed to the other two. There was a trial, resulting in a finding and judgment for the defendant. Appellant filed a motion for new trial, which was overruled, and exceptions reserved. Er- rors are assigned on the rulings of the court in overruling demurrers to the second and third paragraphs of answer, overrulmg the mo- tion for new trial, and that the said second and third paragi'aphs of answer do not state facts sufficient to constitute a defense. The record does not show the presenting and overruling of demm-rers to the second and third paragraphs of answer. This fact is con- ceded by counsel for appellant, but it is sought to question the sufficiency of the answer for the first time in this court by an assignment of errors that said paragraphs of answer do not state facts sufficient to constitute a de- fense to relator's petition. That the sufficien- cy of an answer cannot be first questioned in this court is now well settled. Railroad Co. v. Modesitt, 124 Ind. 212. 24 N. E. 98(j. See, also. Elliott, App. Proc. §§ 47(5-4,81, where the question is fully discussed, and authorities more, the record does not show an election of the relator. It affirmatively appears that \ immediately after the fourth ballot was taken the matter of election was by agreement post- \ poned, and no election was ever declared, but, on the contrary, was by agreement postponed, and never taken up afterwards. The action is to compel the issuing to him of an order as city attorney, and in payment of his salary or compensation for his services as such. The record is conclusive against the appellant, and in no phase of the case was he entitled to re- cover, and the introduction of the record show- ing the adoption of the resolution after the commencement of this suit, though erroneous, Avas hannless. The finding and judgment of the court was proper under the facts in the case, and there is no error in the record. Judg- ment affirmed. \ 58 OFFICERS AND AGENTS OF TUBLIC CORPORATIONS. STATE ex rel. KEITH et al. v. COMMON COUNCIL OF MICHIGAN CITY et al. (37 N. E. 1041, 138 Ind. 455.) Supreme Court of Indiana. June 21. 1894. Appeal from circuit coui-t, La Porte county; Daniel Noyes, Judge. Application for mandamus by the state of Indiana, on the relation of George Keith and another. From a judgment sustaining a de- murrer to the petition, plaintiffs appeal. Af- firmed. W. B. Biddle. for appellants. Jas. F. Gal- laher, for appellees. DAILEY, J.i * * * * • There is another view of the question. A ] large part of the argument of the learned counsel for the appi'llnnts consists of an ef- ) fort to eliminate the ordinance from the con- tract, and to show that the latter must stand ' alone, xmaffectod by the ordinance. But it I appears the contract has more need of the ordinance than the ordinance has of the con- ^ ti'act. The ordinance is the act of the com- mon council. The contract is an agi'eement, executed by the mayor of the city, acting un- der its instructions. The council has authori- ty to order street improvements, but the mayor is vested with no such authority. The petition recites: "On the 11th day of July. 1S87, the said council authorized the mayor to enter into a contract with the relator (Jeorge Keith to construct said pavement; and in pm-suance of said authority, on the liilh day of July, 1S87, William F. Woodson, wlio was then the mayor of said city, on its behalf entered into the following contract." The return of the city states "that the said contract was awarded to sjiid relator George Keith, and the council of said city instructed AMlliam F. Woodson, the mayor of said city, to enter into contract with said relator Keith. and that on the 12th day of July, 1887, said Woodson, as mayor of said city, did enter into a contract with said relator Keith for the furnishing all materials and the constructing said improvement, as provided for in said or- dinance, plans, and specifications." The con- tract itself says: "In witness whereof, the said parties of the first part have executed this agreement by the mayor of said city of Michigan City, the day and year first above written, according to a resolution adopted by the common council of said city July 11th, 1SS7, instructing him to enter into such con- tract with said parties of the second part." The contract is signed by William F. AVood- son, mayor of Michigan City. There is noth- ing in the record alleging that this contract was ever approved by the common council; so that, as it stands here, it derives its sole claim to be an agi-eement of binding force upon the city from the authority previously 1 Part of the opinion is omitted. conferred upon the mayor to execute it. The mayor of a city cannot give a contractor a lien upon the property of its citizens. Con- tracts made by him have no more binding foi'ce against the city than have those of a councilman. In the signing of this contract, the mayor was acting simply as the instru- ment or agent of the council, which alone has power to obUgate the city. If, then, in aught he exceeded or varied from the au- thority which had been conferred upon him for a special puri^ose, his action to that ex- tent was void as to the city, and the con- tract became the contract of the city only so far as it complies with the instructions given to the mayor by the council when he was authorized to execute it. The language last quoted from the i-eturn leaves no room for doubt as to what those instructions were which were given to the mayor by the coun- cil, and which were his only warrant for contracting at aU. He was instructed to enter into the contract, which had already been awarded to the appellants by the ac- ceptance of their bid, made in response to the publication of the city. "The said contract was awarded to the said relator Keith, and the common council instructed William F. Woodson, mayor of said city, to enter into conti'act with said relator Keith." All of this action was talcen under the ordinance, and it certainly could not be claimed with reason that the mayor was authorized by these insti'uctions to enter into any contract differing from the ordinance by which the work was ordered. The appellants say in their petition: "The mayor entered into the contract in pursuance of this authority." Could he, in pursuance of this authority, have bound the city by a conti-act providing for a pavement of brick, instead of cedar block, as ordered by the ordinance? Could he have contracted for a pavement GO feet in width, instead of 541^ feet in width, as specified in the ordinance? And, if he had so contract- ed, would the com-t order the assessment of the extra cost against the abutting property? Certainly not, for the reason that his autliui-i- ty was limitiMl to the agi-eements required by this ordinance, and for the further reason that the foundation for no other contract had been laid by the common council. The ordinance is the pillar which supports the contract. According to the record before us, it is the only action taken by the common council as a body authorizing this improve- ment or justifj'ing an assessment, and no ac- tion taken by any person or any other body can alter its specifications or amend its condi- tions. The position here taken is only a part of the law of agency, but it has been frequently applied to municipal law by the text-books on that subject. In Dillon on Municipal Cor- porations {4th Ed. § 447) the author says: "And it is a general and fundamental prin- | ciple of law that all persons contracting with a municipal corporation must, at their peril, I LIABILITY ON CONTRACT. 5» / inquire into the power of the corporation or I of its officors to malie the contract. * * ♦ This principle is more strictly applied, and I properly so, than in the law of private cor- ^ poratious. So, also, those dealius with the I agent of a municipal corporation are liliewise bound to ascertain the nature and extent of his authority. Tliis is certainly so in all f cases where the authority is special and of record, or conferred by statute." Also, from section 4r>2 of the same work: "Wh(>re offi- cers or a.ircnts of a corporation, duly appoint- t ed and act in,;; within the scope of their au- ( thority, sign an instrument," the insti'ument I Is to bo i\';.,a:'aed as tlie t: tuple contract ol the corpcnition. Note 2 under this section: I "The genei'al rule is unqtuestionable that a ' municipal corporation is not bound by the I unauthorized acts of an individual, wheth- , er an oiucer of the corporation or a mere I private person." Davies v. Mayor, etc., 93 N. Y. 250. "Where a committee was em- powered to contract for the erection of a building at a price not to exceed a specified sum, it was held that they had no power to contract for a larger sum, and that the person contracting with them was bound to talve no- tice of the extent of their powers." Turney V. Town of Bridgeport, 55 Conn. 412, 12 Atl. 520. In section 935 of the second volume of Dillon on Municipal Corporations, the rule is thus stated: "Nor, as we have before stated, i is a municipal corporation botmd by con- ' tract, witliin the scope of its chartered pow- i ers, if made by officers or agents not there- / unto authorized." The cases cited by counsel for the appellants in this branch of his argu- ment are not at all opposed to the doctrine stated. In Clements v. Lee, 114 Ind. 897, 16 N. E. 799, it is held that a person about to enter into a contract with a city must inform himself as to the jm-isdiction of the council to contract. Taber v. Ferguson, 109 Ind. 227, 9 N. E. 723, decides that, as the statute does not require the proof of notice by publication to be filed with the clerli, the transcript wiU not be held bad on demurrer for want of the notice. In City of Indianapolis v. Imber- ry, 17 Ind. 175, the court holds that it is not necessary for the council to place of record its determination as to whether or not the general fimd shall bear a portion of the cost of the improvement We thinli these deci- sions are of no avail in determining what contract was made by the city, and what are its corporate obligations under the facts set forth in the retiu'n.2 2 Part of the opinion is omitted. 60 OFFICERS AND AGENTS OF PUBLIC CORPORATIONSs TAYLOR V. CITY OF OWENSBORO. (32 S. W. 94S. 9S Ky. 271.) Court of Appeals of Kentucky. Nov. 16, 1895. Appeal from circuit court, Daviess county. "To be officially reported." Action by Ashby Taylor against the city of Owensboro to recover daniaj^es for an al- leged wrongful arrest. Defendant had judg- ment, and plaintiff appeals. Affirmed. John Feland & Son, for appellant. J. D. Atchison, for appellee. PAYNTER, J. The appellant instituted action against the cit.v of Oweusboro, seek- ing to recover damages for an alleged wrong- ful arrest, conviction, and confinement in the workhouse of the city. It is alleged in the petition, in substance, that C. N. Pendleton is the judge of the police court of the city of Owensboro; that, as such officer, he is- sued a warrant against appellant, charging him with violating an ordinance of the city of Owensboro denouncing a penalty for a breach of the peace; that, by virtue of the warrant, the city marshal arrested him, and carried him before the police court, where he was tried, convicted of a breach of the peace, and adjudged that the city of Owens- l>oro recover of him $100 and costs, and, fail- ing to pay which, he was confined in the workhouse of the city for some time. It is also alleged that the proceedings were un- der an ordinance which reads as follows, to wit: "Any person or persons who shall with- in the city of Owensboro be guilty of a riot, rout, unlawful assembly or breach of the peace shall upon conviction be fined not less than ten nor more than one hundred dol- lars." It is insisted that the ordinance un- der which the pi-osecution took place is un- constitutional and void, and therefore appel- lant is entitled to recover damages of the city. A demurrer was sustained to the pe- tition, and, appellant failing to amend, his petition was dismissed. Section 12GS, St. Ky.. is as follows: "If any person or persons shall be guilty of a breach of the peace * * * the person so offending and each of them shall be fined not less than one cent nor more than one hundred dollars or im- prisonment not less than five nor more than fifty days or both so fined and imprisoned." By the terms of the ordinance the fine for a breach of the peace cannot be less than $10, nor more than $100, and Imprisonment is not part of the penalty, while, under the statute, for a breach of the peace, the min- imum fine is 1 cent, and the maximum fine $100, and, in addition to which, imprison- ment for not less than 5, nor more than 50, days may be inflicted. It will therefore be observed that the penalty for a breach of the peace under the ordinance is much less than the one denounced in the statute. Sec- tion 1G8 of the constitution is as follows: "No municipal ordinance shall fix a penalty for a violation thereof at less than that im- posed by statute for the same offense. A conviction or acquittal under either shall constitute a bar to another prosecution for the same ofTense." The penalty for a breach of the peace under the ordinance being less than the one imposed by statute, the ordi- nance is in violation of the constitution, and void. Under subsections 22, 23, § 3290, St. Ky., the common council of cities of the third class have the power, within the limits of the constitution of this state and the act re- lating to cities of that class, to pass ordi- nances imposing fines and imprisonment for the violation of ordinances and by-laws, breaches of the peace, etc. The ordinance imposing a fine for a breach of the peace be- ing void, the statute remained as if no ac- tion whatever had been taken by the com- mon council. There was a statute in force under which both fine and imprisonment could be imposed for a breach of the peace in the city of Owensboro. The judge of the police court of that city had jurisdiction to try persons charged with that offense. A warrant was issued, charging the appellant with the offense of a breach of the peace, under which he was arrested, tried, and con- victed. It is alleged in the petition he was required to answer "the charge of violating city ordinance 3, breach of the peace in said city." We understand this to mean that ap- pellant was charged with the offense of a breach of the peace. Although he was char- ged with violating the ordinance, yet the gravamen was a breach of the peace. The judge and the marshal may have proceeded to, and did, prosecute the appellant iiuder charge of a breach of the peace, believing the ordinance in question to be in force, and imposed the fine, yet it was not in force, but a statute was, which authorized the imposi- tion of the fine for a breach of the peace. The jurisdiction of the court existed, with ample power to try and convict the accused on the charge of a breach of the peace, if proven guilty; and, although the judge may have labored under the erroneous impression that the ordinance was in force, yet, having imposed such fine as he had authority to do by statute, his judgment was not void, and appellant's imprisonment under it illegal. A judgment maj- be right, still the court may have given a very insufficient or erroneous reason for it. The warrant may have cou- pled with the charge of a breach of the peace the fact that it was in violation of a void ordinance; still the warrant would be valid, because, by statute, a penalty is de- nounced for the breach of the peace. While tlie warrant may not have been in exact form as the charge and the law, still the court had jurisdiction of the matter. The appellant could have raised any ob- jection he saw proper to the warrant. He was in court, pleaded not guilty, and pro- ceeded in the tiial, so far as the petition LIABILITY FOR TORTS OF AGENTS. 63 shows, without raising any question as to the form of tlie warrant, or manner of stat- ing the charge against him; and, as the court had jurisdiction to try the case, the only remedy which appellant had was by ap- peal from the judgment of conviction. Had there been no statute imposing a fine, etc., for a breach of the peace, then the question as to the effect of such judgment would be a different question from the one presented In this case. However, that would not af- fect the question as to the liability of the city. Municipal governments are auxilia- ries of the state government. They are created principally to aid in securing a prop- er government of the people, within the boundaries of such municipality, and to make moi-e effectual the maintenance of the public order. The judges of the» police courts, as well as the marshal of municipali- ties, are officers of the commonwealth and their respective municipalities, although their duties might be confined to the en- forcement of the law within a specified ter- ritory. The marshals of such cities are de- claimed to be peace officers of the cities and commonwealth. St. Ky. § 3.341. A breach of the peace is a public offense. It is an offense against the commonwealth. Tlie gen- eral assembly has so declared it to be. While the general assembly has conferred authority upon the common councils of cities of the third class to impose a penalty on those who may be guilty of it within certain limits, still the offense remains a public one, and against the commonwealth. The evident purpose of the constitutional convention and the general assembly was to make more certain and effective the prosecution of the persons who might be guilty of such of- fenses, by conferring upon those immediate- ly affected by such violation of the law the authority to enforce the law, and inflict punishments for its violation; but, that proper penalties should be imposed under municipal ordinances, the constitution pro- hibits prescribing by an ordinance a less penalty than that fixed by statute for the offense. That one charged with such of- fenses as were denounced by statute and by a municipal ordinance should be put in jeopardy but once, the constitution declared a conviction or acquittal under one should constitute a bar to another prosecution for the same offense. A municipal corporation is not liable for the acts of its officers in en- forcing the criminal or penal laws of the commonwealth, or in enforcing penal ordi- nances of the city. The maxim respondeat superior has no application. It is said in Dill. Muii. Corp. §§ 1)74, 975: "It may be ob- served, in the nexF^lace." that when it is sought to render a municipal corporation liable for the act of servants or agents, a cardinal inquiry is whether they are the servants or agents of the corporation. If the corporation ai)points or elects them, can control them in the discharge of their du- ties, can continue or remove them, can hold them responsible for the manner in which they discharge their trust, and if those du- ties relate to the exercise of corporate pow- ers, and are for the peculiar benefit of the corporation, in its local or special interest, they may be justly regarded as its agents or servants, and the maxim of respondeat superior applies. But if, on the other hand, they are elected or appointed by the corpo- ration, in obedience to the statute, to per- form a public service, not peculiarly local or corporate, but because this mode of se- lection has been deemed expedient by the legislature in the distribution of the powers of the government, if they are independent of the corporation as to the terms of their office, and the manner of discharging their duties, they are not to be regarded as the servants or agents of the corporation, for whose acts or negligence it is impliedly lia- ble, but as public or state officers, with such powers and duties as the statute confers upon them, and the doctrine of respondeat superior is not applicable. It will thus be seen, on general principles, it is necessary, in order to make a municipal corporation impliedly liable, on the maxim of respondeat superior, for the wrongful act or neglect of an officer, that it be shown that the officer was its officer, either generally, or as re- spects the particular wrong complained of, and not an independent public officer; and, also, that the wrong was done by such offi- cer while in the legitimate exercise of some duty of a corporate nature, which was de- volved on him by law, or by the direction or authority of the corporation. Agreeably to the principles just mentioned, police offi- cers appointed by a city are not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties; and, accordingly, a citj' is not liable for an assault or battery committed by its police officei's, though done in an attempt to enforce an ordinance of the city, or for an an-est made by them which is illegal, for want of a warrant, or for other causes, or for their unlawful acts of violence, whereby, in the exercise of their duty of suppressing an unlawful assem- blage of slaves, the plaintiff's slave was killed. So, on the same principle, a person who suffers a personal injury while aiding the police officers of a city, at their request, in arresting disturbers of the public peace under a valid ordinance, has no remedy against the city. The municipal corporation, in all these and the like cases, represents the state or the public, the police officers are not the sei-vants of the corporation, the principle of respondeat superior does not ap- ply, and the corporation is not liable, un- less by virtue of a statute expressly creat- ing the liability." The principle enumerat- ed by Mr. Dillon is sustained by almost an unbroken line of decisions of the courts of this country, and by this court in the cases 62 OE^ICERS AND AGENTS OF PUBLIC CORPORATIONS. of Pollock's Adm'r 221; Jolly's Adm'r V. Louisville, 13 Bush, V. City of Hawesville, 89 Ky. 279, 12 S. W. 313; Prather v. Lexing- ton, 13 B. Mon. 559. Tlie cases rest on the ground that municipalities represent the commonwealth, and municipal officers, while engaged in duties relating to the pub- lic safety, and in the maintenance of pub- lic order, are the servants of the common- wealth. The judgment is affirmed. LlAlilLlTY i'OK TOUTS OF AGEXTS. 63 HORTON V. NEWELL, City Treasurer. (23 Atl. 910, 17 R. I. 571.) Supreme Court of Rhmle Island. Jan. 2, 1S92. Exceptions to court of common pleas. This was an action of trespass on the case, brought by Daniel H. Hortou against George W. Newell, city treasurer of the city of Paw- tucket, to recover damages for an alleged malicious suit brought by the tax collector of the city against the plaintitf. From a judg- ment sustaining a demurrer to the declara- tion plaintiff excepts. Affirmed. Jacob W. Mathewson, for plaintiff. Thom- as P. Barnefield. City Sol., for defendant. PER CURLIM. A municipal corporation is not liable for the acts of its officers, un- less previously authorized or subsequently ratified by it, or unless done in good faith in pursuance of a general authority to act for the city in tlie matter to which they re- f late. Donnelly v. Tripp, 12 R. I. 97, 98. The , declaration does not allege that the city of / Pawtucket authorized the suit by Newell in ' his capacity as tax collector, complained of / as malicious, or that it has even ratified the ' bringing of the suit. If it was maliciously i brought by Newell, it was not brought in f good faith, which is essential to render the city liable as for an act done in pursuance of / a general authority to act for it, under the ' rule stated above. The demurrer was there- / fore properly sustained. We presume that ' NcAvell, in bringing the suit, acted not under authority from the city of Pawtucket, but in pursuance of the statutory authority confer red on him as tax collector by Pub. St. R. I. c. 44, § 26. If so, it is difficult to see how | the city of Pawtucket is liable. Exceptions overruled, and judgment of the court of common pleas affirmed, with costs. 64 OFFICERS AND AGENTS OF PUBLIC CORPORATIONS. RYCE V. CITY OF OSAGE. (55 N. W. 532, 8S Iowa, 558.) Suprem-? Court of Iowa. May 25. 1893. Appeal from district court, Mitchell county; G. W. Ruddiclv, Judge. Action against the defendant for compensa^ tion for services as an attorney. Judgment for defendant. Plaintiff appeals. Li. M. Ryce, pro se. N. L. Rood, for appel- lee. KIXNE, J. 1. Plaintiff's cause of action is set out in three ct)unts, and may be smuma- rized as follows: In 1881), plaintiff was elect- ed as city attorney for defendant for the term of two years, and aftei-wards entered upon his duties. At the time of his election, as weU as when he performed the services sued for in this action, there was an ordi- nance in force in said city, section 5 of which provided as foUows: "The duties of the city solicitor shaU be to give his legal opinion and advice upon any subject or question that may be submitted to him for that puriwse by the city council or mayor, to act as attoraey for the city in any suit or action brought by or against the city, and generally to attend to the interests of the city, as its attorney; and his compensation therefor shall be the sum of $100 per year." When he entered upon his office, a suit was pending against the city, which had been brought by one Smith, to quiet the title to a tract of laud therein lmo^vn as a "pubhc square." One Coffin was, prior to plaintil'fs taking the office of city at- tomej', conducting said suit under special con- tract with tlie city. When plaintiff entered upon the duties of his office, he claims it was the understanding and agi'oement between him and the council of the defendant that he should take charge of and defend said suit in the district and supreme courts, and the city would pay him therefor in addition to his sal- ary as city attorney. He did so, and present- ed his bill to the council, and it was not al- lowed. That the city paid him $200, being, as they claimed, his salary for tlie two years as city attorney. That the services he ren- dered in the defense of said suit were not included within his official duties as city at- torney, and that, as said officer, he was in no event bound to defend said suit in the su- preme court. That the city council, in 1886, by a resolution repealed said ordmance by fix- ing the salary of the citj' attorney at $25, and such further compensation as they might deem just and equitable. That the defendant, having treated said ordinance as repealed, is now estopped from claiming it to be in force. Tliat defendant city demurred to the petition on the ground that tlie labor claimed to have been performed by the plaintiff was a part of the duties which pertained to his office, and, his salary as city attorney being fixed by an ordinance, neither the coimcil nor any of its members had the power to make the al- leged contract, and to bind the city thereby. That the facts set up, and claimed to amoimt to a repeal of said ordinance, were ineffectual to accomphsh that end. The demurrer was sustained, and, plaintiff electing to stand up- on his petition, and refusing to plead further, judgment was entered against him for costs, and his action dismissed. 2. The appeal presents the single question of the correctness of the ruling of the trial court in sustaining the demuiTer. It is urged that the services rendered were not, even by the terms of tlie ordinance, included within the plaintiff's duty as city attorney. It seems to us that a mere reaumg of that section of the ordinance which prescribes the duties of the city attorney is sufficient to sliow that under it he was required to act for the city, as its attorney, in any case brought by or against it; and, if that is not broad enough, tlie further reqmrement certainly woifid be that he is "generally to attend to the inter- ests of the city, as its attorney." That the ' services rendered by the plaintiff, and for which he now seeks to recover, were includ- ed within his duties as city attorney, is too , plain to admit of argument. 3. It is claimed that tlus provision of the ordinance was repealed, or rendered inopera- tive, because the councd, several years after its enactment, by a resolution fixed, or rather undertook to fix, the compensation of the city attorney at $25 per j-ear, and hence it is said that the city is now estopped from relying upon the ordinance. The statute provides the manner in wliicli ordinances shall be passed. When legally passed, if not in conffict with constitutional or statutory provisions, an or- dinance will remain in force until repealed or amended in a legal manner. We need not stop to argue the self-evident proposition that an ordinance cannot be repealed, or rendered ineffective or inoperative, by a failure to en- force it. Nor can an ordinance be repealed or superseded by the passage of a resolution which undertakes to fix another and different compensation for a city officer than that pre- scribed in the ordinance. 4. Furthermore, the passage of the resolu- tion, even if it shoidd be conceded to work a repeal of tlie ordinance, would not avail plaintiff. Our statute provides, as to officers of cities and incoi^porated towns, that "the emoluments of no officer whose election or appointment is required by this chapter shall be increased or diminished during the term for which he shall have been elected or ap- pointed." Code, § 491. This statute has been construed to prohibit the city coun- cil from, on its own motion, changing the compensation of a city ollicer, or from ac- complislung the same end by making a con- tract with the officer for compensation other than that fixed by the ordinance. Purdy v. City of Independence, 75 Iowa, 359, 39 N. W. Rep. <;41. See City of Coimcil Bluffs v. Waterman, (Iowa,) 53 N. W. Rep. 289, and RIGHTS OF PUBLIC OFFICIAL TO COMPENSATION. 65 / cases there cited. The council could not, even by repealing the ordinance and passing a new one, affect the compensation to be paid to plaintiff as city attorney during the 1 term for which he was elected. 5. It is said that tlie citj', having bad the / benefit of plaintiff's services, which were rendered under a verbal contract made I with its council to pay tlierefor a sum in ' excess of his salary as city attorney, is now estopped from pleading or relying upon the I ordinance which fixed his compensation. In support of this claim a large number of cases are cited. They are either cases which i concerned private corporations, and parties contracting witli them in good faith, where I the corporation has bad the full benefit aris- ing from the performance of the contract, and sought to avoid it, or cases where mu- nicipal corporations have conti-acted with strangers for gas, grading, or other proper public improvements, and received all the benefit flowing therefrom. Surely, sucb cases are not authority for holdmg that a city, after fixing the salary of its officer in a legal manner, may enter into an arrange- ment with him whereby he may obtiiin ad- ditional compensation for services embraced within the duties of his office. Such a con- tract is against public policy, and void. Van- dercook v. Williams, 106 Ind. 345, 1 N. E. Rep. 619, and S N. E. Rep. 113. 6. When plaintiff made the verbal contract I with the defendant, vmder which he seeks ' to recover in this action, he knew, or was I bound to know, that the services he would ' be called upon to render thereunder were I included in his duties as city attorney, and I that the salaiy of said office was fixed by ordinance at $100 per year. No rule is better established than that "a person ac- cepting a public office, with a fixed salary, is bound to perform the duties of the office for the salary." 1 DiU. Mun. Corp. § 233, and note; Fawcett v. Woodbury Co., 5.3 Iowa, 154, 7 N. W. Rep. 483; Purdy v. City of Independence, 75 Iowa, 358, 39 N. W. Rep. 641; City of CoimcU Bluffs v. Watennan, (Iowa,) 53 N. W. Rep. 289; Bayba v. Web- ABB.C0RP.-5 ster Co., 18 Neb. 131, 24 N. W. Rep. 457; State V. Silver, 9 Neb. 88, 2 N. W. Rep. 215; Evans v. City of Trenton, 24 N. J. Law, 764; Com. v. Holmes, 25 Grat. 771; Turpen V. Board, 7 Ind. 172; Territory v. Carson, 7 Mont. 417, 16 Pac. Rep. 572; Ilays v. City of Oil City, (Pa. Sup.) 11 Atl. Rep. 63; 19 Amer. & Eng. Enc. Law, p. 529. And a promise to pay a city attorney "an extra fee or sum beyond that fixed by law is not binding, although he rendere services, and exercises a degree of diligence greater than could legally have been required of him." 1 Dill. Mun. Corp. § 234; Carroll v. City of St Louis, 12 Mo. 444; City of Detroit v. Whitte- more, 27 Mich. 281; 19 Amer. & Eng. Enc. Law, pp. 529, 530; Hays v. City of OH City, (Pa, Sup.) 11 Atl. Rep. 63; Territory v. Car- son, 7 Mont. 417, 16 Pac. Rep. 572. And it has often been held that a pajment to a pubUc officer of a sum in excess of that fixed by law for his compensation is tmau- thorized and void. Adams Co. v. Himter, 78 Iowa, 328, 43 N. W. Rep. 208; Fawcett V. Woodbury Co., 55 Iowa, 154, 7 N. W. Rep. 483; Fawcett v. Eberly, 58 Iowa, 544, 12 N. W. Rep. 580; Griffin v. County of Clay, 63 Iowa, 413, 19 N. W. Rep. 327; City of CouncU Bluffs v. Waterman, (Iowa,) 53 N. W. Rep. 289. As is well said by Judge Dil- lon in his excellent worlc on Municipal Cor- porations, (volume 1, § 233:) "To allow chan- ges and additions in the duties prop- erly belonging, or which may properly be attached, to an office, to lay the foimdation for extra compensation, would soon intro- duce intolerable mischief, lue rule, too, shoidd be very rigidly enfoi'ced. The stat- utes of the legislature and the ordinances of our municipal coi^porations seldom pre- scribe with much detaU and particidarity the duties annexed to public offices, and it requires but little ingenuity to run nice dis- tuictions between what duties may, and what may not, be considei'ed strictly official; and, if these distinctions are much favored by com-ts of justice, it may lead to great abuse." The demmrer was properly sus- tained, and the judgment below is a ffir med. 66 OFFICERS AND AGENTS OF PUBLIC CORPORATIONS. SPEED V. COMMON COUNCIL OF CITY OF DETROIT et al. (58 N. W. 638, 100 Mich. 92.) Supreme Court of Michigan. April 10, 1894. Certiorari to circuit court, Wayne county; Geori^e S. Hosmer, Judge. Mandamus, on the relation of John J. Speed, a.i;ainst the common council and comptroller of the city of Detroit, to compel the payment of relator's salary. From an order granting the writ, respondents bring certiorari. Affirmed. Atkinson & Haigh (Philip T. Van Zile, of counsel), for appellants. John D. Conely and Hoyt Post, for appellee. / PER CURIAM. This is certiorari to re- view an order of the circuit com't directing the payment of relator's salary, under Act No. 419 of the Local Acts of 1893. Four questions are raised: 1. Is mandamus the proper remedy? This point is ruled by McBride v. Grand Rapids, 47 Mich. 236, 10 N. W. 353. 2. The answer sets up that the general fund out of which salaries are usually pay- able is overdrawn, in the sum of $6,000. It appears, however, that the amount of uncol- lected taxes is $21,000, and that the common council had already authorized a loan. There is no doubt of the power of the coun- cil to borrow money in anticipation of the collection of the taxes levied. It further ap- pears that the act creating the department went into effect June 1, 1893, after the an- nual budget had been determined upon, and that the salary fixed by the act was not anticipated in that budget. The expense, therefore, must be regarded as contingent, and, under the charter, payable out of the contingent fund, which is shown to be am- ply sufficient. 3. It is contended that the legislature has no authority to fix the salaries of city of- ficers. The constitution (section 38, art. 4) provides that the legislatiu-e may confer up- on cities such powers of local legislative and administrative character as they may deem proper. The legislature has not, in this in- stance delegated to the municipality the power to fix the salary in question. The point is, we think, ruled by Wyandotte v. Drennan, 46 Mich. 478, 9 N. W. 500. 4. When the act took effect, relator wa. the then city counselor, under a former ap- pointment. He was reappointed July 15, 1893, and for the months of June and July was paid at the rate fixed b^' the act. Re- spondents contend that, for this period, re- lator was entitled only to the salary as fixed under the former appointment. The act is supplemental, and does not disturb existing officers, but, on the contrary, constructs the department with material then on hand; and the provision respecting salary relates as well to the city counselor acting before the act took effect as to the city counselor subsequently appointed. The order Is there- fore affirmed, with costs to relator. INCREASE OR DECREASE OF PAY DURING TERM OF OFFICE. 67 BUCK V. CITY OF EUREIvA. (No. 15,733.) (42 Pac. 243, 109 Cal. 504.) Supreme Court of California. Oct. 10, 1895. In bank. Appeal from superior court, Hum- boldt couuty; G. W. Hunter, Judge. Action by S. M. Buck against tlie city of Eureka for professional services. From a judg- ment for plaintiff, and from an order denying a new ti-ial, defendant appeals. Reversed. J. N. Gillett and E. W. Wilson, for appellant. Buck & Cutler, for respondent. HENSHAW, J.i * * * * * The office under consideration was given a potential existence by the acts of the legis- lature in the sections of the Code above quot- -ed. The Tilaiutiff, having accepted the ap- pointment to it, and received the emoluments of it, is estopped from endeavoring to show to his own advantage that the council did not follow a prescribed mode in perfecting that potential existence. It was therefore error for the trial court to strike out the admitted evi- dence. It does not seem to be disputed that, if plaintiff's services in the case of Wing Hing V. City of Eureka were such as under his office he was in duty Iwund to perform, his contract with the council would be void as an attemi)t to increase his comiiensation; and, in- deed, no question can arise upon this point. It is definitively settled by the language of the constitution, in the first place (Const, art. 11, § 9); and in the second place, even in the absence of such a provision, such a contract would be declared void upon grounds of pub- lic policy. "It is a well-settled rule that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary be a very Inadequate remuneration for the services. * * * Whenever he considers the compensa- tion inadc(iuate, he is at liberty to resign. The rule is of importance to the public. To allow changes and additions in the duties properly belonging or which may be attached to an office to lay the foundation for extra compen- Bation would introduce intolerable mischief. The rule, too, should be strictly enforced." Dill. Mun. Corp. (4th Ed.) § 233; Mechem, Pub. Off. §§ 324-37G. The contention here is, however, that these services were not among those whose i)er- formance is enjoined on the city attorney, and herein plaintiff relies upon the case of Her- rington v. Santa CLara Co., 44 Cal. 49G. As the law then stood, the district attorney was entitled to receive as compensation 10 per cent, of all money recovered by him for the county in any action. The county supervisors, ignoring the district attorney, authodzed other attorneys to bring suit without tlie county for the recovery of a large sum of money. Re- 1 Part of the opinion is omitted. covery was had in the action, and the district attorney sued to recover his percentage. The law made it the duty of the district attorney to prosecute all actions for the recovery of debts, etc., and to defend all suits brought against his county. Pol. Code, § 42."5G. The district attorney was not denying that it was his duty to prosecute this suit, but, to the con- trary, insisted that it was his duty. The de- fendant county never claimed that it was not the district attorney's duty to prosecute the suit, but insisted that the duty was not ex- clusively imposed upon and tlie right not ex- clusively vested in him, but that the super- visors could, if they saw fit, engage other counsel to perform the seiTice, as in many cases special counsel are employed. The lan- guage of the court in its opinion, therefore, while not obiter, was not addressed to any contention raised by the parties. The decision of the court was by a bare majority; Chief Justice Wallace being disqualified, and Jus- tice Rhodes expressing no opinion. It was based upon two grounds; the second, which is argued at length, holding that, as the dis- trict attorney had not collected the money, he was not entitled to his commission; and the first, which is not argued, being a declaration to the effect that it was "not a duty enjoined upon the district attorney by law to prosecute or defend civil actions in which the county is interested which are pending in any other county than his own." This declaration is, however, supported by no reasoning, by no analysis of the statute, and by no citation of authority; and it would be difficult so to sup- port it Says Dillon: "Tlie statutes of the legislature and the ordinances of our municipal corporations seldom prescribe with much de- tail and particularity the duties annexed to public offices; and it requires but little in- genuity to ran nice distinctions between what duties may and what may not be considered strictly official; and, if these distinctions are much favored by courts of justice, it may lead to great abuse," Dill, Mun. Corp. (4th Ed.) §233. When the law of the state says that the district attorney shall prosecute and defend all suits, and the city attorney shall attend to "all suits, matters and things in which the city may be legally interested" it is a most forced and unwarranted construction to hold that in the one case it means only such suits as are commenced and finally determined in the county courts, and in the other only such as are in like manner commenced and deter- mined in the municipal courts. If the legis- lature meant that, it could and would have said so. But when it says "all suits, matters and things," the language will bear no other construction than that which is patent on its face. No rules of interpretation are necessary to be considered, for no need or room for in- terpretation exists. Thus, the court, in Ryce V. City of Osage (Iowa) 5.5 N. W. 532. said the law made it the duty of the city attorney "to act as attorney for the city in any suit or ac- 68 OFFICERS AND AGENTS OP PUBLIC CORPORATIONS. tion brought by or against the city, and gen- erally to attend to the interests of the city as its attorney." There, as here, plaintiff claim- ed extra eompeusation for services rendered under contract with the council for defending an action against the city in the district and supreme court, and there, as here, urged that it was no part of his official duty to defend the suit. Says the court: "It seems to us that a mere reading of that section of the ordinance prescribing the duties of the city attorney is sufficient to show that under it he was re- quired to act for the city in any case brought by or against it, * * * That the services rendered by plaintiff, and for which he seeks now to recover, were included within his du- ties as city attorney, is too plain to admit of argument." In Lancaster Co. v. Fulton, 128 Pa. St. 48, 18 Atl. 3S4, construing a similar statute, say the court: "The services for which the contract in question undertakes to provide are clearly within the sphere of the duties of the solicitor of I/incaster county." Russell V. Hallett, 23 Kan. 276, is not in con- flict with the authorities upon this question. In that case the county attorney sued his coun- ty for compensation for services demanded of him without the duties of his office, as the court decided. He had been compelled to as- sist in a ti-ial in a county other than his own. Tlie law expressly limited his duty to attend- ing before magistrates and judges in his coun- ty. Gen. St. Kan. 18C8, p. 284, § 137. But it is unnecessary to multiply quotations upon this plain proposition. We think it must be apparent that the construction given to the statute in Herrington v. Santa Clara Co., su- pia, cannot be supported, and should no longer be maintained; and we believe that the evil results to the public service which must arise under that construction justify and demand a declaration from this court tliat it be no longer considered as authority. It is of the last im- portance that any and every public officer en- tering upon the discharge of his duties should know once and for all that, be the duties oner- ous or be they easy, the compensation for them must be that fixed by law, and that only. If they become too burdensome, the law does not f()r])i(l the officer's resignation; but it does emphaticaUy say that he shall not under any circumstances, by use of tlie power of his of- fice, by contract, exi)ress or implied, fair or unfair, or by aid even of legislative enactment, obtain increased compensation for their per- formance. "The successful effort to obtain oflHce is not unfrequently followed by efforts to increase its emoluments; while the inces- sant changes which the progressive spirit of the times is introducing effects, almost every year, changes in the cliaracter and addition to the amount of duty in almost every official Station; and to allow the changes and addi- tions to lay the foundation of claims for exti-a services would soon introduce intolerable mis- i.-hief." Evans v. City of l^euton, 24 N. J. Law, 7G4. The services here performed by the plaintiff being such as it was his duty to perform as the city attorney of the city of Eureka, the contract was an attempt to increase his com- pensation, and is in violation of the constitu- tion, against public policy, and therefore void, ( "A promise to pay them [officers] extra com- pensation is absolutely void, imder the statute of Ohio. Such promise could not be enforced at common law, being against sound policy and quasi extortion. English judges have de- clared that such are novel in comts of justice, and that actions founded on such promises are scandalous and shameful (2 Burrows, 934); and in the court of errors of New York they meet with no more favor (Hatch v. Mann, 15- Wend. 4G)." Gillmore v. Lewis, 12 Ohio St. 281; Vandercook v. Williams, 106 Ind. 345, 1 N. E. 619, and 8 N. E. 113; City of Decatur V. Vermillion, 77 lU. 315; Hunter v. Nolf, 71 Pa. St. 2S2. Nor can plaintiff recover under the contract, as by his second count he seeks to do, for such part of the sei"viccs as was rendered after his term of office had expired. This is not the/ case of a city attorney carrying on litigation,^ after his term of office had expired, with the knowledge and consent of the authorities, iu which case an implied contract and promise to pay might arise after his tenure had teiTuinat- ed. Here plaintiff declares on and seeks ta recover under a contract against public policy and wholly void. Such a contract will not sup- port any action for recovery. As is said by the court in Lancaster Co. v. Fulton, 128 Pa. St. 48, 18 Atl. 384: "There is no pretense that any new agreement was entered into, or the terms of the original in any manner changed, after the expiration of the term of office. Nei- ther the subject of a new contract nor the modification of the original ever appears to have been considered by the parties. The sei-vices of plaintiff below were, no doubt, efficient and valuable; but, as far as they were rendered during his term of office, his sal- ai-y is all the compensation he can claim. As to services rendered after the expiration of his term of office, under and in pursuance of the original illegal and void contract, he cannot, under the pleadings and evidence in this case, recover." A void contract cannot form the basis of a judicial proceeding. Lumber Co. V. Hayes, 76 Cal. 387, 18 Pac. 391. There are considerations in plaintiff's case which appeal with force to a court. In the first place, the services rendered, as found by judge and jury, were of great value to de- fendant. In the second place, they were ren- dered under an early interpretation given to the statute, which justified plauitiff in suing upon his contmct. In now declaring what we believe to be the only tenable construction of tlie law relative to the duties of the office, it has followed as a necossai-y consequence that the contract, void as against public policy, will not support a cause of action. Plaintiff, how- ever, if the facts will warrant it, should re- cover, not upon the oi-iginal or void contract, but upon an implied one for services rendered INCREASE OR DECREASE OF PAY DURING TERM OF OFFICE. 69 / after the expiration of his term of office. The judgment and order are reversed, with direc- tions to the trial court to permit plaintiff, if he shall be so advised, to amend his com- plaint, or file an amended complaint, seeking ^compensation upon quajitum mermt for serv- ices rendered after the expiration of his term of office. We concur: BEATTY, O. J.; McFAR- LAND, J.; GAROUTTE, J.; VAN FLEET, J.; HARRISON, J.; TEMPLE, J. 70 OFFICERS AND AGENTS OF PUBLIC CORPORATIONS. CITY OF LOUISVILLE v. WILSON. SAME V. NEVIN. SAME v. HOERTZ. SAME V. MARTIN. SAME v. O'CONNELL. (36 S. W. 944.) Court of Appeals of Kentucky. June 24, 1896. Appeal from circuit court, Jefferson county. "To be officially reported." Cases submitted without action by Charles A^ Wilson, by Joseph Nevin, by J. Henry Hoertz, by J. P. Martin, and by J. J. O'Connell, against the city of Louisville. There were judgments for the plaintiffs, and defendant appeals. Affirmed. W. S. Barker, Fairleigh & Straus, and John W. Barr, Jr., for appellant Dodd & Dodd, Humphrey & Davie, CarroU & Hagan, and D. W. Baird, for appellees. LEWIS, J. It is agreed, in these five cases, submitted and decided without action, as fol- lows: Appellees Wilson and Nevin were ap- pointed by the mayor, for the term of four years, December 14, 1893, confirmed by the board of aldermen of Louisville, and imme- diately qualified as members, respectively,' of the board of public safety and board of pub- lic works. January 9, 1894, by ordinance of the general council, the salary of each mem- ber of the two boards was fixed at $3,000 per annum. By ordinance approved January 2G, 1894, it was provided there should be one sec- retaiy of the board of public woi'ks, his com- I>ensation being fixed at $2,000 per annum; and January 31, 189<3, appellee Hoertz waa by the board of public works appointed sec- retary for the term of fom* yeai"s. By ordi- nance approved May 21, 1894, it was provided the compensation of deputies of the police count should be $1,500 each, payable monthly; and in January, 1895, appellee J. J. O'Con- nell was by J. N. Vetter, bailiff of said court, appointed one of his assistants or deputies. January 9, 1894, by ordinance the compensa- tion of official stenographer of the city court was fixed at $1,000 per annum; and February 24, 1894, appellee John P. Martin was by the judge of the court appointed to the office. December 26, 1895, the general council, com- I)oeeB of newly -elected members, passed an or- dinance, duly approved by the mayor, chan- ging salaries of members of the boards of public safety and public works to $2,500 each, per annum, that of secretary of board of pub- Dc works to $1,200 per annum, that of deputy bailiff to $1,200 per annum, and that of offi- cial stenographer to $900 per annum. The main question in this case is whether the ordinance of December, 1895, violates sec- tion 161 of the constitution, as follows: "The compensation of any city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office, nor shall the term of any such office be extended beyond the period for which he may have been elected or appDiiitcd." And proper determination of it involves Inquiry whether the various ordinances referred to which first fixed the compensation of these officers were valid and effectual /"or that put^ pose. If any of them be invalid at all, it is only because they were passed after the offi- cers affected by them had qualified and com- menced discharge of their duties; for all ap- pear to have been regularly passed and ap- proved, under authority conferred by section 2756, St. Ky., applicable to Louisville, a city of the first class, as follows: "Except as oth- erwise herein provided the general council may by ordinance prescribe the duties, defln© the terms of office, fijc the compensation and the bonds, and time of election of all officers and agents of the city." But as none of those ordinances, except the particular one fixing salaries of members of the board of public health and of the board of public works, were passed subsequent to appointment and qualifi- cation of the several officers mentioned, there is no reason for calling in question the validi- ty of any, except it may be that one. The purixkse of section 161 was to prevent as well reduction of compensation of officers, sometimes the result of prejudice and false economy, as increase of it, sometimes brought about by importunity and under influence on their part. So there cannot be any change I at all of an officer's compensation during his / term. But there is an essential difference, \ which we are satisfied the framers of the con- stitution had in mind, between fixing the amount of compensation an officer shall re- ceive, not hitherto ascertained and settled, and changing it after it has been fixed. It is ' the obvious and uniform policy of government, i state and municipal, as well as just to each I officer, to fix his compensation definitely and certainly as to amount, except when he is I paid by fees of office. And section 161 does not in terms, nor was it intended to, forbid cr at all relate to any statute or ordinance that for the first time does fix the salary of an officer. But it is equally necessary, for protection of both the government and officer, that his salary, when once fixed, should not be changed during his term; and for no other purpose than to prevent that evil was section 161 made part of the constitution. v It is, however, contended, that section 2824^ and section 2861 had the effect to fix and se- cure to members, respectively, of the board of public safety and board of public works a defi- nite amount of compensation; the two sec- tions being alike, and as follows: "Each member shall receive a salary of not less than twenty-five hundred dollars." But it is plain l the legislature did not intend thereby any more than to prescribe a minimum of the | compensation which the general council had keen by section 2756 already empowered to definitely and authoritatively fix. And it is to us equally plain that, until the ordinance •f January 9, 1894, was passed and approved, the members of the two boards did not have legal right to demand, nor the city treasurer legal authority to pay, them any compensa- INCREASE OR DECREASE OF PAY DURING TERM OF OFFICE. 71 \' tion whatever. In our opinion the last-named ordinance is valid, and consequently the one cf December 2G, 1895, must be held invalid. There can be no question of appellees Wil- son and Nevin being officers, in the meaning of section 161, and the remaining inquiry is whether the other appellees are. There axe various tests by which to determine who are officers, in the meaning of the law; but at last, in case of uncertainty, the intention of the lawmakers controls. To constitute an ofti- cer, it does not seem to be material whether his term be for a period fixed by law, or en- dure at the will of the creating power. But, if an individual be invested with some portion of the function of the government, to be exercis- ed for the benefit of the public, he is a public officer. Mechem, Pub. Off. § 1. The board of public works is by statute vested, conjoint- ly with the mayor, with executive power, and, as its name indicates, has control and super- vision of public places and public improve- ments, with authority to make contracts in regard thereto. By section 2803 it has power to prescribe rules, not inconsistent with any statute or ordinance, regulating its own pro- ceedings and the conduct of its officers, clerks, and employes, distribution and performance of its bvisiness, and preservation of the books, records, papers, and property under its con- trol; and, while it does not appear, from the agreed statement of facts, what particular du- ties are assigned to the secretary of the t)oard, it is manifest he was intended to be and is more than a mere employe; for he is required to execute a bond for proper discharge of his duties, and, being next in authority to mem- bers of the board, is the proper person to keep the required journal of its proceedings, and preserve books, papers, and records affecting the public. In our opinion, he should be held an officer, in the meaning of section 161. As to appellee O'Connell, performing, as assistant bailiff, the duties of a peace officer, and hav- ing authority to serve process and make ar- rests, there can be no question of his being an officer. Besides, the statute expressly pro- vides for appointment of assistant bailiff, as it does for the appointment of official stenog- rapher, whose official acts have, in degree, the same verity and force as do those of the clerk of the police court. We think appellees are all officers, in the meaning of section 161. Judgment affirmed. GUFFYi and DU RELLE, JJ., dissent. * * * * * * * 1 Dissenting opinion is omitted. 72 OFFICERS AND AGENTS OF PUBLIC CORPORATIONS. OLDHAM V. MAYOR, ETC., OF BIRMING- HAM. (14 South. 793, 102 Ala. 357.) Supreme Court of Alabama. Feb. 8, 1894. Appeal from city court of Birmingham; H. A. Sharpe, Judjre. Action by John S. Oldham against the mayor and aldermen of the city of Birming- ham to recover salary alleged to be due plain- tiff as sergeant of police <^ such city. From a judgment for defendant, plaintiff appeals. Affirmed. Cabaniss & Weakley, for appellant. H. C. Selheimer, for appellee. HARALSON, J. This is an action of as- sumpsit by John S. Oldham, the appellant, against the mayor and aldermen of Birming- ham, a municipal corporation, to recover the salary claimed by him as attaching to the office of sergeant of police for said city, which accrued to him from and after the 21st of June, 1893, and which was payable, as alleged, semimonthly. The facts in the ca.se are undisputed. It was tried on an agreed statement, subject to legal objections. The trial was by the court, without the in- tervention of a jury, and the judgment be- ing for the defendant, on exception reserved to the conclusion and judgment of the court, an appeal is here prosecuted to reverse that judgment. The legislatm-e, at its session of 1890-91, established a new charter for the city of Birmingham. Acts 1890-91, p. 114. Under this charter, the corporate powers of the city were vested in, and to be exer- cised by, a mayor and 10 aldermen, who constituted the governing body, called the "Board of ISIayor and Aldermen," to be elect- ed by the people on the first Tuesday in De- cember, biennially. Prior to 1893, this board had power and control over the police force of the city. On December 12, 1892, the act of the legislature, entitled "An act to es- tablish a board of commissioners of police for the city of Birmingliam, Alabama," was approved, by which act, it was made the duty of this board to appoint such police officers and policemen as were or might be proscribed by the city ordinance. On the 12th March, 189.3, the police commissioners, having been duly appointed, and qualified under said act, and i)rocecding thereunder, elected the police force for said city, con- sisting of a chief of police, a night captain, a day and night sergeant and 2G patrolmen, the day sergeant so elected being the plain- tiff, .John S. Oldham. These were the police officers and policemen at that time authorized by city ordinance. The board of mayor and aldermen of the city denied the right of said commissioners to elect a police force, and in- sisted that the then incumbents of police offices had the right to serve during the whole of 1893, (having theretofore been ap- pointed by the city for the year,) and re- fused to recognize the rights of the ap- pointees of the police commission, (including the plaintiff;) and the then incumbent of the office refused to vacate and yield it to plain- tiff. Other appointees were in a like cate- gory. Litigation ensued between the ap- pointees and the city, which was finally, on the 20th Jime, 1893, decided against the city, in the case of Fox v. McDonald, 13 South. 416, in this court. On the 21st of June, 1893, the board of mayor and aldermen adopted the following ordinance: "Be it ordained by the maj^or and aldermen of Birmingham, that the offices of day and night sergeants are hereby abolished; that until the 1st day of January, 1894, the police department shall consist of one chief, one night captain, and twenty-six patrolmen." The plaintiff re- ported for duty to the chief of police, at 12 o'clock on the night of the 21st of Jime, 1893, who informed him of the passage of said ordinance, to abolish said office, adopted that night, and told him to await fm'ther action until they could, on the following day, con- sult their counsel, and until he could see the police commissioners; that on the following day,— June 22, 1893,— they conferred with their counsel and the police commissioners, and plaintiff went on duty at 6 o'clock a. m., June 23, 1893, and has since been performing his diities as day sergeant,— all of which was done under the direction of the chief of po- lice. There was no dispute as to the time plaintiff served, or the value of the compen- sation, or as to his having made proper ap- plication to the mayor and aldermen to have his name put in the pay roll of the city, or to his having demanded, before suit brought, what he alleged to be due him. The city au- thorities refused to recognize him as one of the city police force, denied that they owed him anything, and refused to pay him. The I sole question for review, as presented by plaintiff's counsel is, "Did the mayor and al- ' dermen of Birmingham have the power, on j June 21, 1893, to abolish the office of police , sergeant held by plaintiff, and thereby de- I prive him of his salaiT during his term, or i can the ordinance of that date be accorded ' the effect of taking away said salary?" 1. Mr. Dillon states the rule to be, that \ "a municipal corporation may, unless re- strained by charter, abolish an office created by ordmance, and may also, unless the em- ployment is in the nature of a contract, re- duce or otherwise regubite the salaries and fees of its officers, according to its views of expediency and right." (Italics his.) 1 Dill. Muu. Corp. §§ 231, 232; 19 Am. & Eng. Enc. Law, 52G, 555. 2. It seems to be well settled, generally, that the power to create an office includes the power to destroy or abolish it, and that, whenever the people in convention or through the legislature, clothe any department of the government, or any of its boards, or officers, or municipalities with power, at discretion, to create an office, they clothe the body thus INCREASE OR DECREASE OF PAY DURING TERM OF OFFICE. ( authorized, in the absence of a declaration of purpose to the contrary, with like power to abolish the same ofRce. Beuford v. Gibson, 15 Ala. 523; Ex parte ScreAvs, 49 Ala. G.">; Ex parte Lusk, 82 Ala. 522, 2 South. 140; People V. Jewett, 6 Cal. 691; Attorney Gen- eral V. Squires, 14 Cal. 13; Ford v. Commis- sioners, 81 Cal. 19, 22 Pac. 278; Phillips v. Mayor, 88 N. Y. 245; State v. Kalb, 50 Wis. 178, 6 N. W. 557; State v. Smith, 65 N. C. 360; 19 Am. & Kng. Enc. Law, 526, 555, and authorities cited in notes. 3. There is in this state no constitutional Inhibition to the abolition of offices created by statute, nor any protection extended to salaries attaching to such offices. Protec- tion is extended only to such otiicers as are named in the constitution, whose offices can- not be abolished, and whose compensation is forbidden to be diminished during their offi- cial terms. Perkins v. Corbin, 45 Ala. 119; Ex parte Lambert, 52 Ala. 79. 4. The election of one to a municipal office, I and his acceptance of it, cannot be regarded as an engasement or contract between the corporation and himself. He may resign at pleasure, and so, his office may be abolished, I or his compensation reduced, or taken away altogether. He accepts the trust, with full knowledge of the power of the legislat^ire or \ the municipality over the office and its emol- uments. University v. Walden, 15 Ala. 657; Com. V. Bacon, 6 Serg. & R. 322; Throop, Pub. Off. §§ 443, 444, 446, 447. z' 5. If anything were needed, in addition to ' the clear and repeated utterances of this coiu-t, on this subject, in the cases we have cited, the supreme court of the United States has given expression to language, by Justice Daniel, so applicable to this case, we ven- ture to quote it: "The contracts," says the court, "designed to be protected by the tenth section of the first article of that instru- ment, are contracts by which perfect rights, certain definite, fixed private rights of prop- erty are vested. These are clearly distin- guishable from measiires or engageiuents adopted or undertaken by the body politic or state government for the benefit of all, and from the necessity of the case, and accord- ing to universal imderstanding, to be varied or discontinued as the public good shall re- quire. The selection of officers, who are nothing more than agents for the effectuat- ing of such public purposes, is matter of public convenience or necessity, and so, too, are the periods for the appointment of such agents; but neither the one nor the other of these airangements can constitute any obli- gation to continue such agents, or to reap- point them, after the measures which brought them into being sliall have been abrogated as even detrimental to the well-being of the public. Tlie promised compensation for services performed and accepted during the continuance of the particular agency may undoubtedly be claimed, both upon princi- ples of compact and equity; but to insist utr V eii" have to I ment in^ ." Bu!^ beyond this on the perpetuation of a piiblic policy, either useless or detrimental, and up- on a reward for acts neither desired nor per- formed, would appear to be reconcilable with neither common justice nor common sense. The establishment of such a principle would arrest, necessarily, everything like progi-ess in government; or if changes should be ven- tured upon, the government would ha^ become one great pension establishment which to quarter a host of sinecures, ler V. Pennsylvania, 10 How. 416; U. S. v. Hartwell, 6 Wall. 385; U. S. v. Mitchell, 109 U. S. 146, 3 Sup. Ct. 151. 6. Let the foregoing principles be applied to the facts of this case, as we find them in the record. The charter of the city of Bir- mingham confers on the mayor and alder- men, the power to "appoint such officers as they may see fit and think necessary for the good government of the city, * * * and to remove aud discharge any of its ofiicers and employes at pleasure," (section IS.) and "to appoint and re.gulate night and day watchmen, police, patrol, and captains there- of, and to maintain a police force of such oificers and patrolmen as tliey may aeem necessary," (section 21, subd. 7.) Acts 1890- 91, p. 114. Section 14 of the Code of the citj'of Birmingham provides, that "the board, [mayor and aldermen] as soon as practicable after its organization, shall proceed to elect for the ensuing j'ear, the following officers: • * * A clerk, [and other designated offi- cers,] and such number of policemen as the board may see fit, to serve at the will of the board, for one year, or until their suc- cessors are elected and qualified." (Italics are ours.) Section 46 provides that "the offi- cers of the city, in addition to mayor and aldermen, shall, until changed by the board, be as follows, [specifying them,] and such number of policemen * * * as the board may determine, all of whom are to be elect- ed annually by the board, to serve at the will of the board, for one year, or until their suC' cessors are elected and qualified, beginning on the first of January of each and every year." On the 21st day of June, 180.3, the board of mayor and aldermen adopted the ordinance, which we have quoted above, abolishing the office of day and night ser^ gi-ant. The powers of the board of police commissioners are enumerated in sections 4 and 5 of the act creating them. These pow- ers are scant, and relate entirely to the con- trol of the police of the city. It is made their duty "to appoint a chief of police aud such other police officers and policemen as is or may be prescribed by city ordinance," and to "exercise full direction and control of the oflBcers and members of the police force in conformity to existing laws and or- dinances, and such as may be made, in the future, applicable to the subject." Section 4. ' Section 5 gives them power to suspend or remove any officer of the police force or any policeman who fails to perform any du- OFFICERS AND AGENTS OF PUBLIC CORPORATIONS. ty required of him by law or the city ordi- nances. 7. By these two sections, the power of the board of mayor and aldermen to make the appointment of these officers, as formerly exercised, was revolicd, and the power to suspend or remove them was also taken away. But, it will be observed, that the power to determine what officers and police- men are necessary for the good government of the city, and to cany out the powers granted in its charter, and the power to create and abolish officers, such as the mayor and aldermen theretofore had, was left un- touched and as plenary as before. 8. The police commission, as is seen from the act, are authorized to appoint "a chief of police and such other pohce officers and policemen as is or may be prescribed by city ordinance." They have nothing to do with bow large or how small the police force shall be,— whether it shall be, at any time, in- creased or diminished; have nothing to do with the creation or abolishing of offices, or with the amount of compensation the police officers shall receive, or with the finances of the city, or the city government,— nothing to do, except to overlook the police force and see that they do their duty. When it comes to suspending or removing one of them from office, even, for a failure to perform his du- ties, it must be done, not by ordinance of their creation, but in the manner, as shall be prescribed by city ordinance. No legisla- tive power, at all, is given to them, but it is all reserved for the mayor and aldermen. The salaries and compensations of these po- lice officers and policemen, as they were be- fore the creation of this police commission, are "to be prescribed by city ordinance, and shall not be increased or diminished during their respective terms." The only difference in the matter of compensation under the new and the old order is, that this latter act in- hibits the increase or decrease of the sala- ries during the terms for which these officers were appointed. As for anything in the act creating this board, the mayor and aldermen are still required, "to maintain a police force of such officers and patrolmen as they may deem necessary," and at such compensation as they may prescribe. 9. The contention of the plaintiff, as stated by his counsel is, that the legislature in- dicated its purpose in the police commission act to establish a new sj'stem of police for Birmingham with protection to salaries and against removal, except for cause after trial, and it is not competent for the mayor and aldermen, during the temi of a police ser- geant, to indirectly remove him from office or take away all salary, by resorting to the indirect method of abolishing the office. This claims more than is authorized to be pi-esumed, in respect to the action of the city government. We are to presume they did their duty, and acted, as they thought was for the good of the city in abolishing said office. The act inhibiting the diminu-\ tion of the salary of the police officers, is ' limited in its application to the tenn of the officer, and the inhibition, as to any partic- ular officer, exists only so long as his term of office continues. What then is meant by the word "term" as here employed? The act does not fix the term of office of police- men, or pohce officers, nor does the charter of the citj% nor any legislative act, do so; but it is wisely left to the governmental au- thority of the city to determine the number and to maintain such a police force "as it sees fit," (Charter, §§ 18, 21;) and the City Code (sections 14, 4G) fixes their terms to be, "at the will of the board [of mayor and alder- men,] or for one year, or until their succes- sors are elected and qualified." The term, then, continues only so long as the board of mayor and aldermen wills it shall continue, not longer than a year, if the board does not will to terminate it sooner, or until a succes- sor is elected and qualified. The provision in the police act against an increase or diminu- tion of salaries, can have no application to a case where an office of policeman has been abolished. If the olfice has been abolished, the incidental and necessaiy effect is, that the incumbent can no longer discharge its duties, for, there can be no officer, where , there is no oflice, and there can be no salary/ where there is neither office nor officer. -^ 10. The purpose of the legislature in pro- | viding against the removal of policemen by ' the board of police commissioners, except , for cause after due trial, and in a manner to be prescribed by city ordinance, was to pre- vent injustice and the exercise of an ex j parte, arbitrary and capricious power, to the injury, perhaps, of a faithful officer, j and to give him, at least, an opportunity of f having a fair ti*ial, before removal. But, this \ has no application to the exercise of the power by the city, to create and abolish of- ' fices. The judge of one of our city courts ) cannot be removed for cause, without im- peachment after trial, but that does not pre- i vent the legislatirre from abolishing the court, / and thereby depriving the judge of his office and salary. Perkins v. Corbin, supra. Of- fices are abolished, it may be presumed, with- out reference to the incumbents or their con- duct,— though that might, properly, be a con- sideration,— but because they are no longer necessaiy. Such statutory offices are not to be retained for the benefit of those who fill , them, but alone for the public good. Phil- lips V. Mayor, supra. 11. A careful consideration of the act creat- ing the police board brings us to the conclu- sion, that there is nothing in it, in conflict with the power of the mayor and aldermen to create and abolish these police offices. There was no intention of the legislature to substitute the police commission act for the charter of the city in any of its provisions, re- specting the government of the city, except in the particulars pointed out above, to INCREASE OR DECREASE OF PAY DURING TERM OF OFFICE. 75 which extent alone, the former is a revision and repeal of the latter, leaving no room for any repeal bv implication as contended by appellant. Whore there is no conflict or in- consistency between two acts, and both may be executed without interference with the other, the question of repeal by implication cannot arise. 3 Brick. Dig. p. 750, § 49; Iverson v. State, 52 Ala. 170. Affirmed. 76 POWERS OF PUBLIC CORPORATIONS. •GUNNING GRAVEL CO. v. CITY OF NEW ORLEANS. (No. 11,252.) (13 South. 182, 45 La. Ann. 911.) Supreme Court of Louisiana. April 10, 1893. Appeal from civil district coui-t, parish of Orleans; Frederick D. King, Judge. Suit by the Gvmning Gravel Company against the city of New Orleans. Jud.i;inent for defendant. Plaintiff appeals. Affinued. E. M. Hudson and Gilmore & Ba]d\^-in, for appelLmt. E. A. O'Sullivau, for appellee. Farrar, Jonas & Kruttschnitt, as amici ■cui-iae. McENERY, J. Under specifications sub- mitted to it by the city engineer, the city councU of New Orleans, by ordinance, di- rected the comptroller to advertise for sealed proposals for the paving of the wood side of St. Charles street from its intersec- tion with Louisiana avenue to the terminus of the present pavement, on the river side of St. Charles avenue, with Rosetta or Hos- kins gravel. On the 26th day of October, 1892, the comptroller advertised for sealed proposals, as directed by the city councU, to be received at his office untU the liour of 12 :M. on Wednesday, November 2, 1892. The advertisement required a deposit of $50, and a certificate of said deposit to accom- pany each bid. On the day, November 2, 1892, before the hour of 12 M.,— the limit when said sealed proposals were to be re- ceived,— the plaintiff, a foreign corporation, domiciled in the city of Vicksburg, state of Mississippi, o^Tier of beds of gravel in said state, having previously made the deposit of $50, presented and filed a sealed bid for paving said St. Charles street in accordance with the advertisement. The Rosetta and Hoskins Gravel Companies also presented bids. The plaintiff's bid was the lowest, but was rejected by the city coimcil, and the bid of the Rosetta Gravel Company accept- ed. There was no answer filed by the city on the rule to show cause why an injunction should not issue, and there is no evidence in the record, other than that of the exist- ence of the plaintiff corporation, the bid, and the acts of the council and the comptrol- ler. There was judgment for the city, and the plaintiff corporation appealed. We are therefore compelled to decide this case main- ly upon the facts alleged by plaintiff, and the official acts of the city government. We infer from the petition that the Ro- Betta, Hoskins, and Gunning gravel are about of the same quality, and that the names given to the gravel are more to dis- tinguish the several companies than to des- ignate any particular superiority of the gravel. They are not patent processes, ex- clusively controlled by the owners of the patent, which would exclude competition. They are natural deposits, and there is noth- ing in the record to show that the bidding was intended to be confined to the two com- panies designated in the resolution of the city council and the comptroller's advertise- ment. The council had the undoubted right to say with what material the streets should be paved. It selected the Rosetta or Hos- kins gravel, but did not say that the com- panics o-miing the gi-avel should be awarded the contract. OUier pei-sons could have bid to do the paving with this material, and there is no evidence to show that it could not be procured by the bidder from the companies owning the material. The city charter requires that the furnishing of ma- terial for public works shall be given to the lowest bidder, but there is a proviso that the coimcil may reject any and all bids. This proviso in the charter was to obtain the work and material at the least possible cost to the taxpayer, after competition; and the proviso was intended for the same pub- lic interest and economy, to protect the tax- payer from imposition, and, while inviting competition, to secure good material and re- sponsible contra ctoi-s. While the city council would not be justified, and the courts would intervene to protect the taxpaj'er in such event, to arbitrarily reject a bid, and thus defeat the object to be attained by compe- tition, it is vested with a certain discretion in rejecting bids, which will not be con- trolled, when exercised with prudence in the pubUc interests. In rejecting plaintiff's bid, we are of the opinion that the city coimcil acted with prudence, and in the in- terest of the taxpayer, to get material which had met with the approval of the taxpayers, and to dbtain a responsible contractor. We presume from the circumstances of the case, and the absence of complaint by the taxpay- ers of New Orleans, although there is no direct proof of the fact, that the two rival companies — the Rosetta and the Hoskins— were well-known contractors and dealers in gravel in the city. The plaintiff is a foreign corporation, and put in an appearance on the last day on which bids were to be re- ceived. There is no evidence that it had sho^^•n that the gravel o'mied by it was equal or superior to that of the Rosetta Gravel Company, or that it had given any evidence of its ability to do the paving with skill, and to respond in damages for inferior work. The statements to this effect are ex parte, and its ability to do the work skiUfuUy, and to respond in damages, is speculative. Judgment affirmed. On Rehearing. (May 27, 1893.) NICHOLLS, C. J. It would appear from an inspection of plaintiff's petition that it con- tains two distinct demands, presented in tlie alternative. On averments by it deemed suf- ficient to carrj' with them the nullity of the ordinances authorizing the paving of St. Charles avenue, and everything done there- under, plaintiff prayetl that those ordinances, and all said proceedings, be decreed null and DISCRETIONARY POWERS NOT SUBJECT TO JUDICIAL CONTROL. void; but, anticipating a possible adverse decision upon this demand, it sat out allega- tions of a different chamctcr, and prayed lliat, in the event the ordinances be held valid, then in that event the contract un- der the ordinance be awarded to it. In re- fusing plaintiff's accompanying prayer for an injunction the district judge assigned no special reasons, and we are left in doubt as to the grounds upon which he based his ac- tion. The opinion which we have rendered in the case shows on its face that we passed by, almost unnoticed, the firet branch of the petition, and went directly to the considera- tion of the second. It was perfectly obvious to us that quoad the action for the declara- tion of the nullity of the ordinances the plaintiff had no standing in court. The plaintiff described itself as a corporation organized under the laws of Mississippi, and having its domicile at Vicksburg. It did not aver it was doing business in this state, that it had any agent here, that it had any prop- erty in New Orleans, or that it paid a dollar of taxes there; and it is quite likely that the judge of division B, finding no allegation tending to show any legal interest in the plaintiff, such as to authorize it to invoke the nullity yt the ordinance in question, re- fused the injunction for that reason. "When this court reached (as it did reach) itself that conclusion, the effect of its doing so was, of course, to defeat that portion of plaintiff's demand, independently of any question of the suthciency. otherwise, of plaintiff's alle- gations as to the nullity of the ordinances. As throwing the plaintiff out of court on the score of want of legal interest in the ques- tion would leave still in court its allegations that the ordinances were null, the logical re- sult, in view of that fact, would have au- thorized us, under the pleadings, to entirely do away with a discussion of the second branch of plaintiff's petition. Be that as it may, we did in fact discuss it, and hold that the dis^nct judge acted coiToctly in refusing the in jimction. In discussing the question we took it up in the order and on the "theory'' of plaintiff's petition,— that the first branch of the case had been examine(^l into, and passed upon adversely to plaintiff's views, and that it was before us as one where, the ordinances being assumed legal, the rights of tlie parties were to be determined on other issues. In the very nature of things arising from a discussion from the new standpoint, the court had to do away with every hy- pothesis and eveiy allegation which had been urged, or could have been urged, on the first branch of the case, and to deal with matters as being (up to the opening of the bids) in ii.i i\. i,....-^ legal. It was only at that point, and from that point, our discussion began, on the hypotiietical premises assumed, of perfect legality in all tilings prior to that time. Taking up plaintift"s pleadings, and dealing with them as applicable to the sec- ond demand, we reached the conclusion that it was impossible for the district judge to have rulxl otherwise than he did. In the application for rehearing filed by the plain- tiff, it falls into the error of seeking to carr7 over, and make available for the second or "contingent" prayer, allegations which, for the pui-poses of that prayer, have necessarily to disappear. For the purposes of the second branch of the case, we have to "as.sume" that the Ro- setta Gravel Company, the Hoskins Gravel Company, and the Gunning Gravel Company were each and all fairly allowed to enter into free competition with each other for the- paving contract under a valid ordinance, but that the Gunning Gravel Company's bid waS' Ihe lowest bid of the three, and yet, in spite of that fact, and its ability to furnish all necessary security, the city council awarded the contract to the Rosetta Gravel Company, and that the mayor would sign the contract, imder orders from the council, unless re- strained by injunction. It was upon this state and condition of the pleadings, and nothing more, that wo were called upon to say, "on the face of the papci*s," whether the district judge was wrong in refusing tlie in- junction. The opinion which we have ren- dered was from that point of view. Only a few days since, in the case of Huglies v. Mur- dock, 13 South. Rep. 182, we cited the well- recognized doctrine in pleading that up to- judgment the pleadings will be taken most strongly against the pleader, and that un- knoMu, unrecited facts would not be as- sumed in his favor, particularly in the face- of an adverse i-uling of the district judge. The case at bar falls directly under that principle. The plaintiff asks us to "assume," as an absolutely necessaiy consequence of its- being the lowest bidder for the contract, that it should be awarded to him, and he asks us to assume that fact in presence of the repeated declarations of courts, every- \Ahere, that sworn officers will be presumed to have done their duty, — certainly, at least, until they have been "alleged" to have done otherwise. There is not one single word in plaintiff's petition accusing the common coim- cil of New Orleans with having acted arbi- trarily, fraudulently, or improperly, in any manner. The plaintiff relies upon the naked fact, advanced bj- it, that its bid was th j lowest, and tliat its material was equal or siiperior to that of the other bidders, and tliat it could furnish seeiu'ity. We are left absolutely in the dark as to the reasons upon which the coimcil acted. We are bound, in the absence of direct chargi^s and statements of fac*^s, to pi'esume that their action was honest and legal. We cannot eke out a case for the plaintiff by inferences and make suspicions and conjecture the place of allegations. AVhile it is possible there was such wrongdoing, it might also well .be that the council acted after a very strict examination into all the facts and cir- cumstances which it had the legal right to eke out a case > of wrongdoing, / anjectures take / 78 POWERS OF PUBLIC CORPORATIONS. ' examine into, in order to determine whether plaintiff's bid was a proper one, or not, and that these conchisions tl\ereon are justified and right. It may well be that, although the plaintiff "alleges" his ability to fm-nish secu- rity, he may, in fact, never have tendered it at all, or that the security furnished was in- sufficient. Plaintiff's petition is silent on tliese points. If the council was gifilty of wrongdoing, plaintiff should have directly so alleged, and stated facts and circum- stances to show in what way, and from what cause, that wrongdoing arose. We repeat ■ here what we said in the Hughes Case,— that when a plaintiff selects an act as the object ^f his attack which is not per se necessarily \ wrongful and illegal, but which may exist ' ^consistently with honesty, fair dealing, and legality, it is the duty of the attacking pai-ty Ito set out specifically the facts which would give to the act an illegal or wrongful char- acter. Whatever expressions were used in our opinion to the effect tliat the council had acted pradently and rightly must be read and construed from the standpoint and from the circumstances under which they were employed. We did not intend to say, as a fact, that the council had so acted, but that for the purposes, exclusively, of this case, as presently placed before us, we were bound to j assume they had done so. The fear which I plaintiff entertains, that we have committed ourselves to holding that an arbitrary selec- tion by a common council of tliree or four favored individuals, to whom, and to no oth- ers, it would extend invitations to give in bids for contracts, or to a selection of gravel I at any particular ijoint or locality, under circumstances such as to make the bids, in reality, but imder disguised pretexts, to be nothing more or less than the bids of the particular persons owning the same, or that we have recognized and given our sanction to the doctrine that a common council, under a grant to accept or reject bids, has the right to arbitrarily and finally reject the lowest bid, or to accept the higher, without any facts justifying such action, is totally im- founded. There is high authority for hold- ing to the contrary. In the case of People v. Gleason, 25 N. E. Rep. 5, the com^ of appeals of the state of New York said: "The claim is made on behalf of the relator that there is a conclusive presumption that the common council adjudicated that his bid was that of the lowest responsible bidder. If this claim be weU foimded, then provisions like that above quoted [providing tbat contracts should be let to the lowest bidder] from the city charter are of little use, and they can always be effectually disregarded and vio- lated. It is true that the common council, where there are several bidders, have juris- diction to determine who is the lowest re- sponsible bidder, but in order to give its action any legal effect it must exercise its jurisdiction, and make a determination based upon some facts. If it refuses to accept the lowest bid for work or supplies, there must be some facts tending to show that it is not that of a responsible bidder, or there must be at least some pretense to that ef- fect. An arbitrary determination by such a body to accept the highest bid, without any facts justifying it, cannot have the eff"ect of a judicial detennination, and must be de- nounced as a palpable violation of law." It was doubtless the intention of the plaintiff to bring this case wiQiin the doctrine just an- nounced, but it has not done so in its plead- ings, and it is by these that we are now testing matters. Rehearing refused. DISCllETIOXAKY POWERS NOT SUBJECT TO JUDICIAL CONTROL. 79 CHASE et al. v. CITY OF OSHKOSH. (51 N. W, 500, 81 Wis. 313.) Supreme Court of Wisconsin. Feb. 23, 1892. Appeal from circuit court, Winnebago coun- ty; G. AV. Burnell, Judge. Action by Lucy Chase and Mary Cliase against tlie city of Oslikosh. Judgment for plaintiffs. Defendant appeals. Reversed. H. I. Weed, for appellant. Finch & Bar- ber and F, Beglinger, for respondents. PIXNEY. J. In the case of Kimball v. City of Kenosha, 4 Wis. 3121, it is decided that tlie grantee of a lot bounded by a street or streets in a village platted and laid out in conform- ity with the statute takes to the center of the street on which the lot abuts, subject to the public easement; and this proposition has been f repeatedly aftirmed in numerous subsequeut cases, some of which are cited in Andrews v. Youmans, 78 Wis. 58, 47 N. W. 304. The I right of the public to use the street for pur- poses of travel extends to the portion set apart / or used for sidewalks, as well as to the way I for carriages, wagons, etc., and, in short, to / the entire width of the street upon wliich the j land of the lot-owner abuts. As against the lot-owner, the city, as trustee of the public I use, has an undoubted right, whenever its au- tliorities see fit, to open and tit for use and travel the street over which the public ease- I ment extends, to its entire width; and wheth- f er it will so open and improve it, or whether it should be so opened or improved, is a mat- I ter of discretion, to be determined by the pub- lic autliorities to whom the charge and control I of the public interests in and over such ease- ments is committed. With this discretion of j the authorities, courts cannot ordinarily inter- fere upon the complaint of a lot-owner, so long as the easement continues to exist; and no mere nonuser, however long continued, will operate as an abandonment of the public riglit, even though, until needed for a public use, the authorities should treat the street as the property of the owner of the lot. The public authorities, representing its interests, will not tie thereby estopped from removing olistruc- ) lions therefrom, and opening and fitting it for public use to its entire width. State v. Leaver, G2 Wis. 387. 22 N. W. 576; Reilly v. City of Racine, 51 Wis. 52G, 8 N. W. 417; Childs v. Nelson, 09 Wis. 125, 33 N. W. 587. The pub- lic use is the dominant interest, and the public autliorities are the exclusive judges when and to what extent the street shall be improved. Courts can interfere only in cases of fraud or oppression, constituting manifest abuse of dis- cretion. Benson v. Village of Waukesha, 74 Wis. 31-39, 41 N. W. 1017; Wright V. For- rcstal. G5 AVis. 341. 27 \. W. .52; Pontiac v. Carter, .32 :Mich. 104; Rrusli v. City of Carbon- dale, 78 111. 74. It necessarily follows that for the performance of this discretionary duty by the city officers, in a reason;il)le and prudent manner, no action can be maintamed against the city. Alexander v. Milwaukee, Iti Wis. 264. It may well be that had the trees in question been cut down or removed by some third party, not acting under proper authority from the citj', he could have been held liable to the plaintiffs in an action for trespass; and it was so held in Andrews v. Youmans, 78 Wis. 58, 47 N. W. 304. But this does not tend to show that this action can be maintained for | cutting and removing them under the au- thority of the common council given by reso- lution to the aldermen of the ward, standing, as they did, within the sidewalk, even with- out notice to the lot-owner. There was testi- mony that the plaintiffs had been notified to remove the trees, and thej' had failed to do so. Complaint had been made for two years pre- viously, to the aldermen of that ward, that the trees were obstructions to the sidewalk; and it is not contended but that they were cut down in good faith, and in pursuance of the authority- whieli the city possesses over its streets and sidewalks. It was admitted at the trial that the trees were cut down by par- ties acting in good faith, under the authority of tlie city, and without malice. It was the duty of the city to keep its streets and side- walks free and clear of obstructions for the use of persons traveling over and along the same; and there can be no doubt but that the city would have been liable in damages to any person traveling along and over the walk in question, in the night-time, who, without fault on his part, had been injured by running against these trees, situated within the limits of the walk. There can be no doubt but that the common council had the right, therefore, to treat them as obstructions to the public travel, and a nmsance. and to abate the nui- sance in the manner they did, to protect the public in the lawful use of the sidewalk, and the city from liability for injuries which might be .sustained by persons passing along and over it, and who might be injured by such obstructions. Whether the trees were obstruc- tions to travel, and ought to be removed in order to make the sidewalk reasonably safe for travel, was, we think, a matter within the quasi legislative discretion conferred on the common council by the city charter. The charter of the city gives the common council, under various siibdivisiuns of section 3, subc. 6, c. 183, Laws 1883. power, by ordinance, res- olution, or by-law, when it deems it expedient, "to prevent the incumbering of the streets and sidewalks," and to "control and regulate the streets, * * * and to remove and abate any obstructions and encroachments therein," and to "protect the same from any encroacliment or injury," and "to prevent, prohibit, and cause the removal of all obstructions in and upon all streets in said city;" and the provisions of chapter 52, Rev. St., on the subject of en- croachments and obstructions on streets and highways, are not applicable, because special provisions are made in the charter of tlie city of Oshkosh, inconsistent therewith (Rev. St. § 1317); and by the charter of the city it is provided that "no general law of this state, 80 POWERS OF PUBLIC CORPORATIONS. contravening the provisions of the charter, shall be considered as repealing, annulling, or modifying the same, unless such purpose be expresslj- set forth in such law as an amend- ment of this charter" (Laws 18S3, c. 183, subc. 14, § 25); and this provision was in force when the present revision of the statutes was adopted (Laws 1877, e. 123, subc. 13, § 25). Similar provisions have existed in the various charters of cities in this state from an early day. Inasmuch as the discretion and judgment of the common council in respect to these mat- ters cannot be revi.'-i i by the court or jury, there being no eviJeiiL-,' tending to show an abuse of it, the court ought not to have sub- mitted it to the jury to find whether: "(1) Did said trees incommode or hinder the public use and enjoyment of said street or sidewalk? (2) Did said ti"ees injure said street or side- walk, or interfere with travel'?" It was not ' seriously contended on the part of the plain- tiffs but that the city authorities might au- thorize the removal of the trees; but it was claimed that they constituted an encroachment, and were not obstructions to the walk or street, and that they could not be removed witliout a hearing on notice. An encroach- imyit is a gradual entering on and taking possession by one of what is not his own; the unlawful gaining upon the rights or posses- sions of another. The fencing in or inclos- ing of a portion of a street or highway by a fence or wall, or the occupancy of it, would be an encroachment; and, as there may be uncertainty as to the exact line of the street or highway, it may be necessaiy, in order to remove it, that notice be given, so that the question of encroachment may be first passed upon by a jury. An obstruction is a blocking up; filling with obstacles"or impediments; an impeding. eiid)airassing, or opposing the pas- sage along and over the street,— and, to con- stitute it such, it. need not be such as to stop travel. The provisions in the city charter on the subject of encroachments and obstructions of streets and sidewalks give veiy extensive and comprehensive powers to the common council, of a quasi legislative character, but without any particular directions as to the manner of theh* exercise; and these powers are peculiarly adapted to the needs of a grow- ing and populous vihage or city. They are not only very comprehensive and far-reaching, but they clearly extend to the cutting down and removal of the trees in the manner adopt- ed in the present instance, as they were man- ifestly obstructions to the sidewalk, although room was left on the walk for foot travel to pass. It was not necessary, in order that they should constitute an obstnaction, so as to authorize their removal, that they should in- terrupt or stop travel. The case of State v. Leaver, 62 Wis. 302, 22 N. W. 576, is decisive on this subject. It surely cannot be maintain- ed that the plaintiffs have the riglit to plant and maintain other trees in their place within the sidewalk, or that other lot-owners can plant in like manner and maintain trees thus situated. As already stated, the plaintiffs had a right of property in the trees, in the sense that they might have cut or removed them, or maintained an action against any one who did so, not acting under authority of the common council; but it does not follow that they had the right to keep and maintain them, standing within the sidewalk, in detiauce of the resolu- tion of the common council, insisting, in the interests of the public, upon their removal. The case of Pauer v. Albrecht, 72 Wis. 416, 39 N. W. 771, is clearly not in point; for it was a case of an encroachment, and the char- ter did not contain provisions authorizing the removal of encroachments, and the proceed- ings had to be, if at all, under the general statute. A permanent obstruction, such asl trees standing within a sidewalk or traveled street, or stone columns which may interfere with public travel, constitutes per se a public nuisance, and may be summarily removed by direction of the common council. The circuit court, upon the entire case, ought to have directed a verdict for the defendant. For these reasons, and for error in refusing tne instructions asked by the defendant, the judg- ment of the circuit court must be reversed. The judgment of the circuit court is reversed, and the cause is remanded for a new trial. DELEGATED POWERS CANNOT BE DELEGATED. 81 STATE V. GARIBALDI. (No. 11,019.) (11 South. 30, 44 La. Aun. 809.) Supreme Court of Louisiana. April 4, 1892. Appeal from recorder's court of Orleans; A. M. Aucoiu, Judge. Prosecution against Louis C. Garibaldi for the violation of an ordinance of New Orleans prohibiting the establishment of private markets within certain limits. From a judg- ment on conviction, defendant api>cals. Ke- versed, and suit dismissed. Rehearing re- fused. W. J. Waguespack and Joseph F. Poche, for appellant. Branch K. Miller, for the State. BREAUX, J. Tlie lawmaking power hav- ing authorized the city council of New Or- leans to pass such ordinances for the govern- ment and regulation of private markets as they may in their discretion deem proper, and having vested them Avith authority for their enforcement, subject to certain limita- tions, the city adopted ordinance 5748, C. S., and amended ordinance 5798, prohibiting the establishment of a private market for "the sale of meat or other comestibles" except fruits, without permission previously ob- tained on a petition, with the written consent of a majority of the property owners within GOO feet of the place selected to open a pri- vate market; and further prohibiting said market unless the building has proper flag- ging and ventilation, and measures not less than 10 by 15 feet in area and IG feet in height, and with no dwelling on either side nearer than 10 feet. From the sentence and judgment linding him guilty of having vio- lated the said ordinances, and condemning him to pay a fine of if 10, defendant appeals. The following are the agreed facts: The defendant carries on a private market with- out the permission of the council, in a build- ing measuring 20 feet in width by 30 feet in depth, having three openings in front, 11 feet in height by 4 in width, and two doors in the rear, 10 feet high by 3% feet wide, open- ing on a yard 40 feet in depth. The floor of the building is of wood. It is a three-story building, 55 feet in height, the lower ceiling being 11 feet from the floor. It is one of a continuous row of buildings with ceiling about the same height, separated by a single wall between each tenement. On one side of the private market is a boarding house near- er than 10 feet, and on the other a ware- house in which goods are stored. It is in a populous district of the city. The defend- ant has paid his license. It is further ad- mitted that he has complied with the ordi- nances relative to private markets preceding those imder which he is prosecuted, and that he established his said private market long prior to the adoption of the said ordinances. Testimony was admitted to prove that wood- en flooring is preferable, as being more ABB.CORP.— 6 healtliy to stand on Uian a flaggmg. It was shown that slats or planks are used to stand on on flag floors. The plaintiff controverted this testimony, and examined witnesses, who testified with some particularity with refer- ence to the unhealthiness of wooden floors, and their Inferiority in many respects to pavement, in a market house. The defend- ant's plea in bar, tiled preliminarily, was overruled, in which he urged that the ordi- nances under which the prosecution was insti- tuted confer arbitrarj' power on certain prop- erty owners to give or to withhold their con- sent, and are an unjust discrimination, a monopoly, and grant of exclusive privilege, in violation of the constitutions of the United States and of this state; that they are pro- liibitive and favorable to the lessees of the stalls in the public markets; that the ordi- nances themselves violate the act of the leg- islature No. IIG of 18SS, authorizing the gov- ernment and regulatit'U of private markets; that to compel him to carry on his private market in a building with paved floor, and of the dimensions required by the ordinan- ces, is unreasonable and oppressive, ultra vi- res; that his private market was authorized by ordinance 4145, and his rights as the keep- er of a private market cannot be affected by subsequent ordinances. The legislature has often delegated authority to municipal cor- porations to impose restraint upon the vend- ing of fresh meats and vegetables. It has frequently been the cause of litigation, but it has generally been held to be reasonable. AVith reference to private markets, the pow- er to prohibit their establishment within a certain number of squares of the public mar- kets was ably opposed in the courts. It is now settled that there was no ground of complaint of the violation of a private right. The right of the sovereign to exercise the police power to maintain the cleanliness and salubrity of a city does not admit of ques- tion. Markets require restraint, to prevent their becoming injurious to the public. All regulations requiring ventilation of the building in M'hich markets are opened, about laying of floors, and ordering that reasonable space be provided between the buildings, adopted in the interest of public health, are unobjectionable if not arbitrary, and if they do not discriminate against private riglits. If, however, the defendant were to comply with all the regulations emanating from the council relating to private markets, to which we have just referred, he would still have to present a petition to the council, accom- panied by the written consent of a majority of the property owners within GOO feet of the place selected to open a market, other- wise it would not bo possible for him to con- tinue his business. The consent of certain property owners is made an absolute condi- tion to granting the right. The council's discretion in governing and regulating pri- vate markets does not authorize them to confer the right on the majority of property 82 POWERS OF PUBLIC CORPORATIONS. owners to determine whether a proposed market shall be opened. The special law under which the ordinances were adopted provides that the council shall not prohibit private marliets within the populous dis- tricts of the city. It may be that the proper- ty owners will refuse their signatures with- out sufficient cause, and thereby prevent the establishment of a private marliet, de- spite the rights guarantied under the terms of the statute. Certain police power is vest- ed in the council to make, ordain, and es- tablish all manner of wholesome and reason- able ordinances not repugnant to the consti- tution as they shall judge to be for the good and welfare of the public. The responsi- bility is with them, and the authority cannot be delegated to a majority of property own- ers in a locality. They are the trustees ap- pointed to legislate and administer in their respective capacity, and cannot divest them- selves of their responsibilities by requurhig that the consent of property owners be obtained I to open a legitimate business. Cooley, Const ' Lim. p. 249. The representative system is t a substantive and valuable institution in or- I ganized politics. It must maintain its pro- 1 tecting authority against unjust discrimina-j tion and arbitrary action. The legislative . powers delegated are regarded as trusts, and are | not subject to be delegated by those to whom it is confided. 15 Am. & Eng. Enc. Law, ' p. 1043. "An ordinance of a municipal cor- poration, which violates any of the recog- nized principles of legal and equal rights, is necessarily void so far as it does so." State V. Mahner, 43 La. Ann. 496, 9 South. 480. One of the conditions imposed being illegal, the plaintiff cannot maintain its judgment. It is therefore ordered, adjudged, and de- creed that the judgment appealed from be annulled, avoided, and reversed, and the suit of the city against the defendant be dis- missed, with costs of both courts. DELEGATED POWERS CANNOT BE DELEGATED. 83 TOWN OF TRENTON v. CLAYTON et al. (50 Mo. App. 535.) Court of Appeals of Kansas City. June 13, 1892. O. M. Shauklin and MoDongal & Sebree, for appellant, ilarber & Knight, for respondents. GILL, J. From the agi-eed statement of facts, it appeai-s that Davis & Co. were deal- ers in general merchandise, with stores at Trenton, Mo., and Atchison, Kan. The defend- ants were employed as salesmen; and, in the effort to sell the goods of their employers, they took samples of \-arious articles, visited the different residences in Trenton, and se- cured written orders for the goods of Davis & Co. The merchandise was subsequently de- livered and paid for. The goods carried around were not sold nor offered to be sold, but were simply used to exhibit to customers the char- acter of goods kept and for sale by Davis & Co. The defendants were charged with selling goods as peddlers in the town of Trenton with- out a license, contrary to the provisions of an ordinance of said town relating to peddlers. Section 1 of said ordinance reads thus: "Sec. 1. Any person who shall engage in sell- ing any drugs, medicines, dry goods, groceries or personal property or merchandise, except books, maps, charts and stationery, by going from place to place to seU the same, or shall sell the same by first taking an order and aft- erwards delivering the article, either in per- son or by an agent, or shall sell the same by public out-cry in the streets of said town, is declared a peddler." Sections 2 and 3 pro- hibit any one from acting or dealing as peddler unless permission therefor be obtained from the mayor of said town. Section 4 provides as follows: "See. 4. The mayor Is hereby authorized to grant permission to any worthy resident of the town of TYenton to deal as a peddler upon payment to the marshal of a license fee to be fixed by the mayor on granting the same, and the amount of license in all eases shall be fixed by the mayor, provided that the license so fixed shall in no case be less than ipl, nor more than $100, for every period of six months or fraction thereof." Section 5 provides a penalty for violation of the terms of the ordinance. The case was submitted to the circuit court on an agreed statement incorporating substan- tially the foregoing facts. There was a judg- ment for defendants, and the town has ap- pealed. The ordinance which forms the basis of this proseoution is, in our opinion, clearly invalid, and for more than one reason. In the first place, the town coimcil in the ordinance quot- ed has gone beyond the powers delegated by the legislafure. By the charter of Ti-enton (Laws 1872, p. 481) it is enacted that "the town •council shall have power, within said town, by ordinance, not repugnant to the laws of the land, * * * to license, tax, regulate or sup- press • • * peddlers," etc. It is well un- derstood that municipal corporations can ex- ercise only such powei-s of legislation as are given it by the law-making power of the state. The grants of such powei-s are quite strictly consti-ued, and "any fairly reasonable doubt concerning the existence of power is resolved by the courts against the coiiwration, and the power is denied." 1 Dill. Mun. Corp. (4th Ed.) § 89. As the municipal corporation cannot legislate regarding any subject-matter unless so authorized by the state, so is the coii^ora- tion powerless to extend or widen the scope of its powers by the arbiti'ary and unauthor- ized definition of words or terms, so as to in- clude more than was intended by the legisla- ture. These remarks are suggested by a considera- tion of section 1 of the above-quoted ordinanoe, whereby the town council of Trenton has at- tempted, by extending the meaning of peddler, to widen the scope of its authorized legisla- tion. Peddler, as meant by the legislature, in granting powers to the corporation of Trenton, included only such persons as "shall deal in the selling of merchandise (and other articles) by going from place to place to sell the same," etc. (Rev. St. 1889, § 7211); and this we held in State v. Hoffman, 50 Mo. App. 585, did not include commercial agents or drummers, such as were these defendants. However, the town council of Trenton has, by the ordinance al)ove, sought to regulate or license other and differ- ent employments, by extending the meaning of peddler, as used and understood by the legis- lature, by adding the words, "or shall sell the same by first taking an order and afterwards delivering the article, either in person or by an agent, or shall sell the same by public out- cry in the streets of said town." Again, the ordinance in question is objection- able, in that it assumes to transfer or dele- gate to the mayor a power given to the council. The charter of Ti'enton, as already quoted, reposed authority in the town council by or- dinance to license, etc., peddlers. This ordi- nance turns over the entire matter to the ca- price or discretion of the mayor. It leaves the granting or not gi-anting peddlers' licenses — to whom, for what period, and for what cost- altogether with the town mayor. "The princi- ple is a plain one, that the powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, can- not be delegated to others." Neither can this ordinance find any support from the thirteenth clause of plaintiffs charter, which empowers the council "to pass all such ordinances as may be expedient in maintaining the peace, good government, health, and welfare of the town." The authority to pass such ordinance must af- firmatively appear in the charter. It is not to be inferred from tenus of such doubtful im- port. City of St. Paul v. StuUz (Minn.) 22 N. 84 POWERS OF PUBLIC CORPORATIONS. W 634; Cape Girardeau v. Fougeu, 30 Mo. App. 557. It follows, then, from the forego- ing considerations, that the judgment of the lower court should be affirmed. It is so or- dered. SMITH, P. J., concurs in this opinion^. ELLISON, J., concurs in the result. EXTENT AND NATURE OF POWERS GRANTED. 85 TAYLOR et al. v. BAY CITY ST. RY. CO. (45 N. W. 335, 80 Mich. 77.) Supreme Court of Mieliigaa. April 11, 1890. Appeal Irom circuit court. Bay county, in ^•liuucery; George T. Cobb, Judge. Bill for injunction by Bobbins B. Taylor iind others against tlie Bay City Street Rail- way Comi)auy. Decree for defendant and complainants appeal. T. A. E. Weadock, for appellants. Hatcli & Cooley, for appellee. GRANT, J. The defendant was organized February 21, 18G5, under an act of the legis- lature providing for the organization of train- railway companies, enacted in 1855. How. iSt. c. 94. This act Avas amended in 18G1 by adding two new sections. Laws 18G1, p. 11. This amendment provided that it should be competent for parties to organize companies under the act to construct and operate rail- wiij-s in and through the streets of any town or city in the stiite, and that they should have the exclusive right to use the same, upon ob- taining the consent of the municipal authori- ties of such town or city. A further amend- ment, in 1SG7, provided that, after such con- sent was given and accepted, such municipal authorities should make no regulations or con- ditions whereby the rights or franchises so granted should be desti-oyed, or um-easouably Impaired, or such company or corporation be deprived of the right of constructing, main- taining, and operating such railway in the street in such consent or grant named, pur- suant to the terms thereof. Bay City was in- corporated by special act of the legislature in 1805, taking effect March 21. Laws 1805, p. 735. The charter provided that the common council should have power to grant charters, licenses, and privileges to companies, coi*po- rations or persons for the consti'uction of street railways on the streets of said city. In 1809 the charter of Bay City was amended. 2 Laws 1809, p. 501. Section 98 of this act provided tliat the common council should have power to authorize the ninuing of railroads and street railways in the streets of said city upon condition that tlie owners of the lots ad- joining, and persons interested therein, should receive compensation therefor. This act also conferred other powers of control over such railways which were not confen'ed by the act (if 1S(m, but it is unnecessary here to specify them. This provision has been retained in the charter ever since. December 14, 1804, the common council of the village of Bay City passed an ordinance conveying to certain per- sons therein named, who then proposed to oi"- ganlze a corporation under the train railway Act, above mentioned, the right to use all the streets in the village of Bay City or its suc- cessor, exclusive of every other person or cor- poration, for the purpose of constructing and operating railways thereon. It provided that cai's should be drawn by animals or by steam. made rcgiilations for the running of trains, etc., and provided that the common council, when deeming it for the interest of the vil- lage or its successor, might order the construc- tion of a railway on any street, and the cor- poration should huild the same within two years after being notified, and in default there- of the council might declare the grant void as to such street. The defendant organized, as above stated, in February, 1805, and during that season laid tracks, and commenced the operation of its road, extending the same from time to time as the common coimcil, and the requirements of the public, demanded. July 5, 1887, the common council adopted resolu- tions requiring the defendant to construct a line of railway on Third street, and some oth- er streets mentioned. On June 5, 1888, the common council appointed a committee to draft certain amendments to the street rail- way ordinance. They had a consultation with the proper officers of the defendant, and on June 25th made a written report stating that the defendant proposed to huild a track on Third street, between Water street and Wash- ington street, and recommended that the proi> osition of the company be accepted. The re- port was adopted, and thereupon the defend- ant immediately commenced the work of lay- ing the track. The complainants are the owners of sep- arate lots on Third street, and the buildings situated thereon, used for business purposes. Upon the commencement of the work the com- plainants imited, and tiled the bill in this case, claiming that the construction of the road would be a damage to their property; that this street was not wide enough for the busi- ness then being done upon it; that no compen- sation had been paid or offered to any of the complainants, nor any steps taken to condemn a right of way through said street,— and prayed for an injunction to restrain the con- struction of the road. A preliminaiy injunc- tion was granted by the court below, which was set aside upon the filing of the answer. The case was then heard upon pleadings and proofs, the bill dismissed, and complainants appealed. The testimony upon the question of damages is very conflicting. It is unnec- essary to discuss it here; for, if the complain- ants are entitled to recover damages, they must be left to proceedings under the statute to de- termine what damages, if any, they have in- dividually sustained by the construction of the road. 1. Complainants were alike affected by the construction of this road. They were alike intei-ested to restrain its construction. Their interests were therefore common. There was but one object to be accomplished, and no ne- cessity existed for a multiplicity of suits. The defendant was not prejudiced by the joinder of complainants. We see no objection to par- ties joining in a suit, the sole purpose of which is to obtain an injunction to restrain the com- mission of an act threatened by one party, and ! alike injurious to the interests of aU. 86 POWERS OF PUBLIC CORPORATIONS. 2. The defendant contends that, by the ordi- nance of 18G4, and the legislation authorizing it, it acquired the fixed and vested right, for a period of 30 years, to use the streets for the pui-pose of constructing and using a street railway without compensating adjoining own- ers, and that any subsequent legislation re- quiring it to compensate in damages for any injuries sustained thereafter by the construc- tion of new tracks is void as impairing the obligation of contracts. It becomes, there- fore, important to determine the power confer- red by the legislature upon the common coun- cil of Bay City. The council can, of course, confer no greater right upon the defendant ^ than is authorized by its charter. Municipal corporations derive their sole source of power from legislative enactments. The rule has ' been long and unquestionably established that municipal corporations are limited to those powei-s which are granted— First, in express words; second, necessarily incident to the powers expressly gi'anted; and, third, those which are essential and indispensable to the declared objects and purposes of the corpora- tion. 1 Dill. Mun. Coi-p. § 89. By the vil- lage charter, the common council was author- ized to lay out and establish, vacate, open, make, and alter such streets as they might deem necessary for the public convenience. No mention is made in the act of train or street railways. The act incorporating the city pro- vided that all the acts and ordinances of the common council of the village of Bay City not Inconsistent with the laws of this state shall remain in full force until changed by the com- mon council of the city; and the same section gives the power to gi'ant charters to street railway corporations. These charters do not In express tenns confer upon the council any such power as is now contended for. If it exists at all, therefore, it must be by implica- tion. The power to grant immunity to such corporations from legislative regulation and I control is an important one. A village of a . few hundred inhabitants may in much less than 30 years grow to a city of many thou- \ Bands. Bay City well illustrates this fact. , What in the one would cause no damage might ' in the other cause great damage. The vil- lage council cannot well provide regulations / and ordinances applicable to a large city. It is, therefore, highly important that the legis-/ latm-e should retain the power to pass enact- / ments for the control of these quasi public cor- porations suitable to the changed state of j affairs. Those who claim immimity from such control must be able to point to the clear / enactment of the statute establishing it. In the case at bar, as already stated, no such express power can be pointed out; and it was neither necessary, essential, nor indispensable to enable the municipal corporation to carry out the objects and purposes for which it was created. It is clearly within the power of the ' legislature to provide that street railway cor- porations shall pay such damages to owners of abutting property in front of which they / construct their road as this construction will . cause. It follows, therefore, that the defend- f ant accepted its charter subject to the right of the legislature to prescribe conditions under which it might thereafter obtain the use of the streets of the city for the construction of new lines. The act of 18G9, above mentioned, expressly limited the power of the council to- authorize the running of street railways in the streets of the city upon the condition of com- pensation to owners of the lots adjoining. The act of the legislature of 1881, revising the charter of Bay City, provided that the method of arriving at the compensation to be paid ta the lot-owners shall be the same as provided by the general railroad laws of the state. The defendant was subject to the above provis'ions in making the extension of its road now in dispute. The conclusion above reached renders it un- necessary to determine the other questions- raised in the case, and we pass no opinion upon the liability of the defendant at the com- mon law. The decree must be reversed, with the costs of both courts, and decree entered here restraining the defendant from the use of that part of its road extending on Third, street between Water and Washington streets, until it has complied with the statute requir- ing condemnation proceedings, but giving a reasonable time for that purpose. The other justices concurred. EXTENT AND NATURE OE POWERS GRANTED. 87 TOWN OF NEWPORT v. BATES VILLE & B. RY. CO. (2i S. W. 427, 58 Ark. 270.) Supreme Court of Arkansas. Dec. 9, 1893. Appeal from circuit court, Jackson county; James W. Butler, Judtje. Action by the Batc^ville & Brinldey Rail- way Company apaiust the town of Newport on a contract for the construction of a levee. B'rom a juclj,'ment for plaintiff, defendant ap- peals. Reversed. John M. Moore, for appellant. U. M. & G. B. Rose, for appellee. HUGHES, J. The facts in this case are substantiallj' as follows: The toAvn of Newport made a contract with the Bates- ville & Brinkley Railway Company to con- struct a levee on two sides of the town to protect it from overflow, and was to pay the company therefor, in the warrants of the town, $10,000, and the railway company was to have the privilege of using the levee as a roadbed for its railway. One line of the levee was completed, accepted, and paid for by the town, after which it declined and re- fused to accept and pay for the other line of the levee, one of these lines bcuiir north, and the other south, of the town. The com- pany having', as it contends, completed the levee according to the contract, brought this suit to recover a balance of $4,480, which it alleges to be due on the conti-act. There is also a quantum meruit count in the com- plaint, for work and labor done, and mate- rials furnished, in constructing a levee at the Instance and request of the town. The town answered, admitting that it attempted to ex- ecute the contract, but says the contract was made for the purpose of inducing the rail- way company to locate and construct its road through the town, and to establish one of its principal stations there, and denies the power of the town to make the contract. It also denies that the levee was constriicted for its use, or at its request, and says that it was constructed for the use of the railway company. It also says that the work was not done according to contract; and that the work and materials of the railway com- pany were not of the value alleged; and that it had paid full value for all work done and materials furnislied. The cavi.se was sub- mitted to a jury upon the evidence in the case, and instructions by the court recogniz- ing power in the town council to make a con- tract to construct a levee. All proper ex- ceptions were preserved to the instructions given by the court, and to the court's refusal of instructions, in effect denying power in the town council to make the contract. The fifth instruction given by the court, to which exception was saved, is as follows: "The jury are instnicted that if they find from the evidence in this case that the defendant enteretl into a contract with the plaintiff to pay it $10,000 in town wan-ants for the con- sti'uction of a levee described in the written contract made with the defendant, together with its crossings and drains, and under that contract the plaintiff, with the full knowl- edge and consent of the defendant, under the supervision of its council or a committee appointed by it, proceeded to construct said levee under said contract, with the privilege of using it as a roadbed or railroad track, and to keep the same in proper repair, and the plaintiff did so construct, use, and keep the same in repair, so far as permitted by the defendant, they will find for the plaintiff whatever may be shown to be due and un- paid under said contract." The j\iry found specially that the railway company, in con- structing the levee around the town, had complied substantially with the contract siied iq)on, and returned a verdict for the railway company. The appellant seeks to reverse this judgment on appeal to this court Had the incor]3orated town of Newport the power to make the contract which was the foundation of this suit? In 1 Dill. Mim. Corp. § 89, it is said: "It is a general and imdisputed proposition of law that a mu- nicipal corporation possesses and can exer- cise the following powers, and no others: First, those gi-axited in express words; sec- ond, those necessarily or fairly implied in or incident to the powers expres.sly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, rea- sonable doubt concerning the existence of power is resolved by the coiu-ts against the corporation, and the power is denied." In Spaulding v. City of Lowell, 2.3 Pick. 71, 74, Chief Justice Shaw, in speaking of municipal and public coii^orations, says: "They can ex- ercise no powers but those which ai'e con- feiTed upon them by the act by which they are constituteage shall be collected and carted tlu-ough the streets only by the licensed agent 98 THE POLICE POWER-SCOPE AND LIMITATIONS. of the city; second, that parties producing the garbage needing to be thus carted away shall place the same in proper vessels, con- venient for the removal by such agent; and, third, that such agent shall charge not ex- ceeding the price named for removing the I same. It is no more an assessment than I is the provision of the ordinance fixing the 1 rate of payment for gas or water, or street- car fare, as authorized by section 59 of the I nty charter, or the numerous provisions of j section 23, specifying that the common coun- ( cil may require things done by the parties, and, if not so done, have the city do them at their expense, as taking dovrn dangerous buildings, removing snow from the wallvs, etc. It cannot be said that the charter does not expressly authorize the fixing of prices for removal of garbage, because the same section which confers upon the board the power "to remove all dead animals, garbage, filth, ashes, dirt, rubbish or other offal from such city, either by contract or otherwise," impliedly authorizes the fixing of a price therefor. That is the very essence of the power to conti'act. The appellants' learned counsel say: "But the charter never gave the board of public worlcs power to contract for removal of garbage on behalf of any one, except on behalf of the municipal cor- poration. Had it undertaken to confer upon them the power to fix prices which should be paid by citizens for its removal, then it would have said so in express terms, just as it did with reference to water, gas, etc. The fact that it did not do so is evidence * * ♦ that it contemplated or conferred no such power." It is within the general power of a government to preserve and promote the public welfare, even at the expense of pri- vate rights. 18 Am. & Eng. Enc. Law, 739, 740. Police power is defined in Gas- light Co. V. Hart, 40 La. Ann. 474, 4 South. 215, where it is said: "It is the right of the state functionaries to prescribe regula- tions for the good order, peace, protection, comfort, and convenience of the community, which do not encroach on the like power vested in congress by the federal constitu- tion." In Com. V. Alger, 7 Cush. 53, the court lays down the rule that "rights of prop- erty, like all otlier social and conventional rights, are subject to such reasonable limi- tations in their enjoyment as shall prevent them from being injurious, and to such rea- sonable restraints and regulations established by law as the legislature, under the govern- ing and controlling power vested in them by the constitution, may thinlv necessary and expedient" In Thorpe v. Railroad Co., 27 Vt. 149, it is said: "By this general police ■ power of the state, persons and property ' are subjected to all kinds of restraints and diligence in order to secure general comfort, health, and prosperity of the state." In Lake View v. Rose Hill Cemetery Co., 70 111. 192. the court say: "The police power of the state is coextensive with self-protection, and is applicably termed the 'law of over- ruling necessity.' It is the inherent andi plenary power in the state which enables it 'o prohibit all things hurtful to the comfort and welfare of society." Hale v. Lawrence, 21 N. J. Law, 714; Tied. Lim. § 1. It is said in 18 Am. & Eng. Enc. Law, 744, 745, that a law which might be invalid as an exercise of the right to tax for revenue might be sustainable where its purpose was the pro- motion of the general public health or mor- als. In exercising the power of taxation, no discriminations are to be made, while in the exercise of police power, the state is ordinarily to be governed only by consider- ations of what is for the public welfare. It rests solely within legislative discretion, inside the limits fixed by the constitution, to determine when public safety or welfare requires its exercise. This must be deter- mined by recognized principles. "Courts are authorized to interfere and declare a statute unconstitutional onlv M'hen it conflicts with the constitution. With the wisdom, policy, or necessity of such an enactment they have nothing to do." Id. 746. It resolves itself solely into a question of power, and not of mere reasonableness. We recognize the rule that a municipal cor- poration has no power to treat a thing as a nuisance which cannot be one; but it is equally well settled that it has the power to treat as a nuisance a thing that, from its character, location, and surroundings, may or does become such. In doubtfid cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are con- sidering, their action, imder such circum- stances, would be conclusive of the question. Baumgartner v. Hasty, 100 Ind. 577-578. In 15 Am. & Eng. Enc. Law, 1173, it is said: "IMtmicipal corporations are usually given authority to pass ordinances providing for the preservation of public health. This is one of the police powers of the state, and there can be no doubt that the sovereignty has the right to delegate this power to mu- nicipal authorities." In Beach on Public Corporations (volume 2, § 99.5) it is said: "A by-law of a city proliil)iting any person not duly licensed by its authorities from remov- ing the house dirt and offal from the city is not in restraint of trade, but I'easonable and valid, on the ground that, in the interest of public health, a city is justified in provid- ing for some general system for removing! offensive substances from the streets by per- sons engaged by the city, and responsible for the work, at such times as they are directed to attend to it." So, Dillon on ^Municipal Corporations (section 309) is as follows: "Our municipal corporations are usually in- vested with power to preserve the health and safety of the inhabitants. This is, indeed. THE ABATEMENT OF NUISANCES IN GENERAL. 99 one of the purposes of local povernment, and reasonable by-laws in relation thereto have always been sustained in Knirland as within the incidental authority of curpuratious to ordain. It will be useful to illustrate the subject by reference to some of the adjudged cases. An ordinance of a city prohibiting, under a penalty, any person not duly licens- ed therefor by the city authorities, from re- moving or carrying through any of the streets of the city any house dirt, refuse, offal, or filth, is not improperly in resti'aint of trade, and is reasonable and valid. Such a by-law is not in the nature of a monopoly, but is founded on a wise regard for the public health. It was conceded that the city could regulate the number and kind of horses and carts to be employed by strangers or unli- censed persons, but practically it was con- sidered that the main object of the city could be better accomplished by employing men over whom they have entire control, night and day, who are at hand, and able, from habit, to do the work in the best way and at the proper time." It has often been held to be reasonable to grant to one or more the exclusive right to remove the carcasses of dead animals and other offal of a city. In re Vandine, 6 Pick. 187; Cooley, Const. Lim. (6th Ed.) p. 739; Tied. Lim. p.- 316; Dill. Mun. Corp. §§ 141, 142. In the case of Boehm v. Mayor, etc. (18S3) 61 Md. 259, it was held that the city, under the power to preserve the health and safety of its inhab- itants, had the undoubted right to pass ordi- nances creating boards of health, appointing health commissioners with other subordinate officers, regulating the removal of house dirt, night soil, refu.se, offal, and filth by persons licensed to perform such work, and provid- ing for the prohibition, abatement, and sup- pression of whatever was intrinsically and inevitably a nuisance. The case of In re Vandine, 6 Pick. 187, is in point here. It directly adjudges that a by-law of the city of Boston prohibiting any one not licensed by the city from removing house dirt and offal from the city is valid. On the ti'ial the court instructed the jury that the subject of regulation was one on which it was proper for the city to legislate, it having reference to the public convenience and the health of the inhabitants; * * * that it was the duty of the city to remove from the sti'eets and houses all nuisances which might gen- erate disease or bo prejudicial to the comfort of the inhabitants, and it was both I'eason- able and proper that it should be in their dis- cretion to contract with persons to perform the work, so that it might l)e done on a gen- eral system. If it were found, on experi- ment, that the duty would not be thoroughly and faithfully performed, or would be at- tended with more expense to the city, if indi- viduals should remove these substances in their own carts and upon theii' own accoimt, it was competent for the city government to enact a by-law which should subject all such persons to the vigilance of that government, and which should require them to be fii'st licensed. The jury were further instructed that so far as, by virtue of the ge:K_>ral laws of the commonwealth, the city coimcil had power to make by-laws for governing the city, these regulations were binding on all persons actually resident within its limits, either for business or pleasure, and whether inhabitants or strangers; that the object of the by-law being to secm*e to the city the regular and effectual removal, by public au- thority, of all som'ces of nuisance which are collected and accumulated in the houses in tlie city, by not suffering individuals under no obligation of trust to interfere in the same, it amounted to the prohibition of a nuisance, and that, so far as it affected trade, it was not a restraint, but only a regulation, of it. The defendant excepted to these insti'uc- tions, and, on appeal, urged chiefly that thi- by-law was void, being in restraint of trade: also, that it created a monopoly, and that th • city had no right to say it should be remove'' only by a person having a license. In rulin ; upon this question, the court upheld the ii - structions of the trial court, and said: "Th • gi'eat object of the city is to preserve th • health of the inhabitants. To attain tha-. they wisely disregard any exi^enses whic i are deemed to be requisite. They migh: probably have these offensive substances car- ried out of the city without any expense, if they would permit the people from the cour- try to take them away at such times, and in such manner, as would best accommodat • them. Every one will see that, if this busi- ness were thus managed, there would be con- tinual moving nuisances at all times, and in all the sti'eets of the city, breaking up the streets by their weight, and poisoning the air with their effluvia. * * * It seems to xis * * * that the city authority has judged well in this matter. They prefer to employ men over whom they have entire control by night and by day, whose services may be always had. and who will be able, from hab- it, to do this work in the best possible way and time. Practically, we think the main object of the city government will be better accomplislied by the arrangement they have adopted, than by relying iipon the labor of others, against whom the government would have no other remedy than by a suit for a breach of contract. The sources of conta- gion and disease will be speedily removed in small loads, which will not injure the pave- ments nor annoy the inhabitants. We are satisfied that tlie law is reasonable, and not only within the power of the government to prescribe, but well adapted to preserve the health of the city." In view of the great weight of authorities, we are of the opinion that the contract and ordinance assailed are both within the long- settled and clearly-recognized lines of police power, which is as broad as the power of / taxation, and, being simply a sanitiu-y regu-- 100 THE POLICE POWER— SCOPE AND LIMITATIONS. lation, they cannot be considered as in the nature of confiscation or an attempt to cre- ate a monopoly. The provision for the re- • moval of the garbage at the exjjense of the property holder is an extreme exercise of this power, but is an incident of its existence. It is a familiar rule that if the power is con- ferred upon a municipal corporation by the laws of the state, and the law is silent as to the mode of doing such act, the corporate au- I thorities are necessarily clothed with a rea- ! sonable discretion to determine the manner , in which such act shall be done; all the reasonable methods of executing such power are inferred. Louisville Nat. Gas Co. v. State (decided Sept. 19, 1S93) 34 N. E. 702; Thornt. Mun. Law, § 3106, note 3, and cases cited. The right of removal, by contract or otherwise, being vested in the city, it was for the common council to determine whether the work should be paid for out of the city treasury, or by the person producing the garbage, and their action is not subject to review here. It may be that the hotel and restaurant keepers will lose money on their garbage under the workings of this contract, where they before derived a revenue; but if, under this plan, the sources of contagion and disease will be more speedily and effectively removed, the city was empowered to make this contract. It may be that the common council thought it unjust that the household- ers who produced a small amount of garbage should be taxed to assist in removing the large accumulations of hotels and restau- rants, but we have nothing to do with the motives that prompted the act In question. We find no error in the record. The judg- ment is aflirmed. McCABE, J. (dissenting). I cannot concnr in all the reasoning in the foregoing opinion, though I do not dissent from the general conclusion reached. I am unable to concur in so much of the opinion as holds that per- sons whose business creates the large quan- tities of slops and offal, and which is of large value, are liable to have the same taken from them and destroyed without compensa- tion. I do not think it within the power of the legislature or the city to confiscate the private property of the citizen, and destroy it, except upon necessity. I do not think there is any necessity to do so with such large quantities of offal and slops until its owners have refused to comply with reason- able regulations for the removal thereof by such owners. EEGULATIOX OF OCCUPATIONS AND AilUSEMENTS. 101 Ex parte LACEY. (Cr. 33.) (41 Pac. 411. 108 Cal. 32G.) Supreme Court of California. Aug. 1, 1895. In bank. Petition of James Lacey for writ of habeas oorpiis. Denied. D. p. Hatch and R. B. Treat, for petitioner. C. McFarland, for respondent. GAROUTTE, J. The petitioner has been convicted and imprisoned for violating a city ordinance of the city of Los Angeles which provides: "No person or persons shall estab- lish or conduct any steam shoddy machine, or steam carpet-beating machine, within one hundred feet of any church, schoolhouse, res- idence or dwelling-house." He now alleges the judgment void, upon the ground that the ordinance is void, and seeks his release by writ of habeas corpus. lie claims the ordi- nance void upon the ground that it interferes with certain of his inalienable rights vouch- safed to him by the constitution. Upon the part of the city, it is claimed that the pas- sage and enforcement of the ordinance is but the exercise of a police power granted to it in terms by the constitution of the state. The constitution of the state of California (article 11, § 11) provides: "Any county, city, town or township may make and en- force, within its limits, all such local, police, sanitarj- and other regulations as are not in conflict with general laws." It will thus be observed that Los Angeles city is vested with certain powers by direct grant from the constitution, and that gi*ant of power is not confined within narrow limits, but is broad and far-reaching in its scope and effect. Un- der this grant of power the city had the right to pass this ordinance, unless it is in con- flict with general laws; and we know of no general laws which conflict with it, unless it can be said to be violative of those general principles of constitutional liberty which form the very foundation of both the state and federal constitutions. We see nothing in the language of this ordinance contrary to these great principles of our government. We see nothing there depriving petitioner of any I fundamental right. In the exercise of its police and sanitaiy power, the city has at- tempted to regulate the business of beating carpets by steam power. Under its constitu- tional grant, it had the right to regulate this business. The use of steam power, of itself, within municipal tenitory, has always been recognized as a proper subject of regulation; and, in addition, here it may well be as- sumed that the dust and other disagreeable and unhealthy matters arising in such quan- tities from the beating of carpets, as would naturally be indicated by the use of steam power, are a constant source of danger and menace to the good health and general wel- fare of the neighborhood where located. Conceding the business covered by the pro- visions of this ordinance not to constitute a nuisance per se, and to stand upon different grounds from powder factories, street ob- structions, and the like, still the case is made no better for petitioner. This is not a ques- tion of nuisance per se, and the power to regulate is in no way dependent upon such conditions. Indeed, as to nuisances per se, the general laws of the state are ample to deal with them. But the business here in- volved may properly be classed with livery ' stables, laimdries, soap and glue factories, > etc.,— a class of business undertakings, in the conduct of which, police and sanitary i regulations are made to a greater or loss de- / gree by every city in the country. And in I this class of cases it is no defense to the va- lidity of regulation ordina)ices to say, "I am / committing no nuisance, and I insist upon / being heard before a court or jury upon that / question of fact." In this class of cases a defendant has no siich right. To the extent that it was material in creating a valid ordi- / nance, we must assiirae that such question / was decided by the municipal authorities, | and decided against petitioner and all others similarly situated. This court said in Ex parte Shrader, 33 Cal. 2S4: "The legislature can add to the mala in se of the common law the mala prohibita. of its own behest. * * * The power to regulate or prohibit, conferred upon the board of supervisors, not only in- cludes nuisances, but extends to everj-thing expedient for the preservation of the public health and the prevention of contagious dis- eases. Now, there are many things not com- ing up to the full measure of a common-law or statute nuisance that might, both in the light of scientific tests and of general experi- ence, pave the way for the introduction of contagion, and its uncontrollable spi-ead thereafter. Slaughterhouses, as ordinarily, and perhaps invariably, conducted in this country, might, within the limits of reason- able probabilit}-, be attended with these con- sequences. A competent legislative body has passed upon the question of fact involved, and we cannot go behind the finding. So far as we can know by this record, the power conferred has been exercised intelligently, and in good faith." It must be borne in mind that the court was not discussing this question from the standpoint that the con- duct of a slaughterhouse within municipal territory constituted a nuisance per se. In the case of Johnson v. Simcnton, 43 Cal. 249, which involved the constitutionality of an ordinance of the board of supervisors of San Francisco prohibiting the feeding of still slops to milch cows, the court says: "If, in- deed, it be a fact that the milk of cows fed in whole or in part uiwn still slop is un- wholesome as human food, there can be no doubt of either the authority or the duty of the board to enact the ordinance in question, and the scientific correctness of the deter- mination by the board of the matter of fact involved is not open to inquiry here." In the case of In re Jacobs, 98 N. Y. 98, the court 102 THE POLICE POWER— SCOPE AND LIMITATIONS. declares the following rule for testing the validity of ordinances enacted under the po- lice power of a municipality: "When a I health law is challenged in the courts as un- ' constitutional on the ground that it arbi- trarily interferes with personal liberty and private property, without due process of law, the courts must be able to see that it has at least, in fact, some relation to the public health; that the public health is the end nat- urally aimed at; and that it is appropriate and adapted to that end." Ti-ied by this rule, the ordinance in question fairly and fully fills the requirements of the law. It cannot be urged that petitioner is deprived of his property without due process of law, for, as is said by Judge Dillion in his work upon Mu- nicipal Corporations (section 141), in speak- ing of police and sanitary regulations: "It is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not un- constitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers in- jury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for It by sharing in the general benefits which the regulations are intended and calculated to secure." This ordinance is not unreason- able nor arbitrary nor discriminating. It treats all persons alike who are engaged in the business named therein. AH have the j same rights, and all are subject to the same burdens. It is not unreasonable in the lim- its of distance fixed. As to the location of the exact spot distant from a church or a schoolhouse or a dwellinghouse, where an ordinance would cease to be reasonable, it is not for this court now to say. The limits here prescribed are those with which we are to deal, and those limitations of distance may well be said to be reasonable. We see no substantial objection that can be made to the validity of this ordinance. Upon the contrary, the subject-matter covered by it is clearly one with which the city had the constitutional right to deal, and the business- es there enumerated are unmistakably those which the municipal authorities had the right to regulate, in the interest of the com- fort and good health of the people of the city. The power is vested in the city, by direct grant from the constitution, to control and regulate business undertakings of the char- acter here involved, and petitioner's consti- tutional rights have in no way been tres- passed upon. It is therefore ordered that pe- titioner be remanded. We concur: McFARLAND, J.; HARRI- SON, J.; VAN FLEET, J.; TEMPLE, J. CONSTRUCTION OF BUILDINGS. 103 STATE V. JOHNSON. (19 S. E. 599, 114 N. C. 846.) Supreme Court of North Carolina. April 24, 1894. Appeal from superior court, Forsyth coun- ty; Boykin, Judge. F. R. Johnson, convicted of violutin,? a fire ordinance of the city of Winston. Appeals. Afhrnied. Watson & Buxton, for appt>llant. The At- torney General and Glenn & Manly, for the State. AVERY, J. Municipal corporations are the creatures of the legislature, and their powers may be curtailed, enlarged, or withdrawn at the will of the creator, whose control over them is limited only by the restriction that no statute will be enforced which impairs the obligation of a contract, interferes with vest- ed riglits, or is in conflict with any provision of the organic law of the state or nation. It is too well settled to recapitulate, or even .iustify discussion, that towns,— certainly, by virtue of an express grant of authorit5^ to do so, and, according to most authorities, by im- plication arising out of the general welfare clause, — if there is no general law to the con- trary, are empowered to prescribe a fire limit, and forbid the erection of wooden buildings Avithin such bounds as they may, by ordinance, prescribe. 15 Am. & Eng. Enc. Law, 1170; 1 Dill. Mun. Corp. § 405; Horr & B. Mun. Ord. § 232; KUngler v. Bickel, 117 Ra. St. 32G, 11 Atl. 555. The weight of authority seems to be also In favor of the proposition th;i^ the legislature has the pow- er to prevent the erection of wooden build- ings in such corporations, or to delegate to the municipalities the authority to do so, even where the enforcement of the law or ordinance causes a suspension of work in the erection of structures of this kind by per- I sons who are carrying out contracts for their I erection made previously with the owners of the land. Cordes v. Miller, 39 Mich. 581; Ex parte Fislce, 72 Cal. 125, 13 Pac. 310. Persons, in contemplation of law, contract with reference to the existence and possible exercise of this authority, when it is vested in the miuiicipality. City of Salem v. Maynes, 123 Mass. 374; Munn v. Illinois, 94 U, S. 113; Woodlawn Cemetery v. Everett, 118 Mass. 354; Com. v. Intoxicating Liquors, 115 Mass. 153; Knoxville Corp. v. Bird, 47 Am. Rep. 326. Upon this same principle, all agreements for building are deemed to be entered into in view of the contingency that such power may be granted by the legisla- ture, when it has not already been delegat- ed, while the contract is still in fieri. 15 Am. & Eng. Enc. Law, 1171. While it might be unreasonable to prohibit even the slight- est repairs to wooden buildings standing within the fire limits prior to the passage of a statute or ordinance establishing such lim- its, the power to prevent repairs is delegated, and presumably exercised, for the protection of property; and, where a wooden structure within the bounds is partially destroyed by a fire already, it is not unreasonable to re- quire a new roof to be made of material less liable to combustion, or to forbid the repairs altogether when the damage to the building is serious, and. to that end to compel the owners to give notice to the town authori- ties of their purpose to repair, and of the character of the contemplated work. Vil- lage of Louisville v. Webster, 108 111. 414. We are aware that there is much conflict of authority as to the reasonableness of ordi- . nances forbidding all repairs, or the enforce- f ment of them so as to prevent replacing ' roofs with tlie same material used before their destruction. Horr & B. Man. Ord. p. 214, § 233; Brady v. Insurance Co., 11 Mich. 425; Ex parte Fiske, supra. But in this j particular instance the legislature has grant- ed a nnmicipality the power to supervise, or prevent the replacing of the roof with an- I other of shingles, instead of constructing one of material less liable to destruction; and we i are not prepared to question its authority to ' do so, since, upon the principle already an- nounced, persons contracting with reference • to the chances of the gi-anting as well as the ' exercise of such powers acquire no vested i rights, and afterwards voluntarily incurring I all of the risks incident to their situation, ^ have no reason to complain of the loss when i it befalls them. The com-t imposed a fine of ' $50. There was no attempt to enforce the portion of the ordmance imposing a penalty of $10 for every hour the building was per- mitted to remain. There may be more doubt as to the reasonableness of that provision. Com. V. Wilkins, 121 Mass. 356. But it is not necessary to pass upon a question not fairly raised, and we forbear to do so. Th^ judgment is aflBrmed. 104 THE POLICE POWER— SCOPE AND LIMITATIONS. KAUFMAN V. STEIN. (37 N. E. 333, 138 Ind. 49.) Supreme Court of Indiana. May 8, 1894. Appeal from circuit court, Vigo county; C. F. McNutt, Judge. Action by Peter J. Kaufman against Nieliolas Stein for an injunction. From a judgment for defendant, plaintiff appealed. Reversed. T. W. Harper and A. B. Felsonthal, for appellant. Jump, Lamb & Davis, for ap- pellee. DAILEY, J. This was an action for an injunction commenced by the appellant against the appellee. The appellee entered an appearance to the action, and filed a de- murrer to the complaint, for the reason that the complaint "does not state facts to constitute a cause of action against the defendant." The material allegations con- tained in the complaint are as follows: (1) That plaintiff (appellant) is the owner of lot 31 in Rose'.s addition to the city of Terre Haute; (2) that there are upon said lot a dwelling house and other buildings; (3) that defendant owns an adjoining lot to plain- tiff's said premises; (4) that upon defend- ant's lot there is a large frame biiilding; (5) that both plaintiff's and defendant's lots are within the fire limits of the city of Terre Haute; (6) that the common council of the city of Terre Haute had lawfully adopted an ordinance establishing "fire limits," a copy of which is filed with the complaint and marked "Exhibit A," and which ordinance wa,s in full force at the time of the com- mencement of this suit; (7) the ordinance provides that no wooden buildings shall be erected within ,said limits; that if siich building has been heretofore erected within said limits, and it shall be removed, it shall not be relocated within the fire limits; (8) that defendant is about to remove the said frame building now on his lot, and relocate the same within said limit.s, 20 feet nearer plaintiff's house, and within 4 feet of plain- tiff's property, and 10 feet from plaintiff's frame dwelling house, thereby increasing the danger from fire, and making the danger im- minent, increasing cost of insurance, etc.; (9) that the defendant has the tools, men, and machinery ready to remove the same, and Avill do so unless restrained; (10) that (l(>fendant will not encase hi,s said frame building with stone, iron, or brick, so as to render it fireproof. Tlie court sustained the demurrer, to which appellant excepted, and stood on his comi)laint, whereupon the court rendered judgment for appellee, from which ruling and action of the court appellant duly appealed. In the case here presented, the complaint avers, and the demurrer ad- mits, that the removal and relocation of the appellee's frame building, as threatened, will put the appellant's property in imminent danger from fire. From the briefs of counsel it appears that f one point made by counsel for the appellee, ' In argument on the demurrer before the court below, was "that the claintiff was not entitled to maintain this action, but that the city would alone enforce the penalty pro- vided by the ordinance," "or, in other words, that an individual could not have an injunc- tion in such a case, even if the ordinance in question here was in all its provisions valid, as being within the power of the common council to adopt, because the only remedy in such case was by a prosecution in the name of the city for a violation of the ordi- nance." Coiinsel say they do not rely upon this proposition. They concede that "where an individual shows that he suffers or will sustain special damages or injury, above and beyond what the public generally will suffer, by reason of anything which may constitute an injiu'y or damage to the public generally, he may maintain such an action as is proper in the given case to recover damages for, or ; to prevent, the doing of such a thing." An I individual has, and always had, the right to enjoin the erection or continuance of a | nuisance, where he will suffer a special in- jm-y or annoyance, different in kind and de- gree to that su'stained by the public gen- erally. Keiser v. Lovett, 85 Ind. 240; Reich- ert V. Geers, 98 Ind. 73; Owen v. Phillips, 73 Ind. 285. In Baumgartner v. Hasty, 100 Ind. 575, at page 579, it is said: "It is one of the oldest common law rules that an indi- vidual citizen may, without notice, abate a nuisance, and, if necessary to effectually abate it, destroy the thing which creates it." A wooden building is not a nuisance per se. It is the circumstances that make it a nuisance. A powder mill is not a nuisance per se, nor is a slaughterhouse or glue factory, but. if located in populous neighborhoods, they are nuisances; and "even when they are originally built in a place remote from the habitations of men, or from public places, if they become actual nuisances by reason of roads being after- wards laid out in their vicinity, or by dwell- ings being subsequently erected within the sphere of their ett'ects, the fact of their ex- istence prior to the laying out of the roads or the erection of the dwellings is no de- fense." Wood, Nuis. 572; Reichert v. Geers, 98 Ind., at page 75; Baumgartner v. Hasty, supra. In the case last cited, Elliott, J., says: "A wooden building is not in itself a nuisance but when erected in a place pro- hibited by law, and where it endangers the adjoining propcu-ty, it may become a nui- ,sance. * * * There are many things that are not nuisances per ,se, but which become such when placed in locations forbidden by law," etc., citing Wood, Nuis. § lOi). We, think the complaint iindcr consideration brings this case within the nde thus laid down, as it is alleged that the building is a wooden structure, that it will be removed to a place within the fire limits in violation of a city ordinance forbidding it, and that it will be located within 10 feet from the CONSTRUCTIOJ^" or BUILDINGS. 105 ,' plaintiff's frame house, making the danger I imminent. Upon the proposition "that the common council of the city of Torre Haute had no power to pass the ordinances in ques- tion," it is insisted that, "inasmuch as the charter had granted certain spccitic powers to the city, * * * none other could be exorcised." The charter provisions are found in Rev. St. ISSl, § 310G (Burns' Rev. St. 1S'.)4, § 3541, subd. 32), which provides that the common council shall have power "to prevent the erection of wooden build- .ings in such part of the city as the common council may determine." Al,so in sections 3108 and 31U9. Rev. St. 1881, being 3()(il and 3fiG_', Burns' Rev. St. 1804. It is clear that . the specific power granted by subdivision f 32, supra, is to prevent the "erection" of wooden buildings. Nothing is said about the "removal," and it is insisted, therefore, that I so much of the ordinance as atten^pts to I prevent tlio removal of wooden buildings within or without the fire limits is ultra vire.s / and void, and in contravention of common I right of an owner to do as he pleases with his own property. The provisions of the ordinance are, in brief, as follows: Section 1 defines the fire limits; section 2 provides that no frame building shall be erected with- in the fire limits; section 3 provides a penal- ty for removing or assisting to remove any frame building fromi a point within or with- out to a point within the said fire limits; section 4 provides that any building so erect- ed or removed shall be deemed a nuisance; section 5 provides against the location of J lumber yards within said hmits. Appellant admits mat the authority to pass an ordi- I nance against the removal of a wooden build- ing i,s not specifically granted, but insists that it comes within the intention of the [ legislature; that the object of granting the power to the city was to enable the common r council to take precautions against the de- I struction of the city by fire. In the case of Clark V. City of South Bend, 85 Ind. 2TG, the same point was presented that is now urged, but the court said: "This is a more narrow view of the subject than the books warrant I counsel in a.ssuming." If the ordinance in ' question concerning removals of buildings is so in derogation of common right as to 1 be void, and if the common council is re- stricted in its legislative acts to such ordi- ' nances only as are literally in compliance with the statutes, it could not prohibit the I removal of frame buildings, but only the erection thereof within the limits, and any ; person so desiring could construct his house ' outside of the fire limits, and then I'emove it to a place within, and by a series of re- / movals there might be no end of frame buildings brought within such limits. Such I consti'uction would permit parties to accom- ' pli.sh indirectly what they could not do di- j rectly, and so evade the ordinance as to I render it nugatory. If the power is to be sti'ictly construed, what is there to prevent the erection of a lumber yard upon each vacant lot of the city? The express power is "to prevent the erection of wooden build- ings." A lumber pile is not a building, and there is no express power given the city to prevent a lumber yard within the fire limits; yet who woidd question the inherent right of the council, in the exercise of its police power, to provide against and inhibit the heaping of such combustible material so as to endanger property rights? In the case of Clark V. City of South Bend, supra, the ordi- nance prohibited the accumulation of straw. The court said: "There can be no doubt that the legislature meant to confer broad powers upon municipalities in the matter of providing against danger from fires." And the ordinance was held valid, even though, as here, there was no express power. It is simply a police regulation, and as is said in Brady v. Insurance Co., 11 Mich. 425, "of the power of the common council to pass tlie ordinances in question we have no doubt. They contravene no provision of the consti- tution as we read it, and they were made in the exercise of a police power necessary to the safety of tlie city." It is provided in section 31.55, Rev. St. 1881, being section 3(j16, Burns' Rev. St. 1894, that "the common coun- cil shall have power to make other by-laws and ordinances not inconsistent with the laws of the state, and necessary to carry out the object of the corporation." We think the ordinance in question violates no pro- vision of the constitution or laws of this state, and that, without any charter pro- vision, the ordinance would be a valid act, based upon an inherent right. We are aware that the doctrine of "inherent right" is dis- puted in some of the states a,s appears by the following authorities: State v. Schu- chardt (La., 1890) 7 South. 67; Kneedler v. Borough of Norristown. 100 Pa. St. 3G8; City of Des Moines v. Gilchrist, 67 Iowa, 210, 25 N. W. 136; Pye v. Peterson, 45 Tex. 312. But in 15 Am. & Eng. Enc. Law, p. 1170, it is said: "The decided weight of authority in this country is that municipal corporations have the power, under the general welfare I clauses usually contained in their charter,s, | without express legislative grant, to estab- lish fire limits, forbidding the erection of wooden buildings, etc." To support this doctrine the author cites a great number of decisions, and in note 1 says: "The.se cases all rest on solid principle, for the rule has always been that a municipal corporation has the inherent power to enact ordinances for the protection of the property of its citi- zens against fire,"— citing the cases, among others, of Clark v. City of South Bend, supra; Baumgartner v. Hasty, .supra; Northwcstirn Fertilizing Co. v. Hyde Park, 97 U. S. 659; Kent, Comm. 330. The remaining question to be considered is: Was there an erection of a building, or a re- moval thereof, within the meaning of the ordinance? In some of the states the re- moval of a building, and locating the same 106 THE POLICE POWEE— SCOPE AND LIMITATIONS. upon another spot, is held to be an "erec- tion." Wadleigh v. Gilman, 12 Me. 403. Al- so, "to enlarge or elevate a wooden building so as to alter its character is an erection of such building within the meaning of the or- dinance." Douglass V. Com., 2 Rawle, 2G2. In Connecticut, however, a removal taking place wholly within the fire limits is not such "erection." Dagget v. State, 4 Conn. 60; Booth V. State, Id. 65; Tuttle v. State, Id. 68; State V. Brown, 16 Conn. 54; Brown v. Hunn, 27 Conn. 334. The word "erect" is defined in Anderson's Law Dictionary, p. 410: "To lift up, build, construct; as, to erect a building, a fixture. Removing a building is not erecting it, nor is elevating or materially changing it" The weight of authorities supports the position held by the courts of Connecticut on this question. It is insisted by the appellee that, as the net threatened does not contemplate the taking of the house from the lot it occupies, it would not constitute a removal within the meaning of the ordinance. Webster defines the word "remove" to be: "To move away from the position occupied; to cause to change place; to displace; as, to remove a building." Of course, the removal must be a substantial one. The mere turning of a building, or the change of the foundation so as to permit the erection of a bay window, could hardly come within the rule. But the fact that the structure is not to be taken fi-om the lot upon which it was originally built, or where it stands, cannot be the cri- terion. The word "lot" contains no legal or other meaning as to quantity, except it is a distinct portion of land, usually smaller than a field. It is such part as the owner may fix in his plat. It may be large or small. A man might move his house over considerable space, and still leave it on his lot. If the house were taken from one man's land and located on another's, there can be no doubt it woiild be a removal, and yet the test is not that by the contemplated change the house is to be set in a particular spot or position. The allegation is that the appellee was about to remove it 20 feet near- er appellant's land, and within 10 feet of his house. That assertion is admitted by the demm'rer to be true. This court cannot say, as a matter of law, that a removal of 20 feet is not a substantial removal of the house. If it was not a removal, the facts showing that it was a mere change sliould have been stated by way of answer. The language of the complaint is: "That defendant is about to remove the said frame building upon his- lot, and relocate the same within said [fire] limits, 20 feet nearer the plaintiff's house, and within 4 feet from plaintiff's property,." and 10 feet from plaintiff's frame house," etc. It will be thus seen the charge is that defendant is about to remove and relocate the entire building. The expression used | negatives the idea that the mere form of the . building was to be changed, and conclusively [ shows that the intended change materially increases the risk and danger from fire to 1 plaintiff's building, and also increases the ' rate of insurance. It is true a removal of I 20 feet is not a great one, but, if the appeUee / can evade the provisions of the ordinance by removing his house and relocating it 20 feet j away from its former location, on Uke rea- soning why not 200 or 2,000 feet? If appel- lee had sold part of his lot, and the purchas- er had desired to buy and remove the house in question 20 feet nearer plaintiff, and re- locate it iipon the part of the lot so pur« chased, would anybody contend it would not constitute a removal? We think it can make no difference as to whom the property upon which it is to be removed and relocated be- longs. When the common council of the city defined the fire limits, it is presumed they did so with reference to the exact location of aU the buildings within the limits. In our opinion, the court erred in sustaining the de- muiTer to the complaint. For this error the judgrnent of the court below is reversed, and the cause remanded, with instructions to overrule said demurrer. IMPOUNDING OF ANIMALS. 107 COCHRANE V. MAYOR, ETC., OF CITY OF FROSTBURGH (31 Atl. 703. 81 Md. 54.) Court of Appeals of Maryland. March 26, 1805. Appeal from circuit court, AlloKany county. Action by Jennie Cochrane against the niaj'or and council of Frostburgh. Judgment for defendant, and plaintiff appeals. Re- versed. Argued before ROBINSON, C. J., and BRYAN, McSIIERRY, FOWLER, PAGE, ROBERTS, and BOYD, JJ. Benj. A. Richmond and Robt. R. Hender- son, for appellant. David W. Sloan and A. A. Doub, for appellee. BOYD, J. The appellant sued the appel- lee for injuries sustained by her by being horned, tossed, thrown down, and trampled upon by a cow which attacked her while she was walking along a lane or street of Frost- burgh. The defendant demurred to the dec- laration, and the demurrer was sustained by the court below, and judgment entered for the defendant. From that judgment this ap- peal was taken, and we are therefore to in- quire into the legal sutticieucy of the declara- tion, and determine whether the facts there- in stated, which are admitted by the demur- rer, give the plaintiff a right of action. It is alleged that the defendant was by its charter vested with control over all the streets, lanes, and alleys of Frostburgh, and with full power to provide by the passage and enforcement of ordinances for the com- fort, good order, health, and safety of all the inhabitants of said town residing within the limits and passing along and over its streets, lanes, and alleys, and with power to prevent and remove all nuisances in said town, and to shield and protect said inhabitants there- from; that the said town is laid off into streets and alleys, contains between four and five thousand inhabitants, and is compactly built, so that there is a great deal of travel and walking on said streets and alleys. It is further averred that large numl)ers of horses, cows, hogs, and horned cattle were turned loose and permitted to run at large upon the streets, unattended, during the day and night, by means of which "said stock, and particularly said cows (they being armed with dangerous horns and equipped with an- noying bells), became a common nuisance, and a source of great annoyance and danger to persons passing along said streets and al- leys, and particularly so as to women and children, who were attacked and friglitened by said stock, whereby the safety and com- fort of the inhabitants and the good order of said town were desti'oyed, and whereby the same became, and, at the time of the griev- ances hereinafter set out, was, a common and notorious nuisance, and a constant source of dangerous discomfort to the inhabitants of said town." It is then charged that by rea- son of the powers contained In the charter it became the duty of the defendant to pass and enforce ordinances to abate and prevent .said nuisance, and to prevent said animals from running at large, and require their own- ers to keep them off the streets, unless at- tended by some person in charge thereof; but that the defendant, unmindful of its duty, negligently and wrongfully failed and refused to pass any such ordinances for the preventing and abating said nuisance, and negligently, willfully, and wrongfully re- fused to take any steps whatever to prevent said stock and troublesome and dangerous animals from running at large on said streets, and that, while said nuisance still continued, plaintiff was walking on a street or lane of said city, using due care and caution, and was attacked by one of the said cows and horned cattle so by the said defendant neg- ligently and wrongfully allowed and pemiit- ted to be at large upon the said streets, and was violently homed, tossed, thrown, and trampled upon, etc. The injuries sustain- ed by plaintiff are then set out in detail, showing that both of her arms were broken, her side torn, and that she was otherwise seriously and permanently injured. If the defendant can be held responsible in any case to one lawfully using its streets for injui-ies inflicted by a cow ninning at large, the allegations in this declaration are certainly suiiicient to entitle the plaintiff to recover, if she can siistain them by compe- tent proof. In determining whether the de- fendant is so liable, we will consider: (1) / Has the mayor and city council of Frostburgh power, under its charter, to prevent stock / from running at large within the corporate limits? (2) If it has such power, what are / the consequences of its neglect or failure to ' do so? Article 1, § 144, of the Code of Public Lo- cal Laws authorizes the mayor and city council of Frostburgh to pass suchoi-dinances, not contrary to law, as they may deem beneficial to the town; gives the power ta remove nuisances and obstructions upon the streets, lanes, and alleys, and to ordain and enforce all ordinances, rules, and regula- tions nece.ssary for the peace, good order, health, and safety of the town, and of the people and property therein; and authorizes them to impose fines, forfeitures, or im- prisonment for the violation of any oixii- nances of the town. Those powers are, in substance, the same as those of the charter of the city of Cumberland, which were pass- ed upon in the case of Taylor v. Mayor, etc., 64 Md. 68, 20 Atl. 1027. This court there held that the defendant was authorized and required under its charter to prevent per- sons from coasting on the streets, if it could do so by ordinary and reasonable care and diligence, and declared such use of the streets to be u nuisance. There was no spe- cial authority given in the charter of Cum- berland to prevent coasting on the sti*eeitSr 108 THE POLICE POWEE— SCOPE AND LIMITATIONS. but the power of the city to do so was not only not questioned, but was expressly rec- ognized, in that case. If a municipality can without express powei"S in its cliarter pro- hibit the use of its streets for coasting, why should it not have the power to prohibit the use of them by horses, cows, hogs, and horn- ed animals "during both the night and in daytime, and at all times and on Sundays," as it is alleged in the declaration, especially when the cows are "armed with dangerous horns and equipped with annoying bells"? It is difficult to imagine a condition of things more calculated to injuriously affect, if not destroy, "the peace, good order, health, and safety of the town, and of the people and property therein." than that described in the ! declaration. It is true that the decisions are not uniform as to whether what is called "the general welfare clause," usually con- tained in charters, authorizes municipal cor- porations to restrain domestic animals from mnning at large, but many of them so hold. See 15 Am. &. Eng. Enc. Law, 1188, and note, where a number of them will be found col- lected together. There can be no good rea- son assigned why it should not, unless there be some statute law or some other provision of the charter inconsistent with such con- struction. In those cases in which it is held that municipal coii^orations cannot without special authority pass and enforce ordinan- ces of this character it will generally be found, upon examination of them, that it is by reason of some statute or other special cause that would not apply to the case under cooi- sideration. For example, in the case of Col- lins V. Hatch, 18 Ohio, ."»2o. so much relied on by the learned counsel for the appellee, the court said that an ordinance to restrain horses, cattle, swine, etc., from nmning at large could not be adopted under the gen- eral welfare clause, as it would be in con- travention of the general laws of tha^t state, which allowed such animals to run at large. Is it to be said that the owners of horses, <:ows, and other animals can turn them loose in the public streets of a town such as de- scribed in the declaration, and the author- ities have no means to prevent it unless the legislature has given them expi-ess power? It is not necessary to detennine whether do- mestic animals can be impounded and for- feited without express autliority being given In the charter, but, with powers as broad as those in the charter of defendant, there would seem to be no valid reason why it could not pass and enforce ordinances pro- hibiting stoclc from running at large, and Imposing penalties for the violation of them. I If the owners of cows and horses tied them along the public streets of Frostburgh so as to interfere with the free passage of people having the right to use the streets, it could not be successfully contended that the au- thorities were without remedy. Why, then, should they be permitted to tum them loose, thereby not only obsti-ucting the free and proper use of the streets, but permitting them to wander over the sidewalks, to frighten and possibly injure women and children? It was contended by the appel- , lee that it is customary in this state to grant ' special powers to such municipal corpora- / tions as desired to prevent stock from run- ning at large, and hence, when it is omitted I from a charter, the presumption is that it ; was not intended by the legislature that' such power should be exercised. "We do not | think that such a conclusion can properly be I drawn. Various reasons might be given for such omission. Some of those municipali- ties may have been so disturbed by animals running at large that they wanted to empha- size that power to restrain them, or they may have thoiitrht it safest to include such powers, to avoid any question. In the brief for appellee certain towns are named which have the power expressly granted them to prevent cattle from running at large, and it is stated that Hagerstown, Frederick, and others have no such power conferred on them. It would seem to be a most unrea- sonable construction to place upon the action of the legislature to say that, inasmuch as it has grantetl this express power to some towns of the state, but has omitted it in the charters of Hagersto\\Ti and Frederick, therefore these two cities, which are among the largest in the state, were intended by the legislature to be prohibited from exer- cising such powers. Tliere may be no such provision in the charter of Baltimore city, yet it would scarcely be claimed that it could not prohibit stock from running at large under the general powei"s vested in it. The object of such a provisiion as the gen- \ eral welfare clause is to cover those cases not specifically designated. It would be im- ' possible to enumerate in detail in a charter of ordinary length all the powers that a cor- j poration could exercise. The very effort to name them all might exclude some that were \ omitted, but would have been axithorized un- der the general welfare clause, if an attempt had not been made to itemize them. We think it clear that the defendant has the power under its charter to pass and enforce ordinances to prevent stock from running at large within its limits, and tliat the condition of affairs described in the declaration is a nuisance of such character as should be abated, for the peace, good order, and safety 1 of the people and property of the town. It becomes necessary, therefore, to con- sider the second inquiry above suggested, namely, what are the conseqiu'nces of the neglect or failure of the defendant to exer- cise its powers? We have been referred to a number of authorities outside of this state to the effect that a municipality is not liable for the injuries sustained by reason of its failure to abate a nui.sance, although it has power to do so. But that is no longer an open question in this state. It was said in Marriott's Case, 9 Md. 174, that, when a stat- IMPOUNDING OF ANBIALS. 109 / ute conferred a power upon a corix)raHoTi to I be exercised for the public good, the exer- Icise of the power is not merely discretion- ary, but imperative, and the words "power and authority" in such case may be con- strued "duty and obligation." It was there . held that the city of Baltimore was requir- I ed to pass ordinances sufficient to reach the exigencies of the case, and was bound to see that they were enforced. Mason, J., in deliv- ' erinjr the opinion in that ease, said: "The people of Baltimore, in accepting the privi- leges and advantages conferred by their charter, took them subject to the burthens and restrictions which were made to ac- company them under the same charter. One of those burthens was the obligation to keep the city free from nuisances. A disregard of the obligations thus imposed would be at- tended with the same consequences which would result to the individual at common law were he to disregard his obligations to the community in these particulars. As the duty is the same in a corporation as an in- dividual, so are the consequences the S'ame for its disregard." On page 175 the court quotes with approval from the case of Pitts- burgh V. Grier, 22 Pa. St. 65, that 'It Is no matter whether that duty [removing a nui- sance] remains unperformed because it had no ordinances on the subject, or because, having ordinances, it neglected to enforce them. The responsiliilities of a corporation are the same in either case." In Taylor's Case, supra, it was held that the conwration was under an obligation to exercise for the public good the powers conferred on it by Its charter to prevent nuisances, and to pro- tect persons and property. So, whatever may be the law elsewhere, it is well settled in tliis state that a corporation having such powers nj_ust exercise them, and is ordinarily liable for its faljure to do so to any person who lias received special damage therefrom, who is not himself in fault Of course, as was said in Taylor's Case, if it use ordinary and reasonable care and diligence to prevent the nuisance, its duty is discharged, and it is relieved from responsibility, and a vigorous effort to enforce its ordinance on the sub- ject would fulfill its duty in this respect.i ******* 1 Part of the opinion is omitted. 110 THE POLICE POWER-SCOPE AND LIMITATIONS. SOUTH COVINGTON & C. ST. RY. CO. v. BERRY, Mayor, et al. (18 S. W. 1026, 93 Ivy. 43.) Court of Appoals of Kontucky. March 19, 1892. Appeal from chancery court, Campbell XJouDty. Action by the South Covington & Cincin- jiati Street-Railway Company against A. S. Berry, mayor, and others. Judgment for de- fendants. Plaintiff appeals. Atiirmed. Simrall & Mack, for appellant. Chas. J. Helm, for appellees. HOLT, C. J. The appellant, the South Cov- ington & Cincinnati Street-Railway Company, has the charter privilege of operating a street rnilway upon certain streets of the city of Newport. The driver of each car also acts as conductor. The line has been operated in this way for over 20 years. The board of councilmen passed this ordinance: "That all street-cars running in the city of Newport shall have two persons— a driver and a con- ductor—on each car; and every failure to have said driver and conductor on each car shall subject the president and each of the otticers of the company controlling said car or cars to a fine of not less than twenty-five dollars or more than one hundred dollars for each and every day; and the police of said city shall cause any car without driver and conductor to be returned to the stable." The appellees, the mayor and chief of police of the city, being^ about to enforce the ordinance by having the company's officers arrested, and its cars returned to the stable, this action was brought enjoining it. If the ordinance was invalid, then, to pre- vent a multiplicity of prosecutions, and such ccnsequences as would necessarily result from its enforcement, the company had a right to ask preventive equitable relief. This is often done to prevent illegal exercise of power by municipal authorities. Brown v. Trustees, 11 Bush, 435; City of Newport v. Bridge Co. (Ky.) 13 S. W. 720. The supreme court of the United States said in Ewing v. City of St. Louis, 5 Wall. 413: "With the proceedings and determinations of inferior boards or tribunals of special jurisdiction courts of equity will not interfere, unless it should become necessary to prevent a multi- plicity of suits or irreparable injury, or unless the proceeding sought to be annulled or cor- rected is valid upon its face, and the alleged invalidity consists in matters to be estab- lished by extrinsic evidence." Several ques- tions are presented as to the ordinance: First. Had the city the power to enact it? Second. Was it an exercise of police power? Third. Does it impair the company's contx'act rights? Fourth. Can it be enforced by a re- turn of cars to the stable? The city charter provides: "They [board of councilmen] shall have power to pass all ordinances and by- laws, not in conflict with this charter or the constitution of this state, that may be neces- sary for the due and effectual administration of right and justice in said city, and for the better government thereof. They may affix such penalties for violation of ordinances, not to exceed one hundred dollars, or imprison- ment in the w'ork-house or jail not exceeding six months, or both, in the discretion of the court, for each offense, as they may deem the good order and welfare of the city may require." It also provides: "They shall have power to cause the removal or abatement of any nuisance. * * *" The powers of a municipalitj^ are confined to those expressly granted, or those essential to the execution of those so granted. They are mere agencies of the sovereign authority of the state, and can tlierefore exercise no powers except those expressly conferred, or those essential to the accomplishment of the purposes of the incor- poration. Tliey must be either expressly granted, or necessarily implied as incident to those so granted, or essential to the object and purposes of the corporation. Clearly no power is attempted to be expressly given in the charter to regulate the number of em- ployes on the street-railway cars, or how they shall be operated; but, if the requiring of both a driver and a conductor be the exer- cise of the police pow'er, then the provision of the charter above cited authorized the enact- ment of this ordinance. If it be not a police regulation, but a mere attempt to enter into and regulate the company's business, then it cannot be sustained. These cars run between the cities of Newport, Covington, and Cincin- nati. The name of the corporation indicates the line. They pass through crowded thor- oughfares and centers of crowded population. Persons are constantly getting on and off the cars. They are in great part women and chfidren. Tlie cars are apt to be crowded, at least in the morning and evening, as persons go and return from -their business. If it be said they have heretofore been operated with- out both a driver and conductor, it can also be said the cities have grown, and the travel has doubtless increased. While the privilege has been granted to the company to operate a street railway, yet this does not deprive the city government of the powder to make rea- sonable regulations for its enjoyment in such a way as will be consistent with the safety of the public. No contract right of the com- pany enters into the question. There has been no attempt to contract away this powei'. The mere granting of a charter to operate the railway did not constitute any such attempt; and, if it had been attempted, it would be un- availing, because go vernme nt cannot divegt itself of the police pokier; and the passage of this ordinance, looking, as it does, to the safety of the public, was a proper exercise of it, and not unreasonable or oppressive in character. The cases of Railroad Co. v. City of Brooklyn. 37 Hun, 413, where a city ordi- nance required both a driver and conductor REGULATIOX OF RAILWAYS WITHIN CITY LIMITS. Ill upon each car; anQ Ravenna v. Pennsylvania Co., 45 Ohio St. 118, 12 N. E. 44.5, where the ordinance required a railroad company to Icecp a watchman at a street crossing to give -warning to passers-by of approaching trains, —denied the power of the numicipalities to enact the ordinances, because the state legis- lature had reserved to itself the power to regulate these matters. And in Darst v. People, 51 111. 2S6, where an ordinance de- clared all liquor kept within the town for the purpose of being sold or given away and drank within the town a nuisance, and di- rected the police to remove it beyond the town limits, it was held they could not seize and carry it away save through a judicial in- strumentality, as the owner had a right to have it determined whether it was kept for sale or gift to be drank in the town, as in that event only was it declared to be a nui- sance. Obviously these cases ai'e not like this one. It is said, however, that no power existed to direct the return of a car not having both a driver and a conductor to the stable; that this is an enforcement of the ordinance with- out a trial, and the infliction of punishment before the party has l>een found guilty by judicial process. It is in no sense, however, a forfeiture of the property, but merely au- thorizes an etfective exercise of the police power. If, for instance, a car were found without both a driver and a conductor, is it to be merely stopped, and remain upon the street, blockading travel, and constituting a nuisance? Suppose a municipality, in the exercise of the police power, were to forbid the driving of elephants or other wild ani- mals through its streets, and some were found upon them, would it not have the power to direct their removal? It is upon this idea that the impounding of stock running at large in a town or city may be authorized by ordi- nance. McKee v. McKee, 8 B. Mon. 433. While they may be removed from the streets, where they, by reason of the ordinance, are a nuisance, yet it is true they canix^t be sold, and the owner divested of his property, with- out judicial proceeding. This would deprive him of his property without due process of law. Varden v. Mount, 78 Ky. 86. The ordi- nance in question, however, does not attempt this, but merely protects the public from the danger existing from running the cars with- out proper control and sufl!icient force; and, if it be attempted, provides for their removal, to prevent their becoming a nuisance. In the case of Railroad Ck). v. Richmond, 96 U. S. 521, where an ordinance provided that no car or engine of a certain railroad should be pro- pelled by steam upon that part of its track upon a portion of a certain street in the city of Richmond, it was held that the ordinance did not impair any vested right of the com- pany, nor deprive it of its property without due process of law. It was a mere regula- tion of the use of it within the city, and not a "taking" within the meaning of the consti- tutional prohibition. This is the effect of the ordinance now in question, and the judgment dissolving the injunction against its enforce- ment is affirmed. 112 THE POWER TO INCUR INDEBTEDNESS. STATE ex rel. SCHOOL DIST. NO. 6 OF THURSTON COUNTY et al. v. MOORE, Auditor. (63 N. W. 130, 45 Neb. 12.) Supreme Court of Nebraska. May 1, 1895. Original application, in the name of the state, on the relation of school district No. 6 of Thurston county and the State Bank of Pender, for mandamus to Eugene Moore, auditor of public accounts. Denied. James H. Macomber, for relators. A. S. Churchill, Atty. Gen., for respondent. HARRISON, J. It appears from the ap- plication for a writ of mandamus in this ac- tion that school district No. 6 of Thurston county, one of The relators, had contracted an indebtedness of $1,3G5.2G, and had issued warrants evidencing the indebtedness, of which the State Bank of Pender, also a relator, had become the owner by purchase. No question is raised in the pleadings of the good faith of either the issuance of the war- rants by the school district or their acquisi- tion by the bank, nor is their validity attack- ed. The school district was unable to pay the amount due the bank upon the warrants, and, as a result of negotiations between its officers and the bank, it was agreed that the school district would issue its bonds in the sum of $1,250, which the bank would receive in full of the indebtedness. The bonds were issued, and the warrants held by the bank were surrendered and canceled. The bonds were presented to Hon. Eugene INIoore, the auditor of public accounts (respondent here- in), for registration, and, upon his refusal to register them, this action was brought in this court, the relief sought being to compel the auditor to comply with the relator's de- mand for registration of the bonds. The auditor demurred to the petition or applica- tion of relators, and thus put in issue the authority of the school district to issue the bonds, and the rights of the parties to re- quire them to be registered. The law to which our attention is directed, and pursuant to the provisions of which the relators assert they acted in making the agreement which they did. and which, it is claimed, empowered the school district to Is- sue the bonds for the purpose and in the manner it did, was passed during the legis- lative session of 1887 (see Sess. Laws 1SS7, p. loO), and reads, in the portion which we need notice, as follows: "An act to authorize counties, precincts, townships, or towns, cities, villages, and school districts to compromise their in- debtedness and issue new bonds therefor. * * * "Section 1. That any county, precinct, town- ship, or town, city, village, or school district is hereby authorized and empowered to com- promise its indebtedness iu the manner here- inafter provided. "Sec. 2. Whenever the county commission- ers of any county, the city council of any city, the board of trustees of any village, or the school board of any school district, shall be satisfied by petitions or otherwise, that any such county, precinct, township or town, city, village, or school district, is unable to pay in full its indebtedness, and two thirds (%) of the resident tax payers of such county, precinct, township, or town, city, village, or school district, shall by petition ask that such county, precinct, township, town, city, or village or school district to compromise such indebtedness, they are hereby empowered to enter into negotiation with the holder or the holders of any such indebtedness, of what- ever form, scaling, discounting or compromis- ing the same. "Sec. 3. Whenever satisfactoi-y arrange- ments are made with the holder or holders or any of them, of any such indebtedness, and upon a surrender of the same for cancellation or satisfaction, the county commissioners, for and on behalf of any such county, precincts, townships, or towns, or the city council of any such city, or the board of trustees of any such village or school board of any such school districts, upon petition of two thirds (%) of the resident taxpayers of such county, pre- cinct, township, or town, city, village, or school district shall have authority, and they are here- by empowered to issue the bonds of such coun- ty, precinct, township or town, city, village, or school district, to the holder or holders of the indebtedness so surrendered, cancelled, or satis- fied for the amount agreed, upon not exceeding the original indebtedness. "Sec. 4. Before issuing bonds under the pro- visions of this act, the board issuing the same shall by resolution enter upon its records re- cite the number and denomination of the bonds to be issued, the rate of interest and ta whom and when payable. Such bonds shall be payable in not moi'e than twenty (20) years from the date of their issue, or at any time before maturity, at the option of such munici- pality. They shall bear interest at a rate not exceeding seven (7) per cent., nor the rate borne by the bond surrendered, with interest coupons attached, payable annually or semi- annually. * * *" During a number of years school districts in this state Issued bonds for certain pur- poses, by virtue of the right given them by law to borrow money; this court holding, when the question was presented to it for de- termination, that the power to issue bonds was implied from the authority conferred by statute to "borrow money." State v. School Dist. No. 24, 13 Neb. 78, 12 N. W. 927; also, State V. School Dist. No. 4, 13 Neb. 82, 12 N. W. 812. There was some legislation on the subject of school district bonds, their issu- ance, registration, etc., during the legislative session of 1875 (Sess. Laws 1875, pp. IIS, 185); and in 1879 an act was passed Ijy tlie legislature entitled "An act to provide for the issuing and payment of school district bonds,'* THE POWER TO INCUR INDEBTEDNESS. 113 which repealed the former acts on the subject, and provided for the issuance of bonds to ob- tain money by the officers of school districts, for the purpose of purchasing a site for and ei-ection thereon of schoolhouses and furnish- ing the same; that, prior to the issuing of any bonds, the subject of the bonding of the district must be submitted to the voters, and two-thirds of the qualified electors of the school district declare by their votes in favor of issuing the bonds; that a notice of such election be given at least 20 days prior to the day of the election; that no such vote be or- dered unless pursuant to the request of a pe- tition, signed by at least one-third of the electors of the school district, presented to the district board, suggesting that a vote be tak- en in relation to the issuance of bonds for the purposes specified in the petition and within the purposes stated in the act. This law- of 1ST9 has been amended, but not so as to change its requirements in regard to presentment of a petition and the holding of an election being reeessaiy to the attthorization of an issue of bonds. There was also passed by the legis- lature of 1S79 (Sess. Laws 1879, p. 17G) "An act to provide for the funding of outstanding school district bonds," which provided tlmt any school district in the state of Nebraska which has heretofore voted and issued bonds wliich remain unpaid is authorized to issue bunds to be substituted and exchanged for the original bonds, at a rate not to exceed dollar for dollar, and further providing that no vote of the people be required to authorize the isstie of the new bonds. This act was amended in 1803, but the amendment need not be further noticed here. In 1887 came the act under which the bonds over which this controversy has arisen were issued, and which we have hereinbefore quoted. We have shown the condition of our law in ref- erence to the subject under consideration to the extent it appears in the foregoing state- ment, for the purpose, in the main, of estab- lislung, as it docs, that, prior to the passage of the act of 1887, the power of the school district board to issue bonds was confined to instances where the legislature had author- ized them to do so only when the proposition had first been submitted to and acted upon favorably by the body of the district (the voters), for at no time were the officers em- powered to issue bonds except when the ex- penditure had the ai)proval of the electors of the district, save in the funding act of 1879, and this only extended to bonds Avhich had been previously voted and issued, the indebt- edness evidenced by them having received the consideration, and, by their votes, the ap- proval, of the electors of the district. It is not contended by the relators that the bonds which the auditor refused to register were issued pursuant to any election at which the proposition of their issuance was voted upon by the electors of the school district re- lator, but that they were executed and deliv- ered strictly in accordance with the require- ABB.C0KP.-8 ments of the act of 1SS7, and It Is not contro- verted by respondent that the provisions of the law of 1887 were in every essential ful- filled by the district officers in the issuance of these bonds. Hence the main question for our determination is, are the provisions of the act of 1887 sufficiently broad to authorize the issuance of bonds by a school district to sub- stitute or exchange for an indebtedness of the district other than a bonded indebtedness? The other points noticed are only incidental to this, and important alone insomuch as they bear upon and affect its disposition. In the interpretation and construction of statutes, one of the cardinal rules is that it is the intent of the law that is to be sought after, and, if possible, ascertained; and where the law is expressed in words which are clear and not ambiguous, and no doubt as to its purpose and meaning can arise from the language employed, where to under- stand and know its intent it is but necessary to read, then there is no call for an inter- pretation; but where the intention and mean- ing of the lawmakers, as expressed in the statute enacted, is uncertain or obscure, as in the one now under consideration, a bare reading will not suffice, and we are obliged to resort to a construction of its tenns and provisions. This statute contemplates the f ..Lie of bonds by officers of certain govern- mental divisions and subdivisions of our ! state, and necessarily carries with it a re- sort to the power of taxation of the people ' to raise the funds to meet the indebtedness . created by such action, in the majority of in- stances not accorded until the proposition ; involved is submitted to and approved by a vote of the electors of the particular politi- cal body or subdivision whose tax bearers are to be affected thereby, and hence, agree- [ ably to a well-established rule, is to be i strictly construed, and, where there is any doubt, it must be resolved in favor of the ' public or taxpayers. The first section of the act under discussion enumerates the par- tictilar bodies or mtinicipalities to which power is granted, and contains the authoriza- tion to compromise indebtedness without designation of any particular kind of in- debtedness. Section 2 provides for the pres- entation of a petition by two-thirds of the resident taxpayers of the county, city, town, or school district, etc., asking that such a compromise be made, and empowers the proper officers to negotiate with the holders of "any such indebtedness, of whatever form, scaling, discounting, or compromising the same." The words "of whatever form," applied in explanation of the indebtedness, and making it include, as given their natural and ordinaiy puniort they do, any and all indebtedness, seem to make the intention in relation to what claims were in contempla- tion and referred to by the legislature pass- ing the act plain and certain; and, if there were no statements in other portions of the law bearing upon this same point, we might 114 THE POWER TO INCUR INDEBTEDNESS. well stop here content with the determination to which it would lead us. Section 3 of the law authorizes the issuance of the bonds up- on the surrender and cancellation or satis- faction of the indebtedness and presentment of a petition by two-thij-ds of the taxi>ayers requesting such action. It does not desig- nate or indicate any particular kind of in- debtedness, but refers to it in each instance by the use of the general term. In section 4, in referring to the bonds to be issued, it is stated: "They shall bear interest at a rate not exceeding seven (7) per cent., nor the rate borne by the bond surrendered;" thus, it would seem, clearly indicating that it was an indebtedness evidenced by bonds which the legislator had in mind when he framed and introduced the bill containing the act in question, and in contemplation of the legislative body when it passed the act. From a study of the body of the law, we think it must be concluded that there is a doubt whether the compromise of all kinds of indebtedness is intended to be authorized, or only those of a bonded nature. It is a well-settled rule that, if the meaning con- vej-ed by the body of the act is uncertain or in doubt, resort may be had to the title, and more especially is this the rule in juris- dictions where, as in our state, there is a constitutional provision i*equiring the sub- ject of every bill to be clearly expressed in its title. In the title of this act the subject was staged as follows: "An act to authorize counties, iJreciucts, townships, or towns, cit- ies, villages and school districts to compro- mise their indebtedness and issue new bonds therefor." The portion which we desire mainly to notice is contained in the words "and issue new bonds therefor," and more particularly to the two words "new bonds." The principal object of a title of a bill is to convey to a person who reads it a general idea or knowledge of the contents of the act. To a person reading the title of this bill, the use of the word "new" in connection with the word "bonds," and allowing to them their ordinary signification, as must be done, and refeiTing back and viewing them coupled with the other idea expressed in the title, — i. e. the compromise of the existing indebtedness,— it seems clear that the natural thought would be bonds new for bonds old, given the appellation "new" in the title be- cause issued in place or renewal of bonds which would be designated by the opposing word "old." We, then, have the use, in both title and act, of the general term "indebted- ness," which, without anything to extend or explain it, would include all kinds of in- debtedness. In one section it is stated to be intended to cover indebtedness of what- ever form, which would include the war- rants or school orders held by the bank, and which were surrendered on the is- suance of the bonds presented, and which the auditor refused to register. On the oth- er hand, we have the title stating that the act is to provide for new bonds, which con- veys the idea of compromising, replacing, or renewing other or old bonds; a statement in the text that the bonds issued shall not bear interest at a rate in excess of that borne by the bonds surrendered, which, to say the least, leaves us in doubt and renders it un- certain whether the law was intended by the legislature to empower the issuance of bonds in the manner stated therein 'for the compromise of an existing indebtedness oth- er than in the form of bonds. Add to these the thought that there was no provision for submitting the proposition of the issuance of these bonds to a vote, it being the wise and wholesome policy of our law to so sub- mit such questions (involving, as they nec- essarily do, the levying of a tax) to the deci- sion of the voters, who must pay the tax, and, further, that such laws are the sub- ject for strict interpretation, and, if there is a doubt as to the intention, it must be resolved in favor of the taxpayers or public, and we are constrained to say that our conclusion is that the act we are considering did not empower the issuance of the bonds to replace the indebtedness, consisting, as it did, of school waiTants or orders, and the writ prayed for in this action must be de- nied. FOR SCHOOL HOUSES. 115 WETMORE V. CITY OF OAKLAND et al. (No. 15,412.) (33 Pac. 769, 99 Cal. 14G.) Supreme Court of California. July 25. 1893. In bank. Appeal from superior court, Ala« mecla county; W. E. Greene, ,Tu(l!j:(\ Action by J. Ij. Wetniore agiinst the city of Oaldand and othoi-s to determine the valid- ity of city bonds issued for the purpose of building schoolh(mses. The bonds were ad- judged valid, and plaiutilt appeals. Alhrmed. Kdw. C. Robinson and E. A. Ilohiian, for appi'll'int. James A. Johnson, Davis & Hill, and James W. Goodwin, for respondents. HARRISON, J. The legislature of this stat(>, at its session in 18S9, passed an act ap- proval JIarch 19, 1889, authorizing the in- curring of indebtedness for municipal im- provements, and issuing bonds therefor by cities, towns, and municipal incorporations, (St. 1889, p. 399,) the first section of which declares that "any city, town, or mimicipal corporation incorporated under the laws of this state may, as hereafter provided, incur indebtedness to pay the cost of any mimicipal improvement, or for any pm-pose whatever requiring an expenditure greater than the amount allowed for such improvement by the annual tax levy." By the next section of the act it is provided that whenever the legislative branch of the mimicipal coiTpora- tion shall determine that the public interest or nooessitj' demands the acquisition, con- struction, or completion of any municipal buildings or other municipal improvements, whose cost will be too great to be paid out of the ordinary annual income and revenue of the municipality, it may call an election for the purpose of determining whether bonds of the miuiicipaUty shall be issue^l for such improvement, and if the proposi- tion shall receive the vote of two-thirds of the votei-s voting at such election such bonds may be issued. September 23, 1891, the council of the city of Oakland passed an or- dinance by which it declared that the public interest and necessities of the city of Oak- land demanded the acquisition, construction, and completion of certain municipal build- ings and improvements in that city for pid)- lic school purposes, viz. certain designated schoolhouses, and that the cost thereof would be too great to be paid out of the ordinary aimual income and revenue of the city; and afterwards passed an ordinance that the question of issuing bonds therefor to the amount of $400,000 be submitted to the vot- ers of the city at a special election to be held for that purpose. At that election, more than two-thirds of the voters having voted for the issuance of the bonds, suitable ordi- nances were passed by the council, and bonds of the city to the amomit of .$400,000 wen' issued and sold piior to Jaruary 1, 1S93. and the proceeds placed in tlie city treasury. In June, 1893, the appellant having chal- lenged the validity of these proceedings, an agreed ca.se was submitted to the superior court of Alameda coimty, under the provi- sions of section 11.38, Code Civil Proc, for the purpose of having a determination by tliat court of the validity of the bonds. The superior court adjudged that tliey were valid obligations of the city of Oakland, and from its judgment this appeal has been taken. The proposition presented by the appel- lant in support of his appeal is that the uni- nieipality of the "city of Oakland" has no power to issue its bonds for the constnic- tion of schoolhouses, for the reason that the management of its schools is vested in a board of education, and that any bonds to be issued for school purposes must be authorized by that body. The city of Oakland is gov- erned by a freeholders' charter, wliich was approved by the legislature February 14, 1SS9. St. 1SS9, p. 513. Under this charter the legislative power of the city is vested in a council of 11 members, and the government of the school department is vested in a board of education consisting of 11 members. The board of education is by the charter vested with authority to "build schoolhouses" upon plans approved by it, but the work of build- ing the schoolhouses is to be carried on through the medium of a board of public works. It is, moreover, expressly declared in the charter (section 131) that the board of education "shall not have power to con- tract any debts or habilities in any form wliatsoever against tlie city, exceeding in any year the income and revenue provided for the school fund for such year." By sec- tion 149 of the charter it is provided that "whenever the council shall determine that the pul)lic interest requires tlie construction or acquisition or completion of any perma- nent municipal building * ♦ * the cost of which in addition to the other expenditures of the city will exceed the income and rev- enue provided for in any one year, they may by ordinance submit a proposition to incur a debt for such pui-pose, and proceed ther(>in as provided in section 18, of article 11, of the constitution of this state and gen- eral law." By tliis section of the charter the same authority is conferred upon the council to create a bonded indebtedness as is given by the aforesaid act of the legis- lature, but the act of the legislature pre- scribes tlie steps to be taken, and is the "general law" under which it is necessary for the council to proceed in incurring such indebtedness. The provisions of the act of March 19, 1SS9, are general in their char- acter, and give to every mimicipal corpora' tion incorporated under the laws of this state the power to create a bonded indebtedness for any of the purposes autliorized by the act. The indebtedness is not to be incurred, nor are the bonds to be issued, until after the voters of the municipality have so directed; but, as it is the vote of the electors which de- 116 THE POWER TO INCUR LS^DEBTEDNESS. termines that they shall be issued, it is im- material to them what officers of the city car- ry out this vote. The act itself designates the legislative branch of the municipality as the body to determine in the first instance whether the public interest or necessity de- mands the construction or completion of the building or improvement, and also designates that body as the agency of the coi-poration through whose acts the indebtedness is to be created and evidenced. There is no partic- ular mode provided by which the council shall ascertain this fact, but, in a matter wliich pertains to the public schools, the fact would naturally be ascertained by direct communication with the board of education, or by a request from that board, and, in- asmuch as that board has no power to is- sue the bonds of the city, it is but natural to assume that it would manifest its wishes to the council. The question, however, is not how the coimcil shall ascertain whether the public interest demands the improve- ment, but whether it has any power to issue the bonds after it has so determined, irre- spective of the mode of ascertaining it. Al- though the board of education has been in- trusted with the management of the schools, and it is the body designated in the charter to build the schoolhouses, there is nothing inconsistent with this provision for the legis- lature to designate the council as the body ^to give inception to the indebtedness and issue the bonds therefor. The power to biiild or improve the schoolhouses which is vested in. that board is distinct from the power to borrow money with which to biiild or improve them. The board of education, as such, is forbidden by the charter from in- curring any indebtedness beyond the annual income for school purposes, and as the con- stitution permits such indebtedness by any municipal corporation only after a vote of the electors therefor, it is competent for the legislature to designate the agent or body of the municipal government which shall act for it in carrying out the will of its electors, and for this purpose the legislative branch of that government would most naturally be selected. That the education of the youth is prop- erly included within the functions of a municipal government cannot be denied. A municipal coriioration is but a branch of the state government, and is established for the purpose of aiding the legislature in making provision for tlie wants and welfare of the public within the teiTitory for which it is or- ganized, and it is for the legislature to de- termine the extent to whicli it will confer upon such corporation any power to aid it in the discharge of the ol)ligation which the constitution has imposed upon itself. The constitution has declared (article 9, § 1) that, "a general diffusion of knowledge and intelligence being essential to the preservation of the riglits and liliorties of the people, the legislature shall encourage by all suitable means the promotion of in- tellectual, scientific, moral and agricultural improvement." In furtherance of this duty the legislature has made provision in the Political Code for a system of public schools throughout the state; and in the municipal government act, which was enacted in 1SS3, providing for the organization of municipal corporations, it has included a school depart- ment for the first five of the several classes of municipal corporations therein provided for. In each of the freeholders' charters that has been approved by it an educational department has been established, and pro- vision made for education, and for the exer- cise of municipal functions in reference thereto. As schoolhouses are essential aids in the promotion of education, their erection is but incidental to the maintenance of the schools, and falls as completely within the fimctions of a municipal government as does the erection of a hospital for its indigent poor, or buildings for its fire engines; and the schoolhouses, when so erected, are as fully municipal buildings as are its engine houses and hospital buildings. Danielly v. Cabaniss, 52 Ga. 222; Horton v. Commis- sioners, 43 Ala. 508. In Board v. Fowler, 19 Cal. 24, the validity of a reservation by the Van Ness ordinance of certain lots for school purposes was involved, and the su- preme coui't said: "The school department of the municipality is only a part of its government. A reservation of property for school purposes is not a disposition of it for the benefit of third persons, but a keep- ing of it for its own purposes. The resolu- tion amounts only to the setting apart of property of the town for a particular town purpose, and in this respect is not different from a similar act, if such had been done, declaring that the plaza should be reserved as a public garden, or a lot for a ^aW, or a house for the holding of com-ts." See, also, Board v. Martin, 92 Cal. 209, 28 Pac. Rep. 799. The provisions of sections 1880-1887 of the Political Code for the issuance by the supeiTisors of the county of school-district bonds whenever the electors of the district shall vote therefor, to pay for the building of schoolhouses in the district, do not limit or qualify the power confeiTcd by the act of March 19, ISSO, upon an incorporated city to issue its own bonds for the same purpose, notwithstanding the provisions of section 1576 of the same Code, making such incor- porated city a school district. Each of these acts is a general law upon a siibject within legislative power, and, if there is any inconsistency between them, that which is later in date must prevail over the earlier act. There is not, however, any inconsist- ency between the two acts. Th(^ bonds authorized by these sections of the Political Code are different obligations from those issued by the municipal corporation undvr the act of March 19, 1SS9. A school dis- FOR SCHOOL HOUSES. 117 1 trict has not, like an incorpnratod city, any financial oflicors, nor has it Itcon intrust (h1 with the power of assessment and taxation which is confen-ed upon an incorporated city, and for these reasons as well as others the legislature would naturally intrust to the supervisors of the county, as beins the body havint: the financial supervision of the school district, tlie function of issuing and providing for the payment of school district bonds; and as by the constitution bonds I cannot in any case be issued except upon the vote of two-thirds of the qualified elect- ors of the district voting upon the question of their issuance, the agency by which they might be executed would seem immaterial, and there would be little likelihood of an issuance being authorized to be made for the same purpose by each agency. It is, however, unnecessary to determine whether the power to issue bonds con- ferred by these sections of the Political Code exists in favor of the school dis- trict as a coiTJoration, as well as of the incorporated city which constitutes the school district, or whether it has been super- seded by the power conferred upon the city, as the bonds in question are those of the municipal corporation, and not of the school district; but, even if it should be conceded that the power to issue bonds for the same purposes rests in the supervisors at the in- stance of the school district, and also in the city itself, the bonds which are authorized by the Political Code are to be issued in the corporate name of the school district, which by section 1575 of that Code must be " district of county," whereas the bonds in question are those of the municipality of the city of Oakland, and their validity is to be determined by tlie power of the municipal corporation to issue them. The question presented in Kennedy v. Mil- ^/ ler. .'^2 Pac. Rep. n.'S, was the right of thi< troasm-er of the city of San Diego to demand from the county treasurer the custody of certain public school moneys apportioned to the school district of San Diego, which had been derived from sources outside of the municipality, and not througli any agency of the city, viz. the state school fund and taxes levied by the supervisors of the county, and it was held tliat thi/'y were moneys whose custody had been placed by the legislature with the county treasurer. The power of the city to raise m.oney with- in its own territory for school purposes by tax or otherwise, or to retain the custody or make the disbiu'sement of any moneys which might be raised from taxes levied by its council, did not arise in that case. On the contrary, we said that "the city is corporation distinct from that of the school district, even though both are designated by the same name, and embrace the same territory. The one derives its authority directly from the legislatiire through the I general law providing for the establishment of schools throughout the state, while the I authority of tlie other is found in the char- ter under which it is organized;" and it follows that the acts of each corporation are t to be measured by the authority under f which they are performed, and their valid- ' ity determined by a comparison with that authority. We hold, therefore, that the city j of Oakland had the power, under the pro- / visions of the act of March 19, ISSD, to is- sue the bonds in question, and, as it was conceded at the argument that all the pro- visions of that act had been complied with, the judgment of the superior court is af- firmed. We concur: BEATTY, C. X; PATER- SON, J.; FITZGERALD, J.; DE HAVEN, J. 118 THE POWER TO INCUR INDEBTEDNESS. SIMRALL V. CITY OF COVINGTON. MACKOY V. SAME. (29 S, W. 880.) Court of Appeals of Kentucky. Feb. 26, 1895. Appeals from circuit court, Kenton county. "Not to be officially reported." Separate actions by C. D. Simrall and Wil- liam H. Mackoy against the city of Coving- ton. From a judgment in each case dismiss- ing the petition, plaintiffs appeal. Reversed. Wm. Goebel and W. W. Cleai-y, for appel- lants. W. A. Byrne, for appellee. PRYOR, C. J. These two cases come from the Kenton circuit court, and, as they involve similar questions, will be considered togeth- er. The two appellants, Mackoy and Sim- rall, had been employed, as they alleged, by the trustees of the Covington reservoir, to conduct the defense on the part of the board of trustees in actions instituted against that board by Casparis & Co., arising out of a contract between the pai-ties to the action for construction of water reservoirs, and all things necessary mentioned in the contract, to supply the city of Covington with water. Casparis claimed a breach of contract on the part of the board, abandoned the contract, and suits were instituted by him involving large sums of money, exceeding in amount ?oOO,000. The board of ti-ustees, having com- pleted the waterworks, turned them over to the city of Covington, and thus ended their right to longer control them. The liability of the city is alleged to exist for the follow- ing reasons: An amendment was had to the charter of the city by which its council was authorized to appoint a board of trustees, five in number, who were to have these wa- ter reservoirs constructed, and their control until completed was committed to this board, under the name and style of the "Trustees of Covington Resei-voir." This board was "authorized to sue and be sued, to contract and be contracted with," to purchase and condemn land necessary for the improve- ment, to issue'and sell bonds of the city, to appoint, employ, and pay officers, agents, and enfployes, and to do all acts necessary for the completion of the work. The act also provided that this board should continue in office until the works or improvements were completed and in operation, and for not longer than two months thereafter. The trustees were duly appointed and qualified, and, as before stated, had completed the im- provement, and ceased to have any further control. Bonds of the city had been issued and sold for the purpose of this work ex- ceeding $1,000,000, under various legisla- tive enactments. The trustees, anticipating trouble with Casparis & Co., the contractors, at a called meeting of their board in July, 1889, by an order of the board, directed Judge O'Hara, who was a member of the board, to contract for the employment of the appellants. At a meeting of the board held on August 7, 1889, Judge O'Hara made a written report to the board, as follows: "Covington, Kentucky, August 7th, 1889. To Trustees Covington Reservoir: The under- signed, appointed by a resolution of the boai'd at the extra session held July 31, 1889, to employ C. B. Simrall and W. H. Mackoy to represent the trustees in any litigation they may have with Casparis & Co., begs to report that he has agreed with these gen- tlemen that they shall render such services as may be required of them in such litiga- tion, and that the undersigned is to fix the fee for such services to be paid each of them by this board after the services shall have been performed. J. O'Hara." This report was adopted, and in April, 1890, Judge O'Hara requested of the two attorneys to sign an agreement by which he was to fix their compensation. They each signed an agreement to that efCect, as follows: "Cov- ington, Kentucky, April 15th, 1890. I have heretofore been employed by Judge O'Hara, as one of the attorneys of the trustees of Covington reservoir in their litigation with Casparis & Co., contractors, with them, for the construction of the Covington reservoir, and then and now agree that the compensa- tion for my services to them in this behalf shall be fixed by said O'Hara when the serv- ice is rendered." The writings signed by the attornej^s were reported back to the board, and concurred in. It is alleged that a protnu-tod litigntion followed, and pending the litigation, or when the work was com- pleted, the trustees turned over to the city the balance of cash in their hands, and no longer acted as agents or trustees for the city. When the litigation terminated, w'hich was after the waterworks had been con- j structed. Judge O'Hara was applied to by the appellants to fix their compensation, as provided by the agreement and approved by the board of ti'ustees, and in the month of November, 1892, determined the compensa- tion to be paid each of the attorneys, in writ- ing. "Being called upon by C. B. Simrall, Esq., to fix the amount of his fee for services rendered by him in defense of the action of Casparis & Co. against the trustees of the Covington reservoirs in the U. S. circuit court at this place, and for such services as he rendered them in the controversy between said parties arising out of the contract be- tween them and said Casparis & Co. for the construction of the reservoirs, in association with W. H. Mackoy, Esq., pursuant to an agreement between him and said trustees, I have fully considered his own statement, and the opinions of attorneys submitted by him, and those submitted by Mr. Byrne, the solic- itor of the city of Covington, and have in- cluded in my consideration my own knowl- edge of the services and the rate of charges for attorneys' services prevailing in Ken- tucky within the range of my practice as an FOR SERVICE OF ATTORNEYS. 119 attorney for more than thirty years p>Tst, and am of opinion, and so decide, that eleven thousand five hundred dollars is a fair and reasonable compensation to Mr. Simrall for his said seiTices, and fix his fee at that amount, from which is to be deducted any sum or sums already received by him, if anj-, in that bclialf. J. O'Hara." A similar writ- ins fixed the compensation of Mackoy at $G,- 000. A copy of each writing was handed to the citj' of Covington or its representative, and to Simrall and jMackoy. The city re- fused to pay the fees, and, these actions hav- ing been instituted upon the state of facts presented, a general demurrer was sustained to the petition of each of the appellants, and the actions dismissed. / It seems to us the only question in this case arising on the demurrer is as to the power of the trustees to enter into the con- tract for the services of these attorneys. If the right to employ counsel exists, then the contract entered into is binding, and should be enforced./ The legislature saw proper to confide to this board of trustees the duty of having the waterworks constructed, and made them in effect the agents of the city of Covington for that purpose, and clothed them with all the powers necessaiy to dis- charge the duties imposed on them. They had the power to contra : and be contracted with, to sue and be sued, to select their agents and employes, and in fact were in- vested with all powers the city would have had if the board of council had been select- ed instead of this board of trustees. It was an agent invested with all the powers of a principal in so far as the improvement was concerned. Having the power to sue, and the right of others to sue them as trustees when acting within the scope of their au- thority, it necessarily follows that they had the right to employ counsel to bring the ac- tion, or, if sued, to employ counsel to make their defense, and to make such contracts with reference to the employments as they could have made if contracting for their own bene- fit. The mode of contracting for the serv- ices of counsel is not provided for by the charter; and in this case, as the character of the services or their extent could not well be ascertained at the time the appellants were retained as counsel, we perceive no reason why an agreement to pay such a sum as one of their own board should deem rea- sonable and just should not be upheld. The nature of the contract w^as reported to the board, and by that body was ratified and approved, and the services rendered. There ^ is no defense or bad faith alleged in any pleading, but an admission by the demurrer I that the contract was made and the services ' performed. It was, however, insisted by counsel for the city in the oral argument I that the authority given one member of the board to determine these fees was a delega- tion of a power that could be exercised by the board alone, and, unless the fees were fixed by a majority of that body, the agree- ment to that extent is void. It was, as we see from the records before us, the action of the entire board (save one) by which the parties to the contract were to be bound by the sum fixed as compensation by Judge O'llara. It was not one member of the j board agreeing to the contract, but a decid- j ed majority approving and directing its ex- ' ecution; and, having entered into the agree- ment, they cannot now claim the right of i determining for themselves as a board, or I the city council for them, whether or not the sum fixed by the umpire is or not rea- sonable. The trustees had the discretion to ■' settle questions of dispute in reference to / the subject-matter under their control, by / agreeing that the judgment of a third party should determine the controversy; and, in- stead of being a delegation of the power con- I ferred on them in this case, it was an exer- I cise of the authority given them to elect one of their board to adjust and determine the I claims of these appellants. This contract was made before their agency terminated, and during the progress of the work, and in the exercise of a discretion that certainly belonged to them. The fact that one of the I board was selected as the arbiter, or the | person to determine the compensation, can I make no difference. The right to do so originated from the contract between the j trustees (O'Hara being one), on the one side, ' and these appellants, on the other; and al- though the trustees had turned the water- works over to the city, and ended their con- I uection with them, before the services of the I attorneys had ended, and before O'Hara de- | termined what the fees should be,— and this he could not do until the litigation was over, —still this did not affect the contract; nor can these parties, in their corporate capacity, be regarded as legally dead until their con- tracts are complied with. Such a satisfac- tion of a legal or equitable demand is un- known to the law. They might, and per- haps should, have been made parties to this litigation; but there was no special demur- rer, and as the liability, if any, is to be dis- charged by the city, it is, at best, a formal objection, as both sides concede that the work is done, and the means of the agent passed over to the principal. Counsel for the appellants refer to two cases conducing to remove the principal ob- jection urged by counsel to the petitions. The mayor, aldermen, and burgesses of Liv- erpool, in behalf of the city, entered into an agreement with one Scott, that provided, among other stipulations, "that disputes be- tween the parties should be referred to the engineer of the corporation of Liverpool, and his decision should be binding." 3 De Gex & J. 334. Also, in the case of Hartupee v. City of Pittsburgh, 97 Pa. St. 107, where the council of that city made a contract contain- ing a similar provision, and in neither case was the objection rai.<;ed that such contracts 120 THE POWER TO INCUR INDEBTEDNESS. were nullities. Numerous cases might be cited to tlie same effect, and are of con- stant occurrence; and it may be said that, where the power to contract exists, the price to be paid, the mode and kind of pay- ment, may be determined by a third party, if such is the agreement, and not beyond the scope of the authority given, if the con- tract is made by an agent, or one clothed with similar authority, as the trustees were in this case. In our opinion, the demurrer should have been overruled. Reversed and remanded for that purpose, and for proceed- ings consistent with this opinion. Sweeney V. U. S., 109 U. S. 618, 3 Sup. Ct. 34-4; Rail- road Co. V. Northcott, 15 111. 49; Railway v. Cummins, 6 Ky. Law Rep. 4r43; Railroad Co. V. Price, 138 U. S. 185, 11 Sup. Ct 290. "INDEBTEDNESS" DEFINED. 12] KELLY ot al. v. CITY OF MIXNEArOLIS. (Go N. W. 115. G3 Miun. 125.) Supreme Court of Minnesota. Dec. 9, 1895. Appeal from district court, Hennepin coun- ty; Seagi-ave Smith, Cliarlcs M. Fond, Hub- ert D. Ilussell, Robert Jamison, Hem-y C. Bel- don, Juilses. Action by Anthony Kelly and others against the city of Minneapolis. From an order de- nying a motion for a temporaiy injimction, plaintiffs appeal. Reversed. J. B. Atwater and P. M. Babcock, for appel- lants. David F. Simpson, for resixjndent. START, C. J. This action was bx-ought to liave a certain issue of the bonds of the city of Minneapohs, of the par value of $JO0,(X)0, luiown as "Reservoir Bonds," ad- judged void, and to resti'ain the treasm-er of tlie ' city from paying, out of the sinliing fund of the city, any money for the pm-- cliaso of such bonds for the sinliing fund, pursuant to an agreement to that effect be- ., tween the city council and the board of sinliing fund commissioners. The plaintiffs are taxpayers of tlie city, and from an order of the trial court denying their motion for a temporary injunction so restraining the treasurer this appeal was talien. The bonds were issued under the provisions of chapter 204, Laws 1S93, which forbids any city in this state to issue bonds or to incur any debt or liability of any liiud for any pur- pose except for the purchase, refunding, or paj'ment of outstanding bonds, in excess of 5 per cent, of the assessed valuation of the taxable property of such city according to the last preceding assessment. The plain- tiffs claim that this 5 per cent, debt limit has already been exceeded by the city, exclu- sive of tliese reservoir bonds; and, further, that the board of siuliing fund commission- ers have no authority to purchase from the city its bonds at the time they are offered for sale by it. f 1. The first question is, had the city. If the amount of tlie reservoir bonds be added to its debt, exceeded its debt limit at the time of the proposed sale of the bonds and the commencement of this action? In de- ciding this (juestion the claim of the plain- tiffs tliat the sum of ?20G,5G7— an alleged indel)tedness of the city to the courthouse and city liall commission— should be added to the indel)t(>dness of the city, must be reject- ed, for it does not affirmatively appear from the record tl>at, if there ever-Avas any such Indebtedness, it existed at tlie time stated in the question. Eliminating tliis claim, it is suf- ficient to say, without going into mathemat- ical details, tliat it appenre from the admit- ted facts tliat, if the amount of certain park board certilicates hereinafter to be noticed is not a part of the indeljtcdness of the city, and if tlie amount of tlie money and bonds in the sinking fund of the city is to be de- ducted from the total amount of the out- standing bonds of the city, the entire debt of the city, including tliese reseiToii- bonds, will not exceed its debt limit. The answer, then, ' to this first question involves a consideration ' of two subordinate ones: (a) Are the park | board certijicates an indebtedness of the city, / within tlie meaning of the statute imposing' the debt limit? (b) Is the amount of the money and bonds in the sinking fund to be de- ducted from tlie total amount of the city's out- standing and uncanceled bonds, for the purixise of determining its actual indebtedness? We i are of the opinion tliat this first question must 1 be answered no, and the second one yes, and j we therefore answer the original question ; in the negative. 2. Tlie paj-k board certijicates to which we(^) have refeiTed were issued under the provisions of chapter 30, Sp. Laws 1SS9, as amended, which provide for a board of park commission- ers, and constitute such board a department of the government of the city of Minneapolis. This board is authorized to designate and acquire land in and adjacent to the city for public parlvs, and its here material powers are as follows: "The said board of commissioners, and their successors, shall have power, and it is hereby authorized, to obtain title for and in the name of the city of Minneapolis, to any lands so designated by it for the purpose of this act, by gift, devise, purchase or lease. And said board may enter into any contract in the name of said city, for the purchase of any lands to be paid for in such time, or times, and in such manner as tlie board may agree to; and said board may accept title to lands and give back a mortgage or mortgages in the name of said city, with or without bonds to secure the unpaid purcliase price, provided, that no per- sonal or general liability on the part of said city shall be created by any such contract, or mortgage, or bond beyond the means at the time available therefor, except the liabil- ity to pay such amounts as may be realized from benefits assessed on benefited proper- ty on account of the lands included in such contract or mortgage. And it is hereby made the duty of said board to pay on each such contract or mortgage, an amount equal to the sum or sums so realized from such assessments; and said board shall have power to accept and receive donations of money, property or lands, for the use of the said city for tlie purposes contemplated in this act." Sp. Laws 1889, c. 30, § 2, as amended by Id. c. 103, § 1. The certificates in question were given for the purchase price of land for park purposes, and their payment secured by a mortgage on the laud purcliased. Each certificate states that the city of Minneapolis is indebted to the payee in the sum therein named, and recites tliat the consideration therefor is the convey- ance to tlie city by the payee of land for jiark purposes, and that tlie certificate is se- cured by a mortgage on the land sold, and 122 THE POWER TO INCUR INDEBTEDNESS. that it is payable out of the funds arising from assessments made upon real estate spe- cially benefited by the park established on the land, and concludes with these words: "It being expressly understood and agreed that there is no liability on the part of said city to pay the amount evidenced by this certificate, secured by the above-described mortgage, out of any other fund than the fund above specified." No certificates issued or contracts made by the park board can be given any legal effect contrary to or in ex- cess of the powers conferred upon the board by the statute we have quoted, and they are, in fact, substantially in accordance with its- provisions. The board has no power to make these certificates a hen generally upon all the parks of the city, and the record shows that no attempt has been made to se- cure their payment by the creation of such a lien. The provisions of the statute relied upon by plaintiffs to support their proposi- tion to the contrary (section 5, c. 30. Sp. Laws 18S9) refer only to park bonds issued for the purpose of obtaining money with which to acquire land for park purposes. It is admitted that such bonds are a part of the indebtedness of the city. Neither are these certificates secured by a mortgage on any portion of the property of the city pre- viously owned by it, nor by a pledge of its revenues, as claimed by the plaintiffs. If such was the case, then their contention that the certificates are a part of the indebt- edness of the city would be correct, for the statute providing a debt limit for cities can- not be evaded by the makeshift of issuing the bonds or other obligations of the city, and make them payable only from the general revenues of the city to be derived from a particular source, or by securing them upon its public buildings or other property, Avhich, if sold to pay the obligations, must be re- placed by taxation, to enable the city to discharge its governmental functions. The authorities cited by counsel for the plaintiffs fully support this proposition. But such is not the case we are considering, for each cer- tificate is a lien merely upon the particular land for the agreed purchase price of whicft It was given, not upon any property which the city previously owned. The deed, cer- tificate, and mortgage are all one transac- tion, and after the mortgage is given the city has just as much interest in the land mortgaged as it had before. When the laud is paid for, it will be the property of the city. If not, the certificate holder takes it on his mortgage. The debt of the city is neither increas-ed nor diminished by the trans- action. No revenues of the city which must be laised or replaced by taxation are pledg- ed for the payment of the certificates. The statute expressly provides that the park board cannot create any personal or geneml liability on the part of the city by any cer- tificates they may issue, except to pay such amounts as may be realized from assess- ments on property benefited on account of the acquisition of the land purchased for park purposes. In no event, nor under any circumstances, is the city liable, except as a trustee, to pay over to the certificate holder the amount actually realized from the as- sessments. The debt limit is measured by the assessed valuation of the taxable prop- erty of the city. How, then, can it be said that these certificates, for the payment of which the city is not liable, and for which no tax can be levied, are an indebtedness of the city, within the meaning of the statute fixing the debt limit? 3. Is the amount of the bonds and cash in the sinking fund of the city to be deducted from the total amount of its outstanding bonds for the purpose of determining wheth- er or not it has exceeded its debt limit? The view which we take of the purpose and na- ture of this sinking fund renders unneces- i^.^j sary a decision of the question raised and discussed by counsel as to the repeal, by chapter 204, Laws 1893, of the provisions of the charter of the city authorizing such de- duction to be made. If this statute does not prohibit such deduction, we are of the opin- ion that it must be made. It is claimed by plaintiffs that the proviso of section 2, c. 204, Laws 1893, under the rule, "Expressio unius est exclusio alterius," forbids the deduction of the amount of the sinking fund. Thi^ maxim is not of universal application in the construction of statutes, but whether or not it applies in a given case depends upon the intention of the legislature as indicated up- on the face of the statute. Broom, Leg. Max. G63; Suth. St. Const. § 329. The proviso in question is in these words: "Provided that when bonds are issued for the purchase, re- funding, or payment of other bonds of such- city, the bonds to be so purchased or paid shall not be considered a part of the bonds on which any city may be liable for the pur- pose of determining whether the bonds so is- sued will increase the bonded indebtedness of any city above the limit prescribed in this act." The purpose of this proviso is obvious upon its face. It was intended to set at rest any possible question which might be raised by would-be purchasers of bonds issued for the purpose of purchasing, paying or refunding previous bonds of the city, as to their valid- ity, which would impair their market value, and embarrass their negotiation. When this proviso is read in connection with the other provisions of the chapter of which it is a part, especially the first section thereof, which declares that the rights and powers previously granted to the cities of the state shall not be abridged or affected by the act, it is manirest that the proviso was not in- tended either to prohibit or to authorize the taking into account the sinking fund of a city in determining its actual indebtedness. We are then, to inquire as to the essential character of this sinking fund, and deter- mine therefrom, according to general prin- "INDEBTEDNESS" DEFINED. 123 ciples of law and the sugsostions of com- niou sense, whether or not the amount there- of should be deducted from the total amount of the outstanding funds of the city in order to ascertain its actual indebtedness. Sec- tion 13, c. 5, Charter of Minneapolis, requires the city council to make an annual levy of taxes suttic'ieut to pay interest to become due during tlie next fiscal year on all bonds and debts of the city, and also to levy a fur- ther tax of one mill to pay the principal of the bonds when they become due, and for- bids the application of the fund created by such tax to any other purpose. Section 14, Id., declares that, in order to provide for the certain payment of the bonds and debts of the city, the council are authorized to main- tain this sinking fund, and provide for its investment and security, but have no author- ity to abolish it until all the debts of the city are paid, nor to diveit it or any increase thereof to any other purpose, and are requir- ed to appoint a board of sinking fund com- missioners to take charge of the fund. This board, with the consent of the council, may invest the fund in the bonds of the city or in certain other designated bonds. If it is invested in the bonds of the city, they are not to be canceled, but the interest thereon is to be collected, and added to the fund; and when the principal of any city bonds be- comes due, such of the bonds in the sinking fund as may be necessary are to be sold, with the consent of the council, and the ma- tured bonds paid. In case the board or council neglect or violate any of these provi- sions, any taxpayer or bondholder is given the riglit to enforce compliance therewith by suit. The substantial maintenance of this fund, in accordance with these provisions, to secure payment of the principal and interest of the bonds and debts of the city, is declar- ed to be a part of the contract with the bond- holders. Section 22, Id., declares, in effect, that no warrant or further appropriation on the part of the city council is required for the application of the money in the sinking fund to the payment of the bonds. It is clear from these provisions that the money in the sinlving fund which has already been raised by taxation is irrevocably appropri- ated to the payment of the outstanding bonds and debts of the city. If any part of the fund is invested in city bonds, they can never be disposed of, except to extinguish by payment prior maturing city bonds. When any bonds held by the sinking fund become due, they are at once a charge against the fund, and they are extinguished by crediting the amount thereof to the fund. It is true, as counsel for plaintiffs claim, that there is no express provision in the charter providing that city bonds in the sink- ing fund, when they mature, shall be so ex- tinguished; but such bonds can only be sold to pay other bonds as they become due, and the provision of the charter authorizing such sale surely cannot mean that city bonds in the sinking fund already due are to be sold to pay other bonds also due, or that city bonds purchased for the fund are to remain uncanceled indefinitely after their maturity, and a tax equal to the interest thereon levied annually, and paid into the fund. The fair inference from the law relating to this sink- ing fund is that, when bonds become due, they are to be paid and canceled, whether held by the sinking fund or other parties. It appears from the record in this case that all of the bonds held by the sinldng fund are the bonds of the city, hence the amount of the bonds and the money in the fund neces- sarily represent an equal amount of the out- standing and uncanceled bonds and indebt- edness of the city, which has already been realized from taxation to pay the bonds; and to ascertain the further amount to be raised by taxation in order to extinguish the entire indebtedness of the city it necessarily follows that the amount of the sinking fund is to be deducted from the entire amount of the apparent indebtedness of the city. The balance is its actual debt. The debt limit of the statute has reference to an actual in- debtedness for the payment of which a tax must be levied, not to an uncanceled appar- ent liability. Bank v. Grace, 102 N. Y. 313, 7 N. E. 164. As we have suggested, this debt limit of the statute is measured by the rate per cent, of taxation necessary to pay the entire debt of the city. This is the test Now, it is apparent from the admitted facts in this case, that a 5 per centum tax on the assessed valuation of the city would produce a sum which, if added to the amount of the sinking fund, would exceed the amount of all of its bonds and debts, including these reservoir bonds. It follows, then, that the amount of the sinking fund must be deduct- ed from the total apparent debt of the city to ascertain whether its actual debt exceeds the debt limit. 4. Can the board of sinking fund commis- sioners purchase from the city its bonds at the time they are offered for sale? We an- swer this question in the negative. We agree with the city attorney that there is no statute forbidding in express words sucb purchase, but we are of the opinion that such a purchase is so radically inconsistent with the essential character of the sinking fund, and so destructive of the purposes to be con- served by its maintenance, that it must be hold that the prohibition is necessarily im- plied. The city can only issue and sell its bonds by the action of its council, and the board of sinking fund commissioners can only buy its bonds by the action and consent of the council. The intention of the statute is that the council and the board shall be a check upon each other in the purchase of bonds with money in the sinking fund. The unbiased judgment and independent action of each body are essential to the safe guard- ing of a fund which is intended to secure the certain payment of the existing bonds and 124 IHE POWER TO INCUR INDEBTEDNESS. debts of tlie city, and which the council are forbidden to divert to any other purpose. The council cannot act for the city in sell- ing its bonds, and at the same time consent that the trustees of the bondholders and creditors of the city, the board, may invest the trust fund in the bonds which the coun- cil desire to sell, because in such a case there can be no exercise of an unbiased and independent judgment by the council as to the propriety of such purchase by the board. To construe the law so as to authorize such a sale would make the sinking fund a debt- creating instead of a debt-paying scheme. Section 4, c. 204, Laws 1893, provides that the bonds to be issued under the act shall not bear interest at a greater rate than 5 per cent, per annum, and that they shall not be sold for less than par and accrued interest to the highest bidder, after publication of notice of the sale thereof. This implies that, if the credit of a municipality or the money inai'ket is such that its bonds will not bring in the open market par and accrued interest, they shall not be sold. Now, if a city hav- ing a sinking fund set apart for the payment of its outstanding bonds can be a bidder and purchaser of its own bonds at the original sale thereof, using the sinking fund for such purpose, it follows that, when the credit of the city or the money market is such tliat a 5 per cent, bond will not sell in the market for par and accrued interest, the city may sell its bonds to itself by the action of its council and its sinking fund boai'd, in viola- tion of the spirit, if not the letter, of the law. Or, in other words, the city council, when it cannot sell bonds of the city in the manner required by law, may consent that the board may turn over to the city the mon- ey in the sinking fund, and receive in lieu thereof a new issue of city bonds that can- not be sold in the market, whereby the sink- ing fund is diverted, to the prejudice of bondholders and the impairment of the cred- it of the city. One of the primary objects of the law in providing for and jealously guarding the sinking fund is to maintain the credit of the city, and enable it to borrow money, when necessary, on its bonds, at a low rate of interest, and thereby lessen the burden of the taxpayers. But if the city, by the consent of its council and the action of its board of sinking fund commissioners, can help itself to the money in the fund when its bonds are unsalable, and substitute for the money such bonds, the object of the law will be defeated, and the sinking fund become the means of facilitating an increase of the debt of the city. Time, there is no claim made in this case of any want of good faith on the part of the council and the board, and it may also be true that in this particular case it would be for the advan- tage of the sinking fund to purchase of the city its bonds direct, before they have been negotiated; but the evils which might result from a construction of the statute permitting this to be done are serious. The purpose of the statute is to guard against the possibil- ity of such evils. When the provision of the charter relating to the sinking fund and the statute regulating the sale of municipal bonds are considered together, it is obvious that a sale by the city of its bonds to itself for its sinking fund would be a violation of the spirit, if not the letter, of the law. OrdJr reversed, and case remanded with direction to the district court to grant the plaintiffs' motion for a temporary injunction. i "INDEBTEDi^ESS" DEFINED. 125 LEWIS V. WIDBER; Treasurer. (No, 15,452.) (33 Pac. 1128, 99 Cal. 412.) Supreme Court of California. Aug. 30, 1893. In banii. Applioiition by George E. Lewis for a •writ of mand.ite to compel J. H. Widhor, treas- urer of the city and comity of San Francisco, to pay an audited claim of applicant for salary as chief clerk in the otiice of registrar of voters. Granted. S. C. Denson, for petitioner. T. C. Van Ness, for resi-ondent. McPARLAND, J. This is an original ap- I plication here for a writ of mandate requir- ing the res])ondent. who is treasurer of the city and county of San Francisco, to pay an audited claim of petitioner for his salary I as chief clei-k in the othce of registrar of ' voters for the month of June, 1893. The fili:ls are that the office of petitioner was es- tablished, and his salary fixed at $1.50 per month, by a statute of the state legislature; that when on August 3, 1893, he made de- mand on the respondent for the payment of his claim for salary for the month of June preceding, there was plenty of money in the general fund of said city and coimty to pay the same, but that there was no money in said fund which had been derived from the rev- enues of the city for the fiscal year ending June 30, 1893. The charter of said city and coimty, commonly called the "Consolidation Act," provides that the fixed salaries of offi- cers shall be paid out of the general fund, and that, in case of a deficiency in the fimd, di-mands for salaries shall be registered and paid out of any moneys afterwards coming into the fimd. Sections 95, 9G. It nowhere limits the payment of such salaries to the revenue of any particular year. The re- splendent contends— or, rather, he suggests that somebody else might give him trouble by contending— that he should not pay peti- tioner's salary on accoimt of section 18 of aiticle 11 of the state constitution, which reads as follows: "No coimty, city, town, t(nvnship, board of education, or school dis- trict, shall incur any indebtedness or liabil- ity in any manner, or for any purpose, ex- ceeding in any year the income and revenue provided for it for such year, without the assent of tAvo-tlm-ds of the qualified voters," etc. It is quite apparent, however, that this clause of the constitution refers only to au indebtedness or liability which one of the uumicipal bodies mentioned has itself in- curred; that is, an indebtedness which the nnuiicipality has contracted, or a liability resulting, in whole or in part, from some act or conduct of such municipality. Such is the plain meaning of the language used. The clear intent expi-essed in the said clause was to limit and restrict the power of the municipality as to any indel.it- ediiess or liability which it has discretion to incur, or not to incur. But the stated sal- j ary of a pulilic officer, fixed by statute, is i a matter over which the municipalitj' has no control, and with respect to which it I has no discretion, and the payment of his ( salary is a liability established by the leg- ^ islature at the date of the creation of the ' office. It therefore is not an indebtedness 1 or liability incurred by the nmnicipalitj', with- I in the meaning of said clause of the consti- tution. Counsel for respondent does not 1 very strenuously contend that the foregoing consti'iiction would not be the correct one if tlie question were res Integra; but he con- tends that this court has decided otherwise in the cases of Gas Co. v. Brickwedel, 62 Cal, G41; Shaw v. Statler, 74 Cal. 258, 15 Pac. Rep. 833; and Schwartz v. Wilson, 75 Cal. 502, 17 Pac. Rep. 449. But the point under dis- cussion here was not involved in either of those cases, and therefore could not possi- bly have been there decided. In neither of those cases was the subject of the litigation the payment of the fixed salary of a public officer prescribed by law. In each case there was involved only an ordinary debt created by the municipality itself, — an indebtedness which it had incurred; and we agree with •the decision of the com't in those cases that debts and liabUities of that kind must be paid out of the revenue of the year in which such indebtedness or liability was inciured bj' the municipality. In the Brickwedel Case the matter involved grew out of a contract made by the city about the purchase of gas; in Shaw v. Statler, out of the hiring of a man as boss of the chain gang; and, in Schwartz v. AVilson, out of a sale to the county of certain goods, wares, and merchan- dise. Those cases were therefore properly decided; but, of coiuse, general language used by a judge when delivering the opinion of the court must be considered with refer- ence to points before the coiut, and the mat- ters involved in the case. And the general language used by Mr Justice Ross in the Brickwedel Case,— upon which the fears of respondent are based, — even if taken in the abstract, does not warrant the construction put upon it. The words, "no such indebted- ness or liability should be inciured exceed- ing," etc., means incurred by the municipal- ity; and in speaking of the object of the pro- vision he refers to a system previously pre- vailing in some of the municipalities, "by which liability and indebtedness were in- cuned by them far in excess," etc. And in speaking of the result of the enforcement of the constitutional provision, after referring to the principle that all are presumed to know the powers of a municipality, he says that "those who contract with it, or fiunish it with supplies, do so with reference to the law." And, of course, when taken with reference to the point then before the court, there is nothing in the opinion which con- flicts with the conclusion at which we have arrived in the case at bar. The cases cited 126 'I HE POWER TO INCUR INDEBTEDNESS. by respondent, of People v. May, 12 Pac. Rep. 83S, decided by the supreme court of Colorado, and Lake Co. v. Rollins, 130 U. S. 662, 9 Sup. Ct Rep. 651, are not in point. Those cases dealt with a constitutional pro- vision very different from the one invoked in the case at bar,— a provision which lim- ited the amount of "debt by loan" which a county could contract, and the "aggregate amoimt of indebtedness" which it could in- cur. On the other hand, the cases of Cash- in v. Dunn, 58 Cal. 5S1, and Welch v. Stroth- er, 74 Cal. 413, 16 Pac. Rep. 22, are strongly in point, for while the "one-twelfth act," and not the said constitutional provision, was involved in those cases, still the same rule was applied there which we apply here. In the former case the coiu-t said that the said act "has no application whatever to the auditing and payment of demands for sala- ries of officers whose appointment is provid- ed for and salaries fixed by law," and in the latter case this com't said as foUows: "Sal- aries are not liabilities against the treasm-y, which rest upon any authorization or con- tract by the board of supervisors, or any oth- er officer. They are fixed by law, and are not subject to the control of such officers. They are payable out of the general fund, and are not limited to any particular part of that fund which the board may choose to set apart for their payment." Our con- clusion is that the payment of the salary of a public officer, whose office has been cre- ated and salary fixed by law, either statutory or constitutional, is not within the provision of said section 18 of ai'ticle 11 of the consti- tution; tliat his salary is to be paid out of said general fimd when there is sufficient money therein, without regard to revenues of separate years; and that it was a duty specially enjoined by law upon respondent to pay the said audited demand of petitioner when it was presented, on said 3d day of July. Let a peremptory -writ of mandate issue, as prayed for in the petition. We concur: FITZGERALD, J.; GAR- OUTTE, J.; DE HAVEN, J.; HARRISON, J. BEATTY, G. J., did not participate in the decision of the above cause. WHAT SHOULD BE INCLUDED IN TERM "LJsDEBTEDNESS. 127 FINLAYSON v. VAUGHN, County Treasurer. (56 N. W, 49, 5i Minn. 331.) Supreme Court of Minnesota. July 31, 1S03. Appeal from district court, Ramsey coim- ty; Brill, Judf:re. Action by David M. Finlayson against .Tolm D. VaiiLrlin, treasurer of Pine county. Defendant had judgment, and plaintiff ap- peals. AfBrmed. C. D. & Tlios. D. O'Brien, for appellant Robert 0. Saunders, for respondent. VANDERBURGH, J. The township of Hinckley, in the county of Pine, in the year 1S86 issued certain bonds in aid of the Kettle River Railroad Company. These bonds, $12,000 in amount, were issued in pursuance of chapter 106, Laws IS 77, as amended in 1S78, chapters 45, 46; and all the proceedings leading to the issuance tliereof are found by the court to have been regular, and in conformity with the statute. / It is, however, insisted by the plaintiff that / the amoimt issued, together with the cou- [ pons, was in excess of 5 per cent, of the as- ^ sessed valuation of the property of the town. . Conceding that the plaintiff is right in this, I it does not follow, as respondent suggests, that the entire indebtedness is void, but the / invalidity would attach only to the excess ' over the stiitutory hmit. But it does not ap- / pear that the entii-e indebtedness exceeds I such limit. The amount of the bonds voted is $12,000, issued October 1, 1SS6. These bonds bear interest at the rate of 7 per cent, per annum, and I'un 30 years, each bond having corresponding interest coupons attached, payable on October 1st each year, the first being due and payable October 1, 1SS7. It is also admitted that the total assessed val- uation of the taxable property of the town I for that year was $251,359. If the princi- pal alone is considered, it is obvious that the total amount of the bonds was within the 5 per cent, limit Btit the plaintiff claims that . the interest which, by the terms of the ' bonds, was to accrue from year to year aft- er the date thereof, must be included in the ' amount allowed to be issued imder the stat- ute. This is clearly erroneotis, as the cotui; below held. Tliese interest coupons form no part of the principal debt, and the I bonds when issued represented at that date an indebtedness for the principal sum only. The statute contemplates nothing more. Durant v. Iowa Co., Woolw. 71, Fed. Cas. No. 4,189. 2. The proposition for the issuance of the bonds was in tlie form requirwl by the stat- ute, and contained a statement that "said railroad company would, in consideration of said bonds, at the election of said town, is- sue to said town one hundred and twenty shares of its capital stoclj of the par value of $100 per share, and wotdd deposit the certificates of such shares to be delivered to the proper authorities of said town upon the deliveiy of said bonds to said company." It is also foimd that the board of supervisors of the town, after the election authorizing the issuance of the bonds, deeming it for the interest of said town to do so, at a meeting duly held on September 29, 1880, waived the issuance by said railroad company of any stock to said town. On October 1, 1886, the bonds were issued and deposited in es- crow to be delivered to the railroad com- pany, which was done prior to January 1st following, but no stock was issued to the town. The plaintiff's contention is that the town super visoi-s had no authority to waive the issue of the stock, but the statute is a complete answer to this objection. Section 4 provides that the proposition to be voted on shall contain a statement that the rail- road company will, at the election of such municipality, issue to it such number of the shares of the capital stock as will at par value correspond with the principal sum of such bonds; and the last proviso in sec- tion 5 authorizes the board of supervisors of any such town, in case they shall deem it best for the interest of such town to do so, to waive the issuance of any such stock. It is evident that in some cases the stock woidd not be of sufficient value to compen- sate for the risk of the liability of stock- holders. In any event, it is left with the supervisors to determine, and their waiver in this instance in no way affects the valid- ity of the bonds. Judgment affirmed. 128 POWER TO CHARTER PRIVATE MONOPOLIES. RUTLAND ELECTRIC LIGHT CO. v. MAR- BLE CITY ELECTRIC LIGHT CO. (26 Atl. 635, 65 Yt. 377.) Supreme Court of Vermont. Rutland. April 22, 1S93. Appeal from chancery court, Rutland coun- ty; Taft, Chancellor. Bill by the Rutland Electric Light Com- pany against the Marble City Electric Light Company for damages and an injunction. The bill was dismissed pro forma, and the orator appeals. Reversed. Geo. E. Lawrence and C. H. Joyce, for ora- tor. J. C. Baker, for defendant. TYLER, J. The orator and defendant are rival coi-porations, organized imder the gen- eral laws of this state for the purpose of car- rying on, resi^ectively, the business of elec- tric lighting in the village of Rutland. In May, 1886, the orator entered into a written contract with the trustees of the village for lighting the village streets, and, acting upon and in compliance with that contract, it es- tablished a plant, erected poles, strung wires, and commenced doing business. It was stip- ulated that, where wires crossed streets, they should not be within 30 feet of the ground, •and street line wires should be at least 20 feet above the ground. The poles were erect- ed at points indicated by the trustees. Some three years later the defendant, by permis- sion of the trustees, erected poles, strung wires, and commenced the business of elec- tric lighting in competition with the orator. Its poles were also placed under direction of the trustees. In some of the principal streets the poles were set on the same side as the orator's poles, and quite near to them. The orator employs a system for lighting buildings with incandescent lamps with a current of electricity used on its wires of only 110 volts, which is so low a current that the wires, when charged, can be handled with safety. The defendant uses for its incandescent lamps an alternating current of 1,000 volts on its wires on the streets. By means of what are called "converters," a cvu-rent of 50 volts is taken into buildings. When the defend- ant's wires were first strung upon the poles they did not toiich the wires and poles of the orator, but from the effect of storms, from stretching, or some other cause, they now sometimes come in contact with the orator's poles and wires, and injure them. The wires should not be nearer each other than 12 inches, and the crosspieces upon which they are strung should be at least 2 feet apart, so that when the wires arc loaded with snow and ice, or when swayed by the wind, they will not come in contact. When a wire car- rying a heavy current comes in contact with one carrying a ligliter current the heavy cur- rent is liable to be inducted into the other wire, which endangers the orator's wires, lamps, and plnnt. and is liable to set fire to buildings, for which the orator would be an- swerable in damages. The defendant's poles are not as high as those of the orator. The crosspieces to which its wires are attached are nearer the ground than those of the ora- tor, so that in places the defendant's wires are under the orator's, which renders it dif- ficult and dangerous for the orator's employes to reach their wires for repairs and other pui-poses. No accident has thus far happen- ed. The defendant's wires are not usually charged with electricity in the daytime, but the two plants are entirely independent of each other, and the orator's employes have no means of knowing when the defendant's "syres are charged. Where the wires of the parties cross Centre street the orator's is only 21 feet above the ground; the defendant's is strung above it, and, having sagged, rests upon it. At other places, where the respec- tive wires enter buildings, they interfere with each other. These are the material facts found by the master. It is conceded that the village trustees had authority to make the contract with the orator. The defendant virtually concedes that the orator's contract M'ith the trustees is the measure of its rights. The village, by its trustees, invested the orator with certain rights, and, after the orator, relying upon the contract, had expended money in establish- ing its plant and appliances, the village could not, by an ordinance, have infringed these rights; and clearly it could not confer upon the defendant authority to infringe them. On the other hand, it is not claimed that the oi'a- tor obtained a privilege of the streets to the exclusion of the defendant, but that the de- fendant's rights were subordinate to the ora- tor's, and must be exercised in such a man- ner as not to interfere with them. If au- thorities were required to sustain so plain a pi'oposition, those cited upon the orator's brief are pertinent. In Hudson Tel. Co. v. Jersey City, 49 N. J. Law, 303, 8 Atl. 123, it was held that where the city, by an ordinance, under statutory authority, had designated certain public streets in which the company might place its telegraph poles, and the com- pany had expended money in placing its poles upon such streets, the city could not, by sub- sequent ordinances, revoke such designations; that the company had an irrevocable vested right to use the streets for the designated purpose. Thompson's Law of Electricity lays down the general rule that when a mu- nicipal corporation, under a statutory provi- sion, has, by ordinance or other lawful mode, authorized a telephone company to erect its posts or poles in certain designated streets, and the company proceeds so to erect them, and to expend money on the faith of the li- ccmse so granted, it thereby acquires a vested right to the use of the designated streets, so long as it conforms to the conditions of the license; and the license cannot thereafter be revoked by the municipality. So an ordi- nance authorizing a telephone company to maintain lines on its streets, without liniita- POWER TO CHARTE;R PRIVATE MONOPOLIES. 129 tion as to time, for a stipiilated consiilora- tion, when accepted and acted upon by the grantee, by a compliance with its conditions, becomes a contract, which the city cannot abolish or alter, without consent of the jiran- tees. It appears that the orator has suffered some damage in co^isequence of its wires coming in contact with the defendant's; that it is constantly exposed to danger from such contact, and that its men cannot convenient- ly and without danger reach its wires for the ABB.CORP— 9 purpose of making repairs and of connecting lines therewith to buildings. We therefore think that the orator is entitled to reUef ac- eoriling to the prayer of the bill. The pro forma decree dismissing the bill is reversed, and the cause remanded. An accounting is ordered for the damages already suffered by the orator, and the orator may have a per- petual injunction restraining the defendant from maintaining its wires so as to interfere with those of the orator. 130 POWER TO CHARTER PRIVATE MONOPOLIES. CITY OF BRENHA:M v. BRENHAM WA- TER CO. (4 S. W. 143, 67 Tex. 542.) Supreme Court of Texas. March 25, 1S87. Appeal from district court, Washington county. Tarver & Bryan and J. T. Swearingen, for appellant. Garrett, Searcy & Bryan and Bas- sett, Muse & Muse, for appellee. STAYTON, J. On August 18, 1884, the city of Brenham passed an ordinance, which pro- vided that an association of persons, then un- incorporated, linown as "Brenham Water Company," should have the right to establish, construct, and operate a system of water- •R'orks in or adjacent to the city, and for this purpose to use all the streets, alleys, lanes, public grounds, and all places under the con- trol of the city, so far as might be necessary for the proper conduct of the business, "and for supplying said city, and the inhabitants thereof, with fresh water for domestic, man- ufacturing, fire, and other purposes." The length of mains and pipes to be first estab- lished was fixed at not less than four miles, to be located as might be agreed between the company and the city, which were re- quired to be extended as the city might order to be done. The seventh section of the ordi- nance determined the capacity the water- works were reiuired to have, and the eighth section gave the city the right to use water for public purposes other than the extinguish- ment of fires which the city was to receive in full payment for all municipal taxes dur- ing the full term for which the contract was to run. The ninth section reserved to the city the right to purchase the water-works after the expiration of 10 years, at such price as might be agreed upon by persons to be se- lected as therein provided, whose appraise- ment was to be binding upon both parties. Section 1 was: "That there is hereby given and granted to Brenham Water Company the right and privilege, for the term of twen- ty-five years from the date of the adoption of this ordinance, of supplying the city of Bren- ham, and the inhabitants thereof, with wa- ter for domestic or other uses, and for the ex- tinguishment of fires." The fifth section is as follows: "The said city of Brenham here- by agrees to rent, and does rent, of the said Brenham Water Company, 35 double-nozzle fire hydrants, located, by authority of said city, upon the mains and pipes within said city, for the extinguishment of fires, at a rental of .'?3.000 per annum, payable quarter- ly on the first day of .Tanuary, April, July, and October in each year. The said rental shall commence when the city is notified that the said hydrants are ready for use, and shall continue during the full term specified in this ordinance; and for the purpose of providing for the payment of all hydrant rental becom- ing due, uuder the provisions of this contract, the city council shall levy, collect, and appro- priate annually a sufficient sum of money to cover the amount becoming due on this con- tract." The sixth section provided that "the said Brenham Water Company shall make all extensions of mains and pipes whenever the said city council shall oi'der the same to be made, and shall erect not less than at the rate of ten double-nozzle fire hydrants to the mile on such extensions, for which hydrants the said city of Brenham shall pay a rental of $60 each per annum, payable as provided in section 5." The thirteenth section fixed, the water rate which might be charged to inhabitants in most of the matters and busi- ness that could be enumerated, but as to some enumerated, and those not enumerated, the charge was left to be fixed by contract to be made with the superintendent, and all rates were made payable quarterly in advance at the office of the corporation. The fourteenth section provides that "this ordinance shall be a contract by and between the city of Brenham and the Brenham Water Company, their successors and assigns, and shall be binding on both parties thereto, provided said company shall file with the city clerk its ac- ceptance of the same in writing within five daj;s after the passage of the same." The water company's acceptance was filed as re- quired by the ordinance. Before the first of June, 1885, the persons composing the Brenham Water Company in- corporated under the same name, under the general incoi^oration act, and on that day the city was notified that the works were ready for use; but it was found that the water sup- ply was not sufficient; wherefore the water company asked the acceptance of the works by the city, agreeing to give an additional supply of water equal to that they were then able to furnish, and to increase it as the con- sumption demanded it; to keep on hand such fuel as would enable it at all times to speed- ily put the pumps in motion in case of fire; to keep and maintain a telephone; to pump the stand-pipes full every day, and to bank the fires under the boilers; to allow the fire department to fill the fire cisterns from any of the hydrants; and "to adopt and enforce strict rules and regulations for the faithful carrying out of the purposes for which it is intended, and to use every diligence to give the city of Brenham good and efficient fire service." The city, on the same day, accept- ed the water-works under the terms of the agreements then tendered; and, in its ordi- nance so accepting, it provided "that no pay- ment shall be made on said contract if the said company docs not comply with its agree- ment hereinbefore recited, but, on compliance therewith, the payments shall be made, com- mencing on the first day of June, 1885." The ordinances did not give to the city the power to regulate and control the water-works, and to make them effective in case the water com- pany failed to do so. This action was brought to recover the POWER TO CHARTER PRIVATE MONOPOLIES. 131 in-ice stipulated for the use of hydrants for the time intervening June 1, 1SS5, and Janu- arj' 1, ISSG. The ordinance was made a part of the petition. The city tiled defenses, thus summarized, in the brief of its counsel, correctly: "(1) A general demurrer. •'(-) That it appeared from the petition that the contract sued upon created a monopoly and perpetuity in plaintiff. "(3) By special exception that no authority to nialie said contract was therein alleged. "(4) That it appeared from said petition that the city council had rented the hydrants for a period of twenty-five years, at the year- ly rental of three thousand dollars, and no authority was alleged in the council to bind the city for such a period of time. "(5) A general denial. "(,0 and 7) That said contract was inoper- ative, against public policy, and void, because —First, the city of Brenham, having less than ten thousand inhabitants, was prohibited by the constitution and laws of the state from levying for city purposes more than twenty- five cents on the one hundred dollai-s valua- tion, on the property subject to taxation, and at the date of said contract the curi-ent expenses of the city, including salaries of offi- cers and other reasonable and necessary ex- penses, annually incurred, exceeded the rev- enue derived from said tax; that there was no excess in any fund which could be appro- priateoration has no iwwer, in any event, to contract for such things as are con- sumed in their daily use, for a period longer than the official term of the officers who make I the contract; but we do intend to be under- stood to hold that such corporations have no I power to make contracts continuous in char- I acter. in reference to such things or any oth- 1 I ei-s, by which they will be, in effect, precluded from exercising from time to time any power, 1 j legislative in character, conferred upon them)) by law. There is, however, another question involv- (^^ ed in this case, which will be examined, reach- ing fmlher than the one we have considered, and involving, not only tlie power of the mu- nicipal coii^oration to make the contract sued on, under the terms of the charters of both coiiDorations, but involving the question of the power of the legislature, directly or indirectly, to confer upon the water company such rights and privileges as it claims imder the contract. It is claimed that the contract creates a mo- nopoly, and that this is in violation of the constitution, which declares that "perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed." If such is the effect of the contract, it is for- bidden by the constitution, and no legislation can give validity to it. A grant which gives to one or an association of persons an exclu- sive right to buy, sell, make, or use a given thing or commodity, or to pursue a given em- ployment, creates a mojiopoly. There are, however, certain classes of exclusive privileges M'hich do not amount to monopolies, and a consideration of these, and the grounds on which they stand, is not now necessary. The right to exercise the exclusive privilege \ need not extend to all places; it is enough that ' it is to operate in and to the hurt of one com- I munity. It need not continue indefinitely, so ' as to amoimt to a peipetuity; it is enough'^ that it be an exclusive privilege, for a period , of time, of the character forbidden. The more | general is its application as to places and per- sons, and the longer it is to continue, the more hiu'tful it becomes. In the case before us, the ' contract, as we have seen, gives the exclusive right to sell to a community for public pur- poses for the period of 25 years, thus affecting all the inhabitants in their common right di- rectly, and in their individual rights at least indirectly. This right to sell for public pur- poses carries with it, through the contract, the obligation to buy for public uses. It gives the exclusive right to sell to the inhabitants of the city for the same period, for all the pri- vate uses for which they may need water, in such ways, and to be so applied, as it can be only by a system of water-works; which is a denial, in effect, to the inhabitants of the right to buy for these private purposes from any otiier water company. Such an exclusive right prevents competition, and tends to high prices; all matters affecting which the con- tract before us surrenders the right further to regulate for a quarter of a century. It has been said, in cases to which we will here- after refer, that there can be no monopoly in the use of a street to lay down gas or water mains or pipes, because it is not a matter of common right to use streets for such purpose. This may be admitted without affecting the question before us. When such use, however, is but a means to the exercise of an exclusive right to sell water, and to compel a city or its POWER TO CHARTER PRIVATE MONOPOLIES. 137 inhabitants to buy it, it will be found difficult to separate the means from the end intended to be accomplislied. A system of water or gas worlvS may be operated in a town or city as well by one individual as by a private cor- poration, if he have tlie ability. No corporate francliise is necessary to that purchase. It is an occupation in which any person may en- gage if he has the means, which may, and or- dinarily will, involve the tight to use streets and other public grounds. Thus, means to accomplish the purpose can ordinarily be acquired only through provision given directly or indirectly by the state, but cases may arise in which no such consent would be necessary. Such a franchise, when granted, is one of the fullest character, and, from its nature, subject at all times to con- trol. Some conflict of authority exists as to whether such contracts as that under consid- eration create monopolies. The question has arisen in several cases in which gas and wa- ter companies asserted exclusive right to use streets for laying down mains and pipes, un- der charters gi-anted, which, in terms, gave ex- clusive right. The question has most fre- quently arisen in cases between rival compa- nies seeking to use streets, and in which no furtlier right was directly involved. In Norwich Gas-Light Co. v. Norwich City Gas Co., 2."> Conn. 19, it appeared that a gas company, holding a charter which in terms gave it the exclusive right to use streets for the puniose of laying down pipes, renting gas- posts, burners, and other things necessary to ligliting the streets, alleys, lanes, public grounds, and other places, sought to restrain a rival gas company from using the streets for a like purpose; and it was held that the charter created a monopoly which the court would not sustain, even in the absence of a constitutional provision forbidding monopo- lies. Such a claim asserted by a gas company holding under a contract with a municipal cor- poration, which assumed to give the company the exclusive right to use the streets for the purposes of its business, in another case was held to be a monoiKily, and on that ground the claim held to bo invalid. State v. Cincin- nati Gas-Light & Coke Co., 18 Ohio St. 2!):'.. The case of City of Memphis v. Memphis AVater Co., 5 Heisk. 52.5, was very similar in its facts to the Coimecticut case above no- ticed, and it was held that the exclusive right to use the streets of the city, given to the wa- ter company by its charter, did not create a monopoly. As this case fairly presents the theory on which such exclusive grants to use streets for gas and water purposes are main- tained, '.ve will quote a part -of the opinion. Tlie court said: "The question, then, is nar- rowed down to the inquiry, did the individu- als composing the Memphis Water Company have the right, before their incorporation, in common with all others, to erect water-works in Memphis, to take up pavements, occupy the fiti-eets, and do such things us were necessary and proper in completing their water-works? It is clear that none had the right to do those things except the city of Memphis, by virtue of its corporate powers, and this right on the part of the city was exclusive until it was taken away by the legislature, and trans- ferred to the Memphis Water Company. It is no more a monopoly, when conferred on tlie water company, than when it belonged to the city of Memphis. It was an exclusive privilege when exercised by the city. It is an exclusive privilege in the Memphis Water Company, but not a monopoly." In New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. G50, 6 Sup. Ct. 252, it appeared that the plaintiff had a charter which gave it the exclusive right, for tbe period of 50 years, of making and supplying gas-light to the city of New Orleans by means of pipes or conduits laid in the streets, to such persons as might voluntarily choose to contract for it. The defendant was subsequently chartered under a general law authorizing the formation of corporations for certain purposes, among which was the construction and maintenance of works for supplying cities or towns with gas, and it had obtained permission from the common council of New Orleans to use its streets and other public ways and places to lay mains, pipes, and conduits. This it was proceeding to do when a suit was brought to restrain it, and it was held that the exclusive grant, in connection with the facts shown, constituted a contract which state legislation could not impair. In disposing of the case, it was said: "Legislation of that character is not liable to the objection that it is a mere monopoly, preventing citizens from engaging in an ordinary pursuit or business, oi^en as of common right to all, upon terms of equality; for the right to dig up the streets and other public places of New Orleans, and place their pipes and mains for the distribution of gas for public and private use, is a franchise, the privilege of exercising which could only be granted by the state, or by the municipal gov- ernment of that city, acting under legislative authority. * * *" To the same effect is the decision of the supreme court of Louisiana in Crescent City (Jas-Light Co. v. New Orleans Gas-Light Co., 27 La. Ann. 138, 147, in which it was said: "Tlie right to operate gas-works, and to illu- 1 minate a citj', is not an ancient or usual oc- . cupation of citizens generallj'. No one has the right to dig up the streets, and lay down ' gas-pipes, and carry on the business of light- j ing the streets and the houses of the city of New Orleans, without special authority from the sovereign. It is a franchise belonging to . tlie state, and in the exercise of the police power, the state could carry on the business / itself, or select one of several agents to do so." Sultse(iuently to the granting of the charter through which the plaintiff claimed, the con- stitution of the state of Louisiana was so changed, while preserving rights, claims, and 138 POWER TO CHARTER PRIVATE MONOPOLIES. contracts then existing, as to provide that "the monopoly features in the charter of any corporation now existing in this state, save such as may be contained in the charter of railroad companies, are fully abrogated," and it was claimed that this could operate to di- vest the plaintiff's privilege. As to this the court, however, said: "The monopoly clause only evidences a purpose to reserve the policy, previously pursued, of granting to private cor- porations franchises accompanied by exclu- sive privileges as a means of accomplishing public objects. That change of policy, al- though manifested by constitutional enact- ments, cannot affect contracts which, when entered into, were within the power of the state to make." The inference from the lan- guage used is that, had the constitutional pro- vision in regard to monopoly features in charters been in force when the plaintiff's charter was granted, its exclusive privilege, franchise, or whatever it may be termed, ■would have been inoperative. In New Orleans Water-Works Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. 273, a suit was brought by the company to restrain Rivers from laying pipes, mains, and conduits from the Mississippi river to the St. Charles Hotel; and the claim was based on the fact that the plaintiff had a charter which gave it the exclusive right to supply the city of New Or- leans and its inhabitants with water from the Mississippi river, or other stream, by mains or conduits, with such right to lay them in the sti'eets, public places, and lands of the city, which had been granted in corn sideration that it would furnish water to the city free of charge. The claim of the plaintiff was sustained, and the charter held to be a contract that could not be impaired by the constitutional provision afterwards adopted, to which reference is made in the preceding case. The same inferences may, however, be drawn from the opinion, as to what would have been the effect of the provision of the constitution repealing "the monopoly features in the charter of any corporation," had it been operative at the time the plaintiff's charter was granted. In the case of State v. Milwaukee Gas Co., 29 AVis. 400, it was conceded that the grant of an exclusive right to lay pipes, for the pur- pose of conducting gas, in the streets, ave- nues, and other public places of a city, cou- pled with the exclusive right to manufacture and sell gas to its inhabitants for 15 years, created a monopoly. In the Slau^hter-IIou.se Cases, 16 Wall. 61, . 65, 102, 121, 128, it was conceded that the [ exclusive privilege in question, in these cases, was a monopoly; but in these, as in the case ' last above cited, it was held that, in the ab- sence of some constitutional provision forbid- ding monopolies, the grant of these exclusive ' privileges was not invalid. Under an exclu- sive grant of privileges, similar to those in question in the Slaughter-House Cases, it wa& held in the case of City of Chicago v. Rumpff, 45 111. 97, that a monopoly was created. The court said: "Such action is oppressive, and creates a monopoly that never could have been contemplated by the general assembly. It impairs the rights of all other persons, and cuts them off from a share in not only a legal,, but a necessary, business." In the case of State v. Columbus GaSrLight & Coke Co., 34 Ohio St. 581, it was held that such an exclusive right as the contract in this case gives, created a monopoly. It will not do to say that an exclusive right in a municipal corporation to operate water or gas works stands upon the same ground as does such exclusive right held by a private j corporation or an individual. In the one case I the right is, in effect, exercised by the people j who are to be affected by it, and not for I profit, but for the welfare and convenience of j the public and the inhabitants of the corpora- I tion. The correction of abuses in its manage- ment, whereby oppression may be avoided, is ! in the hands of the people; while, on the I other hand, such works are operated for pri- i vate gain, with every incentive to oppression, without power, in those to be affected, to re- I lieve themselves from it. In the one case the I exclusive right may create a monopoly, and j in the other not. ! Tlie exclusive rights, given by the contract ] before us, lead to the same results as a mo- i noix)ly in any other matter, and whether a ; monopoly or not is best ascertained by the I results which are brought about by a con- • tract or law, and the exercise of rights the j one or tlie other may profess to confer. We are i of the opinion that the exercise of the ex- ; elusive rights conferred on the water com- i pan J' produce the same results as would the ! exercise of an exclusive right which would ! fall within the most exacting definition of a I monopoly, and that the allow'ance or creation I of such exclusive rights is contrary to the spirit of the constitution of this state. There are many other questions in this case which, in view of the controlling charac- ter of those already considered, need not be examined. If the appellee furnished water between the time the works were put in operation, under the ordinance passed June 1, 1885, and the tenth July of that year, when the city de- clined further to regard the contract as bind- ing, for that the city ought to be held liable; but this is the extent of the right of the ap- pellee to recover for water furnished the city. The judgment will be reversed, and the cause remanded. OWNERSHIP OF MUNICIPAL MONOPOLIES. 13^ LINN et al. v. BOROUGH OF CHAMBERS- BURG. (28 Atl. 842, 160 Pa. St. 511.) Supreme Court of iV'nnsylvania. March 2U, 18tM. Appeal from court of common pleas, Franklin county; John Stewart, Judge. Suit by S. M. Linn and others against the biugcss and town council of the borough oi Chamber sburg. From a decree for defend- ant, plaintiffs appeal. Affirmed. The report of the master, William Alexan- der. Esq., and the opinion of the com't below, were as follows: "Master's Report. "Finding of Facts. "First. It is admitted that all the plain- tiffs in this case are taxpayers of the bor- ougli of Chambersburg, and that all except Augustus Duncan and Benjamin C. Ross are citizens resident in the said borough. "Second. The defendant in this proceeding is the bm-gess and town council of the bor- ough of Chambersburg, a municipal corpora- tion incorporated into a borough by an act of the general as.sembly of Pennsj-lvania, passed and approved the 21st day of March, A. D. 1803, and by the said act of incorpora- tion the limits and bouudaries of tlie said borough were particularly set forth, and it was enacted: 'That from and after tlie first Monday in May (1803) the burgess and town council duly elected and their successors shall be one body politic and corporate in law, by the name and style of the Burgess and Town Council of the Borough of Cham- bersburg and shall have perpetual succes- sion. And the said burgess and town coun- cil aforesaid and their sucessors, shall be ca- pable in law, to have, get, receive, hold, and possess goods and chattels, lands and tene- ments, rents, liberties, jurisdictions, fran- chises and hereditaments, to them and to their successors in fee simple or otherwise, not exc(>eding the yearly value of five thou- sand dollars, and also to give, gi'ant, sell, let and assign, the same lands, tenements, here- ditaments and rents, and by the name and style aforesaid, they shall be capable in law to sue and be sued, plead and to bo im- plea(l(Ml, in any of the coiu-ts of law in this commonwealth, in all manner of actions whatsoever, and to have and use one com- mon seal, and the same from time to time at their will to change and alter.' See section 3. Also: 'That it shall and may be lawful for the town council to meet as often as oc- casion may require, and enact such by-laws, and make such rules, regulations and ordi- nances as shall be determined by a majority of them necessary, to promote the peace, good order, benefit and advantage of said borough, particularly by providing for the regulation of the market, streets, alleys and highways therein; they shall have power to assess, apportion and appropriate such taxes as shall be determined by a majority of them necessary for carrying the said rules and ordinances from time to time into com- plete effect; * * * provided, that no by- law, rule or ordinance of the said corpora- tion shall be repugnant to the constitution or laws of the United States or of this com- monwealtli. ♦ * * Provided also, that no tax shall be laid in any one year, on the val- uation of taxable property exceeding one cH'iit in the dollar, imless some object of gen- eral utility shall be thought necessary, in which case a majority of the freeholders of said borough in writing under their hands, sliall approve of and certify the same to the town council, who shall proceed to assess the same accordingly.' See section 6. "Third. The said borough of Chambersburg has continued to hold and exercise the rights and privileges and perform the duties grant- ed and imposed upon it as a body politic or municipal corporation from the date of its incorporation until the present time, imder its original charter and the acts of the gen- eral assembly of Pennsylvania since passed in relation thereto. "Fourth. Since the early part of the year 1800, at the date of the filing of the bill in this case, March 22, 1892, and at the prespnt time, the said borough of Chambersburg owns, controls, and operates an electric light plant for the purpose of providing an ample supply of light for its streets, public build- ings, and grounds; and a short time prior to the filing of this bill, to wit, about December 7, 1891, the said borough made some addi- tions to the engine, dynamos, and other ma- chinery about the plant, and since that date it has been supplying a number of the inhab- itants of the borough with electricity for the purpose of lighting their stores and places of business, and it has charged and received certain fixed charges and prices for the said supply of electricity and light. "Fifth. The capacity of the said plant a&^ used and operated for street-lighting pur- poses, prior to the additions above referred to, was sufficient for the supply of seventy arc lights of 2,0(X> candle power each, and this entire number of lights was used in lighting the streets and public buildings of the borough. "Sixth. The additions and improvements made to the plant prior to the filing of the bill in this case, and within a short time thereafter, consisted of the following items: Conversion of the single-cylinder engine into a compound cylinder, and necessary pulleys and shafting, and the erection of a new stack to the boiler, at a cost of !?G9S; the erection of a commercial circuit, for wires, poles, brackets, insulators, etc., and labor, at a cost of about $200; the purchase of thirty or forty arc lamps, at a cost of from $1,200 to $1,000; the purcha.se of a fifty arc light dynamo, at a cost of $2.37.5. These addi- t'ums and improvements were made by the 140 OWNERSHIP OF MUNICIPAL MONOPOLIES. l)orough for the piirpose of increasing' the ca- pax2ity of the plant, so as to be able to supply -electricity to the inhabitants of the borough for lighting purposes in their stores and -dwellings, at fixed charges and prices, and the said borough has been furnishing, and ■still is supplying, the said citizens with elec- tricity for lighting purposes as aforesaid. Prior to March 22, 1S92. seven arc lamps were iu use by citizens of the borough, and since that date the number has been in- creased until at least thirty arc lamps of 2,000 candle power are now in use by sundry •citizens of the said borough, and the same are furnished with electricity by the borough at rates and prices fixed by the burgess and town coimeil of the borough of Chambers- burg by ordinance." (Seventh finding sets out the act of assem- bly of May 20, 1891.) "Eighth. In accordance with the provisions -of section 2 of the said act of May 20, 1891, and in the manner provided by the act of April 20, 1874, and the amendment thereto, passed June 9, 1891. the said borough, on the 7th day of December, 1891, at a regular meeting of the biu'gess and town council of the said borough, signified its desire, by a majority vote of the said town council, to make an increase of iudebtedne.ss of the said "borough in the sum of $10,000 for the piu-- pose of increasing the electric light plant to furnish the citizens with commercial light •and electricity, and to submit to the vote of the qualified electors of the borough the question as to the said increase of in- •debtedness at the election to be held in February, 1892. And the said burgess and town council of the said borough gave notice to the qualified electors of the said "borough, by weekly advertisement in three ■newspapers published in said borough, for thirty days prior to the IGth day of Feb- ruary, 1892, setting forth the action of the said tow'n council, and that an election -would be held at the places of holding the municipal elections in said municipality on the 10th day of February, 1892 (Tuesday). Ijetween the hours of 7 a. m. and 7 p. m. of said day, for the purpose of obtaining the as- sent of the electors thereof to such increase -of indebtedness; and the said notice con- tained a statement of the amount of the last assessed valuation of property, the amount •of the then existing debt, the amoimt and percentage of the proposed increase, and the pxu-pose for which the indebtedness was to be increased, the form of the ballot and method of voting, and the particular places for voting in the several wards. "Ninth. The said election, as specified in the said notice, was duly hold on the IGth day of Febiiiary, 1892. and resulted in favor ■ot the increase of the debt of the said borough in the sum of $10,000, for the pur- pose specified in the said notice. The re- turn of the said election was duly certified, iind, with a certified copy of the action of councils and the advertisement, It was made a record of the court of quarter sessions of Franklin county, and a certified copy of the record as aforesaid delivered by the clerk of the said com"t to the corporate authorities, and by them entered upon the minutes of the said corporation. "Tenth. By virtue of the authority thus conferred upon them, the burgess and town council of the said borough proceeded to in- crease the indebtedness of the said borough in the sum of $10,000 for the pm'pose of en- larging and extending the electi-ic light plant of the said borough, and passed an ordinance on the 3d day of March, 1892, entitled 'An ordinance relating to the supply of incan- descent and arc lighting and electricity, by the boro^ugh of Chambersbm-g, Pa.' This ordinance provides for conti-acts to be en- tered into by the borough with each indi- vidual citizen desiring the use of electricity for lighting puiijoses in stores, dwellings, chm'ches, fairs, festivals, and other places, and prescribes the duties of the borough on the one part, and the purchaser or consumer on the other part, and fixes the rates and prices to be charged by the borough for the supply of electricity, by arc and incandescent lights, to these persons and places. "Eleventh. In fm-therance of the design and purpose of the biu'gess and town council of the borough of Chambersbtu-g to increase the capacity and enlarge the electric Ught plant of the said borough for the supplying of electi'icity to its inhabitants for lighting purposes, the said authorities, before the date of the filing of the bill in this case, and after the said election held on the 10th day of Feb- ruary, 1892, by letter, through the chairman of the committee on electric light, invited proposals from the Thomson-Houston Elec- tric Light Company, of Philadelphia, the Westinghouse Electric and Manufactuiing Company, of Pittsbm-gh, and the Edison Elec- tric Ught Company, of , and received proposals or bids from the first two com- panies for the fm-nishing of a dynamo for in- candescent lighting of a capacity for CiO in- candescent lamps, and the necessary appli- ances to operate the same, and the said borough received an incandescent dynamo of the capacity indicated, with appliances, from the Thomson-Houston Company, but have never consummated the purchase, or put the same in operation, owing to the filing of the bill in this case. The said borough also en- tered into a contract with the Taylor Engine Company for the purchase of an engine and boilers and necessary ai)pliances. at a cost of $.j,S39, for the piu-pose of supplying addition- al motive power to meet the increased de- mand for power in nuining the commercial lighting. This contract was entered into be- fore the bill in this case was filed, and after Febiiiary 10, 1892. and without inviting bids for the same or advertising for proposals, but the engine, etc., have never been deliv- ered, on account of the filing of the bill in OWNERSHIP OF MUNICIPAL MONOPOLIES. 141 this case. The said borough, during the same period, advertised for and received bids for the necessary changes in the building and brick stiic'k. but never entered into contract for the same on account of the filing of the bill in this case. "Fourteenth. The bonds provided for by the action of the burgess and town council of the borough of Chambersburg and the election of February IG, 18'J2, for the increase of the indebtedness of the borough in the sum of .'JlU.OOO were never issued by the said municipality, the action in reference thereto being delayed by the tiling of the bill in this case. ******* "Nineteenth. On the 20th day of April, 1892, at the date the burgess and town coim- cil of the said borough of Chambersburg pro- vided for the issuing of the bonds of the said borough in the sum of $10,000 for the pur- pose of enlarging the electric light plant, the said burgess and town council passed the fol- lowing resolution: 'Resolved that, in order to provide for the payment of the interest and principal of said bonds, that an annual tiix equal to at least eight per centum of the amount of said increased debt be levied and assessed, to be applied exclusively to the pay- ment of the interest and principal of said indebtetiness;' and on the 23d day of May, 1892, the said bm'gess and town council fixed the tax levy for the year commencing June 1, 1892, at four mills on the dollar for borough purposes, and five mills on the dol- lar for the payment of interest and the liqui- dation of the principal of bonds. ******* "Conclusions of Law. «**«*** "Second. The act of tlie general assembly of May 20, 1891, and the action of the bur- gess and town council of the borough of Chanibersbm'g in pursuance thereof, are not in violation of section 7, art. 9, o'f the consti- tution of Pennsylvania, and the said section of the constitution docs not, in letter or spirit ajid meaning, resti-ain or prohibit the legis- lation and action above referred to. "Thii-d. The proposed enlargement of the electric light plant of the borough of Cham- bersburg, as set forth in the findings of facts, for the puniose of manufactm-iug and fm-- nishing electricity for hghting purposes to all the inhabitants of said borough who may desire to use the same, at fixed and uniform i-ates and charges established by ordinance of said borough, the said plant to be owned and operated by the said borough, constitutes a public service, of benefit and convenience to ail the inhabitants of the said borough. "Fourth. The legislature of the state of renusylvania has authority to confer the power upon municipalities of manuf.icturing and distributing electricity for the purpose of furnishing light to theh* Inhabitants for private use, and it has conferred such power upon the bf)rough of Chambersbm-g by act of May 20, 1891. **•***• "Seventh. The liurgess and town council of the borough of Chambersburg have a lawful right to issue tlie bonds of the borough in the sum of $10,000 for the pm-pose of raising- money wherewith to erect and enlarge the present electric light plant of the said bor- ough for the purpose of supplying electricity^ for commercial piu-poses. "Eighth. The said biu-gess and town coun- cil of the borough of Chambersburg have a lawful right to enlarge the electric light plant of the said borough, to issue bonds in the sum of $10,000 to provide for the expense In- curred, and to funiish electricity for lighting purposes for private use; and the plaintiffs are not entitled to any relief against said acts- of the said municipaUty. It is therefore rec- ommended that the bill of the said plaintiffs- be dismissed at the cost of the said plain- tiffs." "Opinion and Decree of Court. "The purpose of this bill is to restrain the iorough of Chambersburg from engaging in the manufacture of electricity for the supply and use of its citizens. The effort is mad& on two distinct grounds: First, that the act of 20th May, 1891, entitled 'An act to author- ize any borough now incorporated, or that may hereafter be incorporated, to manufac- ture electricity for commercial purposes for the use of the inhabitants of said borough, and for this pm-pose to erect, purchase or condemn electric light plants,' etc., under wliicli the defendants claim to exercise this right, is unconstitutional, and therefore void; second, that the debt proposed to be incm-red by the borough, or which it will necessarily incur, for the purpose aforesaid, will increase the indebtedness of the borough to an amount in excess of the constitutional limit of seven per cent of the assessed valuation of the taxable property. In both contentions the conclusious of the master are adverse ty the plaintiffs, and they except thereto. T'je ex- ceptions which relate to the constitutionality of the act of 20th May, 1891, are oven-uled. It is sufficient to say, in this connection, that our attention has not been called to rmy excep- tion or prohibition in the constitution with which the act conflicts, and that we know of none. Nor can the exceptious to the master's conclusions with respect to the indebtedness of the borough be sustained. It is immate- ; rial whether occupations be regardinl as taxa- ble property, within the meaning of the consti- tution, or not so far as the result here is con- cerned. Ehminate entirely from the calcula- ' tion the tax assessed upon occupations, and seven per centum of the assessed valuation of ■ what remains makes a total which exceeds, by several thousand dollars, the debt of the 142 OWNERSHIP OF JIUNICIPAL MONOPOLIES. borough at the time referred to. But thero is no reason why this tax should be elimi- nated. Indeed, there is express authority for Including it in the calculation. This very point was raised and decided in the case of Bro-R-n's Appeal, 111 Pa. St. 80, 2 Atl, 77, and it now admits of no controversy. "We have considered the exceptions to thr costs taxed, but are unable to see any gooii reason why the bill as taxed should not b allowed. The master's work was protracto(^ a.nd he has given to it careful study and at tention. All the exceptions to the report are overruled, and it is now, 27th January, 1893, ordered, adjudged, and decreed that the bill of complaint be dismissed, and that the plain- tiffs, S. M. Linn, H. Gehr, Aug. Duncan, Ben- jamin C. Ross, Frank Lindsay, Isaac Stine, and Tench McDowell, pay all the costs of this proceeding." O. C. Bowers, for appellants. J. D. Lud- 'Wig, for appellee. PER CURIAM. This biU was brought to restrain the borough' of Chambersbm-g from manufacturing and supplying electricity for the use and benefit of its inhabitants under the provisions of the act of May 20, 1891 (P. L. 90). It is grounded mainly on allegations which, in substance, are (1) that said act is unconstitutional, and (2) that the debt, which would necessarily be incuiTCd by the borough in carrying into effect its proposed undertak- ing, will increase its indebtedness to an amount in excess of the constitutional limit of 7 per centum of the assessed valuation of taxable property within the corporate limits. As to both of these allegations the learned master's findmgs of fact and legal conclu- Bions are in defendant's favor. The first five specifications charge error in overruling the several exceptions to the master's conclusions of law recited therein, respectively. For rea- sons sufficiently stated in the report and in the opinion of the learned president of the common pleas, approving the same, we think there was no error in refusing to sustain either of said exceptions. The burden was on the plaintiffs to prove that the indebted- ness of the borough would be necessarily in- creased to an amoimt exceeding the constitu- tional limit, etc. In that they were unsuc- cessful. While the legislative intention may not be as clearly and happily expressed as it might have been, we fail to discover anything in the provisions of the act that is in conflict with the constitution. The power of the legislature to authorize municipal corpora- tions to supply gas and water for municipal purposes, and for the use and benefit of such of their inhabitants as wish to use and are willing to pay therefor at reasonable rates, has never been seriously questioned. In view of the fact that electricity is so rapidly com- ing into general use for illuminating streets, pubhc and private buildings, dwellings, etc., why should there be any doubt as to the power to authorize such corporations to man- ufactm-e and supply it in like manner as ar- tificial gas has been manufactured and sup- plied? It is a mistake to assume that mu- nicipal coi-porations should not keep abreast with the progress and improvements of the age. The subjects of complaint in the remaining specifications are the learned judge's refusal to reduce the master's fee, and the decree dismissing the bill. As to the former, he says: "We are unable to see any good reason why the bill as taxed should not be allowed. The master's work was protracted, and he has given it careful study and attention." In the absence of any evidence that would justify us in saying that the fee is clearly excessive, we must assume that the compen- sation sanctioned by the court was not um-eor sonable. The decree dismissing the bill is the logical sequence of the facts and legal conclu- sions properly drawn therefrom. The ques- tions involved are so well considered and so satisfactorily disposed of by the learned mas- ter and court below, that fiuther comment is unnecessary. Decree affirmed, and appeal dismissed, with costs to be paid by appel- lants. OWNERSHIP OF MUNICIPAL MONOPOLIES. 143 CITY OF CRAWFORDSVILLE r. BRADEN. (2S N. E. 849, 130 Ind. 149.) Supreme Court of Indiana. Oct. 27, 1S91. Appeal from circuit court, Montgomeiy •county; E. C. Snyder, Judf;e. Bill by Hector S. Braden to enjoin tbe city of Crawfordsville from supplying private citi- zens with electric light. From a decree over- j ruling defendant's demurrer, and allowing a : perpetual injunction, defendant appeals. Re- Tcrsed. W. T. Brush, City Atty., Davidson & West, and Kennedy & Kennedy, for appellant €rane & Anderson, for api^ellee. McBRIDE, J, The question we are requir- ed to decide in this ease is, has a municipal corporation in this state the power to erect, maintain, and operate the necessary build- ings, maehinory, and appliances to light its streets, alleys, and other public places with the electric light, and at the same time, and in connection therewith, to supply electricity to its inhabitants for the lighting of their residences and places of business. Some oth- er questions are incidentally involved, but the principal controvei-sy is as above stated. That a city or an incorporated town may buy and operate the necessary plant and machin- ery to light its streets, alleys, and other pub- lic places is not controverted by the appellee; but he denies the right to furnish the light to the individual for his private use. The ques- tion is argued on the theory that, if the city has such power, it must be by virtue of some express legislative grant, and is not among j the implied powers possessed by municipal coiporations; that statutes conferring powers upon municipal corporations, especially those involving the exercise of the taxing power, must be strictly construed; and that, strictly construed, no statute confers the necessary authority. The purchase of the necessary land, machinery, and material, and the erec- tion and maintenance of such a plant, does involve the exercise of the taxing power. The necessary funds must be supplied by tax- ing the tax-payers of the municipality. The only statute bearing directly upon this ques- tion is the act of March 3, 1883, Elliott's Supp, § 794 et seq. Section 794 contains the following: "That the common coimcil of any city in this state, incoiirorated either imder the general act for the incorporation of cities, or under a special charter, and the board of trustees of all inconwrated towns in this state, shall have the power to light the streets, alleys, and other public places of such city and town with the electric light and other form of light, and to contract with any indi- vidual or corporation for lighting such streets, alleys, and other public places with the elec- tric light or other forms of light, on such terms, and for such times, not exceeding 10 years, as may be agreed upon." Section 795 provides that, for the purpose of effecting such lighting, the common council of a city or board of trustees of a town may provide, by resolution or ordinance, for the erection and maintenance in the streets, etc., of the necessary poles and appliances. Section 790 authorizes granting to any person or corpora- tion the right to erect and maintain in the streets, etc., the necessary poles and appli- ances for the purpose of supplying the elec- tric or other light to the inhabitants of the corporation. Section 797 validates conti'acts of a certain character, made before the en- actment of the statute; and section 798 pro- vides for the appropriation of lands and right of way liy corporations engaged in the busi- ness of lighting cities or towns, "or the pubUc or private places of their inliabitants, with the electric light," etc. It w-ill be obsen-ed that, while section 79G provides for granting to third persons the right to furnish the light to the inhabitants, it does not, in terms, give any such power to the corporation. It will, therefore, be necessaiy for us to inquire if the corporation possesses such power inde- pendently of the statute, or, if not, if the stat- ute is susceptible of a fair construction, in ac- cordance with established rules, which clothes the corporation with such power. In the case of Rushville Gas Co. v. City of Rushvillo, 121 Ind. 206, 23 N. E. 72, this statute was con- sidered, in so far as relates to the right of the city to buy and operate the necessary plant and machinery to light its streets, alleys, and other public places, and it was held -that the statute was sufficient to confer that power. In that case the court, after announcing the conclusion above stated, used the following langiiage: "If there were any doubt as to the meaning of the act, it would be removed by considering it, as it is our duty to do, in connection with the general act for the in- corporation of cities; for that act confers very comprehensive powers upon municipal corporations as respects streets and public works, and contains many broad general clauses akin to those w'hich Judge Dillon designates as 'general welfare' clauses. Our own decisions fully recognize the doctrine that mimicipal corporations do possess, un- der the general act, authority as broad as that here exercised, and the operation of that act is certainly not limited or restricted by the act of 1883." The eminent author above re- ferred to thus defines the powers of municipal corporations: "It is a general and undis- putctl proposition of law that a municipal cor- poration possesses and can exercise the fol- ' lowing powers, and no others: First, those granted in express words; second, those nee- ,' essarily or fairly implied in or incident to the powers expressly granted; third, those essen- / tial to the declared objects and purposes of the corporation, not simply convenient, but | indispensable. Any fair, reasonable doiib^ concerning the existence of the power is r"^ I solved by the courts against the coiporatiop ' and the power is denied. Of every municipal f 144 OWNBRSITIP OF MUNICIPAL MONOPOLIES. \ corporation, the charter or stntuto by which it is created is its organic act. Neither the 1 corporation nor its oflRcers can do any act, nor malve any contract, or incur any liability, \ not autliorized thereby, or by some legisla- ' tire act applicable thereto. All acts beyond \ the scope of the ix)wers gi-auted are void." Dill. Miin. Corp, (4th Ed.) § SO. Judge Dil- lon, however, quotes approvingly from tlie I supreme court of Connecticut as follows, (sec- tion 90, p. 147:) "All corporations, whether public or private, derive their powers from I legislative grant, and can do no act for which authority is not expressly given or may not be reasonably inferred. But if we were to say that they can do nothing for which a warrant cannot be found in the language of ■ their chartei-s, we should deny them in some cases tlie power of self-preservation, as well as many of the means necessary to effect the essential objects of their incorporation. And therefore it has long been an established prin- ciple in the law of corporations that they may exercise all the powers, within the fair intent and purpose of their creation, which are reasonably proper to give effect to pow- ers expressly granted. In doing this, they I must (unless restricted in this respect) have a choice of means adapted to ends, and are not to be confined to any one mode of opei*a- tion." City of Bridgeport v. Housatonuc Railroad Co., 15 Conn. 475-501. This princi- ple has been repeatedly recognized by this court. Thus in Smith v. City of Madison, 7 I ml. 8G, it is said: "The strictness, then, to be observed in giving construction to munici- pal charters, should be such as to carry into effect every power clearly intended to be con- ferred on the mimicipality, and every power necessarily implied, in order to the complete exercise of the powers granted." Again, in Kyle V. Malin, 8 Ind. 34^37, the court said: "The action of municipal corporations is to be held strictly within the limits prescribed by the statute. Within these limits, they are to be favored by the courts'. Powers ex- pressly granted or necessarily implied are not to be defeated or impaired by a stringent con- struction." Among the implied powers possessed by municipal corporations in this state are those gi-ouped under the somewhat comi)rehensive title of "police powers,"— a power Avhich it is difficult eitlier to precisely define or limit; a power which authorizes the municipality in certain cases to place restrictions upon the power of the individual, both in respect to his personal conduct and his property, and also furnishes the only authority for doing many things not restrictive in their character, the teridency of which is to promote the comfort, health, convenience, good order, and general welfare of the inhaJ)itants. The police pow- er primarily inheres in the state; but the leg- islature may, and in common practice does, delegate a large measure of it to municipal corporations. The power thus delegated may be conferred in express terms, or it may be inferred from the mere fact of the creation of the corporation. The so-called inferred or inherent police powers of such corporations are as much delegated powers as are those conferred in express terms, the inference of their delegation growing out of the fact of the creation of the corporation, and the ad- ditional fact that the corporation can only fully accomplish the objects of its creation by exercising such powers. Special charters, as well as general statutes for the incorporation of cities and towns, usually contain a specific enumeration of powers granted to, and which may be exercised by, such corporations. In many cases, the powers thus enumerated are such as would be implied by the mere fact of the incorporation. Where powers are thus enumerated in a statute which would belong to the corporation without specific enumera- tion, the specific statute is to be regarded, not as the source of the power, but as merely declaratoiy of a pre-existing power, or, rath- er, of a power which is inherent in the very nature of a municipal coiiioration, and which is essential to enable it to accomplish the end for which it is created. And the enumeration of powers, including a portion of those usual- ly implied, does not necessarily operate as a limitation of coi-porate powers, excluding those not enumerated. Clark v. City of South Bend, S5 Ind. 276; Bank v. Sarlls (Ind. Sup.) 28 N. E. 434. The coi-poration, notwithstanding such enumeration, still possesses all of the usu- ally implied powers, unless the intent to ex- clude them is apparent either from express declaration, or by reason of inconsistency between the specific powers conferred and those which would otherwise be implied. The legislature can unquestionably take from municipal corporations powers which would inferentially be conferred upon them by their creation, or it can restrict the exercise of such powers, or in any manner control their exercise; ttie legislative will being as to such matters supreme. Among the implied pow- ers possessed by municipal corporations is the power to enact and enforce reasonable by-laws and ordinances for the protection of health, life, and propei'ty. Thus, in tliis state, it has been held that, independently of any statutory authority such corporations joossess the inherent power to enact ordinances for the protection of the property of its citizens against fire. Baumgartner v. Hasty, 100 Ind. 575; Bank v. Sarlls, supra; Hasty v. City of Huntington, 105 Ind. 540. 5 N. E. 559; Clark V. City of South Bend, 85 Ind. 276; Cor- poration ot Bluffton V. Studabaker, ICH) Ind. 129, 6 N. E. 1. This power will not only au- thorize the enactment and enforcement of ordinances establishing fire limits, regulating building and repairing buildings, and regu- lating the storage and traffic in inflammable or explosive substances, but the purchase of apparatus for extinguishing fires and furnish- ing a supply of water. Corporation of Bhiff- ton v. Studabaker, supra. In tlic cisi' of OWNERSHIP OF irUNICIPAL MONOPOLIES. 145 City of St. Paul v. Laidler, 2 Minn. 190 (Gil. 159), the supreme court of Minnesota, after holding that a municipal corporation is "a creature of the law, and in the exercise of its authority cannot exceed the limits therein prescribed," says: "It Is a body of special and limited jurisdiction; its powers cannot be extended by intendment or implication, but must be confined within the express grant of the legislature;" and then says further: "Incidental to the ordinary powers of a mu- nicipal corporation, and necessary to a proper exercise of its functions, is the power of en- acting sanitaiy regulations for the preserva- tion of the lives and health of those residing within its corporate limits." If this state- ment is correct, it follows that to concede to municipal corporations the possession of such powers does not involve any extension, either by intendment or Implication, of the powers expressly conferred, by statute; but that, by the act authorizing the organization of the corporation, the legislature expressly delegates to the municipality the power to take such steps as are necessary to preserve the health and safety (and we will add the property) of its inhabitants. The inference of the delegation of such powers follows in- evitably and irresistibly, because their exer- cise is necessary to the accomplishment of the objects of the incorporation. When a mu- nicipal corporation attempts to exercise any of the powers thus implied, or inferentially conferred, it is within the rule of Kyle v. Malin, supra, as fully as it is when attempt- ing to exercise those powers the warrant for which is foimd in the express letter of its organic law. It is to be favored by the courts, and such powers are not to be defeat- ed or impaired by a stringent construction. It is, of course, important and necessary to know in each case that the power claimed is in fact included in the implied powers of the corporation. There can be little or no doubt that the power to light the streets and public places of a city is one of its implied and inherent powers, as being necessai-y to properly pro- tect the lives and property of its inhabitants, and as a check on immorality. This is for- cibly set forth by Judge Dillon in his work on Municipal Corporations, as follows: "In a most important particular, however, Home suffers by comparison with modem cities. Its public places were not lighted. All busi- ness closed with the daylight. The streets at night were dangerous. Property was in- secure. 2so attempt at public illumination was made. The idea does not seem to have occurred to them. Persons who ventured abroad on dark nights were dimly hghted by lanterns and torches. * * * No more forci- ble illustration of the necessity and advan- tages of lighting a city can be given than the pictures drawn by Lanciani and Macaulay of the state of a great city buried in the dark- ness of night; and they show how clearly the power to provide for this is essentially and ABB.CORP.— 10 peculiarly one pertaining to municipal rule and regulation. Nor are these studies, and the facts that they reveal, without practical value to the jurist. They demonstrate that a large and dense collection of human beings, occupying a limited area, have needs peculiar to themselves, which create the necessity for municipal or local government and regula- tion, and this, in its turn, the necessity for corporate organization. The body thus or- ganized, as it has duties, so it acquires rights peculiar to itself, as distinguished from the nation or state at large." Dill. Mun. Corp. (4th Ed.) § 3a. While Judge Dillon's remarks have, of course, special reference to great cities, the difference in that respect between the greater and the minor municipal corpora- tions is a difference in degree, and not in kind. Wherever men herd together, in vil- lages, towns, or cities, will be found more or less of the lawless and viciotis, and crime and vice are plants which flourish best in the darkness. So far as lighting the streets, al- leys, and ptibhc places of a municipal corpo- ration is concerned, we think that, independ- ently of aiiy statutory power, the municipal authorities have inherent power to provide for lighting them. If so, unless their discre- tion is controlled by some express statutory restriction, they may, in their discretion, pro- vide that form of light which is best suited to the wants and the financial condition of the corporation. It is well settled that the discretion of municipal corporations, within the sphere of their powers, is not stibject to judicial control, except in cases where fraud is shown, or where the power or discretion is being grossly abused, to the oppression of the citizen. Valparaiso v. Gardner, 97 Ind. 1; 15 Am. & Eng. Euc. Law, lOiG, and authori- ties there cited. We can see no good reason why they may not also, without statutory au- thority, provide and maintain the necessary plant to generate and supply the electricity reqtiired. Possessing authority to do the lighting, that power carries with it inciden- tally the further power to procure or furnish whatever is necessary for the production and dissemination of the fight. The only author- ity cited which holds a contrary doctrine is that of Spaulding v. Inhabitants (Mass.) 26 N. E. 421. We are, however, unable to rec- ognize the validity of the reasoning in that case. We are unable to see the analogj' be- tween the city of Boston, because authorized to light its streets, engaging in whale fishery to procure oil for that purpose, or the other supposed cases, and the generation and sup- ply of electricity. Electricity is not a com- modity which can be bought in the markets, and transported from place to place like oil. We take judicial notice of the laws of nature and of nature's powers and forces, and there- fore take judicial notice of that which is known as "electricity," and of its properties; not, of course, of the various methods of gen- erating and transmitting or using it, but of the thing itself, and of its nature. As in 146 OWNERSHIP OF MUNICIPAL MONOPOLIES. many other cases, here the judicial presump- tion outruns the fact, and we are supposed to know and to take judicial notice of more than we can in fact know in the present state of scientific knowledge. We must know, however, that it cannot be generated and transported from place to place as we can procure and ti-ansport oil, clothing, etc., and that it can only be conveyed from the place where it is generated to where it is needed for lighting the streets, or to the numerous inhabitants of a city, so as to enable them to use it as a general illuminant by invoking and exercising the power of eminent domain. The corporation possessing, as it does, the power to generate and distribute throughout its limits electricity for the lighting of its streets and other public places, we can see no good reason why it may not also at the same time furnish it to the inhabitants to light their residences and places of business. To do so is, in our opinion, a legitimate exercise of the poUce power for the preservation of property and health. It is averred in the complaint that the light which the city pro- poses to furnish for individual use is the in- candescent light. Here, again, is a fact of which we are authorized to take judicial knowledge. A light thus produced is safer to property and more conducive to health than the ordinary light. Produced by the heating of a filament of carbon to the point of incandescence in a vacuum, there is noth- ing to set property on fire, or to consume the oxygen in the surrounding air, and thus ren- der it less capable of sustaining life and pre- serving health. But little authority has been cited bearing on the precise question, and we have been able to find but little. The case of Mauldin v. Council (S. C.) 11 S. E. 434, has been cited by the appellee. That was, like this, a suit by tax-payers of the city of Green- ville to restrain the city council from pur- chasing and operating an electric light plant to light the streets and public buildings of the city, and from using it for lighting pri- vate residences. In that case the court says: "The city has the express power to own property, and the implied power to light the city. * * * Considering that some discre- tion as to the mode and manner should be allowed the municipality in carrying out the conceded power to light the streets of the city, we hold that the purchase of the plant was not ultra vires and void, so far as it was designed to produce electricity suitable for and used in lighting the streets and public buildings of the city." The court, however, denied the right to furnish the light to the individual citizen on the ground that to do so would be entering into private business, out- side of the scope of the city government. The court refers to the lack of authority on the precise question, and that it is largely a question of the first impression, without au- thority. The case of Thompson-Houston Electric Co. v. City of Newton, 42 Fed. 723, was a suit to enjoin the city of Newton from purchasing and operating an electric light plant, and furnishing the light to the inhab- itants. The only statutory authority claimed by the city is as follows: "To establish and maintain gas-works or electric light plants, with all the necessary poles, wires, burners, and other requisites of said gas-works or electric light plants." Acts 22d Gen. Assem. Iowa, p. 16. It will be observed that this statute does not in terms confer any power not, in our opinion, as above stated, included among the implied powers of municipal cor- porations. The court says: "It is also urged \ that the city has only the authority to erect an electric plant for the purpose of lighting the streets and public places of the city, and is not authorized to furnish light for use in the houses and stores of its citizens. * * * It has been the vmiform rule that a city, in erecting gas-works or water-works, is not limited to furnishing gas or water for use only upon the streets and other public places of the city, but may furnish the same for pri- vate use; and the statutes of Iowa now place electric light plants in the same category." The case of Smith v. Mayor, etc., 88 Tenn, 464, 12 S. W. 924, is also in point as to the principle involved. The charter of the city of Nashville contained the following in its enumeration of the powers conferred upon the city: "To provide the city with water by water- works, within or beyond the bound- aries of the city, and to provide for the pre- vention and extinguishment of fires, and or- ganize and establish fire companies." Act- ing under the authority thus conferred, the city estabUshed water-works, and, in addi- tion to making provision for the extinguish- ment of fires, it furnished water to the citi- zens. The right to do this was disputed, and formed the principal subject of controversy. The court said: "Nothing should be of great- er concern to a municipal corporation than the preservation of the good health of the inhabitants. Nothing can be more conducive to that end than a regular and suttieient sup- ply of wholesome water, which common ob- servation teaches all can be furnished in pop- ulous cities only through the instrumeutahty of well-equipped water-works. Hence for a city to meet such a demand is to perform a public act, and confer a public blessing. It is not strictly a governmental or municipal function, which every municipality is under obligations to assume and perform, but it is very closely akin to it, and should always be recognized as within the scope of its author- ity, unless excluded by some positive law. * * * It is the doing of an act for the pub- lic weal,— a lending of corporate property to a public use. * * * It cannot be held that the city in doing so is engaging in a private enterprise, or performing a municipal func- tion for a private end." While the author- ities on the precise question are meager, we think the weight of authority, as well as of reason, tends to sustain the right of the mu- nicipality through its pvdpor officers, acting OWNERSHIP OF MUNICIPAL MONOPOLIES. 147 In the exercise of a sound discretion, to fur- nish light as well as water to its inhabitants, not only in its public places, but in their pri- vate houses and places of business. An additional question is presented and dis- cussed. It is shown by the averments of the complaint that such action as the city au- thorities have taken, and are proposing to take, is by virtue of a resolution adopted by the city council, and not by virtue of an or- dinance, and that, if the city is authorized to erect and operate an electric light plant, it can only do so by virtue of an ordinance duly enacted. In so far as the city derives any authority from the act of March 3, 1883 (ElU- ott's Supp. § 794 et seq), it is authorized to act either by resolution or ordinance; but aside from the statute, where the city coun- cil has power to act in a given case, and its charter does not prescribe the manner of ac- tion, it may accomplish its purpose by resolu- tion as well as by ordinance. Note to Rob- inson V. Mayor, etc., 34 Am. Dec. 632, and au- thorities there cited. The court erred in overruling the demurrer to the complaint. The cause is reversed, at the costs of the ap- pellee, with instructions to the circuit court to sustain the demurrer. 148 OWNERSHIP OF MUNICIPAL MONOPOLIES. In re BOROUGH OF MILLVALB. Aroeal of HOWARD et al, (29 Atl. 641, 162 Pa. St. 374.) Supreme Court of Pennsylvania. July 11, 1894. Appeal from court of quarter sessions, Al- legheny county. Action by James Howard and others, tax- payers, to enjoin the burgess and town coun- cil of the borough of Millvale from issuing bonds for an increased indebtedness. The complaint was dismissed, and plaintiffs ap- peal. Affirmed. H. I. Riley and Lyon, McKee & Sanderson, for appellants. R. H. Jackson, for appellee. GREEN, J. A careful examination of the complaint in this case, and of the answer and the affidavits submitted on both sides, satisfies us that the learned comt below was right in the conclusions reached in the opin- ion filed. /^J^^e can scarcely doubt that the proceedings by the burgess and councils, having in view the erection of new works, were animated and conducted with an un- seemly desire to injure the Bennett Water Company, to destroy the value of its fran- chises, to disregard the terms of the solemn contract made by the borough with that com- pany, and with an entire willingness to evade the teachings of ordinary morality, business integi'ity, and common honesty.'^ Throughout the entire record, there cannot be found the least evidence of any fault on the part of the water company, either in the structure of their works, or in the efficiency of their service. When, at the meeting of councils on August 16, 1893, an envelope re- spectfully addressed to the burgess and town council of the borough of Millvale was re- ceived by that body, and a motion was made to open and read it, which the chairman, Eades, pronounced to be out of order upon a mere subterfuge, a deliberate insult was added to the other acts of oppression and in- justice of which the burgess and councils had been guilty. The envelope was not opened until September 6th following, — a pe- riod of 21 days,— and when it was read it was found to contain a proposition from the water company to soil their works for $61,- 500. At the same meeting of Au.gust 16th, the councils, with undue haste, voted to award the contract for the new works to Chanley Bros. & Co., who were declared to be the lowest and best bidders, and when the contract was reduced to writing, and execut- ed, the price to be paid was .$63,500, exclu- sive of the cost of necessary land to be ob- tained. It is not difficult to draw .the in- ference that the proposition of the Bennett Water Company was refused si hearing be- cause it was feared that it might contain a lower bid than that at which the contract was awarded. In such circumstances as these, and others of a kindred character, it is much to be regretted that "we can discover no way of arresting such proceedings.// The ) difficulty arises from the character of the de- I fendant corporation. It is a municipal body, I clothed with the power of legislation, to a ' limited extent; and, when within the limits of its authority, its acts are obligatory, not only upon the mimicipal body in its organ- ized capacity, but upon the citizens who dwell within its territorial confines. In the very important contract which was made be- tween it and the water company, there was no restriction placed upon its right to erect water works in the future. That is a right given to all such bodies by law, and they, may exercise it, no matter at what cost to private companies, whose franchises are held subject to such right. This subject was fully considered by this court in the case of Lehigh Water Co.'s Appeal, 102 Pa. St. 515, where we held that the right of a borough to erect waterworks was entirely independent of the right of private corporations to erect similar works, and that it was a matter of no consequence that such erection injured pri- vate franchises of the same character. It is claimed for the appellants in this case that in incurring a debt of $80,000 in addi- tion to a pre-existing debt of $23,000 and up- wards, with a tax levy of 10 mills for or- dinary purposes, and an additional tax of 3% mills, which would be necessary to pay the interest and principal of the new debt, the legal limit of possible indebtedness would be exceeded. The 7 per cent, limit would not be exceeded. This is admitted. The special, local act of March 12, 1873 (P. L. 263), was simply a grant of power to levy a tax of 10 mills for general borough pur- poses. There is nothing in that act to pre- vent the levying of an increased tax to pay the interest or principal of a debt which may lawfully be created in the futiure. The pow er to erect waterworks necessarily includes the power to raise the money to pay for them, and as increased indebtedness, within the limit of 7 per cent, may be created under the constitution of 1874, we do not under- stand how such increase can be regarded as invalidated by either the constitutional limit of 7 per cent, or by the act of April 20. 1874 (P. L. 65). The very object of the act of April 20th was to enable any county, city, borough, or other municipality to increase the amount of its existing indebtedness. The second section of the act enables the mmiici- pal authorities to increase the debt to the extent of 2 per cent, of the assessed value of the taxable property therein, and the third section confers the power to increase beyond 2 per cent., but not exceeding a total indebt- edness of 7 per cent, by means of an elec- tion conducted with certain prescribed for- malities. The latter method was pursued in this case, and there ai'e no objections made ^-j^j^^fXJ^^ T^^*-"^**;:*^^* •-'*►•' / OWNERSHIP OF MUNICIPAL MONOPOLIES. 149 to the validity of the increase on the ground that any of the prescribed formalities were not observed^ It is contended for the appellant that an absolute limit of the taxing power of the borough was lixed by the Act of March 12, 1873, supra, at 10 mills upon the assessed valuation of the properly of the borough; and as this act was not repealed by the act of April 20, 1S74, that limitation still remains, and therefore avoids the present proposed increase. We cannot possibly assent to such contention. We regard this very proposi- tion as denied by the decision of this court in Appeal of City of Wilkes-Barre, 116 Pa. St 3G0, 9 Atl. 308, where the same conten- tion was made. We there went further than is required in this case, and held that the taxes authorized to be levied and collected might be applied to the payment of indebted- ness conti'aetcd, as well previously as subse- quently to the constitution of 1S74. That is not the case here, where the only allega- tion is that an annual assessment of 3^3 mills tax will be necessary to pay 8 per cent, of the increased debt of ?80,000. The answer denies that it will be necessary to levy so large a tax as that for that purpose, but, even if it were, it would not be an ex- cessive exertion of the taxing power of the borough. In order that this power may be exercised, it is not at all necessary that the act of March 12, 1873, authorizing annual taxation at the rate of 10 mills, should be repealed. The constitution of 1874, and the subsequent legislation, confer additional pow- er to increase municipal indebtedness, and to levy additional taxation, without any necessity for repealing pre-existing limita- tions of the tax rate for ordinary municipal purposes. In regard to the allegation that the voters were induced to vote in favor of the in- crease by means of misrepresentation, it is obvious that the judiciary department of the government cannot go into such an inquiry. I The voters are responsible for their votes, and are necessarily supposed to inform them- selves as to the reasons and motives for the I votes which they decide to cast. To in- stitute an inquiry for such reasons and mo- tives in each individual case would be a work of impossible performance, and of no value if accomplished. Tbe. actual vote cast is the only test of the action of the body of \ voters. We cannot see our way clear to declare the contract for the erection of the works void for want of a previously enacted ordi- nance authorizing it to be made. It is true, there should have been such an ordinance. The act of April 28, 1854 (P. L. 513), re- quires that ordinances of the borough of Birmingham shall be recorded; but no pen- alty is provided for its violation, except that such ordinances shall not go into effect until two weeks after they have been recorded. /. And this was held mandatory in Appeal of Borough of Verona, 108 Pa. St. S3. The act appears to be applicable to the borough of Millvale, because the act of Maich 18, 1SG9 (P. L. 422), confers all the rights, privileges, franchises, etc., of the borough of East Bir- mingham upon the borough of Millvale. But in Verona's Appeal it was held that an act passed in 1S73, validating the general plan of the borough, cured the defect arising from the want of record. And in Borough of Milford v. Milford Water Co. (Pa.) 17 Atl. 185, so much relied upon by appellants, it was held that, although the original ordi- nance was void, because members of the water company were also members of the councils, another and similar ordinance might have been passed at any time subsequently, when the councils were purged of the presence of the members of the water company. In the present case, we are not referred to any provision of the law which makes the con- tract void for want of a previously enacted ordinance, where it was actually adopted and authorized by proper vote, in the form of a resolution at a properly called meeting of the council. Such a resolution was passed at the meeting of August 16, 1893; and at the meeting of August 29, 1893, the con- ti-act in writing was produced and read, with the specifications, and both were adopt- ed. At the meeting of August 29th the con- tract was presented, and the burgess and clerk were authorized to sign it, and affix the corporate seal. Afterwards, at the meet- ing of October 3, 1893, a formal ordinance was enacted, directing the erection of water- works according to the plans and specifica- tions previously adopted; the sum of $65,- 000, arising from theloanof $80,000, which had been authorized by the previous popular vote, was appropriated for the construction of the works; and all previous contracts, acts, or other things theretofore done in pursuance of any resolution or vote of the burgess and council in relation to the erection of water- works were duly ratified and confirmed, as fully as if done after the passage of the ordinance. This ordinance was duly pub- lished, recorded in the ordinance book of the borough, and signed by the burgess. We are unable to see why this ordinance does not accomplish the same effect as if it had been enacted before the contract was executed. Viewed as an ordinance, as of its own date, it was certainly effective to authorize aU subsequent action in execution of the con- tract, and the greater part of tho work was then yet to be done. The previous authori- zation of the contract by resolution was not void in itself. It was not affected by any badge of fraud, nor by any want of capacity in the members of council. The ordinance is subject, really, only to the objection that it ought to have been enacted at a somewhat earlier date. But that circumstance does not avoid it, and it was still directly ap- 150 OWNElRSHrP OF MUNICIPAL MONOPOLIES. I plicable to aU subsequent work. As to pre- '. vious work, it is certainly good by way of ; ratification. Dill. Mun. Corp. § 3S5. "A I municipal corporation may ratify the unau- I thorized acts and contracts of its agents or officers which are within the corporate pow- 1 ers, but not otherwise." There is no question that the erection of waterworks was entirely within the cor- porate powers of the borough. Upon the whole case, we feel constrained to affirm the action of the learned court below. Decree affii-med, and appeal dismissed, at the cost of the appellants. ACTS ULTRA VIRES AFFECTING PUBLIC PROPERTY. 151 HURON WATERWORKS CO. v. CITY OF HURON. MYERS et al. v. CITY OF HURON et al. (62 N. W. 975, 7 S. D. 9.) Supreme Court of South Dakota. April 20, 1S05. Appeal from circuit court, Boadle county; A. W. Campbell, Judge. Two actious, one by the Huron Water- works Company against the city of Huron, and one by H. Ray Myers and Henry Sc-hal- ler. on behalf of themselves and all other taxpayers similarly situated, against the city of Huron and the Hui'on Waterworks Compa- ny. The actions were consolidated, and from the judgment rendered the city of Huron, H. Ray Mj'ers, and Henry Schaller appeal. Reversed. A. W. Wilmarth and H. Ray Myers, for appellants. John L. Pyle, for respondents. CORSON, P. J. These two actions were consolidated and tried together in the court below, as they involved substantially the same question. Judgments were rendered in both actions in favor of the Huron Water- works Company, and from the judgments the city of Huron and II. Ray Myers and Henry Schaller have appealed to this court. A few paragraphs from the complaint of H. Ray Myers and Henry Schaller and three findings of fact by the court will sufficiently pre.^ent the case for the purposes of this decision. It is alleged in the complaint: "(3) That heretofore, and during the years 1883 and 1SS4, under and by virtue of the power con- ferred by said charter of the city of Huron, the city of Huron did construct, and cause to be constructed, a system of waterworks, consisting of engine, boiler, pumps, water mains, pipes, hydrants, sewei"S, and all other appurtenances necessary to a complete sys- tem of waterworks, at a great expense, to wit, as informed and believed by the plain- tiffs, to be the sum of forty thousand dollars; and to pay for said watei-works and sewer, said city council issuese, as provided by said charter. (4) That hereto- fore, and during the year 188(5, the said city of Huron caused to be bored and constructed a large six-inch artesian well, as a part of an addition to the aforesaid system of wa- terworks, and, as informed and believed, at an expense of four thousand five hundred dollars." "(G) That said city of Hui-on. from the year 1883 to July 21, 1890, through its city council, operated, controlled, and main- tained said waterworks, and made all need- ful rules and regulations concerning the dis- tribution and u.'^e of water supplied by said waterworks for the prevention and extin- guishment of fires, and to supply the citizens and taxpayers at a moderate and reasonable rate, in accordance with the provisions of section 7, subd. 9, of the charter of said city." "(8) That, at the time of the com- mission of the grievances hereinafter men- tioned, said waterworks were owned by. and were of great value to, said city and taxpayers of said city of Huron, amounting, as informed and believed by the plaintiffs, to at least one hundred thousand dollars." (12) That "the mayor and city council of said city of Huron, on or about the 21st day of July, 1890, did unlawfully and wrongfully, and in violation of the city charter and their high and legal duties and trust reposetl in them by the taxpayers and con^orators of the city of Huron, execute and deliver to the defendant, the Huron Waterworks Company, a deed in terms conveying to said defendant, the Huron Watei-works Company, the entire valuable waterworks system of and belong- ing to the city of Huron, including all ma- chinery, buildings, grounds, engines, boilers, water mains, hydrants, artesian well, pumps, and all property and effects of every descrip- tion appertaining to said watei'works sys- tem, and placeu the said defendants the Hu- ron Waterworks Company in full possession and control of the same, without the con- sent and to the great injury of the taxpayers and corporators of the city of Huron." The plaintiffs conclude with a prayer that the sale and conveyance might be declar- ed null and void; that the officers of said city be enjoined from paying over to the Huron Waterworks Company the rents for the use of water for the city puiposes contract- ed to be paid by the common council of the city; and that the possession of said water- works proi>erty be restored to the city. The court, among others, found the follow- ing facts: "Fourth. That the city of Huron made said conveyance in pursuance of an agreement to make the same, entered into on the IGth day of July. 1890, at which time ten thousand dollars was paid into the city treasu- ry by the Dakota Farm Mortgage Company, for the use of said Huron Waterworks Compa- ny, and on the 21st day of July, 1890, the bal- ance of thirty-five thousand dollars of the pur- chase price was paid into the city treasury by the Dakota Farm Mortgage Company for the use of said Huron Waterworks Company, and on that day the city executed said deed of con- veyance, and delivered the same to said Hu- ron Waterworks Company, and placed said company in possession of said waterworks." "Seventh. That said watei-Avorks plant was constructed and used by said city of Huron for the convenience of the citizens of the compact community embraced within the cor- porate limits of said city, for furnishing wa- ter to private consumers, for domestic and I iwwer purposes, and for the protection of 152 ACTS ULTRA VIRES AFFECTING PUBLIC PROPERTY. said city and its inhabitants from the rav- ages of fire, and the same has at all times been used for those puiiooses, both by the city before the sale, and by said -waterworks company since said sale." "Tenth. I find that neither the city, nor the taxpayers of the same, have ever paid or tendered back to said waterworks company any part of the purchase price of the said waterworks, or any part of the sum paid out for the re- pairs or extensions of said. waterworks sys- tem, and no effort has been made on the part of the city or taxpayers to place the waterworks company in the same condition as they were before the sale and delivery of the said property." The material facts in the action of Huron Waterworks Co. v. City of Huron are stated in the opinion delivered in that case on a former appeal, reported in 54 N. W. 052, 3 S. D. 010, and, it is sufficient to say, its ob- ject was to obtain an injimction against the officers of the city, restraining them from in- terfering with the waterworks property. It will not be necessary to notice the nu- merous assignments of error, as we shall con- fine ourselves to the discussion of only two questions raised by the record, which are: First. Did the common council of the city of Huron possess the power, unaided by state legislation, to sell and ti'ausfer the Huron waterworks system to the Huron Waterworks Company, a private corporation? S econ d. If the city council did not possess the power to dispose of the waterworks property, can the city of Huron regain possession of the same, without refunding to the Huron Waterworks Company the money advanced or paid by it as consideration for the same? nj The learned counsel for the appellants the city of Huron, H. Ray Myers, and Henry Schaller contend: First. That the water- works system of the city of Huron, having been constructed, by virtue of a power con- ferred upon the city, at the expense of the corporation, became the property of the city, for public use, and was charged with a trust, and that the common council of said city, without the sanction of state legislation, did not possess the power to sell or dispose of the same. Second. That the waterworks sys- tem of the citj' of Huron, having been con- structed, kept, and maintained for public pur- pfise.';, namely, for the supply of water for the extinguishment of fires within the corporate limits of the city, and for the supply of the Inhabitants of said city with pure and whole- some water for domestic purposes, was cloth- ed with a public trust of which the inhabit- ants of said city were the beneficiaries, and the common council of said city could not, without the consent of the legislative power of the state, divest said city of the trust. Third. That the only power conferred upon the city of Huron by its charter was the power to "construct and maintain" water- works for the city, and that the power to "construct and maintain" djcs not include the power to sell or dispose of the same. Fom'th. That the attempted sale and transfer of the said waterworks by the mayor and common council was without authority and void; and that, such sale being void, the city of Huron, in its corporate capacity, is entitled to the possession of said waterworks property, with- out refunduig to the pretended purchasers, the Huron Waterworks Company, the amoimt paid by it as the consideration of said pur- chase. The leai'ned counsel for the respondents in- sists: "First. The city had power under its charter to dispose of this property, because it was erected for the private advantage of the people of the compact community of which the municipality was composed, and is not charged with any public trust for the general public. Second. That the property was not devoted to a different use from that for which it was erected, and the city had the power to contract with a private corporation, and for such i^m-pose, and for its mainte- nance, the location of the legal title is a matter of no concern whatever. Third. That, even if the city has made a contract in ex- cess of its powers, it cannot be relieved from the effects of such contract until it has placed the plaintiff in the same position as it was before the contract was entered into. Fourth. That, if the city has exercised a pow- er beyond its charter, only the state can com- plain of such action in an appropriate pro- ceeding instituted by the state. * * » Sixth. The city, while it was authorized to, was not bound to maintain these waterworks, and the court can not compel it nor its officers to do so. * * * Eighth. All the contracts and deeds, taken together, are only an ap- propriate means of carrying out the powers conferred upon the city. They are only an appropriate means of providing for the main- tenance of the waterworks system and for extensions to the same. * * *" The city of Huron was incorporated under a special charter, and there are only th sections called to our attention as bearing upon the question, which are as follows: Sec- tion 1 i)rovides: "That the city of Huron * * * shall have power to make all con- tracts necessary to the exercise of its cor- poi-ate powers, to purchase, hold, lease, trans- fer and convey real and personal property for the use of the city * * * and to exer- cise all the rights and privileges pertaining to a municipal corporation." Section 7, pt. 8, provides as follows: "The city cotmcil shall have power * * * to organize and support fire companies, hook and ladder companies, and provide them with engines and all ap- paratus for extinguishment of fires, * * * to construct and ftu'uish reservoirs, wells, cisterns, aqueducts, pumps, and other ap- paratus for protection against fires, and to es- tablish regulations for the prevention and extinguishment of fires." Section 7, pr. 9, providis as ftllnws: "The city council shall have i)ower * * * to construct and maiu- der^ ree ' ACTS ULTRA VIKES AFFECTING PUBLIC PROrERTY. 158 tain waterworks and make all neerlful mles and regulations concerning llie distribution . and use of water supplied by such water- V works." The waterworks of said city, as found by the court, were constructed and used by said city of Huron for protection against fire and for domestic purposes, and it had been so maintained and used for a number of years prior to said alleged sale. They were con- structed by the corporation and at the ex- pense of the same. No express power to sell or convey said property has been conferred upon the mayor and common council of said city, nor upon the cori)oration itself, unless such power is included in the powers con- ferred upon the city by section 1, which, as we have seen, provides "that the city of Huri)n * * * shall have power * • * to punhase, hold, lease, transfer and convey real and personal propertj' for the use of the city, * * * and to exercise all the rights and privileges pertaining to a municipal cor- I poration." The coimsel for the respondents concedes that there is a class of property owned by a city that the common council of I a city do not possess the power to sell, and he admits that public parks, squares, com- ' mens, cemeteries, etc., come within this class; I but he insists that the waterworks of a city, though constructed by the city at the expense I of the corporation, and used for protection against fire, and for the purposes of supply- ' ing pure and wholesome water to the citi- zens, do not belong to this class. It is neces- sary, therefore, to detertuine the nature and character of waterworks prci^erly held by a cit3^ The grounds upon which mimicipal ( corporations are denied the power to sell and I convey the class of property above referred to are that such property is held by the cor- poration for public use, and is therefore char- f ged with a public trust of which the corpora- I tion cannot divest itsell!, except by the ex- 1 press authority of the lawmaking power of the state. t The duties imposed upon municipal corpo- I rations for governmental purposes purely need not be considered, as it cannot be claim- / ed that the exercise of the power to create ' and maintain city waterworks is strictly a governmental purpose, so far as it relates to the state at large. Neither are public squares, ' parks, wharves, cemeteries, lauding places, / fire apparatus, etc., held for governmental I purposes, in the sense that they relate to the general public of the state; but they are gov- [ ernmental in the sense that they exist for \ public use,— that is. for that portion of the [lublic embraced within the limits of the city. This distinction is M'ell stated by Judge Dil- lijii in his work on :Municipal Coiporations. That learned author says: "As respects the usual and ordinary legislative and govern- nunital powers conferred upon a municipality, the better to enable it to aid the state in properly governing that portion of its pe!i)le residing within the municipality, such powers are In their very nature public, although em- bodied in a charter, and not conferred by laws general in their nature and applicable to the entire state. But powers or franchises of an exceptional or extraordinary or nonmu- uicipal nature may be, and sometimes are, conferred upon mmiicipalities, such as are fre- quently conferred upon individuals or private corporations. Thus, for example, a city may be expressly authorized in its discretion to erect a public wharf, and charge tolls for its use, or to supply its inhabitants with water or gas, char.::ing them therefor and making a profit thereljj'. In one sense such powers are public in their nature, because conferred for the public advantage. In another sense, they may be considered private, because they are such as may be, and often are, conferred up- on individuals and private corporations, and result in a special advantage or benefit to the numicipality as distinct from the public at large. In this limited sense, and as form- ing a basis for the implied civil liability for damages caused by the negligent execiition of suL-h powers, it may be said that a municipal- ity has a private as well as a public charac- ter. And so, as hereafter shown, a munici- pality may have property rights which are so far private in their nature that they are not held at the pleasure of the legislature." 1 Dill. Mun. Corp. § 27. While parks, squares, wharfs, landing places, fire apparatus, etc., i are not absolutely necessaiy, to enable a mu- nicipal corporation to perform its strictly gov-! ernmental duties, so far as they relate to the state at large, they are so far held for gov- ernmental purposes that they cannot be ap- 1 propriated to any other use without special | legislation. Mr. Chji-f Jiistice T^;ilite, in speaking of this class of city property in Mer- i weather v. Garrett, 102 U. S. 473, says: "(1) Property held for public uses, such as public buildings, streets, squares, parks, promenades, wharves, landing places, fire engines, hose and hose carriages, engine houses, engineei*- ing instruments, and generally everything held for governmental purposes, cannot be subjected to the payment of the debts of the city. Its public character forbids such an ap- propriation." And Mr. Justice Fidd, in the same case (page 513), says: "What, then, is the property of a municipal corporation, which, upon its dissolution, a court of equity will lay hold of and apply to the payment of its debts? We answer, first, that it is not property held by the corporation in trust for a private charity, for in such property the corporation possesses no interest for its own uses; and, secondly, th;it it is not property held in trust for the public, for of such prop- erty the coi'poration is the mere agent of the state. In its sti-eets, wharves, cemeteries, hospitals, coiu'thouses, and other public build- ings, the corporation has no proprietary rights distinct from the trust for the public. It holds them for public use, and to no other ^ use can they be appropriated without special I legislative sanction. It would be a perver- 154 ACTS ULTRA VIRES AFFECTING PUBLIC PROPERTY. sion of that trust to apply them to other uses." It is difficult to perceive upon what principle a distinction can be made between the waterworks of a city, constructed at the expense of the corporation and used to supply water for fire purposes, domestic use, and oth- er city purposes, and public parks, squares, i fire apparatus, public buildings, etc., used for public purposes, and the courts in the later decisions seem to make no such distinction. Judge Dillon, in his work above referred to, says: "In some of the states it is held that the private property of municipal corijora- tions— that is, such as they own for profit,- and charged with no public trusts or uses- may be sold on execution against them. • * * On principle, in the absence of stat- utable provision, or legislative policy in the particular state, it would seem to be a sound view to hold that the right to contract and the power to be sued give to the creditor a right to recover judgment; that judgments should be enforceable by execution against the strictly private property of the corpora- tion, but not against any property owned or used by the corporation for public purposes, such as buildings, hospitals, and cemeteries, fire engines and apparatus, waterworks, and the like; and that judgments should not be deemed liens upon real property, except when it may be taken in execution." Dill. Mun. Corp. § 570. It will be noticed that Judge I Dillon places waterworks in the same class I with public buildings, hospitals, cemeteries, etc., and in this the learned author is fully I supported by the very able decision of the supreme court of the United States in New Orleans v. Morris, 105 U. S. 600. Mr. Jus- tice Miller, speaking for the court, says: "The learned counsel, in the oral argument and in the brief, substantially concedes that the wa- terworks themselves, in the hands of the city, were not liable to be sold for the debts of the city. And, if no such concession were made, we think it quite clear that these works were of a character which, like the wharves owned by the city, were of such public utility and necessity that they were held in trust for the use of the citizens. In this respect they were the same as public parks and buildings, and were not liable to sale under execution for ordinary debts against the city. * * * In the next place, the city was not situated, as regards this property, as a private person would be in the purchase and acquisition of ordinary property. The city could not have soM this property as the law stood. It could not have put it into a joint-stock company without the aid of a new law. The legisla- ture, in authorizing the change in the foi-m of the ownership of the waterworks, could, since it injured nobody and invaded no one's rights, say, as to the city, whether it be called new property or not, that such ownership could continue exempt from execution. As the city was using no means in acquiring this stock which could have been appropriated un- der any circumstances to the payment of the debts of the appellees, the legislature im- paired no obligation of the city in declaring the stock thus acquired exempt from liabil- ity for debts." This decision is important, not only as being made by the highest court of the nation, but as being the unanimous opinion of that court upon the question, and made subsequently to the decision in the Meriweather Case, above cited. It is clear ] and to the point that the waterworks of a) city belong to the same class of property asj "wharves, parks," etc., and holds distinctly^ that the waterworks property of a city can- not be sold, except by authority of the legis- lature, and the court says: "We think it quite clear that these works were of a char- acter which, like the wharves owned by the j city, were of such public utility that they were held in trust for the use of the citi- 1 zens." The same view is taken by the ccmrt of apjgeals in the state of New York in the case of City of Rochester v. Town of Rush, 80 N. Y. 302. In that case the court says: "The argument of the appellant that the prop- erty in question would properly be exempt from a city tax, as it was procured by a tax upon property within the city, but not from a county tax, but the people of the county were not taxed to procure it, would apply with equal force to the city hall and engine houses and machines and equipments which make those houses necessary, and, if sound, would subject them to the hazard of sale un- der a treasurer's warrant for the enforce- ment of a county tax. ' I am unable to per- ceive that in any sense the waterworks can be regarded as the private property of the city, as distinguished from property held by it for public use./ These considerations lead to the opinion that the property was not tax- able, and that the proceedings on the part of the assessors of the town of Rush in regard thereto cannot be sustained." The sujireme co_urt of Connecticut, in the well-considered case of Town of West Hart- ford V. Board of Water Com'rs, 44 Conn. 360, lays down the same doctrine. In that case the court says: "The introduction of a sup- ply of water for the preservation of the health of its inhabitants by the city of Hart- ford is unquestionably now to be accepted as an undertaking for the public good, in the judicial sense of that term; not, indeed, as the discharge of one of the few govern- mental duties imposed upon it, but as rank- ing next in order. For this purpose the leg- islature invested the city with a portion of its sovereignty, and authorized it to enter within the territorial limits of West Hart- ford, and condemn by process of law cer- tain lands therein for the purpose of stor- ing water for its own inhabitants. It au- thorized the assessment of a tax upon prop- erty within the city of Hartford for money wherewith to pay for this land, because the taking and holding was for the public good." Having, as we think, established the propo- sition, that the waterwoi-ks of a city, when ACTS ULTRA VIRES AFFECTING PUBLIC PROPERTY. 155 constructed and owned by the city, are to be regarded the same as other city property held for public use, and therefore charged and clothed with a public trust, it would seem to follow that such property cannot be Bold and conveyed by the mayor and com- mon council of the city, unless under spe- cial authority conferred upon them to so sell and convey the same, by the legislative power of the state. Jujlge Dillon says, in his work before referred to, that they (mu- nicipal corporations) cannot dispose of prop- erty of a piiblic nature, in violation of the trusts upon which it is hold, and they can- not, except under valid legislative authority, disi)ose of the public squares, streets, or com- mons. See 2 Dill. Mun. Corp. § 57.5, and cases cited. In the recent case of Roberts V. City of Louisville (decided in 1891) 17 S. W. 21G, the same doctrine was laid down by the sui2ri'me court of Kentucky as to the wharves held by the city of Louisville. In that case the court says: "The power of a municipal corporation to acquire land for the purpose of erecting wharves thereon, and to chai-ge wharfage, is not a necessary inci- dent of its charter, but must, like all its other powers, be derived directly from the legislature, of course to be exercised within the limits and upon conditions of the grant. Dill. Mun. Corp. § 110. And, looking to the nature and purpose of such special grant, it must be regarded as a trust, involving duties and obligations to the public and individuals which cannot be ignored or shifted; for the power to acquire implies the duty of the municipality, through its governing head, to maintain and preserve wharf property for benefit of the public, without discrimination or unreasonable charges for individual use. In every instance, so far as we have observ- ed, wharf propertj' of the city of Louis- ville has been acquired under act of the leg- islature, and paid for by taxation; and in no case is there evidence of legislative in- tention it should be held otherwise than in trust for use of the public, and in aid of trade and commerce. The wharf property being so held, the city of Louisville cannot transfer its title or possession, nor, accord- ing to a plain and well-settled principle, can the general council, which is by statute in- vested with power of control, and burdened with duty of maintaining, preserving, and operating the wharves, either delegate the power or disable itself from performing the duties." In that case the judghient of the court below dismissing the bill for an in- junction was reversed, the court, in effect, holding that an injunction enjoining the mayor and common council from making the sale should be granted. In the case of Smith V. Mayor, etc., of Nashville, 12 S. W. 924, also a late decision made in 1S90, the supj^me com-t of Tennessee says: "It is seen at once that the waterworks are corporate property. That is not denied. The debate is with respect to the nature of the use. As to that, for the sake of convenience, we di- vide all the purposes for which the city furnishes water into three classes: (1) To extinguish fires and sprinkling the streets; (2) to supply citizens of the city; (3) to sup- plying persons and factories adjacent to but beyond the corporate limits. If the busi- ness were confined to the first class, there would be no ground to base a decision on, so clearly would the use be exclusively for public advantage. We think there can be but little more doubt about the second class, especially in view of certain words in the city charter, "to which we will advert pres- ently. * * * Having accepted the char- ter, and undertaken to exercise this authori- ty in the manner detailed by the witness, it cannot be held that the city in doing so is engaging in a private enterprise, or per- forming a municipal function for a private end. /it is the use of corporate property for corporate purposes, in the sense of the reve- nue law of 1S77. It can make no difference whether the water be furnished the inhabit- ants as a gratuity or for a recompense, the sum raised in the latter case being reasona- ble, and applied for legitimate purposes.'^ From this examination of the authorities, we conclude that there is no distinction be- tween the nature of waterworks property owned and held by the citj', and public parks, squares, wharves, quarries, hospitals, cemeteries, city halls, courthouses, fire en- gines, and apparatus, and other property owned and held by the city for public use. All such property is held by the municipality as a trustee in trust for the use and beuefit of the citizens of the municipality, and it can- not be sold or disposed of by the common council of the city, except under the au- thority of the state legislature. Such prop- erty, as before stated, is private property, in the sense that the municipality cannot be deprived of it without compensation, no more than can a private corporation be de- prived of its property by the law-making power. But such property is so owned and held by the municii)ality as the trustee of the citizens of the municipality, for the use and benefit of such citizens. It has been acquired by the corporation at the expense of the taxpayers of the city, for their use and benefit, and the law will not permit the corporation to dive.st itself of the trust, nor to deprive the citizens of their just rights as beneficiaries in the same. Counsel for respondents has called our at- tention to a number of cases which he con- tends hold a contrary doctrine from those to which we have directed attention. But, after a careful examination of those authori- ties, we are inclined to the opinion that there is no such contiict as the counsel suggests. The leading case cited is Bailey v. New York, 3 Hill, 538, in which Chief Justice Nelson, in the course of the opinion, uses language, taken by itself, that possibly might be con- strued as favorable to the respondents' con- 156 ACTS ULTRA VIRES AFFECTING PUBLIC PROPERTY. tention, but it must be construed with ref- erence to tbe case before the court. The questions we are now considering were not involved, the only question there being whether or not the city of New York was liable for damages caused by a defective dam erected in the construction of its water sys- tem. The views expressed by the chief jus- tice in that case have been repudiated by the courts of New York. In Darlington v. Mayor, 31 N. Y. 1G4, the court of appeals expressly disapprove of the doctrine an- nounced by Chief Justice Nelson. That court, on pages 200 and 201. says: "If this case of Bailey v. New York had rested where it was left by the supreme court, though I should be obliged to acknowledge my ina- bility to appreciate the distinction suggested between the public and private functions of the city government, the judgment would have been entitled to a certain weight as au- thority. But a new trial took place, pursu- ant to the judgment of the supreme court, when the plaintiff recovered a very large ver- dict, and the case was presented to the court for the correction of errors, whose judgment of affirmance is reported in 2 Denio, 433. The chancellor and three senators delivered written opinions in favor of atflrmance, and the president of the senate an opinion for reversal. None of the opinions even alluded to the ground taken in the opinion of the supreme court. » * * The liability of the defendants being established by the court of ultimate review, on an entirely different the- ory from that which affirmed the enterprise of conveying water into the city to be a private work, as distinguished from an act of municipal government, the doctrine of the opinion of the supreme court was substan- tially repudiated, and cannot, therefore, be considered as a precedent. It is but the opin- ion of the eminent chief justice and learned associates, and does not, like a final adjudica- tion upon the cause of action, settle any principle of law." And that court, speaking of the question now before us, says: "The sultjects of the several actions, in the cases I have been examining, were as clearly mat- ters of municipal government as any which could be presented. Nothing could, in the nature of things, partake less of a private character than the supplying of water to and the cleaning of the streets of a town contain- ing nearly a million of inhabitants. If these were not public subjects, and under the con- trol of the legislature, the city is not sub- ordinate to the supreme legislative power on any conceivable subject. It is an imperium in imperio." We have already seen that in the case of the City of Rochester v. Town of Rush, SO N. Y. 302, the court of appeals of New York distinctly placed waterworks in the class of property held for public use, and therefore exempt from taxation. Georgia hold that the common council of the city of Rome had power to mortgage the water- works for money advanced for its construc- tion. The court in that case was construing a charter in which the powers conferred up- on the common council of the city of Rome were exceedingly broad and comprehensive, — much more so than those conferred upon the city of Huron as a corporation,— and they were conferred directly upon the common council itself. The decision is one of too local a character and too dependent upon the provisions of the charter to be of much M'eight, and so it seems to have been regard- ed, as it is rarely referred to by the courts; and Judge Dillon, in citing the decision, adds: "Query, as to implied power to mort- gage waterworks, see supra, section 5TG, and note 577,"^ — thus indicating that that learned author does not regard the doctrine of the court as sound in principle. The case of Adams v. Railroad Co., 2 Cold. G15, involved the sale, by the common council of the city, of some outlying lands donated to the city. The land had not been devoted to any public use, and was not held by the city in trust for public purposes. It was therefore strictly private property of the city, held like the private property of a natural person or pri- vate corporation. The decision in that case, therefore, has no application to the case at bar. The doctrine laid down in the case of Western Sav. Fund Soc. v. City of Phila- delphia, 31 Pa. St. 175, does not seem to be applicable to this case. The contest there was between the city and a private gas com- pany in which the city held stock. The case is somewhat complicated, and it is not easy to determine the question actually decided by the court. There is language used by the judge writing the opinion that cannot be sus- tained in the light of more modern authority, but we discover nothing in the decision itself that is in conflict with the doctrine that waterworks, when constnicted and owned by the city, are held for public use, and there- fore charged with a public trust. Our con- ^ elusion is that the waterworks in contro- versy were held by the city of Huron for public use, and therefore charged and clothed with a public trust, and that the mayor and common council of the city had no authority / to sell and transfer the same. "jNIuniclpal corporations are created and exist for the public advantage, and not for the benefit of the officers or of particular individuals or classes. The corporation is the artificial body created by the law, and not the officers, since these are. from the lowest up to the council or mayor, the mere ministers of the corporation." 1 Dill. ]\Iun. Corp. § 21. The common council of the city of Huron was, to a certain extent, at least, but agent of the corporation, and possessed onlj^ such authority as was conferred upon it by its charter. While it probably possessed the power of disposing of strictly private prop- erty held by the city, and not held for public use, and therefore not charged with a trust, it did not possess the power to dispose of the city waterworks constructed by the cori)ora- ACTS ULTRA VIRES AFFECTING PUBLIC PROPERTY. 157 / tion, and hold for public use; and the power confciTod by the first section of its charter to sell and dispose of the property of the city must be hold to be limited to that class of property held as strictly private property, and not charged with any public use. /2)Having an-ived at the conclusion that the sale of the waterworks by the city council was made without authority, and was void, It becomes necessary to determine the sec- ond (luestion presented, namely, is the city , of Huron entitled to the possession of the wa- terworks property without refunding to the Huron "Waterworks Company the money paid by it to the city treasurer as the consid- eration therefor, and the money expended by said company in making improvements and f repairs thereon? It will be noticed, from the I finding of fact in reference to the payment of the consideration, that it was paid to the city I treasurer, or "into the city treasury." It is not found that the treasurer paid out the same by the order of the common council, upon I anj^ legitimate or other indebtedness of the I city, or that he has appropriated it to any \ city purpose whatever. The act of the city I treasurer in receiving the mouey cannot bind I the city to i-ofimd it. As city treasurer, his I only authority is to receive and receipt for I moneys properly due the city, or that are I legally paid into the city treasury. The mon- • ey paid for this waterworks property did not belong to the city, and the money was there- fore paid to one who had no authority, as treasurer or agent of the city, to receive it in the name of the city, and apply it in the pay- ment of city Indebtedness. The money in the hands of the treasurer did not belong to the city, and there being no finding that the city, in its corporate capacity, accepted and appro- priated the money, the city is not liable to re- fund the same. This subject was very fully considered and discussed in Herzo v. City of San Francisco, 33 Cal. 134. That was an ac- tion brought to recover of the city money paid by the plaintiff for "City Slip property," the sale of which by the city had been held ille- gal and void. The supreme court in that case held that the plaintiff could not recover, as he had failed to show, and the court be- low had failed to find, that the corporation in its corporate capacity had appropriated the money paid, although it was shown that the money paid for the property had been paid into the city treasury and paid out by the treasurer on city indebtedness. The court in that case, on page 147, says: "The city, in our opinion, not being responsible for the acts of her assumed agents up to and including the placing of the money in the treasury, and the money being then the money of the plaintiff, responsibility for the money does not attach to her till she has converted it to her own use. The unauthorized act of the treasurer in pay- ing it out to a third person is not the act of the city, and it makes no difference in this respect whether he pays it to a creditor of the city or to any other person. Suppose that he or the secretai-y of the land committee, while the money was in his hands, acting upon the fact, of which all persons concerned had no- tice, that the sale was a nullity, had returned the mouey to the plaintiff, it could not be said that the act of payment was the act of the city. She could not rightfully do anything with the money, and, to be responsible for it, she must have wrongfully converted it to her own use, and this she must have done by some corporate act, and the only act compe- tent for that purpose was an appropriation, for that is the only manner in which she can dispose of money. The reports of the secreta- ry of the land committee and of the treasurer, and the acceptance of the reports by the com- mon council, neither changed the ownership, the custody nor control of the monej-,— it still remained in the hands of the treasurer, and continued the property of the plaintiff." In the case of Pimental v. City of San Fran- cisco, 21 Cal. 357, one of the same class of "City Slip cases" above referred to, the plain- tiff' was held entitled to recover back the money paid; but upon the ground that it was shown, not only to have been received by the citj' treasurer, but appropriated by the cor- porate authority of the city, by ordinances and resolutions. In that case Chief Justice Field, speaking for the court, on page 361 says: "The moneys paid by the bidders went into the ti-easm-y of the city, and were after- ward, by different ordinances and resolu- tions, appropriated to municipal purposes. To the different actions, as we have mention- ed, various defenses have been interposed. In some of them, as already stated, the entire transactions giving rise to or connected with the alleged sale have been treated as ti-ansac- tions to which the city was an absolute stran- ger; in other words, a want of privity, as it is termed, between the bidders and the city has been alleged. This alleged want of privi- ty, as we imderstaud it, amounts to this: That, inasmuch as the mayor and land com- mittee had no authority to make the sale, they had no authoritj' to pay the money which they had received from the bidders into the treasury of the city, and therefore no obliga- tion can be fastened from such unauthorized act upon the city. The position thus restrict- ed in its statement is undoubtedly correct, but the facts of the cases go beyond this statement. They show an appropriation of the proceeds, and the liability of the city arises from the use of the moneys, or her re- fusal to refund them after their receipt." The same doctrine is laid down in Agawam NaL Bank v. South lladley, 128 ^lass. 5U3. In that case the court says: "But the plaintiff contends that it is entitled to recover upon the last count in the declaration for money had and received, and at the trial offered to show that the money paid or credited to the town treasurer upon the notes in suit was used by him in the payment of debts due from the town. This evidence was properly rejected. It fails to show that the money was received 158 ACTS ULTRA VIRES AFFECTING PUBLIC PROPERTY. by the town in its corporate capacity, or that the act of the treasurer in applying it to the payment of its debts was ever authorized or ratified by the town. The difficulty is thai the money was paid to one who had no an thority as treasurer or as agent of the town to receive it in the name of the town, and apply it to the payment of town debts. If a town could be held in an action for money had and received, under such circumstances, then the purpose of the second and third sec- tions of the statute would be wholly defeated. It makes no difference that the treasurer us. . this specific money in payment of the town debts. There is nothing to show any appro- priation of such payments by the town to it.s own use, or any ratification of the act The money in the hands of the treasurer did not belong to the town." Litchfield v. Ballou, 114 U. S. 190, 5 Sup. Ct. 820. It would be mani- festly unjust and inequitable to require the city of Huron to refund the consideration paid for these waterworks, before it can be restored to the possession of the same, be- cause the same was paid to and received by an officer of the city unauthorized to receive it. If it had been further found by the court in this case that the city of Huron, through its proper corporate authorities, had appropri- ated the money so paid to the payment of the legitimate debts of the city, another ques- tion might have arisen, not necessary now to consider. But it is clear that, upon principle and authority, upon the findings in this case, the conclusions of law and the judgment should have been in favor of the city of Hu- ron, H. Ray Myers, and Henry Schaller. The circuit court, in arriving at a different con- clusion, in our opinion, committed error. The judgments of the court below are reversed, and the case remanded, with instructions to the circuit court to correct its conclusions of law in accordance with this opinion, and ren- der the proper judgments in favor of the city of Huron, H. Ray Myers, and Henry Schal- ler, as prayed for in their complaint, and against the Huron Waterworks Company; and it is so ordered, all the judges concurring. CONDEMNATION OF LAND OUTSIDE OF CITY LIMITS. 159 GALLON V. CITY OF JACKSONVILLE. (35 N. E. 223, 147 111. 113.) Supreme Court of Illiuois. Oct. 27, 1893. Error to Morgan county court; Owen P. Thompson, JudiLre. Proceeding by the city of Jacksonville to con- firm a special tax upon the land of William P. Callon. There was judgment of confirmation, and Callon brings error. Affirmed. W. P. Callon, in pro. per. Fred H. Rowe, for defendant in error. BAILEY, J.i ***** • It is finally insisted that the ordinance Is 1 Part of the opinion is omitted. invalid because it provides for a purchase by the city of land outside the city limits for the purpose of extending the sewer to its outlet. In Shreve v. Town of Cicero, 129 111. 226, 21 N. E. 815, it was held that a municipal cor- poration has authority to extend a sewer be- yond the corporate limits for the purpose of ob- taining a proper outlet, and if it has that pow- er we see no reason why it may not acquire, by purchase or otherwise, the land upon which to construct the sewer to its outlet. We are of the opinion that none of the objections urged to the judgment of confirmation in this case are weU founded, and the judgment will there- fore be affirmed. 160 MUNICIPAL ORDINANCES. STATE V. BUENS. (No. 10,954.) (11 South. SIS, 45 La. Ann. 34.) Supreme Court of Louisiana. Jan. 2, 1893. Appeal from recorder's court of New Or- leans; Marius S. Bringier, Judge. Thomas Burns Avas convicted of being an idle and disorderly person, and appeals. Re- versed. Augustus Bernau, for appellant. E. A. O'Sullivan, City Atty., and Henry Renshaw, Asst. City Atty., for the State. McENERY, J. The defendant was prose- cuted, convicted, and fined before the record- er's coiu't, in the city of New Orleans, for vio- lating section 1 of Ordinance No. 5046, Ad- ministration Series. He appealed. Among the several grounds selected for at- tacking the ordinance, it is alleged that it is ultra vires, illegal, and unconstitutional. The ordinance is intended to punish idle persons. It prescribes the conditions which shall con- stitute idleness. Article 1 of said ordinance provides "that any person, being able, wholly or in part, to maintain himself or herself, or his or her family, by work or other means, and fails to do so, * * * shall be deemed an idle or disorderly person." The defendant's wife, upon whose testimony he was convicted, made an attidavit against her husband, as fol- lows: "That on the 21st day of December, 1S91, at about ten o'clock a. m.. on Bolivar street, between Gravier and Perdido. in this district and city, one Thomas Burns did then and there violate Ordinance No. 5046, Admin- istration Series, section No. 1, in this, to wit, by failing to provide for his lawful wife and children." The city attorney, in an elaborate brief, contends that the authority of the city to enact said ordinance is fully covered by the city charter of 1S70, under the power granted to the city by the legislature to regulate and preserve the public peace and good order of the city, and to provide for and maintain ;ts clean- liness and health. There can be no doubt, as stated by the learned city attorney, that the city is interested that a husband and father may not permit his wife and children to be de- pendent upon public charity, and, being well provided for, this tends to promote the health of the city, by inducing cleanliness, and pre- vents temptation to vice and crime. But the utmost latitude of construction could not vest in the city, under its charter, the power to regulate the domestic relations. There are certain moral and civil duties, the violation of which the state has not made a penal offense. Some matters of individual conduct are left to the individual conscience by the state, to which no penalty is attached for their violation. When they amount to a civil duty, means are provided by the legislative policy of the state for their enforcement. The general policy of the state has made marriage a civil contraot. To enforce the obligations resulting from it, civil remedies are provided, to which the com- plaining party must resort for redress. The Ordinance No. 5046, § 1, or that part of it un- der which defendant was convicted, is there- fore inconsistent with, and in conflict with, the general policy of the state, as it has, in its gen- eral laws, regulated all the civil duties arising from the marriage contract, and has not au- thorized the city of New Orleans to make any change in relation thereto. 1 Dill. Mun. Corp. § 329. The city has the power to punish idle per- sons or vagrants. But it must be done under the general law of the state, since the legisla- ture has enacted one on this subject, and de-j fines the limits of the city's powers therevmder. ; Section 3S77, Rev. St. provides "that all idle persons, who, not having visible means to maintain themselves, hve without employment; all persons wandering abroad, and lodging in gTOceries, taverns, beer houses, market places, sheds, bams, uninhabited buildings, or in the open air, and not giving a good account of themselves; all persons wandering abroad and begging, or who go about from door to door, or place themselves in the sti-eefs, highways, passages, or other public places, to beg or re- ceive alms; habitual drunkards, who shall abandon, neglect, or refuse to aid in the sup- port of their families, and who may be com- plained of by their families.— shall be deemed vagrants." The city ordinance cannot enlarge this statute. The laws of the state operate within the corporate limits of the city of New Orleans, and upon its inhabitants, as else- where in the state. The city has not been ex- empted from the effects of this general law. The city ordinance must conform to this stat- ute, when punishing vagrancy, unless the va- grant is armed with picklock or other instru- ment, with the probable intention of commit- ting a felony, when it must confoi-m to section ^ 3SS3, Rev. St., and following sections. It is not alleged that the defendant was an habitual drunkard, who had abandoned his family, or who refused to aid in their support. A sub- sequent clause in section 1, Ordinance No. 5046, conforms to this requirement of legisla- tive policy. But the first part of said section, \ quoted above, under which defendant was , convicted, is not embraced within the general statute of the state re.gulating vagrancy, and it is in conflict with the laws of the state re- 1 lating to the marriage contract; and it is, therefore, illegal, null, and void. It is there- fore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and the defendant discharged. MODE OF ENACTME^STT. 161 CITY OF VANCOUVER v. WINTLER et al. (36 Pac. 278, 8 Wash. 378.) Bupreme Court of Washington. March 6, 1894. Appeal from superior court, Clarke county; E. A. Wiswall, Judge. Action by the city of Vancouver against A. E. Wintler, S. M. Beard, and A. J. Cook to foreclose liens for street assessments. Plaintiff obtained judgment. Defendants appeal. Re- versed. Bronaugb, McArthur, Fenton & Bronaugh, E. C. Bronaugh, and N. H. Bloomfield, for appellants. E. E. Coovert, City Atty., for re- spondent. STILES, J.i • • * * * 1. The first point made by appellants is that the general ordinance governing street assessments was void because not passed in the manner re- quired by the statute. The law governing the passage of ordinances is contained in Gen. St. § G35, the first clause of which is: "No ordi- nance and no resolutioa granting any franchise for any purpose shall be passed by the city council on the day of its introduction, nor within five days thereafter, nor at any other than a regular meeting, nor without being sub- mitted to the city attorney." The respondent 1 Part of the opinion is omitted. ABB.CORP.— 11 has deemed it important to claim, and argues at length, that the provision applies only to ordinances and resolutions granting fran- chises, but we think the position is untenable. It is the only provision in the act, of which it was a part, governing the matter of the passage of laws by the council; and the last clause of the section, which relates to the number of votes required to pass any ordi- nance, resolution, or ordc. cleaily shows an intention to make a general application of the whole section to all ordinances, of every kind and for every purpose. But the complaint of the appellants is that, although more than five days elapsed between the introduction of Or- dinance 242 and its passage, the original ordi- nance was not passed, but a substitute report- ed by the city attorney. It is a well-known practice of legislative bodies to proceed in this manner; and, so long as the substitute is clearly within the limits of the subject-matter of the original proposition, we see no reason why municipal councils should not proceed in the same way. It is a mere method of amend- ment, and, if the changes made are such as might have been brought about by ordinai-y amendments, the statute is not infringed. This was the case with the ordinance in ques- tion, and it was therefore properly passed, i 1 Part of the opinion is omitted. 162 MUNICIPAL ORDINANCES. O'NEIL V. TYLER. (53 N. W. 434, 3 N. D. 47.) Supreme Co art of North Dakota. Nov. 7, 1892. Appeal from district court, Cass county; W. B. McConnell, Judge. Statutory action by William O'Neil against R. S. Tyler to quiet an adverse title to real estate, which defendant claims by virtue of certain tax deeds. Judgment for plaintiff. Defendant appeals. Judgment setting aside the tax deeds is affirmed, and case remanded for further proceedings consistent with the opinion. Newman & Resser, for appellant. J. E. Robinson, for respondent. WALLIX, J.i *«***•* y^e will first consider the validity of the alleged tax of 18S-1, for which the city treasurer sold the property in 1885. At that time the amended charter of the city of Fargo, adopted in March, 1881, was in force. Among other provisions of the charter were the following: "Sec. 5. The powei-s hereby granted shall be exercised by the mayor and council of the city of Far- go as hereinafter set forth." "Sec. 8. The council of said city of Fargo shall consist of eight citizens of said city, being two from each ward, who shall be qualified electors of their respective wards, under the organic act of this territoiy, one of whom shall be elected president of the council at their first regular meeting after each annual election provided in section 9 of this act." "Sec. 13. All ordi- nances of the city shall be passed pursuant to such rules and regulations as the mayor and council may presciibe: provided, that upon the passage of all ordinances the yeas and nays shall be entered upon the record of the city council," etc. "Sec. 38. The mayor shall have power to sign or veto any ordinance or resolution passed by the city council. Any or- dinance or resolution vetoed by the maj'or may be passed over the veto by a vote of two thirds of the whole number of aldermen elect- ed, notwithstanding the veto; and should the mayor neglect or refuse to sigu any ordi- nance, or return the same with his objections in writing within ten days, the same shall take effect without his signature." Section 12 de- clares that the "mayor and council" of the city of Fargo "shall have power to levy and col- lect taxes for general purposes." Section 4 of an ordinance not pleaded, but offered in evi- dence, also confines tlie power in express terms upon the "mayor and council" to "levy the necessary taxes" on the "first Monday of 1 Part of the opinion is omitted. September." The answer expressly avers that the several acts pleaded by the defendant as constituting the assessment, equalization, and levy of the taxes of 1884, and embracing also the §ale of plaintiff's property by the city treasurer in 1SS5 for such taxes, and the ex- ecution and deUvery of the tax certificates and tax deed, were all and singular done and performed under and by virtue of "chapter 6 of the ordinances of the city of Fargo." At the trial plaintiff claimed that no such ordinance existed, because the same was nev- er legally enacted or adopted by the city coun- cH, for the reason that upon the passage of the ordinance by the council the "yeas and nays wore not entered upon the record of the city council" as was required to be done by section 13 of the city charter. We think the evidence fully sustained plaintiff's contention on this point, and the trial court found it to be true, as a matter of fact, that the yeas and nays were not entered in the record of the city council upon the passage of the ordi- nance, and that said record contains no en- try of or concerning the passage of said ordi- nances, except as follows: "April 19, 1881, council met pm\suant to adjournment. Re- vised ordinances were accepted, and old ones repealed." Upon this record we are compelled to hold, under the authorities cited below, that the alleged ordinance was not legally passed or adopted, and hence never became a valid enactment. See 1 Dill. Mun. Corp. § 291, and cases cited in note 1. See analogous doc- trine applied to legislation. Cooley, Const. Lim. (ftth Ed.) 1G8; Suth. St. Const. § 48. v'Sr attention is directed to the fact that an ordi- nance was adopted in 1884, which, among other tilings, changes the date of selling real estate for city taxes, and fixes the rate of in- terest on city taxes after such taxes become delinquent at a rate specified by section 1 of the original ordinance. But this later ordi- nance purports to be only an amendment of a single section of the original ordinance, i. e., section 3 of chapter 6, supra. Standing alone, the amendment is meaningless, and wholly incapable of enforcement. It is obvious that the amendment would not have been adopted as an independent law. Under such circum- stances, the amendment must be held to be null and void. Cooley, Const. Lim. (Gth Ed.) pp. 211, 212. As has been seen, the power to levy the city taxes for general purposes is, by the charter as w^ell as by an ordinance of the city, conferred in express terms upon the "mayor and council." ~ 2 Part of the opinion is omitted. YEAS AND XAYS. 163 PRESTON ▼. CITY OF CEDAR RAPIDS. (G3 N. W. 577.) Supreme Court of Iowa. May 27, 1895. Appeal from district court, Linn county; J. D. Griflith, Judge. Action to recover damages to plaintiff's property by reason of the change in the grade of the street upon which said property abuts. From a verdict and judgmontagainst the defendant, it appeals. Reversed. Lewis Heins, for appellant. Hubbard & Dawley and Jamison & Burr, for appellee. KINXE, J.i *•***«• 4. EiTor is assigned upon the ruling of the court in admitting the ordinance in evidence, passed in lS7.j, establishing a grade on First avenue in defendant city. It is said that the ayes and nays were not called and recorded on the passage of the ordinance, and hence it was not legally passed. Code, § 493, re- quires that "on the passage or adoption of every ordinance, * * * the yeas and nays shall be called and recorded." The defend- ant city is acting under a special charter, and was never incorporated under the general in- corporation laws, of which said section 493 of the Code of 1873 is a part. Nor does the law make said section applicable to cities act- ing under special charters: Code, § 551; Acts 21st Gen. Assem. c. 93, § 2; Acts 22d Gen. Assem. c. 14, § 2; Acts 16th Gen. Assem. c. 116, § 21. It does not appear, nor is it claim- ed, that the charter of defendant city requires that upon the passage of an ordinance the yeas and nays shall be called and recorded. Rule IS adopted by said city, and which was offered in evidence by it, provides that "all votes taken on the adoption of ordinances shall be taken by yeas and nays, each mem- ber upon his name being called, unless for spe- cial rea.sons he be excused by the council, shall declare openly and without debate, his assent or dissent to the question." The rec- ord before us shows all of the aldermen voted for the adoption of this ordinance. Inasmuch as there was no statute or rule requiring that the yeas and nays be recorded, we do not think that the ordinan^'e can be successfully assailed because no record was made of the vote. It is true the record does not show that the yeas and nays were called, but it does show that all of the aldermen voted for the ordinance. Under such circumstances, we may well presume that the ordinance was adopted or passed in the manner required by the rule. Brewster v. City of Davenport, 51 Iowa, 428, 1 N. W. 7:>7. All of the cases cited by appellant arose in municipalities organized 1 Part of the opinion is omitted. and acting under the general incorporation law, and therefore are not applicable in this case. 5. Objection is made to the ruling of the court admitting the certificate of the re- corder of the defendant city showing the pub- lication of the ordinance. Section 24 of de- fendant's charter provided that ordinances shall be recorded in a book kept for that pur- pose, and shall be signed by the mayor and attested by the recorder. It also provides that the "recorder shall also certify in said record book to the publication or posting of ordinances required therein when the same shall have been published and posted." It also provides that before ordinances take ef- fect they shall be "published in a newspaper printed in the city, at least ten days, or posted In two public places in each ward, for the same length of time." The certificate of the recorder was to the effect that the foregoing ordinance has been' published, as provided by law, in the Daily Repi^bllcan,— a newspaper published in said city. The certificate does not show the dates of publication. It appears that the ordinance was passed on February 19, 1875. It also appears that the owners of property on First avenue acted upon it in 1877 and in 1878, when they erected their buildings. It appears also that plaintiff ac- quired his knowledge of the fact of the pas- sage of the ordinance of 1875 establishing a gi-ade on First avenue from having read it in the newspapers. It appeai-s also that when the building was erected upon plaintiff's lot the city engineer made a survey showing the grade as made by the ordinance of 1875. From these and other facts, it is fair to pre- sume that the publication certified to was made soon after the passage of the ordinance. The ordinance introduced in this case is the original ordinance as it appears in the records of defendant city, with the recorder's certif- icate attached thereto. The charter of de- fendant required the recorder to certify in said record book to the publication. This he did. True it is that it would have been prop- er to have set forth in the certificate the sev- eral dates of publication, but, in view of the charter provision, we are not authorized to say that the certificate, as it appears, is not a certificate "to the publication" of the ordi- nance. The only matter of doubt is as to whether this publication was in fact made. We have set out facts from which we think the court was justified in holding that the ordinance was published shortly after its pas- sage, and prior to the time plaintiff erected his building. 2 2 Part of the opinion is omitted. 164 MUNICIPAL ORDINANCES. SWINDELL. Mayor, v. STATE ex rel. MAXEY et al. (42 N. E. 528, 143 Ind. 153.) Supreme Court of Indiana. Dec. 19, 1895. Appeal from circuit court, Marshall county; George Bursbon, Special Judge. Mandamus, on tlie relation of James W. Maxey and anotlaer, against Joseph Swin- dell, mayor of the city of Plymouth, to compel respondent to recognize relators' claims to offi- ces of councilmen. From a judgment for rela- toi"S, respondent appeals. Reversed. R. B. -Oglesbee, W. B. Hess, and Chas. Kelli- son, for appellant. J. D. McLai-en, Sam. Park- er, C. D. Drummond, and E. C. Martindale, for appellee. JORDAN, J.i The second proposition with wliich we are confronted is vital in its heai-ing v'pon the action of the council in passing the or- dinance in controversy. The vahdity of the ordinance is essential or fundamental to the claims made by the relators. If for any rea- son it is invalid, the i-ights of the latter are unfounded, and the appellant would be jus- tified in his refusal to recognize them as members of the council, and hence they must necessarily fail in the prosecution of this ac- tion. On May 20, 1873, the common council of the appellant's city duly passed and adopt- ed an ordinance embracing a series of rules and regulations for the government of the common council in the transacting of its busi- ness, and as to the mode of proceeding in the enactment of ordinances. Some of these are merely rules of parliamentary law. Sec- tion 21 of this ordinance is as follows: "All ordinances shall be read three times before being passed, and no ordinance shall pass or be i-ead the third time in the same meeting [that] it was introduced, provided that the c-ouncil may suspend the rule by a two-thirds vote, and put an ordinance upon its passage by one reading at the time it is read." There is no question but what this rule was in full foixe and effect at the time of the introduc- tion of the ordinance under consideration, and there is evidence showing that it had generally been recognized and followed by the council in the adoption of ordinances. It is the mile set up and relied upon by appel- lant in the second paragraph of his answer, in which it was, in substance, alleged that the ordinance upon which the relators based their claim and right to be recognized and to act as councilmen had been passed in viola- tion thereof. During the trial the court per- mitted the appellant to introduce this rule or ordinance in evidence, but subsequently, be- fore the cause was finally submitted to the jury, upon the motion of appellees, the court struck out and withdrew this evidence, over appellant's objections and exceptions; and this action of the court was assigned as one 1 Part of the opinion is omitted. of the reasons in the motion for a new trial^^ The trial court seemingly justified its action in eliminating this evidence upon the ground,. as insisted by the relators, that this rule had been repealed, as the result of the motion made by Councilman Tibbetts, and carried in the manner as we have heretofore stated, and that the same was not in force when the ordinance in question was passed. The ver- bal motion made by this councilman, as re- coi-ded by the clerk, by which it was sought to effectually repeal the rules oi-dained for the government of the council, was, to say the least, somewhat indefinite. When record- ed it read, " That the rules heretofore governing tJie proceedings of council as printed in the ordi- nance hook be and the same are hereby annul- led and repealed.^ (The italics are our own.)' Ordinances of cities are held to be in the na- ture and character of local laws adopted by a body vested with legislative authority, and coupled with the power to enforce obedience to its enactments. The power with which common councils of cities are invested to en- act ordinances and by-laws implies the power to amend, change, or repeal them, provided that vested rights are not thereby impaired. But certainly it cannot be successfully as- serted that the law will yield its sanction t1S, the said street had been graded to the official grade as so established. It was further proved that resolution No. 4,498 (third series) was never passed to print, but was introduced at a meeting of the board held on January 2, 1891, and was then and there, on a vote taken by the board, declared to be adopted, and no other or further action thereon was ever taken, and also that on February 2, 1891, a resolution (No. 4,672, third series) ex- pressly I'epeiiling resolution No. 4,498 was adopted by the board. It was also proved that on January 19, 1891, an order (No. 2,388) expressly repealing order No. 2.318 was passed by the board. The general street law of 1885, as amended in 1889 (St. 1889, p. 157), contains very full and complete pi'ovisions for work upon public streets. The general rule is that the work is to be done by contract, and to be paid for by assessments of the expense upon the adjoining property owners, in the propor- tions fixed by tlie statute. The only excep- tion to this rule is found in subdivision 10 of section 7 of the act, whereby it is provided that "it shall be lawful for the owner or owners of lots or lands fi-onting upon any street, the width and grade of which have been estab- lished by the city council, to perform at his or their own expense (after obtaining from the council permission so to do, but before said council has passed its resolution of intention to order grading inclusive of this) any grading upon said street to its full width, or the center fine thereof, and to its grade as then estab- lished," etc. And in section 68 of the con- solidation act it is provided that "every ordi- nance or resolution of the Ixjard of super- visors, providing for any specific improvement, the granting of any privilege * * * shall, after its introduction in the board, be publish- ed, with the ayes and nays, in some city daily newspaper at least five successive days be- fore final action by the board upon the same," i' etc. Worley's Consolidation Act, p. 16. From the foregoing provisions of the statutes, it is evident that the owners of lots fronting on Market street had no right to proceed to grade the street, or to contract with any one else to grade it, until after they had obtained permis- \ sion from the board of sujicrvisors to do so, \ and that such permission was a privilege, which could only be granted in the mode pre- / scribed, namely, after publication for at least ' PUBLICATIONS. 169 five days. It must follow, therefore, as reso- lution No. 4,498 was never published, that it never became operative, or authorized the lot owners to grade, or in any way to disturb, the street, in front of their premises, and that their contract with appellant to do work which they I had no right to do was void and of no ef£ect.i ' 1 Part of the opinioa is omitted. 170 MUNICIPAL ORDINANCES. STATE (NORTH BAPTIST CHURCH, Pros- ecutor) V. MAYOR, ETC., OP CITY OP ORANGE. (22 Atl. 1004, 54 N. J. Law, 111.) Supreme Court of New Jersey. Nov. 5, 1891. Certiorari, at the prosecution of the North Baptist Cliurch, to the mayor and common council of the city of Orange, to inquire into the validity of an ordinance of that city rela- tive to the opening of a street, and to bring up all proceedings under such ordinance. Or- dinance set aside. Before DEPUE, DIXON, and REED, JJ. Colie & Titsworth and J. D. Bedle, for prose- cutor. Charles F. Lighthipe, for defendants. REED, j.i * * * * » * • There are, however, irregularities which we are constrained to regard as fatal to the pres- ent ordinance. These irregularities are to be found in the manner in which the notice of the proposed improvement, as well as the manner in which tbe ordinance, after its I passage, w^ere printed. The charter (P. L. 18G9, p. 212, § 61) requires that public notice of the contemplated improvement shall be given 1 by publishing a copy of the proposed ordi- / nance, and that the said notices shall state f the time and place of the meeting of common ' council at which they will proceed to consider ] the said ordinance. A supplement to the charter (P. L. 1873, p. 461, § 5) requkes that ' these notices shall be published in all three of the newspapers published at that time in the city of Orange. One of these papers was then, and still is, printed in the German lan- guage. The notice of the time and place / when the present ordinance would be consid- ' ered was printed in this paper, as it was in the other two papers, in the English lan- * Part of the opinion is omitted. guage. This, we thinli, was a mistake. The f primary meaning of the word "publish" is to! "make linown." The medium through whichj intelligence is communicated in a German i newspaper is the German language. The ob- ) ject to be attained by including such papers / in the class of publications is to bring knowl- edge home to a body of readers by whom, as ■ a rule, the English language is not readily or not at all legible. A notice contained in \ a German newspaper in a language other than the German is not published, but only printed. | Again, the charter requires all ordinances, ( after their passage, to be published in the same three papers. This ordinance was pub- 1 lished in a German translation only. I think , this was also a mistake. There is a manifest ' distinction to be observed between the pub- lication of a notice and the publication of an' instrument or statute or ordinance. A notice i requires no particular collocation of words, so j long as it conveys a clear notion of its sub- 1 ject; but a statute or ordinance has no legal i existence except in the language in which it j is passed. No translation, however accurate, 1 can be adopted in the place of its original text, for the purposes of construction in a j legal proceeding. Until the legislature makes i a provision for the printing of ordinances in German newspapers in translation, it is not perceived how they can be printed otherwise than litera et verbis. The publication of the translation may be regarded as a proper ex- planatory adjunct of the English copy, but cannot be accepted as a legal substitute for it. This view of the manner in which an or- dinance should be printed under these con- ditions applies in some degree to the notice also. As already set forth, the charter re- quires that, as part ot such notice, a copy of the proposed ordinance shall be published. For the reasons already stated this copy should appear in English. The ordinance must be set aside. RECORD OF ORDESTANCE. 171 CITY OF HAMMOND t. NEW YORK, C. & ST. L. RY. CO. (31 N. E. 817, 5 Ind. App. 526.) Appellate Court of Indiana. Sept. 30, 1892. Appeal from circuit court, Porter county; H. A. Glllett, Special Judge. Action by the city of Hammond against the New Y'ork. Chicago & St. Louis Railway Com- pany to recover a penalty. From a judgment in favor of defendant, plaintiff appeals. Re- versed. S. Griffin and E. D. Crumpacker, for appel- lant. Bell & Morris, for appellee. FOX, J.i * * * * A cross error has been assigned by the appellees, "that the court erred in its first conclusion of law, which, on the facts found, should have been that said ordinance was invalid, and not in force and effect." The judgment that we have concluded to render in this case makes it necessary for us to consider the cross error assigned. This we will do in the outset. / This presents the question, was the ordinance I invalid for the reason that it was not prop- ' erly signed, attested, and recorded? Con- cerning "by-laws and ordinances" enacted by the common council of cities, section .3099 of the Revised Statutes of 1881 (section 3.>34. Rev. St. 1894), provides as follows: "3099 j [3534] All by-laws and ordinances shall, with- ' in a reasonable time after their passage, be recorded in a book kept for that purpose, and shall be signed by the presiding officer of the city, and attested by the clerk. On the pas- / sage or adoption of any by-law, ordinance, or resolution, the yeas and nays shall be taken, and entered of record." It can well be in- ferred that the reason for the enactment of this statute and the purpose to be accom- plished by it was to remove all uncertainty as to the identity of ordinances in force in a city, as well as to furnish proper and unmis- takable evidence of their contents. For this purpose the statute requires that all ordi- nances shall be signed by the presiding officer of the city and attested by its clerk, and be recorded "in a book kept for that pui-pose." It is a matter of common knowledge, in which the court must be held to share, that In a common council of a city, as in other legislative bodies, "bills" are prepared and in- troduced by the individual members, and, as a usual thing, are written upon separate and detached pieces of paper. When the "bill" is under consideration it is subject to change and modification by amendment. When it is "passed" it becomes an ordinance, and, as such, goes into the hands of the clerk, to be by him placed on file in his office. If left in the condition in which it is when it goes into his hands, and nothing further is done with It, it would contain no evidence upon its face I that it was a perfect ordinance. No other evidence of its contents than the original 1 Part of the opinion is omitted. paper would be in ex;istence. To obviate all this, the statute requires that it shall be sign- . ed, attested, and recorded. When this is done, its identity as an ordinance is fixed, and perfect evidence of its contents furnished, easy of access to all concerned. But how shall this signing, attesting, and recording be done? Was there a substantial compliance with the provisions of the statute in this case?— are the questions to be answered. Counsel for appellee say in their brief that "this question lias been squarely decided" in the case of Bills v. City of Goshen, 117 Ind. 221, 20 N. E. 115. We have read that case with some care. If it "squarely decides" the questions involved in the case before us, as counsel contend, then the matter is settled, as far as this court is concerned, for we have no power to "directly or by implication re- verse or modify any decision of the supreme court." But we do not so understand that case. The question there involved was essen- tially different from the one involved here. In that case the question as to whether the ordinance set forth in the opinion had been signed, attested, and recorded or not was not before the court. The real point was that the ordinance in question did not fix the amount of license fees sought to be charged against the defendant, and an attempt was made by the common council to supply the omission by an ordinary motion made by "Councilman Drake." This, it was very prop- erly held, could not be done. In the course of the opinion, Olds, J., says, in speaking of the legality of an ordinance: "The statute requires it to be signed by the presiding offi- cer, and attested by the city clerk, and re- corded; and, having vested the power in the city, to be exercised in a certain way, it can- not be exercised other than as provided by statute." An examination of this case will show that the questions decided by the court will not furnish us with any light whatever in the case before us. The court, in its spe- cial finding, states the fact to be that the or- dinance "was spread of record at length, and recorded in the minutes of said council pro- ceedings, in a book kept for that purpose," and that the minutes so containing a record of the ordinance "were signed by the presid- ing officer, and attested by the clerk; * * * that all the ordinances of said city were re- corded in the minute book of council proceed- ings, and plaintiff had no other book contain- ing records of ordinances." The record of the meeting in which the ordinance "was spread at length" showed upon its face that it was a continuous one, and only contained the minutes of the proceedings of a single meeting. The signing thereof by the presid- ing officer and the attestation of the clerk were equivalent to signing each particular order, resolution, or ordinance contained therein, severally. The minutes so entered certainly constituted a record. All the or- dinances of the city were so recorded, and not otherwise, for no other book was kept or 172 MUNICIPAIi ORDINANCES. made for that purpose. Considering the sub- ject and object of the statute, we thinli there was a substantial compliance with the spirit of its provisions, and that the ordinance was to all intents signed, attested, and recorded. The case of Upington v. Oviatt, 24 Ohio St. 232, is very much in point. It was there held that a statute requiring ordinances of munic- ipal coi-porations to be recorded "in a book kept for that purpose" is directory only, and that recording an ordinance in the "journal of the council" was sufficient.2 * • • » 2 Part of the opinion is omitted. ORDINANCE AFFECTING POWER OF SUCCESSORS. 17a COLUMBUS GASLIGHT & COKE CO. v. CITY OF COLUMBUS. (33 N. E. 292, 50 Ohio St. G5.) Supreme Court of Ohio. Jan. 24, 1893. Error to circuit court, Frauklin county. Action by the Columbus Gaslight & Coke Company against the city of Columbus. Plain- tift" luul judgment, which was reversed by the circuit c-uurt, aud plaintiff brings error. Af- firmed. K. H. Piatt, for plaintiff in eiTor. Paul Jones and Florizel Smith, for defendant in error. SPEAR, C. J. The single question is as to the sufficiency of the petition. If that states a cause of action, the judgment of the circuit court should be reversed; if not, the oiiposite result follows. It will be noted that there is no direct allegation that the grant from the city gave the company the right to maintain its pipes at any particular place in the street, nor at any prescribed depth beneath the surface. Nor is it averred that the action of the city was in any way wanton, nor that the change of the grade of the street was un- necessary; and the presumption is that the city acted, in that behalf, lawfully, and with- out negligence. Nor is it pretended that the city has denied the company's right to main- tain its pipes in Broad sti'eet. The dispute involves only the right to maintain them where first laid. r The company's claim is that, while the con- sent of the city must first be obtained, the city having the right to make reasonable regula- tions as to the terms and conditions on which the company may occupy, yet, when the city has given its consent, has made the grant, the right in the streets is in the nature of an ease- ment, which then belongs to the company by force of the statute, and the city cannot inter- fere with that right, save upon condition of awarding compensation for resulting damage. It is freely conceded that the company is a public agency. It is further conceded that the use of streets and alleys for gas pipes, through which gas is to be conducted for the use of the city and its people, is a recognized public use and purpose, and that the general right to so lay and maintain such conductors is created by statute. This is, however, upon condition of consent by the municipal authori- ties, and under such reasonable regulations as they may prescribe. And cities are specially authorized to provide for the laying down of gas pipes. But, while all this is conceded, it must always be kept in nund that the primary use of the streets is not for the laying of gas pipes. That is but an incidental— a secondary —use. Above all other uses is the accommoda- tion of the public travel. Our statute (section 2G40) prescribes the city's duty thus: "The council shall have the care, supervision, and control of all public highways, streets, ave- nues, * • ♦ within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance." This neces- sarily implies the duty, as well as the right, to grade, in order that the streets may be ac- cessible, convenient, and in good repair. It also implies that tlie duty as well as the right is a continuing one. The duty is not to open tlie sti-eets aud put them in repair, but to keep them open and in repair. This matter of gi'ading is not, necessarily, a single operation. The duty of exercising the power anew, there- fore, follows the changing conditions and neeils of the public. The power is a legisla- tive one. It is to be enforced by ordinance. The council is to i)erform the duty, and it is elementary, we suppose, that the council can- not, in the exercise of legislative powers, bind its successors, unless authority from the state to do so is clearly indicated. The corpora- tion cannot abridge its own legislative power. It would follow from this that in prescribing regulations, or annexing conditions, by the city, to the exercise by a gas company of a right in a street to enjoy the same for this secondaiy use, the council has not the authoi'- ity to cede away nor bargain away the right of the city to perform its public duties, espe- cially as to a primary use of its streets, nor to- abridge the capacity of its successoi's to dis- charge those duties, unless some express provi- sion of statute is found to that effect, and that is not claimed. The power to regrade, and the duty of exercising the power under proper conditions, being established, does liability for damage follow its exercise in such a case as the one at bai"? If it can be maintained that the company has acquired an easement giv- ing it the right to continue its pipes at the particular place in the street where they were placed, there would be strong reason for con- cluding that liability for damage would follow their disturbance by the process of grading; otlierwise not. It is insisted that the easement of the com- pany, acquired by the grant from the city, is a right as substantial as that of an abutting owner, and that its right to compensatioii for interference with piijcs laid in conformity with an established grade is as well founded as that of an owner of abutting property to com- pensation for an interference ailsing in the same way. There are some points of similar- ity between the two situations, but we thiulc there are more differences. The street is often dedicated by the owner, or his predecessor in title, to public use, and, if acquired by appro- priation, he is liable to compulsory contribu- tion for payment of land taken. By reason of owning tlie abutting laud, he has a property right in the street itself, as much property as his lot. Under some circumstances, trees growing in the street in front of his lot are his property, and he may maintain them there, subject only to the free use of the street by the public. In case of abandonment, the title to the middle of the highway itself ordinarily reverts to him. Among other rights is that of access to and from his premises; and where 174 MUNICIPAL ORDINANCES. he has improved in conformity with an estab- lished grade, the damage occasioned by a ma- terial change of grade is immediate, and often 1 serious. A marlied difference between the / two rights is found in their origin. In no sin- I ^ gle particular does the landowner get any prop- 1 erty right in the street from the city. No I consideration of the city's power is brought in \ question in estimating the character of the lot \ owner's right in the street. It inheres in the I very ownership of the lot, as an incident to it. None of these characteristics attach to the ' couipauj^'s easement. In no sense is it the \ owner of land adjoining the highway. A fair construction of the petition makes of it no more than a naked right to place and keep its pipes somewhere in the street; and this, we think, is the extent of the council's power. An ordinance to gi'ant an exclusive right or a perpetual right to occupy a particular part of the street would be an attempt to bind suc- ceeding councils as to their exercise of legisla- tive power, and would, for reasons stated, be ineffectual. The grant by the city must be in- terpreted in the light of the right and duty of the city to regrade, whenever in its judgment the public interest demands; and whatever easement the gas company can receive, it must accept and enjoy in common with equivalent rights which have been or may be acquired by other public agencies,— rights of a like sec- ondary character; and all must give way to the paramount duty of the city to care for the streets, and keep them open, in repair, and 1 convenient for the general public. This duty/ would be seriously interfered with if the city » could not change the grade of its streets save 1 upon the condition that it should make com- / pensation to every gas company, and water company, and telephone company, and elec- I trie light company, and street-railway com- / pany, for inconvenience and expense thereby occasioned. All such agencies must be held to take their grants from the city upon the condition, implied where not expressed, that the city reserves the full and unconditional power to make any reasonable change of grade or other improvement in its streets. Attention has been called to some authori- ties which seem to give sanction to the com- pany's claim in this case, but we are impress- ed that they do not, in this respect, express the spirit of our statutes and decisions. On the other hand, counsel for the city have cited authorities which support the conclusions here reached. See Dill. Mun. Corp. hie et ibi; Lewis, Em. Dom. §§ 107, 109; Goszler v. Corporation of Georgetown, 6 Wheat. 593; City of Brenham v. Brenham Water Co. (Tex. Sup.) 4 S. W. 143; Aqueduct Corp. v. Brook- line, 121 Mass. 5; In re Deering, 93 N. Y. 361; Waterworks v. Kansas City, 28 Fed. 921; Rockland Water Co. v. City of Rockland, 83 Me. 267, 22 Atl. 166. We think the petition does not state a cause of action. Judgment a f firmed. VIOLATION OF FOURTEENTH AMENDMENT. 175 STATE V. MAHNER et al. (No. 10,730.) (9 South. 480, 43 La. Ann. 496.) Supreme Court of Louisiana. April 13, 1891. Appeal from recorder's court of New Or- leans; J. U. Landry, Judge. A. D. Henriques and Branch K. Miller, for appellants. Henry Keushaw, Asst. City Atty. (Carleton Hunt, City Atty., of coun- sel), for the State. McENERY, J. The defendants were pros- ecuted for violating ordinance No. 3414 of the city of New Orleans, convicted, and fined. This ordinance and amended grdi- nance No. 3175 extended the limits within which dah-ies were prohibited. The defend- ants ask that the ordinance be declared null and void, because it is not general in its operation, is unconstitutional and oppres- sive. The objectionable feature of the or- dinance is contained in the first section. This section prescribes the limits within which dairies may be conducted by permis- sion of the city council, and it is made un- lawful to keep more than two cows without a permit from the city council. The de- fendants are within the prohibited limits, and keep more than two cows. The ordi- I nance is not general in its operation. It does not affect all citizens alike who follow the V same occupation which it attempts to regu- late. It is only those persons who keep / more than two cows in the prohibited limits, I without the permission of the city council, \ who are subjected to the penalties in the or- dinance. The discretion vested by the or- / dinance in the city council is in no way regulated or controlled. There are no con- \ ditions prescribed upon which the permit . may be granted. It is within the power of the city council to grant the privilege to some, to deny it to others. The discretion \ vested in the council is purely arbitrary. It may be exercised in the interest of a favored / few. It may be controlled by partisan con- siderations and race prejudices, or by per- sonal animosities. It lays down no rules by which its impartial execution can be secured, or partiality and oppression prevented. Yiek Wo V. Hopkins, 118 U. S. .TtC. G Sup. Ct. 10C4; Horr & B. Mun. Ord. §§ 13.5, 13r.. It was the evident intention of the council, in amending ordinance 3175, to prohibit dairies in other places than within the prescribed limits. The amended ordinance (section 3) gi-ants 12 months' time to the proprietors or owners of all dairies now in existence, in violation of the amended ordinance, to move their dairies. But, as the amendment to the ordinance only extends the limits within which dairies are prohibited, those who have them in pursuance of the permis- sion from the mayor are exempt from its operations. Section 4 of ordinance 3414 is open to the objections above stated. It is as follows: "That henceforth no new dairies keeping more than two cows shall be estab- lished within the limits above named, under the same penalties as are now in force un- der existing ordinances." This section es- tablishes an inequality, granting to some per- sons, following the same occupation, privi- leges that are not extended to others. The ordinances do not regulate dairies in the interest of the public health. One dairy may be a nuisance because the city council has refused to give the required permission for its establishment; another may be per- fectly harmless, and in no way detrimental to public health, because it exists by permis- sion of the council. They may exist along- side of each other, both unobjectionable in their police regulations, and one a nuisance and the other a lawful establishment. Both the original and amended ordinances violate equal rights among the class they are de- signed to affect, and are therefore neces- sarily void, so far as they do so. This opin- ion in no way conflicts with the views ex- pressed in the case of State v. Gisch, 31 La. Ann. o4ri. In that case the ordinance regu- lated private markets in pursuance of ex- press legislative enactment, by imposing a license upon them when they were conducted in certain localities. The ordinance affected all persons alike who were engaged in the same occupation, and was free from the ob- jections in the ordinances under considera- tion. Nor does this opinion conflict with the opinion and decree in the case of Bozant V. Campbell, 9 Rob. (La.) 411, in which tlie court was called on to deal with a municipal ordinance prohibiting the establishment of private hospitals within certain limits. The court held that, as the council had a right to repeal the ordinance, it could do so par- tially, and modify it so as to permit, in ex- ceptional cases, the erection of private hos- pitals within the prohibited limits. The in- stant case does not present the same feat- ures. In the exercise of its powers in the interest of the public health, the court said the council of the municipality had prudent- ly exercised it. It is therefore adjudged and decreed that the judgment appealed from be annulled, avoided, and reversed, and the suit of the city against the defendants be dis- missed, with costs of both courts. On Rehearing. (April 27, 1891.) The city attorney asks for a rehearing in this case. In the brief for the rehearing the city attorney says: "But should your hon- ors determine that the question involved herein is to be determined upon a possible instead of an actual case, we respectfully submit that your honors' decree should go no further than to declare null the clause providing for previous permission from the city council." We cannot conceive of a more actual case for determination than one wherein the defendant has been tried, con- 176 MUNICIPAL ORDINANCES. victed, and sentenced for the violation of the ordinance under consideration. The or- dinance made it an offense for Iceeping a dairy within prohibited limits without per- mission from the city council. We did not consider the right or power of the city to prohibit dairies within the city limits. This power is undoubted, when exercised in the interest of the public health. We distinctly asserted in the opinion that this ordinance was not enacted in the interest of public health. The permission to keep dairies within the limits, we said, negatived this view. It is true that a portion of an or- dinance may be objectionable, and the other portions may be good, and in such cases that which is good remains. What was the offense denounced in the ordinance? Keep- ing a dairy within certain prohibited limits without permission. Dairies were prohibit- ed within certain limits without the per- mission of the city council. The city coun- cil could, under the ordinance, permit as many dairies as they desired within the pro- hibited limits. As stated, the offense is keeping a dairy without permission. Strike this out, and there would be no penalty. Therefore the permissive part of the ordi- nance was an essential and connected part of it, without which it would be only a pro- hibition. To declare the permissive part void, and to state that the penalty should remain, would be on our part legislation. It would be amending and re-enacting the ordinance. This is the business of the city council. yiOLATIOX OF FOURTEENTH AMENDMENT. 177 In re GARRABAD. (54 N. W. 1104, 84 Wis. 585.) Suprome Court of Wisrnnsin. April 11, 1S03. Application by Joseph Garrabad for a writ of liabeas corpus, and to be discharged from tlie custody of tlie sheriff. A demiu-ror to the return of the sheriff was ovorrnled, and petitioner by certiorari brings up the order for review. Order reversed, and pe- titioner discharged. Tlie other facts fidly appear in the follow- ing statement by PINNEY, J.: This is a proceeding bj' certiorari to re- view the decision of C. L. Bering, court commissioner of Columbia county, in the matter of his refusal to discharge the pe- titioner, Joseph Garrabad, from custody, and remanding him to the imprisonment of whicli he complains. It appears from the return of the sheriff of Columbia county to the writ of habeas corpus issued by the commissioner that on the 2Ttli day of Feb- ruary, 1893, the petitioner was placed in his custody, and was held therein, under and by virtue of an execution or so-called "com- mitment," issued by V. Helman, a justice of the peace of the city of Portage, in said county, reciting that the city of Portage had recovered a judgment before said jus- tice against the petitioner for the sum of $5, together with $13.85 costs of suit, for the violation of an ordinance of said city, to wit, Xu. ll-'4, entitled "An ordinance to regulate street parades and insure public safety," and commanding the sheriff or any constable of the county to levy the same on the goods and chattels of the said pe- titioner, except such as the law exempts, and, in default thereof, to take his body, and him convey and deliver to the keeper of the common jail of Columbia county, to be there kept in custody for the term of 20 days, unless said judgment with costs was sooner paid, or he should be discharged by due course of law. The ordinance in question provides that "it shall be unlaw- ful for any person or persons, society, asso- ciation, or organization, under whatsoever name, to march or parade over or upon" certain streets (therein named) in the city of Portage, "shouting, singing, or beating drums or tambourines, or playing upon any other nmsical instrument or instruments, for the purpose of advertising or attracting the attention of the public, or to the dis- turbance of the public peace or quiet, with- out lirst having obtained a permission to so march or parade, signed by the mayor of said city. In case of illness or absence- of the mayor or other officer hereby des- ignated of the city, such permission may be granted and signed by the president of the comicil, city clerk, or marshal, in the order named: provided, that this section shall not apply to funerals, fire companies, nor reg- ularly organized companies of the state mi- litia: and provided, further, that permis- sion to march or parade shall at no time be ABB.CUKP.— 12 refused to any political party having a reg- ular state organization. Any person vio- lating any of the provisions of this ordi- nance shall, upon conviction thereof, be fined in a sum not less than two dollars or more than ten dollars." The second sec- tion provided that the marshal should ac- company such person or persons receiving permission while upon the portion of tlie streets described, to preserve order, warn the owners of horses upon said portions of said streets, and to careftdly preserve the public safety; and when such permission is given by any officer other than the mar- shal, that he should forthwith notify the mnrshal of the granting of the same. The sheriff further returned that "the central part of the business portion of the city of I'ort- age is contained within the limits defined in the ordinance, and the streets therein referred to were narrow, and cross and en- ter each other at various angles, and there was a great deal of traffic over the same, and that the petitioner had been duly and lawfully convicted of a willful violation of said ordinance upon trial duly and legally had." The petitioner demurred to the re- turn, and the commissioner overniled the demurrer, and ordered that he be remand- ed to the custody of the sheriff, to be con- fined in the county jail of said comity, ac- cording to the terms of said execution. Rogers & HaU, for relator, Garrabad. W. S. Stroud, for court commissioner, C. L. Dering. PINNEY, J., (after stating the facts.) The city charter of the city of Portage (Laws 1882, c. 132, § 31) confers upon the common councU of the city power to pass ordinances and by-laws on certain subjects, under and by virtue of the delegation of the pohce powers of the state to the common council and city officers for the government of the city, and the preservation of order and pub- lic safety. In respect to such ordinances or by-laws it has long been the established doc- trine that they must be reasonable, not in- consistent vnth the charter nor with any statute, nor with the general principles of the common law of the land, particularly those having relation to the liberty of the subject or the rights of private property. Dill. Mun. Corp. § 319, and cases cited in notes. The particular objections tu-ged to i the validity of the ordinance in question fall f within the scope of the fourteenth amend- ment to the constitution of tlie United States, ' which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, with- out due r)rocess of law. nor deny to any per- son within its jurisdiction the equal protec- tion of the laws." These provisions apply , e ordinance in question, followed by a provi- sion that p.^u-mission to march or parade shall at no time "be refused to any polit- ical party having a regular state organiza- tion." It is difficult to see how this can ^ be considered municipal li-gislation. dictated by a fair and equal mind, which takes care f to protect and provide for the parades and / processions A^ith trumpets, drums, banners, and all the accompaniments of political ' tm-nouts and processions, and at the same / 180 MUNICIPAL ORDINANCES. time provides, in effect, that the Salratioii Army, or a Sunday school, or a temperance organization with music, banners, and de- Tices, or a lodge of Odd Fellows or Ma- sons, shall not in like manner parade or march in procession on the streets named Avithout getting permission of the mayor, and that it shall rest within the arbitraiy, uncontrolled discretion of this officer wheth- er they shall have it at all. The ordinance resembles more nearly the means and in- strumentalities frequently resorted to in practicing against and upon pei'sons, socie- ties, and organizations a petty tyranny, the result of prejudice, bigotiy, and intoler- ance, than any fair and legitimate provi- sion in the exercise of the police power of the state to protect the public peace and safety. It is entirely im-American, and in conflict with the principles of our institu- tions and all modem ideas of civil Uberty. It is susceptible of being applied to offen- sive and improper uses, made subversive of the rights of private citizens, and it interfei-es with and abridges their priv- ileges and immunities, and denies them the equal protection of the laws in the exercise and enjoyment of their un- doubted rights. In the exercise of the po- lice power, the common council may, ia its discretion, regulate the exercise of such rights in a reasonable manner, but can- not suppress them, directly or iudirectly, by attempting to commit the power of do- ing so to the mayor or any other officer. The discretion with which the council is vested is a legal discretion, to be exercised vsithin the hmits of the law, and not a dis- cretion to transcend it or to confer upon any city officer an arbitrary authority, maldng him in its exercise a petty tyrant. Such ordinances or regulations, to be valid, mxist have an equal and imiform application to all persons, societies, or organizations sim- ilarly circumstanced, and not be suscepti- ble of mijust discriminations, which may be arbitrarily practiced to the hurt, prejudice, or annoyance of any. An ordinance which expressly secures to political parties hav- ing state organizations the absolute right to street parades and processions, with all their usual accompaniments, and denies It to the societies and other lUve organizations already mentioned, except by permission of the mayor, who may arbitrarily refuse it, is not valid, and offends against all well- established ideas of civil and religious lib- erty. The people do not hold rights as important and well settled as the right to assemble and have public parades and pro- cessions with music and banners and shout- ing and songs, in support of any laudable or lawful cause, subject to the power of any public officer to interdict or prevent them. Our government is "a government of laws, and not of men," and these priuciples, well established by the courts, by the fourteenth amendment to the constitution of the Unit- ed States, have become a part of the su- preme law of the land, so that no officer, body, or lawful authority can "deny to any person the equal protection of the laws." It is plain that the ordinance in question is Ulegal and void, and for this reason the order of the commissioner must be reversed. The order of the court commissioner is re- versed, and the petitioner ordered dis- charged. CONSISTENCY WITH GENERAL LAWS. 181 STATE V. SHERAKD. (23 S. E. 157, 117 N. C. 71G.) Suprome Court of North Carolina. Nov. 5, 1S95. Appeal from superior court, Wayne couuty; Starbuck, Judge. Jolin V. Slierard was convicted, under a city ordinance, of disorderly conduct, and appeals. Afflnuod. T. R. rurnell, for appellant. The Attorney General, for the State. CLARK, J. The defendant was tried for breach of the following city ordinance: "Sec. 2. That all disorderly conduct ♦ • • within the city limits shall subject the of- fender to a fine of §10 for each offence. "Sec. 3. That if any person shall commit a breach of the peace or engage in any riotous or disorderly conduct within the limits of the city he shall pay a fine of $50, provitled that this section shall not be construed to relieve the mayor from the duty of binding over the offender, according to law, if the offence is one properly triable before a higher court." The ordinances are valid under the ruling in several cases that the town may forbid, by ordinance, "disorderly conduct" which, from the evidence, did not amount to an indictable nuisance, or other offense forbidden by the i general law of the state. State v. Cainan, 94 N. C. 8S0; State v. Debnam, 98 N. C. 712, 3 S. E. 7-12; State v. Warren, 113 N. C. 683, 18 S. E. 498; State v. Horne, 115 N. C. 739, 20 S. I E. 443. Disorderly conduct, per se, is not for- / bidden by the general state law. There are acts amounting to disorderly conduct which ) come under the ban of the general law, and I there are other acts, not amounting to criminal offenses against the state, which would also / be disorderly conduct. To this latter class of I cases do city ordinances against disorderly con- duct apply. In State v. Cainan, supra, Merri- mon, J., says of a somewhat similar ordinance, "The ordinance has reference to, and forbids, such acts and conduct of persons as are of- fensive and deleterious to society, particularly in dense populations, as in cities or towns, but which do not, per se, constitute criminal of- fenses, under the general law of the state." The same is repealed and elaborated in State V. Debnam. The court told the jury that if they were satisfied, beyond a reasonable doubt, that the defendant used the language testified to by the witness Burnett (the only witness for the state as to the language used) in a public restaurant, in a violent and abusive manner, and in a voice so loud that it could have been heard on the street, the defendant was guilty, and that it made no difference if he uttered a profane expression but a single time, provided it was uttered in the manner described. This brings the proscmt case so exactly under the ruling in State v. Debnam and State v. Cainan, supra,— the facts in those cases being very sim- ilar to those in this,— that no further discussion is needed. His honor further charged that, if the facts were as testified to by the defend- ant, he was not guilty. Both the prosecuting witness and the defendant testified that the ktter called the witness "a damned high- way robber." His honor correctly held that this and the other language testified to by Burnett, if used in the loud and boisterous manner he stated, would make the defendant guilty. Such conduct is not amenable to the state law, for the language was not so repeated and so public as to become a nuisance to the public. State r. Jones, 31 N. C. 38. It was properly cognizable only under the town ordi- nance. Such conduct as that testified to by j the prosecuting witness is not prohibited by the general state law, yet it would, if it could not be punished by city ordinance, become a ' serious annoyance to the public passing along the streets, hearing such loud, boisterous, and unseemly language, and threats of violence. No error. 182 MUNICIPAL ORDINANCES. HA WES et al. v. CITY OF CHICAGO. (42 N. E. 373, 158 111. 653.) Supreme Court of Illinois. Nov. 1, 1895. Appeal from Cook county court; George W. Brown, Judge. Petition by the city of Chicago for confir- mation of a special assessment. John H. Dunham filed objections, which were over- ruled. He having thereafter died, his heir: and devisees, Helen E. Dunham Hawes an<' Mary V. Dunham, appeal. Reversed. Kirk Hawes and I. J. Geer, for appellants J. D. Adair, for appellee. BAKER, J. This is an appeal from a judgment of confirmation of a special as- sessment made under an ordinance of the city of Chicago passed March 7, 1892, and providing for the construction of a cement sidewallv on Fiftieth street, from Lake ave- nue to Drexel boiilcvard. The commission- el's appointed to assess the cost and expen- ses of the improvement upon the property benefited thereby returned into court an as- sessment roll in which the property here in question, then owned by John H. Dunham, since deceased, was assessed in the sum of $1,915.50. Various objections in writing were filed by said Dimham and overruled by the court. The question of benefits was sub- mitted to a jury, and the juiy in their ver- dict reduced the assessment on the property to $1,G38.75. Motions for a new trial and in arrest of judgment, as well as motions to dismiss the petition and to cancel the assess- ment, were made by the objector, and over- ruled by the court, and exceptions taken; and the court entered judgment of confirma- tion for the amount fixed by the verdict of the jui-y, and the objector perfected an ap- peal to this court. John H. Dunham, the objector, thereafter died, and his death was suggested, and by leave of court Helen Eliz- abeth Dunham Hawes and Mary Virginia Dunham, who are his heirs at law and devi- sees under his will, now prosecute the ap- peal. It is claimed by appellants that the ordi- nance providing for the construction of the cement sidewalk, and under which the as- sessment was made, is unreasonable, unjust, and oppressive, and therefore void. The un- contradicted evidence in the case shows that the tract of land, the south 50 feet of which is assessed for this improvement, is a 20- acre tract, having a frontage of 1,256 feet along Fiftieth street, where it is proposed to coustnict this cement sidewalk; that thei'e is not a house or building of any kind upon it; and that it is an undivided tract of land, and the only use to which it is put is that of a field for raising hay. Only five months before the passage of this ordinance for the construction of a cement sidewalk the devi- sor of the appellants in this case, in compli- ance with a prior ordinance of the city, duly passed for that purpose, constructed and put down along the line of this street, in the very place where this cement sidewalk is to be placed, a wooden sidewalk, six feet in width, made of plank laid crosswise on stringers or joists, in strict confoi-mity to the regulations and requirements of the city; and this plank sidewalk, at the time ' this ordinance on whifh the present proceedings are based was passed, and at the time this case was heard in the court below, was in good order and condition. The uncontra- dicted evidence further shows that the street along which it is proposed to consti-uct this cement sidewalk has never been improved by the city. It is neither curbed nor paved, sewered nor watered, surveyed nor graded. If it is to be considered as a street 66 feet wide, then there is a line of telegraph poles planted right through the center of it; and the north 33 feet of it has never been form- ally dedicated by the owner to public use, nor condemned by any municipal corpora- tion; and if the public have any right to it at all it is a right bj' prescription or by im- plied dedication. Such was and is the con- dition of this street in front of appellants' property. And yet, as appears from the i*ec- ord in the case, the common council of the city of Chicago, only five months after the constniction at a great expense of a new plank sidewalk, built in conformity with the order of the city council, 1,256 feet long, pac-sed a second ordinance ordering this new plank sidewalk torn up, and a cement walk, at an assessed expense of $1,915.50 or $1,- 638.75, put down in its place. It is admitted by the city— at least not denied— that this plank or wooden sidewalk, at the time the ordinance for the cement sidewalk was pass- ed, and at the time this case was heard in the court below, was in good order and con- dition, and will answer equally well, for the puipose of travel, as a cement w^alk. Nor can it for a moment be contended that it is not unreasonable, unjust, and oppres- sive to compel the owner of a vacant 20- acre lot first to construct and pay for a wooden sidewalk, and then within less than six months, and when it is in substantially as good condition as when first built, and in all respects safe, convenient, and sufficient for public use and travel, take it up, throw it away, and put down another in its place, at an expense of over $1,600. It seems to us that it cannot be, especially when we take into consideration the fact that the street has never been improved, cm'bed, graded, paved, or sewered. And further, it is clear from the evidence in the case that if this judgment should be affirmed, and ap- pellant compelled to take up the wooden sidewalk and put down one of cement, the cement sidewalk will be ruined by putting in the house drains every 25 feet along the line of the street, or at least seriously injured; and whenever the street is improved, and MUST BE LAWFUL AXD REASONABLE. 18a dwelling's are constructed along the line of the walk, the walk itself is quite likely to be destroyed. / An ordinance must be reasonable; and if / it is unrensonable, unjust, and oppressive, the I courts will hold it invalid and void. City of Chica^'o v. Runipff, 45 111. 90; Tuginan v. I City of Chicago, 78 111. 405. The question / of the reasonableness or unreasonableness of a municipal ordinance is one for the decision / of the court, and in determining that ques- [ tion the court will have regard to all the ex- isting circumstances or contempoi'aneous i conditions, the objects sought to be obtained, and the necessity or want of necessity for its adoption. Toledo, W. & AV. Ry. Co. v. City of Jacksonville, 67 111. o7; City of Lake View V. Tate, 130 111. 247, 22 N. E. 791; 1 Dill. I Mun. Corp. § 327. And even w'here the pow- f er to legislate on a given subject is confeiTed on a municipal corporation, yet, if the de- I tails of such legislation are not prescribed ( by the legislature, there the ordinance passed (in pursuance of such power must be a rea- sonable exercise thereof, or it will be pro- nounced invalid. Id. § 328; City of St. Paul v. Colter, 12 Minn. 41 (Gil. 16); Dunham v. Trustees, 5 Cow. 462; Breninger v. Treas- urer of Town of Belvidere, 44 N. J. Law, 350. In Cooley on Taxation (page 428) it is said: 'A clear case of abuse of legislative authori- ty in imposing the burden of a public im- provement on persons or property not spe- cially benefited would undoubtedly be treat- ed as an excess of power, and void." In Al- len V. Drew, 44 Vt. 174, the court, by Red- field, J., says: "We have no doubt that a local assessment may so transcend the limits of equality and reason that its exaction would cease to be a tax or contribution to a common burden, and become extortion and confiscation. In that case it would be the duty of the court to protect the citizen from robbeiy under color of a better name." In Wistar v. Philadelphia, SO Pa. St. 505, Chief Justice Agnew says: "But if we say the city may change its pavements at pleasure, and as often as it please, at the expense of the ground owner, we take a new step, and there must be explicit legislation to authorize such taxation. If, while the pavement is good, and stands in no need of repair, the city may tear It up, relay, and charge the owner again with one excessively costly, it would be ex- action, not taxation. We are not at liberty to impute such a design to the legislature, unless it has plainly expressed its meaning to do this unjust thing." And in Wistar v. Philadelphia, 111 Pa. St. 604, 4 Atl. 511, it is held that where a property owner has well and properly set curbstones in front of his property at his own expense, on the proper line, in accordance with the style in common use, and they are in good order and repair, the expense of replacing them with others cannot be provided for by an assessment upon his property. In Corrigan v. Gage, 68 Mo. 541, it was held that the ordinance for the paving of the sidewalk there in question was unreasonable and oppressive, and subject to judicial inquiiy, because such sidewalk was in an uninhabited portion of the city, and disconnected with any other street or side- walk; and the judgment of the court below was reversed. In City of Bloomington v. Chicago & A. R. Co., 134 III. 451, 26 N. E, 366, this court held that, where the ordi- nance is grossly unreasonable, unjust, and oppressive, that may be shown in defense of the application for confirmation. And in City of Bloomington v. Latham, 142 111. 462, 32 N. E. 506, we held that an ordinance di- recting that the cost of the land taken or damaged, or both, should be assessed upon and collected from the lands abutting upon the proposed alley or street in proportion to the frontage thereof, was unreasonable and void. And in Davis v. City of Litchfield, 145 111. 313, 33 N. E. 8S8, and Palmer v. City of Danville, 154 111. 156, 38 N. E. lOfw, ordinan- ces levying special taxes for local improve- ments were held to be um-easonable, arbi- trary abuses of power, and void. The rule ' is that it requires a clear and strong case to' justify a court in annulling the action of a municipal corporation acting within the ap- I parent scope of its authority. But, in our [ opinion, such a case appears in this record. We think that the ordinance in question, in ' so far as and to the extent that it affects the property of appellants, is unreasonable, / unjust, and oppressive, and therefore void. ■ The judgment of confirmation as to the prop- erty of appellants is reversed, and, the ordi- nance being void as to such property, the cause will not be remanded. Reversed. CRAIG, J., dissents. 184 MUNICIPAL ORDINANCES. CITY OF SAGINAW v. McKNIGHT, Circuit Judge. (63 N. W. 9S5.) Supreme Court of Michigan. July 2, 1895. Application for writ of manilamus by the city of Sasinaw against Robert B. McKuight. circuit judge. Writ denied. Wm. G. Gage, for relator. James H. Da- vitt, for respondent HOOKER, J. The charter of the city of Saginaw provides that "the common council may require transient dealers to take out li- cense before engaging in business, and regu- late the terms and conditions of issuing the same." Local Acts 1SS9, p. 900, § 9. Under the authority conferred by this section the council passed an ordinance wliicb iirovides ■"that eveiy pereon, not a resident, who shall bring into the city any goods, wares or mer- chandise, with a view to dispose of the same by auction or otherwise, without any bona fide intention of remaining permanently in the business of selling or disposing of such goods, wares or merchandise within the city, shall be deemed and ti'eated as a transient trader or dealer, and before he shall sell or expose for sale any of such goods, wares or merchandise within the city, either by auction or otherwise, he shall pay to the city treas- urer, for the use of said city the sum of ten dollars per day for every day or part of a day such goods, wares or merchandise shall be exposed for sale." The ordinance provides for the issue of a license upon such payment, and a penalty for noncompliance. It also pro- vides that the words "goods, wares and mer- chandise" shall not be constraed to include wood or fuel, or the products of the farm or dairy, when exposed or offered for sale by the producers thereof. One McDevitt was convicted before a justice of violating this ordinance. Upon appeal to the cu-cuit court, the proceedings were quashed by the respond- ent, upon motion, upon the ground that the ordinance was invalid, and we are asked to issue a mandamus requiring him to vacate his order in the promises, and proceed with the trial of the cause. It is asserted that the ordinance is void be- cause: (1) It discriminates between resi- dents of the city of Saginaw and other per- sons. (2) It discriminates between nonresi- dents, inasmuch as it requires a license only in cases where the goods sold are brought in- to the city. (3) The fee charged for the li- cense is excessive and unreasonable. The business of a transient dealer if subjected to | the payment of a fee must be with a view to ; taxation, or to cover the expense of regula- / tion under the police power. In this case it cannot be said that the fee can be sustained \ as a tax, because the charter does not indicate an intention upon the part of the legislature / to authorize the municipality to tax the busi- / ness, but only to license to the end that it/ may regulate it. The language of the char- / ter indicates a design to promote the public ' good rather than to obtain revenue. As said I by ]\Ir. Justice Cooley, in People v. Russell,-' 49 Mich. 619, 14 N. W. 508: "That the regu- lation of hawkers and peddlers is important, if not absolutely essential, may be taken as established by the concurring practice of civ- ilized states. They are a class of persons who travel from pla.ce to place among stran- gers, and the business may easily be made a pretense or a convenience to those whose real pm'pose is theft or fraud. The requirement of a license gives opportunity for inquiry into antecedents and chai-acter, and the payment of a fee affords some evidence that the busi- ness is not a mere pretense." This may be measurably ti-ue of transient dealers; and it is to protect the community from imposition and fraud, rather than to obtain revenue, that, in our opinion, this power was conferred. If this is so, there is no reason for an ordinance that applies only to nonresidents, as a class, and which exempts inhabitants of the city. We do not discuss the extent to which the i city may go in restricting and limiting the ' number of sa.id dealers, and whether tests re- \ lating to character, etc., may be applied (see 1 Kitson V. Ann Arbor, 26 Mich. 327; Sherlock j V. Stuart, 90 INIich. 193, 55 N. W. 845), as this I ordinance does not attempt to regulate this \ business upon these lines. It permits any one ' to engage in the business of transient dealer. ' If by this term is meant a dealer who goes about from place to place, there is no appar- ent reason for thinking that such business ■ only needs regulation when conducted by uon- | residents. It seems to us that this ordinance . is aimed at nonresidents, and there is room for the suspicion that it was designed for the benefit of residents, and therefore open to the criticism that it is in restraint of trade. More- over, it borders very closely upon the line of imreasonable license fees. We think the case is within the doctrine of Brooks v. Mangan, 86 Mich. 570, 49 N. W. 633, if not of Chad- dock V. Day, 75 Mich. 527, 42 N. W. 977, and that the ordinance is void. The writ will therefore be denied, with costs. The other justices concurred. MUST BE IMPARTIAL AND GEXERAL. 185 CLEMENTS v. TOWN OF CASPER. (35 Pac. 472.) Supreme Court of Wyoming. Jan. IG, 1S94. Error to district court, Natrona county; John W. Blake, Judjre. C. E. Clemonts was convicted of the vio- lation of an ordinance of the town of Cas- per requiriner certain sales'inen, ajients, and peddlers to proeiu'e a license to do business in such town, and he brings error. Re- versed. C. C. Wright, for plaintiff in error. Alex. T. Butler, fur defendant in error. GROESBECK, C. J. The plaintiff in er- ror was arrested and tried before a police justice of the town of Casper for the viola- tion of an ordinance of said town concern- ing peddlers, lie was convicted, and ap- pealed to the district court of the county, wherein he was tried by the court, and con- victed. He brings error here, attacking the town ordinance as unconstitutional and void, as in contravention of the provisions of the constitution of the United States conferring power upon congress to regulate commerce among the several states, as in violation of a further provision of the federal constitu- tion that the citizens of each state shall be entitled to aU privileges and immunities of citizens of the several states, snd as demand- ing an unreasonable license fee. The ordi- nance of the town was introduced in evi- dence in the court below, and the material portions of it read as follows: "An Ordi- nance Concerning Peddlers. Be it ordained by the town council of the town of Casper: Section 1. It shall not be lawful for any per- son or persons to hawk or peddle any goods, wares, merchandise or any other valuable article or things within the corporate limits of the town of Casper without first having obtained a license so to do as hereinafter provided. Sec. L'. No person, persons, com- pany or corporation, being nonresident shall in person or by employee, travelling or local agent, drummer or salesman, sell by sam- ples or otherwise in this town any goods, wares or merchandise, either foreign or do- mestic, without first obtaining a license as hereinafter provided. Sec. 3. Every person selling goods, wares or merchandise by sam- ples or otherwise to be delivered in the fu- ture through a storekeeper or merchant of this town is a peddler. Sec. 4. This ordi- nance shall not apply to travelling agents and drummei's who sell exclusively by sam- ple or otherwi.se to regular merchants doing business in the town, nor to persons selling fruits, vegetables and farm products. Sec. 5. Every person wishing to obtain a license as a peddler shall apply to the town clerk or town marshal stating in what manner, in what articles and for what time he wishes thus to trade. And upon his paying license fee of $Jo.uO in advance for each 24 hours he shall be permitted to trade as a peddler. No license shall be Issued for less than 24 hours." The other sections of the ordinance relate to the penalties prescribed for its violation, the issuance of the license, and the time when the ordinance shall take ef- fect, and need not be considered. An at- tempt is clearly made by the ordinance to distinguish between commercial travelers selling exclusively by sample or otherwise to merchants doing business in the town, and to agents s(^lliug generally to the in- habitants of the town by sample, without regard to their vocation. The evidence of- fered discloses that the plaintiff in error was a traveling agent of Wilder Bros., located at Lawrence, Kan., and that he sold by samples shirts, muslins, woolens, silks, ho- siery, and other articles, to be forwarded by his commercial house to the parties pur- chasing. The goods sold at Casper were forwarded by express to the purchasers, and were not delivered "in the future through a storekeeper or merchant" of the town. The case falls within the principles announced by the supreme court of the United States in the case of Bobbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592, and Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 13S0; but the facts of the case as presented by the evidence are more akin to those in the case of Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1, where the plaintiff in error was a resident of the state of Louisiana, and was engaged in the business of soliciting trade by the use of samples for the house for which he worked as drummer, which was located in the city of New Orleans, in said state. His territory of operations was in the city of Houston, in Harris county, Tex., and his business was soliciting orders or ti-ade for his employers, who were manu- facturers of rubber stamps and stencils. ^^'hile so engaged he was aiTested, and lined for the alleged offense of pm'suing the oc- cupation of drummer without a license, con- trary to a provision of the Penal Code of the state of Texas. Upon habeas corpus pro- ceedings before the court of appetils of that state the conviction was sustained, and the petitioner remanded to the custody of the sheriff, and to review such judgment of the state court writ of error was brought in the federal supreme com't. It was held b.v that tribunal that there was no distinction be- tween the case and that of Bobbins v. Tax- ing Dist, supra, and the judgment of the court of appeals of Texas was reversed, and the case remandetl. with instnictions to dis- charge the prisoner. The distinction made by the ordinance of the town of Casper, under consideration, be- tween agents and drummers selling exclu- sively by sample or otherwise to regular merchants of the town and those selling to the public generally cannot alter the situa- tion. The constitrtim of the United St;Ues having given to congress the power to regu- 186 MUNICIPAL ORDINANCES. A late commerce, not only with foreign na- tions, but among the several states, that power is necessarily exclusive whenever the subjects of it ai-e national in their character, or admit only of one uniform system or plan of regulation; and when congress has fail- ed to make express regulations of the com- merce among the states this indicates its will that the subject shall be left free from any restrictions or impositions, and any regula- tion of the subject by the state is repugnant to such freedom, except in matters of local concern only, where the state, by virtue of Its police power, and its jurisdiction of per- sons and property within its limits, provides for the socm'ity of the lives, limbs, health, a.- 1 comfort of persons and the protection of property; or wlien the state does those things which may otherwise incidentally af- fect commerce, such as the establishment and regulation of highways, canals, railroads, wharves, ferries, and other commercial facil- ities; or by tlie passage of inspection laws seelis to seciu-e the due quality and measure of products and commodities; or by the pas- sage of laws regulates or restricts the sale of articles deemed injurious to the health or morals of the community; or Imposes taxes upon persons residing within the state or be- longing to its population, and upon avoca- tions and employments pursued therein, not directly connected with foreign or interstate commerce, or with some business or employ- ment exercised under authority of federal, constitutional, or statutory law; or imposes taxes upon all property within the state, mingled with and forming the gi'eat mass of property therein. But the state, in making such necessary police and revenue regula- tions which are permissible, cannot impose taxes upon persons passing through the state, or coming into it merely -for a temporary pur- pose, especially if connected with interstate or foreign commerce; nor can it impose such taxes upon property imported into the state from abroad, or from another state, and not yet become part of the common mass of prop- erty therein. No discrimination can be made by any such regulations adversely to the per- sons or property of other states; and no reg- ulation can be made directly affecting inter- state commerce, as such taxation or regula- tion would be an unauthorized interference with the power given to congress. One of the reasons for the adoption of the federal constitution, "in order to fonn a more per- fect Union," was to prevent a numi)er of sys- tems of the regulation of commerce among the states, only limited to their number, and which was deemed a great evil under the articles of confederation. "In the matter of Interstate commerce, the United States are but one country, and are and must be sub- ject to one sj-stem of regidations, and not to a multitude of systems. The doctrine of tlie freedom of that commerce, except as regulated by congress, is so firmly establish- \V ed that it is unnecessary to enlarge further upon the subject • • • It is strongly urged, as if it were a material point in the case, that no discrimination is made between domestic and foreign di'ummers,— those of Tennessee and those of other states, — that all are taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the state." Rol> bins v. Taxing Dist., supra; City of Ft. Scott V. Pelton, 39 Kan. 7G4, 18 Pac. 934. It makes no difference whether the articles im- ported into a state to be sold are farm prod- ucts or manufactured articles or any kind of merchandise. The power of the state and 1 its municipalities is exhausted as to her own resident dealers and agents, and to the prop- ' erty within its jurisdiction, unless the morals i or health of the people are in danger from I the foreign commerce introduced within her | borders, or imless the property has been min- gled and merged into the great mass of the property within the state. If the state can- \ not, through its statute, interfere with inter- j state commerce, sm^ely it cannot delegate this I power to one of her municipalities; and if a statute would be void imposing such re- i strictions as the ordinance of the municipal- I ity imposes, the ordinance is invalid as well, / as the matter is wholly within the control of congress, and, where not regulated by that \ department of government, no inferior reg- ulation can control, whether imposed by a / state, or by any of its municipal subdivisions / for governmental purposes. The words "ped- dler" and "hawker" have a settled meaning, independently of statutory definition. The former is an itinerant trader, a person who sells small wares, which he carries with him in traveling about from place to place, while the latter is also a trader who goes from place to place, or along the streets of a town, selUng the goods which he carries with him, although it is generally understood from the word that a hawker also seeks for purchas- ers, either by outcry, as the derivation of the word would seem to indicate, or by attract- ing notice and attention to them as goods for sale by actual exposure or exhibition of them by placards or labels or by some con- ventional signal or noise. Of such occupa- tions the state has control, and under the au- thority derived from the general incorpora- tion act of the state, under which the town of Casper was incorporated, "to license, tax, regulate, suppress and prohibit hucksters, peddlers," etc., (llev. St. § 468, subd. 9,) the town has a right to enact ordinances govern- ing such occupations, and regulating, licens- ing, taxing, or prohibiting them. But the or- dinance goes further than this, and attempts to do what has been unsuccessfully attempt- ed time and again, for the benefit and ad- vant;ige of domestic dealers, to exclude the agents of dealers from other states; and this cannot be done, as the property offered for sale is not under the jm-isdiction of. or sub- MUST BE IMl'ARTIAL AND GENERAL. 187 ject to, regulation by the state or its munici- palities, and is not carried about from place to place, and exhibited for sale. The defini- tion of a peddler in section 3 of the ordi- nance is not the generally accepted one, and under the evidence adduced in the case the plaintiff in error was not one, as the articles he sold were delivered in the future, through an express agent. It may be that this defini- tion is not an exclusive one, but may be con- sidered as an enlargement of the usual terra; but the evidence plainly shows that the plain- tiff was not a peddler in the usual under- standing of the term, nor in the light of the definition of the ordinance, as he neither car- ried about his goods from place to place with- in the town, nor sold and delivered them si- multaneously, nor made future delivery of them through a storekeeper or merchant of the town. Even where a commercial trav- eler or agent, usually denominated a "drum- mer," simply exhibits samples of goods kept for sale by his principal, and taios orders from purchasers for the goods, which are afterwards to be delivered by the principal to the purchasers, and payment for the goods is to be made to the principal by the pm*- chasers on such delivery, such agent is nei- ther a peddler nor merchant; nor even will a single sale or delivery of goods by such agent, or by any other person, out of the samples exhibited, or out of any other lot of goods, constitute such person or other person a peddler or merchant. City of Kansas v. GolHns, 34 Kan. 434, 8 Pac. 8G5, and cases cited; Com. v. Farnum, 114 Mass. 267. While the regulation of commercial travelers by license or otherwise may be deemed a great necessity by local dealers and others, particularly where orders are taken from the people generally, instead of from regular merchants and dealers, this authority can only be exercised by congi-ess, and state laws and municipal ordinances are alike / futile in any attempted control of the com- . merce between the states, except as herein / indicated. The ordinance is void, as it Is mthin the ban of the federal constitution as 1 interpreted by the supreme court of the Unit- I ed States, both as an unlawful and uncon- ' stitutional interference with interstate com- I merce, and as an attempted discrimination / adverse to nonresidents of the state. It ap- / pears to us that the license fee of ?25 for each 24 hom*s — which undoubtedly means a day — is excessive and vmreasonable, but It is unnecessary to consider that question, as the ordinance is void for the reasons a.ssign- ed. The judgment of the distiict coiu't of Natrona county is reversed, and the cause re- manded, with the direction to dismiss the complaint. CONAWAY and CLARK, JJ^ concur. 188 MUNICIPAL ORDINANCES. WAUKESHA HYGEIA MINERAL SPRING CO. V. PRESIDENT, ETC., OF VIL- LAGE OF WAUKESHA et al. (53 N. W. 675, 83 Wis. 475.) Supreme Court of Wisconsin. Nov. 15, 1892. Appeal from circuit court, Waukesha coun- ty; A. Scott Sloan, Judge. Action by tlie president and trustees of the village of Waukesha and others against the Waukesha Hygeia Mineral Spring Com- pany to enjoin the laying of pipe line through the streets of the village, and action by the Hygeia Company against the president and tiiistees of Waukesha and others to restrain them from interfering with their work. Both actions were consolidated, and injunction re- straining the laying of pipes granted, and in- junction refused to prevent interference by village. The Hygeia Company appeals. Af- firmed. F. M. Hoyt (Keep & Lowden, of counsel), for appellant. Ryan & Merton and T. W. Haight, for respondents. LYON, C. J. I. It is maintained by the learned counsel for plaintiff (the Hygeia Min- eral Spring Company) that the village of Wau- kesha cannot maintain an action in the name of its president and trustees to enjoin that company from excavating trenches in the vil- lage streets, and laying its pipe therein, even though the company has no legal authority to do so. Without entering upon an extended discussion of this proposition, it is sufficient to say we are of the opinion that such right of action in the municipahty is established by the judgment of this court in Town of James- town V. Chicago, B. & N. Ry. Co., 69 Wis. 648, 34 N. W. 728. The reason is that such un- lawful interference with the streets puts them out of repair, and almost necessarily increases, for the time being, the liability of injuries to persons and property of travelers thereon be- cause of such defective condition. The village, being responsible for injuries caused by de- fects in its streets, and being charged by law with the duty of keeping them in repair, has such an interest in the streets that it may maintain actions to prevent any unlawful in- jury to them. The reasons why the case of City of Milwaukee v. Milwaukee & B. R. Co., 7 "\Tis. 85, (on which counsel for plaintiff rely as denying a right of action by the village,) was not applicable to that case, and is not to this, are stated by Chief Justice Cole in his ojiinion in the Jamestown Case. We hold that the village of Waukesha may maintain such action. II. For the purposes of this appeal it will be assumed that the villnge board of Waukesha had legal authority to grant to the Hygeia Company (the plaintiff) the right, on the con- ditions specified in the ordinance of July 14, 1891, to excavate trenches in the streets of the village, and to lay pipe therein for the ( purposes specified in the ordinance. / 7 III. If the ordinance went into effect and re-^ mained in force,— that is, if there was no ef- fectual reconsideration by the board of the vote by which it was passed.— it will be as- sumed that it still remains in force, and that, since its acceptance by the Hygeia Company, and the expenditure by the company of consid- erable sums of money on the faith of it, the same is irrepealable without the consent of, the company. lY. Was there an eifectual reconsideration by the village board of the vote of July 14, 1891, by which the ordinance was passed? If the ordinance had not become absolutely binding upon the village before the motion to reconsider the vote of July 14th, by which it was passed, was adopted, there can be no doubt, we think, of the right of the village board to reconsider such vote, subject only to such restrictions as are imposed upon the board by the charter and by-laws of the vil-, lage. Such right, in some form, is inherent in all deliberative assemblies or bodies. If a motion to reconsider, properly and timely made, prevails, the effect is to abrogate the vote reconsidered, and the matter stands be- fore th^ assembly or body in tlie same condi- tion as though the reconsidered vote had not been passed. Cush. Pari. Law. §§ 12«>4-1266. inclusive. The charter of the village of AVau- kesha is silent on the subject of reconsidera- tion, but it authorizes the village board to es- tablish by ordinance, resolution, or by-law rules to govern its proceedings. This gives the board power to prescribe the procedure on the reconsideration of votes. A copy of the vil- lage ordinances and by-laws, purporting to be published by aiithority of the board, was used on the argument. Its authenticity was not questioned. It contains a by-law on the subject of reconsideration. Although it is not found in the record before us, yet, inasmuch as it restricts, to some extent, the common-law or inherent right of reconsideration, it will be most favorable to plaintiff to regard it as properly before the court. We therefore con- strue the averment in the pleadings that the vote by which the ordinance was passed was duly reconsidered as an averment that it was reconsidered in the manner autliorized by the by-law. It reads as follows: "It shall be in order for any member voting in the majority to move for a reconsideration of the vote on any question at the same or next succeeding meeting." We are of the opinion that the vote of July 14, 1891, was effectually recon- sidered for either of two reasons: First, be- cause the ordinance had not taken effect when the vote on its passage was reconsidered; and, second, if it had then taken effect, the vote on its adoption was reconsidered at the next succeeding meeting of the board, on motion duly made, and before the Hygeia Company had accepted the ordinance, or made any ex- penditure on the faith of it. Section 21 of the village charter (Priv. & Loc. Laws. 18,19. c. 30) provides that "any ordinance, regulation, rule, or by-law enforcing any penalty or forfeiture REPEAL AND ENFORCEMENT. 189 for the violation of its provisions, shall be pub- lished one week in some newspaper printed in said village before the same shall be in force." We tind no provision in the charter requir- ing the publication of ordinances which do not imix)se such penalties or forfeitures. The or- dinance of July 14, 1891, seems to belong to the latter class, and not to the class specified in section 21. Probably it could have been framed so as to be operative without publica- tion. But it was doubtless competent for the village board to provide that it should take ef- fect at some future time, or on the happening of some futm-e event. The board provided that it should take effect and be in force from and after its passage and publication. It is fair to assume that the board intended by the use of the latter term a publication for one week, as the term is used in section 21. The ordinance was first inserted in the official newspaper on Julj' 19th, and the week expired July 26th; hence we think that the ordinance could not have taken effect until the latter date. It is the same as though it had been ex- pressly provided therein that it should not be in force until July 26th, Before that date the motion to reconsider the vote by which the or- dinance was passed was adopted. Of the right of the village board to reconsider that vote at any time before July 26th, provided it was done in accordance with the by-law on that | subject, we can entertain no doubt whatever; and in such case it would seem to be immate- rial had the company accepted the prospective f ordniance, or expended money on the faith of it before the reconsideration. Such acts could [ not defeat the right of the board to reconsid- ; er before the ordinance took effect. Again, let us suppose that the ordinance was in force I when the vote to reconsider was passed. The ordinance was a voluntary grant of a privilege | or easement to the Hygeia Company, for • which the village received no consideration whatever. It was purely gratuitous, and, un- / til accepted and acted upon by the grantee, j was a mere license, which the grantor might ! revoke at its pleasure. The grantor did re- voke it by reconsidering the vote adopting it / before the ordinance was accepted or acted upon by the grantee, in strict compliance with the by-laws of the village board in that / behalf. Hence, in any view of the case, we are impelled to the conclusion that when the / Hygeia Company threatened and attempted ' to .exercise rights under the ordinance to the injury of the streets of the village and of the , owners of lands abutting on such streets, it acted without authority of law, and the court properly enjoined it from doing such acts. Order affirmed. 190 MUNICIPAL ORDINANCES. OITY OF DETROIT v. FT. WAYNE & B. I. RY. CO. (54 N. W. 958, 95 Mich. 456.) Supreme Court of Michigan. April 28, 1893. Original petition for mandamus by the city of Detroit to compel the Ft. Wayne & Belle Isle Railway Company to comply with the conditions in an ordinance enacted by the city. Writ issued. John J. Speed, for relator. Edwin P. Conely, for respondent. McGRATH, J. Respondent, by virtue of an ordinance adopted in 1SG5, is operat- ing a street railway in the city of Detroit, and this is an application for a mandamus to compel the said company to comply with the provisions of an ordinance' enacted in January, 1S93, requiring it to "issue and I sell, by its conductors, or their duly-author- ' ized agents, to persons applying therefor, , upon each and every car operated by said ' company within the limits of the city of . Detroit, ticliets, to be good for transporta- ' tion over the entire route of said com- , pany, or any portion thereof, traveUng con- ' tinuously either way, between" certain hours, at the rate of 8 tickets for 25 cents. The ordinance contains separate sections maJdug each day's neglect to comply there- Avith an offense punishable by fine, and \ providing for the collection of such fine in an action at law. Respondent, as assignee of the Ft. Wayne & Elmwood Railway Company, is operating a street railway un- der an ordinance passed January 31, 18G5, and the amendments thereto since enacted. The rate of fare was originally fixed at 5 cents, but by an amendatory ordinance passed in 1889 it was provided that be- tween certain hours said company should Issue and sell tickets at the rate of 8 tickets for 25 cents. Respondent accepted that ordinance, as it had those previously en- acted. It, however, refuses to accept the ordinance enacted in January, 1893, or to comply Avith its terms. It answers that such tickets are kept for sale at certain places; that there are other street-railway companies operating railways within the limits of the city of Detroit, not regulated in respect of tickets by this or any other ordinance, and sets forth the following rea- sons why it should not be compelled to comply with the provisions of the ordinance: (1) The company is furnishing the tickets in reasonable quantities and in reasonable places. (2) The ordinance is illegal and void in this: (a) Tliat the common council of the city of Detroit has no authority to pass any such ordinance; (b) that the rela- tions of the city of Detroit with the respond- ent are of a contractual nature, and the same cannot be, in this regard, enforced by a penal ordinance; (c) that the ordinance seejis to regulate the internal and business affairs of the respondent; (d) that the or- dinance is penal, and invalid, because it undertakes to select one individual and punish him for a violation of it; (e) that the ordinance is unequal in its operation; (f) that the ordinance is not a proper ex- ercise of the police power delegated to the municipahty. The Ft. Wayne & Elmwood Railway Com- pany was organized in July, 18G5. under chapter 94 of Howell's Statutes. Said act was subject to amendment, and in 1SG7 tbe following section^ was added thereto: "All companies or corporations formed for such purpose shall have the exclusive right to use and operate any street railways con- stinicted, owned, or held by them: pro- vided, that no such company or corporation shall be authorized to construct a railway under this act through the streets of any town or city without the consent of the municipal authorities of such town or city, and under such regulations and upon such terms and conditions as said authorities may from time to time prescribe: provided, further, that after such consent shall have been given and accepted by the company or corporation to which the same is grant- ed, such authorities shall make no regula- tions or conditions whereby the rights or franchises so granted shall be destroyed or imreasonably impaired, or such company or coiporation be deprived of the right of con- structing, maintaining, and operating such railway in the street in such consent or grant named, pursuant to the terms thereof." The ordinance of 1SG5, imder which said company began operations, con- tained the following reservation, which is still in force: "It is hereby reserved to the common council of the city of Detroit, the right to make such further rales, orders, or regulations as may from time to time be deemed necessary to protect the inter- est, safety, welfare, or accommodation of the public in relation to said railway." In the absence of this reservation in the or- dinance, it could not be said that the rights and franchises of the respondent are destroyed or unreasonably impaired by the requirement sought to be enforced; but, mdependently of this statutory provision, the reservation contained in the ordinance itself, viz. "to make such further rules and regidations as may from time to time be deemed necessary to protect the interest, welfare, or accommodation of the public," certainly includes the right to enact an or- dinance providing that the company shall, for the acconuuodation of the public, keep tickets for sale upon its cars. Ordinances containing grants are constnied liberally in favor of the public. It cannot be contended that the relation created by the ordinance is contractual, and at the same time that the reservation was of the right to enact police regulations only. The right to exer- 1 Section 3527. ENFORCEMENT BY FINES. 191 r cise police power exists indopoudont of the reservation, and could not bo bartered 1 away. The contract is not unihitoral, in- \ tended as a shield for respondent alone. Tlie riglit of a mimicipality, nnder the statute, to refuse its consent to the opera- tion of a street railway in its streets is an absolute one, and its power, in the first instance, to impose conditions, is iinlimited. The nature of the conditions imposed does not depend upon other grants of power. Respecting the imposition of further condi- tions after consent given, it is only neces- sary that the municipality keep within the scope of the reservation. In the recent case of Sternberg v. State, (Neb.) 54 N. W. Rep. 553, a similar ordinance was sustained under general provisions subjecting the com- pany "to all reasonable regulations in the construction and use of said railway wUch may be imposetl by ordinance," and empow- ering the municipality "to fix and determine the fare charged." The court held that the power to fix rates of fare neces-sarily car- ried with it all incidents necessary to cany the power into effect. "A street railway has no depots. Its stations are the street corners, and its business with the pubUc is conducted on its cai-s;" and that it was not unreasonable to require the company to sell its tickets at its place of doing busi- ness. In Railway Co. v. Berry, (Ky.) 18 S. AV. Rep. 102G, it was held that an or- dinance reqmring a street-cjir company to put a driver and conductor on each car was a proper exercise of the city's police power, and not an impairment of the company's rights, not being unreasonable or oppres?:- ive. See, also, Railway Co. v. Pluladolphia, 58 Pa. St. 119. In the present case the power exercised was that reserved in the original grant. r The only question that remains is whether / or not the penal provisions of the ordinance V. can bo sustained. Even if Invahd, the other provisions of the ordinance do not neces- sarily fall with them. It is well settled that an ordinance may bo good in part, al- though bad in part. It is only neces.sary that the good and bad parts be so distinct and independent that the invalid parts may be eliminated, and that what remains con- tains aU the essentials of a complete or- dinance. Dill. Mun. Corp. § 421; State v. Hardy, 7 Neb. 377; St. Louis v. St. Loms R. Co., 89 'Mo. 44, 1 S. W. Rep. 305, and 14 Mo. App. 221. The general rule Is that ordinances shoidd be general in their nature, and impartial in their operation. Ordi- nances, however, containing grants, are of necessity several and independent of each other. The conditions imposed and require- ments exacted are necessarily different, de- pending upon many and varied considera- tions. These ordinances are adapted to these varying conditions and circimistances. An ordinance prohibiting a particidar rail- road corporation by name from running locomotives by steam on a specific street does not contravene the principle stated. Railroad Co. v. Richmond, 96 U. S. 521. It does not follow that a like reservation is contained in every other railway or- dinance. While it is true that ordinances of this class have been held to partake of the nature of contracts, yet they are none the less by-laws, and have the force and effect, in favor of the mimicipality, and against persons boimd thereby, of laws passed by the legislature of the state. The | power to enact an ordinance involves all j the incidents necessary to give effect there-/ to. The charter of the city of Detroit (sec- tion 142) empowers the common council to 1 punish the violation of any ordinance by / imposing a fine. Irrespective of this ex- press authority, a municipality has an im- plied power to provide for the enforcement of its ordinances by reasonable and proper fines. 1 Dill. Mim. Corp. § 338. The reser- vation in an ordinance to impose further conditions involves the right to provide for I the enforcement, of such conditions iu the/ manner provided by law. The apphcation | of the rule contended for to this class of cases would prevent this method of en- forcement of any conchtion imposed by virtue of a reservation of this character. The common council having the power to ( impose the condition in question by or- / dinance, it has, as incident thereto, the pow- / er to pi'ovide for its enforcement. The/ general rule above stated must be held to / apply only to regulations, the authority to enact which depends solely upon the ex- I ercise of poUce powers, and not to condi- . tioiis imposed by an ordinance, enacted by ' virtue of a reservation in a by-law, which j partakes of the character of a contract. The ordinance is therefore valid, and the writ of mandamus must issue as prayed. The other justices concm'red. 192 MUNICIPAL SECURITIES. RATHBONE v. BOARD OF COM'RS OF KIOWA COUNTY. (73 Fed. 395.) Circuit Court, D. Kansas, Second Division. March 19, 1896. No. 467. This was an action by diaries D. Rath- bone against the board of county commission- ers of the coimty of Kiowa, Kan., upon cou- pons of county railway-aid Iwnds. Plaintiff has demurred to the answer filed by the de- fendant. Gleed, Ware, & Gleed, for plaintiff. S. S. Ashbaugh and L. M. Day, for defendant. WILLIAMS, District Judge. This suit is instituted upon past-due coupons, detached from 16 bonds, of $1,000 each, issued by the defendant county to the Kingman. Pratt, & Western Railroad Company, and upon past- due coupons, detached from 30 bonds issued by the defendant to the Chicago, Kansas &, Nebraska Railway Company. In each in- stance, the bonds were issued in payment of stock subscribed for by the defendant, in the respective companies. Without stating the matters alleged in the answer in detail, it will be sufficient to say that the defendant county avers the bonds were issued by persons who were not clothed with power to issue the same, in disregard of the law governing the issue of this class of bonds, and that the amount issued is in excess of that which could be issued under the law. To the answer a general demurrer has been filed. All the steps taken by the county offi- cers, in relation to the election, the canvass of the vote, and making of the subscriptions, if done at a time when the law authorized them to be done, appear to be regular. The laws of Kansas authorize counties to subscribe for stock in railroad companies, and pay for the same with bonds of the character of those from which the coupons in suit are detached. The amount of indebtedness which may thus be created is fixed by statute: "No county shall issue, under the provisions of this act, more than one hundred thousand dollars, and an additional five per cent, in- debtedness, of the assessed value of such county, and In no case shall the total amount issued to any railroad company exceed four thousand dollars per mile, for each mile of railroad constructed in said county." Comp. Laws 1885, p. 783, § 68. The courts of Kansas, in the construction of this act, have held that, after a proper petition has been filed, the board of commis- sioners of the county can be compelled to make an order for the holding of an election and submit the proposition of voting bonds to the voters of the county. They have also held that, after a subscription has been made, the officers designated by the statute to sign the bonds can be compelled to sign the same. In addition to this, they have held that, after the subscription has been properly made and accepted, this creates a binding contract which can be enforced by law. As will be seen, the amount of bonds which may be issued by any county, under the law, is $100,000, and an additional 5 per cent, in- debtedness of the assessed value of such county. The assessed value of the defendant county, on the 23d of March, 1886, was .$236,- 662. The greatest amount of bonds then which could be issued, under the act, was $111,833.10. There were two propositions for bonds before the board of commissioners. — the one for $115,000 to one company, and $120,- 000 to another, the two amounts aggregating $2.35,000; and the assessed value of the coim- ty was only $236,662. Both propositions were submitted to the voters at the same election, and both were declared carried. Either of the sums so voted is gi-eater than the limit prescribed by the act. But it was held, in \ Chicago, K. & W. R. Co. v. Commissioners of Osage Co., 38 Kan. 597, 16 Pac. 828, that the voting for more bonds than could be lawfully \ issued did not invalidate the vote, and that I bonds, under such a vote, might be issued to the lawful hmit. Hence, the question of the amount voted passes out of the discussion. On the 25th of June, 1886, the board of com- missioners authorized the county clerk to make a subscription to the Chicago, Kan.sas & Nebraska Railway Company for 1,200 shares, of $100 each. The order is as follows: "And the said board of commissioners of said county, as provided for in said proposition, and by law in such case, do now and hereby order and direct that the county clerk of said county of Kiowa, state of Kansas, do and shah, for and in behalf and in the name of said county of Kiowa, at once, subscribe, and make due and proper subscription of, twelve hundred shares, of one hundi'ed dollars each, to the capital stock of the said Chicago, Kan- sas & Nebraska Railway Companj-," etc. In pursuance of this order, and on the same day, the county clerk executed the following in- strument: "Whereas, on the 25th day of June, 1886, the board of county commission- ers of the county of Kiowa, in the state of Kansas, did make and enter of record, upon the jovu'nals of its proceedings, an order di- recting the coimty clerk of said county of Kiowa, for and in the name and on behalf of said county of Kiowa, to make due and proper subscription to twelve hundred shares, of one hundred dollars each, of the capital stock of the Chicago, Kansas & Nebraska Railway Company," etc.: "Now, therefore, I, J. M. Crawford, county clerk of the coimty of Kiowa, state of Kansas, in pursuance of the statute in such case made and provided, and in obedience to the said order of the board of county commissioners, do hereby subscribe to, and make subscription of. twelve hundred shares, of one hundred dollars each, of the capital stock of said Chicago, Kansas & Ne- braska Railway Company, for and on behalf of and in the name of the county of Kiowa, CAN POAVEIi TO ISSUE BONDS BE IMPLIED. 193 state of Kansas, and I do hereby take twelve Imudred shares of the capital stock of said lailway company, in the name of said county, and for its behalf and benefit," etc. "In tes- timony whereof, I have executed, and signed and executed, this instrument and subscrip- tion, b3' subscribing my name hereunto, as county clerk of said county, and attest in.u; the same under the seal of the said county of Kiowa, state of Kansas, at my office in Greensburg, the county seat of said county, this 25th day of June, ISSO. [Signed] J. N, Crawford, County Cleric of the County of Kiowa, State of Kansas. Approved: J. W. (iibson, J. L. Hadley. Board of County Com- missioners of Kiowa County, Kansas." The action of the county clerk, in executing this instrument, on the day of its execution, was reported to the board of county commis- sioners, and it made the following order thereon: "The clerk of said county thereupon informs the board of county commissioners of said county of Kiowa that, in obedience to the foregoing order, he has made the subscription of stock, as required by said order, and now submits the same for approval, which is done by said board, and the said board further orders that the subscription, so made by the county clerk, be copied and spread upon the minutes and record of proceedings of said board, and that said subscription be delivered to said company, as provided in the foregoing order, and it is accordingly so done." This action of the board of county commis- sioners, in connection with that of the county clerk, on the 2.5th day of June, ISSG, imder the adjudications of the courts of Kansas, con- stituted a concluded contract, if, at the time these acts were performed, the parties per- forming them had the power to act for and bind the county. On the 2d of August, 1SS6, the board of commissioners of said county made the fol- lowing order: "Board ordered clerk to sub- scribe for eleven hundred and fifty shares of the Kingman, Pratt & Western Bailroad Company, at the value of one hundred dollars each, for the benefit of said county of Kio- wa." On the same day the county clerk exe- cuted a similar instrument to that mentioned in the case of the subscription to the Chicago, Kansas & Nebraska Kailway Company. Waiving, for the time being, the question of whether the board of commissioners of Kiowa county had the power to order a vote on the proposition submitted, and whether they could make a binding subscription, upon which bonds might thereafter be issued, un- til after the expiration of one year, the ques- tion is, which of these subscriptions shall stand? The supreme court of Kansas has settled this precise question. In Chica"go, K. & W. R. Co. V. Commissioners of Osage Co., 38 Kan. 597, IG Pac. S2S, which was a pro- ceeding by mandamus to compel the issue of bonds voted to that company, it appears there had been two votes, as in the case at bar, to different companies, and the amount ABB.CORP.— 13 of the two. when added together, or taken singly, exceeded the amount of bonds which might lawfully be issued. The defense was a subscription had been made to the Kansas, Nebraska & Dakota Railroad Company, and that a delivery of bonds had been made to that company in payment of such subscrip- tion, and that this had exhausted the full amount which might be lawfully issued by the respondent in aid of railroads. The court, in speaking in response to that conten- tion, say: "No county can, under any cir- cumstances, issue more than $100,000 and an additional 5 per cent, indebtedness of the as- sessed value of each county. This is the limit of their power to issue bonds, for rail- road purposes, under the provisions of the act. * * * This issue may be to only one railroad company, or it may be divided be- / tween several; but, if the full amount is at I first subscribed to some one railroad company, I it [the county] has no power to subscribe to the capital stock of any other railroad company. * * * if jt subscribes the full f amount allowed to one company, its power is / exhausted, and it cannot subscribe to others." ' This being true, it follows that all the bonds issued to the Kingman, Pratt & Western Rail- I road Company are void, because the limit of / bonds wliich might lawfully issue had been ( reached and exhausted when the subscrip- tion was made, on the 25th of June, 18S6. to / the Chicago, Kansas & Nebraska Railway | Company. The bonds issued to the King- man, Pratt & Western Railroad Company re- cite that they are issued under an act entitled "An act to enable counties * * * to aid in the construction of railroads and to repeal section eight of chapter thirty-nine of the Laws of 1S74," approved February 25, 1876, and by acts of said legislature amendatory thereof and supplemental thereto. This act informed every dealer in bonds purporting- to be issued under the provisions of that act that no more than $100,000 and the 5 per cent, therein mentioned could be issued there- under. An examination of the records of the county would have shown the power to issue bonds had been exhausted. At this late day it is hardly worth while to I indulge in an extended citation of authori- I ties in support of the proposition that eveiy | dealer in municipal bonds which, upon their face, refer to the statute under which they were issued, is bound to take notice of the statute and all its requii-ements, and of an equally well-settled rule that, if there is a want of iwwer to issue the bonds, they are in- valid in the hands of innocent purchasers, re- gardless of other recitals therein contained. In Nesbit v. Independent Dist, 144 U. S. G17, 12 Sup. Ct. 74G, a statute was under consid- eration which declared that "no county shall become indebted, in any manner, or for any purpose, to any amount, in the aggregate ex- ceeding five per centum on the value of the taxable property within such county"; and the court say: "She was bound to take no- 194 MUNICIPAL, SECURITIES. tice of the value of taxable property within the district, as shown by the tax list." A like question arose in Sutliff v. Commissioners, 147 U. S. 2M, 13 Sup. Ct. 318, imder a similar provision; and the court held the purchaser of the bond was bound to take notice of the valuation of the taxable property of the county. As against both classes of bonds from which the coupons in this suit are detached, the objection is made that Kiowa county could not vote for or issue bonds within one year after its organization. On the other hand, it is contended that there is nothing in the law which inhibited the defendant county from voting to issue bonds within one year after its organization, and that the inhibi- tion in the statute in relation to new counties relates, solely, to the issuing of bonds. In that behalf it is urged that the proviso which contains the limitation against the issue of bonds by counties which have not been organ- ized one year does not withhold the power to vote therefor. The most that can be said of a contention of this kind is that the power claimed on behalf of a new county to vote for bonds within a year after its oi'ganization is to be found in the silence of the statute. It is conceded that, in the matter of issuing bonds, counties which have been organized Jess than one year are not upon an equality \ with covmties that have passed the year of probation. \Yhile this is conceded, it is de- nied that there is any inequality as to the power of voting to issue bonds. The rule of law in relation to the issue of negotiable bonds is that, whenever the power to issue is called in question, the authority to issue must be clearly shown, and will not be deduced from uncertain inferences, and can only be conferred by language which leaves no rea- sonable doubt of an intention to confer it Brenham v. Bank, 144 U. S. 173, 12 Sup. Ct. 559; Ashuelot Nat. Bank of Keene v. School Dist. No. 7, Valley Co., 5 C. C. A. 4G8, 5G Fed. 197. It seems to me that the power claimed for the issue of the bonds in question rests entirely iqwn uncertain inferences, rather than upon afRrmative language, which leaves the mind free from doubt, as to the exercise of the power claimed. In the year 1876, the legislature of Kansas passed an act, of a gen- eral nature, providing for the organization of new counties. In that act there vwas a provision which declared "that no bonds, of any kind, shall be issued by any county, township or school district, within one year after the organization of such new county." On the 18th of February, ISSG, it passed an- other act. covering the same subject as the act of 1870. This new act was a revision of the old, required a greater population, and threw some safeguards around the organiza- tion of new counties which were not in the act of 187G. In addition to this, it placed two provisos m the act of 1886, which are as fol- lows: "ProvidtMi, that none of the provi- sions of this act shall prevent or prohibit the county of Kiowa * * * from voting bonds, at any time, after the organization of said county. And provided, further, that no bonds of any kind shall be issued by any county, township or school district, within one year after the organization of such new county." While this act was in force, on the 22d of June, 1S86, an election was held in Kiowa county, and a vote was taken on a proposition to subscribe $115,000 to the King- man, Pratt & Western Railroad Company and $120,000 to the Chicago, Kansas & Ne- braska Railway Company, and the vote was canvassed on the 25th of June, ISSG, and the vote for both companies declared cai'ried. On the 10th of February, ISSG, the legisla- ture passed an act, entitled "An act to restore or re-create the county of Kiowa," and on the ISth of February, 1886, another act was passed, making Kiowa county a part of the Thirty-Ninth senatorial district, and on the 19th another act, placing that county in the Twenty-Fourth judicial district. These acts have no material bearing on this case, and are referred to only to show, hereafter, that the legislature had knowledge and took cog- nizance of the fact that the people residing upon the territory out of which the county was created expected, at an early day, to have a county organization, and why the leg- islature attempted to permit Kiowa county to exercise a power which it did not grant to other new counties, which had not obtained a perfect county organization. Kiowa coun- ty, at the date of these acts, had not become an organized county, under the laws of the state. The census taker, appointed by the governor, on the 19th of March, 1S8G, filed his report, and on the 23d of ^Nlarch. 1886, the governor made proclamation, that there were 2,704 bona fide inhabitants in said county, that 549 of them were householders, and that the value of the taxable property in the coun- ty was $236,662, and appointed three commis- sioners and a county clerk for said county. It is conceded that these officers qualified on the 27th of March, 1886, and, under the law, that from and after that date it was organ- ized into what under the law of Kansas is call(>d a "new county," and that it might do and perform whatever a new county might do. Assuming, for the sake of argumeut. that the language of the proviso, found in the act of 1886, which declares that "none of tlie pro- visions of this act shall prevent or prohibit the county of Kiowa, or any township or school district therein, from voting bonds at any time after the organization of said coun- ty," confers power on that county to have voted bonds before it had been organized one year, the question arises, as to whether the legislature could, in the manner it so attempt- ed, effect that object? Section 17 of article 2 of the constitution of the state declares: "All laws, of a general nature, shall have uniform operation throughout the state, and in all cases where a general law can be made CAN POWEU TO ISSUE BONDS BE IMPLIED. 19( applicable, no special law shall be enacted." The supreme court of Kansas, in Darling v. Rodgei-s, 7 Kan. 598, declared that this pro- vision of the constitution of the state was mandatorj', and not directory. That the act in relation to the organization of new coun- ties is a general law. in the sense that word is used in the constitution, does not admit of doubt. In Robinson v. Perry, 17 Kan. 248, an act declared: "All persons owning or having sheep, shaU keep the same from running at large, except in this act otherwise provided: provided, that the provisions of this act shall not apply to the County of Doniphan." This act was amendatory of an act, passed in 1869, which inhibited sheep from running at large In certain counties, unless the legal voters of those counties should, by vote, otherwise de- clare. The court held that the act of 18G9, which exemptea the counties named, as well as the act in question, interfered with the uniform operation of the fence act, was void, and was obnoxious to the provision of the constitution quoted. Judge Brewer, in dis- cussing this provision of the constitution, uses this language: "The language is plain and positive that all acts of a general nature shall have uniform operation. No discretion is left to the legislatm-e or the courts. * * * Now, the fence law of 18G8 is, without ques- tion, a law of a general nature, and of uni- form operation throughout the state. No part of its terms are repealed by the herd law. Tf the latter act be valid, the former no longer has a uniform operation through- out the state. That which was a general law, and had the required uniformity of op- eration, still remains the general law, but it is deprived of such uniformity. * * * Tested by this rule, the fence act of 1868 is valid, and the herd law of 1870 void. * * * But it is contended that the two clauses of this constitutional section must be construed together, and the iwsitive requirements of the first clause considered as limited by the discretion given by the latter; * * * that power to pass special laws carries with it the power to limit the operation of the general law by special laws. * * * if the legisla- ture can, by simply specifying the locality over which a law shall operate, change a law of a general nature, the obligations of this valuable constitutional provision are weaker than a rope of sand." / Now, what is the material difference between the acts referred to by Judge Brewer, and one that reafLs as follows: "No bonds of any kind, shall be issued by any county, within one year after the organization of such new coimty: provided, that the provisions of this act shall not apply to the county of Kiowa." The act of 1SS6 was evidently enacted as a general law. and intended to apply to the organization of all new counties througliout the state. To sustain such a proviso would limit its uniform operation, and give to one new county a ix)wer or privilege which the other new counties were not permitted to have. It may be urged that the power conferred on Kiowa county may be sustained by treating the act as special. To do this would render the act obnoxious to that provision of the constitution which requires that no act shall contain more than one suliject, which shall be expressed in the title. It is contended by the defendant that the provisos in the act of 1886 are repugnant to each other, and that the last one must prevail. That contention is not assented to. But for the fact that it destroys the uniform operation of the great body of the act of 18.S6, the pro- viso might M-ell stand. Kiowa county, as has been stated, was what is tei-med "duly organ- ized" on the 27th of March, 1S8<;. Having ar- rived at the conclusion tliat the proviso in re- lation to that county is void, we are confront- ed with the other proviso, which reads: "No bonds of any kind shall be issued, by any county, township or school district, within one year after the organization of such county." All law writers agi'ee that, in the construction of a statute, the intention of the legislature should prevail, if it can be ascertained. All agree that the intent may be gathered fi'om the act itself, and the supreme court of the United States have examined the coin-se of a bill in the legislative lx)dy, and previous statutes on the same subject, for the purpose of arriving at that intent. The defendant insists that the proviso which declares that "no bonds of any kind shall be issued by any county, township or school dis- ti-lct, within one year after the organization of such county," does not authorize or warrant a new county to take any of the preliminary steps towards the issuing of bonds until after the expiration of one year after the organiza- tion, and that, to give the power to issue bonds, three prerequisites must consecutively follow each other: (1) the resident taxpayers of the county must present the character of petition, described in the law, to the board of commis- sioners; (2) they must order an election, and that a majority of the votes cast thereat must he in favor of the issue of the bonds: i?,) that the board of commissioners make a valid sub- scription to or for the stock of the company in wiiose favor the vote was had. These prereq- uisites are common knowledge, especially by dealers in bonds, and by the membei-s of a legislature; for the courts of every state in the Union, as well as the courts of the United States, have from time to time announced these propositions, in cases where the authority to issue was predicated uiwn the conditions stat- ed. That this general knowledge exists is evi- denced by the proviso which the legislature of Kansas incorporated in the act of 1SS«J in re- lation to Kiowa coimty. It had under con- sideration a general act in relation to the or- ganization of new counties. It had knowlelge of the fact, as its legislation shows, that Kiowa county, or rather its people, were seeking to have a county organization at an early day. It was revising and amending an act in rela- tion to the organization of new counties, in 196 MUNICIPAL SECURITIES. \Yhicli there was a proTision that no bonds should be issued by any new county within one year of its organization. It proposed to, and did, re-enact that proviso; but at the same time it desired to permit the then unorganized county of Kiowa to exercise a function which it was not willing should be exercised by any other new county to be formed thereafter. That act or thing, which it intended to permit Kiowa county to do, was whatV The answer is that it intended to give to that county the privilege, not of issuing bonds within a year of its organization, but to vote for the issue of bonds within that year. If the proviso, as it stood in the act of 1S7G, and as carried into that of 1SS6, conferred upon new counties the right or privilege of voting for bonds within the first year of its organization, why was an attempt made, by a separate proviso, to au- thorize it to do what it is now claimed it might have done without the proviso? The proviso in relation to Kiowa county evinces an intent. The other proviso shows another. The first intent was to allow Kiowa county to vote be- fore the expiration of the probationary year. The other shows an intent that the new coun- ties to be thereafter organized should not have that power. The question of allowing new counties to vote for bonds within the year of minority was presented by the case of Kiowa county, and it is plain, from what was done, that there was no intention of extending a like privilege to other new counties. If it intended to have extended the privilege of voting at an earlier period than one year, it could have made that intent plain by saying that "nothing herein contained shall prevent any county from voting for bonds within a year of its organiza- tion." No such language is found, and no such power was intended to be granted. The view here stated is borne out by subse- quent legislation on the same proviso. In 1887 the greed to vote bonds made its appearance before the legislature. The result was that the proviso was amended so as to read: "No bonds, except for the erectioji and furnishing of school houses, shall be voted for and issued by any coimty or township, within one year after the organization of such county." Here the question of voting for bonds within the year was again up for consideration, and the right was extended, not to counties or town- ships, but to school districts. If the school dis- tricts had the right to vote for bonds, under the act of 1880, within one year after the or- ganization of the county, why is it that. In 1887, those who desired that power for the school disrricts desired the law amended? If a school district had the power to vote before the expiration of a year, under the act of 1880, the counties and townships had. It must be borne in mind that the new counties, under the law of Kansas, were not clothed with all the powers of the older counties. The circuit court of appeals for this circuit, in the case of Coffin v. Commissioners, 6 C. C. A. 288, r>7 I'-ed. I'.M, had occasion to speak of the powers of the new counties coming into being under the act of 1886, and say: "The proviso [in the act of 1887] does not, as counsel suppose, impose a limitation upon the exer- cise of power which becomes vested in a new- ly-organized county, as soon as counnissinners are appointed, but its effect is to prevent such power from being vested until a year after its organization." If it be true that the power I does not vest until a year after the organiza- / tiou, it follows, as night follows day. that there / was no power in Kiowa county or its officers I to order or hold an election; and, if this be' ti'ue, the bonds are void. The supreme court of Kansas, in speaking of the nature and powers possessed by coun- ties during the first year of the organization, say: "Now, it will be admitted that, when the temporary county officers appointed by the governor have qualified and entered upon the discharge of their duties, the county is oi-- ganized. But such organization is not a com- pleted organization; or, at least, it is not an organization sufficient for all purposes. At that time the county has no county attorney, no clerk of the district court, no county treas- urer, no superintendent, no county surveyor, and no probate judge." No presumption can be indulged in favor of such an organization unless it is given in plain and unmistakable language. Having held that the proviso in the act of 18SG, which attempted to authorize or permit KioAva county to vote for bonds be- fore it had been organized one year, is ob- noxious to the constitution of the state, where is the power to be found which au- thorized a vote and subscription at the time these acts were performed? It is urged that the general law authorized counties to make such vote and subscription, and under that the power existed, because the inhibition in the proviso in the act of 1880 only prohibits the issuing, and not the voting, of bonds with- in the year. To say that such power vested, to the extent of allowing a vote to be taken, within the year, is to accept the theory that the proviso is a limitation, which the circuit court of appeals declares is not true. It is urged by the plaintiff that the county is estopped, by certain recitals in the bonds,, from setting up a defense to these bonds, liecitals as to matters of fact sometimes ope- rate as an estoppel, in the case of innocent purchasers for value; but recitals as to the existence of a law and the power conferred by it, which are false, cannot create an es- toppel. The bond recites that it was issued under a certain act. and that the vote and subscription was had under and in pursuance thereof. The circuit court of appi'als have decided that that act did not go into effect, as to newly-organized counties, until one year after their organization. In Anthony v. Jas- per Co., 101 U. S. 097. the court say: "Deal- ers in municipal bonds are charged with no- tice of the laws of the state granting power to make the bonds they find on the mai'ket." In Dixon Co. v. Field, 111 U. S. 92, 4 Sup. Ct. 315, the question of estoppel by reason of CAN POWER TO ISSUE BONDS BE IMPLIED. 197 I'ocitiils in tlio bonds was under consideration, and the court say: "This does not extend to or cover matters of law. All parties are equally bound to know the law, and a certifi- cate recitinj; the actual facts, and that there- by- the bonds were conformable to law, when, judicially speaking thoy are not, will not make them so; nor can it work an estoppel upon the county to claim the protection of the law. Otherwise, it would always be in the power of a municipal corporation to which tlie power was denied to usurp the forbidden authority, by declaring that its assumption was within the law. This would be the clear exercise of lesisk^tive power, and would sui> pose such corporate bodies to be superior to the law itself." In National Bank of Commerce v. Town of Granada. 4 C. C. A. 212, 54 Fed. 100, the cir- . cuit court of appeals for this circuit say: "It has never yet been held that a false recital in a bond can make that a law which never was law." The same theory of estoppel now ui'ged was insisted on in Coffin v. Commissioners, G C. C. A. 2S8, 57 F.^d. 137, a case wherein the power of newly-organized counties, under the very act under consideration in this case, was passed npon, and the court say: "Even if we were able to concede, according to the con- tention of counsel, that a newly-organized county, in the state of Kansas, is endowed with the power, during the first year of its existence, and by virtue of the appointment and qualification of commissioners, to issue funding bonds, and the proviso is a mere lim- itation as to time of the mode of exercising the power, still we would not be able to con- cede the further proposition of counsel that purchasers of bonds issued by such counties are not required to ascertain the age of the county, but may rely upon the recitals which such bonds happen to contain." And, in the concluding portion of the opinion, this lan- guage is foimd: "It was at least incumbent on the purchaser of the bonds to ascertain that Kearney county had become a recog- nized political subdivision of the state. That fact had to be ascertained to enable the bond- holder to further ascertain if it had powei', under any circumstances, to issue bonds. A casual examination of the record kept in the governor's office would have disclosed the fact that the commissioners were not ap- pointed until April 3, 1888, which was less than four months previous to the day on which the bonds bear date." Both series of bonds involved in this suit on their face recite that they were issued under and in pursuance of an act which, it has been seen, was not applicable to a new county, such as the defendant was, and in pursuance of a vote had on the 22d of .Tune, ISSG. If the holders of these bonds had examined the , record in the executive office, they would have found the commissioners were appoint- ed on the 23d of March, 18S6, and that the ' vote for the issue of the bonds was had in three months thereafter. If they had exam- ined the act regulating the creation of new counties, they would have found, as has the circuit court of appeals, that such counties did not become vested with the general pow- ers conferred by the act recited in the bonds until one year after their organization, and that Kiowa county did not have power to contract for the issue of the bonds in suit. The bonds issued to the Chicago, Kansas & Nebraska Kailwaj' Company contain, among other things, this provision: "This is one of a series of one hundred and twenty bonds, of like tenor, date, and amount [.$1,000 each], numbered from one to one hundred and twen- ty, inclusive, issued to the Chicago, Kansas & Nebraska Railway Company." An examina- • tion of the appraisement of the taxable prop- erty of Kiowa county would have shown that Kiowa county, at the time it contracted to • issue the 120 bonds was without authority to | issue more than ^111,000 of bonds. It ap- ' pears, from the pleadings, however, that the whole nimiber of bonds have not been issued. If the views expressed in this opinion are cor- rect, it would serve ro useful purpose to enter upon a discussion of the subject suggested. That a vote to issue bonds, not taken under I the sanct;on of law authorizing the same, 1 will not confer power to issue bonds, is well 1 settled in George v. Tow'nship, IG Kan. 72, and in McClure v. Township, 94 U. S. 429. In conclusion, it may be stated that the i power of the defendant county to vote, on the , 22d of June, 188G, for the issue of these bonds, , is not free from doubt. On the contrary, the , power claimed can only be deduced from the ' silence of the statute and the absence of neg- ative words. The power to issue the class of bonds in suit must rest on a more firm foun- dation. Entertaining these views, the demur- rer is overruled. 198 MUNICIPAL SECURITIES. DODGE V. CITY OF MEMPHIS. (51 Fed. 165.) Circuit Court, E. D. Missouri, N. D. May 24, 1892. At law. Action by James B. Dodge against the city of Mempliis, Mo., on certain munic- ipal l)onds. Heard on demurrer to the plea. Overruled. Felix T. Hughes, for plaintiff. The contract of subscription in the case at bar was valid, and expressly authorized, and the bonds were not wholly void, but valid, ex- cept as to their commercial quality, in which case the contract will be enforced in so far as it is valid, and the provision in the contract of subscription to pay in bonds will be held, in effect, a contract to pay in money at the time and under the conditions imposed in the order of subscription. Gelpcke v. Dubuque, 1 Wall. 222; author's views, subdivision 6, § 125, (4th Ed.) Dill. Mun. Corp.; Mayor v. Ray, 19 Wall. 46S; Hitchcock v. Galveston, 9(3 U. S. 350; Little Rock v. Merchants' Nat. Bank, 98 U. S. 308: Wall v. Monroe Co., 103 U. S. 78; Clai- borne Co. V. Brooks, 111 U. S. 400, 4 Sup. Ct. 489; Wells v. Supervisors, 102 U. S. 625; Nor- ton V. Dyersburg, 127 U. S. 160, 8 Sup. Ct. 1111; Hill V. City of Memphis, 134 U. S. 198, 10 Sup. Ct. 562; Cause v. City of Clarksville, 5 Dill. 177, Fed. Cas. No. 5.276; Babcock v. Goodrich, 47 Cal. 488; State Board v. Citi- zens' St. Ry., 47 Ind. 407; Allegheny City v. McClurkan, 14 Pa. St. 81; Maher v. Chicago, 38 111. 266; Oneida Bank v. Ontario Bank, 21 N. Y. 490; Argenti v. City of San Francisco, 16 Cal. 256; Bank v. North, 4 Johns. Ch. 370; Ketcham v. City of Buffalo, 14 N. Y. 356; Ev- ansville, etc., R. Co. v. City of Evansville, 15 Ind. 395; Mullarky v. Cedar Falls, 19 Iowa, 21; Sheffield School Tp. v. Andress, 56 Ind. 162; opinion by Mr. Justice Story in Bank v. Patterson. 7 Cranch, 305; Knapp v. Mayor, 39 N. J. Law, 394. The promise to give bonds in payment was, at furthest, only ultra vires, and, in such case, though specific performance of an engagement to do a thiug transgi'essive of its corporate power may not be enforced, the corporation can be held liable on its contract. Oneida Bank v. Ontario Bank, 21 N. Y. 490; Curtis v. Loavitt, 15 N. Y. 95-90. The latter case espe- cially decides that, where the right to make the contract exists,— but the bonds or security tak- en are unlawful,— the right to disaffirm the entire contract, and sue for "money had and received," or to only disaffirm the illegal se- curity and sue upon the contract, rests witli the holder of the security, and not with the corpo- ration which gave it. Tlio contract can be enforced subject to the equities between the original parties, if there are any. Hackettstown v. Swackhamer, 37 N. J. Law, 191; Dill. Mun. Coip. (4th Ed.) §§ 120-12;j; Daniel, Neg. Inst. (2d lOd.) § 420; Knapp V. Mayor, 39 N. J. Law, 394. The ground has been broadly taken that, for debts and obligations lawfully created, any coriwration. public as well as private, has the implied authority, unless prohibited by stat- ute, charter, or by-law, to evidence the same by the execution of a bill, note, or bond, or other contract; that the power to contract a debt carries with it the power to give a suita- ble acknowledgment of it; and there is no rule of law, in the absence of a statute limiting the length of the credit. Municipality v. Mc- Donough, 2 Rob. (La.) 244 (1S42;) Bany v. Merchants' Exeh. Co., 1 Sandf. Ch. 280; Cur- tis V. Leavitt, 15 N. Y. 9; Smith v. Law, 21 N. Y. 299; Bank v. Carpenter's Adm'rs, 7 Ohio, 31; Ketcham v. City of Buffalo, 14 N. Y. 356; Douglass v. Mayor, etc., 5 Nev. 147; City of Richmond v. McGirr, 78 Ind. 192; Evansville, etc., R. Co. v. City of Evansville, 15 Ind. 395; Sheffield School Tp. v. Andress, 56 Ind. 162; Dill. Mun. Coiid. (4th Ed.) 443; 2 Kent, Comm. 224; Beach, Ry. Law, § 223; Green's Brice, Ultra Vires, p. 122; Chicago, B. & Q. R. Co. V. City of Aurora, 99 111. 211. Henry A. Cunningham, for defendant. THAYER, District Judge. The petition contains three coimts. Tlie first count alleges that in February, 1871, the town of Memphis, Scotland county. Mo., subscribed for .$30,000 of the capital stock of the Missouri, Iowa & Nebraska Railway Company, pursuant to pow- • er conferred by an act of the general assem- bly of Missouri, approved February 9, 1857, to incorporate the Alexandria & Bloomfield Railroad Company; that such sub.scription was authoi'ized by a majority vote of the people of the town of Memphis, at an election held for that purix)se; that as an evidence of such sub- scription coupon bonds to the amount of ?30,- 000 were issued and delivered by the town, which were to run for 20 years, and which matured on March 1, 1S91. It is further avei'- red that the town of JNIemphis received the stock in question, but subsequently sold it, and that for some yeare it paid the interest on its bonds; that it also appointed an agen/t to represent the town at meetings of the stock- holders of the railway company. The peti- tion then sets out one of the bonds in hnec verba, which appears to be a negotiable bond, in the ordinary form, such as are usually is- sued by municipal coi-porations; and avers that the plaintiff is the holder of 22 of such bonds, (giving their numbers,) and demands judgment for the amount due on the subscrip- tion as shown by the bonds, together with in- terest from March 1, 1891. The theory of the plaintiff's counsel seems to be that the first count of the petition is a suit on the bonds, treating them as nonnegotiable instruments; that the bond evidences the contract of sub- scription; and that the plaintiff is entitled to sue on the same, ignoring their negotiable quality precisely as if they were an ordinary nonnegotiable contract, which the town was authorized to make and had made. That the THERE MUST BE EXPRESS POWER. 199 town of Memphis hail uo authority to issue negotiable bonds in payment for the stock subscription is conceded. Hill v. Alemphis, 134 U. S. 198, 10 Sup. Ct. 562. To the first count of the petition the defendant interix>ses several different pleas, including a plea of the statute of limitations, and to the latter plea plaintiff demurs. I It may be conceded that if the first count of the petition is proi>erly founded on the bonds, calling them either bonds or the contract of subscription, then the statute of limitations is not well pleaded, because such bonds did not mature until March 1, 1S91. and neither the 5, 10, nor 20 years' bar of the statute is ap- plicable. But, on the other hand, if a suit cannot be maintained on the bonds according to plaintiff's contention, then the first count of his declaration is bad, and the demurrer to the plea is not tenable for that reason. I have looked through all of the federal cases cited by plaintiff's attorney in support of his con- tention that where negotiable bonds are issued by a municipal corporation without authority of law, and are void as negotiable instruments, a suit may nevertheless be maintained on sucli bonds, under some circumstances, as nonnego- tiable instrimaents, and I have been unable to find a single paragraph in any of the decisions that fairly supports such a doctrine. The au- thorities show that, if negotiable paper is ut- tered by a municipal corporation without au- thority of law, it is void, and a suit cannot be maintained thereon for any purpose. Mayor V. Ray, 19 Wall. 4GS; Hitchcock v. Galveston, 96 U. S. 350; Little Rock v. Merchants' Nat. Bank, 98 U. S. 308; Wall v. Monroe Co., 103 U. S. 78; Hill v. City of Memphis, 134 U. S. 198, 10 Sup. Ct. 562; Merrill v. Monticello, 138 U. S. 673, 11 Sup. Ct. 441. They show, no doubt, that when a munic- ipal corporation sells bonds which are void, and receives the money, it may be compelled to restore it in an action for money had and received. So when a mimicipal corporation is authorized to purchase property for any pur- pose, or to contract for the erection of public buildings or for any other public work, and it enters into such authorized contract, but pays for the property acquired or work done in ne- gotiable securities which it has no express or implied power to issue, it may be compelled to pay for that which it has received in a suit brought for that puipose. In no case, how- ever, does it appear that a suit has been sus- tained on a void bond, treating it as nonnego- tiable, and as something entirely different from what the parties intended it should be. As the court understands the cases, suit must b'e brought on the implied promise which the law raises to pay the value of that which the municipality has received, but has in fact not paid for, because the securities issued in pre- tended payment were void. The demurrer to the plea must accordingly be overruled, because the first count is bad if it is regarded as stat- ing a cause of action on the bonds. If it is treated as a suit to recover the value of cer- tain stock which the town lawfully subscribed and acquired, and has not paid for, then the plea of the statute may be a good plea. At all events, it does not affirmatively appear that the plea in that event is untenable. The demurrer is overruled. 200 MUNICIPAL SECURITIES. OITY OF EVANSVILLE v. DENNETT. (16 Sup. Ct. 613, 161 U. S. 434.) Supreme Court of United States. March 2, 1S96. No. 509. On a Certificate from the United States Cir- cuit Court of Appeals, Seventh Circuit. Action by William S. Dennett against the city of Evansville on certain bonds issued by the city. There was a judgment for plaintiff, and defendant brought error to the circuit court of appeals, which certified certain ques- tions to the supreme court. Geo. A. Cunningham, for plaintiff' in er- ror. George A. Sanders and A. W. Hatch, for defendant in error. Mr. .Justice HARLAN delivered the opin- ion of the court. This case is here upon a certificate by the judges of the United States circuit court of appeals for the Seventh circuit. It appears from the statement of facts ac- companying the questions propounded to this court that on May 1, 1868, the city of Evans- ville issued its bonds, bearing date on that day, to the amount in the aggregate of $300,- 000, in payment of its subscription to the stock of the Evansville, Henderson & Nash- ville Railroad Company. Each bond was for the smn of $1,000, was made payable to the bearer 30 years after date, with interest on presentation of the coupons attached, and was of the tenor and effect fol- lowing: "$1,000.00 No. . "United States of America. "City of Evansville, State of Indiana. "On account of stock subscription on the Evansville, Henderson and Nashville Railroad Company. "The city of Evansville, in the state of In- diana, promises to pay to the bearer, thirty (30) year« after date, the sum of one thousand dollars, at the office of the Farmers' Loan and Trust Company, of New York, with interest thereon at the rate of seven per centum per annum, payable semiannually at the office of the Farmers' Loan and Trust Company, in the city of New York, on the first day of Novem- ber and the first day of May of each year, on presentation and delivery of the interest cou- pons hereto attached. This lx>ing one of a series of three hundred bonds of like tenor and date issued by the city of Evansville, in payment of a subscription to the Evansville, Henderson and Nashville Railroad Company, made in pursuance of an act of the legisla- ture of the state of Indiana and ordinances of the city council of said city, passed in pur- suance thereof. The city of Evansville here- by waives aU benefit from valuation or ap- praisement laws. "In testimony whereof, the said city of EJvansviUe has hereunto caused to be set its corporate seal, and these presents to be sign- I ed by the mayor of said city, and countersign- ed by the clerk thereof. "Dated the 1st of May, 1868. "William H. Walker, Mayor. "A. M. McGriff, City Clerk." On December 1, 1870, the city also issued bonds, amounting in the aggregate to $300,000, in payment of its subscription to the stock of I the Evansville, Carmi & Paducah Railroad ' Company, each bond being dated December ' 1, 1S70, for the sum of $1.0ou, payable to the Evansville, Carmi <& Paducah Railroad Com- pany or bearer, December 1, 1895, with inter- est on presentation of the coupons attached. Each of those bonds was in the following I form: i "Total amount authorized, three hundred thousand dollars. 'No. $1,000.00. "City of Evansville, State of Indiana. "Evansville, Carmi and Paducah Railroad Company. "By virtue of an act of the general assem- bly of the state of Indiana, entitled 'An act granting to the citizens of the town of Evans- ville, in the county of Vanderburg, a city charter,' approved January 27th, 1847; and by virtue of an act of the general assembly of the state of Indiana, amendatory of said act, approved March 11th, 1867, conferring upon the city council of said city power to take stock in any companj' authorized for the pur- pose of making a road of any kind leading to said city; and by virtue of the resolution of said city council of said city, passed October 4, 1869, ordering an election of the qualified voters of said city upon the question of sub- scribing three hundred thousand dollars to the capital stock of the Evansville, Carmi and Paducah Railroad Company, and said elec- tion, held on the 13th day of November, 1868, resulting in a legal majority in favor of such subscription; and by virtue of a resolution of said city council passed May 23, 1870, order- ing an issue of the bonds of the city of Evans- ville (of which this is a part) to an amount not to exceed three hundred thousand dol- lars, bearing interest at the rate of 7 per cent, per annum, for the purpose of paying the sub- scription as authorized above. The said city of Evansville hereby j. -knowledges to owe and promises to pay to the Evansville, Carmi and I'aducah Railroad Company, or bearer, one thousand dofiars, without relief from valuation or appraisement laws, payable on the 1st day of December, A. D. 1895, at the Farmers' Loan and Trust Company, in the city of New York, with interest from the date thereof, at the rate of 7 per cent, per annum, said interest payable semiannually on the first day of .Tune and the first day of Deceml^er, on pi'esentation of the proper coupons for the same at said bank. The faith and credit and real estate revenues and all other re- sources of the said city of Evansville are hereby solemnly and irrevocably pledged for ESTOPPEL BY COURSE OF DEALING OE RECITALS IX BOXDS. 201 tho payuieut of the principal and interest of ' this bond. "In testimony whereof, the mayor of the city of EvaiiSN ille has hereunto set his hand, and affixed the corporate seal of the said city, and the city clerk of said city has counter- sij^ned these presents, this 1st day of Decem- ber, 1S70. \Vm. Baker, Mayor. > "Wm. Ilelder, City Clerk." j The charter of Evansville, approved Jan- uary 27, 1847, in the fortieth clause of sec- tion 30 thereof, save the city power "to take strok in any chartered company for making roads to said city, or for waterin:? said city. and In any company authorized or empow- ered by the commissioners of Yanderburg county to build a bridge on any read leading to said city; and to establish, maintain and regulate ferries across tlie Oliio river from the public wharves of said city: provided, that no stock shall be subscribed or taken by the common council in any such company, unless it be on the petition of two-thirds of the residents of said city, who are fieehold- ers of the city, distinctly setting forth the company in which stock is to be taken, and the number and amount of shares to be sub scribed: and provided, also, that in all cases where such stock is taken the common coun- cil shall have power to borrow money and levy and collect taxes on all real estate (ei- ther inclusive or exclusive of improvements, at their discretion) for the payment of said stock." Laws Ind. (Local) lS4t>-47, p. 14, c. 1. This clause of the original charter of Ev- ansville was, in form, amended by the act of the legislature of the state of Indiana, approved December 21, 1SG5, entitled "An act to amend the fortieth clause of section 30 ! of an act ez-titled "An act granting to the j citizens of the town of Evansville, in the county of Yanderburg, a city charter,' ap- proved .January 27th, 18-17, and declaratory of the meaning of the second section of the same act." Laws Ind. (Called Sess.) 1865, pp. 76, S3. The certificate before us states that, "un- der the decisions of the supreme court of Indiana, this act was repugnant to the con- stitution, and invalid, in that it did not set out the entire section as amended." In 1S67 the legislature of Indiana attempt- ed to amend the act of 186.5. above referred to, by an act approved March 11, 1867, enti- tled "An act to amend the first section of an act entitled An act to amend the fortieth [ clause of section thirty of an act entitled "An | act granting to the citizens of the town of Evansville, in the county of Yanderburg, a city charter," approved .Tanuary 27th, 1847, and declaratory of the meaning of the second section of the same.' approved December 21st, 1865, so as to authorize the common coun- cil of the city of Evansville to subscribe for and take stock in the Evansville, Henderson and Nashville Railroad Company, or any oth- er company, or corporation, organized under and by virtue of the laws of the common- wealth of Kentucky, for the purpose of con- structing a railroad leading from Nashville, in the state of Tennessee, to a point on the Ohio river at or near Evansville, Indiana." Laws Ind. 1867, p. 121, c. 'y2. This act authorized subsciiptions for sto<'k in the Evansville, Henderson & Nashville Railroad Company, or other railroad compa- nies, by the city of Evansville, when a majority of the ciualilied voters of the city, who were also taxpayers, should vote there- for. It is certified to us that, under the decision of the supreme court of the state of Indiana, this latter act was invalid, because amenda- tory of a prior invalid act. The bonds in question, of both series, were in fact issued in attempted compliance with the act of March 11, 1867, referred to in the recitals in the bonds issued to the Evans- ville, Carmi & Paducah Railroad Company. The ordinances of the citj' council of the city of Evansville authorizing the issue of both series of bonds disclose that they were issued pursuant to an election by the legal votei-s of the city of Evansville. but do not recite that any petition of resident freehold- ers of the city was presented to the common council, as required by the charter; and no such petition was, in fact, in either case, made or presented to the common council of the city of Evansville The defendant in error, William S. Den- nett, purchased bonds of both issues, before maturity and for value, and is a bona fide holder thereof. This suit is brought upon matured coupons of both series of bonds. The questions propounded are these: (1) Does the recital in the series of bonds issued in payment of subscription to the Evansville, Henderson & Nashville Railroad Company, that they were issued "in pur- suance of an act of the legislature ot the state of Indiana and ordinances of the city council of said city, passed in pursuance thereof," put a purchaser upon inquiry as to the terms of the ordinances under which the bonds were issued? (2) Does the recital in ihe series of bonds issued to the Evansville, Carm' & Paducah Itailroad Company, that they were issued "by virtue of a resolution of said city council passed May 23, 1870." put a purchaser upon in(iuiry as to the terms of tlat resolution, and charge him with knowledge of its terms? (3) Do the recitals in the bonds issued to the Evansville. Ca-mi & Paducah Railroad Company, as agains- a bona fide purchaser for value of such bonds, estop the city of Evansville from asserting that such bonds were not issued, for stock subscribed, upon a petition of two-thirds of the resident free- holdei-s of the city, distinctly setting forth the company in which stock was to be taken, and the number and amount of shares to be subscribed ? 202 MUNICIPAL SECURITIES. (4) Under the recitals in the bonds issued to the Evansville, Carmi & Paducah Railroad Company, was a bona fide purchaser for value put upon inquiry to ascertain whether a proper petition of two-thirds of the resi- dents of Evansville, freeholders of that city, had been presented to the common council, before that body had subscribed for stock in the said railroad company? (5) Was a bona fide purchaser for value of the bonds issued to the Evansville, Carmi & Paducah Railroad Company charged by the recitals in said bonds with notice that they were issued in pursuance of an invalid act, and in pursuance of an election under it, or had such a purchaser a right to assume, from the recital, that the prerequisites of both the valid act and the invalid act had been observed by the common council before the issuance of such bonds? Such is the case made by the statement of facts. By that statement we are informed that the act of the legislature of Indiana of December 21, 1865, purporting to amend the fortieth clause of section 30 of the char- ter of Evansville granted in 1847, as well as the act of March 11, 1867, amendatory of the above act of December 21, 18G5, was adjudg- ed by the supreme court of Indiana to be un- constitutional and invalid; and, upon that basis, this court is asked to answer the ques- tions embodied in the certificate from the judges of the circuit court of appeals. Under this presentation of the case, we put aside the acts of 18*35 and 1867, as giv- ing no support to the rights of the plaintifC, and look alone to the charter of 1847. It cannot be doubted that the power given by the charter of 1847, "to take stock in any chartered company for making roads to said city," authorized the city to subscribe to the capital stock of the EvansviUe, Henderson & Nashville Railroad Company, as well as of the Evansville, Carmi & Paducah Rail- road Company. In City of Aurora v. West, 9 Ind. 74, 85, one of the questions was whether the authority given to the city coun- cil of Aurora, in the state of Indiana, "to take stock in any chartered company for making roads to said city," was authority to subscribe to the stock of a railroad com- pany. The supreme court of Indiana said: "Here the power is expressly granted, and the question is merely whether the road in which the stock was subscribed is one con- templated by the charter. We think, also, that a company chartered to build a railroad is chartered to build a road. We think a railroad is a road as properly as a turaplke road or a plank road is a road; and one of these kinds was contemplated by the char- ter, and not common public highways, as the latter are not constructed by chartered companies, while the former are, and the Btock is to be taken by the city in a cliar- tered company. A railroad would accommo- date the people of the city more tlian a plank or a turnpike road, and the stock would be of more value." It is true that the city charter provided that "no stock shall be subscribed or taken by the common council in such company, unless it be on the petition of two-thirds of the residents of said city, who are freehold- ers of the city, distinctly setting forth the company in which stock is to be taken, and the number and amount of shares to be sub- scribed." But these were only conditions which the statute required to be performed or met before the power given was exercised. That there was legislative authority to sub- scribe to the stock of these companies can- not be questioned, although the statute de- clared that the power should not be exercis- ed except under the circumstances stated in the statute. Was a bona fide purchaser of bonds issued , in payment of a subscription of stock — the power to subscribe being clearly given— ( I bound to know that the conditions precedent ' to the exercise of the power were not per- : I formed? If the bonds had not contained | any recitals importing a performance of ' such conditions before the power to sub- '■ ' scribe was exercised, then it would have i I been open to the city to show, even as i against a bona fide purchaser, that the bonds I were issued in disregard of the statute, and ' therefore did not impose any legal obliga- tion upon it. Buchanan v. Litchfield, 102' U. S. 278; School Dist. v. Stone, 106 U. S. 183, 187, 1 Sup. Ct. 84. i But the bonds issued on account of sub- \ scription to the stock of the Evansville, Hen- derson & Nashville Railroad Company recite that the subscription was "made in pursu- ance of an act of the legislature and ordi- nances of the city council passed in pursu- ance thereof." This imports not only com- pliance with the act of the legislature, but that the ordinances of the city council were in conformity with the statute. It is as if I the city had declared, in terms, that all had been done that was required to be done in order that the power given might be exer- cised. I The bonds issued to the Evansville, Carmi & Paducah Railroad Company recite that they were issued "by virtue of" the city's charter of January 27, 1847, and that recital imports compliance with the provisions of the charter. The additional recitals tha;, the bonds were issued by virtue of the act of March 11, 1867, as well as by virtue of a resolution of the city council, ordering an election of the qualilied voters of the city, which resulted in a legal majority in favor of such subscription, and of a resolution or- dering the issuiug of bonds, did not, as be- tween the city and a bona fide purchaser foi value, prevent tlie latter from assuming the truth of the recital that the bonds were is- sued by virtue of— that is, in compliance with -the city's charter. In School Dist. v. Stone, above cited, the court said: "Numerous cases have been de- termined in this court, in which we have said that where a statute confers power upon ESTOPPEL BY COURSE OF DEALING OR RECITALS IN BONDS. 203 a municipal conx) ration, upon the perform- ance of certain precedent conditions, to exe- cute bonds in aid of the construction of a raih-oad, or for other lili;e purposes, and im- poses upon certain officers (invested with authority to determine whether such con- ditions have been performed) the responsi- bility of issuing them when such conditions have been complied with, recitals by such offic(M-s that the bonds have been issued 'in pursuance of,' or 'in conformity with,' or 'by virtue of,' or 'by authority of,' the statute, have been held in favor of boua fide purchasers for value to import full compli- ance with the statute, and to preclude in- quiry as to whether the precedent conditions had been performed before the bonds were issued." Town of Coloma v. Eaves, 92 U. S. 484; Commissioners v. BoUes, 94 U. S. 104; Mercer Co. v. Ilacket, 1 Wall. S3; Commis- sioners V. Beal, 113 U. S. 227, 23S, 239, 5 Sup. Ct. 433, and authorities there cited; Cairo v. Zane, 149 U. S. 122, 13 Sup. Ct. 803. Tlie charter of the city of Evausville gave authority to subscribe to the stock of these railroad coi-porations, and, as held by the su- preme court of Indiana, in Railroad Co. v. Evansville, 15 Ind. 395, 412, the express pow- er given to borrow money necfe^sarily implied "the power to determine the time of pay- ment, and also the power to issue bonds or other evidences of indebtedness." As, therefore, the recitals in the bonds im- port compliance with the city's charter, pur- chasers for value, having no notice of the nonperformance of the conditions precedent, were not bound to go behind the statute con- ferring the power to subscribe, and to ascer- tain, by an examination of the ordinances and records of the city council, whether those conditions had, in fact, been perfonn- ed. With such recitals before them, they had the right to assume that the circumstan- ces existed which authorized the city to exer- cise the authority given by the legislature. The charter of 1847 contemplated a petition of two-thirds of the resident freeholders of the city. The act of 18G7 provided for an election by the qualified voters, who were also taxpayers. Notwithstanding the provisions of the charter of 1847, the city council, before subscribing for the stock, might well have ascertained what were the wishes of taxpay- ers, who were also qualified voters. So far as the recitals in the bonds are concerned, the purchaser of bonds might properly have assumed that both methods were pursued. Although, in strict law, he was chargeable with knowledge that the act of 18G7 was in- valid, and, consequently, that an election held under it could not itself authorize a sub- scription of stock by the city, he was enti- tled to stand upon the validity of the city charter, and to act upon the assurance, given by the recitals in the bonds, that the provi- sions of that charter had been resiwcted, and, therefore, that the subscription of stock had been preceded by a petition to the city council of two-thirds of the resident freehold- , ers of the city. ' The present case comes directly withid Van Hostrup v. Madison City, 1 Wall. 291, 297. The city of Madison, Ind., was authorized by its charter "to take stock in any char- tered company for making a road or roads to the said city, ♦ * ♦ provided, that no stock shall be subscribed • * * unless it be on petition of two-thirds of the citizens who are freeholders," etc. Mr. Justice Nel- son, delivering the unanimous judgment of this court, said: "It is supfKJsed that the au- thority to subscribe is tied down to a char- tered road, the line of which comes within the limits of the city; and that the words are to be taken in the most liberal and re- strictive sense. But this, we think, would be not only a very narrow and strained con- struction of the terms of the clause, but would defeat the manifest object and pur- pose of it. The power was sought and grant- ed, with the obvious idea of enabling the city to promote its commercial and business in- terests, by affording a ready and convenient access to it from different parts of the inte- rior of the state, and thus to compete with other cities on the Ohio river and in the inte- rior which were or might be in the enjoy- ment of railroad facilities." Touching an- other issue in that case (and a similar issue is presented in the present litigation), the court said: "Another objection taken is that the proviso requiring a petition of two-thirds of the citizens, who were freeholders of the city, was not complied with. As we have seen, the bonds signed by the mayor and clerk of the city recite on the face of them that they were issued by virtue of an ordi- nance of the common council of the city, passed September 2, 1852. This concludes the city as to any irregularities that may have existed in carrying into execution the power granted to subscribe the stock and issue the bonds, as has been repeatedly held by this court. Our conclusion upon the whole case is that full power existed in the defendants to issue the bonds, and that the plaintiffs are entitled to recover the interest coupons in question. Even if the case had been doubtful, inasmuch as the city authori- ties have given this construction to the char- ter, and bonds have been issued and are in the hands of bona fide purchasers for value, we should have felt bound to acquiesce in it,"^ The case befoi'o us cannot be distinguished from the one just cited. It may be added that the questions here preseutotl were carefully examined by Judge Woods in the case of Moulton v. City of Evansville, 25 Fed. 382, 3SS. where will be found a full review of the adjudged cases. That was an action to recover the amount of coupons of bonds of the same class as those here involved. The conclusion there reached was that the purchaser of the bonds had a right to rely on the recital as showing that 204 MUNICIPAL SECURITIES. a proper petition of freeholders was present- ed to the council before the subscription was ordered. The court said: "The purchaser, it is clear, was bound to linow that the act of 1S67, and the election ordered and held in compliance with it, were void, and that the law of 1847 required a petition of freeholders as a condition precedent to the right of the common council to malie such stock subscrip- tions; but while bound, by legal construction, to linow these things for himself, he, for the same reason, had a right to presume that the common council and oflicials of the city who ordered and made the bonds had the same knowledge; that they ordered and held the election as matter of precaution merely, and without the omission of any requirement of the act of 1847, as they must have intended to certify, if they acted honestly, as they are presumed to have acted intelligently, in or- dering the bonds issued." It is contended that the defense is sustain- ed by Bamett v. Denison, 145 U. S. 135, 139, 12 Sup. Ct. 819. That case has no applica- tion to the issues here presented. The only point there decided was that the requirement of its charter that all bonds issued by the city of Denison "shall specify for what pur- pose they were issued" was not satisfied by a bond that purported on its face to be issued by virtue of an ordinance, the date of which was given, but not its title or contents. The conclusion we have reached upon legal grounds, and in accordance with our former decisions, is the more satisfactory because of [ the long time which elapsed before any ques- tion was i-aised by the city as to the validity of the bonds. The city having authority, under some circumstances, to put these bonds upon the market, and having issued them under coi-porate seal of the city, and under the attestation of its highest officer, certifying that they were issued in payment of a subscription of stock made in pursuance of the city's charter, the principles of justice demand that the bonds, in the hands of bona fide holders for value, should be met accord- ing to their terms, unless some clear, well- settled rule of law stands in the way. No such obstacle exists. The court answers the first, second, and fourth questions in the negative, and the third in the affirmative. Its answer is in the negative to the first clause, and in the affirmative to the second clause, of the fifth question. ESTOPPEL BY COURSE OF DEALING OR RECITALS IX BONDS. 205 BOARD OF SUP'RS OF CUMBERLAND COUNTY V. RANDOLPH. (16 S. E. 722, 89 Va. 614.) Supreme Court of Appeals of Virginia. Feb. 2, 1893. Appeal from Cuniborland county court. Application by one Randolph for a man- damus to compel the board of supei-visoi-s of Cumberland county to levy a tax for the pay- ment of certain couiX)ns due on coupon bonds issued by defendant countj-. Jud^'uient was entered for petitioner on an order granting the WTit, and defendants bring error. Airinued. Wm. M. Flanagan, E. P. Buford, and R. R. Fauntleroy, for plaintiffs in error. Pegram & Stringfellow and J. P. Fitzgerald, for defend- ant in eiTor. LEWIS, P. The first point made by the ap- pellants is that upon the facts stated in the an.s\\er, which was not traversed, the writ ought to have been denied. But this is a mis- taken view. At common law the return was not ti-aversable, the party being left to his ac- tion for a false retiu-n. If, in such action, the return was falsified, a peremptory mandamus was granted. Bac. Abr. tit. "Mandamus." The defects of this procedure were, to a cer- tain extent, remedied by the statute of Anne (chapter 20), which statute has not been re- enacted in Virginia. Section oUl-t of the Code, however, provides that the answer shall be "subject to any just exceptions;" and here, it is true, there are none. But, treating the an- swer as though it had been demurred to, the result bj' no means follows for which the ap- pellants contend. And, first, it is to be observed that the com- I petency of the legislature to authorize counties ' or other municipalities to subscribe to the . stock of a railroad company, and to issue I bonds in payment of such subscriptions, is un- questional)le; and this authority' may be con- ( f erred with or without the sanction of a popu- lar vote. The legislature possesses all legis- / lative power not prohibited to it, and there is f no constitutional restriction upon its powers in matters of this sort. The provision of the , constitution of Virginia, that "the state shall I not subscribe to, or become interested in. the I stock of anj' company, association, or coipora- 5 tion," refers to subscriptions by the state, and not to a case like the present. Redd v. Super- visors, 31 Grat. GOo; Railroad Co. v. County of Otoe, 16 Wall. GG7. Legislative authority, '' n.oreover, as in the present case, to issue "c-ou- pon bonds," Implies authority to issue bonds and coupons payable to bearer, which are ne- gotiable instruments having all the qualities and iuoidoiits of commercial paper. Arents v. Com., 18 Grat. 7.")0; Gelpcke v. Dubuque. 1 Wall. 175; Thompson v. Lee Co., 3 Wall. 327; Livingston Co. v. Bank. 128 U. S. 102, 9 Sup. Ct. 18; 1 Dill. Mun. Coi-p. (-ith Ed.) § 513. It Is also important to observe that the holder of such instruments is presumed to be a bona fide holder for value, before maturity, unless fraud or illegality in the inception of the paper be shown. 1 Daniel, Xeg. Inst. §§ 812, 815; Smith V. Sac Co., 11 Wall. 139. And the ques- tion, therefore, is, do the matters set up in the answer constitute a good defense as against such a holder? The main ground relied on is that the elec- tion held under the ac(» of February 5, 1880, was not legally held, for want of notice. But the bonds from which the coupons in question were detached were not issued under that act, but under the act of February 8, 1888; and, independently of this consideration, the ob- jection is without merit. The doctrine of the supreme court of the United States, and the one most con.osit / tliem with the depositary provided under the | statute. This was not a delivery, and the bonds continued imperfect obligations until a delivery which could only be made by the custodian when the railroad was completed, The power to perfect them as bonds arose only when the condition mentioned had been performed. A deliveiy before the raih'oad was begun would not have completed the making of these bonds, for the power was to pany \ resi- J ■i 212 MUNICIPAL SECURITIES. deliver them when it was finished, and the act itself provided expressly that until then the bonds should not be valid, thus affirming the imperfect character of the bonds until a delivery was lawfully made. Young v. Clar- endon Tp., cited above. The imperfect char- I acter of the bonds, until the condition preced- I ent had been performed, is further made man- ' ifest by the direction of the act that they I should "be held in escrow and delivered to the said railroad company when it shall be- come entitled to them by the construction of [ its road through such county." This term, "in escrow," is one strictly applicable to deeds; and a direction that such imperfect obliga- ' tions, executed subject to conditions and re- strictions, by a maker having no general au- thority to issue such paper, should be held in escrow, implies that the term was used just as it would be used if the subject-matter of the deposit was a deed. As used, the teiTU implied the state or condition of a deed con- ditionally held by a third person, to be de- livered and to take effect upon the happening of a condition. Bouv. Law Diet; Black, Law Diet. When a deed is delivered as an escrow, nothing passes by the deed, unless the condi- tion is performed. Calhoun Co. v. American , Emigrant Co., 03 U. S. 124; 6 Am. & Eng. Enc. Law, 867; Taylor v. Craig, 2 J. J. Marsh, 449. Counsel have very ably argued that a dis- tinction exists between the effect of a deliv- ery in violation of the conditions, where the thing in escrow was negotiable paper, and has come to the hands of an innocent pur- chaser without notice, and for value. 1 Daniel, Neg. Inst §§ 68, 855, 856; Taylor v. Craig, 2 J. J. Marsh, 449. Possibly such dis- tinction is sound, though if the purchaser bought with notice that the paper had been held in escrow, and that the trustee had no power to deliver until a condition had arisen, of which the purchaser likewise had notice, . he could hardly be regarded as a bona fide I holder. Every one dealing with an agent 1 assumes all the risk of a lack of authority I in the agent to do what he does. Negotia- I ble paper is no more protected against this inquii-y than any other. The purchaser of I these bonds bought with notice that they ' had been held in escrow. The authority of the custodian was not a secret Herein is the distinction between this case and that class of cases where paper is fraudulently issued by an agent who is authorized to make and issue negotiable paper in tlie busi- ness of his principal, and the question wheth- er the paper issued is in the business of the principal is peculiarly within the knowledge of the agent, and not known to the world or a stranger. In such cases the agent is im- pliedly autliorized to represent the existence of the fact upon which his agency depends. Farmers' Nat. Bank v. Sutton Manuf'g Co., 6 U. S. App. 312. 332, 3 C. C. A. 1, and 52 Fed. 191. It is difficult to see why one who takes such bunds as those in suit is not just as much obliged to look to the authority of the trustee to deliver as if the subject of the escrow had been a deed. We are to remem- ber that these bonds were imperfect obliga- tions, there having been no delivery when placed in escrow. The question first pre- sented to an intending buyer is this: Have these bonds become executed, valid obliga- tions by delivery? The authority of this trustee to make delivery depended upon the same principles that determine such author- ity in other contracts, "and is not aided by the doctrine that, when once lawfully made, negotiable paper has a more liberal protec- tion than other contracts in the hands of in- nocent holders." The Floyd Acceptances, 7 Wall. 666-680. "The authority to conti-act must exist, before any protection as an in- nocent purchaser can be claimed by the hold- er." Marsh v. Fulton Co., 10 Wall. 683. But, aside from any distinction between the effect of a wrongful delivery of a deed and of commercial paper upon the title of an in- nocent purchaser, it seems very clear that the express declaration of the fourth section of the act that these bonds should not be valid obligations until the railroad had been completed through the county, and by the further provision that they should be held in escrow until that event, settles conclusive- ly that the legislature did not mean that the power of the county to so obligate itself should depend upon the mere opinion of the custodian, but upon the actual, objective ex- istence of the requisite fact. The whole scope and tenor of the act leads to the con- clusion that the legislature intended to pro- tect the county against any misapplication of these bonds, and therefore limited its power so that the bonds only became its ob- ligations when the contract between the rail- road company and the county should become complete. The machinery devised indicates that the purpose was that the railroad should not part with its stock certificates until it had received payment therefor. And, to secure the county against failure to complete the road, all power to issue bonds was made dependent upon its actual construction. To secure the railroad in obtaining the bonds when actually earned, it was provided that when a favorable vote had been cast, and the subscription made, the bonds should be pre- l)ared and formally executed, and placed in the hands of a stakeholder, to be delivered when the railroad company had performed its agreement. To secure the county against the possible breach of duty by this custo- dian, his holding was to be in escrow, and his power to deliver withheld until the actual performance of all precedent conditions. To further protect the coxmty against an un- authorized delivery of the bonds, the act, in plain terms, provided that they should not be valid obligations until the completion of the road. That the custodian was required to give a bond for the due discharge of his trust by no means implies that the county ESTOPPEL BY COURSE OF DEALING Oil RECITALS IN BONDS. 213 was to look to this boud in case of an un- authorized delivery. The bond was no ni^re for the beuetit of one party than the other. A wrongful delivery, or a fraudulent use of them, might, irrespective of a defense, if sued upon the bonds, involve a costly litiga- tion. It was eminently reasonable that the custodian of such securities, negotiable in form, should give security to protect both parties against negligence, conversion, em- bezzlement, or any willful refusal to faith- fully perform the trust. It is next insisted that the county should be held responsible upon the principle that, whenever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it. This principle can have no application here, for two reasons: First, the holders of these bonds cannot be I regarded as innocent purchasers, inasmuch f as they are constructively chargeable with all that inquiry would have disclosed; and, second, the bonds, as bonds of a municipal / corporation, are invalid, for want of power I to issue them until the actual completion of 1 the railroad in whose aid they were author- ^ ized. Neither are the bonds validated be- ( cause of the payment of interest for a time I after their issuance. The question here is not one of mere irregularity in the method of exercising a power. The defense pre- sented goes to the power of the county. (There was no authority to issue bonds in aid of the railroad until the road had been constructed through the county. That con- arty ; I the / Vnll. I dition having never been complied with, nei- I iher the county court nor the county judge I could, by any act of omission or commission, ' waive its performance. Neither could the county court or any of the county officials ^ validate them by subsequent acts of ratifica- J tion. If the power to issue them did not exist when they were issued, no payment of j interest, or resolution to adopt them, can / operate to make them valid contracts. Rat- ilication can only be effective when the party ratifying possesses the power to perform act ratified. Marsh v. Fulton Co., 10 "Wall. G76-GS4; Norton v. Shelby Co., 118 U. S. 420-451, 6 Sup. Ct. 1121. In Doon Tp. v. Cummins, 142 U. S. 3GG-37G, 12 Sup. Ct. 220, the court, through Mr. Justice Gray, said: "A ratification can have no greater effect than a previous authority, and debts which neither the district nor its officers had any power to authorize or create cannot be rati- fied or validated by either of them, by the payment of interest, or otherwise." That the county still holds the railroad stock received when these bonds were de- livered is no reason for holding these bonds valid. By proper proceedings the railroad company can recover this stock, or compel payment for its value. Justice would de- mand the return of the stock, or compensa- tion for its value. No such question exists in this case. Norton v. Shelby Co., 118 U. S. 454, 6 Sup. Ct. 1121. The judgment must be reversed and remanded, with direction to render judgment in accordance with this opinion. 214 MUNICIPAL CONTRACTS. STATE (McDERMOTT, Prosecutor) v. BOARD OF STREET & WATER COM'RS OF JERSEY CITY et al. (28 Atl. 424, 56 N. J. Law, 273.) Supreme Court of New Jersey. Dec. 22, 1893. Certiorari, at the suit of Allan L. McDer- mott, against the board of street and water commissionei's of Jersey City and others, to review certain resolutions and proceedings of defendant board. Reversed. Argued November term, 1893, before DIX- ON and ABBETT, JJ. Allan L. McDermott, in pro. per. Wil- liam D. Edwards, for defendants. ABBETT, J. The certiorari in this case removed into this court, for review, certain resolutions and proceedings awarding con- tracts for asphalt paving in Jersey City, un- der proposals received by the board of street and water commissioners. The board ad- vertised for bids for laying asphalt pave- ment, to be paid for out of the license money collected by the city, as provided in sections 5 and 6 of chapter 134 of the Laws of 1891, (Laws 1891, p. 259,) and further provided for in chapter 82 of the Laws of 1893, (Laws 1893, p. 164.) Bids were received therefor from the Trinidad Asphalt Company and the Barber Asphalt Company. The work would cost $50,920 vmder the bid of the Trinidad Asphalt Company, and $41,982 under the bid of the Barber Asphalt Company. The board did not award the contract to either. They divided it, giving paving to the highest bid- der amounting to $32,805, and giving the low- est bidder paving amoiuiting to $13,878. The preamble to the resolution awarding portions of the Avork to each company declares "that the samples [of asphalt] submitted are above the standard requirements, and this board has examined into the financial standing of both bidders, and finds them responsible; and as the prices bid, covering a guaranty of ten years, are advantageous to the city, and as the cost of preparation in establishing a plant to prepare the asphalt for street laying is be- tween twelve thousand and twenty thousand dollars, it is advisable to make the contract of sutficiont size as to amount of work to jus- tify the erection of a plant; and as the laying of asphalt pavement has not been heretofore attempted in this city, and as the money to pay for the work on which bids were re- ceived is payable out of the excise moneys, and not by assessment, and this board believ- ing it to be for the best interest of the city to divide the work between the bidders with a view of comparison of their work, inas- much as the Barber Asphalt Paving Com- pany has had the gi-cater experience in lay- ing the pavement, and the Trinidad Asphalt Paving Company has had the gi'cater expe' rience in refining the product, as we are in- formed: Therefore, resolved," etc. The reso« lution was presented to the acting mayor on August 19, 1893, and became operative with- in 10 days thereafter, under section 2 of the supplement to the city charter, approved March 24, 1873, (Laws 1873, p. 400,) he not having vetoed the same. He did not formal- ly approve the same, but in a communication to the board, dated August 29, 1S93, after giving his views, states: "I have decided tc let the resolution stand." Oiu" opinion is that under the city charter this improvement was one that was to be borne by the city at large and paid by gen- eral tax, and that the proposed work can- not be paid for by assessment for benefits. Under the fifth section of said act of 1891, the board has power, in its discretion, to pave, repair, or improve, at public expense, any part of any street, lane, alley, avenue, or public place already paved, or that has been paved, to be paid for out of the funds raised by the issue of licenses for the sale of spirituous or malt liquors heretofore appro- priated under existing laws for that purpose in such city, or which may hereafter be ap- propriated for that purpose in any such city under the authority conferred by this act. There is a contention in this case as to whether or not the sections of the charter of 1871, un- der the title "Board of Public Works," which require the contract for paving to be awarded "to the lowest responsible bidder," or section 159 of the charter, under the heading "Fi- nance," is apphcable to this case, or whether the provisions of the latter section modify or affect the former provision, or the proper con- struction thereof. Section 159 provides "that j no contract for work or materials shall be entered into, or purchase of personal prop- I erty be made by, or on account of any board or department of the city government, ex- \ cept after due advertisement, for six days at least, in the official newspapers; whereupon I the contract shall be awarded to, or the piu- chase shall be made of, that responsible bid- | der who offers the terms most advantageous to the city," etc. In deciding this case it is not necessary to determine which of these provisions are applicable, or whether there is any legal difference between the "lowest re- sponsible bidder" and "that responsible bid- der who offers the terms most advantageous to the city," or whether the board, in deter- muiing who is a "responsible bidder," is lim- ited to the question of financial responsibil- ity, or may broaden its field of inquiry, and exclude a bidder whose conduct in other pub- lic work, or other actions, would render it un- wise to trust him to carry out the contract he might make. The board did not act un- der either of the provisions quoted. It did not award the contract to either the lowest responsible bidder or to that bidder who of- fered the terms most advantageous to the city. It awarded part of the work to the highest bidder, and part to the lowest bid- der. The duty imposed upon the board by ' the charter was to determine which of these bid(l jhl' has arisen at this time, and it may be, as urged at the hearing, that the plaintiff's motives for bringing it here, beyond these disclosed by the record, were not the most commenda- ble. But, the case being here, every ques- tion necessarily to be passed upon in its de- cision is, of course, to be determined upon recognized legal principles, and upon no oth- er consideration; and with the plaintiff's hidden motives the court has nothing to do. Mazet V. City of Pittsburgh, 137 Pa. 548, 20 Atl. G93. It is, moreover, to say the least, extremity doubtful, and from what was said upon the argument it would hard- ly seem to be supposed by any one, that the fixing of a minimum rate of wages to be paid to laboring men in the performance of municipal contracts ever does put into the pockets of a single one of them employed by the contractors one penny more than what his labor would at the time command in the community. The wages of labor are not con- trollable in that way. If the average wages paid for labor of the kind required are equal to the rate thus prescribed, such a stipula- tion is an entirely nugatory one. If the aver- age is less, the contractor, whoever he may be, will ordinarily pay just what the average is, and nothing more. In either event the laboring man will be none the better off because of such a stipulation, unless it be enforceable under a valid contract But I am not now deciding, because it is not be- fore me, that every contract between a municipality and a contractor containing a stipulation as to the minimum rate of wages to be paid by the latter is necessarily void, or that such a stipulation in any such con- tract is unenforceable. Nor, for the same reason, am I deciding anything as to the right of the city or any department to fix the wages to be paid to laboring men em- ployed directly by it. I am dealing here on- ly with the question of its right to prescribe in its specifications and invitation for bids the rate of wages to be paid by others in the pei'formance of such works as it is re- quired by law to throw open to competitive bidding and to award to the lowest bidder, and with the question of the legality of a contract to be made, in the face of such a requirement, upon the basis of specifications so framed and conditioned in advance of the bidding and awarding of the contract. Nei- ther am I passing upon the city's right, in such work and such contract, to require the employment of American citizens only, and to insist upon the same,— a question which is not material to the decision of this case; and I repeat that I am not deciding that the average rate of wages in this city is or is not $1.50 per day, or that the labor required in the performance of the work con- templated by the proposed contract could or ought to be obtained at a less rate of wages. I am simply deciding that in asking for pro- posals as to that work, and in framing its specifications therefor as the basis of such proposals, the water board had no right to fix, in advance, any rate of wages to be paid by the contractor, whether it be too high or too low, and that, therefore, its past and in- tendc5; St. Tammany Water-Works v. New Orleans Water-Works, 120 U. S. 64, 7 Sup. Ct. 405. 222 MUNICIPAL CONTRACTS. In Des Moines St. R. Co. v. Des Moines B. G. St. Ry. Co., 73 Iowa, 513, 33 N. W. 610, and 35 N, W. 602, the city had had the au- thority to grant or prohibit the laying down of street-car trades within its limits. The court held that, although there was no grant of power in express terms authorizing the coun- cil to confer an exclusive privilege in the use of streets, under the circumstances of the case, and to procure a better public service, the council could grant a valid exclusive right for the limited period of 25 years, such contract being necessary to secure the serv- ice which it might not otherwise be able to obtain. The court also decided that the con- stitutional restriction which declared that no exclusive privileges should be granted, except as provided for in the constitution, did not apply to the grant by a city to a pei"son or company of the exclusive right to build and operate street railways. In the case of City of Newport v. Newport Light Co., 8 Ky. Law Rep. 22, it was held that when a municipal corporation has the power, express or implied, to contract witJbi others to furnish its inhabitants with the means of obtaining gas at their own expense, it has the power to malie a contract grant- ing to a corporation the exclusive right to the use of its streets for that purpose for a term of years. The charter of the city did not. in express terms, give the power to the city to grant an exclusive privilege. The court rested its opinion upon the following gi-ounds: First, that the power given the municipality to provide for lighting the city included the power to grant the exclusive right to the use of the streets for that pur- pose; and, secondly, that the Newport Light Company was invested, in express terms, by a provision contained in the charter, with the right to furnish any city, town, district, or coi-poration or locality, or any public insti- tution, etc., on such terms as may be agreed upon. The same court has held in a more recent case that? where a party contracts with a city for the exclusive right to remove the carcasses of dead animals therefrom, and to use its public streets for this purpose, the law will protect him in his monopoly, and the work cannot be engaged in by others as a general business enterprise. City of Louis- ville V. Wible, 84 Ky. 290, 3^ S. W. 605. In New Jersey, a contract was entered into by Atlantic City with the Atlantic City Wa- ter-Worlis Company for a supply of water, calling for a certain annual payment, with- out any limit as to time, except that the city miglit take the water-works at a valuation; and it was held that such a contract was legal and binding on the city. Atlantic City Wa- ter-Works Co. V. Atlantic City, 48 N. J. Law, 378, 6 Atl. 24. Subsequently it was held by the court of chancery of New Jersey that by an amendment made to the constitution in 1875, which declared that "the legislature shall not pass private, local, or special laws granting to any corporation, association, or individual any exclusive privileges, immuni- ty, or franchise whatever," the exclusive right could not be granted to a water com- pany to use the streets of a city. Atlantic City Water-Works Co. v. Consumers' Water Co., 44 N. J. E(i. 427, 15 Atl. 5S1. In Tennessee, it has been held that the granting of the privilege by a municipal cor- poration, by legislative enactment, to a pri- vate corporation, for its exclusive use, for a term of years, is not unconstitutional, and, having been granted, is, during the tenn of a contract, beyond the reach of subsequent leg- islative interference. It was decided that, notwithstanding the constitution forbids per- petuities and m,onopolies, an exclusive priv- ilege to a city to erect water-works was not a monopoly, and that granting an exclusive privilege for a terms of years to a private corporation did not render it a monopoly. City of Memphis v, Memphis Water Co., 5 Heisk. 495. The supreme court of Wisconsin has de- cided that the legislature could confer upon a private corporation the exclusive right to manufacture and sell gas, and to erect works and lay pipes therefor within the limits of the corporation. State v. Milwaukee Gas- Light Co., 29 Wis. 454. There seemed to be no constitutional limitation when this case was decided, and the court expressly held that the legislature might create a monopoly. The supreme court of Connecticut, in the case of Citizens' Water Co. of Bridgeport v. Bridgeport Hydraulic Co., 55 Conn. 1, 10 Atl. 170, where the city council of Bridgeport had accepted a proposition from a party to supply the city with water, and granted him, with the power of assignment, the exclusive right to lay pipes in the streets so long as a full supply of pure water should be furnished, and the Bridgeport Hydraulic Company acquired such right by assignment, and expended large sums of money in establishing water-works, held that, so long as this company supplied the city with an abundance of water, the leg- islature had no power to give another corpo- ration the right to lay pipes in the streets of the city for the purpose of supplying the city with water. The court said "that it was the duty of the court to preserve contracts invio- late, rather than to destroy monopolies. The legislature having in effect authorized the city to make a contract which it desired to make, will not — cannot— now relieve it. Although the state is no party to, and has no interest whatever in, the subject-matter of a contract, if it volunteers to invest a creature of its own, otherwise powerless, with power to make it, the legislature is thereafter concluded in ref- erence to it. It is a lawful contract between two natural persons of full legal capacity sa- cred from any interference other than ju- dicial construction." The court of appeals of New York has decid- ed squarely against this (doctrine. Under a law passed in 1SC.5, Middletown was author- ized to contract with a gas company for street AUTHORITY OF MUNICIPAL OFFICERS TO CONTRACT. 223 lighting, but was given no specific power to make a continuing contract. The town made a contract for five years. In 180(5 tlie law of 1805 was unconditionally repealed. Tlie gas company brought an action to recover for gas furnished in 1870, under a contract made with the board of town auditors in lSO.j. The court said: "Prior to the passage of the act of ISO.j the town had no power to cause any of its streets to be lighted with gas or in any other way. By that act such power was con- ferred upon the defendant. For what time? The learned counsel for the appellant insists for the term of five years, at least, for which the contract was entered into by the plaintiff with the town auditors to furnish gas; and that during that time the legislature had no power to relieve the town, or any part of it, from the expense of lighting all the streets embraced in the contract, whatever the ne- cessity for such relief might bo. If tlie board of town auditors could deprive the legislature of this power for five years, by entering into a contract with the plaintiff for that time, it might for 100 years, by contracting for that l)eriod. I think it clear that no such power was conferred by the act upon the town audi- tors." Richmond Co. Gas-Light Co. v. Town of Middletown. 59 N. Y. 228. [n City of Chicago v. Rumpff. 45 lU. 90. It was held that municipal corporations were created solely for the public good, and to that end the corporate authorities were held to a strict exercise of the franchises confen-ed; that a right to do all slaughtering of animals within the city of Chicago for a specified period was void, because creating a monopoly. In Gale v. Kalamazoo, 23 Alich. 344, where a party had been given the right by contract with the municipality to build and control a market-house for the period of 10 years, the contract was held void, because it created a monopoly. Jud^e Copley said in this case: "It is impossible to predicate reasonableness of any contract by which the governing au- thority abdicates any of its legislative powers, and precludes itself from meeting in the prop- er way the emergencies that may arise. Those powers are conferred in order to be ex- ercised again and again, as may be found need- ful or politic; and those who hold them in trust to-day are vested with no discretion to circumscribe their limits or diminisli their effi- ciency, but must transmit them unimpaired to their successors. This is one of the funda- mental maxims of government, and it is im- possible that free government, with restric- tions for the protection of individual or munici- pal rights, could long exist without its recogni- tion." The same question was considered in the case of State v. Cincinnati Gas-Light & Coke Co., 18 Ohio St. 202, where the charter of the city conferred on the gas company iwwer "to manufacture and sell gas, to lay pipes, etc., provided the consent of the city council be ob- tained for that purpose." Under the power given to the city coimcil of Cincinnati "to cause said city, or any part thereof, to be lighted with oil or gas, and to levy a tax for that purpose," it contracted to invest the de- fendant with full power and exclusive privilege of using the streets, etc., for the pm-pose of lighting the city for the period of 25 years, and thereafter until the city should purchase the gas-works. It was held that, while there was no doubt about the city's authority to make the contract for gas-light, there was no necessity for making such right exclusive. In Logan v. Pyne, 43 Iowa, 524, the city of Dubuque had granted to the plaintiff the exclusive privilege and franchise of running omnibuses to carry passengers upon the streets of the city from the 4th day of January. 1872, to the 1st day of January, 1877. The plaintiffs alleged that they had complied with the or- dinance granting them such right, and charged the defendant with violating their right by run- ning omnibuses upon the streets of the city, and that he had received large smns of money which the plaintiffs were entitled to under the ordinance granting them such right. The court held: "The powers of municipal cor- porations are limited to the express terms of the grant, and will not be extended by in- ference. A municipal corporation can confer exclusive privileges for the prosecution of business only under an express grant of pow- er from the legislature. Monopolies being prejudicial to the public welfare, the courts will not infer grants thereof, refusing to pre- sume the existence of legislative intention in confiict with public policy." In the case of City of Brenham v. Brenham Water Co. {Tes,. Sup.) 4 S. W. 143, a city ordi- nance granted to the water company the right and privilege for the term of 25 years from the adoption of the ordinance of supplying the city of Brenham and its inhabitants with water for domestic and other purposes, and for the extinguishment of fires. By the ordinance the city agreed to pay to the water companj' $3,000 per annum during the term of 25 years, as hydrant rental. The charter gave the city power to provide the city with water for tlie convenience of the inhabitants and the extin- guishment of fires. A general law authorized any city in which a water company was or- ganized to contract witli it for supplying the city with water'. It was held that, while the several laws, taken together, undoubtedly au- thorized the city to make some contract for supplying itself with water, yet thej' did put confer on the city express power to make a contract granting the water company the ex- clusive right to supply the city and inliabltanta with water for 25 years at a fixed rate per an- num; and, as no such power was necessary to the proper exercise of the power expressly grantetl, it could not be implied; and that such a contract was unauthorized and invahd. In this case the com"t said: "We do not wish I to be understood to hold that a municipal cor- poration has no power, in any event, to con- tract for such things as are consumed in their daily use, for a period longer than the official ' 221 MUNICIPAL CONTRACTS. / term of the officers who make the contract; ' iHit we do intend to be nnderstood to hold that such corporations have no power to make contracts continuous in character, In reference to such things, or any others, by wliit-h they will he, in effect, precluded from exercising, from time to time, any powei', : legislative in character, conferred upon them by law," In Davenport v. Kleinschmidt, 6 Mont . 502, 13 Pac. 249, it was held that the grant by a city council of the exclusive right of selling to the city of Helena aU the water required by it for sewerage and fire purposes I'or the period of 25 years, at a minimum rate fixed in the con- tract, was a monopoly; and this, though the grant does not prevent other people from selling water to private citizens; that a city council has no authority to grant to any person a monopoly, even where no express prohibition is found in the charter or other acts of the leg- islature. In delivering the opinion in this case, among other things, Mr. Justice McLeary said: "Then, the power to provide the city with water, by making a proper contract with some person to erect water- works, and sell water to the city, being conceded, the next question that presents itself is as to the power of the city to make this particular contract. Is the pres- ent such a contract as to be beyond the power of the city council to enter into, so as to bind the municipal corporation? Does this contract CTeate a monopoly? For, if it does, it goes be- yond the power of a city council. Monopolies may be created; but they must be called into ; being by the sovereign power alone. A city council has no authority to grant to any per- ' son a monopoly, even where no express prohi- j bition is found in the charter or other acts ' of the legislature. Monopolies are contrary to the genius of a free government, and ought not to be encouraged by the people or counte- nanced by the courts, except when expressly i authorized by positive law. In many of the state constitutions an announcement of this principle is already explicitly declared. A rnp- ncyioly is defined by the best and oldest law- writers to be 'an institution or allowance by a grant from the sovereign power of a state, by commission, letters patent, or otherwise, to any person or corporation, by which the exclu- sive right of buying, selling, making, working, or using anything is given.' 2 Bouv. Law Diet. p. rJ4; 5 Bac. Abr. 'S;' 3 Co. Inst. 18L It has also been well defined in a late work as follows: 'The pojjiilar memiing of "monopo- ly" at the present day seems to he the sole power (or a power largely in excess of that possessed by others) of dealing in some par- ticular commodity, or at some particular place or market, or of carrying on some particular , business.' 2 llap. & L. Law Diet. 8;W, 8.1.1." yv< , In Minturn v. Larue, 23 How. 435, it was ~~ held that a charter authorizing the city of Oakland to establish and regulate ferries, or to authorize the construction of the same, gave no power to the city to gi-ant an exclu- sive privilege. In delivering the opinion o'f the court, Mr. Justice Nelson said: "It is a \ well-settled rule of construction of grants by the legislature to corporations, whether public or private, that only such powers and rights ' can be exercised under them as are clearly comprehended within the woi'ds of the act, or derived tlierefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public." In the case of Jackson Co. Horse R. Co. v. Interstate Rapid Transit Ry. Co., 24 Fed. 306, Judge Brewer, now of the supreme bench, held that, in the absence of express authority in its charter, the city of Kansas had no power to grant to a street-railway company the sole right for the space of 21 years to construct, maintain, and operate a railway over and along the streets of such city. In deciding that case the judge observed that he had been charged with the duty of preparing the opin- ion of this court in the case of Atchison St. Ry. Co. V. Missouri Pac. Ry. Co., 31 Kan. 660, 3 Pac. 2S4, where the right of a street railway to occupy the sti*eets of the city was challenged; that the opinion there formed by him had not been changed by the able and exhaustive argu- ment of the learned counsel for the complain- ant. There, as here, the city was given by its charter general supei-vision and control of the streets of the city, but was not given, in' ex- press terms, power to authorize street rail- roads. In other words, the power vested in the city, and the extent to which that power had been exercised by the city, are alike. The court did not decide the precise question here presented, but expressly declined to give any opinion thereon, holding that, under the gi-ant of general supervision and control of the streets, the city had power to permit the occu- pation of its streets by a street railroad. But, obviously, there was opened for inquiry the broad question of the power of a city under such a general gi-ant, and that question was made, as I have stated heretofore, the subject of full and careful investigation. In Saginaw Gas-Light Co. v. City of Sagi- naw, 28 Fed. 529, it was held that authority given "to cause the streets of a citj' to be light- ed, and to make reasonable regulations" with reference thereto, did not empower the city government to gi-ant to one company the ex- clusive right to furnish gas for 30 years; that the exclusive right to light a city with gas for 30 years was not legally "impaired" by a sub- sequent conti'act with another company to light the streets of the city with electricity. This case was deciilod by Judge Brown, now of the supreme court of the United States, and the authorities were fully reviewed, and the principles involved wore elaborately discussed. In the case of Omalia Horse Ry. Co. v. Cable Tramway. Co., 30 Fed. .328, Judge Brewer said: "This rule of construction against the grantee, wliich applies in all legislative grants. obtains with the grr^ater force in a case like the one at bar, where the gi-ant claimed is not AUTHORITY OF MUNICIPAL OFFICERS TO CONTRACT. 225 merely the right to do something, but of a right to exclude all of the rest of the public from doing that thing. He who says that the state has given him a franchise — a right to do that which without that franchise he could not do — will be compelled to show that the franchise— the right claimed— is within tlie terms of his grant. Much more strenuous must be the demand upon him for clear and explicit language in his grant when he claims that a part of it is not merely the franchise, —the right to do,— but also the right to exclude all others of the public from exercising the same right, and the state, as the representa- tive of the public, from according the same right to another." See, also, Proprietors v. Wheeley, 2 Barn. & Adol. 793; Charles Kiver Bridge v. Wai-ren Bridge, 11 Pet. 422; Per- riue V. Canal Co., 9 IIow. 172; Grand Rapids E. L. & P. Co. V. Grand Rapids E. E. L. & F. G. Co., 33 Fed. 659. The supreme court of Pen nsylv ania has stat- ed the rule with reference to the grant of franchise in Pennsylvania R. Co. v. Canal Com'rs, 21 Pa. St. 22: "When a state means to clothe a corporate body with a portion of her own sovereignty, and to disarm herself to that extent of the power that belongs to her, it is so easy to say so that we will never be- lieve it to be meant when it is not said. In the construction of a charter, to be in doubt is to be resolved; and every resolution which springs from doubt is against the corpora- tion." Judge Druinmond said, in the case of Garri- son V. City of Chicago, 7 Biss. 4SS, Fed. Cas. No. 5,255: "Tlie officers of the city — the mem- bers of the council— are trustees of the public. They are clothed with authority to legislate upon public interests. There can be no doubt that the right to regulate the lighting of the streets and to furnish means for the same by taxation is in its natm'e legislative power. It concerns the whole public of the city. The effect of the contract in question by the city authorities in October, 1SU9, if valid, was to bind their successors for ten years as to those matters of legislation. If it be conceded that the power existed, as claimed, then it practically follows that at the end of the term, in 1879, a contract may be made bj' their suc- cessors without limit, and which may bind the public indetinitely. I am unwilling to sanc- tion a principle which, in a case like this, would lead to such results. The safer rule is to hold the officers of a municipality to a rigid accountability in the discharge of their trust. In all cases of contracts to run for years, the authority to make them should be clear, be- cause they involve pecuniary liability, and it is a tax upon future property owners of the city. To sustain the contract between the city and gas company in this case would encourage the making of such contracts in the future. It would place it in the power of companies, whose interests wore to be affected by them, to multiply them, and to continue them when the public interest demanded they should ABB.CORP.— 15 cease. To condemn it is to prevent, so far as it may tend to produce that result, the use of influences which look to private, rather than to public, profit. It is better that ail parties should understand there is a limit to the! power of municipal bodies in such cases." The supreme court of Illinois passed upon a question similar to the one now under consid- eration in the case of City of East St. Louis v. East St. Louis Gas-Light & Coke Co., 98 111. 415, where it was held: "It does not appear in the case, nor is it claimed, that the city has exercised its powers by ordinance or other- wise, or manifested a wish to provide differ- ently than as by the contract. So far as the contract has been executed it has been as one for the furnishing of the light during the pleas- ure of the city. Courts should not destroy the contract made by parties further than some good reason requires. Such an objection is made to this contract. That it interferes with the exercise of the legislative or governmental power of the city over the subject does not require that the contract should be held void, but only voidable, so far as it is executory." To the same effect is Decatur Gas-Light & Coke Co. V. City of Decatur, 24 111. App. 544; Carlyle Water, Light & Power Co. v. City of Carlyle, 31 111. App. 325; Bradley v. Ballard, 55 111. 413. It will be seen by this extended review of the authorities, both state and federal, that there are three classes of decisions upon this important question. The supreme court of the United States holds that where there has been an express legislative grant, upon a con- dition of perfoi-mance, in consideration of such performance and public service, after per- formance by the grantee it becomes a contract which is protected by the constitution of the United States. A number of states, notably Tennessee and Wisconsin, have said that such a grant is not a monopoly, and is fully pro- tected, and held as inviolable as a contract be- tween private parties or private corporations; while other states and some federal couils have held that municipal coi^porations cannot make contracts beyond the legislative life of its mayor and governing body. We ai'e not ready to indorse the latter class of decisions, or go to the full extent of the former. We are not inclined to the opinion that the question that the city has attempted to grant an ex- clusive franchise is necessarily material in tliis case, under its present status. It Is not a question between contending water companies, as to which shall have certain privileges. No company is offering to furnish a better supply of water upon more reasonable terms. Hence we do not think the franchise should now be held void by reason of its exclusivoness. That question should not be decided until it is be- fore us in a case in which it Avould be proper for us to pass upon it. Again, if we are to follow former iirecedents, much of the argu- ment of counsel for the city is lost wherein he contends that tlie franchise claimed is in direct conflict with section 2 of the bill of rights. i\ LI) 226 MUNICIPAL CONTRACTS. This court has said, spealcing through Mr. Jus- tice Bi;ewer, that the words "no special privi- leges or immunities" refer to privileges or im- munities of a political nature. Atchison St. Ry. Co. V. Missouri Pac. Ry. Co., supra. /■ It is conceded that the plaintiff has only been furnishing water to the city of Columbus for a period of a httle more than four years; the works having been tested and accepted on the 2Sth day of December, 1SS7. So far as the plaintiff can make it, the contract is an exe- cuted one; and during the period of its exist- ence, while the city used the hydrants and paid the rental, it became an executed con- tract so far as the city was concerned. Now, the city having, by its contract and permission, invited the expenditure of a large sum of money by the plaintiff in erecting its works, in order to give the city such fire protection as it had agreed to pay for in the manner indi- cated in the ordinance, should not the water company be given a reasonable time in which it might have the benefits of a contract which had been agreed to and recognized? Or shall we say that, because there was no express au- thority to make the contract for the period of 21 years, it is therefore void? To hold to the latter proposition, when the parties cannot be placed in the same condition they were in be- fore the contract was executed, would be a violation of the plainest rules of good faith. The plaintiff alleges that in pursuance of the contract it has expended large sums of money in constructing its water plant; that bonds to the amount of $60,000 have been issued, which are secured by a mortgage upon said plant; that the rentals from private consumers of water and other resources are not sufficient to pay tlie interest on the bonds as tlie eouixins mature, and it has no means of paying the in- terest except from the rentals which the city had contracted to pay; that the city has no other supply for water, and no other franchise has been gi-anted; and that the city and its inhabitants are without protection from fire, except as provided by the plaintiff; that the city is practically the same size it was in 1S87, and the taxable property is substantially the same now as then. As the case stands here upon demurrer, of course we assume these facts to be true. ^ In Hitchcock v. Galveston, 96 U. S. 341, the city council had contracted with the plaintiffs to build certain sidewalks, to be paid for by the city in bonds. The work was partly per- formed, but the city council stopped the work and prevented its completion. An action was brought for a breach of the contract. It was urged that the city had no power to make such a contract, and it had no authority to issue the bonds of the city. The court said: "It is enough for the plaintiffs that the city council have the power to enter into a con- tract for the improvement of the sidewalks; that such contract was made with them; that under it they have proceeded to furnish ma- terial and do work, as well as to assume lia- bilities; that the city has received, and now enjoys, the benefit of what they have furnish- ed; that for these things the city promised to pay; and, after receiving the benefit of the contract, broke it. It matters not that the promise was to pay in a manner not author- ized by law. If paj'ment cannot be made in bonds, because their issue is ultra vires, it would sanction rank injustice to hold that payment need not be made at all. Such is not the law. The contract between the par- ties is in force so far as it is lawful." The court cites in support of the decision the case of State Board of Agriculture v. Citizens' St. Ry. Co., 47 Ind. 407, where the court held that "although there may be a defect of power in a corporation to make a contract, yet, if a contract made by it is not in violation of its charter, or of any statute prohibiting it, and the corporation has by its promises induced a pai'ty, relying on the promises and in exeeutiou of the conti'act, to expend money, and perform his part of the contract, the coi-poration is hable on the contract." We do not wish to be understood as uphold- ing the contract upon which the plaintiff re- lies for any particular period of time, but we are not prepared to say that it is void. Nei- ther would we apply the loile with the same strictness to municipal corporations that should govern private corporations organized for gain. Courts should be governed by the i conditions and circumstances surrounding I mmiicipalities, and regard them as branches I of the sovereign government. When improv- '^ ed methods are offered, which will give to the I city better facilities in the way of water. I lights, and travel, or in any other manner | give to its inhabitants increased safety and protection, the governing power of the city should be free to act; but until such time comes courts should not set aside contracts which have been, in part at least, executed, unless for some good cause. The circum- stances surrounding each particular case will have to largely govern, and no fixed and de- terminate rule can be established. The facts, as presented by the pleadings, are not suffi- cient, in our opinion, to authorize us to say that the contract entered into between the city and the water-works company is ultra vires, and should not, therefore, be enforced. To show the limit to which the supreme court of the United States has gone in uphold- ing franchises of a similar nature to the one under consideration, we quote the language of Mr. Justice Davis, in Binghampton Bridge, 3 Wall. 51: "The purposes to be attiiined are generally beyond the ability of individual en- terprise, and can only be accomplished through the aid of associated wealth. This will not be risked unless privileges are given and securities furnished in an act of incor- poration. The wants of the public are often so imperative that a duty is imposed on the government to provide for them; and, as ex- perience has proved that a state should not directly attempt to do this, it is necessary to confer on others the faculty of doing what AUTHORITY OF MUNICIPAL OFFICERS TO CONTRACT. 227 the sovereign power is unwilling to under- take. The legislature therefore says to pub- lic-spirited citizens: 'If you will emliark with yoiu" time, money, and skill in an enterprise which will accouunodate the public necessi- ties, we will grant you, for a limited period, or In perpetuity, privileges that will justify the expenditure of your money and the em- ployment of your time and skill.' Such a grant is a contract with mutual considera- tions, and justice and good policy alike require that the protection of the law should be as- sured to it." Mr. Justice Valentine, in the case of Brown v. City of Atchison, 39 Kan. 54, 17 Pac. 465, speaking for this court, after a review of the authorities upon the question of corporate power, educed the following prin- ciple: "Where a contract is entered into in good faith between a corporation, public or private, and an individual person, and the con- tract is void, in whole or in part, because of a want of power on the part of the coi-pora- tion to make it or to enter into it, but the con- tract is not immoral, inequitable, or unjust, and the contract is performed in whole or in part by and on the part of one of the parties, and the other party receives benefits by rea- son of such performance over and above any equivalent rendered in return, and these ben- efits are such as one party may lawfully i"en- der and the other party lawfully receive, the party receiving sucli benefits will be required to do equity towards the other party by ei- ther rescinding the contract and placing the other party in statu quo, or bj' accounting to the other party for all benefits received, for which no equivalent has been rendered in re- turn; and all this should be done as nearly in accordance with the terms of the contract as the law and equity will permit." As this court has already decided, the city of Colum- bus had the authority to make a contract for the supply of water for protection against fire; and, as such contract has been entered into and carried out in part, we are not prepared to say that it is void because the authoritif s of the city did not possess the power to make a contract for the period of 21 years. If the contract had only been executory, and no rights had accrued, we might hold otherwise. As to the ratification of irregular contracts, see authorities cited in Columbus Water- Works Co. V. City of Columbus, 46 Kan. 677, 26 Pac. 1046. It is forcefully lu-ged by counsel for the city that under paragx'aph 706 of the General Statutes of 1889 the contract with the water company is void; that a city of the second class cannot create a valid liability which re- quires a tax to be levied in excess of 4 per cent. The paragraph reads: "At no time shall the levy of all the city taxes of the cur- rent year for general purposes, exclusive of school taxes, exceed four per cent, of the tax- able property of the city, as shown by the assessment books of the preceding year." It appears from the pleadings in the former case that the city tax for the year 1890 was 27l^ mills. This does not include the state and county tax, and we think the limitation only applies, as stated, to the city taxes of the current year for general purposes. Adopting this construction of the law, the position of counsel is not tenable. It is recommended that the demurrer to the petition be overi-uled. PER CURIAM. It is so ordered; VAL- ENTINE and JOHNSTON, JJ., concurring. HORTON, C. J. I concur in the judgment recommended to be entered by this court, but not in all stated in the opinion. 228 LOCAL ASSESSMENTS. OSHKOSH CITY RY. CO. et al. v. WINNE- BAGO COUNTY et al. (61 N. W. 1107, 89 Wis. 435.) Supreme Court of Wisconsin. Feb. 5, 1895. Appeal from circuit court, Winnebago coun- ty; George W. Burnell, Judge. Action by the Osbkosh City Railway Com- pany and others against the county of Win- nebago and others. From a judgment for plaintiffs, defendants appeal. Affirmed. Tho action is to set aside a special assess- ment tax, to cancel a tax certificate issued thereon, and to restrain the execution of a tax deed on such certificate. The plaintiff is a railway company, liaving a right of way and roadbed and tracks along Ceape street, in the city of Oshkosh, near the center of the street. The board of aldermen paved and curbed Ceape street with cedar blocks. It charged a part of this improvement against the plaintiff's right of way and roadbed. That the assessment was unpaid, and the right of way and roadbed were afterwards sold, and a tax certificate issued to the coun- tj- of Winnebago. Thex-e was a finding and judgment for the plaintiff, from which the county appeals. H. Fitzgibbon and H. I. Weed, for appel- lants. Felkers, Stewart & Felker, for re- spondents NEWMAN, J. No question is made of the power of the legislature to make the right of way of a railroad company subject to special assessment for the improvement, by paving, of a street in a city, to the extent, at least, to which it is benefited by the improvement. It is not so clear that it may authorize an as- sessment for an improvement which, from the nature of the property, cannot benefit it Dill. Mun. Coi-p. 761-7G8. In this case the important question is, has the legislature made property situated as this property is subject to special assessment for paving the street in which it lies? The answer to this question depends altogether upon what may be the proper interpretation of the statutes which are thought to give the power to make such assessment to the city. The first consideration is whether these statutes are to have a liberal construction or a strict con- struction. It is believed to be elementary that evoiy statute which is in derogation of the right of property, or that takes away the estate of the citizen, ought to be construed strictly. It should never be enlarged bj- an equitable construction. Suth. St Const § 303; 23 Am. & Eng. Enc. Law, 383 et seq., and cases cited in notes. The power to make local assessments is a part of the power of taxation. It is a sovereign power. It re- sides alone in the legislature. It can be delegated, but only by plain and unambigu- ous words. Statuics del ■g.uiiig .sik-u auuiur- ity will be construed strictly; nothing will be taken by presumption or intendment; and such statutoiy powers must be strictly pur- sued. Suth. St Const § 365, and cases cited in notes 4 and 5; Curtis v. Supervisors, 22 Wis. 167; Potts V. Cooley, 51 Wis. 353, 8 N. W. 153, and cases cited. The affirmative is I on the city. It must produce express power in legislative enactment, and show that it has followed, strictly, every legal require- \ ment In re Second Ave. M. E. Church, 66 N. Y. 395. Any doubt or ambiguity arising i out of the terms used by the legislature must be resolved against the power. Minturn v. ' Larue, 23 How. 435. Guided by these prin- ciples of interpretation, the statutes which are claimed to be authority for the levy of this assessment are to be tested. First is section //) 1836, Rev. St, which requires every corpora- tion which owns or operates a railroad in the street of a city to restore the street to its former condition, so that its usefulness shaU not be materially impaired, and "there- after maintain the same in such condition against any effects in any manner produced by such railroad." It would certainly re- quire a very wild flight of imagination to discover in this statute any plain power to make a local assessment on the railroad cor- poration to improve the street The statute, in terms, only requires the corporation to "main- tain" the street, not to improve it Then / « \ there is section 1038, Rev. St. This is in the ^ ^ chapter relating to general taxation. It is no part of the purpose of the chapter to provide for special assessments. The section relates especially to "property exempt from taxation." It provides generally that "the track, right of way," and the other prop- erty named, belonging to raih-oad corpoi-a- tions. shall be exempt from taxation. This is followed by this exception or proviso: "Ex- cept that it shall be subject to special as- sessment for local improvements in cities and villages." It is as if the legislature had said "the track, right of way," and other prop- erty of railroad corporations shall be ex- empt from taxation, "provided, nothing in this section shall be construed as exempting such property from local assessment for im- provements in cities and villages." The proviso in no way changes the force or mean- ing of the purview. It neither enlarges or subtracts from it. Such property would have been and remained liable to local assessments if the proviso had been entirely omitted. Dill. Mun. Corp. § 777. The proviso was added for reasons of caution. It is one of- fice of a proviso to exclude some possible ground of misinterpretation of the act Stud- ley V. Oshkosh, 45 Wis. 380. But if this stat- ute should be held to be an affirmative stat- ute, enacted with a view to make property of this class subject to local a.ssessments, it is, at most, a mere general declaration that such property shjill be subject to local as- sessments for improvements, in cases to ■ , be provided by law; for it has no self-execut- ing force. The cases in which it shall be lia- ble must be defined and limited, as well as the manner of the assessment directed, before LOCAL ASSESSMENTS. 229 such property can really be made subject to such assessments. So the real power to make this assessment, if it exists, is to be found in some other exercise of legislative power. If it exists, it should be found in the charter ^ i]ot the city of Oshkosh. This is chapter 183 -Vof the Laws of ISSS. Subchapter 10, § 3, gives power to the aldermen to make such improvements as were made in Ceape street, and to "charge the cost and expense thereof to the center of the street or alley to any lot or lots fronting or abutting on such street or alley." These are ail the words in the city charter which are claimed to evince the legislative intention to subject the plaintiff's right of way in Ceape street to local assess- ment for paving the street. This statute, in words, gives power to charge the cost of the improvement only against "lots" which front or abut upon the street improved. Waiving all question of strict or liberal con- struction, the court must, at least, be able to see in the words used a legislative inten- tion to make the plaintiff's right of way lia- ble to the assessment. Even with the defi- nition stating that the term "lot" may in- clude "a strip of land," it is not easy to see tliat the term "lot" describes the plaintiff's right of way, with its roadbed and tracks, wholly within the street, and not outside of it, and of indefinite length. Nor is it easy to see that this strip of land, even if it could be termed a "lot," fronts or abuts upon the street; for it is wholly within and a part of the street. The conclusion seems to be ir- resistible that, by the use of the words it has chosen, the legislature has not intended to subject the rights of way of railroad com- panies, in the city of Oshkosh, to such spe- cial assessment. Certainly, it is not clear that the lawmaking power did so intend. The judgment of the circuit court is affirmed. 230 LOCAL ASSESSMENTS. (48 La. Ann.) NELSON et al. t. MAYOR. ETC., OF TOWN OF HOMER. (No. 12,016.) (19 South. 271, 48 La. Ann. 258.) Supreme Court of Louisiana. Feb. 10, 18{>6. Appeal from judicial district court, parish of Claiborne; Allen Barksdale, Judge. Action by A. T. Nelson and others against the mayor and selectmen of the town of Ho- mer. Judgment for defendants, and plain- tiffs appeal. Reversed. J. W. Holbert, for appellants. John A. Richardson, for appellees. McENERY, J. The p-aintiffs, who are tax- payers in the town of Homer, bring this suit to annul certain ordinances of the corporation establishing a high school, and the ordinances assessing and appropriating five mills of the taxes of 1805 for the support and mainte- nance of the school. The reason for the nul- lity of the ordinancf^ is that the corporation of the town of Homer was without power and authority to enact said ordinances, to levy said amount, and appropriate the same for educational purposes. The defense is that under article 209 of the constitution municipal corporations have the power and authority to levy and collect taxes to the amount of 10 mills for municipal purposes, and that an as- sessment for educational purposes is a munici- pal regulation. It is further alleged that the corporation, in accordance with Act No. 110 of 1880, amended its charter, and incorporat- ** ed this power in it. Under the general wel- fare clause of the charter, as originally grant- ed, the district judge rendered a judgment in favor of defendants, maintaining the legality of the ordinances and the assessment and ap- propriation of the tax. The plaintiffs appeal- ed. Article 209 of the constitution, m the pro- viso to said article, authorizes parishes and municipalities to Increase the rate of taxa- tion for the purpose of erecting and construct- ing public buildings, bridges, and works of public improvement. Under this article it would be a wide interpretation to include within its meaning the establishment of and the support of a public school. Public edu- cation is declared by the constitution to be an affair of the state, and it assumes the whole responsibility of public education. It will be unnecessary to discuss the question whether I the legislature by a general law could author- ize local assessments for educational purposes. This question is not raised. But it is certain ! from the provisions of the constitution that ' the legislature is without power to confer this privilege upon any particular political corporation. Const, art. 46. The power claim- ed to levy this tax under the amendment of the charter of the constitution is unfounded. The general assembly is prohibited from pass- ing any local or special law creating corpora- tions or annulling, renewing, or extending or explaining the charters thereof, except as to the city of New Orleans and the creation of levee districts. Article 46, Const. Act No. 110 of 1880 was. in consequence of this pro- hibition, enacted, authorizing existing corpo- rations, by a vote of its members, to alter, change, and amend their charters. There is no power conferrea by the act upon any cor- poration to incorporate within its charter any grant of any privilege not existing in the original charter. Corporations are the crea- tures of legislative will, and can do no act not authorized by their charters, unless it is by implication necessary to carry out conferred powers. In the original charter there was no grant of any right to the corporation of Ho- mer to erect a school building and maintain a high school. It cannot, by its own act, usurp powers not granted. There was no au- thority under the act for the corporation to so amend its charter as to authorize the levy- ing of a tax for the maintaining of a high school, or for any ot'.^er educational purpose. Torian v. Shayot, 47 La. Ann. 580, 17 South. 203; Cook v. Dendinger, 38 La. Ann. 261. The general welfare clause of the corporation cannot be so construed as to permit the exer- cise of an original power, necessary to be granted in the first instance by legislative will. Under this clause many useful and nec- essary exercises of power are allowed, but they are all referable to powers granted, or those necessarily implied. The subject of educa- tion is an important matter, and it is so treat- ed by the state, as it seems to be jealous of the exercise of the power by subordinate po- litical corporations, as it has not granted lo- cal self-taxation for this purpose. This may be the keystone to a euccessful educational system, but the collective people in conven- tion did not so regard it, otherwise it would have found a place in the educational system of the state, and protection in the permanency of the organic law. A high school is not es- sential to municipal government. A system of education is not a part of municipal regu- lation, and the power of the corporation to establish a public school cannot be infen-ed from any power necessary for municipal ex- istence." The judgment appealed from is an- nulled, avoided, and reversed, and it is now ordered that there be judgment for plaintiffs decreeing the nullity of the ordinances men- tioned in the petition, and on which the taxing power and assessment is exercised for the levying of the five-mill tax complained of. l^^fJ^OL W' '^ WHAT CONSTITUTES A "LOCAL IMPROVEMENT. " 231 PAYNE et al. v. VILLAGE OF SOUTH SPRINGFIELD. (44 N. E. 105, IGl lU. 285.) Supreme Court of Illinois. May 12, 1896. Appeal from Sanpamon county court; George W. Murraj', Jutlpe. Proceeding by the village of South Spring- field for the levy of a special tax for the con- struction of a sewer. From a judgment con- firming the levy made, Edward W. Payne and others, property owners, appeaL Re- versed. McGuire & Salgenstein and A. S. IMurray, for appellants. Coukliug & Grout, for ap- pellee. f> WILKINS, J.t • * * ♦ ♦ * The objei-tion to the validity of the ordi- nance most strongly insisted upon is that it is unreasonable and oppressive. It cannot be denied that the sewer provided for in the or- dinance is a local improvement, within the meaning of section 1, art. 9, c. 24, Rev. St It is admitted that this court has frequently sustained special assessments for the construc- tion of sewers, and clearly that could only have been done on the ground that they were local improvements. Being such, authority to make them by special taxation, as well as by special assessment, is expressly given by sec- tion 1, supra. In City of Galesburg v. Searles, 114 111. 217, 29 X. E. 686, it was expressly held that an ordinance providing for the coustruc- iiyn of a sewer, to be paid for one-half by general tax and one-half by special tax, to be levied on contiguous property, was valid. It is true that ordinance provided that the special tax should be levied in proportion to the benefits accruing to the contiguous prop- erty, but it was said: "Having determined to raise only one-half the cost of the improve- ment by special taxation of contiguous prop- erty, it was open to the city council to adopt which one of the various modes of special taxation of the property they saw fit, — wheth- er according to frontjige of the property, value, benefits received, or otherwise." That grad- ing or paving a street, and the laying of side- walks are local improvements, to pay for which a special tax may be levied upon contiguous property, in proportion to frontage, has been the law of this state since the decision in White v. People, 94 111. 604. That the benefits I accruing to property contiguous to a street in ' which a sewer, like the one contemplated by . this ordinance, is laid, differ in kind, and / perhaps in degree, from those derived from improving the street itself, or laying side- I walks, is admitted; but the benefits are cer- [ tainly no less local to the adjacent property in 1 Part of the opinion is omitted. the one case than in the other. But it i.-^ said a special tax levied on the lots of laud lying on the street in which the sewer is laid, in proportion to frontage, in this case, oper- ates unjustly, and is therefore unreasonable. We said, in White v. People, supra: "Wheth- er or not the special tax exceeds the actuiil benefit to the lot is not material. It may be supposed to be based on a presumed equiva- lent. The city coimcil have determined the frontage to be the proper measure of proper- ty benefits. That is generally considered as a very reasonable measure of benefits in the case of such improvements, and though it does not in fact, in the present case, repre- sent the actual benefits, it is enough that the city council have deemed it the proper rale to apply." This doctrine has been assailed time and again, but never departed from by this court. ^ It was said, in City of Springfield v. Green, 120 lU. 269, 11 N. E. 261, after cit- ing numerous decisions: "If it be possible to settle any question by repeated decisions, all the same way, the present surely ought to be regarded as finally and irrevocably settled." And in the late case of Chicago & A. R. Co. V. City of Joliet, 153 111. 649, 39 N. E. 1077, it was reannounced, with a citation of numerous later decisions to the same effect. Counsel seem to imderstand that the cases of City of Bloomington v. Chicago & A. R. Co., 134 111. 451, 26 N. E. 366, aud City of Blooming- ton V. Latham, 142 111. 462, 32 N. E. 506, are to the contrary. This is a misconception of those cases. In each of them the ordinance before the court showed upon its face that the property sought to be taxed was not only not benefited by the improvement, but actual- ly damaged thereby. There the question was not whether the tax exceeded the benefits, but whether a special tax could be legally levied at all; it appearing that no benefits whatever could possibly accrue to it. Here it is not pretended that the property of objectors will j not be benefited by the sewer, nor is it claim- ed that the improvement is not one proper to be made. The sole objection is that, by adopting the system of levying the special tax by frontage instead of according to benefits to be estimated by commissioners, injustice to property holders has been done, and. as we have seen, that question was not open to con- sideration in the county court, nor is it subject to review here. We do not think the position that the ordinance is invalid, because it does not provide for the levying of a special ta.x upon the railroad right of way, is tenable. The railroad right of way is not, in any prop- er sense, contiguous to the sewer, which sim- ply passes through it underground. i 1 Part of the opinion is omitted. /^K.we/«=^ ^k"^^" h^^ 232 LOCAL ASSESSMENTS. PALMER et al. v. CITY OF DANVILLE. (38 N. E. 1067, 154 111. 15G.) Supreme Court of Illinois. Nov. 26, 1894. Error to Vermilion county court; John G. Thompson. Judge. Petition by the city of Danville for confirma- tion of a special tax. Levin T. Palmer and others filed objections. There was judgment of confirmation, and the objectors bring error. Reversed. D. D. Evans and E. R. E. Kimbrough, for appellants. Wm. J. Calhoun, for appellee. ' CARTER, J. This writ of error is prose- cuted to reverse the judgment of the county court of Vermilion county, confirming a special tax levied to pay the cost of certain sewer and water sei-vice pipes laid for house connections with the sewer and water mains in Main street, in the city of Danville. Numerous objections were filed and insisted on in the county court, and are renewed here by plaintiffs in error, but it will not be necessary to consider them all in the disposition of the case. It is urged in the objections, among other things, that the several water and sewer serv- ice pipes were intended for the use of the in- I dividual lot owners, and that the public could ' have no access to, use of, or interest in them whatever, and that, therefore, they did not con- stitute a "local improvement," within the mean- (ing of the law. We do not regard this objec- tion as well taken. All of the several water and sewer connections must be considered to- j gether, as one entire work, and, when taken I in connection with the use of the mains which \ had already been provided, a local improve- ment especially useful and beneficial to the I residents on the contiguous property, and gen- erally useful and beneficial to the city, w^as provided for. At least, the city council must / have so regarded it in passing the ordinance, and we do not think there was any lack or abuse of power in the respect mentioned. War- ren V. City of Chicago, 118 lU. .320, 11 N. E. 218; Louisville & N. R. Co. v. City of East St. Louis, i:^ 111. 6.j9, 2o N. E. 9<52; City of Chi- cago V. Blair, 149 111. 310, 36 N. E. 829, and cases cited. It is also urged that, as the water mains mentioned in the ordinance belonged to a pri- vate company, the city had no control over them, except by virtue of the police iwwer, and by virtue of rights reserved in granting the license to lay the mains in the street, and that such reserved rights did not include the right in the city to make water connections for private individuals, as a local improve- I ment. It was stipulated in the court below, ' between the parties, that the water main Is ( maintained, under the ordinances of the city, I for the use of the city and its inhabitants; and ' the question is prosontod whether the mere I fact that this main lielnngs to a private com- pany, though locatwl in a public street, and I maintained for the use of the city and its in- habitants, under the provisions of an ordinance I of the city, renders the ordinance and the pro- I ceedings under it in this case void. We do not l think it does. The ordinance under which the I water main was laid and is maintained was not given in evidence, and we must presume, in the absence of any evidence to the contrary, that the city has preserved and guarded its own rights and those of its inhabitants in its contract with the water company. These wa- ter-pipe connections are a part of the entire im- provement, and may be regarded as important in making the sewer and its connections more available and useful than they otherwise would be. In making this improvement so that it would be most useful and beneficial to the public and the propeity owners, the city had a large discretion, with the proper exercise of which the courts cannot interfere. Lightner v. City of Peoria, 150 111. 87, 37 N. E. 69. It may be conceded that, to make the water-pipe connections available or beneficial, it was the duty of the city council to provide water mains to convey water to them, — in other words, to make pi-ovision for a supply of water; other- wise, the connections would be useless, and would not be .an impi'ovement at all, of oeneflt to any one. Hutt v. City of Chicago, 132 111. 352, 23 N. E. 1010. This duty the city has discharged, and doubtless in the manner that seemed best for itself, the property owners in- terested, and the inhabitants generally; and whether it should lay the main and furnish the water itself, or hire a private person or cor- poration to do so, is a question for the city council to decide, and not for the courts. It might be that if the contract with the water company were in the record, and the court could see that its terms and provisions were such as to make the ordinance providing for this improvement oppressive and unjust, in levying this tax to make connections with tlie water main which would never be of benefit to the contiguous property, tliis court would hold the ordinance invalid; but the record shows nothing more on this subject than that the water company owning the main maintains it, under ordinances giving it such right, for the use of the city and the inhabitants. In Holmes v. Village of Hyde Park. 121 111. 128, 13 N. E. 540, followed by Hunerlierg v. Same, 130 111. 1!')6, 22 N. E. 486, and Leman v. City of Lake View, 131 111. 388. 23 N. E. 346, it was decided that the owner of property specially assessed for the puniose of improving a street cannot be heard to urge as an objection to the assessment that the proposed street is located on private property, and that the city has not acquired title thereto. And it was held that the assessment may be levied before the title to the proposed street has been acquired by condenuiation or otherwise. In Leman v. City of I^ike View. 131 111. 391, 23 N. E. .346, this court said: "The corpoi'ate authorities of cit- ies 'and villages may levy special assessments for the inii)rovement of a proiwsed street be- fore ac-;uiring title to the soil by condemnation or otherwise, and may afterwards take the WHAT CONSTITUTES A "LOCAL IMPROVEMEi^T." 233 necessary steps to condemn the land, and have the compensation and damaj?es to be paid as- sessed; and the owner of the property special- ly assessed for grading and paving such street cannot interpose the objection to the confii-ma- tlon of such assessment that the city or vil- lage had not acquired title to the soil to be graded and paved." See, also. Village of Hyde Parlv V. Borden, 94 111. 26. Those cases, though not precisely in point, lend force, by analogy, to the views here expressed. i 1 Part of the opinion is omitted. 234 LOCAL. ASSESSMENTS. BUCKLEY V. CITY OF TACOMA et aL (No. 1,233.) WINGATE et al. v. SAME et aL (No. 1,234.) (37 Pac. 441, 8 Wash. 253.) Supreme Court of Washington. June 27, 1894. Appeal from superior court, Pierce county; W. H. Pritchard, Judge. Action by J. M. Buckley and by Robert Wingate and others against the city of Ta- coma and others to set aside assessments for local improvements. From judgments for defendants, plaintiffs appeal. Reversed. Doolittle & Fogg, for appellant Buckley. S. C. Milligan, for appellants Wingate et al. F. H. Mm-ray and S. A. Crandall, for re- spondents. STILES, J. The enabling act for cities of the first class (Gen. SL § 520) provides that any such city fi-aming a charter for its own government shall have power (subdivision 10) "to provide for making local improve- ments, and to levy and collect special as- sessments on property benefited thereby, and for paying for the same or any portion there- of;" (subdivision 13) "to determine what work shall be done or improvements made at the expense, in whole or in part, of the own- ers of the adjoining, contiguous, or proxi- mate property, or others specially benefited thereby, and to provide for the manner of making and collecting assessments therefor." Section 52 of the charter of Tacoma begins thus: "The city government of Tacoma shall have powers, by ordinance and not other- wise," repeating the language of the stat- ute, with the exception of the last clause of subdivision 13, for which there is substitut- ed: "Provided the manner of making and collecting assessments therefor shall be as prescribed in this charter." But when the reader of the charter gets to article 12, which is a complete code of street improvement and assessment law, he finds that not an ordinance, but a resolution, is required. Ap- pellants make a strong point of this, and in- sist that anything less than an ordinance renders the whole proceedings leading up to a street assessment void. But the learned judge who heard the case below held that the specific provisions of the article mentioned must govern the general ones of section 52, and we quite agree with his conclusion. Al- though the enabling act conferred the power, it did not undertake to say how it should be exercised. Very Often such powers are made effective through general ordinances, but here the charter framers, and thereby the city en masse, have seen fit to prescribe even a more solemn and formal law on the subject by providing for a charter system which is rigidly binding upon both the legislative and executive powers of the corporation. We do not see how any substantial injiu-y can be done, either, through this consti'uction, and it remains merely to examine the record, to see how the mandates of the charter have been carried out. The charter provides for the establishment of a board of public works, with a clerk, and specifically delegates to it many executive duties, and the appointment of sundry oflB- cers, among whom is a city engineer, who is required to make all necessary sui'veys of public work under the direction of the board. Article 12, so far as is necessary for the con- sideration of this case, reads as follows: "Sec. 135. AU applications for establish- ing or changing the grade of any street or streets, the improvement of public gi'ounds or buildings, the laying out, establishing, vacating, closing, straightening, widening or improvement of any street, road or high- way, or the laying out or opening of any new street through public or private prop- erty, and for all public improvements which involve the necessity of taking private prop- erty for public use, or where any part of the cost or expense thereof is to be assessed up- on private property, shall be made to said board, and such work or improvement, shall not be ordered or authorized until after said board shall have reported to the city coun- cil upon said application. But before any work or improvements as above contem- plated shall be commenced, the city council, when recommended by the board of public works shall pass a resolution ordering that said work be done; provided that all applica- tions for the pm-pose of changing the grade, or of making any improvements upon any sti'eet, avenue or alley, within the city shall be signed by at least three resident freehold- ers, owners of property abutting upon said sti'eet, avenue or alley; provided, however, that the city council may without petition or recommendation have power to order the im- provement of any sti-eet, avenue or alley, or any part thereof by a two-third vote of all members of the city council. "Sec. 136. Upon the adoption or passage of any resolution by the city council for the im- provement of any street, avenue or aUey, the board of public works shall cause a sm-vey, diagi'am and estimate of the entire cost thereof, to be made by the eity engineer; said diagram and estimate shall be filed in the office of the board of public works for the inspection of all parties interested there- in. The clerk of said board shall forthwith cause a notice of such filing to be published daily for ten daj-s in the official newspaper; such notice shaU contain a copy of the said resolution passed by the city council, and must specify the street, highway, avenue or alley, or part thereof, proposed to be im- proved, and the kind of improvement pro- posed to be made, together with the esti- mated cost and expense thereof, and also a general description suflieient for indontifica- tion of the projierty to be charged with the expenses of making such improvements, and that if sufficient remonstrance be not made PRELIMINARY MATTERS. 235 before the expiration of ten days after the date of the last i>ublication, said improve- ment will be m:ule at the exi^onse of the owners of the lots and parcels of land de- scribed in said notice as hereinafter provid- ed; but if within ten days after the final publication of said notice the persons own- ing one-half or more of the lots or parcels of land to be taxed for said improvements shall tile with the clerk of the board of pub- lic works a remonstrance against said im- provement, grade or alteration, the same shall not be made at the expense of the own- ers of tlie lots so described, unless the city council, by a two-thirds vote of all the mem- bers thereof, order s;iid improvement made notwithstanding such remonstivance. "Sec. 137. If no remonsti'ance be made and filed as provided in the last preceding sec- tion, then owners of the lots and parcels of land described in said notice shall be deem- ed to have consented to such improvement; or if such remonstrance has been made and filed, and the city council has ordered such work to be done or improvement to be made, the expense thereof shall be charged to the property described in said notice in the man- ner as hereinafter provided, and the board of public works, shall, at its earliest con- venience, and within sis months thereafter, establish the proposed grade or make the proposed improvement; provided, that no im- provement shall be made when the estimated cost thereof shall exceed 50 per cent, of the assessed value of the property to be assessed. "Sec. 13S. Such cost and expenses of mak- ing said improvement shall be assessed upon the adjoining, contiguous or proximate lots or parcels of land described in said notice." Without petition, the council passed this resolution, by imanimous vote: liesolved by the city council of the city of Tacoma, that said city council hereby declares its in- tention to improve N street, in Buckley's ad- dition, from Steele street to Pine street, at the expense of the abutting owners. Grad- ing and sidewalking. To be done by day labor." Tlie board of public works, in due course, published a notice as follows: "No- tice is hereby given that tlie following is a true copy of a resolution of intention passed by the city council February 27, 1892, to wit: 'Resolved, by the city council of the city of Tacoma, that said city council here- by declares its intention to improve N street, in Buckley's addition, from Steele street to Pine street, at the expense of the owners of the lots and parcels of land affected by said improvement, according to the city charter; said improvement to consist of grading to an established grade, and building sidewalks on both sides thereof. And the city engineer is hereby ordered to make a survey, diagram, and estimate of the said improvement, and file the same in the oflSce of the board of public works.' That the survey, diagram, and estimate of the cost of said improvement were filed in the oflBce of the board of public works March 7, 1802, by the city engineer, and the estimated cost thereof is $1,850." The filing of a diagi'am and estimate con- sisted in the engineer's writing in an esti- mate book kept in the office of the board the following: N Street in Bucklcv's Addition. Steele to Prospect cut 78 Prospect to Wliite " 53D White to Oak 't l,-!.>3 Oak to Race " 57.5 Race to B'd'y " W mi 1,0.55 " 157 46 317 curb 810 270 " 29 " 2iO Totals 2,737 1,.575 1,30'J 2,136 lineal feet of 7 walk. 80 " " " " aprons. 34-t " " 6 " Xings. 2,i:;i; " " gutters. 424 " •• drain box. 1.800 feet frontage. Estimate March 7, 1893, $1,8.50. No remonstrance of the owners of half or more of the lots to be assessed for the im- provement was filed, and the board, with- out further order from the council, proceeded to make the improvement, completing it Jime 4, 1892, at a cost of .$1,SS5.&4. August Gtb, following, the council passed an ordinance (No. GSS) entitled: "An ordinance providing for the improvement of N street from Steele street to Pine street, creating a fund, and providing for payment by assessment upon the adjoining, contiguous, and proximate lots or parcels of land, under the provisions of the city charter now in force,"— the body of this ordinance being as follows: "Be it ordained by the city of Tacoma: Section 1. That N street in the city of Tacoma be im- proved from Steele street to Pine street, ac- cording to the plans and specifications of the city engineer on file in the office of the board of public works. Sec. 2. That a ftmd be, and is hereby, created, and an assessment be levied and collected upon the adjoining, contiguous, or proximate lots and parcels of land, as provided by the city charter now in force, to defray the cost and expense of said improvement, according to the provisions of the city charter, whicli a.ssessment shall be a lien upon the property liable therefor. Sec. 3. The board of public works is hereby authorized and directed forthwith to enter upon and complete said improvement by day labor, and to proceed in the premises as pro- vided in the city charter. ♦ * *." In these cases the appellants sought to enjoin the collection of the assessments levied upon lots owned by them, but the relief was refused. Four things plainly appear from the record thus set out, viz.: (1) No resolution was passed ordering any improvement made on N street. (2) The engineer did not file a dia- gram in the oflice of the board. (3) Neither the board nor its clerk published a notice containing a copy of the resolution that was passed. (4) The notice contained no descrip- tion of the property to be charged. But the respondents' position is that this does not matter, as something was done which was, in each particular, intended to comply with 236 LOCAL ASSESSMENTS. the mandatory provisions of the charter. The question is, when did the city obtain jurisdiction to malce this improvement and charge abutting property with the expense? Obviously, so far as these cases go, it was wlien such proceedings had been talven by tlie city as tliat the owners of the property to be charged had had the notice prescribed by the cliarter, and were bound to remon- strate or be estopped. To bring matters to such a point in a case where the proceed- ing is without petition, the council must have ordered tlie improvement, tlie engineer must have filed a diagram and estimate, and the clerk of the board must have published the notice. 1. The Resolution. The initiative step is the resolution which orders the improvement to be made. No such order can be intelligible which does not reasonably describe the kind of improvement intended, not, as counsel for respondents suggests would follow, with such particularity as would be necessary in the making of a contract for the work, but with such fullness of description as woxild enable an engineer who had no previous familiarity with the matter to make his diagram and estimate after survey of the street. Allow- ing that the verbless plu-ase used in the reso- lution before us means that it is the intention of the council to improve the street by grad- ing it and consti'ucting sidewalklng, the query at once suggests itself, what is to be the ex- tent of the grade, and what kind of sidewalk is proposed? There may or may not have been an established grade on N street, and, if there were such a grade, it may or may not nave oeen the intention to conform to It in making this improvement. There is an infinite variety of sidewalks, — wood, iron, stone, brick, concrete, — of more forms than there are materials, some cheap and some expensive, but all sidewalks. How could the engineer make an estimate of the cost, or the board construct the work, with- out substantial directions in these particu- lars? The answer comes promptly with the suggestion: either they could not proceed at all, or they must proceed according to their own ideas. In this instance they took the latter course, but without any authority, since it lies with the council alone to prescribe the method of making all such improvements. S<.)mething is suggested in argument as to there being general ordinances of the city governing the improvement of streets, which served as a guide to the engineer and board of public works. There is nothing of this in the record, and, if there were such ordi- nances, they should have been referred to in the resolution in such a way as tJiat parties interested would know where to look for a description of the kind of improvement in- tended. Streets are not, and usually cannot be, made after one pattern, like the inter- changeable parts of a machine. One way of making an improvement may be substan- tially as good as another, and may serve the purpose just as well, although the difference in cost may mean an easy payment by the owner in one case and subst:intial ruin in an- other. It is not to be supposed that the coimcil would overlook such considerations, but that it would endeavor, while prosecut- ing a reasonable improvement, to lighten the burden of expense as much as possible in each particular case, without regard to any fixed, inflexible rule of procedm-e. To ac- complish this it must know the cu-cumstances surrounding the proposed work, and with this knowledge it can easily prescribe the general features of the improvement. To do otherwise is to cut off from property owners all knowledge of what they wiU be expected to answer for, and to deprive them of the opportunity to remonstrate in sufficient num- bers if they see fit. But the worst of such a loose system is that it leaves to mere ex- ecutive officers the exercise of a large dis- cretion which the charter does not confer upon them. In other cases, which are also before us, the evil of such a system appears clearly exemplified. But perhaps the great- est defect of this resolution is that, while it declares the intention of the coimcil to im- prove N street, it does not order anything, and fimiishes no basis for any action on the part of the engineer and board of public works. Counsel for the respondents endeav- or to excuse the method of procedure by resolution of intention by saying that the council had merely followed a habit acquired under the charter of 1886 (section 144). But under that charter the council itself con- trolled the work. The determination of the character of the work was equally necessary, and no such work could be done at all at the expense of the property except upon petition of the resident owners of more than one-half of it. But, be that as it may, the present charter had been in opei*ation a year and a half when these proceedings com- menced, and the "habit," imder the old char- ter, cannot be accepted as an amendment to the new one. The resolution of intention should have defined the improvement intend- ed, and directed the board of public works to proceed with its execution as defined, after notice, and upon the failure of prop- erty owners to present a sufficient remon- strance. 2. The Diagram and Estimate. The charter prescribes that a diagram and estimate shall be filed after a survey by the engineer. So far as the property owner is concerned with the estimate, the gross estimate of the cost and the total amount of frontage would seem to be about all he is interested in, since the charter method of payment is according to the front foot, and he can be charged for nothing in excess of the estimate. These two items, therefore, would enable him to calcu- late his probable expense. But the diagram, if it serves any purpose at all to the owner, must be intended to show hi in how the Im- provement, when completed, will probably af- PRELIMINARY MATTERS. 237 feet his property, so that he can intelligently determine whether he will remonstrate or not. It may be of the very highest impor- tance to him to know whether he is to be left on the brink of a cliff or at the foot of a trestle; whether the assessment he will be called upon to pay will be his total expense, or whether this will be but the beginning of a large outlay necessary to protect his fi'ont or restore it to a safe, convenient, and decent condition. Perhaps, in the case of a new and uninhabited street, these would not be very important matters practically, but it is to be remembered that this charter prescribes a universal rule for all cases of street changes and improvements, and that the precedent laid do^vn as a nile for a lot-booming street out in the woods makes the same rule that will be applied should the grade of the most important street in the city be raised or low- ered. There was no attempt to comply with the charter in the matter of a diagram in this instance, and therefore one of the purposes of giving a notice was rendered futile. 3. The Notice. By the notice published the owners of property abutting upon N street from Steele to Pine were given to suppose that the council had passed a resolution which was never before that body. The framer of the notice appears to have been apprehensive that the resolution as pnssed was defective in some particulars, and there- fore he changed it, and added to it matter enough to more than double its actual length. The publication of a copy of the resolution in the notice is intended to bring home to the property owner information that the council has acted in a matter of Interest to him, and to let him know precisely what it has done and proposes to do. This copy to be pub- lished means a literal copy, according lo the usual way in which the word is used, and not tlie construction which the clerk of the board of public works may put upon the meaning of the resolution. However, in .ius- tice to the clerk in this instance, it ought, perhaps, to be said that he had nothing what- ever to do with the publication, which -svas made by the individual members of the board, thus adding one more item to the list of cliarter infractions. The notice is by the charter required to specify the kind of im- provement proposed to be made, and 1o con- tain a general description sutiicieut for iden- tification of the property to be charged. 1 he tii'st of these requirements would be met by the copy of the resolution if that document contained any sufficient specification; tlie sec- ond gives rise to further consideration. The resolution in this case declares the intention to be to improve "at the expense of the abut- ting owners." The notice improves upon the original by the plu-ase, "at the expense of the owners of the lots and parcels of land af- fected by said improvement, according to the city charter." Neither is a correct statement, critically considered, for the expense is not charged upon the owners, but is assessed to land without regai'd to ownership. But this is a matter of small consequence. The re- spondents' reply is that section 13S of the charter makes it oljligatory upon the city to levy the assessment in a certain way, each lineal foot of frontage along the line of the improvement paying its proportion of the to- tal cost; so that every person owning proper- ty along a street, knowing the law, must know that, when that street is to be improved, his property will necessarily be included in the assessment. The argument is well enough as far as it goes. But what is it worth in the face of the charter direction? According to this theory, when the charter required the notice to specify the street, or part thereof, proposed to be improved. It should have stopped, because the owner could well enough reason out the necessary conclu- sion as to the liability of his property. It went on, however, and specifically required the property to be charged to be described in a way sufficient for identification; and, moi'e than this, the very first clause of section 138 is in these words: "Such cost and expenses of making said improvement shall be as- sessed upon the adjoining, contiguous or proximate lots or parcels of land described in said notice, in the following manner;" tlnis emphasizing what seems to us to have been the clear intention, viz. that each owner should have laid under his eyes specific in- formation that his property was to be as- sessed, without any resort on his part to ar- gument or conclusion. And this case fm-- nishes an excellent illustration of the value of such a requirement, for where lots lie end- wise to a street they are to be assessed their full share of the cost according to frontage, but where they lie lengthwise half of the cost is to be assessed to the first lot, and the other half to other lots in the rear to the cen- ter of the block. Now, it happens that N street runs through blocks in all of which the lots lie lengthwise along it, and there are sixteen lots in each tier, so that one lot must pay half the expense assessed on a huudred feet frontage, and seven lots pay the other half. Could the holder of a deed to lot 27 in block 7, which is tlie sixth lot from the sti'eet, without a familiarity with the lot and blook system of Buckley's addition, which is not to be presumed, know whether his lot would be within the assessment district, imless he hunt- ed up a plat? Had he not, under the express language of the charter, a right to expect to see, in a notice of the improvement of N street, his lot specifically named, or at least "lots 2o to 32, inclusive, in block 7," which would have been a sufficient description in this instance, even for a deed? If he did not, then of what use is the minute particularity of this charter in the matter of street im- provements? If the city's officials can over- ride these plain, mandatory provisions in the many particulars already pointed out, and improve streets ad libitum, and the property owner be bound on theories of substantial compliance, estoppel, waiver, benefits, or failure to tender fair value, we fail to see any 238 LOCAL ASSESSMENTS. sensible reason for such provisions La a charter. But the people who pay for streets made the charter, and, while they granted to the public authorities most liberal powers, by permitting the ai'biti'ary improvement of streets at local expense, they emphatically reserved to themselves the right to have three things distinctly brought to then* knowledge, viz.; (1) What improvement it is proposed to make; (2) what the cost is to be; (3) what property is to be charged with the expense. This knowledge they declai-ed must be af- forded in a certain way, and after that they reserved the right to remonstrate, and to have a two-thirds vote of the council to overcome their objections. It is unnecessary to cite authorities on these points. The A, B, C of the laws of municipal corporations, that the power to levy special assessments is to be construed strictly, that the mode prescribed Is the measure of power, and that material re- quirements must be complied with before there is any liability, is all that need be quot- ed. Spokane Falls v. Browne, 3 Wash. St. 84. 27 Pac. 1077. An assessment made con- trary to these principles is void, and injimc- tion lies to restrain its collection. Dill. Mun. Corp. §§ 803, 804; Hill, Inj. § 539. 4. It only remains to determine whether Ordinance No. 688 had any effect to validate the assessment. That it did not must be ap- parent at a glance. The work had been done beyond recall, and no remonstrance of prop- erty owners could have any possible effect. That it gravely ordered the board of public works to proceed with an improvement which had been completed two months before only made its weakness the more apparent. Why it should have been passed, unless through a consciousness on the part of the council that what had been done in the matter was wholly without force to render an assessment valid, it is hard to guess. "Before any work or im- provement * • • shall be commenced, the city council * ♦ * shall pass a resolution ordering said work to be done," is the lan- guage of the charter, and, if anything, its i most mandatory provision. That any such I proceeding is unavailing as a ratification, see Newman v. City of Emporia, 32 Kan. 45G, 4 Pac. 815. We regret to disagree with the learned judge who passed upon these cases in the su- perior court, and who prepared a careful and extended opinion, which has been presented to us by counsel. But, either the point was . not pressed, or the opinion fails to observe, 1 that the objections raised by the appellants go to the jurisdiction of the city to make the I improvement at all at the expense of abut- ' ting property, by reason of a complete failure to carry out the plain provisions of the char- | ter, which were conditions precedent to the exercise of the power. Under these circum- stances there is no greater legal or equitable right in the city to be reimbursed its outlay than there is in a trespasser upon land who I makes valuable improvements and is dispos- ' sessed by an ejectment suit. It has done what it did in its own wrong, without previ- ously qualifying itself to have reimburse- ment; and to now declare that, because the law upholds local assessments on the theory of benefits, a city which omits the steps nec- essary to bring it under the operation of that law shall have the same right to enforce its assessments as one which takes those steps, would be to deprive the property owner of that which the charter in distinct terms gives him, viz. a right to be heard upon the ques tion of the advisability of the improvement before it is undertaken. There may be cases in which such circumstances exist as should estop an owner from objecting to an assess- ment in any event, but we do not find them in these cases. The judgments are reversed, and the causes remanded for the entry of judgments in accordance with the prayer of the complaints. DUNBAR, 0. J., and ANDERS and SOOTT, JJ., concur. PRELIMINARY MATTERS. 239 CITY OF ATLANTA v. GABBETT. (20 S. E. 30G, 93 Ga. 20G.) Supreme Court of Georgia. Nov. G, 1893. Error from superior court, Fulton couuty; Marsliall J. Clarke, Judge. retition by Sarah E. Gabbett against the city of Atlanta to restrain the collection of executions issued to enforce the payment of assessments for sewer construction. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, de- fendant brings error. Attirmed. The following is the official report: Mrs. Gabbett, by her equitable petition, sought to enjoin the city of Atlanta from col- lecting two executions, — one issued, to enforce an assessment against her property on ac- count of the construction of what is known as the "Butler Street Branch Sewer" through her property in Atlanta, and the other issued to collect a similar assessment on account of the construction of what is known as the "Kice Sti-eet Sewer" through her property-. The jiu'y, under the direction of the court, made a verdict in favor of enjoining alto- gether the collection of the first execution mentioned, and of enjoining the collection of one-half the assessment remaining after the deduction of certain admitted overcharges on account of the construction of the Rice street sewer. The motion for new trial made by defendant was overruled, and it exceptetl. The motion contained the grounds that the verdict was contrary to law, evidence, etc. Also, because the court erred in admitting in evidence, over defendant's objection, tlie testimony of G. W. Adair, to the effect that only a small part of the area of the plain- tiff's property was susceptible to direct drain- age by the sewers constructed by defendant through plaintiff's property, and for the con- struction of which the executions in question were issued. Defendant's objection was that the rate and method of the assessments against the property of plaintiff for the build- ing of the sewers were fixed by the act of November 8, 18S9, amending the charter of Atlanta, and that it was not competent for plaintiff, under the pleadings, to have th<> question of the reasonableness or unreason- ableness of these statutory assessments sub- mittes us that it is wrong, and that an injustice has been done. The rule is well established that tlie assessments for ben- efits for sti'eet improvements, w^here the com- missioners have been over the gi-ound, and examined the premises, and made their re- port of estimates according to the principles prescribed in the charter, wiU not be set aside upon conflicting evidence of the justice or sufficiency of said assessment. It must clear- ly appear that iiijib^tice has been done before an assessment will be set aside upon aU the facts. This is the rule, notwithstand- ing the statute which authorizes tlie court to determine disputed questions of fact as well as law. Jelliff v. Newark. 48 N. J. Law, 101, 2 AU. Rep. 627; Hegeman v. City 244 LOCAL ASSESSMENTS. of Passaic, 51 N. J. Law, 113, 16 Atl. Rep. 62. It will be rememl)(>re(l tliat the prose- cutors were iu-.i,anit applicauts for this im- provement, and that this improvement af-, fords access to the populous part of KuLlier- ford and other places from tlieir lands along the river, and renck'rs the lands of the pros- ecutors available for ;ilmost any use,— that of residence, or otlier uses; tliat this improve- ment is an outlet to other places besides Rutherford. It opens a large tract of land for use; opens it to the main portion of Ruth- erford, and their river fi'ont is made avail- able. The improvements run nearly through the middle of a large tract belonging to the prosecutors, and, according to their own plans, open it up to development. The (luestion of benefits and damages to their lands has been extensively discussed, and many witnesses have been called on both sides. It appears in evidence that the prose- cutors, before the improvement was com- menced, and at a time when they had jouied with othei-s in applying for it, were willing to be assessed quite heavily for it. Some of the witnesses think that a portion of the ex- pensovs should have been a bui-den upon the bo^rough. Some fix a small proportion. Oth- ers fix a large proportion. Others contend that it should all be borne by the land ben- efited. The conclusion, from an examina- \ tion of the evidence in connection with the report of the commissioners, is that the great weight of the evidence is in support of the assessment as made. A discussion of tliis o^^.dence in detail appears to be useless. The fact that the evidence is conflicting a» to benefits does not suflice to disturb the as- sessment. Jelliff V. Newark, 48 N. J. Law, 101, 2 Atl. Rep. 627; Hegeman v. City of Passaic, 51 N. J. Law, 113, 16 Atl. Rep. 62. The assessment must be sustained. METHODS OF APPORTIONMENT. 245 CAIN V, CITY OF OMAHA. (GO N. W. 368, 42 Neb. 120.) Supreme Court of Nebraska. Oct. 2, 1894. Error to district court, Douj^las county; Hopewell, Judge. Action by Urin R. Cain against the city of Omaha to recover an amount paid for a tax alleged to be invalid. Judgment was rendered for defendant, and plaintiff brings error. Reversed. B. G. Burbauk, for plaintiff in error. W. J. Conuell, for defendant in error. IRVINE, 0. The plaintiff was the owner of a strip of land about 900 feet long, and 189'^i feet deep, fronting on Locust street, in tlie city of Omaha, designated as "tax lot 57." For the pui-pose of opening Twenty- Second street from some point south to Lo- cust street, the city appropriated a strip of land GG feet wide across the land of the plaintiff. The result of opening this sti'eet was to leave tax lot 57 in two tracts,— one extending east from Twenty-Second street, so extended, 314 feet; the other extending west from Twenty-Second street 507 feet. The plaintiff was awarded .^3,010 for the strip of land so taken. In order to pay this award, a. local assessment was levied on lot 57 and other property. The plaintiff paid that por- tion of the assessment levied on lot 57 under protest, having objected to the levy before tlie board of equalization, and then brought his action, under Comp. St. 1889, c. 12a, § W. to recover back the taxes so paid as be- ing invalid, unjust, and inequitable. It was f alleged that the amount assessed upon tax ' lot 57 was exorbitant, unjust, and illegal, and in excess of the special benefits con- ferred, and that property south of said tax lot was not assessed at all, although equally benefited. These allegations were put in f issue. There was a trial to the court, and a I finding and judgment for the defendant, . from which the plaintiff prosecutes error, ' assigning practically only that the finding ' and judgment are not sustained by tlie evi- dence. The city rested its case upon the plaintiff's evidence, and there is no conflict whatever in the proof. The city has not furnislied us with a brief, and we are not in- formed upon what grounds tlie learned district judge determined the case,— perhaps from a doubt of the authority of the court to review the assessment in such a proceeding. The uncontradicted evidence shows that the whole amount awarded for the appropria- tion of property was to the plaintiff for the strip of land referred to. Of the $3,010 so awarded, $1,000 was levied upon that por- tion of lot 57 lying east of Twenty-Second street, $1,000 on that portion lying west of Twenty-Second street, and the remainder in small amounts on land lying on either side of Twenty-Second sti'eet north of Locust, ex- tending back from Twenty-Second street 184 feet, and north from Locust street six blocks. The fact that two-thirds of this tax was levied upon the remainder of the ti-act a part of which was appropriated, and the other one-third distributed in very small sums over a vast area, is in itself sutliclent to excite grave suspicions as to the bona tides of the proceedings. Cain had subdivided lot 57 into IS lots, upon which he constructed houses. The evidence is uncontradicted that j no portion of lot 57 rcM^eived any benefit from the opening of Twenty-Second street except ; the two lots which were thereby given a frontage upon that street,— in other words, made corner lots by the improvement,— and that the benefit to those lots did not exceed $150 each. It is elementary constitutional [ law that the only foundation for a local as- sessment lies in the special benefits conferred by the improvement, and tliat a local assess- ment beyond the special benefits conferred is a taking of private property for public ^ use without compensation. Hanscom v. City of Omaha, 11 Neb. 37, 7 N. W. 739. This tax exceeds the special benefits con- ] ferred by at least $1,700, and to that extent was clearly illegal. Further, the tax was levied on the whole of lot 57, extending west from Twenty-Second sti'eet 507 feet, and east therefrom 314 feet. Among the subdivided lots to the north, the assessment did not ex- tend beyond a depth of 184 feet. Section 73 of the law relating to cities of the metro- politan class provides that, when "any public improvement shall extend into or through any unsubdivided tract, pai'cel or parcels of land, said taxes shall be levied so as not to be charged against tlie real estate adjoining such improvement for a gi*eater depth than the average distance through the subdivided real estate to be taxed for said purix)se." Under this statute, no portion of lot 57 lying more than 184 feet from Twenty-Second street could be taxed. The evidence clearly shows that the as- sessment was made in an illegal manner, and that it was grossly unjust. In fact, the whole scheme of assessment is such as to in- dicate that an attempt was made, under the guise of a local assessment, to take back from the plaintiff two-thirds of the condemnation money awarded him. It is but just that, where a portion of one's i^roperty is taken under cireumstances allowing no deduction for benefits conferred upon the remainder, the remainder, if especially benefited, should bear its fair proportion of the cost of the improvement. But the com-ts will not per- mit municipaliti(>s to evade the i)rovision of the constitution that the property of no per- son shall be taken or damaged for public use without just compensation by paying the compensation, and tlien, under the guise of taxation, taking it back from the person entitled. Reversed and remanded. 246 MUNICIPAL TAXATION. C^) CO '/ LOVE T. CITY OF RALEIGH. (21 S. E. 503, 116 N. C. 296.) Supreme Court of North Carolina. April 16, 1895. Appeal from superior court, Wake county; Bynum, Judge. Action by E. H. Lore against the city of Raleigh for injuries received through the negligence of defendant's agents in mana- ging a pyrotechnic display. There was a judg- ment for defendant, and plaintiff appeals. Affirmed. Battle & Mordecai, for appellant. J. N. Holding and Strong & Strong, for appellee. AVERY, J. The principal questions pre- sented by this appeal are: First, whether the city of Raleigh was empowered by any general or special statute to purchase fire- works, and order a committee to direct the manner of making the display; second, whether, if no such authority had been dele- gated to the municipality, it would be an- swerable for the wrongful conduct of agents acting within the scope of its instruction to them, but in the exercise of authority not delegated to it by the legislatiu-e. It will possibly aid us in the elucidation of these questions to lay down some general funda- mental rules defining and fixing the limits of municipal powers. So long as a city keeps within the purview of its delegated authority, it is not responsible for any act of its agents, done in the exercise of its judicial, discretion- airy, or legislative powers, except where sub- jected to such liability by some express pro- vision of the constitution or of a statute. Moffitt V. Asheville, 103 N. C. 255, 9 S. E. 695; Hill v. City of Charlotte, 72 N. C. 5G; 1 Shear. & R. Neg. § 2G2; Robinson v. Green- ville, 42 Ohio St. 625. But when such a cor- poration is acting in its ministerial capacity, or its corporate, as distinguished from its governmental, character, in the exercise of powers conferred for its own benefit, and as- sumed voluntarily, it is answerable for the torts of its authorized agent, subject to the lim- itation that such wrongful acts must not only be within the scope of the agency, but also within the limits of the municipal authority. Moffitt V. Asheville, 103 N. C. 254, 9 S. E. 695; 2 Dill. Mun. Corp. (4th Ed.) § 9GS (7GG). In the section cited above. Judge Dillon says: "If the act complained of necessarily lies wholly outside of the general or special pow- ers of the corporation, as conferred by its charter or by statute, the corporation can In no event be liable to an action for dam- ages, whether it directly commanded the performance of the act, or whether it be done by officers without its express command; for a corporation cannot, of course, be impliedly liable to a greater extent than it could make itself by express corporate vote or action." RefeiTlng especially to the wrongful acts of agents of municipalities, the .same author says in a subsequent section (9G9a): "As to torts or wrongful acts not resting upon con- j tract, but which are ultra vires in the sense 1 above explained (viz. wholly and necessarily beyond the possible scope of the chartered powers of the municipality), we do not see on what principle they can create an implied liability on the part of the municipality. If they may, of what use are the limitations of the chartered corporate powers?" 2 Thomp. Neg. 737; Smith v. City of Rochester, 76 N. Y. 506; Mayor, etc. v. Cunliff, 2 N. Y. 165. It is not denied that if the agent, in the course of his employment, is guilty of neg- ligence, or commits even a willful trespass, with the belief and intention that the act will inure to the benefit of the principal, then- not only does the doctrine of respondeat su- perior apply, but both principal and servant may be made to answer for the resulting dam-^ age. See authorities cited in Tate v. City of Greensboro, 114 N. C, on pages 416, 417, 19 S. E. 767; especially 2 Dill. Mun. Corp. §§ 979, 980, et seq.; Hewitt v. Swift, 3 Allen, 420; Johnson v. Barber, 5 Oilman, 425; Wright V. Wilcox, 19 Wend. 343. "Without i express power," says Judge Dillon, 1 Mun. ' Goi-p. §§ 149 (100) "a public corporation can- not make a contract to provide for celebrat- . ing the Fom-th of July, or to provide an en- tertainment for its citizens or guests. Such ' contracts are void, and, although the plaintiff / complies therewith on his part, he cannot ■ recover of the corporation." Hodges v. Buf- falo, 2 Denio, 110; 2 Dill. Mun. Corp. § 916 et seq.; Austin v. Coggeshall, 12 R. I. 329. It is needless to cite further authority in sup- port of the proposition that if a city is not i empowered to contract a debt for the purpose of making a display on a national holiday, | or on such an occasion as the centennial an- niversary of its existence as a municipality, ( it would follow of necessity that it could not, by empowering agents to supervise a display that it could not lawfully pay for, subject its taxpayers to liability for the willful wrong or negligence of such agents, when they are acting entirely outside of the scope of any duty that the city is authorized to impose. 2 Dill. Mun. Corp. § 969a. A municipality' i» not answerable for torts of a servant, except where the wrong complained of is an act done in the course of his lawful employ- ment, or an omission of a duty devolving up- / on him as an incident to such service. Before entering upon the consideration of the sufficiency of the statutes relied upon to authorize the action of the mayor and alder- men of the city in making an appropriation and appointing a committee to purchase the necessary articles and to supervise the pyro- technic display on the occasion referred to, it is perhaps best to recur to the rule that a municipality is clothed with those powers only which are granted in express terms, or necessarily or fairly implied from or inci- dent to those expressly granted, and which it is essential to exorcise in order to carry out objects and pui-poses of creating the cor- MUST BE FOR PUBLIC PURPOSE. 247 poration. 1 Dill. Mun. Corp. § 89 (55); State V. Webber, 107 N. C. 962, 12 S. E. 598. In all of the cases relied upon by plaintiff's coun- sel it seems that the municipalities had the authority to pass an ordinance or make an order under color of authority. It has not been contended or alleged that the action is founded upon the creation of a nuisance by the city, nor can it be successfully main- tained that the use of fireworks is analogous to the case of blocking up a public highway which it is the duty of the municipality to maintain in good condition. The charter of the city (chapter 24:5, Laws 1S91) grants to the mayor and aldermen, when assembled, the following powers: "Sec. 31. That the aldermen when con- vened shall have power to make and provide for the execution thereof, such ordinances, by-laws, rules and regulations for the better government of the city as they may deem necessary: provided, the same be allowed by the provisions of this act and be consistent with the laws of the land. "Sec. 32. The board of aldermen shall con- tract no debt of any kind unless the money is in the treasury for its payment, except for the necessaiy expenses of the city govern- ment. "Sec. 33. That among the powers hereby conferred on the board of aldermen, they may borrow money only by the consent of a majority of the qualified registered voters, which consent shall be obtained by a vote of the citizens of the corporation after 30 days public notice, at which time those who consent to the same shall vote 'Approved' and those who do not consent shall vote 'Not Approved;' they shall provide water and lights, provide for repairing and cleans- ing the streets, regulate the market, take all proper means to prevent and extinguish fires, make regulations to cause the due observ- ance of Sunday, appoint and regulate city policemen, suppress and remove nuisances, regulate, control and tax the business of the junk-shops and pawn-shop keepers or bro- kers, preserve the health of the city from contagious and infectious diseases; may pro- vide a board of health for the city of Raleigh and prescribe their duties and powers, pro- vide ways and means for the collection and preservation of vital statistics; appoint con- stables to execute such precepts as the may- or or other persons may lawfully issue to them, to preserve the peace and order, and execute the ordinances of the city; regulate the hours for sale of spirituous liquors by all persons required to be licensed by the board, and during periods of great public excitement may prohibit sales of spirituous liquor by all such persons for such time as the board may deem necessary; may pass ordinances imposing penalties for violations thereof not to exceed a fine of fifty dollars or imprisonment for thirty days. * * * Tliey shall have the right to regulate the charge for the carriage of persons, baggage and freight by omnibus or other vehicle, and to issue license for omnibuses, hacks, drays or other vehicles used for the transportation of persons or things for hire. They may also provide for public schools and public school facilities by purcliasing land and erecting buildings thereon and o(iuipping the same within the corporate limits of the city or within one half mile thereof. They may also construct or contract for the construction of a system of sewerage for the city and pro- tect and regulate the same by adequate ordinances; and if it shall be necessary, in obtaining proper outlets for the said system, to extend the same beyond the corporate limits of the city, then in such case the board of aldermen shall have the power to so extend it, and both within and without the coi-porate limits to condemn land for the purposes of right-of-way or other require- ments of the system, the proceedings for such condemnation to be the same as those prescribed in chapter 49, section 6, of the Private Laws of 1SG2 and '63, or in the man- ner prescribed in chapter 49, volume 1 of the Code." In these provisions of the charter and in sections 3800 to 3805, both inclusive, of the Code, will be found enumei-ated all of the powers gi-anted to the city by general or spe- cial laws. We do not think that the general power to pass ordinances can be held to carry with it by implication any such grant of authority as that to expend the public money for, and conduct under the auspices of the city officers, such a display as that described by the witnesses. We are aware that such authority has been assumed by cities and towns in many of the states, but where the exercise of it has been drawn in question in the courts it has been sustained only when some statute expressly confei'red the power to make the appropriation for that particular purpose. As we underetand the authorities cited, the supreme court of Massachusetts has given its sanction to the validity of expenditures for such purposes only where some express provision of law was shown to wan*ant it. In one of the cases cited from that state (Tindley v. City of Salem, 137 Mass. 171) the court held that, even where a person was injured by the negligent use of fireworks by the servants of a city that had ordered the display for the gratuitous amusement of the people, under the authority of a statute, the city was not liable to answer in damages. In an earlier case it had been held that a city council must act strictly in pursuance of statutory power to make such displays to subject it to liability for injuries due to the negligence of its servants in the management of it. ISIoiTison V. City of Lawrence, 08 Mass. 219. Where no statutory authority is shown for a wrongful act done under the direction of a municipality, the supreme court of Massa- chusetts lays down the general rule as to its liability substantially as we have stated it. 248 MUNICH^ AL TAXATIOiT. /Cavanaugh v. Boston,' 139 Mass. 426, 1 N. I E. 834; Claflin v. Hopkinton, 4 Gray, 502. If there is no authority confen-ed upon the mayor and aldermen by the statute men- tioned, and we can discover none after dili- gent search and examination, it is imma- terial whether the persons in immediate con- trol of the fireworks were servants acting under the dii'ection of the committee ap- pointed by a resolution passed by the mayor and commissioners, and stood in the relation of agents to the city, or whether they were independent contractors. If the authorities of the city acted ultra vires in ordering the display, the question whether they em- ployed expert pyrotechnists, and acted upon their advice after securing their services, Is equally as irrelevant If, therefore, it were conceded that the chairman of the com- mittee appointed by the city for the purpose supervised and directed the negligent man- agement of the fireworks, and at such a place as, it was evidence of a want of care to select, we think it was the duty of the court nevertheless to tell the jury that the mayor and aldennen were not authorized by law to make an appropriation for and direct the management of a display of fireworks, and that the city was not liable to respond in damages for the wrongful or negligent conduct of a servant acting under instruc- tions given by the city, but without authori- ty of law. For the reasons given, we think that the court should have instructed the jury that in no aspect of the evidence was the defendant corporation liable for the acts of its servants in the management of the fireworks. Whether the i-ulin£rs of the court upon the admissibility of testimony were ab- stractly erroneous or not is not material, since, whether excluded or admitted, it was manifest that the plaintifT was not, in any view of the evidence, entitled to recover, There was no error of which the plaintiff can justly complain, and the judgment must be affirmed. MONTGOMERY, J., did not sit iff I MUST BE FOR TUBLIC PURPOSE. 249 CITY OF ST. LOUIS v. WESTERN UNION TEL. CO. (13 Sup. Ct. 990. 149 U. S. 465.) Supremo Court of United States. May 15, 1893. No. ^. On ivlu'uring. Denied. For prior report, see 13 Sup. Ct. Rep. 4S5. Mr. Justice BREWER delivered tlie opiu- ion of the court. In tlie opinion heretofore annoimced it was said: "We do not undei-staud it to be questioned by counsel for the defend- ant that, under tlie constitution and laws of Missouri, the city of St. Louis has full control of its streets in this respect, and represents the public in relation there- to." A petition for a reliearing has been filed, in which it is claimed that the court misundei-stood tlie position of counsel, and, further, that in fact the city of St. Louis has no such control. Leave having been given therefor, briefs on the question wheth- er such control exists have been filed by both sides, that of the telegraph company being quite full and elaborate. We see no reason to change the views ex- pressed as to the power of the city of St. Louis in this mattei*. Control over the streets resides somewhere. As the legisla- tive power of a state is vested in the legisla- ture, generally that body has the supreme control, and it delegates to municipal corpo- rations such measure thereof as it deems best. The city of St. Louis occupies a unique position. /it does not, lilve most cities, de- rive its powers by grant from the legisla- ture, but it framed its own charter under express autliority fj'om the people of the state, given in tli(i constitution. Sections 20, 21, art. 9, Const. Mo. 1875, authorized the election of 13 freeholders to prepare a char- ter to be submitted to the (pialified voters of the city, whicli, aaIiou ratilied by them, was to "become the oi'ganic law of the city." Section 22 provided for amendments, to be made at intervals of not less than two yeai's and upon the approval of three-fifths of tlie voters. Sections 23 and 25 required the charter and amendments to always be in harmony with and subject to the constitu- tion and laws of Missouri, and gave to the general assembly the same power over this city, notwithstanding the provisions of this article, as was had over other cities. In pursuance of these provisions of the consti- tution a charter was prepared and adopted, and is, therefore, the "organic law" of the city of St. Louis, and the powers granted by it, so far as they are in harmony with the constitution and laws of the state, and have not been set aside by any act of the general assembly, are the powers vested in the city. And this charter is an organic act, 80 defined in the constitution, and is to be construed as oi'ganic acts are construed. The city is in a very just sense an "im- periuni in imperio." Its powers are self- appointed, and the reserved control existing in the general assembly does not tiike away this peculiar feature of its charter^ An examination of this charter (2 Rev. St. Mo. 1ST9, p. 1572 and following) will disclose that very large and general po^yers are given to the city, but it would unneces- sarily prolong this opinion to quote the many sections defining these powers. It must suf- fice to notice those directly in point. Para- graph 2, § 26, art. 3, gives the mayor and assembly power, by ordinance, "to estab- lish, open, vacate, alter, widen, extend, pave, or otherwise improve and sprinkle, all streets, avenues, sidewalks, alleys, wharves, and public grounds and sciuares, and provide for the payment of the costs and expenses thereof in the manner in this charter pre- scribed; and also to provide for the grad- ing, lighting, cleaning, and repairuig the same, and to condemn private property for public uses, as provided for in this charter; to construct and keep in rep.iii- all bildges, streets, sewers, and drains, and to regulate the use thereof,"' etc. The fifth paragraph of tlie same article grants power "to hccnse, tax, and regulate * * * telegraph com- panies or corporations, street-railroad cars," etc. Article 6 treats of public improvements, including the openmg of streets. Section 2 provides for condemning private property, and "for establishing, opening, widening, or altering any street, avenue, alley, wharf, market place, or public square, or route for a sewer or water pipe." By section 4 com- missioners are to be appointed to assess the damages. By section 5 it is made the duty of these commissioners to ascertain the ac- tual value of the land and premises pro- posed to be taken, and the actual damages done to the property thereby; "and for the payment of such values and damages to as- sess against the city the amount of benefit to the public generally, and the balance against the owner or owners of all property ■which shall be specially benefited by tlie proposed im- provement in the opinion of the commission- ers, to the amount that each lot of such owner shall be benefited bj' the improve- ment." Except, therefore, for the special benefit done to the adjacent property, the city pays out of its treasury for the open- ing of streets, and this power of the city to open and establisli streets, and the duty of paying the damages therefor out of the city treasury, were not created tor the first time by this charter, but have been the rule as far back as 1839. Furtlier than that, with the charter was, as autliori/.ed by the constitution, a scheme for an enlargement of the boundaries of the city of St. Louis, and an adjustment of the relations consequent thereon between the city and the county. The boimdaries were enlarged, and by section 10 of the scheme It was provided: "Sec. 10. All the public buildings, institu- 250 MUNICIPAL TAXATION. tions, public parks, and property of every character and description heretofore owned and controlled by the county of St. Louis within the limits as extended, including the courthouse, the county jail, the insane asy- lum, and the poorhouse, are hereby trans- ferred and made over to the city of St. Louis, and aU the right, title, and interest of the county of St. Louis in said property, and in aU public roads and highways within the enlarged limits, is hereby vested in the city of St. Louis, and divested out of the county; and in consideration of the city be- coming the proprietor of all the county buildings and property within its enlarged limits, the city hereby assumes the whole of the existing county debt and the entire park tax." 2 Rev. St. Mo. 1879, p. 1565. Obviously, the intent and scope of this charter are to vest in the city a very en- larged control over public property and prop- ertj^ devoted to pubUc uses within the terri- torial limits. It is given power to open and establish streets, to improve them as it sees fit, and to regulate their use, paying for aU this out of its own funds. The w^rd "regulate" is one of broad import. It is the word used in the federal constitution to define the power of congress over foreign and interstate com- merce, and he who reads the many opinions of this court wiU perceive how broad and com- prehensive it has been held to be. If the city gives a right to the use of the streets or public grounds, as it did by ordinance No. ll.dOl, it simply regulates the use when it prescribes the terms and conditions upon which they shall be used. If it should see fit to construct an expensive boulevard in the city, and then limit the use to vehicles of a certain kind or exact a toU from all who use it, would that be other than a regulation of the useV And so it is only a matter of regulation of use when the city grants to the telegraph company the right to use ex- clusively a portion of the street, on condi- tion of contributing something towards the expense it has been to in opening and im- proving the street. Unless, therefore, the telegraph company has some superior right I which excludes it from subjection to this i control on the part of the city over the streets, it would seem that the power to re- quire payment of some reasonable sum for 1, the exclusive use of a portion of the streets V was within the grant of power to regulate \the use. That the company gets no such I right from the general government is shown I by the opinion heretofore delivered, nor \ has it any such from the state. The law in force in Missouri from 1800 gives certain rights in streets to "companies organized under the provisions of this article." Of i-i.i:,se, ilic (lefendant, a corporation organ- iz(tl under tlio laws of the state of New York, can claim no benefit of this. It is , true that, prior to that time, and by the act of November 17, 1855, (2 Rev. St. Mo. 1855, p. 1520,) the right was given to every telegraph corporation to construct its lines along the highways and pubUc roads; but that was superseded by the legislation of 1866; and when in force it was only a permission, a license, which might be re- voked at any time; and, further, whatever rights, if any, this defendant may have ac- quired to continue the use of the streets already occupied at the time of the Revision of 1800, it cannot with any show of reason i be contended that it received an irrevocable power to traverse the state, and occupy any other streets and highways. Neither have we found in the various de- \ cisions of the courts of ^Missouri, to which I our attention has been called, any denial of j the power of the city in this respect. It is true, in Glasgow v. St. Louis, 87 Mo. 678; Cummings v. City of St. Louis, 90 Mo. 259^ 2 S. W. Rep. 130; Glaessner v. Association, 100 Mo. 508, 13 S. W. Rep. 707; and Belcher Sugar Refining Co. v. St. Lo^us Grain Ele- vator Co., 101 Mo. 192, 13 S. W. Rep. 822, —the power of the city to devote the streets or public grounds to purely private uses was denied; but in the cases of Julia Build- ing Ass'n V. BeU Tel. Co., 88 Mo. 258, and City of St. Louis v. Bell Tel. Co., 96 Mo. 623, 10 S. W. Rep. 197,— it was expressly held that the use of the streets for telephone poles was not a private use. (and of course telegraph poles stand on the same footing,) and that a private corporation carrying on the public service of trfinsportation of mes- sages might be permitted to use the streets for its poles. Counsel rely strongly upon the latter of these cases, in which the power of the city to regulate the charges for tele- phone sei-^-ice was denied. But obviously that decision does not cover this case. The relations of a telephone or telegraph com- pany to its patrons, after the use of the streets has been granted, do not affect the use, and power to regulate the use does not carry with it by implication power ta regulate the dealings between the coiiDora- tion having such use and its individual pa- trons; but what the company shall pay to- the city for the use is directly involved in a regulation of the use. The determination of the amount to be paid for the use is as much a matter of regulation as deter- mining tlie place which may be used or the size or height of the poles. The very arsru- ment made by the court to show that fixing telephone charges is not a regulation of the use is persuasive that fixing a price for the use is such a regulation. Counsel also refer to the case of Atlantic & P. R. Co. v. St. Louis, 06 Mo. 228, but there is nothing in that case which throws any light upon this. I'l tiint it ai)peared that there was an act of the legislature giving to the railroad com. pany a specific right in respect to the con- struction of a track within the city Unfits, and it was held that the company was en- titled to the benefit of that act, and to claim the right given by the general assem- bly, although it had after the passage of MUST BE FOR PUBLIC PURPOSE. 251 ihe act proceeded in the construction of tlio track uiiiler an ordinance of the city pur- porting to give it the privilege. But, as we have seen, the act of November 17, lS.j.">,. vested in defendant no general and irrev- ocable power to occupy the streets in any city in the state through aU time. "We find nothing, therefore, in the cases cited from the Missouri cotu-ts which militates with tlie conclusions we have drawn as to the power of the city in this respect. One other matter deserves notice: It wiU be seen by refemng to ovir former opinion that one of the contentions of the coimsel for the telegraph company was that by or- dinance No. 11,604 the city had contracted with the company to penult the erection of these poles in consideration of the right of the city to occupy and use the top cross- arm free of charge. We quote this state- ment of counsel's claim from their brief: "Ordinance 11,604 granted defendant author- ity to set its poles in the streets of the city without any limitation as to time, for valu- able considerations stipulated; and having been accepted and acted on by defendant, and all its conditions complied with, and the city having acquired valuable rights and privileges thereunder, said ordinance and its acceptance constitute a contract, which the city cannot alter in its essential terms with- out the consent of defendant; nor can it impose new and burdensome considerations." And in respect to this, further on, they say: "No question is or can be raised as to the validity of the contract made by ordinance No. 11,604, and its acceptance." But if the city had power to contract with defendant for the use of the streets, it was because it had control over that use. If it can sell the use for a consideration, it can require pay- ment of a consideration for the use; and when counsel say that no question can be made as to the validity of such a contract, do they not concede that the city has such control over the use of the streets as en- ables it to demand pay therefor? The petition for a rehearing is denied. 252 MUNICIPAL TAXATION. €ITY OF CHESTER v. WESTERN UNION TEL. CO. (25 Atl. 1134, 154 Pa. St. 464.) Supreme Court of Pennsylvania. Feb. 20, 1893. Appeal from court of common pleas, Dela- ware county. Assumpsit by the city of Chester against the Western Union Telegraph Company to recover $1,470, as license tax for 245 poles erected and maintained by defendant in such city from 1885 to 1891. Plaintiff's rule for judgment for want of a sufficient affida- vit of defense was made absolute, and de- fendant appeals. Affirmed. The city of Chester in 1884 and 1889 adopt- ed two ordinances, by which it was provided that every telegraph company owning tele- graph poles within the city limits should pay to the city treasurer a license fee of one dol- lar upon each new pole to be erected, and one dollar yearly for each pole maintained by the company, and providing penalties for failure to comply with the ordinances. The affidavit of defense denies that there is any power in the city of Chester to levy such A license tax, by ordinance or otherwise, or any authority for so doing, since the West- ern Union Telegraph Company is an instru- ment of commerce, and that as measures in aid of, or part of, police regulations, the sums mentioned in the ordinances are large- ly in excess of the actual sums requhed for the purpose, and hence void. .Tohn R. Read, Silas W. Pettit, and H. B. Gill, for appellant. Orlando Harvey, for ap- pellee. PER CURIAM. It was conceded by the appellant company that the city of Chester has the power to impose a reasonable charge for a license to erect telegraph poles within the limits of the municipality. The ordi- nance of the city imposed a license tax of ^ne dollar per year for each pole. We have held in a number of recent cases i that this amount is not so unreasonable as to justify us in interfering with the discretion of such municipalities. In this case, however, the court below en- tered judgment for want of a sufficient aflS- davit of defense. The affidavit in question contains this averment: "The said Western Union Telegraph Company avers that the sum sought to be recovered in this cause pretends to be imposed, and is sought to be justified, as a license tax, merely, in aid and as a part of a police regulation of the city of Chester, and as such is imjust and unrea- sonable, in that the amount thereof is wholly disproportioned to the usual, ordinary, or necessary expense of municipal officers of issuing licenses and other expenses thereby imposed upon the municipality of the city of Chester, but is, on the contrary, largely in excess thereof, to wit, at least five times the expense thereof, wherefore the sum is unreasonable, not authorized by law, and therefore void." For the purposes of this case we must treat this averment as true, as far as it goes. The difficulty is, it does not go far enough. It refers only to the usual, ordinary, or necessary expense of municipal officers of issuing licenses, and other expenses thereby imposed upon the municipality. It makes no reference to the liability imposed upon the city by the erec- tion of telegraph poles. It is the duty of the city to see that the poles are safe, and properly maintained; and, should a citizen be injured in person or property by reason of a neglect of such duty, an action might lie against the city for the consequences of such neglect. It is a mistake, therefore, to meas- ure the reasonableness of the charge by the amount actually expended by the city for a particular year, to the particular purposes m specified in the affidavit.^ Judgment af->/ firmed. '^ 1 W. U. Tel. Co. V. City of Philadelphia, 12 Atl. 144; City of Allentown v. W. U. Tel. Co.; and City of Chester v. Philadelphia, R. & P. Tel. Co., 23 Atl. 1070. MUST BE FOR PUBLIC PURPOSE. 25a BOROUGH OP SAYRE v. PHILLIPS. (24 Atl. 76, 148 Pa. St. 482.) Supreme Court of Pennsylvania. April 18, 1892. Appeal from court of common pleas, Brad- ford county. Action of debt by the borough of Sayre against Harry Phillips to recover a penalty for violation of an ordinance forbidding ped- dling without first taking out a license. From a judgment for defendant, plaintiff appeals. J. B. Niles, Deloss Rockwell, J. C. Horton, and H. F, Maynard, for appellant. D'A. Overton, John C. Ingham, and Rodney A. Mercur, for appellee. WILLIAMS, J. The business of peddling has been treated as a proper subject for police regulation and control in this state since 1784. The legislature has forbidden it to all un- licensed persons, and has prescribed the con- ditions on which licenses may be oljtaiued from the courts. The necessity for such leg- islation is a question for the lawmakers. The validity of any particular statute relating to the subject is a question for the courts. The act of 1784, and the supplementary acts, re- lating to the business of peddling, have been held to be valid, as an exercise of the police power, in many cases, among the more recent of which are Warren Borough v. Geer, 117 Pa. St. 207, 11 Atl. 415; Borough of Sharon V. Hawthorne, 123 Pa. St. 106, 16 Atl. 835; Com. V. Gardner, 133 Pa. St. 284, 19 Atl. 550; Titusville v. Brennen, 143 Pa. St. 642, 22 Atl. 893. By the organization of a city or borough within its borders the state imparts to its creature, the municipality, the powers necess:ary to the performance of its functions, and to the protection of its citizens in their persons and property. The police power is one of these. Ordinances of cities and bor- Dughs, passed in the legitimate exercise of this power, are therefore valid. An ordinance prohibiting the business of peddling within the municipal limits without a license from the proper municipal officer would seem to be as clearly justified by the police power as a statute prohibiting the same business throughout the commonwealth. But it is very clear that a police regulation must be di- rected against the business or practice that is harmful, not against one or some of the persons who may be engaged in it. The laws of the state are so framed. They are directed against the business of peddling. The ordi- nances of cities and boroughs must, in order to be supported as an exercise of the police power residing in the municipality, be direct- ed in like manner at the business. If a stat- ute or a municipal ordinance is in reality di- ' rected only against certain persons who are engaged in a given business, or against cer- tain commodities, in such manner as to dis- criminate between the persons who are en- gaged in the same trade or pnrsuit, in aid of some at the expense of others, such stat- ute or ordinance is not a police, but a trade, regulation; and it has no right to shelter it- / self behind the police power of the state or the municipality. A law that should prohibit all persons peddling goods manufactured or produced in other states, and permit the same persons to peddle goods of the same charac- ter manufactured or produced in this state, would be a trade regulation, discriminating between the productions of this and sister states, and would be incapable of enforce- ment, because in violation of the constitution of the United States. So a law that should forbid the courts to grant a peddler's license to any person resident in any other state, but should authorize the granting of licenses to citizens of this state, would be bad for the same reason. When the state creates a city or borough, it cannot confer upon the mu- nicipality powers that the state does not pos- sess. It cannot give its creature immunity from the settled limitations that bind its own action. The municipality remains a part of the state after its creation as truly as the town or village was a part of the state be- fore it acquired a corporate character. Only in matters of local government is its situation changed. It can have no better right to adopt discriminating trade regulations than the state has. / AVe come now to consider the ordinance on which this case depends. It professes to pro- hibit all persons from engaging in the busi- ness of peddling or selling goods from house to house, by sample or otherwise, without a borough license; and it fixes the price of a license at a figure that makes, as it was evi- dently intended to make, the ordinance amount to prohibition. So long, however, as it bears upon all persons impartially it may fairly claim to be a police regulation intend- ed to destroy a business that was regarded as injurious, but at the end of the prohibiting section of the ordinance a proviso may be found whicli exempts all residents of the borough of Sayre from its operation. The proviso converts the police regulation into a trade regulation. The ordinance, taken as a | whole, does not prohibit an injurious busi- I ness, but injurious competition. That the resident dealer and peddler may enjoy a ' larger trade, the nonresident peddler is shut I out. If the borougli authorities may law- fully regulate the business of peddling for the benefit of residents, we see no reason wliy they may not lay their hands in like manner on every department of trade and of profes- sional labor, and protect the village lawyer and doctor as well as the village gi'ocer and peddler. We are reminded by the appellant that this ordinance is lilve that which came into notice in Warren Borough v. Geer, supra; and it is urged that the question now imder consideration ought, therefore, to be regard- ed as ruled by that case. That case was well decided on the only issue presented by it. The plaintiff set out in the declaration the 254 MUNICIPAL TAXATION. ordinance of the borough, and charged that the defendant had violated it by canvassing from house to house within the borough. The defendant demurred, thus admitting the acts charged and denying the power of the bor- ough to require one engaged in canvassing to take a license. The court below held that the defendant was entitled as of common right to pursue his business, and that the borough was without the power to forbid it. The question came to this court in the form that it had been disposed of in the court below, as a question of power in the borough to require a license from peddlers and canvassers, and we held that the power existed under the act of incorporation, and under the general bor- ough law of 1851. Our Brother Green, who delivered the opinion of this court, stated the point in controversy thus: "The only ques- tion, therefore, is whether the borough of Warren possesses by either express grant or necessary implication the right to enact the ordinance" forbidding the exercise of defend- ant's employment without a license. We ad- here to the doctrine of that case. The pres- ent question is whether, under the pretense i of police control, trade may be regulated in ' the interest of resident dealers by making the i same business a lawful one to all who live on I one side of a municipal Une, and an unlawful one to all who live on the other side. We are very clear in our conviction that this can- not be done, and for this reason the judgment is aflirmed. WHAT PROPERTY EXEMPT. 255 VON STEEX et al. v. CITY OF BEATRICE. (54 N. W. 677, 36 Neb. 421.) Supreme Court of Nebraska. March 16, 1893. Appeal from district court. Gage county; Babcock, Judjje. Action by Jalm H. von Steen and another against tlie city of Beatince to enjoin defend- ant from concluding a contract for slroot im- provements. Tliere wa.s judgment granting perpetual injunction, and defendant appeals. Affirmed. W. C. Le Hane, Griggs, Rinaker & Bibb, and L. M. Pemborton, for appellant. E. O. Kretsinger and E. R. Fogg, for aippellees. POST, j.i ****** » 2. The total frontage In district No. 9 is, according to the record, 3,280 feet, and the I)etition purports to have been signed by the owners of 1,855 feet thereof. It is con- tended that the following names and de- scriptions of property were illegally counted ou the petition: "Alex Graham, Chair'm Co. Board, S. 1/2 lot 11, block 24, 440 feet; Rt. Rev. Thos. Bonacum, per Rev. A. J. CopeUen, lots 11, 12, 13, and 14, block 7, 200 feet; Beatrice school district, by G. C. Soulsbury, president, block 21, 300 feet; J. E. Hays, lot 3, block 10, 60 feet; First Christian Church, by John Ellis, Ch. of tinis- tees, lot 7, in block 35, 140 feet; Charles H. Spencer, lots 5, 6, 7, 8, and 9, block 25, 125 feet; John A. Moor, per J. A. Forbes, agent, lot 8, block 7, 70 feet; Richard Lowe, lot 6, block 22, 140 feet." It will be observed that of the frontage represented by the pe- tition 440 feet is the property of Gage coun- ty, and 300 feet belongs to the school dis- trict of Beatrice. The question whether public property of like character, viz. the coimty courthouse and gi'ounds, and the city schoolhouse and grounds, is liable for special assessments for public improve- ments, as in the case for the paving of streets adjacent thereto, has never been presented to the courts of this state. We find in the decisions upon the subject an ir- reconcilable conflict of opinion. It is provid- ed by section 2 of our revenue law (chapter 77, Comp. St.) that "the following property shall he exempt from taxation in this stjito: First, the property of the state, comities, and municipal corporations, both real and personal; second, such other property as may be used exclusively for agricultural and horticultural societies, for school, reli- gious, cemetery, and charitiible purposes." Similar provisions have been construed as exempting the property mentioned therem from all contributions in the natftre of tax- ation, whether imposed for public purpo.ses, under the general revenue laws, or for local Improvements, such as are denominated "special assessments." Opposing tliis view is the doctrine, quite as well sustained by au- tliority, that the immunity from taxation 1 Part of the opinion is omitted. relates only to general state, county, or other municipal taxes, and not to assess- ments for improvements made under spe- cial laws or ordinances, and local in their character. It is not deemed necessary to review the cases cited ra support of the dilfei'cnt views by their respective advo- cates, since the solution of the question here presented depends upon a constnic- tion of the charter of the defendant city. In subdivisi(m 58, § 52, art. 2, c. 14, Comp. St., as amended in 1887, we find the follow- ing language: "If in any city governed by this act there shall be any real estate not subject to assessment or special taxes for paving purposes, the mayor and coimcil shall have the power to pave in front of the same, and to pay the cost thereof that would otherwise be chargeable on such real estate, in the same manner as herein pro- vided for the paving of intersections of streets and paying therefor." The same provision is found in the acts for the incor- poration and govei-ument of cities of the first class having over 25,000 inhabitants, and of metropolitan cities. Section 69, c. 12a, and section 09, c. 13a, Comp. St. The meaning of the language quoted becomes apparent only when we assume that, in the opinion of tlie legislature, public property like that here involved is not liable to as- sessment for the improving of the streets, under the ordinances of the city. It seems clear to us that the language "real estate not subject to assessment or special taxes for paving purposes" has reference to the property enumerated in section 2 of the rev- enue law; for, so far as we are aware, no claim of exemption has been made in favor of any other property. We are confirmed Ln this view from an examination of the act of March 14, 1889, entitled "An act to in- corporate cities of the firet class having more than eight thoiisand, and loss than twenty-five thousand, inhal)itants, and regu- lating their powers, duties, and govern- ment." The last-named act, so far as it re- lates to improvements of streets and alleys, appears to be a substantial copy of the charter of the defendant city, viz. the act of 1887; but, instead of the provision above quoted from the act of 1887, we find the following: "Provided, further, that if in any city governetl by the provisions of this act tliere shall be any real estate, belong- ing to any county, school district, or other municipal or quasi mimicipal corporation, abutting upon the street whereon jiaving or other special improvements have been or- dered, it shall be the duty of the board of county commissioners, board of education, or other proper officers to pay such special taxes; and, in the event of the neglect or refusal of such board or other officers to levy and collect the taxes necessary to pay for such impi'ovements, the city may recover the amount of such special tjixes in a proper ac- tion, and the judgment thus obtained may be 256 MUNICIPAL TAXATION. [ enforced In the same manner as other judg- 1 uicnts against municipal corporations." Tlie foregoing is tlie only express provision witli- i in our Ivuowledge in any of the acts for the I government of cities of the several classes, I imposing upon the state, counties, or other municipalities a habihty for special assess- ments. It is not tlie policy of the law to empower cities in this state to expend pub- lic funds for improvements where no liabil- ity exists therefor. When we consider the several provisions for the payment by cities for paving streets adjacent to property not Uable for special taxes in connection with the exception above noted, the only reasonable construction thereof is that the exemption from taxation in the revenue law in favor of state, county, and school-district property was intended to apply to and in- clude assessments like that involved in this controversy. Although it is probable the property of the Catholic Church is entitled to exemption upon the same groimd as that of the county and school district, the argu- ment for its rejection is rather on the groimd of want of authority of the Rever- end Coppellen to sign in behalf of the bishop of Lincoln, who holds the title there- to. In view of the conclusion already stat- ed, we have no occasion to consider that question; for when we deduct 440 feet on account of property of the county, and 300 feet for the school district, it is evident that the petition was insurticient to confer juris- diction upon the city council, and that the ordinance creating district No. 9, and all acts in pm'suance thereof, are void. 2 ******* 2 Part of the opinion is omitted. WHAT PROPERTY EXEMPT. 257 KILOUS V. TRUSTEES OF THE OIlPH.iN- AGE OF THE GOOD SHEPHERD. SAME V. TRU.STEES OF THE CHURCH HOME FOR FEMALES. (22 S. W. 750, 9i Ky. 439.) Court of Appeals of Kentucky. June 1, 1S93. Appeals Irom Louisville chancery court. "To be ottieially reported." Two actions by John Kilgus, one against the trustees of the Orphanajie of the Goofl Shepherd, and the other against the Church Home for Females, to enforce liens on de- fendants' property for the proportionate cost of improving an adjacent street. From judg- !neut.s in defendants' favor, plaintiff appeals. Reversed. H. S. Barker and Lane & Burnett, for appel- lant. Strother & Gordon, for appellees. LEWIS, J. These two actions, brought by appellant against appellees, respectively, were trietl and determined bj' the lower court to- gether, as will be done on this appeal. The object of each is enforcement of a lien on a lot of land for proportionate cost of improv- ing an adjacent street by appellant in pm*- suance of an ordinance of the general council, and under contract with the city of Louis- ville. There is no question made in either action about his compliance with tenns of that contract, nor as to correctness of the amounts assessed and fixed; but the ground relie ' lot of appellees. It is to be presumed that I there was a public necessity for its construc- y tion. At all events, that was a matter that the statute submitted to their discretion. The two large trees were in the line of the / sidewalk ordered, and the larger part of their ' bodies was within the limits upon which the sidewalk was located by the ordinance. The sidewalk could not be constructed in j conformity with the ordinance without cut- | ting them down, and removing them. If lof I. . standing, they woiild be permanent obstrue- } tions. We do not think that the proposed ' action, in the premises, of the city officials, can justly be regarded as wanton, or as so ' unreasonable and oppressive as to give a court of chancery jurisdiction to interfere. Brush V. City of Carbondale, 78 111. 74. In fact, it seems to us that it would be more unreasonable to destroy the symmetry and impair the convenience and safety of the side- walk, by eitlier leaving obstructions in it that are two feet in diameter, or by turning it out on the. south side of the trees, six or seven feet into the roadway of the sti-eet, or by contracting it on the north side of the trees to the width of four feet, than it would be to cut down the trees that do not belong to appellees, but afford shade to their premises. In our opinion, both the decree of tlie circuit court, and that decree as modified by the ap- pellate court, are erroneous, as is also the judgment of affirmance. The judgment and the decrees are reversed; and the cause is re- manded to the circuit court, with directions to dissolve the injunction and dismiss the bill of complaint, for want of equity, at the cost of the complainants therein. Reversed and remanded. 270 STREETS AND BRIDGES. DRUMMOND v. CITY OF EAU CLAIRE. (55 N. W. 1028, 85 Wis. 556.) Supreme Court of Wisconsin. June 21. 1SD3. Appeal from circviit court, Eau Claire coun- ty; J. K. Parish, Judge. Action by David Drummond against ttie city of Eau Claire. Judgment for defendant. Plaintiff appeals. Reversed. Wickham & Farr, for appellant. L. A. Doolittle, for respondent. CASSODAY, J. The defendant seeks to justi- fy the judgment on the ground that the claim filed by the plaintiff with the city clerk for the action of the common council was for damages by reason of the lawful change of grade in front of the plaintiff's premises, whereas the com- plaint based upon such claim, served and filed after the cause was appealed to the circuit court, is for damages by reason of the unla-o-ful change of such grade; and in support of his contention he relies upon Smith V. City of Eau Claire, (Wis.) 53 N. W. Rep. 744. In that case the claim filed stated the facts in detail, and clearly showed that the damage claimed was for a law^ful change of grade; and it was merely held that the plaintiff could not, on appeal, change his cause of action by claiming damage for an unlawful change of grade. In the case at bar the claim filed was general; being, simply, "For damage caused by change of grade, $1,500." It did not even describe the plaintiff's premises. But it does not appear that the plaintiff had any other premises to be affected by such change of grade, and the common council acted upon it, and disal- lowed it, without regard to its informahty; and then, in the stipulation between the par- ties for formal pleadings, such filing, disal- lowance, and appeal are recited, and it is therein stated that the plaintiff claims "dam- ages of said city for changing the grade of Bridge street, a certain highway of said city in front of the premises of said plaintiff," therein described. The complaint filed and served in pursuance of that stipulation w^as expressly based upon that claim, and the sufficiency of that complaint was sustained on demuiTcr by the trial court, and the order sustaining the same was affirmed by this court. 79 Wis. 97, 48 N. W. Rep. 244. Such being the state of the record, we cannot hold that the complaint fails to state a cause of action, nor that the claim filed was insuffi- cient to sustain the action. 2. It seems to be conceded that the at- tempt to re-establish the grade of the street in question was abortive, and that the rais- ing of the same several feet in front of the plaintiff's premises was without any lawful authority. This being so, it is manifest that the plaintiff is entitled to recover any dam- ages sustained by reason of such trespass up- on, and injury to, his premises. Crossett v. City of Janesville, 28 Wis. 420: Hamilton v. City of Fond du Lac, 40 Wis. 47; Dore v. City of Milwaukee, 42 Wis. lOS; :Meinzer v. City of Racine. GS Wis. 241, 32 N. W. Rop. 139; Id., 70 Wis. 5G1, 36 N. W. Rep. 2G0; Id., 74 Wis. 166, 42 N. W. Rep. 230; Addy v. City of Janes viUe, 70 Wis. 401. 35 N. W. Rep. 931; Drummond v. City of Eau Claire, 79 Wis. 97, 48 N. W. Rep. 244. The important ques- tion for determination is the measure of such damages. In Crossett v. City of Janesville, supra, the trial court chai'ged the jury that the plaintiff was entitled to recover "for all the direct and proximate damages to her premises, caused by the grading in question," and "that the measure of the plaintiff's dam. ages was the actual depreciation in the value of her lots by reason of the grading having been done at the time and in the manner it was done." The correctness of the charge, however, was not challenged upon such ground, but was assumed by this court. The same is true with respect to Meinzer v. City of Racine, supra, where the charge was sub- stantially the same. In Addy v. City of Janesville, 70 Wis. 401, 35 N. W. Rep. 931, it was held, in effect, that, "where a city, by unlawfully raising a street above the estab- lished grade, causes surface water to flow or accumulate upon an abutting lot, it is lia- ble to the lot owner for the injurj^ occa- sioned thereby;" that, imder a complaint al- leging such unla^v-ful raising of the street, it was competent to prove "the insufficiency of a culvert by which such water might have been conducted away" from the plain- tiff's lots. It was there contended that the city was not Uable for such consequential damages from mere surface water by rea- son of such change of grade, and numerous cases in this court were cited in support of such contention. In answer to such conten- tion. Cole, C. J., speaking for the court, there said: "These cases are inapplicable to the present, for the obvious reason that here the common council had no authority to change the grade without taking the steps prescribed by the charter to give them power so to do." The trial court, in that case, charged the jury "that the city had shown no authority whatever for raising the grade, and if such raising of the grade, -oithout sufficient cul- verts or gutters to carry off the waters as rapidly as they were carried off before, pro- duced injury to the plaintiff, the raising was, as to her, unla%^'ful; and if done by the city, or if the city ratified the raising of the grade after it was done, by paying for the work, the city was hable to her for all dam- ages which natiirally resulted from the rais- ing of the gi'ade, with its insufficient gutters or culverts to conduct the waters as rapidly as they flowed off before the grade was raised." An exception to this portion of the charge was there overi-uled. That case was cited approviugly by Mr. Justice Orton when the case at bar was hereon the former appeal; and he there said, in effect, that as the grad- WHETS' MUNICIPALITY LIABLE FOR CHAXGE OF GRADE. '271 ing was done without authority, and unlaw- fully, the city was "liable to the plaintiff for such damages as he had suftorod, whicli were caused by it" 79 Wis. l(i-J. 48 N. W. Rep. 244:. Such are the adjudications of this court in respect to the measure of damages In cases where the regrade was done with- out autliority of law. On the other hand, this court has, in effect, frequently held that where a change of grade in a street is made under authority of law, and with due care, the nmnicipality is not liable for consequential injury to abutting lots, unless made so by statute or the constitution. Smith v. Gity of Eau Claire, 78 Wis. 457, 47 N. W. Hep. 8;50; Wallich v. Manitowoc, 57 Wis. 9, 14 N. W. Kep. 812; Harrison v. Board, 51 Wis. 6G2-665, 8 N. W. Rep. 731; Tyson v. City of Milwaukee, 50 Wis. 78, 5 N. W. Rep. 914; French v. City of Milwaukee, 49 Wis. 584, 6 N. W. Rep. 244; Stndler v. City of Mil- waukee, 34 Wis. 98; StoweU v. City of Mil- waukee, 31 Wis. 523; Church v. City of Mil- waiikee. Id. 512. In the case at bar the trial court, in charging the jury, apparently followed the rule of law laid down in the case last cited. The provision of the city charter upon which that case was based was to the effect that all damages, costs, and charges arising from a change in the grade of the streets therein should be paid by the city to the owner of any lot injured there- by; and it was "held that while any pecuUar or special benefit conferred upon the plain- tiff's lot, not common to other lots in the neighborhood, and not increasing its market value, could not be considered by the jury in fixing the damages, yet if such lot, in con- sequence of the changed grade, was ap- preciated in value in common with the other property in that locahty, the city was en- titled to have such increase of value de- ducted, in the estimation of damages." The rule of law stated in that case and in Stow- eU V. Milwaukee, supra, as explained in Ty- son V. City of Milwaukee, 50 Wis. 85-89, 5 N. W. Rep. 914, is only applical)le where such regrade is under lawfiU autliority; but has no application to a case like the one at bar, where the regrade is confessedly without any la\\'ful aiithority. Hence, it was error for tlie trial court to follow that rule in the case at bar. It would be anomalous to hold j that one may enter upon and injure the land ' of another, without any lawful authority, as a mere trespasser, and then defeat an ac- tion therefor on the ground that such unlaw- j ful acts were beneficial to the land or its I owner. It is well settled that one who makes such wrongful entry upon land, and erects fixtures thereon, thereby loses title to the fixtures. Huebschmann v. McHenry, 29 Wis". 655; Kimball v. Adams, 52 Wis. 554, 9 N. W. Rep. 170. The plea of good faith by I such trespasser is not even available in equity, as against the rightful and equita- I ble owner of the land. Honzik v. Delaglise, 65 Wis. 501, 27 N. W. Rep. 171, and cases there cited. Such trespasser is, in all cases, j liable to actual damages; and, although he I may have benefited the land, still he would [ be liable, at least, for nominal damages. Murphy v. City of Fond du Lac, 23 Wis. 365; 3 Sedg. Dam. § 923. The measure of dam- ! a^s, in such case, is the amount of injury di- rectly resulting from the unlawful acts com- mitted. Id. In trespass quare clausum the plaintiff may be entitled to consequential damages. Id. § 927. But it is unnecessary to continue the discussion, since the rule sanc- tioned by this court in the cases of Crossett V. City of Janesville and Addy v. City of Janesville, cited, where such regrading was without authority of law, seems to be sub- stantially correct. For the errors in the charge, referred to, the judgment of the circuit coiirt Is reversed, and the cause is remanded for a new trial. 272 STREETS AND BKIDGES. CITY OF CHICAGO v. BURCKY. (42 iSr. E. ITS, 158 111. 103.) Supreme Court of Illinois. Oct. 11, 1895. Appeal from appellate court. First district. J. M. Palmer, W. S. Johnson, and B. Boy- den, for appellant Alex. Clark, for appellee. CRAIG, C. J. The viaduct and its approaches, constructed along tlie south Une of Sixty-First street, was about one-quarter of a mile long, f.nd extended from Wentworth avenue to State sti'eet The construction of the viaduct opiwsite the plaintiff's land prevented the laying out of aLy sti'eets south, and stopped all travel in that direction, while the vacation of that portion of Sixty-First street crossed by the railroad tracks stopped all travel west, so that the property of plaintiff, abutting on Sixty-Firet street, be- tween the railroad tracks and State street, was shut in, and all access shut off from the south and from the west. By the construction of the viaduct south of plaintiff's property, and by closing the street west of the property, and thus stopping all commimication south and west, it is plain that plaintiff's property was seriously damaged; but it is contended that the damages she has sustained are not special in their character, but are of the same kind as those sustained by the general public, and upon this ground no recovery can be had. If (the damages sustained by the plaintiff are of the same kind as those sustained by the pub- I lie at large, differing only in degree, and not I in kind, or if the damages sustained by the ' plaintiff are of the same kind sustained by the I general public, the only difference being in the excess of damages sustained by plaintiff, then, 1 imder the well-settled rules of law which con- 1 trol cases of this character, she could not recov- ' er. City of Chicago v. Union Bldg. Ass'n, 102 111. 379; City of East St. Louis v. O'Flynn, 119 111. 200, 10 N. E. 305; Parker v. Catholic .Bishop, 146 111. 158, 34 N. E. 473. Where / damages are sustained by the public at large, I but in different degrees, the law does not con- I fer a remedj-. Thus in Davis v. Com'rs, 153 Mass. 218, 26 N. E. 848. it is said: "The gen- leral doctrine is familiar that ordinarily one cannot maintain a private action for loss or damage which he suft'ers in common with the rest of the community, even though his loss may be greater in degree." The reason for the rule is that a contrary doctrine would encour- age many trivial suits. In Shaw v. Railroad Co., 159 Mass. 507, 35 N.E. 92, the court say: "The only right of the plaintiff to use the highway is that of the public generally. Where one suf- fers in common with all the public, although from his proximity to the obstructed way, or otherwise, from his more frequent occasion to use it, he may suffer in a greater degree than others, still he cannot have an action, because It would cause such a multiplicity of suits as to be, of itself, an intolerable evil." In Smith V. City of Boston, 7 Ctish. 2.54, in passing on the question, the court held tliat a landowner could not recover unless he suffered a special damage, not common to the public. In Heller v. Railroad Co., 28 Kan. 446, in the discus- sion of the question, the court said: "Where a party owns a lot which abuts upon that por- tion of the street vacated, so that access to the lot is shut off, it is clear that the lot own- er is directly injured, and may properly chal- lenge the action. The closing up of access to the lot is the direct result of the vacating of the street, and he, by the loss of access to his lot, suffers an injury which is not com- mon to the public. But in the case at bar access to plaintiff's lots is in no manner in- terfered with. The full width of the street in front and on the side is free and undisturbed, and the only real complaint is that, by va- cating the street away from her lots, the course of travel is changed; but this is only an indirect result." In the decision of the question in City of Chicago v. Union Bldg. Ass'n, 102 111. 379-400, it is said: "In the American Law Register for October, 1880, one of the learned editors of that periodical, Mr. Edmund H. Bennett, in a note to Fritz v. Hobson, after a very elaborate review of the principal cases bearing upon the question now before us, comes, as we think, very correctly to the conclusions: First. For any act ob- ] structing a public and common right, no pri- 1 vate action will lie for damages of the same / kind as those sustained by the general public, ' although in a much greater degree than any other person. Second. An action will lie for \ peculiar damages of a different kind, though 1 even in the smallest degree. Third. The dam- . ages, if really peculiar, need not always be direct and immediate, like the loss of a horse, | but may be as remote and consequential as in other cases of tort. Fourth. The fact that \ many otliers sustain an injury of exactly like I kind is not a bar to individual actions of many I cases of a public nuisance." Other cases hold- ing a like doctrine might be cited, but we have referred to enough to show the current of au- thority bearing on the question. There is less ditticulty in determining what the law is, than in making a proper applica- tion of the law to the dift"erent cases that may arise. In this case we think it plain that plain- | tiff was entitled to recover. Her property ' fronted on Sixty-First street. It extended west to, and cornered with, that part of the street which was vacated. By the vacation of the street and the erection of the viaduct, her property, extending from the railroad tracks east to State street, was shut in, and all ac- cess from the south and the west was shut off. What was originally a thoroughfare along the entire line of plaintift"s property, fronting on Sixty-First street, was, by the action of the town, turned into a blind court. No other property was damaged or affected in the same way, except the small tract lying between Wentworth avenue and the railroad tracks. The property of the general public was not ^ affected like plaintiff's, nor were the damages sustained by tlie public of the same kind. Be- / fore the action taken by the town, plaintiff's WHEN MUNICIPALITY LIABLE FOR CHANGE OF GRADE. 273 proporty, fronting on Sixty-First street, was so situated that it was available as lots for business purposes, but, after the action of the town, it was rendered useless fur that pur- pose. It is also claimed that by making the sub- division, and opcninp: Butterfield street, which separates plaintiff's property from the vacated portion of Sixty-First street, plaintiff has bar- red herself of the right to recover. When the street was cleared up, and the viaduct con- structed, the town became liable to pay such ABB.CORP.— 18 damages as the plaintiff had sustained. The rights of the parties, so far as the que.stlon of damages was concerned, were fixed, and any future subdivision which the plaintiff might make of her property could not deprive her of a right to recover such damages as she had sustained. From what has been said, If we are correct, the instruction did not announce a correct rule for the determination of the case, i'Uil it was prupL-rly retused. The judgment of the appellate court will be affirmed. Af- firmed. 274 STREETS AND BRIDGES. CITY COU^■CIL OF AUGUSTA v. BURUM et al. (19 S. E. 820, 93 Ga. 68.) Supreme Court of Georgia. Dec. 18. 1893. Error fi'om superior court, Richmond coun- ty; H. C. Roney, Judge. Petition by P. & G. Burum & Co. and others to restrain the city council of Augusta from the execution of a resolution providing for the removal of awnings and hanging signs. An injunction was granted, and de- fendant brings error. Reversed. J. S. Davidson, for plaintiff in error. W. W. Montgomery and J. R. Lamar, for de- fendants in error. LUMPKIN, J. 1. By a special act ap- proved November 23, 1814 (Acts 1814, p. 36; City Code Augusta, p. 346), "to prevent en- croachments on the streets and highways in the city of Augusta, and to remove such as now exist," the municipal authorities of that city were given full power to remove any "obstruction or encroachment upon the streets or highways, within the limits of said city, at the expense of such person or per- sons as shall cause the same." The method of exercising the power thus conferred is pointed out in section '6 of that act, which declares "that the said city council of Au- gusta shall have full power and authority to make such by-laws, rules and regulations. as they may deem necessary, fullj' and ef- fectually to prevent encroachments on the said streets and highways hereafter, and to remove such as now exist, and such as may hereafter exist, as in their opinion may be least bvu-thensome to the citizens, and best calculated to promote the good order and welfare of said city and its inhabitants." Undoubtedly, in the exercise of the powers incident to this gi-ant of control over the streets of the city, the municipal govern- ment could, by ordinance, peremptorily pro- hibit the erection of any awning, of what- ever material or however constructed, which encroached ever so little upon a street or sidewalk; and, as to an awning built in vio- lation of such ordinance, the city authorities could cause the same to be summarily torn down, with or without notice to the owner. The record, however, discloses that awnings have existed in Augusta from a time "when the memory of man runneth not to the con- trary," and that no official action was taken by council in respect to such structures un- til 1857, about 43 years after the passage of the act of 1814. Prior to 18.j7, the mu- nicipal authorities seem to have acquiesced in the erection of such awnings as property holders might deem proper, convenient, and safe. Certain it is that no ordinance having direct reference to awnings was adopted un- til the year last named, when it was ordain- ed that "all posts and rails lixed in any street for the purpose of supporting any awning shall be round, turned posts, and shall be placed next to and along the inside of the curb-stone, and shall be twelve feet in height above the sidewalks, including the rail on top;" and "no portion or any part of any cloth or canvas used as an awning shall hang loosely down from the same over the sidewalk or foot-path." Again, in 1888, after the lapse of about 31 more years, an- other ordinance was adopted, in which it was declared that "all consents or permis- sions heretofore granted by the city council, or by the board of fire wardens," in respect to the erection of awnings, be revoked; and "no person or persons shall build or erect any hanging sign or signs, awning or awn- ings, on the streets of this city without first obtaining permission from the streets and drains committee of council and the board of fire "-ardens conjointly, which permissici; may be revoked at the pleasin-e of council." Notwithstanding this last ordinance, it does not appear that any action looking to the removal of existing awnings was taken by the city authorities until the 28th of Feb- ruary, 1S93, when council adopted a resolu- tion in these words: "Resolved, that all wooden awnings in the city, i. e. over streets or sidewalks, be taken down within sixty days, at the expense of the owners." The petition in the present case was brought to restrain the municipal authorities from ex- ecuting this resolution, which is in the na- ture of an ordinance. The injunction prayed for was granted, and the city council ex- cepted. Petitioners, among other things, alleged that the awnings in question were erected, at considerable expense, with the full knowl- edge and consent of the city authorities; "that the last erected awning of petitioners was put up more than nine years ago, and most of them have been where they now are for more than twenty years, except that when new material was inserted therein to strengthen an old awning or rebuild;" that these awnings are in good order and repair, and are of such kind as have customarily been constructed, and allowed by the city to exist, time out of mind, and that they offer no obstruction to the full and free enjoy- ment of the streets and sidewalks. Tlie con- tention of petitioners, therefore, is that it would be inequitable, unjust, and oppres- sive for council now to be allowed to ca- priciously revoke the license conferred, and, irrespective of any necessity for so doing, to summarily destroy their property, with- out compensation, and without even notice to them, or an opportunity to be heard up- on the question of removing their awnings. The defendant, though not conceding that the awnings of petitioners were erected, or have been allowed to remain, under its ex- press permission, replies that, even if li- censes wore granted, they could be revoked at pleasure, and that, in the exercise of the MUNICIPAL CONTROL, OF STREETS. police powers with which the municipal au- thorities are vested, the awnings could be rt'inovod summarily without notice to the owners. It is quite certain from the record that, if the awnings involved in this contro- versy have any rightful existence, it can be accounted for only on the assumption that thoy were erected under license, either ex- press or implied, from the city government, and, no matter how long they have existed, tlicir continuance must be referred to the original license, or to a renewal or repetition of the same. The question, therefore, is, can the doctrine of estoppel, under these cir- cumstances, be invoked to prevent the city a.uthorities from removing encroachments which, undoubtedly, as an original question, they had full power to prevent? or, in other words, is the license to erect and maintain tliese awnings perpetual and irrevocable? In answer to this question, we will, in the first place, remark that no express legisla- tive authority has ever been conferred upon the city government to grant the right to erect and perpetually maintain awnings over the sidewalks of the city, and, this being so, that such authority has never existed. The municipal government of Augusta, irrespec- tive of the special act of 1814, has, we pre- sume, as the authorities of most cities have, the power to regulate and control the streets and sidewalks. Beyond question, the city council of Augusta has, by virtue of that special act, an express and clear legislative riglit to remove obsti'uctions and encroach- ments on the streets. This right was wisely conferred for the benefit of the public, to whom the streets and sidewalks really be- long, and the city council cannot, in the ab- sence of clear and unequivocal authority from the legislature, perpetually deprive itself of this right by ordinance, contract, or other- wise. Public policy forbids that a city gov- ernment should be allowed to part with any of its powers the exercise of which may be necessary to secure and conserve the public welfare; and any violation of this policy necessarily tends to an impairment of the usefulness and elficiency of the city govern- ment, and consequently to defeat, in a greater or a less degree, the very purposes for which it was created. In the absence of a clear grant of power from the legislature, the mu- nicipal authorities can do notliing amount- ing, in effect, to the alienation of a substan- tial right of the public. In a case like that of Laing v. City of Americus, SO Ga. 75(5, 13 S. E. 107, the applicability of the doctrine here announced is clear enough, because tliere the obstruction placed upon the side- walk was, without doubt, a nuisance per se; but, for the pm-poses of the present case, it makes no difference whether an awning is a nuisance per se or not. In Hawkins v. Sanders, 45 ISIich. 491, 8 N. W, 98, it was held that a wooden awning over a sidewalk, in front of a store, was not. There can, however, be no doubt that an awuiug of any kind, extending over a sidewalk, and sup- ' ported by posts, is an encroachment, and to some extent, at least, an obstruction; and it has been shown, we think, that the munici- ' pal government of Augusta has never had any authority to grant permission to any of its citizens to erect and maintain in per- pettiity any such encroachment or obstruc- tion in that city. It is equally true, we think, ' that no lapse of time could render valid, so as to become irrevocable, a license which the city never had the power to grant in perpetuity. Although, in Tennessee v. Vir- gin, 36 Ga. 388, this court held that as to ac- tions against a citizen the latter could, un- der the act of 1850 (Code, § 2925a), plead the statute of limitations, and that in Geor- gia the maxim of "nullum tempus occm'rit regi" had been abrogated, we are qiute cer- tain that no statute of limitations or pre- scription of any kind could so operate as to abridge in any manner the exercise of the legitimate legislative powers of the state conferred by the people for the common well- fare of all. In this sense, at least, the kin- dred maxim "nullum tempus occurrit rei- publicae" is still of force, and it is apphca- ble to a city cQuncil, so far as its legislative powers conferred upon it by statute are con- cerned, as well as to the state itself, the city government being, in this respect, a part of the lawmaking power of the commonwealth. In this country the people are the rulers,— the somrce of all power,— and it cannot be sound doctrine that their servants in any lawmaking department can, by the lapse of time, any more than by their own action, be deprived of powers the exercise of which is essential or necessary to the proper perform- ance of their duties and obligations to the public. 2. Having shown that licenses granted by the city council of Augusta to erect awnings, whether such licenses were express or im- plied, could not for any reason be irrevoca- ble, we will now state and briefiy discuss an- other principle applicable to the facts of the present case. We think that where citizens of Augusta, with the permission of the city authorities, erected awnings, which, of coiu-se, involved expense, there would be an equitable estoppel against a needless or ca- pricious revocation of the permission \mtil after the lapse of sufficient time to allow the parties incurring the expense to realize, in the use and enjoyment of their awnings, a fair reUu-n for their outlay. Whatever may be the law in other jurisdictions, it is now well settled in Georgia that, as between pri- vate persons, a parol license, though primari- ly revocable, is not so when the licensee has executed it, and in so doing has incurred ex- pense. This doctrine was announced as far back as 3 Ga. 82, in Sheflield v. Collier, and again in Mayor, etc., v. Franklin, 12 Ga. 239. in which Judge Nisbet said: "The rule is, as stated, that a parol license is revocable; but it has some exceptions. If the enjoyment of 276 STREI-yrS AND BRIDGES. it must be preceded necessarily by the ex- penditure of money, and tlie grantee has made improvements or invested capital in consequence of it, it becomes an agreement for a valuable consideration, and he a pur- chaser for value." Pages 242, 243. See, al- so, Winham v. McGuire, 51 Ga. 578, and Rail- road Co. V, Mitchell, 69 Ga. 114. There are other cases decided by this court to the same effect, but the above will suffice. The quo- tation from Judge Nisbet's opinion is fol- lowed by these words: "'In such cases the books say it would be against all conscience to permit the grantor to recall the license as soon as the benefit expected from the ex- penditure is beginning to be derived." The spirit of the principle thus announced is, within the limits indicated, applicable to the ' case before us. The city council could sub- serve no interest of the public by allowing I awnings to be erected, and then, immediate- ly, without reason, and in mere caprice or ( wantonness,— if such a thing be conceivable, — reqmring them to be removed. Such a ( com'se would be harsh and unjust, without excuse, and unnecessary. This would be true even under the ordinance of ISSS, in which the city council expressly reserved the right to revoke at pleasure any permission which might be given for the erection of awnings. This reservation would not confer upon the city authorities any right by granting a citi- zen permission to erect an awning, to mis- lead him into the belief that he would be al- lowed to enjoy it for at least a reasonable time, and then wantonly force him to destroy a structure, to erect which he had, on the faith of this belief, incurred expense. It is also established and sound law, however, that a verbal license, even when fully exe- cuted, is not necessarily forever irrevocable. In Wingard v. Tift, 24 Ga. 179, it was held that a verbal license to erect a dam and fish traps was not a license to renew the same after they had been washed away by high water. In that case. Judge Benning said (on page 182): "There is no dispute that such a license is revocable if its revocation does no damage to the person to whom it has been granted. Therefore, if Tift had chosen to re- voke this license before the first dam and traps had been put in, he might have done so. In that case the license would not have been the means of putting Wingard and Floyd to any expense. So, Tift might revoke the license at any time after the dam and traps had been sw(>pt away, for then things would stand just as they stood in the begin- ning." Following this doctrine, and remem- bering, for the reasons already given, that the city authorities are not to be held as strictly to the terms of licenses granted by them as private persons would be, we are satisfied that persons who have been allowed to reap substantially the beuefits of the mon- ey they have expended In putting up awn- ings can have no cause of complaint that the city thereafter revokes the permission given to erect them. After they have enjoyed this^ benefit, we see no reason why, under the broad powers conferred by the act of 1814, the city government, in pursuit of a policy to have all awnings in the city constructed of such materials and in such style as is deem- ed proper and smtable under existing condi- tions, having reference to the convenience of the public, the sightliness of the streets, and other proper and reasonable considerations, may not cause to be removed old awnings, which had already been permitted to stand for many years. When the time has arrived when the city may fairly and in good faith revoke existing licenses to maintain these structures, the municipal authorities may have them removed as encroachments upon the streets, no longer authorized; and if the owners, after reasonable and fair notice, fail or refuse to remove them, the city may have them removed at their expense. We again call attention to the fact that, as- lO the awnings involved in this controversy, me petition alleges that the one last erected was put up more than 9 years ago, and that most of them have been in existence for more than 20 years. It is not stated that any particular awning was rebuilt. In the ab- sence of evidence to the contrary, we think it a fair presumption that those who erected the awnings have been fully compensated, by the use and enjoyment of the same, for all expenditiu-es made upon the faith of the per- mission or license obtained from the city. Therefore a resolution or ordinance revoking the license is prima facie valid, and conse- quently its enforcement should not be en- joined. We have not overlooked the fact that in one of the affidavits presented in support of the petition, and sworn to by a number of affiants, the following loose and general statement occurs: "The awnings of depon- ents have been where they now are (except when replaced by new material, for the pur- pose of repair and reconstruction) for a peri- od of from two to twenty-five years." It i» obvious, however, that petitioners are enti- tled to no relief greater than would be au- thorized by the allegations of their petition; and, besides, a mere general averment in the affidavit to the effect that some of the awn- ings have been erected for only two years, without specifying how many, where they were situated, or to whom they belonged, would not authorize the court to restrain the city authorities generally from enforcing the ordinance; the gravamen of the petition be- ing that the injunction was sought in order to protect awnings, the most recently erected of which had been in existence for at least nine years. Judgment reversed. MUNICIPAL CONTIiOL OF STREETS. 277 INHABITANTS OF CITY OF TIIENTON v. TRENTON PASS. RY. CO. (27 Atl. 483.) Court of Chancery of New Jersey. 18U3. Sept. 14, Bill by the inhabitants of the city of Tren- ton to enjoin the Trenton Passenger Rail- way Company, Cousolklated, from rebuilding its roadway. Injunction granted. Edwin. Robert Walker, for complainants. James Buchanan, for defendant. BIRD, V. C. Whatever else may be with- in the scope and prajer of tliis bill, the only qui'stiou that I am called upon to consider iiud shall consider at this time is whetlier the defendant should be enjoincxl from fur- ther prosecuting the work of rebuilding or reconstriicting its roadl>ed on a portion of East State street, in the city of Trenton, •or not. I Siiy "rebuilding or reconstiaict- ing," because I thought it may be, although I do not say it is, important to preserve, in tlie interests of the parties concerned, the well-known distinction between rebuild- ing or reconstructing and repairing. In my judgment, the case made by the defendant itself exhi])its in the amplest manner the work of rebuilding or reconstructing, as dis- tingulslied from repairing. The proof shows that the work is not taking out here and tliere a tie or a crosspiece or a rail, insert- ing new ones, but the complete or entire removal of the structure which has formerly been used as a roadbed, and putting in place tlicreof wholly new and different, and in some respects improved, material. One or more expert witnesses of the defendant say that they very carefully examined the old roadbed 'and the materials in use, and say, in effect, that they found them so worn out and dilapidated that they were wholly be- yond repair. Tlie concliLsion, then, must most oertanily be, that the work in which the defendant has been engaged, and which it proposes to continue, is nothing less tlian a rebuilding or reconstniction of its track or roadbed. / The complainants insist that this work has ( tioen carried on without the permission of I the board of public works,— that branch of f the city authorities which, it is admitted, has I the control or right to give directions in f finch matters. Tliere is perhaps no ques- Ition as to the right or power of tiiis branch of the mimicipal authority to give directions as to the manner in which tliis work shall be done, and to superintend the work as it is being done. The defendant, by its con- duct, admits the truth of tliis insistment. / Before commencing tlie removal of the old roadbed, its president met one of the mem- f bei-s of the board of public works, and in- ' formed him that the defendant company in- ( tended to begin and carry on this work. The f is to be done. The legislature, in creating suoh power, declared that "the com- mon council shall have power within the said city to make, establish, publish, and modify, amend, or repeal ordinances, rules, regulations, and by-laws to prescribe the manner in which corporations or persons shall exercise any privilege granted to them in the use of any street, avenue, highway, or alley in said city, or in the digging up of any street, avenue, highway, or alley for the purpose of laying down pipes, or any other piu'pose w^hatever, and to proliibit and prevent any such use or work at such times and seasons of the year as they may desig- nate." In my judgment, this is so com- prehensive as to include the work of the defendant, which, it is admitted, is so ex- tensive in its natvire as to almost entirely obstract the use of said street, at the place of its operation, for any ordinary purposes of travel whatever. I do not imderstand that there is any dis- pute as to the claim of the complainants that the board of public works of the city has succeeded to all the rights, powei-s, and duties which were confeiTod upon the com- mon council by the act aforesaid. This law is so reasonable and so essential to the wel- fare of the city and all its business inter- ests that it not only meets with universal approval, but it is conceded on every hand that without it conflicting interests w^ould be so great and constant as to provoke unceaS' ing tunnoll, discord, and litigation. Every one, whether coiporations or individuals, who has any riglits in the streets, would be asserting his rights to preference. The defendant companj' most wisely or prudent- ly yields to this, and, as I understand the case, supposed it was acting within the re- quirements of the charter wlien it gave no- tice to a member of the board of public woi-ks of its intention to commence and carry on tlie work of rebuilding. It doubtless supposed it had gone far enough to comply with the requirements of tlie law. But in this respect, so far as I am able to judge, it was mistaken. It did not have tlie authority which the law determines to be necessary before it undertook the work. It is there- 278 STREETS AND BRIDGES. fore my duty to advise that the order to show cause be made absolute, restraining the defendant from fuilher prosecuting the work referred to in the bill of complaint until it shall have made application to the proper authorities, and obtained such direc- tions respecting the carrying on of the work as the city authorities have a right to make. MUNICIPAL CONTROL OF STREETS. 279 CITY OP ST. PAUL v. CHICAGO, M. & ST. P. RY. CO. (65 N. W. 649, 63 Minn. 330.) Supreme Court of Minnesota. Jan. 7, 1896. On rehearing. Affirmed. For former opinion, see G3 N. W. 267. MITCHELL, J. This appeal has once be- fore been considered by this court. 63 N. W. 267. The record and briefs were very vol- uminous, and the main issue was whether the defendant had acquired absolute title to the premises in controversy by adverse posses- sion. The oral arguments were wholly, and the briefs mainly, devoted to a discussion of that question. The natural result was that other and less important issues received but little attention from either court or counsel. The defendant's claim of certain rights un- der City Ordinance No. 286 was disposed of In our opinion by merely saying that the ordi- nance amounted to nothiug more than a re- vocable license; that its language was that of a license or permit, and not of grant. Up- on an application for a reargument of this question, we became satisfied that suilicient consideration had not been given to it, and that there was at least grave doubt whether the ordinance, if valid, did not constitute an irrevocable contract between the city and de- fendant. We therefore ordered a reargu- ment of the question as to the forcfe and ef- fect of this ordinance, and the rights of the defendant under it. Tliis involves two ques- tions: First, the authority of the city coun- cil of St. Paul to pass the ordinance; and, second, if they had the power to pass it, its force and effect. These questions should be considered in the order named; for, if the ordinance is held invalid, it will be unneces- sary to consider the second question at all. The land in 'question fronts on the Missis- sippi river, and was dedicated by the original proprietor to public use as a "levee." De- fendant's grantor, being in possession of the premises and claiming adversely to the city, had erected thereon a wooden freight house, fronting on the river, and some 400 or 450 feet long. In 1881, after defendant took pos- session, it presented a petition to the com- mon council of the city of St. Paul, stating that it contemplated taking down this freight house, and replacing it witli a large and per- manent one, and asking permission in the meantime to erect a temporary wooden struc- ture. This permit Avas granted, the limit of the permit being two yeai-s. In March, 1882, the defendant presented a further petition to the common council, stating that it was then reiidy to construct its new freight house, which was described as to be a large, ele- gant, and permanent structure, plans of which were submitted. The petition further stated tliat, in order to carry out the plan of the structure as demanded by the gruwing commerce of the city, It would be necessary to extend the river front of the building out Into the river from seven to ten feet further than the front of the old one; and requested the council to approve the plan of the pro- posed building, and to grant permission to extend it out into the river to the limit above mentioned. The plan proposed was of a building about 600 feet long and 50 feet wide, of brick, with stone foundation and a slate roof. In response to this petition the council, In April, 1882, by a unanimous vote, passed the ordinance in question (No. 280), which is as follows: "Section 1. That permission be, and the same is hereby given to the Chicago, Milwau- kee & St. Paul Railway Company to take down and remove the old freight-house, which is owned and used by said company, standing next below Sibley street on the levee, and to erect a new freight building upon the site now occupied by said old freight-house, pro- vided that the new structure may be extend- ed a distance of ten feet nearer the Mississip- pi river than the old one, if the city engineer shall be of the opinion that the same shall in no manner interfere with the navigation of said river. And provided further, that said new freight-house shall be built substantially in accovower and duty of providing and preserving them." The charter of the city of Detroit commits the regulation, supervision, and control of its streets to the common council. It empowers the council to Improve the same and to determine the nature and details of such improvement. It gives to the common council the power to control, pre- scribe, and regulate the manner in which the streets shall be used and enjoyed. These pow- ers are held in trust for the public benefit. They cannot be surrendered or delegated to private parties. All franchises granted or con- I tracts made with reference to the use of streets must be made, not only with due regard to ' their lawful and proper use by others, but sub- ject to the exercise by the municipaUty of the powers referred to. The permission ghren respondent to use this street is in subordination to the general pow- er of the municipality over its streets. The city is not under obligation to conform its treatment of its streets to the construction of respondent's road-bed, but, on the contrary, respondent must conform the construction of Its road-bed to such reasonable regulations as are made by the municipality in the reasonable exercise of its powers resp(>cting the use, con- trol, regulation, and improvement of its streets. Street railways occupy public streets subject to the use of such streets by the public, sub- ject to such burdens as may be made necessa- ry by reason of the improvement of such streets, and subject to such changes in the con- siru(;tion of road-beds as imi)roved and chan- ged conditions may demand. The statute re- ferred to empowers the council to prescribe such rules and regulations regarding such rail- ways as may be required for the grading and paving of the streets occupied by them. In the exercise of the power conferred by this statute, as well as the power conferred by the charter respt'cUng the determination of the character .of all improvements, the council has the un- doubted authority to determine what Is neces- sai-y or required, and whether any particular method of construction of respondent's roadway interferes with the durability or preservation of the proposed pavement, and to prescribe such reasonable and practicable changes in the mode of construction as, in their judgment, will preserve and protect the proposed im- provement. In the recent case of City of Phil- adeliihia v. Railway Co., 22 Atl. 695, the su- preme court of Pennsylvania says: "By whom is the necessity for repairing or repaving, etc., to be determined? Certainly not by the com- pany itself, but by the municipal authorities. As a general rule, it is their special province to determine when repaving is needed, and how it shall be done, whether with the same kind of material as before, or with a different and better material. It was never intended to transfer the duty of determining these mat- ters, or either of them, from the municipal au- thorities to any one else. The proposition that, because cobble-stone was the kind of pavement ordinarily in use when defendant company was chartered, it is, in no event, bound to re- pave with any other and more expensive kind of material, etc., is wholly untenable. It can- not be entertained for a moment. It was nev- er contemplated that the railway company would continue to exist and perform its corpo- rate functions in a cobble-stone age. It was called into being with the view of progress. The duties specitied in its charter were imposed with reference to the changes and improved methods of street paving which experience might sanction as superior to, and more eco- nomical than, old methods. In other words, the company is bound to keep pace with the progress of the age, in which it continues to exercise its corporate functions. The city authorities have just as much right to re- quire it to I'epave, at its own expense, with a new, better, and more expensive kind of pave- ment, as they have to cause other streets to be repaved, in like manner, at the public ex- pense." \ In the present case the common council and board of public works have determined that the vibration of the projecting ties, which ai'e laid upon a sand foundation, will break the bond of the concrete if laid over and around the projecting ends of the ties, which it must be if the projecting ties are allowed to remain, and thus the pavement will be destroyed. This conclusion does not appear to be unrea- sonable, but, on the contrary, the result which the coimcil desires to protect the pavement against would seem to be most natural. The demand of the council necessitates the adop- tion, upon this section of respondent's road, of some other form of bracket or mode of staying the stringers. It is conceded that otlier brack- ets are used in the same city, and other metho, by oru" civic societies, by pohtical parties, and not infrequently at funerals, which this ordinance prohibits. These processions are everywhere not only permitted, but encour- aged. But suppose these processions should for an unreasonable time obsti-uct travel on the streets, or injuriously affect l)usiness, and be carried on to such an extent and for such time as to be an annoyance and a nuisance to tlie public, there ctfn be no question that the city may by ordinance prohibit them, and pimish the persons making such an unreason- able disturbance. If the ordinance involved in this controversy were a sweeping prohibi- tion of all processions, parades, and all riding and driving upon the public streets of the city with bands of music, flags, torches, and other paraphernaUa of the moersons are arresteil and brought for trial, it is incumbent on the prosecution ] to show by evidence that the order to desist , from making the disturbance was given by the mayor or city marehal. But it is also , incumbent on the prosecution to prove that the person or persons charged were guilty of doing the prohibited acts. This is the grava- . men of the charge. Evidence that the order i to desist was given, without more, woiild not I authorize a conviction. We are aware of no / case determined by a court of last resort which is exactly in point upon the question MUNICIPAL CONTROL OF STREETS. 293 under consideration. In Re Frazee, 63 Mich. 396, 30 N. W. Rep. 72, it was determined that an ordinance absolutely proliil^iting street processions with musical instruments, banners, torches, etc., or while singini? or shouting, witliout the consent of the mayor first obtained, was unreasonable, and there- fore invalid. In that case the offense con- sisted in failing to obtain the consent of the maj'or before the procession or performance began. In the case at bar persons are not proliibitod from putting a procession in mo- tion. The prohibition extends to such a dis- play as causes a public annoyance. So in the case of Mayor of Baltimore v. Radecke, 49 Md. 217, it was held that an oixlinance which provided, that permits for steam boil- ers and engines might be revolted and re- moved after six months' notice from tlie mayor, and any one receiving such notice, who refused to comply therewith, sliould pay a fine, was held to be imreasonable. This was an imwarrantable and vmreasonable in- terference with the prosecution of a legiti- mate biisiness, and depended upon the mere caprice of the mayor. In the case at bar, as we have said, the offense consists in doing acts which are everywhere regarded as sub- ject to municipal control. Other cases are cited by coimisel, but it appears to lis tliat they are cleai'Iy distinguishable from the case at bar. On the other hand, in the case of Com. V. Davis, 140 Mass. 4S.'5, 4 N. E. Rep. 577, an ordinance providing that "no persons shall, except by the permission of the said committee, deliver a sermon, lecture, adlress, or (liscoui-se on the common or public grounds," it was held that the ordinance was not imreasonable and invalid. The commit- tee refcrre of the public groimds. See, also. Com. v. Plais- ted, 148 Mass. 375, 19 N. E. Rep. 224. In our opinion, the ordinance in question is not unreasonable. It is applicable to aU persons who, by violating its provisions, subject them- selves to its penalties; and the mere fact that \ no arrest can be made unless the mayor or ■ mai"shal shall order the offender to cease from I violating the ordinance, instead of being op- | pressive on the citizen, operates as a wamiag to him to delist from a violation of the ordi- ,' nances. He should not be heard to con plain , of this feature of the ordinance. The order of the district court sustaining the demurrer to the information is revereed. 294 STREETS AXD BEIDGES. WETTENGEL t. CITY OF DENVER. (39 Pac. 343, 20 Colo. 552.) Supreme Court of Colorado. Feb. 8, 1895. Error to county court, Arapahoe county. John Wettengel, convicted in a police court of the violation of a city ordinance, upon appeal to the county court was again con- victed, and from the judgment therein brings error. Reversed. J. Warner Mills, for plaintiff in error. F. A. Williams and A. B. Seaman, for defendant in error. CAMPBELL, J. There are a number of er- rors assigned, the principal one of which is the invalidity of the ordinance. There are, how- ever, two other questions which will be con- sidered, the determination of which will work a reversal of this judgment; but, inasmuch as there are a number of cases pending in the court below which depend upon the decision in this, we have concluded to determine the main point involved, and pass upon the constitution- ality of the ordinance. The evidence tends to show that on the night of August 6, ISOO, on Larimer street, in the city of Denver, between Eighteenth and Nineteenth streets, the defendant, with others, distributed to travelers on the street, whom he could induce to take the same, 600 or 700 circulars or handbills, about 7 by 10 inches in size, which gave the names of the 6 o'clock and Sunday closing houses in Denver dealing in ready-made clothing and boots and shoes, and urged the public to patronize them. At the same time the re- ceivers of these circulars were requested not to drop them on the streets, and some of those to whom such requests were made complied therewith, but others dropped them on the street. The circulators endeavored to pick up such as were thrown away, but, not- withstanding this, some of these circulars were deposited on the street, and found there and on the sidewalks the following morning. The validity of this ordinance is assailed on the ground that it is unreasonable. It is contended that it is an "attempt to regulate and restrain the conduct of the citizen in matters of mere indifference, without any good end in view"; that it aims to. prohibit the cariying on of a business which in gen- eral, and in itself, is lawful. The legisla- ture not having conferred upon the city the express authority to pass an ordinance pro- hibiting the distributing of circulars on the streets, the power, if it exist at all, must be derived from the general welfare clause, and the. power given to prevent "practices hav- ing a tendency to frighten teams or horses." The reasonableness of this ordinance, there- fore, is a matter for judicial determination. No useful puriwse would be subserved by following counsel for plaintiff in error in his discussion of the competitive wage system, of the conflicting views of speculative phil- osophers on sociology, or of the rights of em- ployers and employes, all of which is not germane to the present discussion. The right of clerks to combine to secure, by all lawful means, shorter hours or higher wages, is un- questioned, and needs no argument to sup- port it. Our hearty concurrence in all that is said by counsel in this part of the argument would not lead us to a decision of the prop- ositions which are necessarily involved in the determination of this case. We proceed at once to a discussion of the main point, viz. the validity of the ordinance: If the object of this ordinance is to prohibit the distributing to travelers on the street of any circular or handbill, irrespective of its character, it might be held unreasonable, and come within the principle announced in the case of People v. Armstrong, 73 Mich. 2S8, 41 N. W. 275. The section of the or- dinance held unconstitutional in that case is, in substance, as follows: "No person shall himself, or by another, circulate, distribute or give away circulars, handbills or adver- tising cards of any description in or upon any of the public streets and alleys of said city." As the court in that case said, "the offense is made complete in itself by the mere act of distributing or giving away these enumerated articles." For that reason, among others, the ordinance was declared invalid. In the ordinance before this court such are not its provisions, but the prohibition applies only to the distributing of handbills or circulars of such a character or nature that the trav- eler will naturally or probably throw the same, immediately after so taking them, up- on or litter the street, or place the same where they may be or may become calculated to frighten or injure or endanger horses. So that, by the very terms of the ordinance, the offense is made to consist, not in the mere act of distributing handbills or circulars, but in the distributing of such handbills or circulai-s as will probably or naturally be thrown away, and result in the littering of the street or frightening of horses. In Fra- zee's Case, G3 Mich. 396, 30 N. W. 72. com- monly known as the "Salvation Army Case," it was held that an ordinance which pro- hibited all persons from parading or riding in the streets of Gi-and Rapids with musical instruments, etc., without having first ob- tained the consent of the mayor, was void, because it sought to "suppress what in gen- eral is perfectly lawful, and leaves the pow- er of permitting or resti-aining processions to an unregulated official discretion." These cases can, we think, be distinguished in prin- ciple from the one now before us. In the dis- tributing of circulars or handbills which are, in themselves, unobjectionable, or in the pa- rading of the streets with musical instru- ments, there is nothing unlawful, and an absolute prohibition of the same might be beyond the power of the city council to en- force; but the safety of the people who use the streets and sidewallis does require some CONTROL OF MANNER OF USE BY PUBLIC. 295 restraint upon indiscriminate distributing of handbills and circulars of such a nature as have a tendency to frighten horses, or which will litter the streets. It is a matter of com- mon knowledge that nothing is more likely to frighten horses than pieces of paper car- ried by the wind through the streets around and about the places where such horses may be. Any practice which naturally tends to cause the littering of the street with loose papers, which, flying about, will cause fright to horses, and so tend to the injury of the public, is not a lawful practice, and the en- forcement of this ordinance will discourage and put a stop thereto. In another view of the case, this ordinance is reasonable. The throwing of loose handbills and circulars in- to the street is certainly reprehensible, and is a matter for police regulation. If one, there- fore, hands to another a handbill which the latter naturally will at once throw into the street, the former is a party to the prohibited act The one who distributes the circular to the one who actually drops it in the street, to the injury of the public, is just as guilty as he who directly drops the pa- per. Indirectly, he contributes to the wrong, and should be held liable the same as if he himself threw into the street the objectiona- ble article. The evident object of the ordi- nance in question is to prevent the littering of the street and the frightening of horses. It certainly tends to the accomplishment of one of the pui-poses for which the city was incorporated, viz. the protection of its in- habitants from danger as they pass along its streets, engaged in their business. Such an object is certainly legitimate, and the means employed are reasonable, and surrounded by sufficient safeguards. The ordinance is free from the objections which seem to prevail with the supreme court of Michigan in the cases cited. With the construction which we have put upon the section under consid- eration, "the actual operation of the ordi- nance in all cases which may be brought thereunder" cannot result in the injustice which is urged as likely to follow its en- forcement. We hold the ordinance valid, as a reasonable exorcise of the police power of the city, delegated to it by the legislature. There are, however, errors apparent in the record which compel a reversal of this case. Over the objection of defendant's counsel, the court orally instructed the jury. This is error. Lee v. Stahl, 9 Colo. 20S, 11 Pac. 77; Code, 1SS7, § 187, subd. 6. Defendant had the right, so far as this or- dinance is concerned, to distribute any cir- culars that were not of the objectionable character enumerated. The evidence, either of the plaintiff or defendant, should show that the circulars or handbills distributed by the defendant came within the enumera- tion of those whose distribution the ordi- nance prohibited. Whether or not they were of such a character was a question of fact, for the jury, not a matter of law, for the court. The jury must determine the ques- tions of fact,— not only that the defendant distributed circulars as charged in the com- plaint, but also that these circulars were of the character specified as coming within the provisions of the ordinance. In the charge to the jury the court below eliminated the latter proposition, and, in effect, directed the jury to find the defendant guilty if they believed from the evidence that the defend- ant, with others, merely distributed the cir- culars or handbills which were offered in evidence. It is apparent that the court, as a matter of law, determined that the circulars which were distributed came within the prohibition of the ordinance, and in so doing it usurped the province of the jury. For these two errors committed by the court be- low the judgment should be reversed, and the cause remanded for a new trial. Reversed. 296 STREETS AND BRIDGES. COMMONWEALTH v. FENTON. (29 N. E. 653, 139 Mass. 195.) Supreme Judicial Court of Massachusetts. Suf- folk. March 23. 1SS5. Exceptions from superior coui't, Suffolk county; Blodgett, Judge. Nathaniel W. Fenton was convicted, under an ordinance of the city of Boston, of allow- ing his vehicle to stop in the street for more than 20 minutes, and brings exceptions. Ex- ceptions overruled. H. N. Shepard, Asst. Atty. Gen., for the Commonwealth. T, J. Emery, for defendant. PER CURIAM. The regulation which pro- hibits any person from allowing his vehicle to stop in a public street for a longer time than 20 minutes is a valid police regulation. Pub. St. c. 28, § 25; Com. v. Brooks, 109 Mass. 355. The fact that the defendant had a license from the state as a hawker and peddler is immaterial. His license does not authorize him to violate the ordinances or police regulations of the city. He is subject to the regulation in question in the same man- ner as is any person exercising a trade which does not require a license. Exceptions over- ruled. CJONTROL OF MANNER OF USE BY PUBLIC. 297 COMMONWEALTH v. MULHALL. (39 N. E. 183, 1G2 Mass. 49C.) Supreme Judicial Court of Massachusetts. Suffolk. Jan. 1, 18f^5. Exceptions from superior court, Suffolk county; J. B. Richardson, Jucl^e. Patrick Mulhall was convicted of violatinj; a city ordinance, and excepts. Exceptions overruled. Fred'k E. Hurd. First Asst. Dist. Atty., for the Commonwealth. G. W. Wiggin and P. H. Cooney, for defendant. KNOWLTON, J. By Pub. St. c. 53, § 15. It is provided that "the mayor and alder- men and selectmen may make such rules and regulations for the passage of carriages, wag- ons, carts, trucks, sleds, sleighs, horse cars or other vehicles, or for the use of sleds or other vehicles for coasting in or through the streets or public ways of a city or town as tliey may deem necessary for the public safe ty or convenience, with penalties for viola- tion thereof not exceeding twenty dollars for each offense." This statute was originally enacted in similar language in the statute of 1875 (chapter 13(j, § 1). The ordinance f which the defendant is alleged to have vio- lated is as follows: "No person shall carry ' or cause to be carried on any vehicle in any / street a load, the weight whereof exceeds three tons, unless such load consists of an f article which cannot be divided." The stat- ute above quoted has reference to the safety and convenience of the public in the use of the streets. Many of the streets of Boston are greatly crowded, not only with pedestri- ans, but with vehicles of almost every kind. I It cannot fairly be said that this ordinance has no reference to the convenience or safe- ty of the public who use the streets. We can see that very heavily loaded teams, drawn by four or six horses, in the most crowded parts of the city, might seriously interfere with the convenient use of the streets by others. If the ordinance is within the class of ordinances in regard to which this statute permits the mayor and aldermen to exercise their judgment and discretion, we cannot de- clare it void on the ground that we might have decided the question in reference to the necessity of the ordinance differently. If they deem such an ordinance necessary for the public safety or convenience, and if it is not a clear invasion of private rights secured by the constitution, it must stand as a regu- lation made imder legislative authority. We think the facts offered to be proved do not take the case out of the field of regulation by the legislature, or by the mayor and al- dermen as a local tribunal acting under the authority of the legislatiu-e. If it appeared 1 that the ordinance could have no relation to the safety or convenience of the public in ' the use of the sti-eets, the fact that the mayor and aldermen declare the regulation to be I necessary would not give it validity. But we cannot say that they were in error in decid- I ing that the use of heavily loaded vehicles J is a matter affecting the public in the use of ' the streets, which may be regulated under the statute, nor can we say that the ordi- nance is anything more than a regulation, upon the necessity of which their decision is final. Com. v. Plaisted, 148 Mass. 375, 19 N. E. 224; Com. v. Ellis, 158 Mass. 555, 33 N. E. 651; Com. v. Fenton, 139 Mass. 195, 29 N. E. 653; Com. v. Stodder, 2 Cush. 562; Com. V. Robertson, 5 Cush. 438. Exceptions overruled. 298 STREETS AND BRIDGES. BURDETT V. ALLEN. (13 S. E. 1012, 35 W. Va. 347.) Supreme Court of Appeals of West Virginia. Dec. 7, 1891. Error to circuit court, Kanawha county. Action of detinue by S. C. Burdett against Dover Allen. Judgment for plaintiff. De- fendant brings error. Reversed. W. S. Laidley, for plaintiff in error. S. G. Burdett, in pro. per. ENGLISH, J. On the 7th day of August, 1889, S. C. Burdett instituted an action of detinue against Dover Allen before C. W. Hall, a justice of the peace of Kanawha coun- ty, in which the plaintiff complained that the defendant unlawfully withheld from him one brindle cow of the value of $50. The plaintiff filed affidavit and gave bond for the immediate possession of the property. On the 2Sth day of August the case was heard, and judgment was rendered for the plaintiff that he retain possession of the property, and that he recover from the defendant his costs in said suit. From this judgment the defend- ant took an appeal to the circuit court of said county, and on the 10th day of April, 1890, said appeal was submitted to the circuit court of Kanawha county upon an agreed statement of the facts, upon consideration wliereof, and after hearing the argument of counsel there- on, the said court was of opinion that the ordinance of the city of Charleston in relation to the impounding and sale of animals Is un- constitutional, and rendered judgment for the l)laintiff for said property claimed in said ac- tion, and for costs, and from this judgment the defendant applied for and obtained this writ of error. It was agreed between the plaintiff and the defendant that the following are the fa£ts to be taken as proven by the respective parties: By the plaintiff': That he lives in Charleston, and that he is the owner of the cow which the suit is about; that on the evening of the 7th day of Augiist, 1889, the plaintiff found his said cow in charge of Dover Allen, the city pound-master, and that he demanded the release of his cow, which was refused until the charges thereon were paid, and to pay the same or any sum the plaintiff declined, and thereupon he brought said action, and the said cow was delivered to him by the con- stable on the order of the justice aforesaid, and that on the trial of said action before the said justice judgment wns given for the plain- tiff', the said court holding that said ordi- nance under which the said cow was held was unconstitutional and void. Also the charter and ordinances of the city were put in evi- dence. By the defendant: That he was on the 6th day of August, 1889, and has since been, and is yet, pound-master of the city of Charleston; that he was then, and is yet, exercising the duties of said office under and by virtue of the ordinances of said city; that on the night of the Gth day of August, 1889, between 10 and 12 o'clock, the said Allen, with two boys he had to assist him in hunt- ing for and driving in stray cows, were out on the street, and found said cow of plaintiff in the public street, and that th'ey drove her to the city pound, and fastened her therein that night, and kept her in said pound until taken away by the constable the next day; that on the evening of the 7th of August the plaintiff' came and demanded his cow, claim- ing her, and defendant demanded his fees, etc., allowed him by the city ordinance, which at that time amounted to two dollars, and the plaintiff refused to pay the same, and thereupon the defendant refused to give up the cow, and the plaintiff brought said action before Justice Hall, and upon his order the constable took the cow from the defendant; that the said charges of two dollars are still unpaid; that upon the trial before the said justice his decision was that the said city ordinance was unconstitutional and void, and he gave judgment for the plaintiff, from which judgment the said defendant appealed; that the said lot in which said cow was im- pounded was the city pound, made so vmder and by virtue of an ordinance adopted June 30, 1887; and this was all the evidence ad- duced. The counsel for the defendant in error con- tends that the ordinance of the city of Charleston under which the property of said defendant in error was seized and impounded is void because (1) there is no express au- thority conferred by the charter, either in chapter 47 of the Code or the special charter of the city of Charleston; that the power to impound and sell animals must be expressly conferred, and a general authority given to prevent animals from running at large is not sufficient. The first section of chapter 47 of the Code provides that "a city, town, or vil- lage lieretofore estalilished, (other than the city of Wheeling,) may exercise all the pow- ers conferred by this chapter, altliough the same may not be conferred by their charter, and that, so far as said chapter confers pow- ers on the municipal authorities of a city, town, or village, (other than said city of Wheeling.) not conferred by the charter of any such city, town, or village, the same shall be deemed an amendment to said charter;" and section 28, which prescribes the powers and duties of the council, provides, among other tilings, that sucli council shall have pow- er therein "to prevent hogs, cattle, horses, sheep, and other animals and fowls of all kinds from going at large in such city, towfa, or village;" and section 29 of said chapter provides that, "to carry into effect these enu- merated powers and all others conferred upon such city, town, or village, or its council, by this chapter, or by any future act of the leg- islature of this state, the council shall have the power to make and pass all needful or- ders, by-laws, ordinances, resolutions, rules, and regulations not contrary to the constitu- tion and laws of the state, and to prescribe, CONTROL OF MANNER OF USE BY PUBLIC. 29» I impose, and enact reasonable fines, penalties, and imprisonments in the county jail. * * « Such fines, penalties, and imprisonments shall be recovered and enforced under the judgment of the mayor of such city, town, or village or the person lawfully exercising his functions." The ordiuance of the city of Charleston in ref- erence to the public pound was put in evl- denc-e in this case, and the first section thereof provides that the inclosure attached to the city hall be, until otherwise ordained by the council, constituted the public pound for the impounding of animals therein subject to be impounded. It also provides in section 2 that "it shall be unlawful for any person being the owner or having charge of any cow, calf, or ox to allow the same to run at large be- tween sunset and sunrise in any of the streets, lanes, alleys, or commons of said city below the Elk and Piedmont roads;" and section 4 provides: "It shall be the duty of the pound- master, on view or information, forthwith to take up all or any such animals running at large as aforesaid, and shut up the same in the public pound," there to be retained and fed until disposed of as thereinafter provided. Section 5 provides that the owner shall be no- tified forthwith; and section 6 provides that, in case the owner shall not within 48 hours after giving said notice appear and prove his right to such animal, the pound-master shall make his retiu'n to the mayor, setting forth the number and kind of animals taken up, time when taken, owner of the animal, if known, the fact of giving the notice, and that 48 hours have passed since such notice was given or posted, and that the animal or animals still remain in the pound unclaimed. Section 7 provides that the mayor shall then direct the sergeant to advertise and sell said animals, and prescribes the mode of advertisement; and further directs that the sergeant shall make return to the maj'or of his proceedings, and shall pay all surplus money arising from said sales to the treasurer; and section 9 provides that "any person being the owner * * * of such animal," who shall within one year show to the mayor that he was such owner, shall have any surplus m the hands of the treasurer arising from the sale of such ani- mal paid over to him, said surplus to be paid on the order of the council. These ordinan- ces, enacted under the power so to do confer- red by section 29 of chapter 47 of the Code, appear to me to confer express authority upon the pound-master, acting in connection with, and under the supervision of, the mayor, to impound cattle found running at large in the city, and hold them until the fees and costs are paid, or to sell the same after notice to the owner, and, after deducting said costs and fees, to pay the residue to the owner when he asserts his claim thereto. It is true that Dillon on Municipal Corporations (volume 1, § 150) states that "power to impound and forfeit domestic animals must be expressly granted to the corporation, and that laws or ordinances authorizing the officers of the cor- poration to impound, and, upon taking speci- fied proceedings, to sell, the property, are penal in their nature, and, where doubtful in their meaning, will not be construed to produce a forfeiture of the property, but rather the re- verse;" and then proceeds to state that the powers conferred must be strictly folloAved in order to constitute a valid sale of such animal. In the case under consideration, however, no sale took place; the animal was only taken up and impounded, and, under section 28 of chapter 47, providing that the council of such city, etc., shaU have power therein to prevent cattle from going at large therein, taken in connection with section 29 of the same chap- ter, authorizing the council to make and pass aU needful orders, by-laws, ordinances, and resolutions, etc., not conti-ary to the constitu- tion and laws of the state, to carry into ef- fect said power, the impounding officer, un- der the provisions of the ordinances above mentioned, would surely have the authority to take up and impound such animal found running at large at night in the streets of the city.i • • • * * * * 1 Part of opinion is omitted. 300 STREETS AXD BRIDGES. WILSON V. BEYERS, Town Marshal. (32 Pac. 90, 5 Wash. 303.) Supreme Court of Washington. Dec. 1, 1892. Appeal from superior court, Douglas coun- ty; Wallace Mount, Judge. Replevin by W. C. Wilson against Robert Beyers, town marshal of the town of Water- ville. Judgment for defendant. Plaintiff ap- peals. Reversed. The ordinance referred to in the opinion authorizes the town marshal to seize stock running at large; to post a notice to that ef- fect; and if the stocli is not claimed, and charges paid, in 48 hours, to advertise and sell the property. The question presented is, does this constitute due process of law? Geo. Bradley, for appellant. Pendergast & Malloy, for respondent. DUNBAR, J. This cause was submitted to the court on an agreed statement of facts, which involved the validity of a ceitain town ordinance of the town of Waterville, (a town of the fourth class.) providing for the im- pounding and sale of cattle running at large upon the public streets of said town. Plain- tiff brought his action in replevin for ceii:ain cattle sold by defendant, and said to be un- lawfully detained by respondent, who, as city marshal of said town of Waterville, seized the cattle under the provisions of said ordinance. Defendant moved for judgment upon the agi'eed facts, and judgment was rendered up- on said motion in his favor, and plaintiff ap- peals. The contention of the appellant is that the ordinance in question is void, for two reasons: (1) That it is in violation of section 3, art. 1, of the constitution of the state of Washington; i (2) that said ordinance is in- valid because the said town had no authority under the statute to pass it. So far as the first proposition is concerned, there can be no doubt that the ovei*whelming weight of authority is opposed to the conten- tion of appellant, and that the right to re- strain cattle from running at large, under the provisions of the ordinance passed in con- formity with the grant of such power by the legislature, is a valid exercise of police power, and is not violative of any constitutional pro- vision. Such power has been conferred on municipal corporations from time immemo- rial, and is founded on public necessity, protec- tion of public health, safety, and comfort; and but few courts have questioned its valid- ity. There have been many contentions over the reasonableness or unreasonableness of the notice given by the provisions of the ordi- nance, and many decisions holding the notice unreasonable, but they did not go to the right of the city to pass an ordinance of this char- acter. In other cases the ordinance provided for the collection of the damages which the 1 Tonst. art. 1, § 3. provides that "no person slmll he deprived of life, liberty, or property without due process of law." stock may have done, and some courts have decided that the question of damages should be submitted to a jury. This was the ques- tion decided in Bullock v. Gamble, 45 111. 218, cited by appellant. In Willis v. Legris, 45 111. 289, cited by appellant on this point, the question of a penalty was involved, which is not involved in the case at bar. Sustaining the validity of this and kindred ordinances, we cite: Dill. Mun. Corp. §§ 308, 350; Cooley, Const. Lmi. § 5SS; McKee v. McKee, 8 B. Mon. 433; Jarman v. Patterson, 7 T. B. Mon. &44; Brower v. Mayor, 3 Barb. 2-54.; Milhau V. Sharp, 17 Barb. 435; Van Wormer v. May- or, 15 Wend. 2G2; Mayor v. Lanham, 67 Ga. 753; Com. v. Bean, 14 Gray, 52; Brophy v. Hyatt, 10 Colo. 223; Spitler v. Young, 63 Mo. 42; Folmar v. Cui-tis, 86 Ala. 354, 5 South. 678; 10 Am. & Eng. Enc. Law, 187, and eases , cited. So far as the quesition of notice is con- cerned, as not being due process of law, pro- ceedings under the ordinance are proceedings in rem. It is only the property that is dealt [ with; no personal liability attaches to the own- I er; and in an action in rem constructive serv- ice by pubhcation is sufficient to give validity to the judgment obtained. The second proposition, however, is more troublesome. The statute does not, in express ■ i terms, grant the power to the city council of ' cities of the fourth class to pass ordinances | for the impounding of cattle or other stock, or to restrain them from running at large within ' the city limits. The question, then, is, has \ this power been conferred by necessary impli- I cation? As a general proposition it may be I said that the city corix)ration is an inferior body, and has no other powers than those which have been expressly delegated to it, and their appropriate incidents. But what the ap- propriate incidents of expressly conferred pow- ers are, is a question exceedingly difficult to determine, and one which has provoked the announcement of many conflicting opinions by the courts; and the text writers, while assum- ing to lay down rules for the construction of the statutes in such cases, leave the meaning of the rule so clouded as to render it of little assistance to the courts. Thus, in Horr & B. Mun. Ord., it is announced in section 18 as follows: "The charter or statute granting pow- ei*s to municii)al corporations usually enumer- ates those which may be exercised. It is a general rule that all powers not mentioned in the enumeration, and not incidental to those enumerated, are not intended to be included in the grant. All other ix)wers are impliedly excluded." All tlie force of the rule of con- struction tlius laid down is, however, anniilled by the following proviso: "But enumeration of special cases does not. unless the intent be apparent, exclude the implied power, any fur- ther than necessarily results from tlie nature of tlie special provisions." These oracular an- nouncements, when construed together, con- tain no rule of construction whatever. The rule of strict construction against the corpora- tion is, however, thus laid down by Judge Dil- CONTROL OF MANNER OF USE BY PUBLIC. 301 ' Ion in his worl; on Municipal Corporations, (section SO and notes:) "Corporate power, be- ing delegated, must be strictly construed and ' plainly conferred. Wlienever a genuine doubt arises as to the right to exercise a certain pow- er, it must be resolved against the corporation, and in favor of the general public. This rule is most strictly observed in construing powers that may lead to an infringement of personal or property rights." In Sniitli v. Calloway, 7 Ind. SO, it is held that the apphcation of the above rule could not be made to defeat the right to exercise powers which are incidental to the good government of the community. In City of Waco v. Powell, 32 Tex. 258, under the provisions of the statute granting to a city government general control over the streets, similar to the provisions of our statutes relat- ing to cities of the fourth class, it was held that such power authorized the enactment of an ordinance for the impounding of cattle; and it was further held that the authority to pass such an oi-dinance existed not only under the general powers granted, but by reason of the power granting control of the public streets to the city. "The right of individuals," said the court, "to convert the public eti-eets into a hog, cow, or horse ranch, by allowing or compelling their stools to nin there, cannot ex- ist, compatible with the right of the board of aldermen to control the same streets. The two rights are inconsistent, and cannot exist together." The same doctrine is stated in sev- eral other cases. While other courts have gone still further, and held that under a general leg- islative provision that 'the city or town sliall have the right to malie all necessai-y laws, not repugnant to the laws of the state,' such city has power to pass ordinances to restrain cat- tle fi-om running at large. Com. v. Bean, 14 Gray, 52. While many other courts have held that such power oould not be legiiUy implied, Varden v. Mount, 78 Ky. 86; Collins v. Hatch. I 18 Ohio, 523. It is pretty well conceded by I the authorities that the term "general wel- /fare," usotl in legislative grants of power to I municipal coiijorations, is of broader scope, / and confers greater powers on corporations, ( than such expressions as "peace and good or- I der" and "peace and good government," and that many things are essential to the public welfare which belong neither to the presei-va- tlon of peace and good order, nor to the exer- cise of good government. The general author- lOt / rn- ' ity oonfeiTed by our statute is as follows: / "To make all such ordinances, bj--laws, rules, / regulations, and resolutions, not inconsistent with the constitution and laws of the state of Washington, as may be deemed expedient to maintain the peace, good government, and wel- / fare of the town, and its trade, commerce, and ( manufactures, and to do and perform any and ■ all other acts and things necessaiy or proper to carry out the provisions of tliis chapter. So that it will be seen that the statute not only contains the "peace and good gover ment" provision, but also contains the "general welfare" provision; for the word "welfare" is fully as comprehensive as the term "general welfare." And under this provision we might be constrained to give it the liberal consti'uc- tion contended for by resiwndent, were we called upon to construe the powers gi'anted to any particular city, independent of its rela- tions to any other provisions of the statute. But under our laws cities are divided into four classes, and their organization, classification, incorporation, and powers are all provided for in one act; and to arrive at the intention of the lawmaliers the act must be construed to- gether. It will be observed from the perusal of the act that the same general power's are granted to cities and towns of the third and fourth classes as are granted to cities of the second class, yet the statute expressly con- fers upon cities of the second and third class- es power to prevent and regulate the running at large of any and all domestic animals with- in the city limits, while this power is not specified in the specific grants of power to cities of the fourth class. It also appears that many other powers are gx-anted to large cities which were not granted to the smaller ones, and it was the evident Intention of the legislature to confer many powers on the larger cities which were withheld from the smaller ones. Considering the act together, as we must, we must conclude that this provision being made as to one class of cities, and not as to the other, it was not the intention of the legislature to confer the power by implica- tion, and that the ordinance Is therefore In- valid. The judgment is reversed. ANDERS, C. J., and STILES, SCOTT, and HOYT, JJ., concur. 2 1 Hill's Ann- St § 673, subd. 16. 302 STREETS AND BRIDGES. CITY OF ROSEDALE v. GOLDING. (40 Pac. 2S4, 55 Kan. 167.) Supreme Court of Kansas. April 30, 1895. Error from district court, Leavenworth county; Robert Crozier, Judge. Action by Patrick Golding against the city of Rosedale for injuries to his minor son. Plaintiff baring died, Sarah Golding, his ad- ministratrix, was substituted as plaintiff. Judgment for plaintiff, and defendant brings error. Affirmed. Van Syckel & Littick, for plaintiff in error. Byron Sherry and Roland Hughes, for de- fendant in error. JOHNSTON, J. In July, 1886, John Gold- ing, who was about 17 years of age, resid- ed with his father and mother in Rosedale, and worked in a packing house in Armour- dale. On one of the principal streets of Rosedale there was a bridge which spanned Turkey creek, and the boy passed over this bridge in going to and from his work. On the evening of July 1, 18S6, while riding a pony over the bridge, on his way home, he met a team, and, in passing, a trace or some other part of the harness of the other team touched the pony, causing him to flinch and jump aside, so as to precipitate the boy and pony off the edge of the bridge, down into the creek, a distance of about 12 feet. The boy suffered severe and permanent injur> from the fall. An action was brought by his father, Patrick Golding, to recover for medical and surgical attendance, hospital charges, loss of the pony, and for the loss of the services of John Golding from the time of his injury until he reached majority. Patrick Golding died soon after the com- mencement of the action, and Sarah Golding was appointed administratrix of his estate, and the action against the city was duly re- / vived in her name. The right of recovery was based on the neglect of the city in per- ( mitting the bridge to remain without proper . guards or railings on the sides of the sam(\ and that it was therefore not in a reasouab'y I safe condition for the use of the public. Upon the trial the jury returned a verdict in favor of plaintiff, and against the city of . Rosedale, in the sum of $2,336. The only ' serious contention of the city in the trial court was that the bridge had been built and 1 maintained by the county, and that, there-, fore, no liability could arise against the city' for injuries resulting from its defective con- 1 dition. While the bridge had been built by the county, it formed a part of one of the princi- pal streets of the city. It was the duty of the city to keep and maintain the streets and the bridges thereon in such a condition as to be reasonably safe for persons travel- ing upon and over the same, and it is liable in damages to any one who suffers inju- ries resulting from a neglect to perform this duty. The fact that the bridge was in this instance built by or had been maintained at the expense of the county does not relieve the city from the obligation to keep a biudge which is upon one of the public streets with- in its corporate limits in a reasonably safe condition for the traveling public. A claim is made that there was no testimony show- ing the location of the bridge, but we find, upon an examination of the record, that there is abundant proof to show that it was within the corporate limits of Rosedale, and "a bridge situated wholly within the limits of the city is, with its approaches, a part of the public streets, and as such within the scope of the city's duties and liabilities." City of Eudora v. Miller, 30 Kan. 494, 2 Pac. 685. See, also, Commissioners of Shawnee Co. V. City of Topcka, 39 Kan. 197, 18 Pac. 161. It is clear that the city was negligent i in failing to place a guard or rail along the I side of a high bridge that was 60 feet ' long. There is a claim that the boy was i guilty of contributory negligence because he ' knew or should have known of the danger- | ous condition of the bridge, but, under the testimony, it cannot be said as a matter of / law that he was guilty of negligence in * crossing the bridge. That question was sub- '■ mitted to the jury under proper instructions, I and, they having found that the city was / negligent and the boy without fault, the find- ' ing is conclusive. The claim that the ver- dict is excessive is not sustained by the rec- ord, and the other questions which the plain- tiff in error seeks to raise were not before the district court, and therefore are not re- viewable in this court. The judgment of the district court will be affirmed. All the justices concurring. MUNICIPAL LIABILITY. 303 CITY OF KANSAS CITY v. LEMEX. (6 C. C. A. 627. 57 Fed. 905.) Circuit Court of Appeals, Eighth Circuit. Sept. 18, 1893. No. 270. In Error to the Circuit Court of the United States for the "Western District of INIissouri. At Law. Action by Frank Lemen against the city of Kansas City, Mo., for wrongfully closing aB exhibition held by plaintiff in said city. Verdict and judgment for plaintiff. De- fendant brings eiTor. Reversed. C. O. Tichenor, F. F. Rozzelle, and Frank P. Walsh, for plaintiff in error. W. C. Scarritt, for defendant in error. Before CALDWELL and SANBORN, Cir- cuit Judges, and THAYER, District Judge. THAYER, District Judge. Frank Lemen filed in the United States circuit court for the western district of Missouri a complaint against Kansas City, a municipal coi-poration of the state of Missouri, wherein he alleged substantially the following facts: That he was a citizen and resident of the state of Kansas, and the proprietor of a show and hippodrome; that, desiring to exhibit said show in Kansas City, Mo., on the 3d and 4th days of May, 1892, he, before that time, lawfully acquired from the owners of a certain tract of land situ- ated withm the corporate limits of Kansas City the riglit to give an exhibition thereon, and that he took peaceable possession of said land with the consent of the owner, and erected his tents thereon, and Uiat he also fully complied with all of the ordinances and regulations of the city with reference to such exhibitions as he proposed to give, and obtained a license for the exhibition from the proper city authorities, en- titling him to give two exhibitions, for which he paid to the city $20; but that on the day appointed for the exhibition, and just before it was to begin, "the defendant, Kansas City, acting by and through its mayor, police, and other duly constituted and authorizeon municipal corporations, commonly termed "corporate powers," such bodies act for the special bene- fit of the municipalitj-, or the municipality derives some profit, emolument, or advantage from their exercise, and in such cases the municipality is liable for acts of misfeasance done by its officers that are positively inju- rious to individuals. In Maxmilian v. Mayor, 62 N. Y. 160, Fol- ger, J., says: """There are two kinds of duties which are imposed upon a munici- pal corporation: One is of that kind which arises from the grant of a special pow- er, in the exercise of which the municipality is as a legal individual. The other is of that kind which arises or is implied from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is public, and is used for public purposes. * * * In the exercise of the former power, and under the duty to the public which the acceptance and use of tbe power involves, a municipality is like a private corporation, and is liable for failure to use its power well, or for any injury caused by using it badly; but where the pow- er * * * is conferred not for the immedi- ate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser nor for misuser by the pub- lic agents." Citing Eastman v. Meredith, 36 N. H. 284. The distinction thus referred to is also rec- ognized in the state from which this case comes, (Hannon v. County of St. Louis, 62 Mo. 31?>, 318,) and is stated, and supported bj' numerous citations, in Dillon on Munici- pal Corporations, (vide 4th Ed. §§ 96G-068, 974.) / In the case at bar we feel constrained to ' hold that the wrongful act complained of was done by the city under color of a power which It exercises as a governing agent for the bene- fit of the public at large, and not for the ad- vantage of the inhabitants of Kansas City, except as they form a part of the general pub- lic. The establishment of a public show, such ' as a menagerie, circus, or hippodrome, on a tract of land dedicated to a city or town for the pui-poses of a graveyard, and actually used as such, would constitute a public nui- sance. A city has no more right to license a ' show of that nature in a graveyard than it has to license it to locate on the public streets and thoroughfares; and we entertain no doubt that when a municipality undertakes to prevent or to abate a nuisance of that kind by means of its police force it is acting for the state as a governing agency, and not mere- ly in the discharge of a purely corporate pow- er or duty. In the case of Haskell v. City of New Bed- ford, 108 Mass. 208, 211, Mr. Justice Gray, then on the bench of the supreme judicial court of Massachusetts, used the following language: "Acts done by the mayor and al- dermen, or the mayor alone, to keep the streets clear of obstructions, are acts done by them as public officers, and not as agents of the city; and for such acts the city was not liable to be sued;" citing Walcot v. Swampscott, 1 Allen, 101; Griggs v. Foote, 4 Allen, 195; Barney v. Lowefi, 98 Mass. 570; and Fisher v. Boston, 104 Mass. 87. In a comparatively recent case — Culver v. City of Streator, 130 lU. 238, 22 N. E. 810^ it was held that the city was not liable for the negligent act of one of its police officers while endeavoring to enforce an ordinance forbidding dogs to run at large without being muzzled, for the reason that in the making and enforcement of the ordinance the city was acting merely as agent of the state in the discharge of duties imposed by law for the promotion of the general welfare. The court said that the ordinance was passed in pursu- ance of the police power vested in the munici- pality, and that acts performed in the exer- cise of that power were done in a public ca- pacity as a governing agency, and not for the special advantage of the municipality. It is also very generally held that a city is ) not liable for wrongful acts committed by its ' police officox's in enforcing city ordinances, or ' in making arrests for alleged violations of . law or local ordinances, or while endeavoring to suppress an unlawful assemblage, because while acting in such matters, police oflicers are not mere servants of the municipality, and the rule of respondeat superior does not j apply. Buttrick v. City of Lowell. 1 Allen, 172; Fox V. Northern Liberties, 3 Watts & S. 103; Cahvell v. City of Boone, 51 Iowa, 687, 2 N. W. 614; Odoll v. Schroeder, 58 111. 353; Elliott V. Philadelphia, 75 Pa. St. 347; Dar- gan V. Mobile, 31 Ala. 469; Little v. City of Madison, 49 Wis. 605, 6 N. W. 249; Tram- mell V. Russellville, 34 Ark. 105; Worley v. Inhabitants, 88 Mo. 106; Dill. Mun. Corp. § 975. We can entertain no doubt, therefore, that\ for the acts complained of in the present case there is no right of redress against the city, I assuming them to have been done or author-/ MUNICIPAL LIABILITY. 305 fzed by the city, as stated In the plea, for the purpose of preventing a public exhibition on a tract of land dedicated and used as a grave- yard. The act of the municipality in that behalf was an exercise of a power vested in it to promote the general welfare, as contra- distinguished from those corporate powers which it exercises for the special advantage of the municipality. It was said in the course of the oral argu- ment that the plea interposed by the city, that the tract of land in question was a grave- yard, and that the city had acted with a view of preventing its desecration, was a mere pre- tense; that in fact it had some ulterior pur- pose in view, and was seeking some private gain or advantage, when it committed the wrongful acts charged in the complaint. With reference to this statement, it is sutRcient to say that no such suggestion is found in the pleadings. To the plea that the premises \sere held in trust by the city as a graveyard, that the license issued by the city conferred no right to give an exhibition at the place in question, and that the city had acted solely with a view of preventing a public nuisance, the plaintiff merely replied that it wat. not a ABB.CORP.— 20 graveyard, and that that fact had been judi- cially ascertained and adjudged in a previous suit, whereto the city was a party. We think, therefore, that the suggestion above mention- ed is of no avail to the defendant in error on this record. We must take it for granted that the plea interposed by the city was made in good faith, and correctly states the pur- pose whicli inspired its action. Furthermore, if it be true, as suggested, that the city knew that the premises were not a graveyard, and that they were in fact private property, and that it had some ulterior ob- ject in view, and intended to wrong and op- press the plaintiff, then it is dithcult to escape the conclusion that the acts said to have been committed by the police with the sanc- tion of the maj'or were so utterly beyond the scope of any corporate power vested in the municipality, that it could not be held liable on that ground. Dill. Mun. Corp. §§ 968-970. Our conclusion is that the circuit court err- ed in refusing to direct the jury to find a ver- dict in favor of the city, wherefore the judg- ment of the circuit court is reversed, and thb cause remanded, with directions to grant a new trial. 306 MUNICIPAL LIABILITY. SNIDER T. CITY OF ST. PAUL. (53 N. W. 763, 51 Minn. 466.) Supreme Couil of Minnesota. Dec. 2, 1892. Appeal from district court, Ramsey county; Kelly, Judge. Action by Jennie Snider against the city of St. Paul for damages for injuries resulting from defendant's negligence. Judgment for defendant. Plaintiff appeals. Affirmed. B. H. Scbriber, for appellant. D. W. Law- ler, J. C. Michael, and Davis, Kellogg & Sev- erance, for respondent. jSHTCHELL, J. The complaint alleges that the city of St. Paul and the comity of Ram- sey owned and possessed, as tenants in com- mon, a building known as the "Courthouse and City Hall;" that they negligently con- stinicted the entrance to one of the eleva- tor shafts in an unsafe manner; also that their servant in charge of the elevator han- dled it negligently, whereby the plaintiff was injured. As one of its defenses, the city pleaded the various statutes regulating the construction, custody, and use of the building, particularly Sp. Laws 1881, c. 376, and Sp. Laws 1889, c. 64. Briefly stated, the act of 1881 created a special courthouse commission, consisting of the mayor of the city of St. Paul (who was ex officio a member) and five other persons, to be appointed by the judges of the district court of Ramsey county. This commission was to prepare plans for a build- ing for the use of the city and county "for a city hall and county courthouse, and for offi- ces for the city and county officers, and such other public uses as may be deemed expedi- ent," and submit the same, together with an estimate of the cost, to the board of county commissioners and the common council of the city for their approval. Upon their approval of the plans the commission was to proceed and construct the building, which was to be paid for out of the proceeds of a fund called "the courthouse and city hall building fund," which was to be raised by the issue and sale of bonds of the city and of the county. The act further provided that the city and county "shall hold the land occupied and needed for said building, together with the building which may be erecteil thereon, in common, and for the public uses aforesaid." The act of 1889 provided that when completed the building should be placed in charge of a committee of seven, to be appointed as follows: Three an- nually by the president of the common council, and three annually by the chairman of the board of county commissioners; and that the mayor of the city sliould be ex officio a mem- ber and the chairman of the committee. This committee was to have entire charge of the building, with power to appoint such janitor, custodian, and other employes as they should deem necessary for the proper care and man- agement of the building. The answer also al- leges that the city has never had any control over either the construction or custody of the building, which have been entirely under the direction and c-ontrol of the courthouse com- mission and committee referred to. The court overruled a demurrer to this defense, placing its decision on two general grounds: First, that the special courthouse commission which constructed the building, and the committee which lias charge of it, were independent bod- ies, and not the agents or servants of the city, and hence that the city was not liable for their negligence; second, that even if the city had controlled the construction and custodj* of the building, it would, in so doing, have been per- forming merely a governmental duty for the benefit of the public, for any negligence in the performance of which no private action would lie. The decision might perhaps be sustained on either ground, but, as we are clearly of opinion that the second is well taken, it is un- necessary to consider the first. The common-law rule is that no private ac- tion can be maintained against a municipal corporation for the neglect of a public duty imposed upon it by law for the benefit of the public, and from the performance of which the corporation receives no pecuniary profit. As resi>ects what are sometimes called "quasi mu- nicipal corporations," such as counties, town- ships, and school districts, this is the rule ev- erywhere, without exception. But as respects what are called "municipal corporations prop- er," such as cities and incoriiorated villages, the general current of the authorities is to the effect that, even in the absence of an exjiress statute, they may be impliedly liable for acts of misfeasance or neglect of duty on the part of its officers and agents, while for the same or a similar wrong there is no such liability resting on quasi municipal coi-porations. The most noted and familiar instance of this is the different rule applied to towns and counties as respects liability for negligence in not keep- ing highways in repair, and that applied to iucorporatetl cities for negligence in failing to keep streets in repair. But respecting the prin- ciple upon which to rest this distinction, or as to the nature of the duties to which it extends, the courts seem to be much perplexed, and their decisions, often in conflict with each oth- er, leave the subject in some confusion. The ground for the distinction is not to be found in the mere fact that one is created by special charter, while the other is not, for both are alike sulxlivisions of the state, created for pub- lic, although local, govern in en tjil purposes. Nor is it to be found in the fact that the one is given greater powers than the other, unless the power is, not for public governmental pur- poses, but to engage in some enterprise of a quasi private nature, from which the munici- pality will derive a pecuniaiy benefit in its coiiiorate or proprietary capacity; as, for ex- ample, power to build gasworks or water- works, to furnish gas or water to be sold to consumers, or to build a toll bridge, from each of which the city would derive a revcTtue. In this class of cases it is generally held that cor- MUNICIPAL LIABILITY. 507 porations are liable for wrongful or negligent acts, because done in what Is termed their "private"' or "coiporate" character, and not in their public capacity as governing agencies, in the discharge of duties imposed for the public ■or general benefit. But it is also generally held that they are not hable for negligence in the performance of a public, govermnental duty imjiosed upon them for public benefit, and from which the municipality in its coi-i)orate or proprietary capacity derives no pecuniary profit. The liability of cities for negligence in not keeping streets in repair would seem to be an exception to this general rule, which we think the courts would do better to rest either upon certain special considerations of public policy or upon the doctrine of stare decisis than to attempt to find some strictly legal prin- ciple to justify the distinction. And, as al- ready suggested, as to what are public and governmental duties and what are private or corporate duties the courts are not in entire hannony, and their decisions do not furnish a definite line of cleavage between the two. Nor shall we attempt to fix any such line of uni- versal application. For a quite full discussion of the subject, see Dill. Mun. Corp. c. 23; and for an exhaustive review of the authorities, see Hill V. Boston, 122 Mass. 344. In Dosdall V. County of Olmsted, 30 Minn. 96, 14 N. W. 458, we held that a county is not liable for the negligence of its board of county commission- ers in failing to repair a courthouse, the duty of maintaining a courtliouse being a public one, and for a wholly public puriwse. In Bry- ant V. City of St. Paul, 33 Minn. 2S9, 23 N. W. 220, we held that the city was not liable for the negligence of the board of health in the discharge of its duties, the same being public and governmental, and not coiporate, in their character. And, for a like reason, in Grube v. City of St. Paul, 34 Minn. 402, 2G N. W. 228, we held that the city was not liable for the negligent acts of members of its fire depart- ment. We fail to discover any distinction in the character in this respect of the duty per- formed by the citj' in maintaining a board of health, a fire department, or a police depart- ment, and that performed in providing and mainraining a citj- hall for the use of the pub- lic ofiicers of the city. The city, in its private or corporate capacity, derives no more pe- cuniary benefit from the one than it does from the others, and in each case alike the purpose is a public and governmental one. The duty which a city performs in providing a city hall for the use of the public officers of the city is exactly the same in its nature as that per- formed by a county in providing a courthouse for the use of the county officers. The incon- sistency of holding that the county of Ramsey is not liable, (as must be, under the Dosdall Case,) but that the city is, would be forcible illustrated by the sipecial facts of this case. Our conclusion is that the city is not liable. Order affirmed. 303 MUNICIPAL LIABILITY. BARRON T. CITY OF DETROIT. (54 N. W. 273, 94 Mich. 601.) Supreme Court of Michigan. Feb. 10, 1893. Error to circuit court, WasTie county; Cor- nelius J. ReiUy, Judge. Action by Adolphus Barron against the city of Detroit to recover for personal inju- ries. Judgment for plaintiff. Defendant brings error. Affirmed. John J. Speed, for appellant. I. G. Hum- phrey and Orla B. Taylor, (Edwia F. Conely, of counsel,) for appellee. LONG, J. The facts in this case are not in dispute. It appears that in January, 1890, by resolution of the common councU, the city engineer was instructed to prepare plans for the construction of a market building. The Dlans were prepared and submitted, m response to the resolution, and the board of public works was directed to advertise for proposals for constructing the building in accordance therewith. Proposals were advertised for, and the board of public works reported that Patrick Dee was the lowest bid- der; and by instruction of the common council the board entered into a contract for the con- struction of the building with him, which con- tract was confirmed by the council. The plans were prepared by a draughtsman in the office of, and under the supervision of, the city engi- neer. The building was an open stinicture, on ii'on columns about 15 feet apart, surmounted by a roof composed of wood and iron. It was built in the form of a cross; being about 300 feet one way, and 400 feet the other. The columns rested upon stone piers, but were not anchored. At the time the plans were prepared, the propriety of anchoring the columns was discussed by the draughts- man and engineer. The draughtsman thought it ought to be anchored, but the engineer thought the construction strong enough, and his opinion was followed. He claims, how- ever, to have looked the plans over hurried- ly, and did not examine them carefully, for the reason that a competent superintendent was to be employed, and that the building would be properly constructed imder him, and if any defect existed the omission would be supplied as the Avork progressed. The superintendent was appointed, and the work carried on imder the contractor. Before it was completed some members of the board of public works expressed the opinion that the structure was dangerous, and would go down in a wind; and on the advice of the city engineer it was examined by architects, and upon their recommendation several braces were added, to strengthen it. One of the architects thus called says that he advised the inserting of some strips, and putting bolts through them, and anchoring them down; that it should be anchored in some way. Those suggestions were referred by the board of public works to tbe contract- or, and he placed extra braces in the roof, but did not anchor the columns. It was tes- tified by some of the architects that in such buildings, in tliis part of the country, 40 poxmds to the square foot, wind pressure, is usually allowed ; and it was further shown that tlie velocity of the wind, to exert 40 poimds' pressure, is 90 to 100 miles in\ hour. On December 23, 1890, in a wind blowing about 50 miles an hour, this market building fell; no other buildings in the vicinity be- ing affected; so that it is apparent that the fault was in the failure to auclior the col- umns. The plaintiff was injured by the falling of the building. It is conceded that at the time he was lawfully upon the prem- ises, having paid the usiial license fee re- quired and collected by the city. His claim for damages having been refused by the com- mon council, tills suit was brought, and he was awarded damages in the sum of .?1,000. By the charter of the city of Detroit the common council is authorized to erect and mauitaia market houses; erect markets and market places. It is contended by counsel for the city that when the common council of the city authorized the making of plans and specifi- cations for the market building, and direct- ed tbe making of the contracts for its con- struction, it performed a purely legislative function; that the fault which occasioned the collapse of the building was in the plan, which failed to provide for anchoring it so that it could not be lifted from its foundation by the wind; that there was evident miscal- culation as to the weight being sufficient to keep it in place. /Coimsel insists that the fault is with legislative action, and therefoi'e a suit grounded upon it is grounded upon a wrong attributable to the legislative body itself, as the determination to construct the public work, and the prescribing of the plans, are matters of legislation on behalf of the city, imder the direction of its leg- islative body; that in carrying out the plans there may be negligence attributable to min- isterial officers, but negligence in the plans themselves must be attributable to the body that devised, ordered, or adopted them,— and therefore the action cannot be maintained, under the principle applied in Larkin v. Sag- inaw Co., 11 Mich. 88; Detroit v. Beckman, 34 Mich. 12G; City of Lansing v. Toolan. 37 Mich. 152; Davis v. City of Jackson, 61 INIich. 530, 28 N. W. Rep. 520. This contention would imdoubtedly be correct, if the city had boon acting piirely in a matter of pub- lic concei'n, in its governmental capacity or character, and tlie cases cited would then be appUcablo. / In Larkin v. Saginaw Co. the plaintiff sought to recover for injuries caused by a defective bridge, and it was held that the county was not liable for the acts of the board of supervisors in the ex- ercise of its legislative power. In Detroit v. Beckman, City of Lansing v. Toolan, and Da- MUNICIPAL LIABILITY. 309 vis V. City of Jackson, the actions were for in- juries caused by defects in public highways. In each of these cases it was held that, when complaint is made that the original plan of a public work is so defective as to ren- der the work dangerous when completed, the fault is witli legislative action, and for which no action can be maintained. Ash- ley V. Pt. Huron, 35 Mich. '2'.M, is to the same /o^) effect. Judge Dillo n, in his work on Munic- igal Corporations, (3d Ed., § GG,) states the rule as follows: /a municipal corporation "possesses a double character: The one, gov- ernmental, legi.slative, or public; the other, in a sense, proprietary or private. The dis- tinction between these, though sometimes ditticidt to trace, is highly important, and is frequently referred to, particularly in the cases relating to the implied or common- law liability of municipal corporations for the negligence of their servants, agents, or officers, in the execution of corporate duties and powers. On this distinction, indeed, rests the doctrine of such impliecl liability. In its governmental or public character, the corporation is made, by the state, one of its instruments, or the local depositary of cer- tain limited and prescribed political powers, to be exercised for the public good on behalf of the state, rather than for itself. In thia respect it is assifuilated, in its nature and functions, to a county corporation, which, as we have seen, is purely part of the gov- ernmental machinery of the sovereignty which creates it. Over all its civil, political, •or governmental powers the authority of the legislature is, in the nature of things, su- preme and without limitation, imless the limitation is foimd in the constitution of the particular state. But, in its proprietaiy or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations con- nected with the government of the state at large, but for the private advantage of the compact community, which is incorporated as a distinct legal personality, or corporate individual; and as to sucli powers, and to property acquired thereunder, and contracts made with reference thereto, the corpora- tion is to be regarded, quo ad hoc, as a pri- vate corporation, or at least not public in the sense that the power of the legislatme over It, or the rights represented by it, is omnip- otent.'^ Tliis rule is supi)orted by a great number of authorities from the several states, and from the decisions of the supreme court of the United States, in the note to the section above quoted. It is, however, /^j challenged by Denip , 0. J., in Da rling ton V. INIa^or, 31 N. Y. 1G4./H:e asserts the im- limited power of the legislature over mu- nicipal corporations and their property, and maintains that such corporations are alto- gether public, and all their rights and pow- ers public in their nature, and that their property, though held for income or sale, and unconnected with any use for the pur- pose of municipal government, is under the control of the legislature, and not within the provisions of the constitution protecting pri- vate property. He denies the distinction between the public and private fimctions of city government, and maintains that, as respects the state, all their powers and func- tions are pubhc.^This doctrine, however, has not obtained m this state; but it is held that cities are mentioned in our constitution, in connection with local corporations, which are put upon a proper basis entirely beyond legislative interference, so far as local in- dependence of action is concerned. Opin- ion of Campbell, C. J., in People v. Hurlbut, 24 Mich. SG. In B(Xii-d of Park Com'rs v. Common Coimcil of De^troit, 2S Mich. 228, it was said by Mr. Justice Co oley :/"We also referred in People v. Hurlbut to sev- eral decisions in the federal suprt^me court, and elsewhere, to show that municipal cor- porations considered as commimities en- dowed with peculiar functions for the bene- fit of their own citizens have always been recognized as possessing powers and capac- ities, as being entitled to exemptions, dis- tinct from those which they possess or can claim as conveniences in state government. If the authorities are examined, it will be found that these powers and capacities and interests which are acquired under them are usually spoken of as private, in contra- diction to those in which the state is con- cerned, and which are called pubUc; thus putting these corporations, as regards all such powers, capacities, and interests, sub- stantially on the footing of private corpora- tions."^ This same distinction was also made in Detroit v. Corey, 9 Mich. 1G4; Mayor v. Park Com'i-s, 44 Mich. 602, 7 N. W. Rep. 180; Niles Waterworks v. City of Niles, 59 Mich. 324, 2G N. W. Rep. 525; Cooper v. Detroit, 42 Mich. 584, 4 N. W. Rep. 2G2. Under the facts in the case, the city must be held to the same degree of care, not only in the con- struction, but in the plan of the construction itself, as woidd a private corporation or an individual. Under the provisions of the char- ter granting the power to erect it, there was no imperative duty cast upon the city to provide for a market building. It could build it or not, as the council might deter- mine. It is not like the case of a pubUc highway, or the building of a bridge, where the duty is cast upon the mimicipality, by general law, to build and maintain them. Had tliis building been owned bj' an indi- vidual or a private corporation tlie liability of either for this accident would not have been questioned, under the facts stated. The judgment must be athrmed, with costs. The other justices concurred. c^; 310 MUNICIPAL LIABILITY. TATE V, CITY OF GREEXSBOROUGH et al. (19 S. E. 767, 114 N. C. 392.) Supreme Court of North Carolina. May 22, 18^. Appeal from superior court, Guilford coun- ty; H. G. Connor, Judge. Action by Mattie M. Tate against the city of Greensborough and John L. King and Hugh L. Scott to recover damages for remov- ing trees standing on the outer edge of the sidewalk in front 'of plaintiff's residence. Judgment for defendants, and plaintiff ap- peals. Affirmed. R. M. Douglas, L. M. Scott, and J. A. Bar- ringer, for appellant. Dillard & King and James E. Boyd, for appellees. BURWELL, J. It is contended by the plaintiff, first, that, even admitting that the act of which she complains (the destruction of shade trees standing on the outer edge of the sidewalk in front of her residence, in the city of Greensborough) was done by the duly-authorized agents of that municipal cor- poration, she is still entitled to recover for the damage done to her property by the cut- ting down of these trees, because his honor has found that they did not obstruct the passage of persons on the sidewalk, that the public convenience did not require their de- struction, and that the mudhole in the street, for the removing of which this act seems to have been done, could have been remedied without cutting them down. This phase of the case presents for our consideration this question: /Can the courts review the exer- cise by the city of Greensborough of its pow- er to rei'air and improve its streets, and re- move what it considers obstructions therein, and find and declare that certain trees in the streets of that city, which the municipal aiithorities honestly believed were injurions and obstr active to the public, were in fact not so, and upon such findings, there being no allegation of negligence or of any want of good faith on the part of the city, award damages to an abutting proprietor, the com- fort of whose home has been lessened by the removal of the trees?/ The street in which these trees stood was Idcdicated to public use as a .street by those 'under whom the plaintiff claims title. Hold- ing control of this sti-eet by reason of its dedication only, the city nevertheless has ' exactly the same rights therein, and respon- I sibilities therefor, as if it had been, by deed ' of the owner, conveyed to the corporation for I use for sti-eet purpo.ses, or had been con- I demned and taken for those purposes ac- cording to the provisions of the charter; and I the rights of the plaintiff therein are no ' greater than if it had been so conveyed, or so condemned and taken. Now, the respon- sibilities that counties and townships as- sume, or are put imder by the law, in rela- tion to their highway.s, is very different from those of cities and towns in relation to their streets. It is required that roads shall be kept in repair, and certain individuals, upon whom is cast, in one way or another, the burden of seeing that these repairs are made, can be indicted for failing to perform this duty; but the municipality (county or town- ship) is not held liable for damage.s that may result from the road's being out of order, or obstructed. Cities and towns, however, are held to strict pecuniary accountability for the condiuon of their streets. They are not political divisions of the state, made by it for convenience in its government of the whole, but are corporations chartered, presumably, at the request of the inhabi- tants, and granted privileges, and charged with corresponding responsibilities. Among the very gravest of the pecuniary responsi- bilities that the law imposes on cities and towns is liability for damages to persons and property, caused by a defective or* im-, properly obstructed street. Bunch v. Eden- ton, 90 N. C. 431; White v. Commissioners, Id. 437. Hence it is that the law gives to all such corporations an almost absolute dis- cretion in the maintenance of their streets; considering, it seems, as is most reasonable, f that wide discretion as to the manner of performance should be conferred where re- sponsibility for improper performance is sa heavily laid. An illustration of this is the provision of the Code (section 3S03) that the commi.ssioners of towns "shall provide for keeping in proper repair the sti'eets and bridges of the town in the manner and ta the extent they may deem best." We think that under its charter, and under the general law of the state (2 Code, c. G2), the city of Greensborough was clothed with such dis- cretion in the control and improvement of its streets; and if damage come to the plain- tiff by reason of acts done by it. neither neg- ligently nor maliciously and wantonly, but in good faith, in the careful exerci.se of that discretion, it is damnum absque injiu-ia. Smith V. Corporation of Washington, 20 How. 13o; Brush v. City of Carbondale. 7S 111. 74; City of Pontiac v. Carter, 32 Mich. 1G4. It is not to be denied that the al)utting pro- prietor has rights as an individual in the street in his front, as contradistinguished from his rights therein as a member of the corporation, or one of the public. The tree» standing in the street along the sidewalk are, in a restricted sense, his trees. If they are cut or injured by an individual who has na authority from the city to cut or remove them, he may recover damages of such indi- vidual. His property in them is such that the law will protect it from the act of such a wrongdoer and trespasser. Bliss v. Ball, 9{> Mass. 597, and Graves v. Shattuck, 3") N. H. 257, are illustrations of this principle. In the former case, the court, speaking of the injury done by defendant to the trees in the sti-eet in front of plaintiff's lot, said: "If the PERFORMANCE OF DISCRETIONARY DUTIES. 311 defendant thought thoy were a nuisance, he mifjht have complained to the selectmen, and it was for them to decide the question wheth- er they should be removed. * * * The de- fendant had no authority to remove them, nor were the jury authorized to decide the question whether they oujjht to remain." And thus that authority seems abundautly to sustain the position that it is not for a coui-t and jury to i-eview the conduct of the proper municipal authorities in such a matter as that now under consideration. In Barnes v. District of Columbia, 91 U. S. 540, it is said: "The authorities state, and our own knowl- edge is to the effect, that the care and super- intendence of streets, alleys, and highways, the rejridation of gi'ados, and the opening of new and the closing of old streets, are pe- culiarly municipal duties. No other power can so wisely and judiciously control this sul)ject as the authority of the immediate lo- calit.v where the work is to be done." / The wisdom of this rule is well illustrated by this action. Complaints were made, it seems, by citizens, that these ti'ces were inju- rious to the public way. and in their effects. perhaps, to the public health. The proper authcirities of the city, clothed with the pow- er to repair the streets and protect the public health, listened to these complaints, and in the exercise of their best judgment, so far as appears, decided that the interest of the com- munity required their removal. The proposi- tion of the plaintiff is that a jury shall judge of the correctness of this conclusion, and 'f they find that the officials committed what they think was an error, they and the city shall be mulcted in damages. "The mainten- ance of such an action would transfer to court and jury the discretion which the law vests in the municipality; but transfer them, not to be exercised directly and finally, but indirectly and partially, by the retroactive effect of pimitive verdicts upon special com- plaints.'V Cooley, Const. Lim. (Gth Ed.) 2.j5. Phifer 4. Cox, 21 Ohio St. 218, which plain- tiff's counsel cited in their brief, related to a county road, and tlie alleged wrongful cut- ting of plaintiff's hedge was done by a pri- vate citizen. So it has no application, we think, to this case, and belongs to the same class of decisions as Graves v. Sliattuck and Bliss V. Ball, supra. Bills v. Belknap, 3G Iowa, 583 (also cited), relates to the cutting down of trees standing in a highway in the counti-y, and the action was to restrain the supervisor of the road. In Everett v. City of Council Bluffs, 4<5 Iowa, GO (also relied on by plaintiff), wliich was a suit to enjoin the de- fendant from cutting down certain shade trees in front of plaintiff's lot, the petition al- leged that the trees were "perfectly safe and sound, and afforded no obstruction to the free use of the street and sidewalk," and stated reasons why they should not be re- moved. The defendant made no answer, and, as the court said, the allegations of the petition were taken as true; and so it ap- peared, by the admission of the defendant, that its officers were about to do, under its orders, a wrong to the plaintiff, which, be- cause it conceded that the public interest did not in any way require it to be done, would be wanton and unnecessary. We think that case is clearly distinguishable from the one now under consideration. The principles which govern in this matter are well stated in Chase v. Crty of Oshkosh, 81 Wis. 313, 51 N. W. 5G0,— an action for damages for cut- ting down shade trees, very similar to tlie one' we are considering, — from which we make the following quotation ty^ "The right of the public to the use of the street for the pur- poses of travel extends to the portion set apart and used for sidewalks, as well as to the way for carriages, wagons, etc., and, in short, to the entire width of the street upon which the land of the lot owner abuts. As against the lot owner, the city, as ti'ustee of the public use, has an undoubted right, when- ever its authorities see fit, to open, and fit for use and travel, the street over which the pub- lic easement extends, to the entire width; and whether it will so open and improve it or whether it should be opened or improved, is a matter of discretion, to be determined by the public authorities to whom the charge and control of the public interests in and over such, easements are committed. With this discretion of the authorities, courts cannot ordinarily interfere, upon the complaint of the lot owner, so long as the easement con- tinues to exist. * * * The pul)lic use is the dominant interest, and the public authorities are the exclusive judges when, and to what extent, the streets shall be improved. Courts can interfere only in cases of fraud and op- pression, constituting manifest abuse of dis- cretion. It necessarily follows that, for the performance of this discretionary duty by the city officers in a reasonal)le and prudent manner, no action can be maintained against the city.'*/ Having shown, as we think, that the plain- tiff cannot recover of the city, we come to consider her second proposition, — that she can recover damages of "the other defendants. King and Scott, not as the servants or agents of the city, but as independent tort feasors," as it is stated in the brief of her counsel. In other words, it is proposed that the cause of action, as against the city, shall be aban- doned, and the cause proceed against the other defendants, upon the theory that they had no authority from the city to do the acs complained of. We think the power given to the city over the streets could be dele- gated to a street committee composed of members of the board of aldermen, as this one was; that this action was the action of that committee, and therefore of the city; and that just as these individuals would have been answerable in damages to the plaintiffs, Lf the act had been beyond the power of the municipality, so they are not liable if the act , was within those powers. All went to show 312 MUNICIPAL LIABILITY. that the Individual defendants were acting as agents and officers of the city. They so assert. The city so insists, and distinctly ratifies their act. Therefore, as the city has done no legal wrong, neither have they. Af- firmed. AVERY, J. (dissenting). It Is always safe to recur to fundamental principles. It is perilous to refrain from going to the foun- tain head, where the controversy arises out of an attempt of a public agency to use or destroy, without compensation, what is claimed to be private property. The very question involved in the case at bar is, what are the rights, respectively, of the servient and dominant owners, — the town and the abutting proprietor in a street, — what passed to the public with the easement, and what residuary interest remained in the own- er after the appropriation by the mimicipal- ity for corporate purposes? The taliing of private property for a public higliway, lilie any other exercise of the right of eminent domain, can be justified only on the ground of public necessity, — that it is essential in or- der to subserve the convenience or promote the prosperity of the gi'eat body of people, comprehended under the general designation of the "public," to give them the use of it for certain specified pm'poses. Cooley, Const. Lim. 643. Where an easement is ac- quired, whether by grant, dedication, or con- demnation, nothing more passes to the pub- lic than the power to use the land strictly in furtherance of the objects for which the leg- islatm-e authorized its appropriation. Ex- cept in so far as his right of enjoyment is restricted by the inhibition against his inter- ference with its use for the particular pubhc purposes, all of the rights of ownership are still retained by the holder of the servient tenement The other estate dominates and overshadows his right only so far as is nec- essary to subserve the ends for which its privilege has been granted. The residuary rights of the abutting owner in a street are somewhat more resti-icted than those of an adjacent proprietor in a public road, because. In contemplation of law, tlie damages for the taking are measured by the extent of the public use, and the consequent limitation of private enjoyment by the servient owner. I may safely lay it down as a general prop- osition that, when the legislatm-e permits private property to be tal^en by a public or quasi public corporation, the state intends that it shall be appropriated only for corpo- rate pm-poses,— such uses as may be neces- sary in order to enable the public agency to perform its duties to the state, and enjoy the compensatory privileges granted to it. Whatever rights of property in streets do not pass, from the very nature of a munici- pality, as necessary to the discharge of its public functions, or as inseparable incidents to the franchise granted, remain in the abut- ting proprietor, reserved by implication of law for his benefit, whether the city or town has acquired the fee or an easement, either by grant, dedication, or condemnation, and whether the line of such abutting owner ex- tends to the margin or middle of the sti'eet. The abutting proprietors have a qualified property in a sti-eet, which entitles them to make "any beneficial use of the soil of such highway which is consistent with the prior and paramount rights of the public therein for street purposes proper." 2 DiU. Mun. Corp. § 65Gb. "If they own the fee to the center line of the sti'eets," says Judge Dillon, "their rights therein are legal in their nature. If they own the fee to the line of the streets, their rights in the street are in the nature of equitable easements in fee, but, in ex- tent, are substantially the same as when the fee is in them, subject to public use." Id. §§ 603, 6G4, GGl; Bliss v. Ball, 99 Mass. 597. "Where one's land is bounded on a pub- lic highway," says Judge Cooley in his work on Torts (page 31S), "it presumptively ex- tends, not to the outer line, but to the mid- dle of the roatl; and his supreme dominion embraces the whole, qualified only by the public easement." In this respect there is a striking analogy between abutting and riparian owners of the fee, in that a certain incidental, qualified property attaches in the highway, whether it be a public road or navigable water. Bond v. Wool, 107 N. G. 139, 12 S. E. 2S1; Yates v. Milwaukee, 10 Wall. 497. The street consists of the car- riage way and sidewalk, the enjoyment and use of both of which are recognized by the courts as the right of the abutting proprie- tor, of which he cannot be deprived by the municipalitj', or even by the legislatm'e, with- out his consent, and without adequate com- pensation. Moose V. Carson, 104 N. C. 431, 10 S. E. 689; State v. Brown, 109 N. C. 805, 13 S. E. 940. A municipal corporation, though authorized by statute to widen streets, can do so only where some mode of ascertaining the damage done by taking ad- ditional land, and of enforcing its payment, is pi-escribed by law, aud pursued by the corporation. On the other hand, a city or town has no right to sell a portion of a street in front of an abutting owner, or to diminish its width in any way, without com- pensation, and contrary to his wishes. Moose V. Carson, supra. It being conceded that the abutting owner has a tiualified prop- erty iu the street on his front, the only safe criterion by which to test the justice of a claim to any specified right is the consist- ency or inconsistency of its exercise with the use of the highway bj' the municipality for corporate purposes. The original owner of the soil surrenders his absolute property in his frontage for a qualified one, in full con- templation of the authority of the corpora- tion, whenever it may become necessary, for public purposes, either to elevate or lower the level of the street, though he maj' suffer some inconvenience from any alteration of PERFORMANCE OF DISCRETIONARY DUTIES. 313 the grade; and cousequeutly it is supposed that such damase was considered when the cost of the easement was estimated and paid, or that a donation was made, subject to the contini;fency of suffering such loss. Guided by the principle stated, this court held that, for loss caused by excavation on embankments made in changing the grade of a street, the abutting owner could not re- cover, unless the injury was directly due to want of skill or negligence in the excava tion of the work. Meares v. Wilmington, . Ired. 73; Wright v. Wilmington, 92 N. r. 156. In such cases it was considered tha; the alteration in the highway was not a nc,. taking, but a use of it that was in conte;:: plation at the time when the easemei: passed to the public. Cooley, Const. Lim p. G71; 2 Dill. Mun. Corp. § 992, and note. Even this rule, however, has proven so op pressive in practice as to lead, in some o: the states, to the enactment of statutes an the amendment of constitutions so as to cri ate a liabilitj' as for an original taking, whe- there is a change of grade, such that dam age ensues to an adjacent proprietor. Le^^• is, Em. Dom. c. 8, especially section 221 "The public," says Mr. Lewis, "acquire n. right in the use of springs in the highwa. and cannot divert them for the purpose u: making a public watering place. The owne. of the fee cannot change the location of tli road where it crosses his land. He may di posit materials on the surface of the way plant shade or ornamental trees therein, se: hitching posts, etc. * * * The public can not place structures on the soil which havt no connection with its use as a highway." Lewis, Em. Dom. p. 759; Deaton v. County of Polk, 9 Iowa, 594. "Subject to the para- mount right of the public, tlie rights of the owner of the fee remain the same as though the public easement did not exist. * * '■'■ As against the public, he may make any use of the land which does not interfere with the use and enjoyment of the same as :; highway." Lewis, Em. Dom. p. 758, § 58! ». The learned author claims for the owner of the fee the right to plant trees in the highway, both for shade and ornament; ami it cannot be denied that he acquires a quali- fied property in the fruit of his labors, when they grow so as to subserve his purpose. It is conceded to be the law in North Caro- lina that such shade ti'ees can be cut down by a city when the grade is changed, be- cause they are planted in contemplation of the principle that the power to grade is a continuing one, and that, "of the necessity or expediency of its exercise, the governing body of the corporation, and not the courts, is the judge." 2 Dill. Mun. Corp. § GSG, and note. But though a tree be planted subject to the right of the city to destroy it, in the exercise of this continuing power to improve its streets, it is nevertheless the property of the owner of the fee; and, when no change of grade is ordered, the governing authori- ties of the town have the right to remove it only on the ground that it obstructs the highway, and is therefore a public nuisance, or after condemnation, and the payment of compensation ascertained ia a mode pointed out by law. Mr. Wood, in his work on Nuisances (sec- tion 294), not only agrees with such other able and discriminating text writers as Jud.ge Dillon, in declaring that the adjacent owner has a property in trees planted in his front, but in maintaining that the municipal au- thorities are responsible if they deal with them as nuisances, when in fact they do not interfere witti the ordinary use of the streets and sidewalks. He says: "Sliade trees set in a street or highway without authority of law, will eh in any measure obstnict travel, are a nuisance. * * * But they can be re- moved only by the owner or the public au- thorities, and, if they [the public authorities] remove them when they do not obstruct trav- el, they are liable to the owner in damages therefor." See, also, Clark v. Dasso, 34 :Mich. 86. If damage can be recovered, it must, ex necessitate, be assessed by a jury, since it will not be contended that it is a taking in the exercise of the right of eminent donuiin, for which the law provides any other nuxie of fixing the compensation. Thus, we find that all of the leading text writers concur in construing the decisions which I cite to sustain my view, and to have settled the prin- ciples in this country, generally, that a shade tree is the property of the abutting owner, which cannot be destroyed, as a nuisance, unless it hinders the free use of the highway by the public, and where it is not an ob- struction the owner may recover damages of the authorities of a city for its wrongful re- moval. In treating of the power to prevent and abate nuisances, Judge Dillon says: "This authority, and its summary exercise, may be constitutionally conferred on the in- corporated place, and it autliorizes its council to act upon that which comes within the legal notion of a nuisance; but such power, conferred in general terms, cannot be taken to authorize the extrajudicial condemnation and destruction of that, as a nuisance, which, in its nature, situation, or use, is not such. * * * It is a doctrine not to be tolerated in this country that a municipal corporation, without any general laws of the city or of the state, within which a given structure can be shown to be a nuisance, can, by the mere declaration that it is one, subject it to re- moval by any person supposed to be ag- grieved, or even by the city itself." 1 Dill. Mun. Corp. § 374; Everett v. City of Council Bluffs, 46 Iowa, 66; Yates v. Milwaukee, 10 Wall. 498; State v. Mayor, 29 N. J. Law, 170; Cooley, Const. Lim. 242, 741, note; State V. Mott, 61 Md. 297; Ward v. City of Little Rock, 41 Ark. 526; Northwestern Fertilizing Co. v. Village of Hyde Park, 70 111. 634; Horr. & B. Mun. Ord. § 252. If the destruction of the trees, complained 314 MUNICIPAL LIABILITY. of, is to be impii'^od to the defendants, it is not contended that there was any other law authorizing the act tlian the general autliori- ty to prevent nuisances. Whether a city acts, in such a case as this, under the general power to abate nuisances, or under special authority to remove obstructions, the rule is the same. "Power to a city, by its charter, to regulate the use of streets and alleys, and to prevent and remove obstructions from them, contemplates the preservation of actual ways agauist nuisances which interfere with their accustomed use, and until they have become actually open obstructions thereon, under a claim of title apparent on the face of the prosecution, cannot be pimished under an ordinance in the municipal tribunal, but the rights of the parties must be determined in the public courts." 2 Dill. Mun. Corp. p. 809, § GSO, and note; Jackson v. People, 9 Mich. Ill; Phifer v. Cox. 21 Ohio St. 248. While, in the exercise of the continuing au- thority to raise or lower the grade of streets, the law requires of the city onlj^ good faith, care, and skill, the arbitrary destruction of property, or what is eouivaleut to its confis- cation, cannot be justified on the ground that the act was done under the honest belief that it was a lawfid abatement of a nuisance, because it obstnicted the highway. If the tree was property, and was not planted in contemplation of legal authority in the city, express or implied, to cut it down at will, but only in view of the possibilitj^ of its destruc- tion as a nuisance, then, unquestionably, the plaintiff would have the right to have any disputed facts, such as the question where the tree was standing, ti-ied by a jury, with instruction from the court as to what consti- tuted nuisance such as the city might sum- marily abate. Good faith will not protect an officer who commits a trespass without the color of authority, and thereby leave remediless one whose property is desti-oyed without reason or necessity. Elliott, Roads & S. p. 521. An obstruction is defined as "anything which, without reasonable neces- sity, impedes the use of the streets for lawful purposes." Horr. & B. Mim. Ord. § 230. "When adjacent owners retain the fee in the streets, the corporation has no right to de- stroy the ti'ees, unless they grow within the street, or so as to obstruct traffic." Id. § 229; Bliss V. Ball, 99 Mass. .597; White v. God- frey, 97 Mass. 472; Tainter v. Mayor, 19 ^. .1. Eq. 4G; Cross v. Mayor, 18 N. J. Eq. 313; Bills V. Belknap, 36 Iowa, 583; Everett v. City of Coiuicil Bluffs, supra. Whether trees in a public highway are a public nuisance "is a question of fact for the jury," in aU cases. Phifer v. Cox, 21 Ohio St. 248. If an overseer cuts down a tree which does not ob- sti'uct or interfere with the pablic use of the road, he is a trespasser, and, if he does so maliciously, is liable to exemplary damages. Winter v. Peterson, 24 N. J. Law, 524. The case of Chase v. City of Oshkosh (Wis.) 51 N. W. 5G0, 6 Am. R. & Corp. Cas. 1, may appear, upon first view of it, to be in con- flict with the general current of authority, and with the cases we have cited, some of which are collated in a note appended to it; but, upon a closer examination, it will ap- pear that the opinion rests upon the ground that the common council are, by special pro- visions of the charter, to "protect the streets from any encroachment or injm'y," and "to prevent, prohibit, and cause the removal of all obstructions in and upon all streets in said city." The charter of the city of Greens- borough provides for condemnation of prop- erty for the purpose of changing or widen- ing the streets already in existence, and lay- ing out new ones, but we find no special war- rant for assuming the judicial function of de- claring any obstruction in the whole street a nuisance. If the legislature had constituted the mayor and commissioners, or the street committee selected by them, a special coui't, and had empowered them to remove obstruc- tions which, in their judgment, were nui- sances, we would still have been compelled to meet the question whether the legislature could in that indirect way clothe the officers of a municipality with the autliority to de- stroy such private property, and deprive the sufferer of the right to "the ancient mode of trial by jury," guarantied to him, "in all controversies respecting property," by the constitution (article 1, § 1), unless the trees had been planted in contemplation of an ex- press power conferred upon the town coun- cil to clear all parts of the streets of trees. This gi-ave question does not arise in this case, and the discussion of it is therefore un- necessai'y. When the point shall be properly presented, it will be necessary to determine whether the legislature can dispense with the right of trial by jury in any case involving the title to property, when the litigant could have claimed it imder the ancient common law. It seems that in the recent case of O'Connor v. Telephone Co., 13 Can. Law T. 33G, the appellate court of Nova Scotia has held that the rights of the abutting owner of the fee on a street extended to the middle of the highway, in his front, and that he had a property in ornamental shade trees in the street, in his front, and could maintain an action against a telephone company for dam- ages (to be assessed, of course, by a jury) for mutilating such trees. Says Lawson (Rights, Rem. & Pr. vol. 3, p. 1758): "Ad- jacent landowners may lawfully use the space between the carriage path and side- walks for the gi-owlng of trees for ornament or use. Trees thus situated are in no sense nuisances, but private property." But the right of property stands iipon the more sub- stantial ground of inexorable i-cason, since the city does not appropriate the space be- tween the sidewalk and the street for cor- porate purposes, and the residuary right of the owner of the fee empowers him to use it. Even where the riglit is in tlie domi- PERFORMANCE OF DISCRETIONARY DUTIES. 815 nant owner to extend its actual dominion, if it become necessary, no sucli summary de- struction without reason is permitted. Where the fee is condemned for a railway for a distmce of 100 feet on either side of the tracli, wliile the corporation may build an additional track, if requisite for the trans- action of its business, at any time during the period of its corporate existence, or may erect structures for corporate pm-poses upon the land appropriated, yet if the adjacent owner plant and raise corn within the limit of 100 feet, but not upon the portion of the way actually occupied by the company, the law neither imposes the duty, nor confers the power, on the latter, to cut down such corn, as a nuisance, because it may obstruct the view of the engineer, and prevent him from seeing cattle approaching the line of railway. AVard v. Railroad Co., 109 N. C. 358, 13 S. E. 923; Id., 113 N. C. 5GG, IS S. E. 211. On the other hand, the corporation may, in that case, remove trees, because that is autliorized by statute, lest they become a nuisance, by falling upon the track. But the facts are found, and in our opinion the tree was not shown to be a public nuisance, subject to summary removal by the city, but was the property of the plaintiff, for the willful desti'uction of which an action for damage lies against the ti'espassers, and those under whose authority they may have acted. There was no pretense of a con- demnation for a public purpose, or of authoi*- Ity to take, if it was private property, other than in the mode pointed out in section 60 of the charter, — upon a valuation by three freeholders. There was no evidence that the trees were unsound, so as to endanger the safety of travelers on the highway, and there was no provision of law, in or out of the charter, authorizing the cutting down of trees located on the margin of the sidewalks, or at any point on the streets, to avert dan- ger to the public. The authority to make improvements, given in a charter, like that to widen the streets, was coupled with the condition that commissioners should be ap- pointed to assess any damr.ge that might be caused by the changes made. In the case at bar the court found as a fact tliat the trees did not obstnict the sidewalk, and, in effect, that they were not nuisances, and, ther»>rore, tliat there was no authority for destroying them. When such shade ti'ees neither impede the passage of vehicles, nor unreasonably obstruct the sidewalks, the municipal authorities may enact general or- dinances to protect them, even against wan- ton injm-y or destruction by the owner, but are not empowered, by orders or by-laws, to cause tliem to be removed, as nuisances, when, in law and in fact, they are not nui- sances. Horr. & B. Mun. Ord. §§ 2.j2, 229; McCarthy v. Boston, 13.5 Mass. 197; Wood, Nuis. § 294. An adjacent owner, notwith- standing an order or ordinance of municipal authorities autliorizing it, is entitled to re- cover damages for any invasion of his in- dividual rights, such as the destruction of shade trees in his front, when they do not interfere with the use of the highway for any public purpose whatever. Horr. & B. Mun. Ord. § 7; Bliss v. Ball, supra; Wood, Nuis. § 294; Elliott, Roads & S. p. 53G. And the desU'uction of shade and ornamental ti'ees located in a public highway in front of the premises of tlie abutting owner has been held to be an irreparable injury to him, and fur that reason has been enjoined, where their removal was not necessary to the enjoyment of the easement by the public. Tainter v. Mayor, 19 N. J. Eq. 4G; Cross v. Mayor, IS N. J. Eq. 30."i; Bills v. Belknap, 3G Iowa, 583. "As owner of the fee," says Elliott (Roads & S. 53G), "subject only to the public easement, the abutter [who owns the fee] has all the ordinary remedies of the owner of a freehold. He may maintain trespass against one who unlawrully cuts and carries away the grass, trees, or herbage, and even against one who stands upon the sidewalk in front of his promises, and uses abusive language towards him, refusing to depart" State V. Davis, SO N. C. 351. If th'3 shade trees in front of the plaintiff's house were not a nuisance at commnn law, nor so declared by statute, no ordinance or proceeding of the municipal authorities, or their agents, could justify their destruction, in the face of the objection of tb:,' plaintiff's husband. Miller v. Bm-ch, 32 Tex. 2uS; Yates v. :Mllwaukee, supra; 1 Dill. Mun. Corp. §§ 374-379; Everett v. City of Council Blulfs, 46 Iowa, 66; Cooley. Const. Lim., supra; Northwestern Fertilizing Co. v. Village of Hyde Park, supra. The threa oak ti'ees cut down by the street force, in obedience to the command of the defendant's street commit- teemen. King and Scott, after securing the approval of Mendcnhall, of the same com- mittee, stood at the outer edge of a side- walk eight feet wide, and within the line of the cm'bing, and, being directly in front of tlie plaintiff's dwelling house, contributed to the comfort of its inmates. The space betwcon the trees and the inner line of the sidewalk was not uniform in width. It averaged eight, but was at no point less than seven^ feet in width, and was foiuid by tho court to be sufficiently wide to afford "room for persons to pass in the usual manner without Inconvenience." Tho judge below found, al- so, that "the leaves on said trees obstructed the rays of Uvq sun, and so shaded the street as to cause it to be and continue damp for a portion of the time." The finding excludes the idea that the trees were a nuisance, in obstructing the sidewalk; and the mei»3 fact that the shade was so dense as to cause occasional dampness under it is not satis- factory evidence that they so interfered with the use of the stroet as to constitute them a nuisance. Bliss v. Ball, supra. It is a mat- ter of common observation that all trees- which subserve the purpose of sh;iding the 516 MUNICIPAL LIABILITY. ground prevent the earth, within the line of their shadows, from becoming dry so soon as the surrounding space. And the commis- sioners were not authorized, because they had created a stench by filling a hole near the trees with green limbs, to declare them a nuisance, as the cause of the offensive odor, since the court finds that, after removing them, the municipal authorities, by filling the hole with stone, put tta street in good ■condition, and that this remedy could have been effectually used without molesting the trees at all. So far from showing that the removal was demanded for the benefit or convenience of the public, the conclusion of fact submitted by the court sustains the con- tention of the plaintiff, that, being within the curbing (but seven feet or moi'-a from the fence), the trees neither obstructed the side- walk, nor the 23 feet of carriage way; that the hole could and would have been filled with stone or earth; and that, if the damp- ness under the dense foliage of the ti-ees made them a nuisance, every shade tpoe that subserves the purpose of planting it, if it oasts a shadow upon a highway, would be liable to destruction at the arbitrary bidding of any agent of a town who might be in- trusted with the duty of repairing its str-aets. Lawson, Rights, Rem. & Pr. p. 1758, § 1033. The statutes which in some states protect such trees are in affirmance of the principle that the owner surrenders to tha public only such dominion over the laud as he could not •exercise without interfering with the ease- ment of the public for use as a highway. The admitted right of the abutting owner, under the common law, to the herbage, and to sue, or sometimes cause to be indicted and punished criminally, for a forcible trespass committed on tlie highway in his front, is an illustration of this well-established prin- ciple. It is urged, however, on beh.Tif of the city of Greensborough, that it cannot be held answerable for the trespass committed under the direction of the defendants King and Scott, because it appears that "no action was taken, or order made, by the board of alder- men, in respect to the removal of the trees, nor was any report made by tha street com- mittee to the said board with regard to their action in the premises." It was providc^d in section 12, c. 1, of the City Ordinances, that a number of committees, composed of four aldermen each, should be appointed from the members of the board to take charge of certain departments of the municipal gov- ernment; and among them was that com- posed of defendants King and Scott, and Al- dermen Glenn and Mendenhall, who, by the terms of the next section, were intrusted with the "control and supervision of all mat- ters relating to the streets, sidewalks, and pumps of the city," ytc. This appiintment, without any fm-ther recognition of their acts, constituted King and Scott the agents of the •city for the sui)ervi.siou of the streets, and all that could be done for the improvement and reparation of them. 2 Dill. Mun. Corp. 979, (777). "Towns, counties, villages, and cities must respond for such torts of their officers, agents, and servants as have been suffered or committed by corporate author- ity." Cooley, Torts, p. 122. As agents, the ivlation of the members of the committee to the town was legally the same as that of any servant to his master; and the responsibility of the municipality, as superior, is likewise governed by the rules applicable to such re- lation. Where a trespass is committed in the coiirse of the employment of an agent or a servant, and is intended and believed by the trespasser to operate for the benefit of his superior, though it may be willful, such su- perior is none the less answerable for dam- ages. 1 Shear. & R. Neg. § 151; Cooley, Torts, p. 53G; 4 Am. & Eng. Enc. Law, pp. 252, 2.53, note 1; Johnson v. Barber, 5 Gil- man, 425; Limpus v. Omnibus Co., 1 Hurl. «& C. 526. "If, in exercising its power to opon or improve streets, or to make drains or sewers, the agents or officers of a munic- ipal corporation, under its authority or di- rection, commit a trespass, or take posses- sion of private property, without complj-ing with the charter or statute, the corporation is liable in damages therefor. In such cases, also, an action will lie against a city corpora- tion by the owner of land through which its agents have unlawfully made a sewer, or for trees destroyed and injuries done by them." 2 Dill. Mun. Corp. § 974 (772). "Where the working and repair of streets is treated [as in North Carolina] as a municipal duty, and the officer in charge as a corporate, in dis- tinction from an independent, public officer, or where the injury was negligently caused by such officer in the process of executing upon the streets an authorized corporate im- provement or work for them, the doctrine of respondeat superior would apply." Id. §§ 979 (777), 980 (778), 983. If, then, the city was acting through the members of the com- mittee, as its agents, it was in the exercise of its ministerial or corporate, as distinguish- ed from its judicial, legislative, or discretion- ary, duties, and was therefore answerable, as superior, for such acts, done in the ccmrse of their employment, as were manifestly in- tended to inure to the benefit of the corpo- ration. Mottitt V. Asheville, 103 N. C. 237, 9 S. E. G95; Cooley, Torts, pp. 619, 622. The implication from the finding of the court, iJ' that was necessary, is that the committee "concuri'od in the conclusion that the trees should be removed" in order to improve the street, and that King and Scott, as aldermen, intended to benefit the corporation when they directed the street force to do the work. They then sustained the same relation to the municipality that a conductor or (jth-^'r agent bears to a quasi public corporation, such as a railroad or street-car company; and it is well settled by numberless cases that, though the agent or servant of such corpurjr PERFORMANCE OF DISCRETIONARY DUTIES. 817 tions may willfully commit a trospnss in the course of his employment, yet if the act is done with tho belief that it will benefit the principal or master, and the intention to ad- vance its interest, the principle of respon- deat superior applies. Moore v. Railroad Co., 4 Gray, 4G5; Shea v. R:iilroad Co., 02 X. Y. ISO; Seymour v. Greenwood, 6 Hurl. & N. 350; 1 Shear. & R. N-og. § 150; Cnoloy, Torts, pp. 533-537; Limpus v. Omnibus Co., supra; I'ol. Torts, p. 15. But not only is the corporation responsible for acts done by its agents in the execution of the duties assigned to them, but a joint action for tlie tort will lie against the com- pany and the servant. Hewett v. Swift, 3 Allen, 420; Joluison v. Barber, supra; Wright V. Wilcox, 19 Wend. 343. The law is found- ed upon the highest conceptions of natural justice. It is impracticable for a mayor and board of commissioners to move in a body along everj' street of a city, and sit in judg- ment upon the proposed removal of a tree. A city must work through agents constitut- ed by its governing authorities; and, Avheu an agency is inti'usted to a sti'eet committee, there is no principle of law, reason, or jus- tice that will reUeve the mimicipality of lia- bility for their torts, when engaged in the business inti'usted to it, because the commit, tee did not desist on an objection to the re- moval of the tree, stop the street force from work, and call a meeting of the council to authorize or ratify the act. The town, when engaged in the improvement of its streets, or in the performance of any act intended for the benefit of the municipality, is liable both for tlie negligence and willful torts of its agents, just as when an officer or servant of a quasi public corporation commits little overt acts, or negligently omits to discharge his duty, he subjects the company that he represents to liability for consequent injury. Moffltt V. Asheville, supra; Cooley, Torts, p. 619. If a director of a railroad company were appointed to act as conductor, the com- pany could not escape liability for removing a passenger on the groimd that, by disorder- ly conduct he had been guilty of nuisance, when in fact his acts did not justify the con- ductor in ejecting him. The committee were not the less agents of the town coimcil be- cause they were selected from the body it- self. It is a well-known fact that tlie gov- erning authorities of our towns, usually, if not universally, intrust the management of improvements, not involving the ccudemna- tion of private property, to committees se- lected from their own bodies. To absolve the towns from liability for a trespass com- mitted by such agents, or under their direc- tion, for the benefit of the corporation, when, in many cases, such committeemen are irresponsible primarily, would be to countenance oppression, and, in some in- stances, what would be equivalent to confis- cation. An ordinance provided that the street committee "shall have control and supervision of all matters relating to streets, sidewalks, and pumps, and shall determine the amount of lal)or and material to be used, * * ♦ and shall report to the board from time to time, and perform the diities imposed upon them by the board of aldermen." Would the ordinaiy regulation that a con- ductor should report to the president of the company, or superintendent, the fact that he had ejected a passenger, excuse the company from responsibility for injury caused by a wrongful expulsion? When acting for its own benefit, a municipality stands upon pre- cisely the same footing, as to liability for the acts of its ag(Mits, as does a quasi public cor- poration. See Mortitt v. Asheville, supra, and authorities cited. Suppose such a cor- poration should, by means of a by-law, de- clare the conductor, engineer, baggage mas- ter, and flagman a committee to have control of the question of ejecting drunken or dis- ordei-ly passengers, or such as failed to se- ciu-e tickets or pay fare. Would the corpo- ration be allowed to evade liability for the wrongful, willful, and violent expulsion of a passenger by tlie conductor and baggageman after consulting the flagman, because tlie en- gineer did not approve the act tUl it was communicated? Cooley, Torts, p. 539. To applj' the same principle to such agencies as govern in questions of tlie right of the di- rectors of private corporations to bind their companies would be the entering wedge to the destruction of all corporate liability for the torts of agents and servants. Means would be found, by ingenious regulations, to leave the public at the mercy or caprice of irresponsible and reckless agents and serv- ants, were the possibility of putting the cor- poration behind such bulwarks once sug- gested. The right to trial by jury is none the less a constitutional right because jm-ies are sometimes misled by prejudice. The corrective for sucli an evil, if it exists, is the enactment of statutes requiring greater care in their selection, not judicial legislation re- sti-icting the operation of the original law. Says Judge Cooley in his work on Torts (page 122): "Towns, counties, villages, and cities must respond for such torts of their officers, agents, and servants as have been committed or suffered by corporate author- ities." "It is not merely for the wrongful act that the agent or servant is directed to do, but the wrongfiU act he is suffered to do, that the city Is responsible." Id. p. 534. It was the duty of the city to see that its agents were attentive and pru- dent, and so conducted its business as not needlessly to injm'e others. Com. v. Nichols, 10 Mete. (Mass.) 259. The law pre- sumes that the city looks after its street force; and the fact that it was engagcMl, two or three days after the order was given by Scott and King, in removing the trees, is evidence that the mayor and commissioners knowingly suffered the removal to be made. They knew, or ought to have known, what 318 MUNICIPAL LIABILITY. these paid laborers were doing. I tliinli, therefore, that there was error in the ruling of the court below that the action could not be maintained either against the city, or the two aldermen in their individual capacity. The two aldermen were guilty of a wiUful trespass, for which the corporation became liable, because it was committed in the at- tempt to discharge their duty to the cori)ora- tion, as agents named in the ordinance, and with the intent to improve its streets. The act being willful, the agents were not re- lieved of responsibility because the princi- pals were made answerable. The committee were not a corporation, but were the author- ized agents of the town; and it was not es- sential that they should meet, like stockhold- ers, at an appointed time or place. The question is not whether they coiild bind a municipality by a contract, but whether, as its servants acting within the line of duty prescribed for them, they covdd make the citj' a joint tort feasor with them. It was sufficient, I think, that a majority agreed upon a certain course of conduct, and their pmT)ose was carried out by the laborers at the bidding of two of the number, and they were not acting in strict conformity, as stock- holders, to the terms of a charter, but were agents carrying out a common pm'pose to cause a trespass to be committed. MacRAE, J. I concur in the above dis- senting opinion. FOR FAILURE TO ABATE NUISANCE. 819 LOVE V. CITY OF ATLANTA. (22 S. E. 29, 95 Ga. 129.) Supreme Court of Georgia. Dec. 4, 1S94. Error from city court of Atlanta; Howard Tan Epps, Judge. Action by W. A. Love against the city of Atlanta. Defendant bad judgment, and plaintiff brings eiTor. Affirmed. Dorsey, Brewster & Howell, for plaintiff in «rror. J. A. Anderson and Fulton Colville, | for defendant in error. ATKINSON, J. Love brought against the •city of Atlanta an action for damages, al- leging, in substance, that while he was pass- ing along the streets of the city, in the ex- ercise of proper care, without fault upon his part, by, through, and because of the negli- gence of a servant of the defendant, an ani- mal attached to one of the garbage carts of the city was permitted to run away, and while so running collided with the buggy of the plaintiff, causing serious injury. It was also alleged that the driver of the cart was a small negro boy, wliolly incompetent to the discharge of the duty, and that the mule employed was vicious, dangerous, and liable to run away. The evidence proved the plain- tiff's cause of action as laid in the declara- tion, and in reply it was shown that the mule and cart causing the damage were in use by the city under the direction of the health board of the city, and that the servant of the city charged with driving said cart was then employed in cleaning the streets, and removing therefrom such putrid and offen- sive substances as usually accumulate in the streets of densely populated cities, and which were necessary to be removed, be- <'ause, remaining, they endangered the pub- lic health. At the conclusion of the evi- dence the trial judge directed a verdict for the defendant, instructing the jury that, in- asmuch as the uncontroverted testimony ahowed that the injury complained of was inflicted by servants of the city employed by that department of the city government whose duty it was to look after and pre- serve the public health, and inasmuch as it appeared that this injury was inflicted by the defendant's servants while engaged in the performance of work essential to the dis- <'harge of that particular duty, the city was not liable, and they should return a verdict for the defendant. Exception is taken to this instruction, and we are now to consider I "whether the court erred. Distinctions do not appear to have been at all times accu- rately drawn between the classes of cases in I which a municipal corporation would be lia- ble and those in which it would not be liable [ for the misfeasance or nonfeasanceof a public servant employed under mimicipal authority in the discharge of duties relating to corpo- rate affaii's. One general proposition, how- ever, seems to have received general recog- nition at the hands of courts of last re- , sort wherever that class of cases has beenl considered, and that class of cases is that,| wliei-e an injury sustained is inflicted be-' cause of the misfejisance of an ajjeut ofla I corporation while engaged in a duty perti- j neuF'to the exercise of what are tornied "governmental fimctions of a corporation," the city is upt liable. Where injuries under similar circumstances are inflicted by the agent of a corporation acting for it in the discharge of a duty on behalf of a municipal coi-poration where it is engaged in the ex- ercise of some private franchise, or some franchise conferred upon it by law which it may exercise for the private profit or con- venience of the corporation or for the con- venience of its citizens alone, in which the general public has no interest, for such in- juries a right of recovery lies against the city. Some difficulty has arisen in the ap- plication of these general principles to the facts of particular cases which from time to time have arisen. Some difficulty has arisen in the proper classification of cases in order to assign each to its appropriate position with reference to the liability or nonliability of a corporation, and the courts have not been altogether happy nor entirely consist- ent at all times in this regard. As an illus- tration of this, it is held that cities are liable for damages resulting from the nonrepair or from the dangerous condition of public streets, and this in the absence of strict statutory liability imposed by law. It has been held that they are not liable for dam- ages occasionetl by their fire departments for injuries to person or property in going to or from fires. The former case is one that might properly have been originally classi- fied among the eases of nonliability. The duty of keeping its streets in repair is a pub- lic duty, in which the general public is in- terested. The state commits to it the dis- charge of those governmental duties incident to the sovereign power, by which it is re- quired to maiutjijji for the use of the gen- eral public and for the public convenience a system of roads throughout the state, and the assignment of this particular duty to municipal corporations within their limits may fairly be said to be a delegation of what appears to us to be one of the functions of the government. The latter case, refer- ring to the fire department, is a case of non- liability, and, if not the exercise of a pri- vate power for the benefit of the corporation itself and the inliabitauts thereof, in which the general public in no way participates, it reaches the verge upon that line. We cite these as simple illustrations of our statement that the courts have not at all times been con- sistent, but with no purpose either to dis- turb the precedents established by repeated rulings of respectable courts of last resort in nearly all the states, or to intimate that there is such a doubt as to their soundness as 320 MUNICIPAL LIABILITY. would in any sense justify the adoption of otiier rules. With respect to matters con- cerning the public health, however, there is no serious conflict of reason, opinion, or au- thority upon the correctness of the proposi- tion that the preservation of the public health is one of the duties that devolve up- on the state as a sovereign power. It is ' such a duty as, upon proper occasion, justi- fies the exercise of the right of eminent do- main, and the demolition of structures which endanger or imperil the public health. In the discharge of such duties as pertain to the health department of the state, the state is acting strictly in the discharge of one of the functions of government. If the state I delegate to a municipal corporation, either I by general law or by particular statute, this power, and impose upon it, within its lim- [ Its, the duty of taking such steps and such ' measures as may be necessary to the pres- ervation of the public health, the municipal corporation likewise, in the discharge of such duty, is in the exercise of a purely gov- ernmental function, affecting the welfare I not only of the citizens resident within its ' corporation, but of the citizens of the com- > monwealth generally, all of whom have an I interest in the prevention of infectious or contagious diseases at any point within the I state, and in the exercise of such powers is [ entitled to the same immunity against suit as the state itself enjoys. Such a duty would stand upon the same footing as its du- ty to preseiwe the public peace, and its lia- bility or nonliability would depend upon the same principle which relieves the city from liability for the misfeasance of a police offi- cer in the di-scharge of his duty. It will be observed, however, that, in order to exempt a city from liability, it is not sufficient to show that the particular work from the neg- ligent performance of which by the servants of the city a citizen was injured was being performed under the direction of the health authorities, but it must be shown that the particular work so being done was connect- ed with, or had reference to, the preserva- tion of the public health. If the health de- partment were engaged in clearing away or removing obstructions from the street which in no way endangered the public health, the responsibility of the city then would rest up- on the rule of liability for the work connect- ed with repairing and keeping in order the public highways. It can make no difference in principle as to the character of the agents employed in the discharge of this duty with respect to the public health. The prinxnple of nonliability rests uppn the broad ground that in the discharge of its piirely govern- mental functions, a corjiorate body to which has been delegated a portion of the sover- eij^n power is not liable for torts co mmit ted in the discharge of su^ duties and in the execution oF such powers, "it can be no more liable because of the fault to select / competent drivers of garbage carts than a j city could be held liable for failing to elect a wise, conservative, and discreet mayor. ' Let us inquire, then, whether the particu- lar service being performed by this particu- lar servant of the corporation had special reference to the preservation of the public health. The accumulation of garbage, of substances offensive to the sense of smell, of substances which, if permitted to remain, would poison the atmosphere, and breed dis- eases infectious and contagious among the inhabitants of the city, may well be said to endanger the public health. The preserva- tion of the public health involves the re- moval of those causes which are calculated to produce disease. According to the undis- puted testimony in the case, the driver of this garbage cart and the alleged refractory mule were engaged actually in the removal from the streets of substances similar to those described above. However incongru- ous it may appear to be to say that this di- minutive darkey and this refractory mule were engaged in the performance of some of the functions of government, it is neverthe- less true, and illustrates how even the hum- blest of its citizens, under the operations of its laws, may become, in Georgia, an im- portant public functionary. Judgment af- firmed. FOR NEGLIGENT SUPPLY OF WATER. 321 SPRINGFIELD FIRE & MARINE INS. CO. V. VILLAGE OF IvEESE^^LLE. . (42 N. E. 405, 148 N. Y. 46.) Court of Appeals of New York. Dec. 19, 1805. Appeal from supreme court, general term, Third department. Action b}' the Springfield Fire & Marine Insurance Company, of Springfield, Mass., against the village of Keeseville. A judgment sustaining a demurrer to the complaint was reversed by the general term (29 N. Y. Supp. lloOj, and defendant appeals. Reversed. Chester B. McLaughlin, for appellant A. W. Boynton, for respondent. GRAY, J. The learned justice who spoke for the general term, in a very elaborate and inter- esting opinion, proceeded, very correctly, as I think, upon the assumption that the neghgence charged against the defendant in the complaint related entirely to its waterworks system. In the view which we take of the matter, it is of comparatively little consequence whether the plaintiff based its right of action upon negli- gence with respect to the fire department as such, or to the water department as such. But the fair reading of the complaint un- doubtedly warrants the assumption of the learned Justii,'e at general term. If I correct- ly apprehend the reasoning which led the gen- eral term to the conclusion that there was a municipal liability upon an admission of the facts set forth in the complaint, it rests, in the main, upon two theories. In the first pliipe, it is held that, by the voluntary assumption on the part of the defendant of the power con- ferred by statute to construct and maintain Avaterworks, it became responsible for the proper exercise of such power, and that such responsibility is necessarily demanded in the interest of an efficient public service, and the inhabitants, who have contributed to the maintenance of such a public work, have a right to hold the defendant to the exercise of reasonable care and diligence and to a liabil- ity for a failure to do so. In the next place, it is held, while not ieeming that the defend- ant had engaged in a private coi-porate busi- ness, conducted for its own benefit, and not for the general public, nevertheless that the defendant having agreed to erect and take charge of the public work and enterprise for the public within its boundaries, if there is a failure to exercise reasonable care and diU- geiice in maintaining it, there has been a breach of an implied contract, for which, if injury x'esults, an action will lie. Holding these views, the learned general term felt compelled, because of the admission by the defendant, through its demurrer, of the alle- gations of wrongful and neglectful conduct in relation to the maintenance of its water- works, to hold that the plaintiff made out a good cause of action. The preposition that such a liability rests upon a jnimicipal corporation, as is asseiled ABB.CORP.— 21 here, is somewhat startling, and I think the learned general term justices have misappre- hended the nature of the respc.nsibility which devolved upon the defendant in connection with its maintenance of a waterworks sjstem, as well as the character of the power which it was authorized to exercise in relation there- to. I might remark, in the same spirit of criticism which was assuuied by the learned justice at general term, that while the efficien- cy of the public service would be promoted by holding municipal corporations to the exer- cise of reasonable care and diligence in the performance of municipal duties, and to a lii>bility for injury resulting from a failure in such exercise, the application of that doc- trine to such a case as this might, and proba- bly would, be highly disastrous to municipal governments. A little refiection will show that a multitude of actions would be encour- aged, by fire insurance companies, as by indi- viduals, and that cases have arisen, and may still arise, where an extensive conflagration might bankrupt the municipality, if it could be rendered liable for the damages or losses sustained. The distinction between the pub- lic and private powers conferred upon munici- pal corporations, although the line of demar- ;' kation at times may be difficult to ascertain, j is generally clear enough. It has been fre- quently the subject of judicial discussion, and, among the numerous cases, it is sufficient to ref'^- to Bailey v. Mayor, etc., 3 Hill, 531; Lloyd V. Mayor, etc., 5 N. Y. 309; and Maxmilian V. Mayor, etc., G2 N. Y. 100. The opinion in Darlington v. Mayor, etc., 31 N. Y. 104, is also instructive upon the subject. "When we find that the power conferred has relation to public purposes and is for the public good, it is to be classified as governmental in its na- ture, and it appertains to the corporation in its political character. But when it relates to the accomplishment of private corporate pur- poses, in which the public is only indirectly concerned, it is private in its nature, and the municipal corporation, in respect to its exer- cise, is regarded as a legal individual. In the former case, the corporation is exempt from all liability, whether for nonuser or misuser; while in the latter case, it may be held to that degree of responsibility which would attach I to an ordinary private corporation. Then the investiture of municipal corporations by the / legislature with administrative powers may be of two kinds. It may confer powers, and » enjoin their performance upon the corporation [ as a duty; or it may create new powers, to be exercised as gorernmenUil adjuncts, and / make their assumption optional with the cor- poration. Where a duty specifically enjoined J upon the corporation, as such, has been whol- ly neglected by its agents, and an injury to an individual arises in consequence of the neg- lect, the coi-poration will be held responsible. Mayor, etc., v. Furze, 3 Hill, 012, 019. So, in McCarthy v. City of Syracuse, 40 N. Y. 194, it was held that, where a duty of a ministerial character is imposed by law upon the corpora- 322 MUNICIPAL LIABILITY. tion, a negligent omission to perform that du- ty creates a liability for damages sustained. Such responsibility, however, would not at- tach to the corporation where it has volun- tarily assumed powers authorized by the leg- islatiu"e under some general provision respect- ing municipalities throughout the state, and permissive in their nature; and at this point I touch one of the theories upon which the general term decision seems to rest. In such a case— and I speak, of course, of legislative acts which are general in their nature and scope — the assumption by the municipal cor- poration is of a further function of self, or local, government and such a power is discre- tionaiy in its exercise, and carries with it no consequent liability for nonuser or misuser. In the legislature reside the power and force of government, confided to it by the people under constitutional restrictions. In the cre- ation of municipal corporations subordinate commonwealths are made, upon which certain limited and prescribed political powers are conferred and which enjoy the benefits of lo- orations, clothed with / plenary and exclusive control over their streets, are yet liable, by implication, for iu- / juries resulting to persons properly using such / streets, for failure to maintain the same in a reasonably safe condition for travel. That the rule as stated is substantially recognized and applied by the courts in cases of stat- utory and of implied liability will appear by examination of the adjudications of courts of last resort in both classes, and any seeming want of harmony will, in most instances, appear to have arisen from failure to con- fine the language of the several courts to the facts of the particular case. What are the fact^ as shmvn in the evidence intro- duced on trial below by the appelfant, which are supposed by counsel for appellee to bar any recovery herein? We quote from the testimony of the appellant: "The accident occurred in this way: I had a puppy there, and I took the puppy out on the sidewalk, and was playing with him; and he jerked loose from me, and I made a step to catch it, and my foot slipped into one of those cracks, and jerked me down, and, before I could recover, the plank flew up, and struck me on my leg. My foot was fastened in the crack. It was my right foot in the crack. I had my left foot on the ground, and I jerked my right foot up. and the plank flew up, and struck me on the left leg. It produced a compound fracture of my leg." On cross-examination the appellant said: "I was playing with a dog when the accident happened. I went out to the side- walk. I had a pointer puppy there, and was playing with it. It tried to get away from me, and my foot slipped off the plank, and went into the crack; and in reaching over, I tried to pull my foot out. and the plank flew up, and struck me on the leg. My leg was broken. * * * The plank ran on the sidewalk crosswise. !My foot was caught crosswise. Was standing rather crosswise. Was walking along when the accident oc- curred. Was playing with the dog. AVas going nowhere. * * ♦ My face was turn- ed towards the fence; turned south. The dog was running between me and the pal- ing, and I stooped to catch him, and my foot slipped." The case thus presented is that of a man of full age using the sidewalk, not for the purpose of travel, either for business or exercise or pleasure, but for the sole pur- pose of playing with a dog. The appellant had come out of his boarding house to the sidewalk. He was standing, and was not going anywhere. He was playing with the dog, and was standing with his back to the roadway, and his face turned towards the palings, when, in an effort to catch the dog, running between him and the fence, he step- ped, and received his injury. Can it be sat- / isfactorilj' gathered from the above state- ment that the appellant, when hurt, was f making such reasonable use of the street or its sidewalk, at the time of receiving the I injury complained of, as will bring him within the category of those for whom streets / and sidewalks are designed? Was he a trav- eler on or along the street, who, incidentally I halting or turning aside upon his way, re- ceived his hurt? Was the municipality un- i der any duty to the appellant to keep in re- / pair the sidewalk so that he might safely f use it for the purpose of his play with the dog? Streets, we repeat, are designed for travel, primarily; and though it must be conceded that one using the street for travel may incidentally cease to move on contin- uously, and yet not lose his right as a traveler on the highway, yet it cannot be deduced from this concession that one not using the street for travel may, nevertheless, convert it, or part of it, into a playground, and in so using it, if injury occur while so using or misusing the street, by reason of de- 1 328 MUNICIPAL, LIABILITY. fects in it, hold the negligent municipality j liable. To recover, the injured party must fix liability upon the municipality; and. to I fix liability, the sufferer must show failure I on its part to discharge a duty to him. But the duty to repair and keep in reasonably safe condition sti-eets and sidewalks is due j only to those using the highways for the purposes of their creation. If a football team appropriate a street to its uses in f)laying a game, and one of the players fall into a hole in the roadway, and injury re- sult, would any one be found to say that he could rightfully complain and recover? In such case the injured player clearly would be frustrating the very end for which high- ways are ordained, viz. the convenient and safe transportation and travel of property and persons. It seems to us indisputable that one contravening the law of the crea- tion, and the ends for which it was created, cannot be heard to complain if ill befall him because of his own wrongdoing. Many cases have been examined by us where liability was imposed and recovery had for injuries to children, not of the age of discretion, when playing on the streets or highways; but all such cases, on well-under- stood legal principles, are readily distin- guishable from the case at bar. Chicago v. Keefe, 114 111. 222, 2 N. E. 267, and Indianap- olis V. Emmelmen, lOS Ind. 530, 9 N. E. 1.55, cited in the brief of appellant's counsel, are of this character. Our own adjudications are along the same line, in like cases. Mack- ey V. City of Vicksburg, 61 Miss. 777, 2 South. 178; Vicksburg v. McLain, 67 Miss. 4, 6 South. 774. When we come to consider the cases referred to by the counsel wherein adults received injuries in streets, we shall discover that none of them, on their facts, at all resemble the ca.se at bar. The sinewy, lucid, and caustically humorous opinion in Varney v. Manchester, 58 N. H. 430, was upon these facts, in a word, viz.: Varney, the plaintiff, went to a certain street in Man- chester for the purpose of seeing a proces- sion form on Decoration Day. He went down one side of the street to the place where the procession was forming, and crossed over the street to get a better view. He stood looking at the forming of the pro- cession, near a pile of lumber; and, after so standing and looking from three to five minutes, the lumber fell, and crushed his foot. Held, that a person is "traveling upon a highway" when he is making a reasonable use of a highway as a way, and that the law does not prescribe how long one may stand on a street without ceasing to use the way as a way; but that the question was one of reasonable use, and tliis was for a jury's determination, if there is any evidence on which they could properly find the use was reasonable. The case of Murray v. McShane, 52 M(l. 217, is that of an adult lawfully pass- ing along a street, and stopping for an in- stant on a doorsill of a house fronting the street, for the purpose of adjusting his shoe, and suffering injmy in consequence of a brick falling from a dilapidated wall, negli- gently permitted to remain there. Held, that travelers on a street have not only the right to pass, but to stop on necessary and reason- able occasions, so they do not obstruct the street or doorway. In Duft'y v. City of Du- buque, 63 Iowa, 171, IS N. W. 900, the facts were that Duffy, who was a workman, went to the corner of the two intersecting streets for the purpose of doing some work on a house there situated. After he had unload- ed some stuff from a wagon, he went along the sidewalk to a hydrant eight feet in rear of the house and a foot or two from the line of the sidewalk. While in the act of drawing water from the hydrant, with one foot on the ground, and the other on the sidewalk, a section of a roof, negligently left standing neai', was blown over by a gust of wind, fell on Duffy, and inflicted the injuries of which he complained. Held, that Duffy's stopping to draw water as stated was the exercise of a privilege which he might law- fully enjoy, and was a mere incident to the general use of the sti'eet which he was mak- ing. The opinions of the Now England courts, when liability in the character of cases which we are considering is of statutory cre- ation, and in which, as is sometimes charged, exti-eme and antiquated views ai-e announ- ced, it will be found, on careful analysis, are not out of general accordance with the spirit of the most, not to say all, of the decisions elsewhere which we have examined. In the case of Blodgett v. City of Boston, 8 Allen, 237, while the court deny the liability of the city for injuries received by a boy 11 years old, who was using the plank sidewalk on the street with another boy for purpose of play only, yet the opinion is careful to limit the effect of the decision by saying: "We do not certainlj' think any narrow or restricted signification should be given to the word 'traveler,' as used in the statute. It may well embrace within its meaning, as ap- plied to the subject-matter, every one, what ever may be his age or condition, who has occasion to pass over the highway for any purpose of business, convenience, or pleas- ure. * * ♦ We by no means intend to say that a child who receives an injury caused by a defect or want of repair in a road or street, while passing over or throiigh it, would be barred of all remedy against a town merely because, at the time of the oc- curreuce of the accident, he was also en- gaged in some childish sport or amusement. There would exist in such case the impor- tant element that the person injured was a'c- tually traveling over the way. But this ele- ment is wholly wanting in the case at bar." Here, as in the case just quoted from, the im-| portant element of actual i«e of the way for[ the purpose of travel is wholly absent. Here, . as there, the case shows an appropriation of a sidewalk to a use other than, and incon- ' rOR DEFECTIVE STREETS. 329 sistent with, that for which the highway was established. Here, however, the offend- er against the rights of the public was an adult, and not a child of debatable discre- tion. Here, in addition, the play with the dog was not a mere incident to the general and proper use of the sidewalk by the appel- lant in passing along or over it The city oweil him no duty, in his situation, and using the street as he was doing. The duty was on the municipality to keep and maintain the street h\ reasonably safe repair for trav- el, and liability ensued upon injury befalling one going along or over it, whether for pur- poses of business or pleasure, by reason of , failure to keep and perform this duty. But | to one simply using the street or sidewalk ' as a playground the city owed no duty to keep its streets for him so engaged in any re- pair. Affirmed. 330 MUNICIPAL LIABILITY. HAMILTON V. CITY OF DETROIT. (63 N. W. 511, 105 Mich. 514.) Supreme Court of Michigan. May 28, 1895. Error to circuit court, Wayne county; Wil- lard M. Lillibridge, Judge. Action by Ralph Hamilton, Jr., by next friend, against the city of Detroit, for per- sonal injuries. From a judgment for de- fendant, plaintiff brings error. Affirmed. Charles C. Stewart (S. O. Van De Mark, of counsel), for appellant. John J. Speed, for appellee. McGRATH, C. J. Defendant had let to one Porath the contract for the construction of a public sewer in Wabash avenue. Po- rath, for the purpose of enabling him to tunnel, had put down a shaft about 6 feet square, and over it had erected a derrick. On the north side of the derrick a platform had been erected, some 5 or 6 feet from the street level, extending north 30 feet. The clay was elevated in buckets to a point above the platform, and then dumped into a light car. The car was then run along the plat- form, and the earth dumped over the side 1 of the platform. Plaintiff, who was about ' five years old, after work had ceased for I the day, had climbed up to the top of the platform, and, while playing with the car, I fell from the south end of the platform down into the shaft, and was injured. That part I of the street was closed against travel and guarded against accident to persons in the ordinary use of the street. The injury can- / not, therefore, be said to have resulted from a defective condition of the street, or from a failure to guard the excavation against in- jury to persons using the highway. In this respect the case differs from City of Detroit V. Corey, 9 Mich. 164. In Storrs v. City of Utica, 17 N. Y. 104, cited in support of that opinion, the liability of the city is put on the ground of its duty to keep the streets in re- pair. In Bailey v. City of New York, 3 Hill, 531, the dam which gave way was owned by the city. In Lesher v. Navigation Co., 14 111. 85, the company was authorized by its charter to enter upon plaintiff's land, and take therefrom material for the con- struction of its works, by making compensa- tion therefor, and the court held that the privilege which the charter conferred upon the company devolved upon the contractors for the same purpose. In other words, that the company could not, by an agreement with the contractors that the latter should furnish the material, authorize such con- tractors to enter upon plaintiff's land, and take the material, and deprive the owner of the material of the right to claim compensa- tion therefor from it. The contractors' jus- tification, in an action against them for tres- pass, would have been the authority con- ferred upon the company, and, so far as plaintiff was concerned, the taking was by the company under the authority so con- ferred. In no sense was the agency a gen- eral one, so as to make the company liable for the debts or torts of the contractors. In the Corey Case the court held that the city took its power with the understanding that it should be so executed as not necessarily to interfere with the rights of the public in the streets, and that all needful and proper measures would be taken, in the execution of the power, to guard against accident to persons lawfully using the highways. The liability of the city is coextensive with its duty respecting the ordinary use of the high- way, but cannot be extended beyond that limit to a case like the present, where a child had been attracted by the machinery employed in the construction or operation of the work, and thereby induced to climb upon or over the barriers or guards, into the exca- vation. This conclusion renders it unneces- sary to consider the other questions raised. The judgment is aflarmed. The other justices concurred. rOK DEFECT IN SIDEWALK OUTSIDE OF STREET. 331 CITY OF CHADRON v. GLOVER. (62 N. W. G2, 43 Neb. 732.) Supreme Court of Nebraska. Feb. 5, 1895. Error to district court, Dawes county; Kin- kaid, Judjje. Action by Eliza J. Glover against the city of Cliadron. .Tudgment for plaintiff, and de- fendant brings error. AtRrmed. Spargur & Fisher, for plaintiff in error. C. Dana Sayrs and A. W. Crites, for defendant in error. IRVINE, C.i * * * * * (It is also contended that the injury occurred at a point outside of the line of the sidewalk, as established by ordinance. It would seem / from the evidence that at this point a side- walk about 12 feet wide existed, extending from the outer line of the sidewalk, elsewhere • along the street, back to a rink used for pub- ; lie entertainments, while the ordinance pro- 1 vided for a sidewalk only four feet in width. I It is uncertain whether the defect complain- ed of was within the four feet or beyond it; 1 Part of the opinion is omitted. but, assuming that it was beyond the limit established by ordinance, still the evidence shows that the situation was much the same as in Foxworthy v. City of Hastings, 25 Neb. 133, 41 N. W. 132. At least, it is clear that the whole formed a continuous walk, open to the public, and that the city had exercised control over the whole thereof. The city i, having permitted the sidewalk, its duty to maintain the same is not affected by the fact that under its ordinance a narrower walk might have been erected. Foxworthy v. City of Hastings, 25 Neb. 133, 41 N. W. 132; Kin- ney V. City of Tekemah, 30 Neb. 605, 40 N. W. So5. It is still further urged that the action is at least prematurely brought, because the plaintiff had filed a claim with the city which had not been acted upon when the suit was brought. Under the statute relating to cities of the class of Chadron, the total failure to present a claim of this character does not bar an action. Comp. St c. 14, § 80; Nance V. Falls City, 16 Neb. So, 20 N. W. 109. In all other respects we think there is ample evidence to sustain the verdict, but a review of the evidence would be useless. Judgment affirmed. 332 MUNICIPAL LIABILITY. BLYHL V. VILLAGE OF WATERVILLE. (58 N. W. 817, 57 Minn. 115.) Supreme Court of Minnesota. April 20, ISM. Appeal from district court, Le Sueur county; Francis Cadwell, Judge. Action by Alexander Blyhl against the Til- lage of Waterville to recover for personal in- juries. Judgment for the plaintiff. Defend- ant appeals. Affirmed. M. R. Everett and H, S. Gipson, for ap- pellant. F. B. Andrews and John Noonan, for respondent. GILFILLAN. C. J. The defendant, a mu- nicipal corporation, required an owner of a lot abutting on one of its streets to construct a plank walli along the street by the side of his lot, and he constructed it on a grade giv- en him by, and under the direction and with the approval of, defendant's street commis- sioner. As consti'ucted, the walk made, at the junction of this new walk with the walk along the remainder of the block, a drop or step seven or eight inches in height. It is apparent there was no necessity or reason for having the drop instead of gradually sloping the grade of the new walk until it came to the grade of the remainder. It is also appar- ent that so sloping it would have made a safe walk, and that the drop made it dan- gerous to one passing along it in the dark. After the walk had been in that condition for about a month, plaintiff, passing along it in the dark, hit his foot against the face of the drop, and fell, and was injured, and brings this action to recover for the injiu-y. From a judgment after verdict in his favor the defendant appeals. I Unless the defendant is exempt from lia- 'bUity on the ground claimed by it as herein- after stated, the existence of the drop in / the sidewalk to the knowledge of defendant, through its street commissioner, was suffi- cient to make defendant's negligence a ques- tion for the jury. Tabor v. City of St. Paul, 36 Minn. ISS, 30 N. W. 765. The defend- \ ant claims it cannot be held, because the de- fect in the walk was in the plan on which ( it was constructed; that the adoption by a municipal corporation of a plan for a public ) improvement is a legislative or discretion- ary function, and that the corporation is not I liable for the consequences of any error in the discharge of such functions. That a ) municipal corporation is not liable for conse- quential injuries arising from the bona fide exercise of, or omission to exercise, those powers which are conferred on its council I or legislative body, and the exercise of which as to the time, extent, and manner is left to I the discretion or judgment of such body, has been fully recognized by this court Lee v. City of Minneapolis, 22 Minn. 13; Aldcu v. f Same, 24 Minn. 254. Most municipal public ' improvements come within such powers. Thus, unless controlled by charter provisions. when street grades shall be established, and on what planes or levels; when grades shall j be changed, and to what planes; when streets shall be paved, and with what kind of pavement; when sidewalks and cross- walks shall be laid, and of what material, what sewers, gutters, and catch basins shal' be made, and when and how.^re usuallj left to the judgment or discretion of the leg- islative body of the corporation. And while, of com-se, it is expected the best results to the people of the corporation will follow the efforts of that body, it is not enjoined as a duty to produce any particular result, so that failui'e to bring it about will make the cor- poration hable for consequential injuries. The matter of keeping streets and sidewalks in safe condition stands on a different foot- ing. It has always been held in this state that a municipal corporation having exclu- sive control of its streets, when the means are within its power, has imposed on it a positive duty to keep such streets in reason- ably safe condition. Scores of recoveries for injm-ies resulting from neglect of that duty have been sustained in this com-t. The first formal statement of the rule was in Sliaxtle V. City of Minneapolis, 17 Minn. 308 (Gil. 284) in these words:/" "It is weU settled that a municipal corporation having the exclusive control of the streets and bridges within its limits, at least if the means for performing the duty are provided or placed at its dispos- al, is obliged to keep them in a safe condi- tion; and if it unreasonably neglects this duty, and injury results to any person by this neglect, the corporation is liable for the damages siistained."/ In this particular there is not only a power conferred, but there is also a duty imposed, to use the power with a view to a particular result, to wit, the safe condition of the streets. Of this duty Dill. Mim. Corp. (4th Ed.) § 1023a. says: "Which duty is not legislative or judicial, but rather, in its natm-e, ministerial." It is there- fore not left to the corporation's legislative body to determine when or to what extent the dutj' shall be performed, nor to deter- mine it has been performed; for, if it were, it would be a discretionary, not a positive, duty. That the safe condition of sti-eets concerns the safety of life and limb, and not only convenience or property, is a reason for imposing a duty in respect to it greater than is imposed with respect to other matters of public improvement. No question is made, nor can there be, on the decisions that, if a dangerous defect is due to wear, decay, ac- cident, or the act of a third person, the cor- poration, upon notice of it, must seasonably repair it. In this case, if the property own- er had, without authority, constructed the sidewalk with the dangerous defect, it would have been the duty of the corporation to sea- sonably remedy it. The corporation might adopt or ratify the plan on which the ownti' constriicted the walk; but to hold that by so adopting or ratifying it it could avoid the FOR DEFECTIVE PLAN OR CONSTRUCTION. 83a duty to remedy the defect would enable it to detcrmiue whotlior it would perform tho duty imposed on it or not, and it wouhl cease to be a duty. And if the corporation is not liable in case of a danj::erous defect In a street or sidewalk, because the defect is in the plan previously adopted for its con- struction, then, althongli it is its duty to keep the streets in safe condition as agrainst natm-al causes or the acts of third persons, it is not its duty to keep them in such condi- tion as against its own acts. And whether it is its duty or not wiU depend on whether It is responsible for the uu'^afe condition; and if it may, without liability, determine in advance, in adopting a plan for consti'uction, that a certain condition of the street or walk will be safe enough, we do not see upon what principle it is to be liable if, after the condition exists, from whatever cause, it de- termines the street or walk to be safe enough, and to need no repair. "We have not used the term "positive duty" In the sense that the corporation insiu-es the safe condition of its streets, or that it is bound to maintain them in that condition without reference to the difficulties in the way of doing so. There may be defects that are practically irremediable. The to- pography of the ground may be such as to render it practically impossible to have the streets entirely safe. In that case the peo- ple must accept such as with reasonable ef- forts can be provided. The law does not require of the corporation unreasonable things, but only that it shall employ, in per- forming its duty as to streets, the diligence, care, and skill that an ordinarily prudent person having a similar duty to perform would employ. If it do so, there is no un- reasonable neglect. So far as concerns the safe condition of a street or sidewalk, the same requirement applies to adopting a plan either for its construction or repair. Of course the corporation would not be liable merely because, in the opinion of a jury, a safer or better plan might have been adopt- ed. To illustrate, we may suppose a not un- common case, where, owing to the charac- ter of the surface, a sidewalk must be con- structed on one of two plans, each leaving It more or less tmsafe, — one requiring a slope 80 steep as to be unsafe; the other, steps that will make it unsafe. The corporation , would not be liable for the dangers in the / plan adopted merely because, in the opinion ' of a jury, the other would have been safer. To make the corporation liable, the plan adopted would have to be so much and so obviously more unsafe than the other as to show a neglect to employ the diligence, judg- ment, and skill in determining the plan which ordinary care would requii'e. "We are cited to some decisions In !Michi- gan. New York, and Pennsylvania to the ef- fect that a corporation is not hable for the consequences of a dangerous defect in a street or walk due to the plan adopted for its construction, because it is only an error of judgment in a matter resting wholly in the judgment or discretion of the corpora- tion. Those decisions are irreconcilable in principle with other decisions of the same com-ts, and inconsistent with the proposition that keeping streets in reasonably safe con- (lition is a matter of positive duty, and not of discretion. "We are therefore of opinion that the mere fact that an unsafe condition of a street is due to a defect in the plan for its construction will not shield the corpora- tion from liability for injm-ies caused by such imsafe condition. There is no merit in any of the other points made by appel- ant. Judgment aflii-med. CANTY, J. I agree with the result in this case and with the foregoing opinion, except that it seems to me it does not sufficiently limit the right of the com-ts to impeach or review the legislative judgment in adopting the plan of improvement. "When the alleged defect appears to be a part of the plan, it shoidd be presumed to be of legislative, not of ministerial, origin, until the contrary Is proved. The coiu-ts cannot review the legis- lative judgment at all. They can impeach It only when it is not legislative judgment in fact. "Unless it appears that the alleged de- fect is of ministerial origin, it must appear that there is such gross mistake in the adop- tion of the plan as woidd imply a failm-e to exercise the legislative judgment. If two reasonable minds might have adopted differ- ent plans, the legislative judgment cannot be impeached for having adopted either one of these plans. 334 MUNICIPAL LIABILITY. CITY OF ATLANTA v. MILAM. (22 S. E. 43, 95 Ga. 135.) Supreme Court of Georgia, Dec. 4. 1S94. Error from city court of Atlanta; Howard Van Epps, Judge. Action by John A. Milam against the city of Atlanta for personal injuries. Plaintiff had judgment, and defendant brings error. Plaintiff also filed a cross bill of exceptions. Affirmed, and cross bill of exceptions dis- missed. The following is the official report: Milam sued the city of Atlanta for. damages from a personal injury which he alleged he received on or about April 1, 1892, from fall- ing violently over a high, iron projection near the corner of Alabama and Broad streets, At- lanta, negligently allowed by defendant to project far out into the public sidewalk, and obstruct the same for about four feet. The verdict was for plaintiff, $833. Defendant's motion for new trial was overruled, and it excepted. The motion contained the gt?neral grounds that the verdict was contrary to law, evidence, etc., and also that it was con- trary to certain specified portions of the charge. Further, because the court erred in the following charge: "This duty of dili- gence extends to the whole of the sidewalk which is intended for travel by the public as a thoroughfare for travel, and is not con- fined to any special part of the sidewalk in use by the general public in walking along there. It is bound to keep all of its width reasonably safe for persons to travel along its entire width." Alleged to be error be- cause it did not fairly submit to the jury de- fendant's contention that the strip of iron was not an actionable defect in the street, but was only a proper part of an ordinary, necessary, and reasonable appurtenance of the Inman Building, which abutted on the street at that point. During the trial, before the close of plaintiff's evidence, defendant moved the court to send tlie jury, in charge of the court's bailiff, to inspect and view for themselves the alleged defective side- walk, grating, and iron over which it was al- leged plaintiff fell. Plaintiff objected on the ground that the court had no authority to send out the jury in this manner, and to take evidence, in this manner, that could not be reviewed by the court, and on the ground that it was improper in this case, as plaintiff denied that the defective premises were in the same condition as when plaintiff fell. These objections the court overruled, and or- dered the jury to be sent, in charge of the bailiff, to view the alleged defective premises and sidewalk, which was accordingly done. To this action of the court plaintiff assigns error, by cross bill of exceptions. J. A. Anderson and Fulton Colville, for plaintiff in error. Arnold & Arnold and C. D. Hill, for defendant in error. LUMPKIN, J. The facts are stated by the reporter. The law of this case is not very complicated. While, of course, in mcst American cities, water plugs, telegraph and telephone poles, trees, and other things, are allowed upon the margins of sidewalks, and pedestrians, therefore, are not expected to use such portions of the same as are occupied by these obstructions, still there can be no 1 doubt, under the rules of law now settled by | repeated adjudications in this and other ju- j risdictions, that the city authorities must | keep in a reasonably safe condition all parts I of its sidewalks which are intended to bej used by the public. It may often happen that ! 'in a particular locality a comparatively nar- row portion of a sidewalk, on either side or in the middle of it, is much more generally used than other portions of the same; but this does not relieve the municipal authoi-i- ties from liability for negligence in permit- ting dangerous obstructions to be continu- ously maintained in places upon sidewalks over which the public have a right to pass, merely because those places are not so much used as others. It appeared in this case that the obstruction over which the plaintiff fell had existed for a considerable time, and was located upon a portion of the sidewalk over which he had a right to walk. The evidence as to the dangerous character of the side- walk was rather weak, — so much so that we would very probably have set aside the ver- dict in the plaintiff's favor, had it not been for the fact that the jury, at the request of the defendant, were permitted to personally insjiect the obstruction, and form their .own opinion concerning it, by ocular demonstra- tion. We are constrained to hold that they were better judges on the subject, after this opportunity of obtaining infonnation, than we could possilily be from a mere paper re- port of the testimony introduced in the case. We will therefore allow the verdict to stand. Judgment affirmed. WHEN DEFECT IS NOT PKOXIMATE CAUSE OF INJURY. 335 TOWN OF FOWLER v. LINQUIST. (37 N. E. 133, 138 Ind. 5G0.) Supreme Court of Indiana. April 17, 1894. Appeal from circuit court, Newton county; E. P. Hammoud, .ludsc Action by Charles Linquist against the town of Fowler for persoaal injuries. From a judgment for plaintiff, defendant appeals. Affirmed. W. D. Wallace and S. P. Baird, for apix}l- Lant. J. D. Brown and G. H. Gray, for ap- pellee. HOWARD, C. J. This was an action by the appellee against the appellant to recover damages for pei-soual injuries alleged to have been caused by an obsti'uctiou in one of the streets of said town. On the overruling of demurrers to the complaint the appellant an- swered in general denial, and also by two special pleas, to the lirst of which a demm-- rer was overruled, while to the second a de- murrer Avas sustained. The issues joined were ti-ied by a jm-y, and by agreement the jury returned into court their special ver- dict on all the issues in the cause. The ma- terial facts found are: That Park sti-eet, in the town of Fowler, in Benton county, is a public sti'eet, which was laid out and dedi- cated many years ago, and accepted by said town, and which for many years past has been used and traveled, and was on the 27th day of October, 1891, used and ti-aveled, by the citizens of said town and by the public. That in April or May, 1891, one Jacob Lucas erected a fence across said street, from the southeast corner of outlet 29 to the south- west corner of outlot 28 of Fowler's addition to said town, and within the corporate limits thereof. Said fence consisted of four or five oak posts firmly planted to the depth of about tw > feet in the ground, with wire strung thereon, and securely fastened. In the center of said sti-eet, in said fence, was a gate fastened between two of said posts. In the summer of 1891 said obstruction was entirely removed, except one post, which re- mained standing, and of which appellant at the time had notice. This post stood about four or five feet above the ground, and about three feet west of the ti'aveled part of said street. That appellant had due notice and full knoAA'ledge of said obstruction from May, 1891, and at all times since then up to the 27th day of October, 1891, and tliereafter, two of the trustees of the town having actu- al notice during all said time, but the town took no steps to remove the obstmction. The town marshal also had full knowledge of the obstruction during all said time. That on said 27th day of October, 1891, the ap- pellee, who is a fai'mer and laborer living in the southeast part of said town, was traveling soutliward towards his home on said Pai'k street, driving a sj)an of mules hitched to a two-horse wagon, with a hay ladder thereon, at a slow rate of speed, in a careful and cautious manner, without any knowledge of the existence of said post, hav- ing been informed some four or five weeks prior tliereto that said post had been taken down, and believing that it had been re- moved; and while so ti'aveling upon said street his mules became frightened at some stray horses that were gi'azing in sjxid street, without his fault or negligence, at or near said post, which stray horses caused said mules to shy to one side, whereby the hay frame that was on said wagon collided with and caught upon said post, which produced a sudden jerk and shock of said hay ladder, tlirowing the appellee off the wagon and be- tween the mules, without fault of his. That the nppelleo's leg was caught between the spokes of one wheel of the wagon, and was thereby twisted, wrenched, and broken with- out his fault. That said accident occiured at or near 7 o'clock in the evening of said day, and when it was dark. That when said mules became frightened, and before the hay ladder collided with the post, the appel- lee pulled on the lines, and used every effort in his power to check the mules, but was un- able to control them. That for several rods before the mules became frightened the ap- pellee was driving slowly, and that the mules were not accustomed to run away or to be- come frightened. That appellee was stand- ing up on said hay ladder, driving the mules with lines, and looking forward to see any obstruction that might be on said street. That the street is about GO feet wide at the place of said obstruction, and the sin*face of the ground is comparatively level. That the post was imguarded, and without light or ;■ nals to warn ti'avelers of its location. That said mules, while so frightened and beyond tlie conti-ol of appellee, drew the wagon out of the ti-aveled part of the sti'eet, and near to said post, causing the collision, after which the mules ran off with th(> wagon, leaving the appellee helpless upon the groimd, with both bones of the left leg bro- ken between the knee and ankle, where he remained until assistance arrived, and he was carried home. That he was at once at- tended by a competent physician and sur- geon, who properly and skillfidly ti'eated him, and that all proper attention was given him. That the knee joint is partially, and the ankle wholly, stiff, and the leg crooked, and two inches short, and the appellee maimed and crippled for life, and wholly in- capable of performing manual labor or piu*- suing his iisual avocations. That he has suf- fered and endured great p:un and tortm-e, both physically and mentally. That at the time of and prior to receiving said injuries the appellee was a strung, healthy man, and was industrious. That he is 51 years of age, and has a wife and eight minor children, who are wholly dependent upon him for support. That by reason of said injuries he has sustiiined damages in the sum of ij^G.OOO. A motion for a venire de novo was over- 336 MUNICIPAL LIABILITY. 03 ip.) ruled. A motion for a new trial having been filed, the appellee filed a remittitur of $1,000 of the damaj::es allowed by the ver- dict of the jury, whereupon the motion for a new trial was overruled. The appellant then filed a motion for judgment in its favor up- on the verdict, which was also overruled. Judg-ment for $5,000 was then rendered in favor of appellee. After the evidence was given, and before the argument of counsel, the appellant moved the court to instruct the jury to return a verdict for the appel- lant, on the ground that appellant was not liable for the injuries suffered by appellee. This motion was overruled, which ruling Is made one of the grounds of the motion for a new ti'ial. The motion for a verdict in favor of the appellant is brought into the record by special biU of exceptions. Many assignments of error are made, but the chjef reason argued why the judgment should be reversed is that it was not shown that the place where the injury was re- ceived was a public street. It is not ques- tioned that in ISTo — more than 16 years be- fore the time of the injuries complained of— Fowler's addition to the town of Fowler, including Park street, and the place therein where the injuries were received, was duly platted, and the plat acknowledged and recorded. But appellant first objects that no proof other than the plat was introduced to show that at the time of making, filing, and recording such plat Moses Fowler was the owner of the land so platted. This is not a controversy as to the ownership of the ground occupied by the street. No one claim- ing to be the owner of the land occupied by the street is here as a party denying the dedi- cation. In such case strict proof of ownership is not required, as in ejectment. There was in the court below no denial of ownership in the dedicator at the time of the dedica- tion, and the evidence shows continued use < ter was a catch-basin for the sewer, close to ! the place of the accident. This catch-basin had become filled up or stopped, so that the water did not run off, and, the weather being warm, the water accumulated at that point, and flowed upon the outer edge of the sidewalk, where it froze, and, it being ■ covered with manure and dirt, plaintiff feU, / and was injured. It is claimed that defendant did i. keep ; its walk in a reasonably safe condition for j travel. Unless the municipalities of the state are to be made insurers against accident, it ' is difficult to see how the plaintiff can be permitted to recover. Just what duty the city neglected is not stated. By the paving improvement, the water flowed upon the . sidewalk and froze. Had it not been made, '\ It would have flowed upon the road, where \ It would have frozen, and made it possi- ble for an accident to have happened there. No fault is found with the constiniction of the , catch-basin, and upon the whole record it j is plain that from natural causes, without fault upon the part of the city authorities, ' some ice formed from the snow which feU, in the highway. No hability attaches under | such chcumstances. Some cases have been | cited in support of the plaintiff's claim, but they relate to instances where, by neglect of the hydrants or waterspouts, water was j permitted to drop upon the walk, where it « froze. These cases are clearly distinguish- / able from the case before \is. The judg- ment must be affirmed. The other justices concurred. ICE AND SNOW. 345 HAZZARD T. CITY OP COUNCIL BLUFFS. (53 N. W. 1083, 87 Iowa, 51.) Supreme Court of Iowa. Jan. 18, 1893. Appeal from district court, Pottawattamie couuty; A. B. Thoruell, Judge. Action to recover damages for injuries to tlie plaintiff's horse, by I'eason of the alleged negligence of the defendant in constructing an insufficient culvert in a street of the city, which caused tlie street to overflow and be- come obstructed with mud, rubbish, stones, bricks, and other refuse matter. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals. J. J. Stewart, for appellant. Flicliinger Bros., for appellee. ROTIIKUCK, J. The argument of coun- sel for appellant proceeds upon the theory that the evidence does not show that the city was negligent in the construction of the culvert, and in permitting brickbats, brush, and other rubbish to remain in the street. / It cannot be a subject of debate that the cul- [ vert was insufficient to carry off the water which came down from the adjacent land. I The fact is undisputed that the culvert be- ! came clogged up, and that the water washed . over the street, and deposited brickbats and / other rubbish upon the surface of the street; and there is evidence in the case from which [ the jury were authorized to find that there was a ditch or depression in the street, caus- ed by the action of the water which should I have been carried off through the culvert; and there was also evidence to the effect that much of this rubbish which obstructed the I street had been there for sufficient time to I authorize a finding that it must have come to the knowledge of the officers of the city I who were charged with the duty of keeping I the streets in repair, and in suitable condi- tion for travel. This being the state of the I case, there can be no doubt that the city was liable for the injury, unless the plaintiff failed to show that the person in charge of the horse was free from contributory negli- ; gence in riding the horse on and over the obstructions in the street. The evidence , shows that the plaintiff's horse was injured ' by stepping on a brickbat which rolled under his foot, and by reason of the rolling mo- I tion of the brick the leg of the horse was broken. It is claimed that the brickbats in the street were plainly visible, and that the rider of the horse should have avoided them. The jury found specially that a part of the obstructions and defects in the street were in plain view^ of tlie person in charge of the horse. This finding was warranted by the ' evidence. The brickbats, or most of them, were shown to be in plain view; but there \ was evidence tending to show that there was a ditch and brush and other rubbish un- der the brickbats, which the jury, no doubt, believed were the real cause of the rolling of brickbat upon which the horse stepped | was injured. A careful examination of the bri and the evidence leads us to the conclusion that ) the jury were warranted in finding that the / person in charge of the horse was shown to/ be free from contributory negligence. These' general observations practically dispose of / this appeal. The case has once before been in this court, upon an appeal by the plain- tiff. See 79 Iowa, lOG, 44 N. W. 219. At the last trial the court appears to have tried the case in accord with the opinion on the former appeal. Appellant's counsel complain of the refusal to give certain instructions to the jury, upon the request of the defendant. The instruc- tions which were given by the court on its own motion covered every conceivable ques- tion in the case, and there was no necessity for further instruction. It is claimed that certain parts of the charge to the jury were erroneous. We discover no ground for dis- turbing the judgment on this ground. The charge, taken as a whole, is a correct expo- sition of the law of negligence, as applied to the facts disclosed in evidence. Special objection is made to the following language, used by the court in the instruc- tions: "But actual notice need not be shown in all cases. It may be inferred from the notoriety of the defect, or from its being so visible and apparent, and having continued for such length of time, as that, in the exer- cise of reasonable observation and care, the proper officers of the city ought to have known of and remedied or removed the de- fect or obstruction. The evidence in this case fails to show actual notice of the de- fect or obstruction complained of, if same existed, to the defendant or its officers; but if the evidence show's that such defect or ob- \ struction had existed for such length of time, and was so visible and apparent, as that the | officers and servants of the defendant ought, in the exercise of ordinary care and observa- \ tion, to have known of and remedied or re- moved same before the time of the accident \ in question, this w^ould be sufficient to show that the defendant was negligent in permit- \ ting such defects or obstructions to remain at the time of the accident; but unless the I evidence does show that said defects or ob- structions w'ere caused by the negligence of the defendant in constructing the culvert at the place in question, as before explained, or that same were of such notoriety, or had existed for such length of time, and were vis- ible and apparent before the accident, as that the officers and servants of the defend- ant, in the exercise of ordinary care and ob- servation, ought to have know-n of and reme- died or removed said defects or obstructions, the defendant cannot be charged with negli- gence on account thereof, and the plaintiff cannot recover in this case." The objection > to this part of the charge is that the defend- ant is thereby made liable if a mere servant of the corporation knew of the defect, or 346 MUNICIPAL LIABILITY. could, with reasonable diligence, have discov- ered it The part of the charge above set out, when considered throughout, will not bear the construction contended for. Its whole scope and meaning is that if the "proper officers of the city ought to have Ijnown of and remedied or removed the de- fect or obstruction," and did not do so, then the city was chargeable with negligence. The use of the word "servants" could not have been understood by the jury as other than representatives of the city charged with, some duty with reference to maintaining the streets in proper condition for travel. The case requires no further consideration. We have disposed of it in this general way because, as it appears to us, there is no real ground for objection to any ruling of the court, and we are satisfied that the verdict of the jury finds support in the evidence. The judgment of the district court is af- firmed. UNLIGHTED CONDITION OF STREETS. 347 DAVENPORT v. CITY OF HANNIBAL. (18 S. W. 1122, 108 Mo. 471.) Supreme Court of Missouri, Division No. 2. March 2, 1892, Appeal from circuit court, Mouroe county; Thomas H. Bacou, Judge. Action by David G. Davenport against the city of Hannibal to recover damages sustained by reason of a personal injury to his wife, Fanny C. Davenport, caused by the defective condition of defendant's street. From a judg- ment for plaintiff, defendant appeals. Affirm- ed. D. H. Eby, for appellant. A. M. Alexander and R. E. Anderson (Harrison & Mahan, of counsel), for respondent. MACFARLANE, J, This is an action by plaintiff, husband of Fanny C. Davenport, to recover damages from defendant for loss of the services of his wife, and expenses of nurs- ing and treating her on account of personal injuries resulting from the alleged negligence of the defendant in not keeping its streets in proper condition. The charge in the petition is that defendant maintained a sidewalk on the west side of Fourth street in said city, and where that street intersected Washington sti-eet it had undertaken to maintain a cross- ing over Washington street. That on the margin of Washington street, between the end of the sidewalk and the beginning of the cross- ing, a space had been left open for the pas- sage of the surface water, and as a crossing of this water-way large stepping-stones had been planted. That the crossing of this water-way was negligently pemiittei to become "greatly out of repair, so that between the southern terminus of said crossing on Wa.shington street, as the same was laid on the surface thereof, and the nearest stepping stone in said water-way, there was an opening about 26 inches in width and 20 inches deep, with the sides thereof precipitous, with no apron or covering over the same, without protection,* and without any light or signal to indicate danger; so that the same was on, and had been for a long time prior to, said 10th day of November, 1885, not reasonably safe for or- dlnai'y travel, of which said condition of said crossing defendant had notice." The petition further charged that on the 10th of November, 1885, the wife of plaintiff came to the city of Hannibal for the purpose of visiting her mar- ried daughter, then living on the westerly side of said Fourth street, and south of said Wash- ington street. That after dark on the evening of said 10th day of November, 1885, slie, on her way to her said daughter's, started to cross said Washington street at the crossing afore- said, going south, and was wholly unaware of the said condition of said crossing, presuming that the same was on a continuous level, there being no light or signal to indicate dan- ger, when she unexpectedly stepped down and into said opening, and was violently thrown to the ground, from which she receiv- ed serious injuries, making necessary the am- putation of one of her legs, after long suffer- ing and disability. "That by means of the premises the said Fanny C. Davenpoi-t, for a long space of time, to-wit, ever since the receiv- ing of said injuries, has been unable to per- form her ordinary duties as the wife of said plaintiff. That plaintiff has been deprived not onlj' of her services and society, but was put to great expense, and did pay out a large sum, to-wit, the smu of six hundred dollars, in and about the nursing and taking care of his said wife, and for medical attendance on her, and has suffered great distress of body and mind, besides being hindered and damaged in his business on accoimt of the precarious con- dition of his said wife, produced by said in- juries." The answer was a general denial and a special plea of a former trial of the is- sues as to the liability of the city for injuries to Mrs. Davenport in a suit by her against the defendant, in which a judgment was rendered for defendant. No point is made in this an- swer, and no further consideration will be given to it. No question is made as to the sufficiency of the evidence to support the ver- dict. We have read the evidence carefully, and thinlc it tends to prove each issue tendered by the petition, and we will not state the evi- dence in detail. 1 4: * * « * « 2. Complaint is made that the court refused to give instruction 4, asked by defendant. That instruction, in effect, told the jury that, if the damage to plaintiff's wife was caused by a failure on the part of defendant to maintain a proper light in the vicinity of the point at which the defect was permitted to exist, and that defendant had previously kept and main- tained such light, then, unless defendant had actual notice of the absence of such light at the time plaintiff's wife fell, "in time to have enabled it, in the exercise of reasonable dili- gence and attention, to have supplied the same before the said Mrs. Daveniwrt fell, or that on the evening in question the absence, if any, of such light had existed for such a pe- riod of time as to impart such notice to de- fendant, the jury will find for the defendant." We do not think the principle that a city is en- titled to notice of a defect in a street, and a reasonable time in which to make repairs, be- fore it can be held for damages resulting from such defect, applies to an omission of duty of the character here shown. The negligence in failing to maintain a light consisted in a fail- ure to discharge a known duty, and not in a failure to know that a duty was required. De- fendant knew that when the darkness came , the light was needed. The neglect of de- fendant's agent to light the lamp was the neg- lect of defendant itself. The city was not entitled to notice that its agent had neglected his duty. Russell v. Columbia, 74 Mo. 480. 3. It is insisted that the court, by its instruc- tion, given on its own motion, submitted to- 1 Part of the opiuiou is omitted. 348 MUNICIPAL LLIBILITY. the jiiry the question of law as to whether the plaintiff had a cause of action. This is the instruction complained of: "The court, of its own motion, on plaintiffs behalf, instructs the jury tliat, although aggravation of Fanny C. Davenport's alleged injuries, if any, by the negligence, if any, of said Fanny C. Daven- port or of her professional attendants, cannot be allowed to increa.se the estimate of plain- tiff's damages, if any, yet, if the jury find that at the time the alleged accident occurred the plaintiff, under the instructions herein, be- came vested with a caiise of action against defendant therefor, no such subsequent ag- gravation, if anj-, of her said injuries can take away plaintiff's cause of action, or authorize a verdict against plaintiff." The other instruc- tions given by the court fairly and fully set out the facts which it was necessary should have existed in order to make a cause of ac- tion in favor of plaintiff's wife. Now, if for the court to say that, under the instructions given, Mrs. Davenport "became vested with a cause of action" at the time of her injury, is not a submission to the jury of the legal ques- tion whether she had a cause of action, the juiy, by the other instractions, ai'e clearly told what facts would constitute a cause of action; and by this instruction they are told that, if such cause of action accrued in the first place, it was not defeated by any subsequent negli- gence of plaintiff's wife or of her professional attendants. 4. Objection is made to the first instruction given for plaintiff, the part objected to being as follows: "If the jury find from the evidence that said crossing was not so reasonably safe for ordinary travel as aforesaid, at the time of the alleged injury, to-wit, on the night of the 10th day of November, 1885, by reason of an opening between the stones in said crossing erected for and used as stepping-stones there- in; and further find that the defendant had no- tice of such defect in such crossing, or that the same had existed for a time prior to the time of said alleged injury, reasonably suffi- cient to have enabled the defendant to have ascertained the fact, and remedied said defect, and further find that on the night of said day last aforesaid the said plaintiff's wife, Fanny C. Davenport, while walking over said crossing, and while in the exercise of ordinary care and attention, fell into said opening, and was thereby injm-ed, and that her said fall and in- jui-y was caused by said alleged defect in said crossing, then they must find for said plain- tiff'." The objection to this instniction is that, while it purports to cover the whole case, it is so framed as to exclude from the consideration of the jury the fact as to whether a street lamp was maintained in the vicinity of the ac- cident at the time of its occurrence. We do not think the instruction open to the criticism. The proximate cause of the injury was the de- fective sti'eet, and not the absence of a light. Maintaining a light 75 feet away, as had been done, would not have excused defendant for j suffering the defect in the sti'eet to exist. | If a proper light had been there, it might have warned Mrs. Davenport of the danger, and she might have avoided it. The presence or absence of a light only bore on the question of the care used by Mrs. Davenport. If she used due care, and was still injured, the defendant would have been liable, though the Ifght had been burning. The insti-uction required the jury to find that Mi"S. Davenport was in the "exercise of ordinary care and attention" when injured, before they could find for plain- tiff. Loewer v. Sedalia, 77 Mo. 445. We think the whole case was very fairly submit- 1 ted to the juiy under the instructions. 5. Complaint is made that the verdict is so excessive as to indicate prejudice and passion on the part of the jury. The evidence shows that as a result of the injury the bones in one of Mrs. Davenport's legs became diseased, and finally, after two years of care and nursing and attention of physicians and surgeons, the limb was amputated. Plaintiff was required to pay large sums for doctor's fees, for med- icine, and for nursing, besides being required himself to devote much of his own time to nursing and earing for her, to the neglect of hjs private business. This continued for three years fi-om the time of the injury. We cannot say, as a matter of law, that tlie damage al- lowed under the verdict was excessive. It was a question properly submittetl to the jury. Judgment affinned. All concur. NOTICE OF DEFECT. 34^ TUCKER et al. v. SALT LAKE CITY. (37 Pac. 261, 10 Utah, 173.) Supreme Court of Utah. June 12. 1804. Appeal from disti-lct court, Salt Lake coun- ty; before Justice C. S. Zano. Action by Eliziboth B. Tuclcer and hor hus- band against Salt Lake City. Plaintiffs ob- tained judgment. Defendant appeals. Af- firmed. E. D. Hoge, for appellant. Frank B. Steph- ens and Benner X. Smith, for respondents. MERRITT, C. J. This action was brought by plaintiff and her husband, who has since died, against the city of Salt Lake. The complaint alleges that on or about the 1st day of August, 1800, in front of the livery stable formerly known as McKimmin's sta- bles, on the north side of Third South street, between Main and West Temple streets, the said city made, constructed, and caused to be constnicted and put down an iron, glass and cement sidewalk, a portion of which was negligently, willfully, and knowingly con- structed on a sharp incline, making a steep and slippery descent, dangerous, etc.; that plaintiff, when passing along said sidewalk, was unaware of danger, stepped on said in- cline, without fault or negligence on her part, was thrown upon the sidewalk, and broke her arm, etc., for which damages were claimefl in the sum of $4,500. The an- swer denied all the allegations of the com- plaint. A trial was had before the court and a jury. The jury rendered a verdict in favor of plaintiff for the sum of $2,000, and judgment was rendered by the coiu-t in favor of plaintiff for said sum and costs. Defendant moved for a new ti'ial, which was overruled, whereupon defendant appealed, and assigned as error the failure of the court below to give certain instiiictions asked by defendant, and also excepted, to the charge given by the court to the jiu-y. From a careful examination of the rec- ord, we find no error; the charge of the court below was full, and stated correctly the law of the case. The court charged the jury "that the defendant had put in an answer de- nying the allegation as to negligence on the part of the city, and the burden of proof is on the plaintiff to show by a preponder- ance of evidence the negligence charged in the complaint; tliat it was the duty of the city to use all reasonable care to keep and maintain the sidewalk in a rea.sonably safe condition to persons passing upon it, and If the city knowingly failed to do so it is chargeable with negligence. Though there may not be any actual notice to the city, or any of its authorized officers whose duty it is to repair the sidewalks and remedy danger- ous places, 3'et if you believe from a pre- ponderance of evidence that the danger had i-emained there any length of time; that the city oJlicors whose duty it was to examine sidewalks and repair them. In the use of rea- sonable diligence, should have discovered the danger,— then you have a right to infer notice to the city." The court further instructed the jury that if they believed, from a pre- ponderance of the evidence, that the city per- mitted this dangerous sidewalk, as alleged in the complaint, to remain in the street, after the cit3' officers whose duty it was to repair the streets knew of it, or should have known of it in the use of reasonable diligence, and if they fiu-ther believed that the plaintiff, without fault on her part, and. with the use of due care, while walking along the street, stepped iipon the incline, as described in the complaiat, and was thrown down and suf- fered injury as alleged, then that they should find for the plaintiff. The court fm-ther charged the jm-y tliat it was the duty of the plaintiff to use ordinary care, in passing along the sti'eet, to see and observe any dan- gerous places in the street, and if they be- lieved, from a preponderance of the evidence, that she was guilty of negligence in stepping on such a dangerous place,— "if you believe from the evidence it was,— which contributed to the injui-y, then she cannot recover." The court further charged the jury that it was their province to determine, from all the evidence, in the first place, whether the dan- ger existed, and whether the city had no- tice of it; as to whether it was dangerous- to persons walking along with ordinary care; and as to whether the plaintiff used reason- able care. These charges, we think, fully and fairly stated the law of the case, and were quite as favorable to the defendant as the law would justify. We have examined the proposed instruc- tions asked by defendant and which were not given by the coiu-t, and find that their substance was already given by the comt in its charge, with the following exception, viz.: The defendant asked the court to charge the jury that, "if you find from the evidence that the sidewalk where the plaintiff Elizabeth Tucker, was injured, was of sufficient width, and in such safe condition, that the said plaintiff, Elizabeth Tucker, by the use of ordinary care, could have avoided the injury complained of, you must find for defendant," —which the court refused to give, and which ruling was excepted to by defendant, and who now assigns the same as error. The court properly refused to give said instruction, because it was an assumption on the part of appellant that as a matter of law the whole width of the sidewalk need not be in good condition, and that a city is not compelled to keep the whole width of the sidewalk in good condition. That is not the law. "Where a city opens a sidewalk to public travel, it is bound to keep every portion of it in repair." Roe v. City of Kansas (Mo. I Sup.) 13 S. W. 404; Morrill, City Neg. 67; Brusso V. City of Buffalo, 90 N. Y. 679. All persons using streets and sidewalks have the right to assume that they are in good and -350 MUNICIPAL LIABILITY. safe condition, and to rebate their conduct . on that assumption- Kenyon v. City of In- dianapolis (Ind.) 1 Wils. 139; Gibbons v. Village of Phoenix (Sup.) 15 N. Y. Supp. 410; Hopkins v. Ogden City, 5 Utah, 390, 16 Pac. 596. The city engineer of the defendant cor- poration testified as follows: "I saw the side- walk where the plaintiff fell, when being con- structed. I considered, the slope too gi*eat for safety, and know it has remained in the same coaditioii as when constructed." The defendant offered no testimony In the case. We consider that the defendant corporation was guilty of gross negligence. The valid- ity of a verdict by nine jurors has akeady been sustained by the com-t, and we adhere to our former ruling. There is absolutely no merit in this appeaL The judgment is af- firmed. MINER, SMITH, and BAETCH, JJ., con- cur. NOTICE OF DEFECT. 351 HBMBLING v. CITY OF GRAND RAPIDS. (58 N. W. 310, 99 Mich. 292.) Supreme Court of Michigan. March 20. 1894. Error to suporior court of Grand Rapids; Edwin A. Burlingame, Judso. Action by Ella R. Hem1)ling against the city of Grand Rapids. Judgment for plain- tiff, and defendant brings error. Reversed. Wm. Wisner Taylor, for appellant. Fran- cis A. Stace, (McGaiTy, :McKnight & Jud- kins, of counsel,) for appeUee. McGRATH. C. J. Plaintiff seeks to recov- er for injuries resulting from a fall upon an alleged defective sidewalk. The testimony tended to show that some of the stringers were decayed, but the planking was in a good state of preservation. The planks were 2 inches in thickness, and some 12 or 14 feet in length. They extended several inches beyond the curb. There was evidence tend- ing to show that just before the injury a horse had been tied to one of these planks, and that just as the plaintiff came along the Tiorse jerked one of these planks out of place, and that plaintiff stepped into the aperture, and fell. The court instructed the jury as follows: "Municipal liability for injuries aris- ing from defects in public ways is the same, so far as concerns innocent persons, whether the condition of the way is due to wear and decay or to the misconduct of individuals in tearing it up; the obligation to repair speedily is the same." Tliis instruction was ,' erroneous. If the plank was displaced, that displacement was immediately before the ac- cident. There was no showing made of ac- tual notice to the municipality, and no pre- tense that a reasonable time to repair had elapsed; much less had sufficient time elapsed to operate as constructive notice. In any event, the use of the word "speedily" was improper, and was calciilated to mislead the 1 Jury. The court further instructed the jury, that "the defect may exist and be unknown, and the city still be liable, on the ground that the prime fault may consist in being igno- rant; it being the clear principle that a want of knowledge may, under certain cir- cumstances, imply a want of due care. The general duty of the city is to exercise, through its officers, a reasimable supervision over its streets and sidewalks, and, within fairly practicable limits, to be watchful of their condition and trustworthiness, and to see that they are kept in a reasonably safe condition for pul)lic travel. Its officers can- not ignore tlie dictates of common sense and lessons of ordinary experience, and refuse to see and refuse to heed what others see and what others understand. Such means should be employed by the officers from time to time in making their examinations as usual- ly disclose the effects to be expected." This instruction was erroneous in that it assumed that it was the duty of the mimicipality to make such an inspection of sidewalks as would disclose latent defects, if they existed. Respecting the ordinary sidewalks, there is no such duty of substructm^e inspection as is imposed in case of bridges or other elevated ways. In the absence of actual notice, mu- nicipalities are only liable for such defects in sidewalks as are apparent, or are suggest- ed by appearances, or which are disclosed by a test in the natiure of the ordinary use of such walks. The coiu-t further instructed the jury as follows: "If, from a fair preponderance of evidence in this case, you believe that, up to and near the time of this injury, the side- walk where it occurred was in a reasonably safe condition for the purposes for which it was laid, and that, on account of the sudden removal of a plank in such reasonably safe sidewalk, the plaintiff received injury, no matter whether the plank was so removed by a horse or individual, in such case the city would not be liable; but if for such length of time that the city had actual or constructive notice, and time sufficient to re- pair it, the sidewalk where the injvu-y oc- curred had not been in a reasonably safe con- dition, and that, on account of such unsafe condition, and neglect to repair or make it reasonably safe for travel, the plaintiff was injiu-ed, then and in that case the city would be liable, if tlie plaintiff at the time was ex- ercising reasonable care and prudence in passing along said sidewalk. If you find that the injury to the plaintiff occurred on accoimt of the displacement of a plank by a horse fastened to it, this might not of itself excuse the city from liability, but it is left for you, imder all circumstances, to deter- mine whether or not the sidewalk was rea-. sonably safe for public travel. And if you find it was not so reasonably safe, and that the city had timely notice of its unsafe con- dition, and that the plaintiff, while in the ex- ercise of reasonable care on her part, was in- jured, and that unsafe condition of the walk was the approximate cause of her injury, then it matters not in what manner the plank was actually displaced." The mu- nicipality was in no sense responsible for the hitching of the horse to the plank in the walk, nor was the city bound to anticipate such use; and if, while plaintiff w'as ad- vancing upon this walk, a horse hitched to one of the planks suddenly jerked the plank from its place, and plaintiff stepped into the aperture made thereby, and fell, receiving the iujiiries complained of, the defect in i! <■ walk cannot be said to have been the pri- mary cause of the injury, and plaintiff was not entitled to recover. If this plank had been displaced by some other pedestrian in the use of the walk, or if this displacement had not been accounted for, and the condi- tion of the walk had been shown to be such that such disarrangement was liable to oc- cvu" in the ordinary use of the walk, a dif- 352 MUNICIPAL LIABILITY. ferent case would have been presented. It certainly cannot be contended that, if par- ties had been engaged in tearing up this walk, the city would have been liable; yet the force employed was directly in that line. The judgment is therefore reversed, and a new trial granted. LONG, GRANT, and HOOKER, JJ., con- curred with McGRATH, C. J. MONTGOMERY, J. I concur in the result reached by the chief justice, but I do not think the second instruction open to just criticism. NOTICE OF DEFECT. 353 HUNT V. CITY OF DUBUQUE. (G5 N. W. 319.) Supreme Court of Iowa. Dec. 12, 1895. Appeal from district court, Dubuque coun- ty; Fred O'Donncll, Judse. Action at law to recover for personal In- juries allowed to have been caused by ne^- li^ence on the part of the defendant. There was a trial by jurj-, and a verdict and judg- ment for the plaintiff. The defendant ap- peals. J. E. Knisbt and W. J. Knight, for appel- lant. Logueville & McCarthy, for appellee. ROBINSON, J. On the 11th day of April, 1893, the plaintiff, while walking on a side- walk in a street of the defendant, fell, and received the injuries of which he complains. He alleges that his fall was caused by de- fects in the walk, of which the defendant had notice, and that it was negligent in not repairing it and making it safe for travel. The defendant denies negligence and lia- bility on its pai't. The juiT retui'ned a ver- dict in favor of the plaintiff for $-4,000. A motion for a new trial having been filed, the court ordered that it be sustained, unless the plaintiff should take judgment for $3,- 200. He elected to take judgment for that amount, and it was so rendered. 1. The appellant complains of the ruling of the court in permitting a witness, named Chewning, to state the condition of the walk at the time of the trial. The court had rul- ed that the condition of the walk after the accident occurred was immaterial, except- ing as it was shown to be the same then as it was at the time of the accident. The witness named described the condition of the walk as he found it an hour or two after the accident, and was then asked: "The place where Hunt fell, has that been chan- ged?" An objection was overruled, and the witness answered: "Yes, sir; I thiulc tliere is a new board put in there." He was then asked: "Well, how is the sidewalk as to being in the same condition now that it was at the time you examined it? Is it or is it not?" An objection to this question was also overruled, and the witnes.s answered: "It is in a better condition than it was then." It will be noticed that neither ques- tion called for any answer but "Yes" or "No," and what was said more than that was not called for bj' the question, and was not in any manner attacked. So far as the answers were required by the qucslidus, they stated a fact Avhich was not in dispute. Several witnesses testiiied witliout objec- tions — one of them for the defendiuit and at its instance — that the walk was repaired within a short time after the accident oc- curred. Hence the defendant could not have been prejudiced by the niliugs to which it objects. ABB.CORP.— 23 2. The appellant complains of testimony given by Mrs. Dickenson in regard to the condition of the walk both before and after the accident. She lived in the house next to the sidewalk in question more than three years, and was familiar with its condition during that time. She moved from the house about six months before the accident occurred, but noticed its condition after she moved, and at about the time of the acci- dent. She described the condition of the \^alk the year before the accident, and stat- ed, in effect, that its condition was subtjtan- tially unchanged at about the time of the accident. This was competent evidence to show the actual condition of the walk, and that it had been in a defective and danger- ous condition for such a length of time tliat the defendant should be charged with knowledge of the defect before the accident occurred. The witness was also permitted to state that she had seen people stumble at the defective part of the walk, and that she saw an old gentleman stop and push the board down with his cane. The testimony tended to show the condition of the walk, and was material for that purpose, when taken with other evidence, to show that the condition continued until the accident oc- curred. Smith V. Des Moines, 84 Iowa, GS8; 51 N. W. 77; District of Columbia v. Armes, 107 U. S. 519, 2 Sup. Ct. 840; Bloomington v. Legg (111. Sup.) 37 N. E. 690; Grundy v. City of Janesville (Wis.) 54 N. W. 108(5; Al- berts V. Village of Vernon (Mich.) ,55 N. W. 1023. We do not find any reversible error on rulings on the admission of evidence. 8. The petition alleges that the defendant "had notice of the defective and dangerous condition of the sidewalk at and before the happening of the accident," and "that, not- withstanding such notice, the city negli- gently allowed the same to be out of proper repair, and made no effort to make the same safe for travel." The charge to the jury, in eft'ect, instructed them that if the plain- tiff, without fault on his part, had sustained damage by reason of the defective condi- tion of the walk, he could recover if the de- fective condition "had existed for such a length of time before the alleged accident as that the defendant, through its officers, should have known of such condition"; also, that "the plaintiff" is not required to prove actual notice to the city of such defect. If the sidewalk became out of repair to such an extent as to render it unsafe for travel, and was permitted to remain in such condi- tion for such length of time, and was so open and apparent and visible to the pass- ers-by, as to be notorious, it may be pre- sumed by the jury that, from such notoriety, the proper officer of the city did in fact know of it, or with proper diligence might have known of this defective condition, in time to have repaired it before the accident complained of." The appellant complains of these and other portions of the charge 354 MUNICIPAL LL\BILITY. which authorized the jury to find against the defendant, even though it had no actual notice of the defective condition of the walk, on the ground that the petition only charges actual notice, and that there can be no recoveiT unless that is shown. We do not think this claim can be sustained. The 'petition charges notice without stating whether it was actual or coustinictive, and proof of either would sustain the averment. It is Avell settled that the notice need not be actual. Montgomery v. City of Des Moines, 55 Iowa, 101, 7 N. W. 41.'1; Rice v. Same, 40 Iowa, Go8. 4. The evidence tends to show that the plaintiff has sustained serious and perma- nent injuries, but there is much conflict in the evidence in regard to their cause and ex- tent. It appears that, about fifteen years before the accident in question, he was in- jured by the explosion of the boiler of an engine, and it is insisted that his present condition is caused chiefly, if not wholly, by the injuries he then received, and that the amount of recovery is excessive. The na- ture and extent of the injuries of which the plaintiff complains, and their cause, were matters for the jury to determine. The evi- dence authorized them to find that, at the time of the accident, he had almost wholly recovered from the effects of the explosion; that excepting an injury to one hand, which did not seem to affect his capacity to labor in his business, which is that of a station- ary engineer, he had been sound, and, ex- cepting for short periods of time, well, for 10 years; that the injuries of which he com- plains were caused by the accident in ques- tion; and that they have caused much loss of time and great suffering; and that they have permanently impaired his ability to work. Hence we cannot say that the amount which he has recovered is exces- sive. 5. Other questions have been discussed by counsel. Some are not of sufficient impor- tance to require specific mention, and oth- ers are immaterial in view of the conclu- sions we have announced. There does not appear to be any sufficient ground for dis- turbing the judgment of the district court, and it is affirmed. NOTICE OF DEFECT. 855 WEST V. CITY OF EAU CLAIRE. (61 N. W. 313, 89 Wis. 31.) Supreme Court of Wisconsin. Dec. 11, 1894. Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge. Action by Louisa West against tlie city of Eau Claire for personal injuries. There was a judgment for plaintiff, and defendant appeals. Affirmed. Geo, 0. Teall, for appellant. T. F. Frawley and A, C. Larson, for respondent. XRW^L\N. .T.i * * * * ♦ * The evidence on the part of the plaintiff tended to prove that at the place of the ac- cident was a ridge of snow and ice along the track of the travel on the sidewalk, caused by the ti'avel over the snow, which had been allowed to remain and accumulate there; that such ridge was uneven and slippery; that beside and near the ridge was a hole in the plank of the sidewalk; that at the time of the accident the plaintiff's attention was momentarily diverted; that she slipped, her foot went through the hole, and was held there until she fell in such a way as to break her ankle; and that this hole had been there from the previous summer. The evidence tended to establish all the facts necessary to entitle the plaintiff to recover. It was the undoubted province of the jury to determine ■wiiether it did establish such facts. This court has held repeatedly, and recently in Koch V. City of Ashland (decided at the last assignment, and not yet officially reported) €0 N. W. 990, that such an accumulation of snow and ice upon a sidewalk may consti- tute a defect for which the city may be lia- ble, while such a hole in a sidewalk may unquestionably be such a defect The mo- mentary diversion of the plaintiff's attention could not be contributory negligence, as mat- ter of law. The case was not so clear on ei- ther branch, upon the evidence, as to call upon the court to withdraw it from the jury. These were questions peculiarly within the province of the jury. It was not error to deny the motion for a nonsuit. The defend- ant offered no evidence. The case was sub- mitted to the jury for a special verdict. The jury found specially that the hole in the sidewalk was a defect, and caused the acci- dent; that the defect had existed for so long a time that the defendant should have known of and repaired it; and that no negligence on the part of the plaintiff contributed to pro- rw, I CO 1 Part of the opinion is omitted. duce the accident It cannot be held that there was no evidence to support the ver- dict upon either point. On the contrary, it was fully suflicient on each point. But the defendant claims errors in several instructions given by the court to the jury. As to the question, in what did the defect con- sist? the court instructed as follows: "Now, if you consider the snow was allowed to ac- cumulate and did accumulate there. If you consider that was a defect, of course you will say so; if the evidence satisfies by a preponderance of such evidence that there was a hole in the sidewalk, of that charac> ter, size, and condition, whioh rendered the sidewalk unsafe for ti'avel, why then you will state, of course, it was the hole in the sidewalk, if the evidence should satisfy you that the hole was thei-e at the time." This seems to be unobjectionable. Either the ridge or the iiole might be so serious a defect as to sustain plaintiff's action. Both togeth- er, or the hole alone, might be sutficient cause to produce plaintiff's accident. The court also instructed: "If you find that she would not have fallen, while carefully walking upon this ice, unless her feet had gone into some hole or defect in the side- walk, then you will answer that it was caused by her slipping on the ice, primarily, and a foot slipping upon the ice into a de- pression in the sidewalk, if the evidence so satisfies you." And so the jury found. The objection made to this instruction, and to the verdict upon this question, is that there is no direct or positive evidence that the plaintiff's foot went into a hole in the side- walk at all. No one saw iier foot in such a place, and plaintiff could not testify posi- tively just how her ankle come to be broken. The hole was there; the foot was, some- how, held; the ankle was broken. It would be a legitimate inference, and not "mere conjecture," for the jury to find that the foot went into the hole, and was held there, and that that was the manner of the acci- dent The defect which the jury found to be the cause of the accident tiad been in the side- walk since the previous summer. It was not error for the court to instruct the jury that that was sufficient time in which the city should have learned of and repaired the defect The evidence Is sufficient to support the verdict The instructions contain no error, at least no important error. There was no error in denying the defendant's motion to set aside the verdict The judgment of the circuit court is affirmed. 856 MUNICIPAL LIABILITY. CITY OF WABASHA v. SOUTHWORTH. (55 N. W. 818, 54 Minn. 79.) Supreme Court of Minnesota. June 29, 1893. Appeal from district court, Wabasha cotin- ty; Start, Judge. Action by the city of Wabasha against Asahel D. Southworth to recover the amount plaintiff was reqtiired to pay one Schinzel for injuries sustained by a defective sidewalk along defendant's premises. Plaintiff had judgment, and defendant appeals. Affirmed. J. F. McGovern and Gotild & Snow, for ap- pellant. Jolin W. Steele and Lloyd W. Bow- ers, for respondent. MITCHELL, J. If the findings of fact were justified by the evidence, there is noth- ing new or doubtful in the law governing this case. In order to entitle the plaintiff to recourse on the defendant for the money which it had paid in settlement of the claim of Schinzel for injuries sustained by reason ' of the defective sidewalli, it was necessary I to establish— First, that the city was liable to Schinzel by reason of negligence in the ' performance of its duty to the pubnc to Keep its streets in safe condition; and, second, that defendant was also Uable to Schinzel by reason of his negligence in constructing or maintaining the nuisance in the street which caused the injury. If these two facts were established, then the right of the city to re- course against the defendant is not, and could I not successfully be, denied. There is nothing in the point that the mode of procedure prescribed by the city charter (Sp. Laws 18S9, c. 13, subc. 7, § IG) is ex- clusive, and that the city's only remedy was to let the claim of Schinzel go to judgment against both it and Southworth, pay the judg- ment, and then enforce it against Southworth. This, like similar provisions in other charters, is designed to aid and not to hinder cities in dealing with such claims, so that the liabil- ity of a third party may be determined and enforced in the same action in which that of the city is determined and enforced. Tlie only effect of the city's settling the claim without such judgment was that the ques- tions upon which the liability of Southworth depends were left open. See Jones v. City of Minneapolis, 31 Minn. 230, 17 N. W. Rep. 377; Clark v. City of Austin, 38 ISIinn. 487, 38 N. W. Kep. 615; Mill Co. v. Wheeler, 31 Minn. 121, IG N. W. Rep. 698. -. The coiH-t found that the city might, by the / exercise of onlinary care, have Ivuown of the imsafe condition of this sidewalk in time to repair it before the accident occurred. This finding, which is not assailed, settles the \ question of the city's liability to Scliinzel. Passing over the finding to the effect that I tills hatchway in the sidewallc was originally constructed in a negligent and imsafe man- f ner, (which we think was justified by the 1 evidence,) the court further found that the I defendant knew, or by the exercise of or- ;/ dinary care might have known, of the exist- r ence and character of this hatchway and I covering at the time he purchased the prop- / erty; also, that for more than a year prior ( to the accident he had negligently suffered and permitted tills covering or trapdoor over / the hatchway to become decayed and un- securely fastened and supported, whereby ) the sidewalk over the excavation underneath I became and was unsafe for ordinary travel. That the first part of this finding was sup ported by the evidence is beyond question. Indeed, we think tlie evidence was stich as tO' require a finding that defendant had actual knowledge of the existence and character of this hatchway as long ago as the date of hl& purchase of the undivided half of the abut- ting property in 1873. Nor in our opinion is there any more room for doubt as to the sufficiency of the evidence to justify the lat- ter part of the finding. The defendant main- tained this hatchway in the street by anow- I tng it to remain there, with knowledge of itsi existence. The fact that he had not used' it for some years is immaterial, and the claim / that he had relieved himself from responsi-/ bility by abandoning it is without merit.' Having been constructed in the street for the i convenience of his abutting property the I only way he could relieve himself from the I duty of keeping it in repair was to restore the street to its original condition by filling | up the excavation and replacing the string- I ers under the sidewalk. Nichols v. City of / Minneapohs, 33 Minn. 430, 23 N. W. Rep. 868. The negligence of the defendant in the t maintenance of this hatchway or cellar way * we place upon his lack of ordinary care in not taking reasonable precautions to keep it in safe condition, and not upon the ground Luat aU excavations, basement or cellar ways, scuttles, and the lUce, made or constructed in the street without afiirmative municipal license, are per se unlawful, and nuisances. > amerous reported cases, both in this coim- ^ try and England, show that it has been as- j sumed, time out of mind, in accordance with a custom of long standing, that, even in the ' absence of any express hcense, this is a le- I gitimate use of the street for the convenience ■ of abutting property, provided it be exercised j in a proper and safe manner, and conse- quently that the property owner is not an ; absolute insurer agaiust all injuries resulting from the existence of such tilings in the street, but is only responsible for negligence I or want of reasonable care in their constnic- j tion or maintenance. This we deem the cor- i rect view of tlie hiw on this subject. Seej Fisher v. Thirkell, 21 Mich. 1. But such struftiu'es having been placed in I the street for the convenience of the abutting 1 property, it stands to reason mat, as between ; tlie property owner and the city, the duty of ' maintaining them in a safe condition de- ' volves on the former. Defendant was bound, in the exercise of ordinary care, to take no- tice of the fact that wood will decay. Lan- LIABILITY FOR ABUTTER'S NEGLIGENCE. 357 dru V. Lund, 38 Minn. 538, 38 N. W. Rep. ODD. The fact that the pUmks forming the cover of this hatchway showed no signs of decay on the upper side did not justifj' the defendant in assuming, without inspection, that they and tlio stringers on wliich they rested liad not, in the IS years or more tliat they had been there, become rotten under- neath, where they were excluded from the sun and subjected to constant moisture. Leaving these planlcs, which were a part of a public sidewalk, over an excavation hve or six feet deep, with the middle stringers of the sidewalk cut away, the only support of the plauks being at the two ends, the sui)- port at the inner end next the building being only about an inch in width of a perishable wooden stringer, and failing to inspect them for all these years, to ascertain their condi- tion, constituted a state of facts that abun- dantly justified the court in finding that de- fendant was guilty of negligence. The de- fendant, however, sought to escape liability by attempting to show that he had rented the premises to certain tenants, and that they, and not he, wei"e responsible for the mainte- nance of this hatchway and cover; and the refusal of the court to make a finding as to the possession and occupancy of the premises by these tenants before and at the time of the accident is assigned as error. Without considering the points that the pleadings raised no such issue, and that according to the findings of the court this cover to the hatchway was already in an imsafe condi- tion before the date of the lease to the ten- ants, it is enough to say tliat there was not a particle of evidence that the lease included' the cellar or the hatchway. There is no merit in defendant's seventh assignment of error. Of coui'se, the city was not liable to Schinzel for his attorneys' fees as such, but the $150 La this case was paid to his attorneys as part of the amount which the city had agreed with him to pay in set- tlement of his claim against it for damages. In legal effect, it was paid to Schinzel, and as long as it was paid for his benefit, and in settlement of his claim against the city, it was wholly immaterial to whom the money was actually paid over; the aggregate amount paid out in all being within the amount for wliich the city and the defendant were liable to him. As we do not discover any error in iiie record, the judgment appealed from must ]>Q atfirmed. 358 MUNICIPAL LIABILITY. LAMBERT v. PEMBROKE. (23 Atl. 81, 66 N. H. 280.) Supreme Court of New Hampshire. Merrimack. July 25, 1890. Exceptions from Merrimack county; be- fore Justice Allen. Case for injuries on a highway. At the close of plaintiff's evidence defendant mov- ed for a nonsuit, and the motion was grant- ed. Plaintiff excepts. Burnham, Brown & Warren, for plaintiff. Chase & Streeter, for defendant , BLODGETT, J. Sidewalks, when a part /of the public highways, must be properly I constructed and guarded, and kept in suit- l able repair, (Hall v. Manchester, 40 N. H. 410, 414;) and, there being no provision in the statute as to damages which limits the liability of towns and cities to open defects, it extends to all defects which render them \ unsuitable for the travel thereon, (Gen. Laws, c. 75, § 1; Burt v. Boston, 122 Mass. 226.) Among such defects are those result- ing from natural decay or faulty construc- tion. Howe V. Plainfleld, 41 N. H. 1.35, 138; Bard well v. Jamaica, 15 Vt. 438, 442; Alex- ander V. Mt. Sterling, 71 111. 3G6, 369; Rapho V. Moore, 68 Pa. St. 404. And it is no de- fense that the highway was built by the abuttor; for, when a town permits a third person to construct a highway, it is liable for its defects the same as if it had been built by the town itself. Willey v. Ports- mouth, 35 N. H. 303, 313; Saulsbury v. Itha- ca, 94 N. Y. 27. But when the immediate cause of the injury to the plaintiff is such that the town could not have had notice of it, or could not, in the exercise of reason- able care, have prevented or remedied it be- fore the accident, the town is not liable. Palmer v. Portsmouth, 43 N. H. 265; Cham- berlain V. Enfield, Id. 363; Clark v. Barring- ton, 41 N. H. 44; Hubbard v. Concord, 35 N. H. 52; Howe v. Plainfleld, supra; Johnson V. Haverhill, Id. 74. The immediate cause of the injury to this plaintiff was the sinking of the sidewalk under her feet, which result- ed from the breaking of the wooden planks in the cellar wall of the adjacent building, either from natural decay or from native weakness, whereby the earth in front of them fell into the cellar, and thus left the briclv part of the walk without support be- neath, although up to the moment of the injury it was even throughout, and apparent- ly firm upon the surface. With these con- ditions existing at the time of the injury, the sidewalk must be regarded as defective, within the meaning of the statute making towns liable for defects in highways; and the remaining question is whether there was any competent evidence tending to show the want of reasonable care on the part of the defendant in not preventing or remedying the defect before the accident. Ordinarily, the question of reasonable care is a question of fact for the jury, and especially in cases for damages received upon a highway; and no reason is perceived why it should not have been so treated in this case, inasmuch as the defect was not one of which the de- fendant could not have had notice, and there having been upon the question of their cause competent evidence tending to show that the planks were originally unsuitable and unsafe for the use to which they were put, or might have reasonably been expected to shortly become so through natural causes. As matter of law, it cannot properly be de- termined upon this evidence whether the de- fendants are or are not chargeable with the want of reasonable care. It is for the jury alone to decide whether, taking into account the cause of the defect, and all the attend- ing circumstances, the fair inference from the evidence is that the defect is one which the town might and should, in the exercise of reasonable care, have prevented or reme- died before the accident; and we are there- fore of opinion that this question should have been submitted to them, and the motion for a nonsuit denied. Exceptions sustained. ALLEN, J., did not sit. curred. The others con- CONTKIBUTORY NEGLIGEXCE OF TEIISON INJURED. 359 OWEN V. CITY OF FT. DODGE. (67 N. W. 281.) Supreme Court of Iowa. May 1(1, 1S9G. Appeal from district court, Webster coun- ty; S. M. Weaver, Judge. Action at law to recover damages for per- sonal injuries received by plaintiff by reason of a defective sidewalk or crossing in the defendant city. There was a trial to a juiy, verdict and judgment for plaintiff, and de- fendant appeals. Affirmed. Blake & Mitchell and Botsford, Healy & Healy, for appellant. Yeoman & Kenyon, for appellee. DEEMER, J. On the evening of the 14th day of October, 1S92, the plaintiff, while at- tempting to pass over a plank street crossing In the defendant city, stepped between the boards there laid, and received the injuries of which she complains. She alleged that the crossing on which she was injured was at the corner of Cass and Locust streets, be- ing the southeast corner of block 11 in Mor- rison and Duncombe's addition to the city, at the southwest corner of Cass at its intersec- tion with Locust street, and on the north side of Locust street; that the crossing, as originally constructed, was defective, iu that an open space of about one foot was left be- tween the planks, which were laid length- • wise across a ditch or gutter in the street; and that the crossing had remained in this defective condition, with the knowledge and , consent of the city authorities, for more than ; four months prior to the accident. She also ' averred that she was free from negligence , contributing to her injury, and she asked ' judgment for $9,000. The defendant, for ; answer, denied all allegations of the petition, : and further pleaded as an affirmative de- \ fense that the accident happened at the i southwest corner of block 11, and on the i north side of Tx)cust street, and at the north- ! west corner of the intersection of Cass and ' Locu.st streets in the city of Ft. Dodge; and i that no notice, such as required by section 1, i c. 25, Acts 22d Gen. Assem., has been served : upon the defendant. The case was tried to ! a jury, which returned a verdict for plaintiff 1 in the sum of $2,rH>0, upon which judgment : was rendered, and this appeal followed. 1 1. The first matter called in question by \ appellant's counsel relates to the sufficiency i of the preliminary notice given by plaintiff. ■ The statute referred to by defendant in its ' answer is as follows: "In all cases of per- ; sonal injury resulting from defective streets i or sidewalks, or from any cause originating j in the neglect or failure of any municipal coi^oratiou or its officers to perform their duty in constructing or maintaining streets or sidewalks, no suit shall be brought against the corporation after six months from the time of the injury unless written notice specifying the place and circumstan- ces of the injury shall have been served up- on such municipal corporation within ninety days after the injury." This action was commenced more than six months after the injury, and plaintiff served a notice upon the defendant, iu which she stated that she received her injuries "while walking along the sidewalk on the west side of Cass street and attempting to cross Locust at the south- west corner of Cass at its intersection with Locust." Now, it appears that Locust street runs east and west, and Cass north and south, through Morrison and Duncombe's addition to the defendant city; that blocks 4 and 11 are immediately north of Locust, and 12 and 3 south of it, and that blocks 3 and 4 are immediately east of Cass, and 11 and 12 are immediately west The follow- ing plat will explain the situation: Street /- N fill _ . ^c X.ac uLSt "BeTYvVavlt btrttt 1 r 1 r The appellant contends first that the no- tice locates the place a block away from where the injury occurred, and also insists that plaintiff' claims the spot to be at three different places, to wit. the southeast cor- ner of block 11, northwest corner of Cass and Locust streets, and the southwest cor- ner of Cass and Locust streets. With refer- ence to the first contention, it appears from a plat attached to defendant's abstract that the southeast corner of block 11 is at the intersection of Cass and Walnut streets, but appellee has filed an amended abstract, from which it appears that this is an error, and that the corner is at the intersection of Cass and Locust. This amended abstract is not denied, and we accept the statements there- in made and the plats attached as true. We also find, after a close examination of the record, that the plaiutift" has not at any time contended or charged that the accident oc- curred at the northwest corner of Cass and Locust streets. The only question which re- mains, then, is, is the notice which says that the accident occurred "while plaintiff was passing along the sidewalk on the west side of Cass street, and as she attempted to cross Locust at the southwest corner of Cass street at its intersection with Locust," suffi- cient? It will be observed that the state- ment is not that the accident happened at the southwest corner of the intersection of -360 CONTRIBUTORY NEGLIGENCE OF PERSON INJURED. Cass and Locust streets, which would un- doubtedly mean a point at the northeast corner of block 12, but the southwest comer of Cass street at its intersection with Locust, which might mean the northeast corner of block 12, but might also properly be used in referring to the southeast corner of block 11. It is well known, however, that it is very difficult, in our ordinary speaking, to locate a street corner by using the points of the compass. When one refers to the northwest corner of a certain street intersection, he is frequently understood as referring to the northwest corner of the block south and east of the crossing, but more often, of course, to the southeast corner of the block, north and west from the intersection. But when he speaks of the southeast corner of a cer- tain street at its intersection with another, he may refer to the northeast corner of the block lying south and west from the cross- ing; although one would probably be justi- fied in inferring that reference was made to the southeast corner of the block lying north- west from the street crossing. In this par- ticular case, however, the notice further points out the place by saying "that there was a defect in the crossing at said point by the plank being placed so far apart, or from some other defect to this subscriber un- known, that she stepped through the said plank, or said plank gave way imder her, in whole or in part, inflicting the injuries com- plained of." Now, it seems to be undisputed that the plaintiff was injured by stepping between planks which were originally laid about a foot apart over a ditch along the southeast corner of block 11. on Locust street, which was about 2^4 feet deep. There was no evidence in the case to show that there was any other crossing over Locust street at or near this point, or that there was any other constructed as this one was with planks laid as before stated. The object of the notice is that the city authorities may in- vestigate the question of the defendant's liability while the facts are fresh, and the evidence is attainable; and reasonable cer- tainty as to the place and circumstances of the injury is all that is required. It is not intended that the claimant shall state the exact spot where the accident happened, and a mistake of a few feet ought not to defeat the action. In this case the mistake, if there was one, was ot less than an hundred feet. The notice, as a whole, indicated that the place of the accident was at the intersection of Locust and Cass streets. It pointed out the side of the street upon which it was to be found, and specified the defect which ex- isted in the crossing. The evidence shows that there is no plank crossing on the south side of Locust street, nor from the west side to the east side, nor at any of the four cor- ners of Cass and Locust streets, except at the southeast corner of block 11. It seems to us that no one with that notice in his hand, looking for the place, and passing t to I Ourf [vinp' I along the west side of Cass street at or near its intersection with Locust, would have failed to see and known the place where the accident is said to have occurred. Where ' the notice conveys the necessary information i to the proper officers, it is good, even though i there are some inaccuracies in it. The de-l fendant could not have been, and was not in « fact, misled. The attention of the mayor of / the city was called to the exact place of the accident within three days after it happened, ] and the particular defect was pointed out ' to him. The testimony relied upon to prove the mayors knowledge of the place was ob- / jected to, but we think it was proper; not I perhaps to supplement the notice, but to show that the city was not misled conclusions find support in the following cases: Fopper v. Town of Wheatland (Wis.) IS N. W. .514; Wall v. Town of Plighland (Wis.) 39 N. W. 5G0; Salladay v. Town of Dodgeville (Wis.) 5.5 N. W. 69G; Laird v. Town of Otsego (Wis.) 62 N. W. 1042; Fassett v. Town of Roxbury, 55 Vt 552; Brown v. Town of Southbury (Conn.) 1 Atl. 819; Chapman v. In- habitants of Nobleboro, 76 Me. 427; Fortin V. Inhabitants of Easthampton (Mass.) 8 N. E. 328. The lower court instructed the jury as a matter of law that the notice was sufficient This is said to be error — First, be- cause the notice was not sufficient; and, sec- ond, because the question was for the jury, and not for the court. We have already dis- posed of the first objection. As to the sec- ond, we may say that, while it may not al- ways be true that the question is for the court, yet such is the general rule. And in this particular instance, the facts being un- disputed, the question was properly deter- mined by the court, Rogers v. Inhabitants of Shirley, 74 Me. 144; Chapman v. In- habitants of Nobleboro, supra. 2. At the conclusion of plaintiff's evidence defendant moved to strike out the same, be- cause it was not addressed to the place nam- ed in the preliminary notice. This motion was overruled, and defendant thereupon filed a motion for a continuance, based upon the ground that it had not investigated any place other than that named in the notice. This last motion was overnded, and exception tak- en, and the ruling is now assigned as error. We think it was correct. What is said in the first paragraph of this opinion is a sufficient answer to the argument of counsel on this branch of the case. 3. Certain of the Instructions given by the court are complained of, and it is also argued that the court was in eiTor in refusing certain of those asked by the defendant. These in- structions relate almost wholly to the amount of care required of plaintiff in going onto and passing over the crossing. We cannot set them out in full. The court said, in sub- ) stance, that plaintiff could not recover unless I she established her freedom fi'om contribu- > tory neglig -nee; that she was not bound to | keep her eyes constantly on the walk before CONTRIBUTORY NEGLIGENCE OF PERSON INJURED. 3G1 1 her, but might roly upon the city to exercise [ordinary and roasonable care to keep the ' place in repair, but tliat it was her duty to I remember that, notwithstanding the most ef- ficient supervision, yet defects and obstruc- tions will appear in and upon sidewallcs, and I that it was her duty to use ordinary care in \ passing over the walks; that she had the right to travel upon the street and over the crossing, and that her care or negligence de- pended upon her conduct at or near the time and place of her fall. The instructions asked by defendant were to the effect that plaintiff was, as a matter of law, bound to discover defects ascertainable by the senses, and was guilty of contributory negligence, because she might have se^n or discovered the alleged de- fect, or might have taken another walk to reach her destination. We thin]<, as applied to the facts in tliis case, the court correctly instructed the jurj. The accident happened , after dark, and there was nothing to show that plaintiff was familiar with the condition of the crossing, or with the dangers attending an attempt to cross it. She was not bound, , at her i:>eril, to discover the defect. Ordinary and reasonable care and prudence was all that was required of her, and unless she knew it was imprudent to pass over the walk she was not required to take another route. Whether she exercised reasonable care and prudence was a question for the jury. We have recently had occasion to re-examine the question here presented, and will content our- selves by citing the cases, where the whole matter is fully considered: Mathews v. City of Cedar Rapids, 80 Iowa, 460, 45 N. W. S94: Lichtenberger v. Incorporated Town of Meri- den (Iowa) 58 N. W. 10.58; Barnes v. Town of Marcus (Iowa) G5 N. W. 335. 4. Other instnictions with reference to de- fendant's negligence were asked and refused. In so far as they embodied correct ndes of law, they were given in substance by the court in its charge to the jury. 5. Witness Tabor was allowed to testify that he saw one of the defendant's city alder- men at the place of the alleged accident some months before plaintiff received her injury. and that he had some conversation with him in reference to the condition of the crossing. This testimony was for the purpose of show- ing actual notice to the city of the condition of the walk through a member of its city council. It is contended by appellant that this was error, for the reason that notice to such an officer Is not notice to the city, be- cause it is not shown that he had any duty to perform with reference to the sidewalk or crossings. We have heretofore had occasion to consider this question, and in the cases of Carter v. Town of Monticello, G8 Iowa, 179, 26 N. W. 129, and Trapnell v. City of Red Oak Junction, 76 Iowa, 744, 39 N. W. 884, we announced that notice to such an officer was binding upon the municipality. These cases are decisive of the question presented. Some other points are discussed by counsel, but what we have said disposes of every question of any moment in the case. We have not considered the affidavits filed by the respective parties, for the reason that, shouM we find appellant's contention true, it would not change the result. There is no prejudi- cial error in the record, and the judgment is affirmed. 362 CONTRIBUTORY NEGLIGENCE OF PERSON INJURED. MULLEN V. CITY OF OWOSSO. (58 N. W. 663, 100 Mich. 103.) Supreme Court of Michigan. April 17, 1894. Error to circuit court, Shiawassee county; William Newton, Judge. Action by Mary E. Mullen against the city of Owosso for personal injui'ies. From a judgment for defendant, plaintiff brings error. Affirmed. George L. Keeler (John T. McCurdy, of counsel), for appellant Odell Chapman, for appellee. LONG, J. The plaintiff, a woman about 34 years of age, was riding with Mr. Pond in a private carriage di-awn by one horse along a public street in the city of Owosso. Overtaking Mr. Sanders, who was driving in the same direction, Mr. Pond attempted to pass him. Sanders was driving at a rapid rate, and Mr. Pond, in attempting to pass, started his horse rapidly forward. The par- ties raced for a distance, when Mr. Pond ran over a pile of sand in the highway. His car- riage was overtm-ned, and plaintiff thrown out and injm-ed. The proofs are clear that Mr. Pond knew that a building was being erect- ed by the side of this street, and that a mortar box and other materials were out in the street, in front of it. He stated that on a former trial he testified that he knew the street was incumbered by such materials, and thought that somebody was liable to get hiu-t there. Yet, in view of this Icnowledge, he carelessly drove his horse at the rate of more than six miles an hoiu: in tbe sti'eet, contrary to the ordinances of the city. The court directed the jury: "If you find from the evidence in this case that the plaintiff would not have been injured but for the neglect of the city to give proper warning, then the plaintiff would be entitled to re- cover, unless you find that Mr. Pond knew of the obstruction to a portion of this street, and heedlessly drove over the obstruction; then he would be guilty of gi'oss negligence, and plaintiff could not recover." Again the court said: "If the plaintiff in this case voluntarily entered the private conveyance of Mr. Pond, and voluntarily triisted her per- son and safety, in that conveyance, to him, by voluntarily entering into the private con- veyance of Mr. Pond, she adopted the con- veyance, for the time being, as her own, and assumed the risk of the skill and care of the person guiding it. So, if you find that ISIr. Pond was negligent, in driving fast, the plaintiff could not recover." The jiu-y re- turned a verdict in favor of the defendant. The only question presented by the brief ,' of plaintiff's coimsel is whether the negli- gence of Mr. Pond is imputable to the plain- tiff. This question was settled in the af- firmative in Railroad Co. v. :Millor, 25 Mich. 274 (decided by this court in 1S72), and has not since' been departed from. Counsel claims that some doubt has been cast upon this doctrine by some of the later decisions, and cites Battishill v. Humphreys, 64 Mich. 503, 31 N. W. 894. In that case a child three years of age was run over by an en- gine upon a raih-oad operated by defendant, as receiver. The question was raised wheth- er the negligence of the parents in permit- ting the child to go upon the track was im- putable to the child. Iklr. Justice Morse held that such negligence was not imputable to the child. The other justices expressed no opinion upon that point. In Shippy v. "Vil- lage of Au Sable, 85 Mich. 280, 48 N. W. 584, the question whether the negligence of the parents was imputable to a child three yeai-s of age was again presented; and, upon a fuU hearing, it was the unanimous opinion of the com"t that such negligence was not imputable to the child. Other cases of like character have been presented to this court, involving that question; and the rule is now established that, when the child brings the action for negligent injm'ies, the negligence of the parents cannot be imputed to it. But the present case presents quite a differ- ^ ent question. Here a person of the age of i discretion voluntarily enters a private con- i veyance of another, to ride, and by the care- ' lessness of that person is injured. The rule ' laid down in the Miller Case, cited above, I excludes a recovery. It has been too long 1 settled to be now distm-bed. In Schindler v. ' Railway Co., 87 Mich. 410, 49 N. W. 670, the rule was recognized. It was there said of| the Miller Case: "This is the general rule,/ and has since been followed in this state."] The rule was also recognized by this court in Cowan v. Railway Co., 84 Mich. 583, 48 N. W. 166. Judgment is affirmed. GRANT and MONTGOMERY, JJ., concm*- red with LONG, J. HOOKER, J. (dissenting). The plaintiff was riding in a carriage, with, and upon the invitation of, a Mr. Pond, in the city of Owosso. In attempting to pass another vehicle, the carriage was overturned, by reason of its being driven upon a pile of sand or rubbish in the street, and plaintiff was injured. The defense is made that the driver, Mr. Pond, was negligent, and that such negligence should be imputed to the plaintiff. The cases are not harmonious upon this question, but the great weight of authority is against the defendant's conten- tion; the case of Thorogood v. Brjan (de- cided in 1849) 8 C. B. 115, which is consid- ered the leading case sustaining the defend- ant's proposition, having been overruled in England, and repudiated in this country, generally, though followed in some states. That was a case of the collision of two omnibuses. The action against the owner of one by a passenger of the other was de- feated upon the ground of contributory neg- ligence, upon the theory that the passenger was so identified with the driver of his vehicle as to be chargeable with his neg- CONTEIBUTOllY NEGLIGEXCE OF TERSOX INJURED. sea ligence. This decision seems to rest upon an inference that the driver is the agent of the passenger, or at least that he is under the direction and control of tlie passenger. The case was disregarded in Kigby v. Hew- itt, 5 Exch. 239, and distinctly overruled in The Bernina, 12 Prob. Div. 58; Mills v. Arm- strong, 13 App. Cas. 1. In the last case, Lord Herschell commented as follows upon the case of Thorogood v. Bryan: "In short, as far as I can see, the identification ap- pears to be effective only to the extent of enabling another person, whose servants have been guilty of negligence, to defend himself by the allegation of contributory neg- ligence on the part of the person injiu'ed. But the very question that had to be deter- mined was whether the contributory neg- ligence of the driver of the vehicle was a defense, as against the passenger, when suing another wrongdoer. To say that it is a defense, because the passenger is identi- fied with the driver appears to me to beg the question, when it is not suggested that this identification results from any recog- nized principles of law, or has any other effect than to furnish that defense, the valid- ity of which was the very point in issue." In Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, Mr. Justice Field uses the following language: "The truth is, the decision of Thorogood v. Bryan, rests upon indefensible grounds. The identification of the passenger with the negligent driver or the owner, without his co-operation or encomia gement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver, or the person managing it, is his servant. Neither of them is the servant of the passenger, and his as- serted identity with them is contradicted by the daily experience of the world." The doctrine of Thorogood v. Bryan has met with similar treatment in most of the state coiarts of last resort, and, as to public con- veyances, may be said not to state the law correctly. The reasons upon which these cases rest are equally conclusive in cases where liie injured party was riding in a hired carriage with a driver from a livery stable; in cases where the passenger does not, as a matter of fact, exercise such con- trol over the driver as to make him his serv- ant. See Little v. Hackett, supra. Missouri Pac. Ky. Co. v. Texas Pac. Ry. Co., 41 Fed. 316; Larkin v. Railway Co. (Iowa) 52 N. W. 480; Railroad Co. v. Steibrenner, 47 N. J, Law, 161; Randolph v. O'Riorden (Mass.) 29 N. E. 583. In cases like the present the question becomes one of fact; the test of the passenger's responsibility for the neg- ligence of the driver depending upon the passenger's control, or right of control, of the driver, so as to constitute the relation of master and servant between them. Rail- way Co. V. Kutac, 72 Tex. 643, 11 S. W. 127; Cahill V. Railway Co. avy.) 18 S. W. 2; Nes- bit V. Town of Garner, 75 Iowa, 314, 39 N. W. 516; Dean v. Railroad Co., 129 Pa. St 514, IS Atl. 718; McCaffrey v. President, etc. (Sup.) 16 N. Y. Supp. 495; Masterson v. Rail- road Co., 84 N. Y. 247; Noyes v. Boscawen, 64 N. H. 361, 10 Atl. 690; Follman v. City of Mankato, 35 Minn. 522, 29 N. W. 317; Rail- road Co. V. Hogeland, 66 Md. 149, 7 Atl. 105; State V. Boston & M. R. Co., 80 Me. 430, 15 Atl. 36; Town of Knightstown v. Musgrove, 116 Ind. 121, 18 N. E. 452; Railroad Co. v. Spilker (Ind. Sup.) 33 N. E. 280. It should not be inferred that a passenger can shelter himself behind the fact that another is driv- ing the vehicle in which he rides, and re- lieve himself from his own personal neg- ligence. What degree of care should be re- quired in the selection of a driver, or in observing and calling attention to dangers xmnoticcd by the driver, must depend upon the circumstances of each case. It remains to inquire whether this ques- tion can be considered an open one in this state. The question before us is doubtless supposed by many to have been settled in the case of Railroad v. Miller, 25 Mich. 274, and it cannot be denied that the syllabus of that case would confirm the opinion. The facts in that case were these: The plaintiff, a woman, was riding with Eldridge, being in his employ. The wagon was sti-uck upon a railway .crossing, near which was a wood pile belonging to the defendant, which ob- scured the view of the railroad. The only allusion to the question here discussed arose as follows: The court said: "So that the only negligence which can be claimed in the mode of running the train must rest upon the gi'ound that the company, having obscm-- ed the view and deadened the sound of the approaching train by the mode of piling their wood, were bound, for that reason, to run at much less than their usual rate of speed, in approaching that crossing, or to keep a flagman there, or use some other extra means to warn people traveling the highway of the approach of trains from the west. The materiality of this question must depend upon another,— whether the plain- tiff's own negligenc-e, or thai of Eldridge, who was driving the team, contributed to the injiu-y. within the meaning of the gen- erally settled rule upon this subject; for, as she was riding with Eldridge, tie owner and driver of the team, any negligence of Eldridge equally affects her rights in this suit, as was properly held by the coiu-t." It will be noticed that the subject is passed without discussion, and the court proceeds with a lengthy review of the doctrine of con- tributory and comparative negligence. On page 286 the court states the established facts, among which are the following: "Eld- ridge was slightly deaf, but the plaintiff her- self was not." "They kept on, still upon the walk (the train in sight), not stopping to listen, and looking neither to the right nor the left, neither up nor down the track. They are almost upon it. He (the witness) still thinks they will stop, but they mov» 364 CONTRIBUTORY NEGLIGENCE OF PERSON INJURED. steadily on," etc. Again: "No logic can find in it, or extract from it [the evidence], the faintest manifestation of common prudence, which the circumstances demanded, in ap- proaching the crossing." The coiu't finds from the testimony of the plaintiff herself that neither Eldridge nor herself used any caution whatever. One of two things mu.st be admitted, under the facts stated, viz. (1) that plaintiff was relieved from all responsi- bility by the fact that she was riding with Eldridge, and was imder no obligation to look for the train; or (2) that the failure to do so was contributory negligence upon her part, which should have precluded a recov- ery by her, in which case the question of im- puted negligence was unimportant. The opinion apparently takes the latter view, so far as plaintiff's own negligence is concern- ed, where it says, "I think the evidence tend- ed affirmatively to prove actual and gross negligence on their part, which contributed di- rectly to produce the injury complained of." From the finding, I think it may be said that the question before ug was not necessarily involved in the Miller Case, and that it was not considered the controlling point. If it is to be treated as conclusive, against the over- whelming weight of authority in the United States and I'^ngland, we shall apparently ac- cept an incidental remark in an opinion as decisive upon an important principle, which deserved a full discussion before being set- tled. An examination will show that this decision has never since been applied, be- yond a recognition of the doctrine in cases where it was not involved in the decision. It was mentioned and recognized in Cuddy V. Horn (Mich.) 10 N. W. 32, but the court disposed of the case upon the ground that the passenger iipon a yacht had not control of the management. In Schindler v. Rail- way Co., 87 Mich. 411, 49 N. AV. 670, the com't again recognized the rule; saying that it was settled in Railway Co. v. Miller, but that it did not apply, because the defend- ant was guilty of wantonness. The platn- tiiT was a child riding with a neighbor. Mr. Justice Champlin, in a dissenting opinion, protested against the doctrine. 87 Mich. 419, 49 N. W. 670. In Battishill v. Hum- phreys, 64 Mich. 509, 31 N. W. 894, Mr. Jus- tice Morse uses the following language: "I am not content to let the question pass as a settled one in this state. At least, I am not willing to assent to the proposition that the negligence of any other person can become the contributory negligence of a plaintiff, without his fault. 64 Mich. 508, 31 N. W. 894. In the case of Shippy v. Village of Au Fable, 85 Mich. 292. 48 N. W. 584, Mr. Jus- tice Morse expressed satisfaction with his views in the Battishill Case, and added, "I am also satisfied that the great weight of au- thority in this country is opposed to the con- tention of the defendants." In neither of these cases, was the docti-ine of Railway Co. V. Miller r.; plied. It seems, therefore, that the authority of the case of Railway Co. v. Miller has been repeatedly questioned. The time has arrived when the question must be settled. I think it should be in conformity to the weight of authority, and the better rule. The judgment should be reversed, and a new ti-ial ordered. McGRATH, C. J., concurred with HOOK- ER, J. CONTKIBUTORY NEGLIGEXCE OF PERSON INJURED. 365 MALOY V. CITY OF ST. PAUL. (56 N. W. 94, 54 Minn. 398.) Snprome Court of ^linncsotii. Aug. 17, 1893. Appeal from district court, Ramsoy coun- ty; Cornish, Judge. Action for personal injuiies by Winnie Mnloy against the city of St. Paul. Plain- tiff had judgment, and, from an order grant- ing a new trial, she appeals. Revereed. "Williams, Goodenow & Stanton, and D. Ed. Dwyor, for appellant L. T. Chamberlain and II. W. Phillips, for respondent. COLLINS, J. Plaintiff brought this action to recover for pei-sonal injuries caused by a defective sidewalk, and obtained a verdict, which Avas set aside, and a new trial or- dered, on motion of dofeudnnt city. The facts were not in dispute. The diefect was in tlio walk in front of the lot on which plaintiff resided with her husband, and close by tlieir dwelling. The pl:inl- pellant R. S. Ammerman ajid Grant Her- ring, for appellee. WILLIAMS, J. /On the trial of this case it was made to appear that the borough of Danville began about 1860 to make use of a natural stream known as 'Blizzard's Run" as a part of its general system of drainage. By means of a covered sewer and a paved alley, the surface drainage of nearly 20 acres has been tiuTied into this stream, and one or more cellar drains have been connected with it. The stream thus became an open sewer, adopted and used as such by the borough au- thorities; and the duty of the borough to keep its channel open, and to remove accu- mulations of filth, ashes, or other material that obstructed the flow of the water and threw it out of its banks upon the adjoining lot owners was as clear as though the sewer had been constnicted, instead of having been adopted, by the action of the municipal authorities. 'The right of action by a lot s owner grows, not out of the adoption of the I stream as a sewer, which was an act wholly ' within the power of the municipality, but \ out of its negligence in not keeping the j sewer in at least as good condition as it . found it. There is therefore no question of I prescriptive right in this case. There can I be no prescriptive right to neglect so plain a I municipal duty. If the borough load entered upon some portion of the plaintiff's lot in tlie \ construction of a sower in 1800, the right of ' action for that trespass would be at this time effectually barred by the lapse of time. But when a sewer, built, it may be, 100 or more years ago, gets into bad repair, the liability of the municipality for the injury inflicted upon lot owners arises when the injurj' oc- curs, and may be sued for within 6 years j thereafter. The judgment of nonsuit pro- ' ceeded, therefore, upon an erroneotis idea • of the relation of the parties and of the plaintiff's cause of action. We are inclined to think enough appears in the plaintiff's declaration to show that the injury com- plained of is charged to the failure on the part of the municipality to clean out and keep open the channel of the stream, so as in ordinary floods to afford a passage for its water as freely as the natiual channel did before the action of 18G0 was taken by the borough. This is the measure of duty which the municipality owes the plaintiff, and, if an amendment is needed in order to place the plaintiff's claim fully on the record, it can easily be made. But upon the evidence this case presented a question of fact for the jury. That was a question of negligence on the part of the municipality. If the bor- i ough has simply drained into this stream, j and then given no attention to the effect of I its action on the stream or on lot holders j along its banks, and the stream has been choked, or its channel obstructed, in conse- quence of the character or quantity of the j material drained into it, and injury has re- ( suited to the plaintiff, the negligence of the | borough authorities in not removing such ob- struction and keeping the channel open is the true ground on which the plaintiff's right to recover must rest Was the stream ob- i structed or filled up as the result of the adoption of this stream as an open sewer, [ and the drainage into it? Did the borough neglect to keep the channel open, and permit the overflow and accumulations complained of? Was the plaintiff injured in conse- quence of this negligence? If the jury so found, their only remaining duty was the as- certainment of his damages. The judgment of nonsuit entered in this case is now re- versed, and set aside, and a venire facias de novo awarded. 372 CONTRIBUTORY NEGLIGENCE OF PERSON INJURED. TATE T. CITY OF ST. PAUL. (58 N. W. 158, 56 Minn. 527.) Supreme Court of Minnesota. Feb. 17, 1894. Appeal from district court, Ramsey coun- ty; Charles D. Kerr, Judge. Action by William E. Tate against the city of St Paul. Judgment was oi'tiered for plaintiff, and defendant appeals. Affirmed. Leon T. Chamberlain, for appellant John L. Townley, for respondent GILFILLAN, O. J.^The action Is to re- cover damages arising from a sewer laid by defendant, and with which plaintiff had con- nected, as he had a right to do, setting the water in it back so that it flooded plain- tiff's basements. The defect alleged in the sewer was that it was of insufficient capac- ity to carry off the water brought into it. The defect appears to have existed in the original plan for sewering that part of the city; that is, the city, in determining upon a system of sewers, determined upon the sizes required for the main sewer and for the lateral sewers running into it, and the size de- termined on for the former proved too small.; The rule is uniformly conceded that for in- juries wholly incidental to and consequential upon the exercise by a municipal corpora- tion of the legislative or discretionary pow- ers intrusted to it (as distinguished from its ministerial acts) no action wiU lie against it Instances of the application of that rule are furnished by Lee v. City of Minneapolis, 22 Minn. 13, where the power exercised was establishing the grade of a street under the diarter, and Alden v. City of Minneapolis, 24 Minn. 254, whei-e the city had established a system of grades for streets and sidewalks, and drains, gutters, catch-basins, and sewers, and had constructed the streets, sidewalks, drains, and gutters, and partially completed the sewers. The complaint wus that the sewers, drains, gutters, and catch-basins were not sufficient to carry off the sm-face water falling in rains upon the streets, so that It flowed from the streets upon plaintiff's lot. The line between legislative acts and ministerial acts of a municipal corporation is not very clearly marked by the decisions, i nor is it necessary to attempt to trace it in this case. Some of the earlier cases do not I clearly recognize the distinction between in- juries incidental to the exei-cise of munici- pal legislative functions, and direct and pos- itive wrongs— such, for instance, as tres- pass — caused by it The later and better au- thorities, however, recognize the distinction, iind, while adhering to the rule that for the I former no action will Ue, hold that for the latter the party may recover. The distinc- tion is apparent, though it is not clearly dis- cussed in either of the cases, of O'Brien v. City of St Paul. 18 Minn. 17G, (Gil. 1G.3,) and 25 Minn. .3.'?1; Kobs v. City of Minneapolis, 22 Minn. 159; and the Lee and Alden Cases, above cited. To determine when and upon what plan a public improvement shall be made is, unless the charter otherwise provides, left to the judgment of the proper municipal au- thorities, and is, in its nature, legislntivo. And, although the power is vested In the municipality for the benefit and relief of property, error of judgment as to when or upon what plan the improvement shall be made, resulting only in incidental injm-y to the property, will not be ground of action; as, if, in grading sti-eets to the authorized grades, the plan of the grading is inadequate to drain a lot of the surface water, or even if it make it more difficult and expensive for the owner to drain it or make access to the lot more difficult, that is a result incidental to the improvement But for a direct in- vasion of one's right of property, even though contemplated by, or necessarily restflting from, the plan adopted, an action will lie; otherwise, it would be taking private prop- erty for public tise without compensation. Thus, if, in cutting a street down a grade, the soil of an abutting lot is precipitated into the cut, or if, in filling up to grade, the slope of the embankment is made to rest on private property, that is a direct invasion of property rights which cannot be justified, even though the plan adopted contemplates, or will necessarily produce, the result Ju^e Dillon, in his work on Municipal Corpora- tions, (4th Ed., §§ 1047-1051,) approves the rule, laid down in more recent decisions by some of our ablest cotu-ts, that if a sewer, whatever its plan, is so constructed as to cause a positive and direct invasion of private property, as by collecting and throw- ing upon it, to its damage, water or sewage which would not otherwise have flowed or fotmd its way there, the corporation is liable. Conspicuous for their ability, among the cases referred to by him, are Ashley v. Port Huron, 35 Mich. 296, and Seifert v. City of Brooklyn, 101 N. Y. 136, 4 N. E. 321,— each, the former especially, a very interesting case. See, also. Bray ton v. Fall River, 113 Mass. 218; Lehn V. City and County of San Francisco, 66 Cal. 76, 4 Pac. 965; "Weis v. City of Madison, 75 Ind. 241. It is Impossible to answer the rea- soning of these cases, especially where the injiuy complained of constitutes a taking. That making one's premises a place of de- posit for the surplus waters in the sewers in times of high water, or creating a nuisance upon them so as to deprive the owner of the beneficial use of his property, is an appro- priation requiring compensation to be made, see "Weaver v. Boom Co., 28 Minn. 534, 11 N. "W. 114. The comt below Instructed the jtiry "that where a public work, for instance a sewer, iis the same was originally planned and con- structed, is found to result in direct and physical injury to the property of another, iliat would not otherwise have happened, and which, from its nature, is liable to be repeated and continuous, but is remediable by a change of plan or the adoption of prudent FOR CONSTRUCTION OR CONDITION OF DRAINS OR SEWERS. 373 I measures, the corporation is liable for such ' damages as occur in consequence of the ori^ji- I nal cause, after notice and an omission to u>al government, the duties which it was required to discharge were not local or corporate, but related and belonged to an important branch of the ad- ministrative department of the state govern- ment." It was held in each of these cases that the city of New York was not liable for the neg- Ugence of an employe of one of these depart- ments. And in Thompson r. Mayor, etc., 52 N. Y. Super. Ct. 427, it was held that the city was not liable for the neglisent conduct of the employes of the fire dejiartment, as at present constituted. We entertain no doubt that the city was not liable for the negligent management of the fire Iwat in the present case, and that the libel against the mayor, etc.. should have been dismissed by the dis- trict court. It is accordingl.v ordered that the cause be remitted to the district court, with instructions to dismiss the libel against the mayor, etc., with costs of tliis court and of the district court, and to affirm the decree against the respondent Gallagher, with costs. 376 COIs^TRIBUTORY XEGLIGEXCE OF FERSO:S^ IJfJURED. GILLESriE V. CITY OF LIN'COLN. (52 N. W. 811, 35 Neb. 34.) Supreme Court of Nebraska. June 11, 1892. Error to district court, Lancaster county; Field, Judge. Action by Clark D. Gillespie, administrator of Clark D. Gillespie, deceased, against the city of Lincoln, to recover damages for the death of deceased. Judgment for defendant on demurrer to the petition. Plaintiff brings error. Affirmed. Chas. O. Whedon and C. E. Magoon, for plaintiff in error. E. P. Holmes, City Atty., for defendant in error. POST, J. This case comes into this court on a petition in error. The error assigned is the sustaining of a demurrer by the district court of Lancaster county to the petition of plaintiff in error, the material part of which is as follows: "That on and prior to the 29th day of May, 1889, the said defendant had an organized and paid fire department, and had and owned engines, hose, hose carts, ladders, •oagons, trucks, and other apparatus for the use by, and which was used by, said defend- ant and its said fire department in_ extin- guishing fires. That said defendant then had and owned horses, which were used by said defendant in drawing said wagons, trucks, hose carts, and engines to the place in said city where a fire might be burning, and for other purposes. That among other appai'atus the said defendant then owned a large truck or wagon, upwards of twenty feet in length, which was used by the defendant in trans- porting about the city long ladders, used by said fire department. That said defendant, at the time of committing the wrongs herein- after mentioned, had in its pay and employ one Peter Keykendall, who was under the direction and control of the defendant, and whose duty it was. under the direction of said defendant, to drive the team attached to said ladder truck or wagon about the city; and said wagon was not at the time herein- before mentioned. May 29. 1889, supplied with any brake or lock or other appliance for stop- ping said wagon when in motion, or to as- sist the horses to said wagon attached in stopping the same; that the distance be- tween the front and hind wheels to said truck or wagon was about eighteen feet; that said wagon or truck, when loaded with ladders and other apparatus, carried thereon, and with the driver thereon, weighed upwards of two thousand pounds. That Ninth street ex- tends through said city from north to south, and intersects and crosses P, R, and S streets in said city, and said Ninth street and said P, R, and S streets have for many years last past been public streets in said city, and on said 29th day of May, 1889. said Ninth street was paved with wood, and between S and P streets was a paved and smooth street, and from S to R street had a smooth and level surface, and was free from obstruction, and was paved with wood. That the said Peter Keykendall, under his emploj'ment, was by the defendant required to drive said ladder truck or wagon about the citj' when no fires were burning which required to be extin- guished by said defendant or said fire de- partment, for the purpose of exercising the horses to said wagon attached, and was also retiuired to drive said horses attached to said wagon, when the same was heavily loaded, on and along the public streets of the said city at a furious rate of speed, and as fast as said horses could be made to run, without any regard whatever for the lives or safety of citizens of the city who might be upon the streets, and this when no fire or fires were burning which required the action of the de- fendant or its fire department to extinguish, for the sole and only purpose of exercising said horses. That on the 29th day of May, 1889, the said Peter Keykendall. then being in the employ of the defendant, and acting under the orders and direction of the defend- ant, drove a span of large, high-spirited, and powerful horses attached to said ladder truck or wagon about the public streets of said city, for the purpose of exercising said horses. Said wagon or truck was loaded with ladders and other apparatus, and the driver rode therein, and said wagon with its load weigh- ed upwards of two thousand pounds: that said wagon was not on said day supplied with any lock or brake or other appliances for stopping or assisting in stopping said wagon when in motion, as the defendant then well knew. That said Keykendall on said day drove said span of horses to said wagon at- tached as aforesaid on and along said Ninth street at a furious and dangerous rate of speed, and as fast as said horses could be driven, when there was no fire burning which required the sen- ices of said fire department or any of its members or employes of said city to extinguish, but said horses wei'e driv- en for exercise only; that Clark D. Gillespie, an infant of tender years, being then but six 5'ears of age, was at the time crossing said Ninth street near the place where said street intersects and crosses R street at the north side of said R street, and said span of horses were driven upon said Clark D. Gillespie, and he was thrown ttpon the pavement, and the front wheel of said wagon was driven over and across his body; that said boy, after being knocked down and run over by said horses, and by one of the front wheels of said wagon, raised his head and attempted to arise from the pavement, when he was struck and run over by one of the hind wheels of said truck or wagon, and was instantly kill- ed. That the killing of said boy Avas caused by the driving over him of said team and wagon as aforesaid. Plaintiff further says that at said time said team and wagon were not being driven to any fire which required to be extinguislied. but were being driven on and along said street for tlie sole and only purpose of exercising said horses, under the direction FOR TORTS OF OFFICERS OR AGENTS. 377 and orders of the defendant, at a dangerous rate of speed, and were driven so fast that it was impossible for the said Clark D. Gilles- pie to escape being run over. That the said Olark D, Gillespie was the son of the plain- tiff. That on the 22d of July, 1889, the plain- tiff was by the county court of said Lancas- ter county duly appointed administrator of the estate of said Clark D. Gillespie, and gave the bond by said court required, and took the oath by law required in such case. That on or about the 22d of July, 1889, plain- tiff presented to the city council his claim for damages sustained by the estate of said Clark D. Gillespie by reason of the killing of him, the said Clark D. Gillespie, together with the names of the witnesses and a statement of the time, place, nature, circumstances, and cause of the injury and damages complained of, which claim was verified by the oath of the plaintiff; that afterwards, and on or about the 12th of August, 1SS9, said claim was by the defendant and the mayor and council thereof, to which it was present- ed as aforesaid, rejected and disallowed. That by reason of the killing of said Clark D. Gillespie as aforesaid the estate of the de- ceased has sustained damages in the sum of $5,000, for which sum plaintiff prays judg- ment, with interest from the 12th of August, 1889, and for costs. The contention of the defendant in error is that no liability exists on the part of a city like Lincoln for injuries occasioned by the negligent acts of members of its fire de- partment. This exemption is placet! upon the ground that, in performing tlieir duties, fire- men act in obedience to a legislative com- mand, and, although appointed and paid by the city, they are to be regarded rather as officers charged with a public duty than as servants of the city. Public policy, it is claimed, forbids the imposition upon a city of liability for the negligence of tliis class of employes, since they are engaged in the dis- charge of a duty imposed by law for the wel- fare of the public, and from which the city, as a corporation, derives no benefit or advan- tage. Counsel for plaintiff in error, while not conceding the rule to be as stated, insists that it could have no application to the case at bar, for the reason that the statute undei* which the fire department of the city of Lin- coln is organized and governed is pennissive only, and whatever is done by the city in tliat respect it does voluntarily, and therefore the rule respondeat superior is applicable. To this proposition we cannot assent. The pro- vision on the subject is found in subdivision 33, § 67, of the charter of the city of Lin- coln: "Cities governed under the provisions of this act shall have power by ordinance to provide for the organization of a fire depart- ment, to procure fire engines, hooks, ladders, buckets, and other apparatus, and to orgauize fire engine, hook and ladder, and bucket com- panies, and to prescrilx! rules of duty and the government thereof, with such penalties as the council may deem proper, not exceeding one hundred dollars, and to make the neces- sary appropriations therefor, and to estabhsh regulations for the protection from and extin- guishment of fires." This language, although permissive in form, is in one sense mandato- ry. True, it is not mandatory in the fullest sense of the word, since the duty of the city to provide protection to life and property from fire cannot he enforced by mandamus or other remedy. It is not every duty unposed upon the state, or the different agencies thereof called "municipal corporations," that can be thus enforced. Kentucky v. Denni- son, 24 IIow. 6G; Dill. Mim. Corp. (4th Ed.) 98. It is none the less a duty on the part of the city because the law has not provided a means for its enforcement by the mandate of the court. There existed a moral or equita- ble obligation on the part of the defendant city to provide means of protection from fires within its limits, and in the discharge of that duty provision was made for its fire depart- ment. If defendant is to answer for the wrongful act of Keykendall, the driver of the ladder wagon, it must be upon the rule re- spondeat superior. It is clear that ujton no other principle is it chargeable. In this con- nection, it should be noted that the claim is made by plaintiff that Keykendall, in driv- ing the team at the time in question, •n-as act- ing within the scope of his authority. Coun- sel says in his brief: "The exercising of the team was a proper thing to do. It lies in the way of a proper discharge of the functions of the department. It was not ultra vires. The way in which it was performed is what we complain of." Taking it for gx-anted. then, that the driving of the team at the time in question was a proper exercise of the func- tions of the fii'e department of the city, and within the hne of duty of the driver, we will proceed to examine some of the authorities bearing upon the question involved. In Dill. Mun. Coi-p. (4th Ed.) 974. the rule is stated thus: "If the corporation appoints or elects them, can control them in the discharge of their duties, can continue or remove them, can hold them responsible for the manner in which they discharge their trust, and if those- duties relate to the exercise of corporate pow- ers, and are for the peculiar benefit of the corporation in its local or special interest, they may justly be regarded as its agents or servants, and the maxim of respondeat su- perior applies. But if, on the other hand, they are elected or appointed by the corpora- tion, in obedience to the statute, to perform a public service, not peculiarly local or cor- porate, but because this mode of selection has been deemed expedient by the legislature in the distrilmtion of the powers of the gov- ernment, if they are independent of the cor- poration as to the tenure of their office and the manner of discharging their duties, they are not to be regarded as the servants or agents of the corporation, for whose acts or negligence it is impliedly liable, but as pub- 378 CONTRIBUTORY NEGLIGENCE OP PERSON INJURED. lie or state officers, with such powers and du- ties as the statute confers upon them, and the doctrine of respondeat superior is not ap- plicable." Among the oflScers who are not servants of a city, within the foregoing rule, and for whose neghgence it will not be chargeable, the learned author enumerates policemen, health officers, and firemen. The rule as to the liability of the latter the author states, in section 976, as follows: "The ex- emption from liabiUty in these and the like cases Is upon the ground that the service is performed by the corporation in obedience to an act of the legislature; is one in which the corporation, as such, has no particular in- terest, and from which it derives no espe- cial benefit in its corporate capacity; that the members of the fire department, although appointed, employed, and paid by the city cor- poration, are not the agents and servants of the city, for whose conduct it is liable, but they act rather as officers of the city, charged with a public service, for whose negligence in the discharge of official duty no action lies against the city, without being expressly giv- en. The maxim of respondeat superior has therefore no application." To the same ef- fect, see 2 Thomp. Neg. 735; Shear. & R. Meg. 295, 296. Hayes v. City of Oshkosh, 33 Wis. 314, was an action to recover damages resulting from a fire occasioned by the negligent use of an engine employed in suppressing a fire in the neighborhood. Chief Justice Dixon, in the opinion, says: "Neither the charter of the city nor the general statutes of the state contain any peculiar provision imposing lia- bility in cases of this kind, and the decisions elsewhere are numerous and uniform that no such liability exists." Wilcox v. City of Chi- cago, 107 111. 334, is directly in point. In that case the plaintiff sought to recover for in- juries occasioned by a collision between his carriage and a hook and ladder wagon of the city, through the negligence of the driver while in the discharge of his duty. In the opinion of the com:t, by Judge Walker, it is said: "To allow recoveries for the negligence of the fire department would almost certainly subject property holders to as great if not greater burdens than are suffered from dam- age by fire. Sound public policy would forbid it, If it were not prohibited by authority." In Fisher v. City of Boston, 104 Mass. 94, the plaintiff received personal injuries through the negligent use of hose by a fire company of the city in extinguishing a fire on adjoin- ing premises. Judge Gray, in the opinion of the court, says: "But the extinguishment of fires is not for the immediate advantage of the town in its corporate caiTacity, nor is any part of the expense thereof authorized to be assessed upon owners of buildings or other special class of persons whose property is pe- culiarly benefited or protected thereby. In the absence of express statute, therefore, mu- nicipal corporations are no more liable to ac- tions for injuries occasioned by reason of negligence in using or keeping in repair the fire engines owned by them than in the case of a town or highway." In Hafford v. New Bedford, 16 Gray, 297, the plaintiff was struck and injured by a hose cart on a side- walk of a pubUc street. The firemen in charge thereof had negligently drawn it along and upon the sidewalk from the engine house 10 or 15 rods distant. The city was held not liable. In Jewett v. New Haven, 38 Conn. 368, the plaintiff, without negligence on his part, was struck and injured in a public street by a hose cart, which was being driven to the engine house for an additional supply of hose for use at a fire then raging, but at a dangerous rate of speed, and without the ex- ercise of reasonable precaution for the safe- ty of passers-by. It was held the rule re- spondeat superior did not apply, and the city was not chargeable. In Dodge v. Granger (K. I.) 24 Atl. 100, a very recent case, on the authority of cases above cited, the city was held not liable for injuries caused by con- tact with a ladder projecting across the side- v/alk in front of an engine house, negligently permitted by the fi remen to remain in that position while engaged in cleaning the house. This principle has been repeatedly applied to other officers or employes of municipal corpo- rations, as in Maximilian v. Mayor, 62 N. Y. 160, where plaintiff's intestate was killed by a collision with an ambulance wagon, which was caused by the negligence of the driver, an employe of the commissioners of public charities and corrections; Haight v. Mayor, etc., 24 Fed. 93, where, following the last case, it is held that the city is not liable for damage caused by a collision with a steam- boat owned by the city, but in the exclusive use of the board of charities and corrections; Condict V. Jersey City, 46 N. J. Law, 157, where the deceased was killed through the negligence of a driver employed by the board of public works to remove garbage from the streets to a public dumping ground; Cald- well V. City of Boone, 51 Iowa, 687, 2 N. W. 614, where the injury resulted from the wrongful act of a poli cem an paid by the city; Ogg V. City of Lansing, 35 Iowa, 495; Brown V. Vinalhaven, 65 Me. 402, and Barbour v. Ellsworth, 67 Me. 294,— in each of which it was held that the city was not chargeable with the negligence of its health o fficer s; Burrill v. Augusta, 78 Me. 118, 3 Atl. 177, in which plaintiff's horse was frightened by the escape of steam from a fire engine, negligent- ly allowed to remain in the street; Elliott v. Philadelphin. 75 Pa. St. 347, where plaintiff's horse was killed through the negligence of a police officer, by whom he had been arrested for violation of an ordinance of the city against last driving; Bryant v. City of St. Paul, 33 Minn. 289, 23 N. W. 220, where the plaintiff fell into a vault negligently left open and exposed by the boai-d of health. In the last case, the distinction between the class of of- ficers above mentioned and other agents of the city is clearly pointed out by Vander- rOR TORTS or OFFICERS OR AGENTS. 879 burgh, J., as follows: "The duties of such officers are not municipal or corporate duties with which the corporation is charged in consideration of charter privileges, but are police or governmental functions which could be discharged equally well through agents ap- pointed by the state, though usually associ- ated with and appointed by the municipal body." There are many cases in the reports of the states and the United States in har- mony with the foregoing among which are Smith V. Rochester, 76 N. Y. 500; Van Horn V. City of Des Moines, 63 Iowa, 447, 19 N. W. 293; O'Meara v. New York, 1 Daly, 425; Wheeler v. Cincinnati, 19 Ohio St. 19; How- ard V. San Francisco, 51 Cal. 52; Ham v. Mayor, etc., 70 N. Y. 459; Welch v. Rutland, 56 Vt 228. The cases cited by plaintiff may be said to sustain the proposition that the law Imposes upon a city the duty to keep its streets in a reasonably safe condition for use by the pubhc, and for a neglect of that duty it wiU be answerable. They are plainly dis- tinguishable from those to which we have referred, since the duty of the city with refer- ence to its streets is a coi-porate duty. As said by Judge Folger, in Maximilian v. May- or, supra: "It is a duty with which the city is charged for its own corporate benefit, to be performed by its own agents, as its own cor- porate act." This distinction is made also in Ehrgott V. Mayor, etc., 96 N. Y. 274, one of the cases cited by plaintiff. To the extent [ that the exemption of a city from liability for acts of officers herein enumerated affects the I general rule of liability for obstruction of the , streets of the city, it must be held to be an exception thereto,— an exception based upon ' a public policy which subordinates mere pri- vate interests to the welfare of the general ^ public. The judgment is right, and is af- firmed. The other judges concur. 380 CONTEIBUTORY iTEGLIGENCE OF PERSOI^^ INJURED. WHITFIELD V. CITY OF PARIS. (19 S. W. 566, 84 Tex. 431.) Supreme Court of Texas. AprU 26, 1892. Appeal from district court, Lamar coun- ty; E. B. MeClellan, Judge. Action by Sarali Whitfield against the city of Paris for personal injuries. A demurrer to the petition was sustained, and plaintiff appeals. Affirmed. Dudley & Moore, for appellant. A. P. Park, for appellee. TARLTON, J. This appeal is prosecuted from a judgment rendered by the district court of Lamar county in favor of appellee. The appellant sued appellee to recover for personal injuries inflicted upon her by one Beatis, in shooting at an unmuzzled dog, in the attempted enforcement of an ordinance of the city of Paris forbidding dogs to run at large. The correctness of the action of the trial court in sustaining a general de- murrer to the plaintiff's petition is the only question to be determined. This petition, as stated by appellant, alleged the incorpora- tion of the city under the general incorpora- tion act of the state of Texas, being title 17 of the Revised Statutes of 1879, entitled "Cities and Towns." That the city had power, by its charter, to appoint policemen, prescribe their duties and compensation, and discontinue and remove any such policemen, at the pleasure of the city council. That the city also, by its charter, had power to tax, regulate, or restrain and prohibit the running at large of dogs, and to authorize their destruction when at large contrary to ordinance. That in July, 1888, the said city, by and through its city council, passed an ordinance prohibiting thereafter the running at large of dogs, without being muzzled, within its corporate limits, between the 1st of July and the 20th of September of each year, and requiring and making it the duty of the city marshal and any policeman to kill any such dog when found so running at large. That said city, by and through the city council, employed and appointed one Thomas Beatis to kill dogs under said or- dinance, agreeing to pay him a certain stipu- lated sum per month for his services, the said Beatis then being in the employ and subject to the orders of the city. That, at the time and after the passage of said or- dinance, the said city, acting by and through the city council, made it the duty of and or- dered the said Beatis to go upon the public streets, alleys, and highways of the city and kill all dogs found running at large without being muzzled. That about the 24th of August, 1888, while the said Beatis was in the employ and service of the city, and act- ing in the scope of his employment, and while executing and carrying out the express orders and commands of the city in killing a dog running at large without a muzzle, on one of the streets of the city, he, the said Beatis, recklessly, negligently, and carelessly shot off, discharged, and fired a double-bar- reled shotgun, loaded with powder and shot, (the shot being of the denomination com- monly called "large goose shot,") on and along one of the most public streets in the city, where people were and are constantly passing in the discharge of the duties of their various avocations. That the said Beatis, in so negligently, carelessly, and recklessly shooting on and along said public street, in carrying out the orders of the city as aforesaid, inflicted upon plaintiff two pain- ful and serious wounds. Then follow the allegations as to the plaintiff's injuries, suf- fering, and loss. The enactment of the or- 1 dinance referred to in the petition was an j exercise by the city of its police power. Its ' purpose was to secure the safety, health, and ; welfare of the public. Beatis, the man ' whose act was complained of, was not, there- / fore, a mere servant or employe, though thef petition so denominates him. He occupied the attitude of a policeman engaged in the/ enforcement of an ordinance of the city. In' such a case, the maxim respondeat superior/ does not apply. Where a city acts as the' agent of the state, it becomes the repre- ' sentative of sovereignty. It is not acting in the management of its private or cor- porate concerns, but in the interest of the public, and as the guardian of the health, peace, convenience, and welfare of the pub- lic. Under such circumstances, it is not liable for the acts of its officers or employes engaged in the execution of its ordinances. 2 Dill. Mun. Corp. § 975; Culver v. City of Streator (111. Sup.) 22 N. E. 810, and the nu- merous authorities there cited; Harrison v. Columbus, 44 Tex. 418; Keller v. Corpus Christi, 50 Tex. 614; Conway v. Beaumont, 61 Tex. 12; Galveston v. Posnalnsky, 62 Tex. 130; Corsicana v. White, 57 Tex. 382. The judgment should be affirmed. PDBLISHIHO CO., PBXNTKBa AMD STKSBOTYPBBiS. BT. FADI<, UINH. UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE UNIVERSITY LIBRARY This book is DUE on the last date stamped below Form L-9 20m-l,'41(ua2) LAW LIBRARY UNIVERSITY OF CALIFORNLA LOS ANGELES JJNlViiKSlTY of CALlFOKJSiA AT f J-\C AXiAWI.lT.Q 000 315 380 -"-K50 C8A4