« EelmineJätka »
neglect and want of care and skill of the superintend 12 Ohio St. 375, it was held that the defendant was not out and trustees of the cemetery, is not brought in is liable for the failure of its police to preserve the peace sue. Admitting the truth of the allegations in the and prevent loss by the violence of a mob. It being original petitiou, the essential question is, whether the the duty of the State government to secure to the citicity of Toledo was liable to Cone, for the injuries be zens of the State the peaceful enjoyment of their received while engaged in the cemetery in improving property and its protection from wrongful and violent the vault which was the city's property, and while acts, power is delegated through the organization of working under and obeying the orders of the superin- municipal corporations to aid in the accomplishment tendent—the superintendent and Cone himself having of that object. But if municipalities to which such been appointed, and the trustees having been elected, governmental authority might be given should fail to according to the provisions of sections 361 to 376 inclu effectively exercise it, they are not to be held responsisive, of the act “To provide for the organization and ble to individuals for the consequences. As said by government of Municipal Corporations,” passed May the court, “it is not the policy of governments to in7, 1869 (66 Obio L. 149).
demnify individuals for losses sustained, either from The rule respondeat superior, though well recognized the want of proper laws or from the inadequate enin fixing the liability of private corporations and natu forcement of laws made to secure the property of inral persons, has been a source of much doubt and per dividuals." plexity in its application to municipal corporations. But within the sphere of their duties, municipal It is however now well established, that corporations corporations are to be regarded in another and very of the latter class, when acting in a certain character different aspect. While they act in a public character or capacity, are liable as superiors and employers, for or capacity, and exercise public powers, they may and injuries to third persons resulting from the negligence do act also in a private capacity, like private corporaand unskillfulness of their agents or servants, while in tions, and as such are held to a like responsibility. the line of their employment, in the same manner and Thus if a municipal corporation acquires real or per. to the same extent as private corporations or private sonal property, and in the discharge of what may be individuals. Under analogous conditions, there seems deemed ministerial duties in respect to the same, an to be no foundation in reason or public policy, for individual receives injury through the negligence of exempting such public corporations any more than its officers or servants, it should be held responsible to private individuals, from liability for injuries in that individual. Though not liable for a defect of flicted on others through the negligence of their judgment or discretion, while acting as a State instruagents.
mentality in the exercise of legislative functions, yet The underlying principle of municipal government having like a private corporation or natural person beis, that the management of local affairs shall be in come the owner or obtamed the control of property, trusted to local authorities, while general affairs are it should not be relieved from the operation of the left to the State Legislature. Under the power given general maxim, that one should so use his own as not by the Constitution to the general assembly, to pro to injure that which belongs to another. Thus if a vide for the organization of cities and incorp rated city neglects its ministerial duty to cause its sewers to villages, these corporations are made the depositaries be kept free from obstructions, to the injury of a perof certain limited governmental powers, to be exer son who has an interest in the performance of that oised on behalf of the State for the public welfare. duty, it is liable to an action for the damages thereby They are agencies or instrumentalities to which the occasioned. Emery v. Lowell, 104 Mass. 13. So if a general assembly, vested with the legislative power of city owns a wharf, and has the exclusive control of it, the State, delegates a portion of its governmental and receives wharfage or profit for the use thereof, it power, in order to meet those local wants of the peo will be held liable to a private action for an injury ple in cities and villages, for which State laws make suffered by an individual by reason of a defect in the only general provision, leaving a more particular pro structure. Piltsburgh v. Grier, 22 Pemi. St. 54. And vision to local councils. The manner and extent, to tbe same rule applies in respect to a city's failure to which legislative and governmental powers delegated keep its streets in a safe condition for public use, to municipal corporations for the public good are to be where this is a duty resting upon it. exercised, must rest, in a large measure, in their judg Of course, before a municipal corporation is subwent and discretion; but acting as State instrumen jected to liability for the misfeasance or neglect of its talities, they cannot be held liable to individuals for a agents or servants, it becomes material and sometimes defect in the exec tion of such powers, unless a right dillicult to determine whether they are in fact the of action is given by statute. Indeed in the distribu agents or servants of the corporation. It is said by an tion of the powers of government-as a part of the ma approved text writer that if the municipal corporation chinery of the State government—they enjoy, to a cer appoints or elects them, and can control them
tho tain extent, an inmunity from civil action in the per discharge of their duties, cau continue or remove formance of their legislative functions, like that of the them, can hold them responsible for the manner in sorereign State itself.
which they discharge their trust; and if those duties This principle is recognized in Wheeler v. City of Cin relate to the exercise of corporate powers, and are for cinnati, 19 Ohio St. 19, which was an action to recover the peculiar benefit of the corporation in its local or damages arising from the casual destruction of the special interest, they may justly be regarded as its plaintiff's house by fire, through want of an ellicient agents or servants, and the corporation will be held fire department. As an obligation rested upon the responsible for their acts, within the scope of their State, to aid by appropriate legislation, in the protec employmeut. And in broad terms, to the same effect, tion of the property of its citizens, it was held in that it is laid down in Wood Mast. and Serv., § 459, that if case, ibat the powers couferred upon the municipal even an independent public officer, or one whose duties corporations of the Stato to establish and organize fire are defined or specified by law, is in any measure subcompanies, procure engines, etc., to preserve buildings ject to the direction or control of a municipal corporaand property within their limits from conflagration, tion, and acts in obedience to its instruction, the relaare in their nature legislative and governmental, tion of master and servant exists, and the rule of leand that such corporations canot be held liable to spondent superior applies. The rule is predicated upon individuals for any defect in the exercise of those the right of the employer to discharge and control the powers.
servant. Blake v. Ferris, 5 N. Y. 18. So also in Western College, etc., v. City of Cleveland, Applying these principles to the uudisputed facts iv
this case, we think the cemetery trustees and the su
than for exempting private corporations and natural perintendent were placed in such relations to the city
persons under like circumstances. of Toledo, by the act of May, 1869, under wbich they In Hill v. Boston, 1:22 Mass. 314, the court, in tracwere elected, as to make them the agents of the city, ing the line of municipal liability, say that as to comand to render the corporation responsible to Cone for mon sewers built by municipal corporations under a the injury he received. At the time he was injured, power conferred by law, the power of determining the city owned, held the title to and the right of pos where the sewers shall be made involves the exercise of session of the cemetery. The cemetery was in the
a quasi judicial discretion, and therefore no action lies possession and charge of a board of three trustees of
for defect or want of sufficiency in the plan or system cemeteries, who had the entire management, control of drainage adopted within the authority so conferred; and regulation of the same, and who had been elected
but that the duty of constructing the sewers and for that purpose by the qualified electors of the city, keeping them in repair is merely ministerial, and at the annual election for corporation officers, in ac therefore for neglect in the construction or repair of cordance with the statute in such cases made and pro any particular sewer, whereby private property vided. All vacaucies occurring in the board were re is injured, an action may be maintained against the quired by the statute to be filled by appointment of city. the city council, and the council was clotbed with It is true that the election and term of office of the power to remove any trustee for inattention to his trustees were fixed by a general statute of the State, duties, want of proper judgment, skill or taste for the but the law did not require the city of Toledo to own due discharge of the duties required of him, or for or maintain the cemetery in question. Having howother good cause. The trustees were authorized to
ever voluntarily acquired the cemetery, and conappoint, subject to the approval of the council, all structed the city vault as a part thereof, the city acnecessary superintendents, employees and agents.
quiesced in the provisions of the statute, and accepted Under a superintendent thus appointed Cone was em the trustees and the superintendent by them apployed, and was required to obey his orders and di
pointed as its lawful agents for the mauagement and rections. The trustees were required, when neces regulation of the property. sary, to institute suits in the name of the corporation In Bailey v. Huyor, etc., 3 Hill, 531, the action was for the protection of ihe cemetery, and to see that all for injuries occasioned to property by the negligent ordivances of the city passed for that purpose were and unskillful erection of a dam on the Croton river duly enforced. The by-laws and regulations made by for the purpose of supplying the city with water. The the trustees were not to be inconsistent with the or
principal ground taken in defense was, that the dedinances of the corporation; and they were to perform fendants were not chargeable for negligence or unall such other duties, not specified in the statute and skillfulness in the construction of the dam, inasmuch pertaining to their office, as the council of the corpora as the water commissioners, under whose superiution might by ordinance prescribe. While the trus tendence and control the work was done, were not aptees might appoint one of their number to sell burial pointed by them, nor subject to their direction or conlots, notice of such appointment, upon its being made, trol, but were appointed by the governor of the State, was to be communicated to the council. All moneys with the advice and consent of the Senate, and were received and disbursed by them as trustees were to be answerable for their official conduct to the State alone, reported quarterly to the council. They were also to which could remove them at pleasure. But the court report annually in writing to the council, the number held that the commissioners, though appointed by the of lots sold during the year preceding, with a detailed State, were the agents of the corporation, and that the statement as to receipts, expenditures and invest latter was therefore liable; that it being provided by ments during the same period, and such other mat the charter granted to construct the work, that the ters as the council might require. And whenever in agents for executing the work should be appointed by their judgment an enlargement of the cemetery the State, an acceptance of the charter by the grantees grounds should become necessary, the trustees were to would render the agents their own. This authority bereport the fact to the council for its action in the prem comes of increased force when it is considered that the ises.
cemetery trustees were elected by the qualified electWe think it is evident from these statutory provis ors of Toledo, and were answerable for their official ions that the trustees of the cemetery in question conduct to the city council. were elected by the people of Toledo, to take charge, The cemetery and vault were a source of benefit and as their agents, of the cemetery property, and acted advantage to the corporation, and involved the same in that behalf in sudordination to and subject to re responsibility for their unsafe and improper managemoval by the council of the corporation. The in ment which pecuviary and proprietary interests entail provement or repair of the city vault, through their upon natural persons. By an amendment of section agency and that of the superintendent, was not a leg 371 of the act of May, 1869 (08 Ohio L. 130), the city islative or governmental act on the part of tho city, had authority to charge for burial lots, sufficient not but was merely the discharge of a ministerial duty, merely to keep in order and embellish the grounds, such as the city performs in repairing or improving its but also to reimburse the corporation for the cost of streets, sewers and wharves. It lay within the legis- lands purchased or appropriated for cemetery purlative capacity, judgment and discretion of the city to poses. The city vault was used for public purposes, provide a cemetery for the burial of the dead, and to
but it was also used by private persons for reward and build requisite vaults; but having become the owner of
hire, the money which they paid being accounted for such property, the city in managing it was held to the by the trustees, as they accounted for the proceeds of same degree of care in preventing damage to others as
cemetery lots by them sold for the city. The reimwould be required of natural persons. By section 8 bursement of the corporation treasury and the emoluof the act of May, 1869, municipal corporations are ment derived from the use of the vault, were for the made capable of acquiring, holding and possessing special local benefit of the corporation, and the State property, real and personal. Having such power, at large had no interest therein. The doctrine seems there would seem to be no more valid reason for ex to be well sustained that where a municipal corporaempting them from liability for private injuries tion owns property, and for its own benefit derives pecaused by the improper management of their property cuniary emolument or advantage therefrom in the
same way a private owner might, it is liable to the he is not a partuer. This question was distinctly presame extent as he would be for the negligent manage sented iu Richardson v. Ilughitt, 16 N, Y. 55, and it ment thereof to the injury of others. Oliver v. Il'or was there held that a person who has no interest in the cester, 102 Mass. 489, and cases cited.
business of a firm or in the capital invested, save that In Bailey v. Jayor, etc., of the City of low York, he is to receive a share of the profits as a compensasupra, the court in speaking of the grant for the erec tion for services or for money loaned for the benefit of tion of the water works, say: “The State, in its sore the business, is not a partner and cannot be held as reign character, has no interest in it. It owns no part such by a creditor of the firm. In that case advances of the work. The whole investment under the law, were to be made upon personal property, to be manuand revenue and profits to be derived therefrom, are a factured and delivered, for which, when sold, the depart of the private property of the city, as much so as fendant was to receive one-fourth of the profits and the lands and bouses belonging to it situate within its his advances with interest at five and a half per cent. corporate limits.” This language is not inappropriate | The case cited is directly in point, the same principle to the case at bar. It is suggestive of facts of a kind is involved and there is a striking analogy in the facts red nature, which contribute toward fixing upon the which renders it applicable to the question now conplaintiff in error, though a municipal corporation, tbe sidered. We are unable to perceive any distinction same liability which private corporations or natural existing between the two) cases which authorize a persons would incur for the neglect of their agents holding that is not in point. The case cited was apor servants in the care and management of their prop proved and upheld in ('urry v. Fowler, 8 X. Y. 33, and erty.
the principle decided is fully sustained in Eager v. Upon the facts disclosed by the record, we are of Crawford, 70 id. 97, and Burnett v. Snyder, id. 344. opinion that there was a cause of action in favor of These cases are conclusive upon the question considthe plaintiff below, and that the judgment entered ered, and none of the decisions in this State are adon the verdict for the plaintiff should not be re verse to the doctrine which is therein laid down. We versed.
do not deem it necessary, in view of the fact that the Judgment of the Court of Common Pleus affirmed. law upon the question discussed is well settled in this
court, to examine the English authorities bearing upon
the subject. C'assedy v. Hall. Opinion by Miller, NEW YORK COURT OF 1PPEALS ABSTR:1CT. J.
[Decided ()ct. 28, 1884.] CRIMINAL LAW-BAWDY HOUSE-CODE CRIJ. PROC.,
PARTNERSHIP-RETIRING PARTNER-LIABILITY TO $ 889—SENTENCE.—The common-law remedy by indict
CREDITOR NOT ILAVING NOTICE-ADMISSIONS ment against a person keeping a bawdy house was not
OTHER PARTXERS DO NOT BINI).—1 partner who abolished or superseded by the provision of the ('ode
retires from a firm may be held liable to all persons of Crim. Proc. as to disorderly persons ($ 889). It is
who had previously dealt with it, and who continued not essential to the validity of a sentence to imprison
to deal therewith until they have notice or knowledge ment in a county penitentiary, under the statute au
of his retiremeut. In Parsons on Partn. (2d ed.) 427, thorizing such imprisonment (Laws of 1874, ch. 209, as
it is said: “The reason of the rule is perfectly obamended by Laws of 1876, ch. 108, that it shall state
vious. They whom he authorizes to tbink him a part. that the prisoner is “to be receivech, kept and em
ner may hold hin as such; and being a partner, and ploged in the manner prescribed by law and the rules
being known as a partner, he authorizes all to think of the peuitentiary." That provision of the statute is
him so who do not know that he has ceased to be one. no part of the sentence, but is simply directory to the
If we suppose no fraud on his part, there is negligence keeper of the penitentiary. People v. Sudler, as Super
on his part, and of two innocent persons he should intendent, etc. Opinion by Earl, J.
suffer whose negligence caused the error.” In Story [Decided Oct. 21, 1881.]
on Part. (wth ed.), & 160, it is said : Whero anos. PARTNERSHIP-SHARE OF PROFITS DOES NOT MAKE. tensible or known partner retires from the firm, he -Defendants, IIall, Nicoll and Granbery, as parties of will still remain liable for all the debts and contracts the first part, entered into a contract with defendant, of the firm, ils to all persons who had previously dealt The U. S. R. ('o., which recited that the parties of the with the firm, and have no notice of his retirement. first part contemplated assuming control of said com This is a just result of the principle that where one of pany, when if erer they shall be satisfied that its busi two innocent persons must suffer from giving credit, ness was a profitable one, and that it was expedient ho who has misled the confidence of the other, and that some arrangement should be made whereby that has been the cause of the credit, either by his reprequestion might be determined; in consideration sentations, or his negligence, or his fraud, ought to sufwhereof and of the mutual covenants and agreements fer instead of the other." But the reason for holding it was agreed that the parties of the first part, to en tho retired partner goes so far only as to make him able the company to fill its order, should make advan responsible to innocent persons who continue to deal ces upon assignment of such orders for goods mamu with the firm, presumptively on the faith of his presfactured by the company, as they should approre. ence as a member thereof; and all obligations to such Said parties of the first part to collect cach of such persons created in such dealings bind the retired partorders, and out of the proceeds to retain the sun ad ner just as fully and thoroughly as if he continued to ranced thereon with interest and a proportion of the be a member of the firm. The rule thus defined goes profits made by the company, the same to be not less far enough to protect the former dealers with the than ten per cent of the face of the order. The com firm. After a dissolution of a firm by the retirement pany also executed to. II., Y. and G. i chattel mort of one of the members thereof, it is well settled ibat gage upon its property to secure such advance. In an the surviving members cannot bind him by their adaction to recorer for goods sold to the company, licii?, missions (Brisban v. Boyd, 4 Paige, 17; Walden r. that the contract did not constitute a copartnership boe Sherburne, 15 Johns. 109.; and it matters not whether tween the parties either inter sese or as to third per the dealer to whom the admissions were made knew sous. It is well settled that when a party is only in of the dissolution or not. It is sufficient that at the terested in the profits of a business as a means of com time the admissions were made the parties making pensation for services rendered, as was the fact under them had no right to bind, represent or act for the the contract in the case at bar, or for money advanced, partner who had retired. In Whitman v. Leonard, 3
Pick. 177, the following language was used by Parker, C. J.: “It is said however that as to a person accustomed to deal with the the partnership, it continued until he had notice of the dissolution; but that must apply to their usual dealings.” Pring'e v. Leverich. Opinion by Earl, J. [Decided Oct. 31, 1884.]
lette v. Wendt, 75 N. Y. 580; Juillard v. Chaffee, 92 id. 535; Ellis v. Willard, 9 id. 531; McMaster v. President, etc., 55 id. 228; Stanton v. Miller, 58 id. 203; Smith v. IIolland, 61 id. 6:35. But inasmuch as the question here presented relates to the uncertainty and ambiguity of the indorsement on the envelope, it is unnecessary to invoke the application of this rule in order to sustain the decision of the court allowing the intro. duction of parol evidence. Defendant proved that the loan was made for the benefit of one K. aud upou securities belonging to him; that plaintiff was advised for whom the loan was made; and its secretary asked to whose order the checks should be drawn; also that defendant wrote his name upon the envelope at the request of the secretary after the loan had been made. Held, that the evidence justified a finding that dofendant was not the borrower and did not contract to pay the loan. Plaintiff introducing evidence to the effect that its custom was not to take notes for loans, but envelopes similar to the one in question, and that the use of such envelopes was common at the time. Ileli, that this did not affect the character of the indorsement: that the language employed and the circumstances connected with its use could not be altered or changed by proof of such a custom. Union Trust Co. v. Ihiton. Opinion by Miller, J. [Decided Oct. 31, 1881.]
UNITED STATES SUPREME COURT AB
CONTRACT - PAROL EVIDENCE TO EXPLAIN — INDORSEMENT ON ENVELOPE-PROOF OF CUSTOM.-In an action to recover the amount of an alleged loan from plaintiff to defendant, the defense was that the loan was negotiated by defendant for and upon collaterals belonging to a discharged principal. Plaintiff proved the delivery of a check to defendant, payable to his order, for the amount of the loan, aud produced an envelope in which were the securities upon which the loan was made; upon this was indorsed the date of the transaction, defendant's name and place of busi. ness, written by him, the time of the loan, from whom, the amount of the rate of interest, and then a list of the securities. Hell, that the indorsement was not a contract, as there was no promise to pay, nor was it an acknowledgment of an indebtedness, or that defendant was the borrower, and that parol evidence was proper to show that fact. Where the language of an instrument is ambiguous, evidence of the surrounding circumtances may be resorted to for the purpose of determining what the real intention is. Brill v. Tuttle, 81 N. Y. 451. Parol evidence may also be introduced to show that even when a writing purports to be a contract it may not be such. Grierson v. Mason, 60 N. Y. 397. In the caso last cited the defendant has proved a contract and the plaintiff proved an instrument which altered the contract. The defendant introduced evidence to show that the instrument was not intended as an alteration of the contract, but was executed with the view of accomplishing in particular purpose. It was then laid down that such evidence was not given to change the written contract by parol, but to establish that such contract had no force, efficacy or effect. That it was not intended to be a contract, and that such evidence did not come within the ordinary rule of introducing parol evidence to contradict written testimony, but tends to explain the circumstances under which such an instrument was executed and delivered. It is also stated that the purpose for which a writing was executed may be proved by parol when not inconsistent with its terms. If the rules stated are applicable where there is a complete contract, much stronger reasons exist for invoking them where the terms of the contract are uncertain and ambiguous, as is the fact in the case at bar. The rule appears to be well established, that even although a contract is made out, if any ambiguity arises in reference to any portion of it, the question presented is one of fact for the consideration of the jury, upon such testimony, either in writing or oral, as the parties are able to present. See Brill v. Tuttle, 81 N. Y. 460; Field v. Munson, 47 id. 22:3, and Fabbri v. Ins. Co., 55 id. 133. The cases are numerous which sanction the introduction of evidence which will cast light upon those terms in the contract which are not clear and explicit, and serve to explain what the real intention of the parties was. This rule has been held to apply particularly to insurance cases of an analogous character where the language is uncertain and ambiguous as to the interest intended to be insured, and it is held that parol evidence is admissible to place the court in a position to be able to ascertain wliat interest the insured has, and what was intended to be corered by the policy. Pitney v. Glens Falls Ins. ('o., 65) N. Y. 13. Numerous cases sustain the rule that admissions, whether oral or written, may be explained or contradicted by parol or other evidence. DeLaval
MORTGAGE-FORECLOSUREWHEN RIGIT NOT CUT OFF.—The conditional surrender of notes secured by a mortgage does not cut off the right to foreclose the mortgage for their satisfaction in a case where the condition is not fulfilled. Howev. Lewis, 14 Pick. 329 ; Davis v. Maynard, 9 Mass. 242; Storer v. Wood, 26 N. J. Eq. 417. It has been held by many courts that a mortgagee camuot, upon a judgment recovered for a debt secured by his mortgage, levy the execution upon the mortgage property. Atkins v. Sawyer, 1 Pick. 351; Washburn v. Goodwin, 17 id. 137; Tice v. Annin, 2 Johos. (h. 125 ; C'amp v. Coxe, 1 Dev. & B. 52; Waller v. Tate, 4 B. Mon. 529; Powell v. Williams, 14 Ala.-176; Carpenter 1. Bowen, 4? Miss. 28; Linville v. Bell, 47 Ind. 517. Rut whether this be the established rule or not, it requires no authority to show that & sale of the mortgaged premises upon a judgment recovered on a part of the notes secured by the mortgage does not preclude the holder of other notes secured by the same mort sage from proceeding to foreclose it. A sale on such a judgment could only affect the equity of redemption, and would leave the rights of the holder of other notes secured by the mortgage waffected. Pugh v. Fairmont Gold and Silver Mining (o. Opinion by Woods, J. [Decided Nov. 10, 1881.]
CONSTITUTIONAL LAW-STATUTE TO BE COXSTRUED IN IIARMONY WITII CONSTITUTION-MUNICIPAL CORPORATION-SUBSCRIPTION TO RAILROAD INVALID SUBSEQUENT ACT LEGALIZING.-(1) That construction of a statute should be adopted, which without doing violence to the fair meaning of the words used, brings it into harmony with the Constitution. Cooley Const. Law, 181, 185; Newland v. Marsh, 19 Ill. 384; People v. Supervisors, 17 N. Y. 211; Colwell v. May, 4 C. E. Green, 219. And such is the rule recognized by the Supreme ('ourt of Mississippi in Marshall v. Grimes, 41 Miss. 31, in which it was said: “General words in the act should not be so construed as to give an effect to it beyond the legislative power, and thereby render the act unconstitutional. But if possible, a construction should be given to it that will render it free from con.
deed to H. of land of B., in trust, for the use of S. daring her life, and at any time, on the written request of S., and the written consent of B. to convey it to such person as S. might request or direct in writing with the written consent of B. Afterward B. made a deed of the land to W., in which Fl. did not join, and in which B. was the only grantor, and S. was not described as a party, but which was signed by S. and bore her seal, and was acknowledged by her in the proper manner. Ileld, that the latter deed did not convey the legal title to the land, and was not made in execution of the power reserved to S. It needs not much argument or authority to support the conclusiou at which we have arrived. In Agricultural Bank v. Rice, 4 Ilow. 225, 241, it was held that in order to conrey by grant, the party possessing the right must be the grantor, and use apt and proper words to conrey to the grantee, and that nierely siguing, sealing, and acknowledging an instrument, in which another person is grantor, is not sufficient. In the present case, if S. possessed the right, she was not the grantor, and used no words to convey her right. No intention on ber part to execute the power she possessed appears in the deed. Warner v. Connecticut Mut. Life Ius. Co., 109 U. S. 357, and cases there cited; Story Eq. Jur., $ 1062a. Moreover H. possessed the right, and was not the grantor, and was not requested or directed by S. to convey. 2 Perry Trusts, $ 778. Batchelor v. Brereton. Opinion by Blatchford, J. [Decided Dec. 1, 1884.]
stitutional objection; and the presumption must be that the Legislature intended to grant such rights as are legitimately within its power.” Again in Sykes v. Mayor, 55 Miss. 143: “It ought never to be assumed that the law-making department of the government intended to usurp or assume power prohibited to it. And such construction (if the words will admit of it) ought to be put on its legislation as will make it consistent with the supreme law." (2) A municipal subscription to the stock of a railroad company, or in aid of the construction of a railroad made without authority previously conferred, may be confirmed and legalized by subsequent legislative enactment, when legislation of that character is not prohibited by the Constitution, and when that which was done would have been legal had it been done under legislative sanction previously given. In Sykes v. Mayor, 55 Miss. 137, it was held that after tho Constitution of 1869 took effect, the Legislature could not, by retrospective enactment, make valid an issue of municipal bonds executed prior to the adoption of that instrument, without legislative authority ; because, said the court, “the measure of its power was the Constitution of December, 1869, and it could not ratify an act previously done, if at the date it professed to do so, it could not confer power to do it in the first instance. It could authorize a municipal loan conditionally. In order to ratify and legalize a loan previously made, it was bound by the constitutional limitation of its power.” Further in the same case: “The idea implied in the ratification of a municipal act performed without previous legislatire authority is that the ratifying communicates authority which relates back to and retrospectively virifies and legalizes the act, as if the power had been previously given. Such statute is of the same import as original authority. * If the Constitution had altogether denied to the Legislaturo the delegation of such power to counties, cities, and towns, it is manifest that it could not vitalize and legalize a subscription made before its adoption, and without authority of law. If that be so, it follows that in dealing with the subject at all, it is bound by the limitation of section 14 of article 12 of the Constitution." In ('utler v. Board of Supervisors, 56 Miss. 115, the question was as to the power of the Legislature to ratify and legalize certain municipal bonds issued to a railroad corporation by a county board of supervisors in pursuance of a vote of the people, with interest coupons attached, payable semi-annually. The statute under which the board proceeded authorized bonds with interest payable annually. The people howerer roted for bonds with interest payable semi-annually. The court sustained the constitutionality of the curatire act. It was said: " This is far from being an effort to impose a debt on the county without its consent. The agreement of the people of the county to incor the debt, in the precise shape which it assumed, has been expressed. Their representatives, the county authorities, in execution of that will, havo delivered the bonds, and the Legislature afterward affirmed. If there has been any departure from the letter of the original authority, it acquiesces in such deriation, cures the irregularity, and nakes valid the bonds. The principles announced in Supervisors V. Schenck, 5 Wall. 776, 789, fully support these views." These doctrines are in accord with the views of this court as indicated in several cases. Ritchie v. Franklin, 2:2 Wall. 67; Thomson r. Lee Co., 3 id. 3:27; City of Lamson, 9 id. 485; St. Joseph v. Rogers, 16 id. 663; ('ampbell «. City of Kenosha, 5 id. 194. Board of Supervisors of Grenada Co. v. Brown. Opinion by Harlan, J. [Decided Nov. 17, 1884.]
DEED-TODD-EXECUTED BY OSE NOT DESCRIBET) AS GRANTOR.-S., the wife of B., joined with him in a
CotRT OF APPEALS CALENDAR. Edilor of the albany Law Journal:
I have been somewhat surprised to observe that the very interesting discussion on the subject of relief to the ('ourt of Appeals, which was carried on in your columns a year ago, ba's not this year been renewed. It is not because the danger then dreaded has passed away. On the contrary, what was then only a safe prediction has now become a disastrous reality. The present calendar of the court has 782 causes already upon it, which will be added to during the year by appeals from orders and from certain preferred causes; and the court, with all possible diligence, does not anmually dispose of more than about half of the number of cases that will thus be brought before it. If it disposes of the first 100 cases on its printed calendar, it will get by next December to cases where the return was filed in December, 1883. Of the appeals from judgments not preferred the first that will be reached in the regular order are cases where returns were filed in the latter part of 1882. In other words, the court is now more than two years behind on its ordinary work, and is rapidly and steadily falling still further behind hand.
What is to be done? The evil grows by what it feeds on, for delay always tempts debtors defeated in the courts below to take frivolous appeals for the sake of that delay alone. If any relief is to be afforded to the court, and to the suitors who have business before it, that relief should be afforded at once.
Two kinds of remedies have been proposed: one by increasing the number of judges; the other by limiting the number of appeals.
As to increasing the number of judges, it is quite apparent that that remedy not only involves an aniendment to the Constitution, but that to be really efficacious there must be a division of the court into two or more branches of equal powers. The erils of such a division seem to me too obvious for extendad comment. Possibly an increase of two judges to the