« EelmineJätka »
tense relates to the purchaser's means or ability to pay, unless the pretense is made in writing and signed by the party charged.” A most salutary provision which prevents perjury and injustice. A protection however which is not extended to the civil debtor. This is the punitory remedy which will exact good faith in commercial transactions if enforced. And the law favors the prosecution of criminals.
Caveat venditor (as has been suggested), is the rule which should govern transactions involving credit. No
man is obliged to give credit to another, he acts on his BILL for relief. On final hearing on pleadings and
own good judgment, he is usually paid for the risk which he takes as he includes it in his price; the custom of " discounts for cash,” among merchants, illustrates this.
The creditor should be entitled to absolutely fair dealing, and protected from fraud and misrepresentation as to the debtor's ability to pay, and this the criminal law affords him.
If there is any offense now punishable by imprisonment in a civil action which is not a crime or a misdemmeanor, it should be made so.
The remedy by execution against the property of a judgment debtor is assisted by the proceeding supplementary to execution, which is a most efficient remedy when carefully pursued; you are more likely to find property by the examination under direction of counsel than from the debtor's schedule presented on application for a discharge; it is more prolific of discovery, and if you find property which is all you want, the court will direct it to be paid to a receiver, and in default of so doing he will be committed for contempt.
Here is a strong coorcive remedy, beginning at the right oud of the matter, after it has been discovered that the debtor has property and not before. The debtor may still be imprisoned, but his affair is with the court, which may discharge him in its discretion. He is under its control and care but not at the mercy of a relentless creditor.
Who will say that the community has suffered since the passage of the Stilwell Act, exempting honest debtors from imprisonment. Every argument which was urged in favor of its adoption, applies with equal force to the adoption of the Titus bill.
Many of the States have already passed similar laws abolishing imprisonment in civil actions altogether, including Maryland, Missouri, Minnesota, Mississippi, Alabama, Tennessec, Texas, and District of Col. umbia.
In Indiana, Virginia and Vermont, arrest is allowed in cases where it is made to appear that defendant is about to depart from the State.
In California imprisonment is allowed in same cases as here but limited to two years.
Even the opponents of the Titus bill agree that the law needs serious amendment. Is it notj best that a law so full of defects and inconsistencies, so subject to abuse, 80 grossly unjust and inhumane, and withal so impolitic, should be swept away altogether? The Senate has declared for four successive years that it should be; it remains to bo seen what the statesmen and law-makers of the House will do for the cause of humanity and higher civilization, and to place the Empire State abreast of sister States in enlightened legislation.
J. NOBLE HAYES.
the defendant in a suit to recover from a life insurance
proofs. The opinion states the facts.
THE CHANCELLOR. This suit is brought to recover one-half of a fund, represented by a bank check, given by the Masonic Mutual Life Insurance Compauy, of Newark, in payment of the debt and interest due on the decree of this court in Van Houten v. Pine, 11 Stew. Eq. 572. For the taxed costs and interest thereon the company gave its check to the complainaut in this suit, Abram M. FIassell, Esq., who was solicitor for the complainant (Mrs. Frances L. Van Houten) in that one, and for the debt and interest gave her its check payable to her order. That check was certified to be good by the bank on which it was drawn. Mr. Hassell took possession of it to secure him for the amount of his feo for collecting the money, according to au agreement between him and Mrs. Van Houten on that head, made before the suit was begun. She refused to indorse the check, or to authorize him in any way to receive the money for it, or to pay him the fee, according to the agreement. This suit is brought against her and Messrs. Pine and Ingalls, in their official capacities (one is president and the other secretary and treasurer of the company, which is unincorporated), and the bank, for relief in the premises, to establish Mr. Hassell's lien for the fee on the check and the fund which it represents, and to compel Mrs. Van Ilouten to indorse the check, or authorize him or some one elso to indorse it for her, so that he may draw the money, and after taking out his fee, pay the balance to her. The bill also prays that the company may be required to give to him a new check for or pay to him the amount of the fee, and pay her the balance. A general demurrer to the bill by Messrs. Pine and Ingalls has been allowed, on the ground that the bill presonts no claim for relief against the insurance conpany (infru p. 113). Since this suit was begun the money has, by agreement of parties, been drawn upon the check, and after paying $250 to the complainaut on account of his demand, and the like sum to the solicitor of Mrs. Van IIouten, the balance has been paid into court to the credit of the cause.
The complainant alleges that Mrs. Van Houten agreed with him, before the suit to recover the insurance money was brought, that if he would undertako to collect tho claim upon the policy, which was for $1,000, on the life of her deceased husband, she would pay him for his fee for the service one-half of the amount recovered, whether obtained by suit or compromise. If he failed to collect or settle the claim, he was to have nothing. She denies that she agreed to pay him any specified sum for his services, but in her answer admits that before the suit was begun she offered to pay him $500, but says he declined to accept that sum and declined also to enter into any agreement for payment of his fee out of the money to be recovered, on the ground that the existence of such agreement, if known, might prejudice her in the suit, and told her he would charge her only what was right. The proof establishes, by weight of evidence, the fact that the agreement was made as alleged in the bill. Not only does the complainant swear to it positively and distinctly, but he is corroborated by proof of the
ATTORNEY – INDIGENT SUITOR- AGREEUENT
AS TO COMPENSATIO.V.
NEW JERSEY COURT OF CHANCERY.
OCTOBER TERM, 1884.
HASSELL V. VAN HOUTEN.* Under the statute authorizing the assignment of counsel to indigent suitors, the complainant was assigned to assist
* To appear in 39 N. J. Eq. Reports 105.
cess the suitor will be provided with the njeans of remuneration. The complainant in this case has established a valid contract for the payment to him, for his services, of one-half of the sum recovered, besides his costs, and he should be decreed to have a lien accordingly upon the fund in court for so much of his claim as still remains unpaid, besides his costs of this suit.
"Nore. – By an old order in chancery, after a party
admissions of Mrs. Van Houten that such was the agreement between them. Jacob H. Van Ness testifies that after the suit was evded, she said that she had agreed with Mr. Hassell to give him half of the claim for his services. William M. Smith says she said he had agreed to give Mr. Hassell half of the principal for his services. William M. Clark testifies that she told him while the suit was in progress, and soon after it was begun, that she had employed Mr. Hassell to prosecute it, and that he was to have half of whatever he should recover. There is also evideuce that she made a like offer to another lawyer before she employed Mr. Hassell, but the former declined to undertake the business for a contingent fee. There is nothing opposed to this testimony by and on behalf of the complainant, except her own denial (notwithstanding what is said in the answer on the subject) that she ever agreed or offered to pay him any sum for his services. Mrs. Van Houten was in indigent circumstances, and unable to pay a lawyer for his services in endeavoring to collect her claim. According to the bill, she had offered to settle it with the company if they would pay her a comparatively small sum of money (froin $300 to $500), enough to buy a lot in a cemetery. The answer does not deny it. Mr. Clark testified that after the suit was brought she requested him to get a settlement with the company on those terms, but he declined. Before Mr. IIassell undertook the business, she appears to have been unable to get any one to prosecute or undertake to collect her claim, because she was unable to pay for such service. The amount recovered was $1,339.27, of wbich $339.27 was interest. The suit was in progress for over a year and a half. After the decree had been obtained, sho said she was willing to pay Mr. IIassell $500, one-half of the principal, and in her answer she says, as before stated, that she originally offered him that sum. He and she disagree as to his right to one-half, $169.63, of the interest. There is no legal objection to the enforcement of the contract in question. It has been held by the Supreme ('ourt that the law of champerty and maintenance does not exist in this State. Schomp V. Schenck, 11 Vr. 195. And I do not see any reason for denying the validity of such an agreement. If such agreenments cannot be euforced, there must be many cases in which the poor will be unable to assert their rights. It is true our law and practice provide for the furnishing by the court of the requisite professional assistance to poor persons having a cause of action or suit, and for the rendering by the attorney or solicitor and counsel, and of all other officers of the court, of their services in the litigation, without compensation, yet there are services, such as the procuring of the necessary proof, and expenses, such as the cost of priuting, etc., which may be requisite to the vindication of the suitor's rights, which are not thus devolved upon the attorney or solicitor or counsel so assigned. In this case, such an assignment of Mr. Hassell was mado. Out of the taxed costs recovered he paid all the fees to which, by law, the other officers of the court who had rendered services in the suit would have been entitled had there been no assignment. It is urged that under'that assignment he was bound to render his services without compensation, and therefore is dobarred from enforcing the agreemeut. But the object of the humane provisiou under consideration is to furnish to indigent suitors the means of vindicating their rights, which otherwise, because of their poverty, they would not be able to assert; and if they are unsuccessful, the officers of the court whose aid has been required under it must of necessity go without compensation. The fact that he has been so assigned will not debar the lawyer from enforcing an agreement for compensation dependent upon success in establishing the right, by which suc
had been admitted to sue in forma pauperis, and comsel had been assigned, no fee, prolit, or reward could be taken by him from the pauper, nor could any agreement be made for compensation afterward. Beames on ('osts, *118; 1 Dan. Ch. Pr. *41.
In Philipe v. Buker, I ('. & P. 533, in an action of assiumpsil for business done as a solicitor, with the common counts, it appeared that the defendant had employed the plaintiff to defend him in a suit in chancery ; that the plaintiff, before filing an answer therein, had prepared a petition that the plaintiff be allowed to proceed in forma pauperis, which was ordered, and the answer thereupon entered, but that the suit proceeded no further. HIcll, that the plaintiff, as solicitor, could only recover the amount of money he had actually paid out.
In Dooly v. Great Northern Railroad, 4 E). & Bl. 311; 2 El. & El. 576, the plaintiffsued in forma pauperis, and recovered £150, and the court certified for costs. The plaintiff's attorney thereupon paid fees to his counsel, and claimed in the bill of costs the fees so paid, and also remuneration for his own services. The master on taxation disallowed both. Lord Campbell, at chambers, approved the master's decision. On rule to show cause, Lord ('ampbell's ruling was affirmed. See also) James v. Harris, 7 ('. & P. 257; 1Ioare v. Coupland, 14 Jur, 247.
In Wriyht v. Burroughes, 3 ('. B. 311, a pauper plaintiff having behind the back of his attorney, and under circumstances showing an intention to deprive him of his costs, agreed with the defendants, in an action for unliquidated damages, to execute a release, and the defendant having pleaded the release, the court, at the attorney's instance, set aside the plea, Tindal, ('. J., saying: “It is the spes spolii alone that induces the attorney to undertake the conduct of a pauper cause.” See Quinnan v. Clupy, 10 Abb. N. ('. 394, note.
In llolmes v. Penncy, 9 Esch. 584, the plaintiff brought an action for work and labor, as an attorney. At the trial it appeared, in June, 1851, the defendant retained the plaintiff as his solicitor in a chancery suit, in which he was a defendant; that he stated to the paintiff that he was a poor man, but that he would be entitled to some property upon his father's death. The plaintiff agreed to do the work “upon the ordinary terms,” and consented not to press the defendant, but to wait until he should come into the possession of his property.
On July 29th the defendant obtained an order to proceed in the chancery suit in forma pauperis, and the plaintiff was appointed his solicitor therein, and the defendant had counsel also appointed to him.
Ou October 31st, defendant's father died, of which the plaintiff became aware, but took no steps to have the defendant dispaupered. On December 8th an order was made tbat the defendant should be dispaupered as from October 31st. On March 10, 1852, the bill in chancery was dismissed.
This action was brought to recorer compensation for services performed in the chancery suit, including counsel fees, which howerer had not been paid. The plaintiff recovered a verdict for £180, the full amount of his claim, with leave to the defendant to move to reduce it to such sum as the court should think fit. On a rule to show cause, held, that plaintiff could not re
cover for the counsel fees demanded by him; nor for ses, but with the design and intent to collect an un. skill and advice” between July 29th and October just and illegal tax from the plaintiff, passed an or31st; nor for any services rendered by him between dinance purporting to give to the plaintiff the right to October 31st and December 8th, Parke, B., saying: erect or maintain its telephone lines upon poles or “If the pauper is liable for this part of tho claim, it | posts in certain streets and publio alleys of the city in must be by virtue of some contract; but there was no such a manner as not to create obstruction to the free such evidence, and indeed the case was not rested upon passage of people travelling thereon; and also to run that ground at the trial; and if it had been, I think lines of telephone wires from such poles or posts along, it would have failed, as being a contract without con through, over, and across such streets and public sideration, and consequently nudum pactum. The alleys, so far as the right of the city was concerned; plaintiff clearly had no ground for charging the defend provided the plaintiff would first pay the city $300 for ant in his original agreement." See Revel v. Pearson, each and every year that the same should be so main12 Ired. 241.
tained; and that if it failed to so pay withiv ten days Iu Kelly's case (N. Y.C. P.), N.Y. Reg., May 10, 1883, after the ordinance was published, or within ten days Mrs. Kelly agreed with an attorney to give him one after May 1st, in any succeeding year, then the city half of what he might recover from a defendant, in an should cause such poles and posts to be taken down action for personal injuries to her. The attorney be and removed; that the plaintiff refused to comply with gan the suit in the Superior Court, but it was dismissed the ordinance until the defendant proceeded to cut with costs. Thereupon he began another action in the down and remove such poles, when the plaintiff was common pleas, and obtained an order to proceed in compelled to, and did, under protest, July 3, 1833 forma pauperis, and in this action the plaintiff ob comply with and pay the $300 so legally exacted; that tained a judgment. Hell, that as against the plaint thereafter, and August 24, 1883, the plaintiff demanded iff, the agreement io divide the money recovered was the repayment of the amount so paid, which was revoid, because the plaintiff sued i18 a pauper, and that fused, and this action was brought to recover the same. whether the defendant could or could not set off the The answer was to the effect that the defendant adcosts of the first action against the costs of the second, mitted the incorporation and the organization of the so far as the plaintiff was concerned, the attorney could plaintiff, but denied any knowledge or information not, by virtue of his agreement, raise that question. sufficient to form a belief as to whether the plaintiff See also Clark v. Dupree, ? Dev. 411.
had a license from the State, and alleged that the An attorney assigned by the court to defend ono Athearn ordinance was made without power or aucharge with a crime cannot recover from the county thority, and was therefore unlawful; that in any for his services. Cooley (Const. Lim. *331; also Case v. event it was repealed by the ordinance of June, 1883, Shawnee Co., 4 Kans. 511; People 1 Ilbany Co., 28 and recited the enactment of that ordinance, the reHow. Pr. 2:2; Wayne Co. v. Haller, 90 Pem. St. 99; fusal to pay as required, the pulling down of the poles, Wright v. Slate, 3 Heisk. 256; Elum v. Johnson, 48 Ga. and the cutting of the wires in consequence of such 318; Rowe y. l'uba Co., 17 ('al, 61; Kelley V. Andrew refusal; that the city had exclusive control and manCo., 43 Mo. 338; Dane v. Smilh, 13 Wis. 585; Weisbrod agement of such streets and alleys, and the right to v. Winnebago ('o., 20 id. 418; Reg. v. l'ogarty, 5 ('ox ('. abate and remove all obstructions therefrom; that C. 161 ; see Jones v. Goza, 16 Li. Am. 428; Gordon v. such poles were obstructions, and that such payment Dearborn Co., 52 Ind. 3:22.-Joun 11. STEWART, REP. had been exacted for the right and privilege of so
using and enjoying such streets and alleys for the pur
poses of the plaintiff's said business. The plaintiff TELEPHONE-POWER TO T'AX.
demurred to the answer upon the ground that it did
not state facts sufficient to constitute a defense, and SUPREME COURT OF WISCONSIN,
froin the order sustaining the same the defendant DECEMBER 16, 1881.
brings this appeal.
F'inches, Lynde & Miller, for respondent. WISCONSIN TELEPIIONE Co. v. ('ITY OF OSHKOSII.
John W. Hume, for appellant. A statuto authorizing the formation of telegraph companies applies to telephone as well as telegraph companies,
CASSODAY, J. The telephone is a new invention; 80 though not expressly mentioned.
recent that even our statutes, as revised in 1878, fail The imposition of a tax by the common council of a city upon
to mention it. By what authority is it at large iu Osha telephone company, unless expressly authorized by its
kosh? May that municipality legally exact a license charter, is void.
fee of $300 a year for the privilege of its remaining? This is the question that coufronts us. The corporate existence of the plaintiff, uot having been specifically
denied, stands as admitted. Section 4199, Rev. Stat.; It appears from the complaint in effect, that (cto Crane Bros. Manfg. Co. v. Morse, 49 Wis. 370; S. C., 5 ber 29, 1880, Athearn had, by permission, consent, and N. W. Rep. 815. Of course the corporation was necesapproval of the defendant, used and operated a tele-sarily formed and the character necessarily obpbone line in the city, and had erected poles in the tained, under chapter 86, Revised Statutes. As indi. streets and alleys thereof, on which were placed tho cated there is no express mention of any telephone necessary wires to use in the business, and continued therein. Section 1771 of that chapter does expressly to hold and operate the samo until March 21, 1881, authorize the formation of corporations for the “purwhen the plaintiff, having become incorporated, bo pose” of “building and operating telepraph lines, or came the owner thereof by purchaso from Athearn ; conducting the business of telegraphing in any way; that under chapter 315, Laws 1883, the plaintiff ob
or for any lawful business or purpose whattained a license from the State to operate its line and over, except” certain classes of business specifically conduct its business throughout the State during the mentioned. Precisely the same language is preserved year 1883; that prior to that act the plaintiff had es in the amendment to that section. Chapter 220, Laws tablished its line, office, and business in Oshkosh, and 1883. Such corporation, “to build and operate telehad by its wires connected its subscribers in that city graph lines, or conduct the busines of telegraphing," with many other cities and villages in that Stato; that is especially authorized to “conduct and maintain June 5, 1883, the “ defendant well knowing the premi- such lines, with all necessary appurtenances, from
APPEAL from Circuit Court, Winnebago county.
coveries as to the use of electricity for the purpose of
point to point upon or along or across any public road, highway, or bridge, or any stream or body of water,or conveying intelligence.” It is upon this theory of proupon the land of any owner consenting thereto, and gressive construction that the powers conferred upon from time to time extend the same at pleasure; aud Congress to regulate commerce, and to establish postmay connect and operate its lines with the lines of any offices and post-roads, have been held not confined to person, company, or corporation without this State; the instrumentalities of commerce, or of the postal and charge reasonable tolls for the transmission and service, known when the constitution was adopted, delivery of messages. But no such telegraph line, or but keep pace with the progress and developments of any appurtenance thereto, shall at any time obstruct the country, and adapt themselves to the new discovor incommode the public use of any road, highway, eries and inventions which have been brought into bridge, stream, or body of water." Section 1778. In requisition since the Constitution was adopted, and addition to the special powers so given, every such hence include carriage by steamboats and railways, corporation, when so organized, is mado a body cor and the transmission of communications by telegraph. porate by the name designated in its articles, and has Pensucola Tel. Co. v. IV. U. Tel. Co., 96 U. S. 1. If the powers of a corporation, conferred by the statutes, there remains any doubt as to the power given to necessary or proper to conduct the business, or ac charter a telegraph company being sufficiently broad complish the purposes, prescribed by its articles, but to include a telephone company, then it must be disno other or greater; and may take, manage, hold, con pelled by the general clause above quoted from section vey, lease, or otherwise dispose of, at pleasure, such 1771, to wit, " for any lawful business or purpose what. real and personal property, of whatever kind, as shall ever,except,'' etc.,for by a well-settled rule of construcbe necessary to its business or purposes, or to the pro tion these general words extend to things of a kindred tection or benefit of its property held or used for the nature, to those specifically authorized by the section, corporate business or purposes. Section 1775, Rev. and hence to whatever is of a kindred nature to teleStat.
graphing, which most certainly inoludes telephoning. It is urged that the power thus expressly given to Noscitur a sociis. form and organize corporations for the purpose of We must conclude that under the statute it was building and operating telegraph lines, or conducting competent to form, organize, and incorporate a telethe business of telegrapbing in any way, includes the phone company possessing like powers with those power of forming and organizing corporations for the given to telegraph companies. It appears in the repurpose of building and operating telephone lines, or cord before 118 that the poles and posts of the plaintiff conduct the business of telephoning in any way. Of in the streets and public alleys of the city, and the course there is a distinction between the two) classes of wires upon them, had been put there and operated to business, but in almost every respect they aro Juno, 1883, by the permission, consent, and approval of very similar, if not identical. Each of them must the defendant, under what was known as the Athearn erect its poles or posts, and upon the tops of them at ordinance. The common council had the power to tach its lines of wire from point to point. Each must pass that ordinance “for the benefit of the trade and almost necessarily enter upon, along, or across public commerco” of the city. Section 4, subs. 0, ch. 123, roads, highways, streams, bodies of water, and upon Laws 1877"; $ 3, subs. 6, ch. 183, Laws 1883. Of course the lands of individuals, for the purposes mentioned. the city had no power to authorize any permanent obIn these respects they seem to bo identical. One may struction or interference with the free passage or require more lines of wire than the other, but we are travel upon the streets and publio alleys. Ilume v. not aware of any other distinction outside of their of Mayor, 74 N. Y. 261; Cohen v. Mayor, 33 Hun, 401. fices or places of operation distinguishable to the naked Such obstruction or interference was expressly proeye. It is these indistinguishable features alone that hibited by the statute quoted. That ordinance did the city of Oshkosh had to deal with. Possibly there not attempt to give such authority, but the contrary. may be a marked distinction in the varying intensity All the poles and posts seem to have been set, and the of the electric currents in the one case and in the wires suspended, in accordance with the permission other at the point of transmission or receiving, or given in the ordinance. The plaintiff succeeded to the even at points along the line; but such difference,
property and rights owned and enjoyed by Athearn if it exists, hardly concerns the question here pre under that ordinance. Thus it appears that the sented.
plaintiff occupied certain portions of the streets and As for the difference in the mode of communication public alleys of the city to June, 1883, not only by es. by means of a telegraphic and telephonic apparatus, press grant of the Legislature, but by the express persee Attorney-General v. Edison Telephone ('o. of Lon mission of the city authorities. Assuming that the don, 6 Q. B. Div. 244; S. C., 29 Eng. Rep. 602. In that city might otherwise exact an an annual license from case Mr. Stephens, one of the judges of the exchequer the plaintiff for the privilege of operating its lines in division of the high court of justice, who unlike most the city, then it might, for the purposes of this case, American judges, seems to have sufficient time not be conceded that it was not precluded from so doing only to satisfy his own curiosity, but the curiosity of merely by reason of the poles and posts being set, and all the curious, has given a very lengthy and definitive the wires suspended, in pursuance of the Athearn ordiscussion of that subject. In that case the court con dinance. Tiemphis Gaslight Co. v. Turing District, clude that Edison's telephone was a telegraph, within 109 C. S. 398; Butchers' Union, etc., Co. v. Crescent the meaning of tbe telegraph acts, although the tele ('ity, cte., Co., 111 U. S. 7:16. But as we view this case, phone was not invented nor contemplated when those that question does not arise. Nor does the ques. acts were passed. It is there said, in effect, that the tion arise whether tho city could legally aumere “fact, if it is a fact, that sound itself is transmit thorize such occupation of the streets and ted by the telephone, establishes no “material dis public alleys against the will or consent of the abuttinction between telephonic and telepraphic commu ting owners, for the simple reason that the city did nication, as the transmission, if it takes place, is per not, by that ordinance, undertake to give such auformed by a wire acted on by electricity.” It is there thority. It only undertook to authorizo “so far as further said, that “of course no one supposes that the the rights of said city were concerned." Whether Legislature intended to refer specifically to telephones such occupancy was an additional burden upon the many years before they were invented, but it is highly highway, for which abutting owners might have exprobable that they would, and it seems to us clear that acted compensation, is a questiou upon which the they aotually did, use language embracing future dis courts are divided.
APPEAL from County Court, Milwaukee county.
The Supreme Court of Illinois has held that in the was given a room for the night. Before going to the room case of telegraph companies it was. Board of Trade he delivered to the night clerk $102 for safe-keeping, and Tel. Co. v. Burnett, 107 Ill. 507; S. C., 47 Am. Rep. 453. received a receipt therefor. During the night the clerk Iu Massachusetts the contrary doctrine has been held absconded with the money. IIeld, that C. was not a guest, by a divided court. Pierce v. Drew, 136 Mass. 75; S. and was not entitled to recover the money from the pro(., 49 Am. Rep. ñ. As tho question is not here prietor of the hotel. squarely involved we express no opinion upon it; nor as to whether the statute has given to telephone or telegraph companies the right of eminent domain. By chapter 315, Laws 1883, the plaintiff was required to
J. E. IVildish, for appellant. pay to the State annually a license fee of 1 per centum
John A. IVall, for respondent. of the gross receipts of its business within the State, and thereby it secured a license to carry on its busi COLE, C. J. The defendant in this action was a proness in the State. This it did. The act also provides prietor of the St. James Hotel in Milwaukee. The that such license fee shall be in lieu of all taxes for plaintiff was a single man, and kept a saloon not many any purposes authorized by the laws of the State, ex blocks distant from the hotel. The following facts cept upon certain specific property. Of course the are clearly shown by the plaintiff's own testimony: city could not levy a tax in violation of that act. But About 12 o'clock at night on the 13th of March, 1882, a mere license is not a tax. Nor could the city exact the plaintiff came to the hotel with a disreputable an additional license without legislative authority so woman whom he met on the street, and whose name to do. Joran v. New Orleans, 5 Sup. (t. Rep. 38. Un he did not know, and registered himself and the doubtedly the commou council bad authority, and it woman as “ Thomas ('urtis and wife,' called for a was its duty, by ordinances, resolutions, or by-laws, room, and it was assigned bim by a person or clerk to control and regulate the streets, alleys, and public who was in charge of the office. The plaintiff testified grounds of the city, and to remove and abate whatever that before going to bis room he said to this clerk that might be fairly regarded as an 'obstruction or en he saw on the top of the register that all money, and croachment thereon. Subs. 30, 3, subs. 6, ch. 183, jewels should be given to the proprietor; when the Laws 1883. The same section declares that the com clerk replied that the proprietor was in bed, and that mon council shall have like authority “to regulate, he held the position of night clerk. Thereupon the control, and prohibit tho location, laying, use, and plaintiff handed the clerk $102 for safe-keeping, and management of telegraph, telephone, and electric light took a receipt, which read, “IO. U. $102,” signed by and power wires and poles.” Sub. 66, id. But we do the clerk. That night clerk absconded with the not think this was designed as giving to the munici money. The plaintiff sues to recover it of the propriepality absolute authority to remove such poles and tor of the hotel. wires entirely from the city, nor to exclude such The natural, perhaps necessary inference from the companies altogether from carrying on or operating plaintiff's own testimony is that he went to the defendtheir business within the corporato limits of the city, ant’s hotel at midnight with a prostitute, and engaged but simply to regulate the samo, and to prohibit such a room solely for the purpose of having sexual interlocation in improper places. Otherwiso the municipal course with the woman. True, he says that he went ities of the State would have the power to nullify to the hotel as a guest, and asked the clerk if he what the Legislature had expressly authorized.
“could stay there for bed and breakfast.” But he Undoubtedly the common council, under the char lived near by, gave no reason why he did not go to ter, had the right to regulate, in order to guard and his usual lodging-place, therefore we feel entirely jubsecure the public safety and convenience, but their tified in assuming that he went to the hotel for the regulations, to be valid, should have been reasonable unlawful purposes above indicated. This being the and fair, and not have gone to the extent of confisca case, the question arises whether he was a guest in a tion, nor of wholly excluding the plaintiff from the legal sense, and entitled to protection as such. The city. American U. Tel. Co. v. Ilarrison, 31 N. J. Eq. learned counsel for the defendant insists that he can6:27. But express power to exclude merely would not not and should not be deemed a guest under the cirbe a grant of power to license. Leonard v. Cunton, 35 Miss. 189. The pecuniary exaction here was merely
cumstances, and entitled to the rights and privileges for doing what the Legislature had expressly author
of one. If the relation of innkeeper and guest did exized to be done. The mere oxaction of money for
ist between the parties, it is difficult to perceive upon revenuo only for such authorized act was not among what ground the defendant can escape responsibility the police powers of the city. Mayor v. Second Ave. for the loss of the money handed to the clerk or person R. Co., 32 N. Y. 261. Besides neither telephones nor in charge of the office; for the common law, as is well telegraphs are named among the several things that
known, on grounds of public policy, for the protection the common council are expressly authorized
to license.” Subs.2,5 3, subs. 0,ch. 183, Laws '83. The charter
of travellers, imposes an extraordinary liability on an having thus expressly stated what the common coun
innkeeper for the goods of his guest, tbough they may cil might license, without naming telegraphs or tele have been lost without his fault. phones, has by necessary implication prohibited the It is not easy, says Mr. Schouler, to lay down, on the exaction of such license of either of those companies. whole, who should be deemed a guest in the comExpressio unius est cxclusio alterius. It follows that the ordinance of June 5, 1883, exacting the $300 in
mon-law senso; the facts in each case must guide the question, was unauthorized by the charter, and in
decision. Bailm. 256. A guest is a “traveller or wayconflict with the statute, and therefore void. The farer who puts up at an inn.” Calye's case, 8 Coke, 32. order of the Circuit ('ourt is aflirmed.
“A lodger or stranger in an inn." Jac. Law Dict. A
traveller who comes to an imn and is accepted becomes LINKEEPER–G VEST- TAKING ROOM FOR PUR
instantly a guest. Story Bailm., § 477. “It is wellPOSES (F PROSTITUTIO.V.
settled that if a person goes to an inn as a wayfarer
and traveller, and the inkeeper receives him into his WISCONSIN SUPREME COURT, MARCII 31, 1885.
ind as such, ho becomes the innkeeper's guest, and the
relation of landlord and guest, with all its rights and CURTIS V. MURPHY.*
liabilities, is instantly established between them." C. went to a hotel near his residence about midnight with a
Jalie v. Cardinal, 35 Wis. 118. disreputable woman, registered as “C, and wife," and
“The cases show that to entitle one to the privileges *S. C., 22 N. W. Rep. 825.
and protection of a guest he must have the character