Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 33 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 33 of 73)
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justly trace to the system of false or omitted accounts, a loss
of more than the penalty of the bond. If Bumham had sim-
ply stolen the funds from time to time, but had not falsified
the accounts, a jury might well conclude that the robbery
would have been promptly discovered, and much more than
<$5000 of it have been prevented. The court, therefore, should
have held the defendants liable for a breach of the bond in
the failure of their principal to faithfully perform his duty as
book-keeper, and submitted to the jury the question of dam-
ages resulting from that breach.

The judgment should be reversed, and a new trial granted,
costs to abide the event

All concur.

Judgment reversed.

LiABiLirv OF Sureties when Officers* Duties are Enlarged.—
There are several cases very much to the point upon the question involved
in the principal case. In People v. Vilas, 36 N. Y. 459. it was held that
t-he sureties upon the bond of a public officer, are not discharged by the
imposition upon their principal of new duties of a similar nature and
•character by an act of the legislature. In this case J. was in 1850 appoint-
ed a commissioner for the county of St. Lawrence, to loan the moneys
<A the United States deposited with the State under an act of 1839, and



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310 MAYOR, ETC., OF THE CITY OF NEW YORK V. KELLY.

the defendants became sureties for the faithful performance of his duties
as such commissioner, and during the continuance of his office the leg-
islature transferred to such commissioner* for the same purpose, moneys
formerly held by another commissioner under acts of 1792 and 1808, and
J. became a defaulter, to the amount of $500, in the funds last transferred
to him, and to a lax^er amount of the original fund. Held, that his sureties
were liable for the whole amount of his default. In Board of Supervisors
V, Clark, 92 N. Y. 391, it was held that the imposition by the board of
supervisors of a county upon the county treasurer, during his term of
office, of the duty of raising, keeping, and disbursing large sums of
money in addition to the usual and ordinary duties of his office, for in-
stance the raising and disbursing money during a war for bounty pur-
poses, does not discharge the sureties upon his bond from all liability.

To the same general effect are the following authorities: Commonwealth
V, Holmes, 25 Gratt. (Va.) 771 ; Hatch v. Inhabitants of Attleborough,
97 Mass. 533; United States v, Kilpatrick, 9 Wheat. 720; White v. Fox, ^
Shepley (Me.), 341 ; Colter v. Morgan, 12 B. Monroe (Ky.), 278; German
American Bank v, Auth, 87 Pa. St. 416; Kindle v. State, 7 Black (Ind.),
586; Rochester City Bank v, Elwood, 21 N. Y. 88.

In Gaussen z/. United States, 97 U. S. 584, the court remarks: " If it be
conceded, as it may be, that the addition of duties different in theirnature
from those which belonged to the office when the officer's bond was given
will not impose upon the obligor in the bond, as such, additional responsi-
bilities, it is undoubtedly true that such addition of new duties does not
render void the bond of the officer as a security for the performance of the
duties at first assumed. It will still remain a security for what it was
originally given to secure."

There are some English authorities which maintain a contrary doctrine,
but they have been repudiated in the United States. Pybus v. Gibbs,6
Ell. & B. (88 Eng^ C. L. ) 902. See. also, Bonar v, McDonald, 3 N. L Cas.
226; Bartlett v. Att'y-Gen'l, Parker, 277 ; Napier v, Bruce, 8 C. &*F. 470-

Change of Statutory Duties.— The sureties of an official are gener-
ally liable for the faithful performance by him of all the duties imposed
by statute, whether before or after the execution of the bond, provided, of
course, that they belong to and come properly within the scope of the
office. Governor v, Ridgway, 12 111. 14; Comphert/. People, 12 111. 290;
People V, Leet, 13 111. 261 ; Smith v. Peoria Co., 59 111. 412 ; People «'-
Tompkins. 74 111. 482 ; People v, Vilas, 36 N. Y. 459; Mayor of New York
V, Silberns, 3 Abb. Pr. New Cas. (N.Y.) 236 ; Commonwealth v. Holmes, 25
Gratt. (Va.) 771; Commonwealth v, Galbert's AdmV, 5 Bush (Ky.), 43^r
United States v. Gaussen, 2 Woods, C. C. 92 ; Postmaster-General v.
Munger, 2 Paine U. S. C. C. 189 ; King v, Nichols, 16 Ohio St. 80 ; State v.
Bradshaw, 10 Ired. (N. Car.) L. 229; Dawson v. State, 38 Ohio St. i ; Board
of Supervisors v, Clark. 2 Am. & Eng. Corp. Cas. 333.

A total change in the functions of the office may discharge the sureties,
as they will be considered to have assumed the obligation on the faith of
the law existing at the time of the execution of the bond. Van Epps v.



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CAVANAGH V, CITY OF BOSTON. 3II

Walsh, I Woods C. C. 598; Fillden v. Lahens, 6 Blatch. C. C. 524; Ro-
mans V. Peters, 2 Rob. (La.) 479 ; Denis v. State, 60 Miss. 949.



Cavanagh

V.

City of Boston.

{Advance Case, Massachusetts, June 19, 1885.)

The city has no power to appropriate private property, without the
owner's consent, for the purpose of abating a nuisance existing on adjacent
lands. Such power can only be conferred by statute providing due com-
pensation for the property taken.

Such acts being beyond the power and authority of the common council,
the city cannot be held responsible in damages.

It seems that the liability, if any, rests upon the individuals who per-
formed the acts.

Action of tort to recover damages by reason of the con-
struction of a dam across South bay in the city of Boston.
At a trial in the superior court, the plaintiffs offered evidence
tending to show that they were at the time of doing the acts
complained of, and had ever since been, the owners in fee of
Wales Island and the flats adjacent thereto, situated in South
bay ; that at a meeting of the common council of the city ot
Boston, held June 3, 1880, the following order was passed :
" Ordered, that the board of health be requested to cause to
be abated the nuisance at present existing in the South bay
east of the New York & New England R. R., and the ex-
pense attending the same to be charged to the appropriation
for health." At a meeting of the board of aldermen, held
June 10, 1880, the said order was referred to the committee
on health, in concurrence with the vote of the council, passed
June 3. At a meeting of the common council, held July 12,
1880, the committee on health recommended the passage of
the following order :

** Whereas, The board of health has declared a nuisance ex-
ists, consisting of effusive flats on the territory between the
track of the New York & New England R. R. Co. and
Dorchester avenue, which can be abated by the construction



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312 CAVANAGH V. CITY OF BOSTON.

of a dam, at an estimated cost of $4600, and as the annual ap-
propriation, granted to said board, does not contemplate such
an expenditure, it is hereby

"Ordered, That the committee on finance be directed
to furnish the means for the abatement of the aforesaid
nuisance."

This report was accepted and the order passed by both
branches of the city government. At a meeting of the board
of aldermen, held July 26, 1880, the committee of finance
reported the following order granting the request :

" Ordered, That the auditor of accounts be, and is hereby
authorized to transfer from the reserve fund, the sum of
$4600, and that said sum constitute a special appropriation
for the purpose of constructing a temporary dam across
South bay between the New York & New England R. R.
track and Dorchester avenue, for the abatement of the nui-
sance on the flats therein located ; and that the board of
health is hereby authorized to have said temporary dam con-
structed at an expense not exceeding the sum herein pro-
vided."

At a meeting of the common council, held July 29, 1880,
the report and order of transfer of $4600 from the reserved
fund for the abatement of the nuisance was passed in con-
currence.

Upon the petition of the city engineer, the State board of
harbor commissioners also granted a license to construct the
dam. The defendants offered as evidence, subject to the
plaintiff's objection, the record of the board of health of the
city of Boston, from which it appeared that, at a meeting of
the board, held September 6, 1880, it was ordered that the
city engineer be requested to abate the nuisance, by erecting
a dam, according to the plan proposed, at a cost not exceed-
ing $4600.

Upon all the evidence in the case, the court ruled that the
action could not be maintained, and directed a verdict for
the defendant, and the plaintiffs alleged exceptions.

W, E, L. Dillaway for plaintiffs.

7". M. Babson for defendant.

C. Allen, J.— The difficulty with the plaintiffs' case is
that neither the board of health nor the cit\' government had



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CAVANAGH V. CITY OF BOSTON. 313

any authority to abate the nuisance in the manner which was
adopted. That manner was by the erection of a dam, the
easterly portion of which was built across the ^othowtt of
flats and upon the upland of the plaintiffs, for ST^ra^ro
the purpose of raising the water so as to flow ^^"'"^'^^ck
over other flats away from the flats of the plaintiffs, the
plaintiffs' evidence tending to show that no nuisance ex-
isted on their own flats. This was an occupation of
the plaintiffs' land, which the city had no power to make
without the plaintiffs' consent. No statute conferred the
power of appropriating the plaintiffs* property for public
uses, nor provided compensation to them for damages sus-
tained by such appropriation. When the preservation of the
public health has been thought to require such acts as the
filling of land or raising the grade over a considerable extent,
of territory, or the covering of land with water, or the removal
of dams from streams in order to allow better drainage, or to
prevent the accumulation of offensive materials, it has been
usual to pass statutes giving the requisite authority and mak
ing due provisions for the protection of the property of indi-
viduals. Instances of such legislation may be found in Stat.
1867, chap. 3o8i, which was before the court for consideration
in Dingley v. Boston, 100 Mass. 544 ; and Cobb v. Boston, 109
Id. 438 ; s. c, 112 Id. 181. In Stat. 1869, chap. 378, which was
under consideration in Phillips v. Co. Comm'rs, 122 Mass.
258 ; s. c, 127 Id. 262. In Stat. 1872, chap. 299, which was
before the court in Cambridge v. Munroe, 126 Mass. 496 ;
Bancroft v. Cambridge, Id. 438 ; and Read v. Cambridge, Id.
427. In Stat. 1873, chap. 340, which was considered in
Famsworth v. Boston, 121 Mass. 173. The general power
vested in boards of health and the city governments is not
adequate to dealing with such cases if it is impossible to come
to an agreement with the owners of property to be affected.
There is no general statute vesting in these bodies the right
of eminent domain or making provision for the compensation
ot persons whose property may be taken. The general
phrases contained in the city ordinances which have been
referred to, authorizing the city council to exercise the
powers vested in them for the preservation of the public
health in any manner which they may prescribe, cannot be
held to g^ve them authority to take private property for



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314 CAVANAGH V. CITY OF BOSTON.

public uses. No such power existed in the body which
enacted the city ordinances. In the present case, the acts of
which the plainti£Fs complain antount to an occupation of
their land for the purpose of building a dam thereon in such
a manner that cle^arly it was an appropriation of the land to a
public use. It was not a mere transient entry and occupa-
tion, though the dam was styled temporary, but there was a
substantial and practically exclusive occupation of a portion
of the plaintiff's land. Such an act was clearly illegal. It
does not fall within the principle upon which a brief or mo-
mentary occupation of private lands is sometimes justified
through necessity, as, for example, for the purpose of making
an arrest, or for the perambulation of the boundaries of towns
by the selectmen, or of ascertaining boundaries for public
purposes. Winslow v. Gifford, 6 Cush. 327. The present
case is a much stronger one than Brigham v. Edmunds, 7
Gray, 359. See, also, Baker v. Boston, 12 Pick. 194. No
doubt the plaintiff might have obtained an injunction to re-
strain the prosecution of the work if he had sought his remedy
in that form. Boston Water Power Co. v. Boston & Worces-
ter R. R., 16 Pick. 525. The acts done having been beyond
the authority and power of the city to do, the city cannot
be held responsible in damages for what was done under the
supposed authority of illegal and void votes. Spring v. Hyde
Park, 137 Mass. 554; Lemon v. Newton, 134 Id. 476; Gush-
ing V. Bedford, 125 Id. 526. But the liability, if any, rests
upon the individuals who performed the acts, as in Brigham
V. Edmunds', 7 Gray, 359.
Exception overruled.

Abatement of Nuisances by Exercise of Eminent Domain.—
Practically the same conclusion as that reached in the principal case was
arrived at in New York. A statute was passed in 1871, authorizing the
draining of private lots in the city of New York by the department of
public works, on the certificate of the board of heallii that the same was
necessary, etc. and providing for collecting the expense by an assessment
on the property benefited. It was, however, held unconstitutional in
making no provision for compensation to the landowners. In re Chess-
brough, 17 Hun (N. Y.), 561.

Power of Municipalities to Abate Nuisances.— It is well set-
tied that municipal authorities cannot arbitrarily declare a thing a nui-
sance or destroy valuable property which was lawfully erected or created,
where such thing or property is not a nuisance per se, until this faa has



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HOUGHTON COM. COUNCIL V. HURON COPPER MIN. CO. 315

been lawfully ascertained. Further, that where the necessary power has
been expressly conferred by the legislature* it is inoperative and void
unless the thing is in fact a nuisance, or was created or erected after the
passage of the ordinance and in defiance of it ; and. except in cases of
emergency, or where the use is clearly a nuisance, that fact should first be
established by judicial adjudication. Yates v. City of Milwaukee, 10
Wall. 497 ; Everett v. Council Bluffs, 46 Iowa, 66 ; Chicago, R. I. & P. R,
R. V. Joliet, 79 III. 25 ; Rye v, Patterson, 45 Tex. 312 ; Chicago v, Lafiin,
49 111. 172 ; Darst v. People, 51 111. 286 ; Underwood v. Green, 42 N. Y.
140; Pieri v. Shieldsboro, 42 Miss. 493.

See North Chicago, etc., Ry. v. Town of Lake View, 2 Am. & Eng.
Corp. Cas. 6 ; Rolfs v, Shallcross, 2 Am. & Eng. Corp. Cas. 191 ; City of
Denver v, Mullen, 4 Am. & Eng. Corp. Cas. 304 ; River Rendering Co. v,
Behr, 4 Am. & Eng. Corp. Cas. 320 ; Vogt v. Mayor, etc., of Baltimore,
4 Am. & Eng. Corp. Cas. 329 ; State of Maryland v. Mott, Ibid, 334.

It is also said, however, that these two propositions of law are not irre-
concilable ; that where a municipal corporation is authorized by its charter
to remove and prevent nuisances, generally speaking, the only restriction
upon that right is that what is done shall clearly be for the public health,
safety and convenience. Roberts v. Ogle, 30 111. 459 ; Lake View v, Letz,
44 111. 81 ; Comm. v, Worcester, 3 Pick. (Mass.) 462 ; Dubuque v, Maloney,
9 Iowa 450 ; Commissioners v. Gas Co., 12 Pa. St. 3I8 ; Comm. z'. Goodrich.
13 Allen, 546 ; Salem v. Railroad, 98 Mass. 431 ; Dingley v, Boston, loo
Mass. 544 ; Whyte v. Mayor, 2 Swan (Tenn.), 364; Williams v, Augusta, 4
Ga. 509 ; Mobile v, Yuille, 3 Ala. 137 ; New Orleans v, Philippi, 9 La. Ann.
44; People V. Albany, 11 Wend. (N. Y.) 539; St. Paul v. Colter, 12 Minn.
41 ; Collins v. Hatch, 18 Ohio, 523; St. Louis v. Bents, 11 Mo. 61 ; Taylor
V. Griswold, 2 Green (N. J.), 222 ; Peck v, Lockwood, 5 Day (Conn.), 22 ;
Phillips V, Allen, 41 Pa. St. 481 ; Baltimore v, Radecke, 49 Md. 217 ;
King V. Davenport, 98 111. 305 ; s. c, 38 Am. Rep. 89 ; Green v. Lake, 60
Miss. 451.

But see Lake v. Aberdeen, 57 Miss. 260.



Houghton Common Council

V.

Huron Copper Mining Company.

(Advance Case, Michigan, September 29, 1885.)

Where a municipal corporation seeks to condemn certain land for its
use, and there are separate pieces of land that are necessary to the full en-
jojment of either piece of land, they must all be condemned in the same
action.

Where it appears that the jury called are biassed in the matter to be
passed upon, a challenge to the array should be sustained.



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3l6 HOUGHTON COM. COUNCIL V. HURON COPPER MIN. CO.

Under the statute (act 124, Super. Laws 1883, P- ii5)» village corpora-
tions not empowered by their charters to purchase and hold lands outside
of corporation limits cannot condemn lands beyond corporation for use of
the village.

Appeal from Houghton.
71 M, Brady for petitioner.
Chandler^ Grant & Gray for appellant.

Sherwood, J. — The common council of the village of
Houghton, on the twelfth day of April, 1884, filed a petition
Facts. in the circuit court for the county of Houghton to

condemn for the use of the village, and to supply the village
and its inhabitants with water, a piece of land having upon it
a spring, and certain rights of way over it, and other parties'
lands, for a pipe-line between the spring and village lim-
its. The appellant, the Huron Copper Mining Company, was
made a party to the petition, with one other land-owner who
did not appeal, and two others who were not served with any
notice or process, or otherwise proceeded against than by the
filing of the petition. The petition was filed and the jurisdic-
tion of the court invoked under the provisions of law con-
tained in an act of the legislature entitled " An act to author-
ize cities and villages to take private property for the use and
benefit of the public, and to repeal act numbered 26 of the
public acts of 1882" (see Pub. Acts 1883, p. 115); and the
petitioner also showed to the court that it desired and should,
in addition thereto, ** avail itself of the provisions of law con-
tained in How. St. §§ 3090, 3109, and of any and all the laws
of the State of Michigan applicable to the premises." The
petition further described the land desired to be taken, the na-
ture and extent of its proposed use, and claimed that the fee
was necessary for the proposed improvement; states that
the common council of the village had declared the proposed
public use and improvement necessary ; " also had declared
that they deemed it necessary to take the private property
described for such improvement for the use and benefit of the
public ;" and further asked that a jury be summoned and im-
panelled to ascertain and determine the necessity to take
the property described for the use and benefit of the public
aforesaid, and to determine the just compensation to be made
therefor.



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HOUGHTON COM. COUNCIL V. HURON COPPER MIN. CO. 317

Summons was issued in accordance with the prayer of the
petition, and served on the twelfth day of May following,
upon the defendants, the Huron Copper Mining Company
and the Dacotah Mining Company. The Huron Company
appeared and moved to quash the proceeding^, for the follow-
ing reasons :

" (i) Because act No. 124 of the Session Laws of 1883, under
which the petition in this case is filed, is unconstitutional in
these respects, viz.: {a) The title of the act only allows con-
demnation inside the city or village, and does not allow the
condemnation of lands outside the city or village limits. (V)
The act provides for the summoning of a jury to condemn
property within the city or village limits, only from the city
or village, (^r) As to property outside the village limits, the
act provides for the summoning of a jury from the vicinity of
the property to be taken. (2) Because neither the charter of
the village of Houghton nor any statute of this State author-
izes the common council of said village to take or hold prop-
erty outside of their corporate limits for obtaining and secur-
ing a supply of water."

The motion of defendants' counsel was denied, and in the
entry of the order denying the motion the following order
was made by the court for obtaining a jury : " It is further
ordered, pursuant to the prayer of said petitioner, no suflfi-
cient cause to the contrary being shown, that the sheriff of
this county make a list of twenty-four freeholders, residing in
the vicinity of the property in the petition described, from
which to strike a jury for the hearing of said petition as
against said respondents, and that the attorneys of said peti-
tioners and said respondents, respectively, attend at the office
of the clerk of this court on the first day of July, 1884, at 10
o'clock in the forenoon of that day, for the purpose of striking
such jury, and that the sheriff, under^heriff", or deputy-sheriff
have then and there such list of freeholders, and that when
such jury shall have been struck, the clerk of this court issue,
under the seal of this court, a venire summoning such jury to
attend this court on the fifth day of July, A.D. 1884, at 9
o'clock in the forenoon of that day, which venire shall be
served by said sheriff."

Thereupon the respondent's agent made and filed in the
case an answer, setting forth that the spring is situated but a



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3l8 HOUGHTON COM. COUNCIL V. HURON COPPER MIN. CO.

short distance from the respondent's stump-mill, which is but
a mile from the village ; that it obtains its supply of water for
the mill from a pond, which is insufficient in quantity and
quality for its business ; and that it had already commenced
preparations for the purpose of utilizing the water of the
spring for its boilers at its mill, and it cannot obtain water
elsewhere for the purpose except at great expense, and the
spring will soon become a necessity in its business ; that the
' spring will not afford a sufficient supply for the use of the vil-
lage ; that a supply can be obtained elsewhere for the village,
at very little, if any, greater expense to the village ; that tKc
taking is not necessary for public use ; that the reasonable
compensation therefor would be an amount sufficient to enable
the respondent to obtain an equal supply of good water from
other sources, and reasserting the reasons given why the pro-
ceeding should not be further prosecuted, stated on the mo-
tion to quash.

The sheriff thereupon, after having taken an oath for the
purpose, made a list of the names of 24 persons from which
to select a jury in the case, and the respondent, the Huron
Copper Mining Company, by its agent, refusing to strike
six names from the list, the court did so for it The peti-
tioner then struck off six, and the remaining twelve consti-
tuted the jury by whom the case was tried.

Counsel for respondents, before the same were sworn,
challenged the array of jurors for the reason they were not
summoned from the vicinity of the property or body of the
county. The facts were made to appear that they were all
taken from a single township, and all but one taken from the
village of Hancock, in that township, where the subject of
water supply for that village and others had been freely dis-
cussed with a strong feeling in favor thereof, and in which
discussion several of the jurors had taken an interest The
court overruled the motion, and exception was taken, and the
case was ordered to\rial.

None of the rest of the property necessary to be obtained
had been secured, or proceedings taken for its condemnation.
The deeds offered for that purpose came too late, and should
have been ruled out. Testimony was taken upon the trial by
both parties, upon the conclusion of which, under the charge
given by the court, the jury returned a verdict that it was



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HOUGHTON COM. COUNCIL V. HURON COPPER MIN. CO. 319

necessary to take said premises for the use and purposes de-
scribed in said petition, and assessed the damages of the
said respondent, the Huron Copper Mining Company, at the
sum of $750. This finding of the jury was confirmed by the
circuit judge on the fifth day of August thereafter.

The four pieces of pi"operty mentioned in the petition all
lay outside the corporate limits of the village of Houghton,
and the appellant's parcel was the most remote therefrom. It



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 33 of 73)