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 67 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 67 of 73)
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work and the magnitude and importance of the interests in-
volved, it is the duty of the city to adopt such methods. The
bill alleges negligence in constructing the sewer and in fail-
ing to use reasonable caution to purify the sewage. Negli-
gence in this, as in most other cases, is largely a question of
degree. If the plaintiflf shows that in constructing the sewer,
or in adapting the brook to its use as a sewer, the defendant
did the work in an improper manner, his bill can be main-
tained. So, if he proves that the defendant, in constructing
the sewer, could have adopted, at an expense which is rea-
sonable, a system of cesspools, or some other methods of
purification, at the mouth of the brook, it may be that his
bill can be maintained. We cannot say, in advance, that
some such methods may not be practicable and within the
duty of the defendant, to use reasonable precautions, in doing
the work authorized by the statute, to prevent a nuisance.
The allegations of the bill are so broad that the demurrer
cannot be sustained. The question whether, upon the exist-
ing facts and conditions, the defendant has been guilty of any
negligence, cannot be determined until such facts are devel-
oped by the evidence at the hearing. This is all that is nec-
essary for the decision of this case.

But to prevent misunderstanding we add, that, if the only
mode of preventing the pollution of the river is found to be
by the adoption of an extensive system of purification, inde-
pendent of the construction of the sewer, requiring: authority to

*,^-, - riT f CONVEBT brook

the takmg of large tracts of land, we must not be JSJnc^.^^f.
understood as implying that it is within the duty ««t^«^-
or the power of the defendant to do this. The power to con-
vert the brook into a sewer carries, by implication, the power
to expend money for any plan of work which is an incident
or part of the main work authorized by the statute ; but it
would seem that the statute does not give the defendant
power to take lands or expend money for an independent
system of sewage purification. If such system is rendered
necessary by the construction of the sewer, the remedy must
be sought from the legislature, which can best adjust and
settle the conflicting rights aud interests of the public and
the riparian owners upon the river. The bill further alleges,
as an independent ground of relief, that the defendant has,
within six years past, changed the outlet or mouth of Mill



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646 CITY OF ATCHISON et aL V. STATE ex tel. TUFTS.

river, so that it empties into the river at a point much nearer
the plaintiflF's mill than the original mouth was. We are of
opinion that this was within the power given by the statute
to alter and change the channels of the brooks. This power
embraced the whole brook, and gave the right to make a
change in its mouth as well as in any other part of the
brook. Woodward v. Worcester, 121 Mass. 245. There are
no allegations to show that the city, before doing this, had
exhausted its powers under the statute, or that for any reason
the act was illegal.
Demurrer overiruled.



City of Atchison et al. v. State ex rel. Tufts.

DiLGERT et al. V. Same.

Atchison Nat. Bank v. Same.

{Advance Case, Kansas, November 7, 1885.)

Where a city, without authority of law, caused a tax to be levied and
extended upon the tax-roll for the purpose of creating a fund with which
to pay certain bonds theretofore issued and delivered in payment of
bridges that had been built therein, and after the tax- roll had come to the
hands of the county treasurer for the collection of the taxes, a number of
the taxpayers of the city voluntarily paid the illegal tax thus levied. Held,
that the public has no such interest in the money thus paid as will au-
thorize the State to interfere and to maintain an action in the name of
the State, enjoining the treasurer from paying out the money so received
by him, and from disbursing it in* accordance with the will of those who
paid the same.

Error from Atchison county.

Action for injunction brought in the district court of At-
chison county on December 31, 1884, ^^ the name of the
State of Kansas, on the relation of James F. Tufts, acting
county attorney of Atchison county, Kansas, against the city
ot Atchison, Charles J. Drury, as city treasurer of the city
of Atchison, Dilgert & Wagner, John Peterson, James A.
Loper, county treasurer of Atchison county, Kansas, and the
Atchison National Bank. Demurrer sustained. Exceptions,
and petition in error. The opinion sufficiently shows the
facts.



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CITY OF ATCHISON et al z/. STATE ex teL TUFTS 647

Everest & Waggener and Smith & Solomon for plaintiffs in
error.

Coates & Bird for defendant in error.

Johnston, J. — On April 24, 1884, the city council of the
city of Atchison enacted an ordinance appropriating $25,000
with which to build certain bridges in the city, and as there
was no money in the treasury for that purpose, it was therein
provided that the proposition of issuing the bonds facts.

of the city in the amount of $25,000, to be used in payment of
the bridges, and the levy of a special tax to pay such bonds,
should be submitted to the qualified voters of the city for
their ratification or rejection. In accordance with the pro-
visions of the ordinance, the election was held on the four-
teenth day of May, 1884, arid upon the canvass of the vote by
the proper authorities it was found and declared that the
proposition had been carried. The city then entered into
contracts with the defendants Dilgert & Wagner and John
Peterson for the construction of the bridges, and issued and
delivered the bonds that had been voted in payment there-
for. Afterwards the city levied, and caused to be extended
upon the tax-roll a special tax of eight mills on the dollar of
the taxable property of the city, for the purpose of paying the
bridge bonds. The county treasurer obtained the possession
of the tax-roll and proceeded to collect this tax, and had col-
lected a considerable amount thereof, when, on December 31,
1884, this action was brought in the name of the State of
Kansas by the acting county attorney of Atchison county.
It was alleged by the plaintiff that the bonds issued for the
building of the bridges were for many reasons unauthorized
by law, and that the tax levied for the payment of the bonds
was illegal and void ; and the plaintiff prayed the court to en-
join the disbursement of the money collected, or to be col-
lected, upon such levy. To this extent a temporary injunc-
tion was granted, and upon the exceptions to the refusal of
the court to vacate the temporary injunction, and to the rul-
ing of the court upon the demurrers to plaintiff's petition
filed by defendants, they come here by their several petitions
in error, and raise the question that the State of Kansas has
no special interest in the subject-matter of the controversy,
and therefore cannot maintain this action.



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648 CITY OF ATCHISON et aL V. STATE ex rel. TUFTS.

In the determination of this question we must assume the
truth of all proper allegations in plaintiflTs petition, and for
the purposes of this case we will assume, but not decide, that
the tax in question, a portion of which has been collected, is
excessive, illegal, and void. It is to be noticed that the con-
tention in the case is in regard to the disposition of the
money arising from the alleged illegal levy. The plaintiff
does not seek to stay the hand of any of the officers in the
further collection of the tax, but only asked what the district
court granted, namely: that the defendants be "enjoined
from demanding payment of, or receiving, taxes heretofore
collected, or that may be hereafter collected, on account of
said levy of taxes for special bridge fund, the same being a
tax of eight mills on the dollar, for the year 1884, and en-
joined from paying out any of the money by them here-
after received on tax levy of the city of Atchison of what is
known as the * special bridge fund tax/ " Conceding, then,
that the tax is illegal, what interest has the State of Kansas
in the controversy ? If private rights and private interests
only are involved, then the State cannot maintain the action.
It can only be brought by the party who is beneficially or
sSS^w FUKD8 specially interested in the subject-matter. This is
SS^J^taxm" not a case to prevent a corporation or its officers
from violating the law, or from abusing the powers conferred
upon it by the law. The bonds alleged to be unauthorized
and illegal have long since been executed and delivered. The
bridges, for the payment of which the bonds were issued,
have been built and paid for by the city. The levy of taxes
said to be illegal has been made and extended upon the tax-
roll, and, so far as the city is concerned, it has consummated
what are alleged to be illegal and unauthorized acts. It
seems to us that the community at large had no special
interest in the relief prayed for, and was not concerned as to
the disposition of the fund which certain individuals had vol-
untarily paid in to be applied in payment of these bonds.
There is a striking analogy between this case and that of
State V. McLaughlin, 15 Kan. 228. There certain bonds al-
leged to be illegal had been issued by a school district, and a
levy had been made to pay them off, and the proceedings had
advanced so far that the county treasurer had possession of
the tax-roll and was proceeding to collect, with the other



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CITY OF ATCHISON et al. V. STATE ex rel. TUFTS. 649

taxes, the tax for the payment of the bonds, when the State
interfered, upon the relation of the attorney-general, and
asked that the county treasurer be enjoined from taking any
further proceedings in the collection of that tax. In speak-
ing of the right of the "State to sue, the court remarked that —

" It is obvious that this interference on the part of the State
is unnecessary for the protection of any rights. It is not a
case where, but for the intervention of the State, an irremedi-
able wrong would be perpetrated. Conceding the bonds to
be void, each and every taxpayer has ample protection by
an action of injunction. Nor is a multiplicity of suits neces-
sary. The tax, as a tax being illegal, all the taxpayers may
unite in a single, action. Hudson v. Commissioners Atchison
Co., 12 Kan. 140. It is apparent, too, that no action of the
corporation, the school district, is sought to be prevented.
... It is obvious that the State, as a State, has no direct in-
terest in this controversy, any more than a controversy be-
tween individuals. The payment of these bonds may be
illegal, but their payment works no greater wrong to the
State than the payment by a single individual of an illegal
debt. The single individual may, if he chooses, by appealing
to the ordinary proceedings of the law, protect himself
against such illegal payment. So may the many taxpayers."

Here the complaint is not made by the city nor by the tax-
payers. Probably for the purpose of showing an interest in
the public, the plaintiff alleges that some of the taxpayers are
in doubt about the legality of the tax, and are questioning
and refusing to pay the same. If this be true, and they desire
to prevent its collection, their remedy is ample and complete,
as shown by the decision in State v. McLaughlin, supra. A
taxpayer, or many taxpayers united, may maintain such an
action. In such a case the action would be between parties
actually and specially interested. A multiplicity of suits
could thereby be avoided, and the exact questions sought to
be raised in this case could be fully determined. The point
made that the county may be embarrassed by reason of the
objection to the tax, and the failure of the taxpayers to pay
the same, and the probable lack of bidders at the tax-sale
thereafter to be held, is without force in this proceeding. It
appears that the special bridge fund tax is separate and dis-
tinct from all other levies, and the taxpayer can therefore



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650 CITY OF ATCHISON et ol. V, STATE ex tel. TUFTS.

distinguish, if he chooses, the legal from the illegal tax. But,
more than that, the plaintiflF does not desire, or at least is not
asking, to restrain further proceedings in the collection of
the tax. In fact, by the petition of the plaintiff, it is assumed
and evidently intended that the county treasurer shall con-
tinue to collect the tax, and shall sell the property, if neces-
sary to accomplish that end. He asks that the county treas-
urer shall hold and not pay out the money hereafter collected
under such levy. As heretofore stated, the real controversy
in the case is in regard to the disposition of the money which
parties have voluntarily paid or may pay to the county treas-
urer for a specific purpose. It is true that the plaintiff, in
connection with the prayer to restrain the disbursement of
the money, ask^ that the bonds be declared void ; but it is
admitted that they have been already issued and delivered,
and it is conceded that there is authority in the city to issue
bridge bonds, and while the bonds may not have been issued
in conformity with such authority, yet it does not appear
from the allegations of the petition that they are void in the
hands of those holding them. This question, like the others,
can be determined in an action between parties interested.
However, this was not the real object of the proceeding, but,
as stated in the argument of the plaintiff in this court, it is an
action to prevent the illegal payment of money, and was not
brought to prevent the collection of the taxes. The plaintiff
argues the case upon the theory that the money in contro-
versy is a public fund, and therefore its application is a mat-
ter of public concern ; but if the levy was made without
authority of law, as the plaintiff alleges, the money which the
taxpayers choose to pay thereunder does not constitute pub-
lic revenue. Under that theory there was no legal obligation
resting upon the taxpayers to pay the money, and that which
they did pay does not constitute a public fund in which the
community at large has any interest. Its disposition is a
matter of private interest between the holder of the bonds
and the taxpayers of the city. So that in no view which can
be taken of the case can we say that there is such a public
interest as will authorize the State to interfere or to maintain
the action. State v, McLaughlin, supra; Ewing v. Board
Ed. Jefferson City, 72 Mo. 436 ; Attorney-General v. Salem,
103 Mass. 138; People v, Clark, 53 Barb. 171; Attorney-



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CITY OF ATCHISON ct al. V. STATE ex reL TUFTS. 651

General v. Burrell, 31 Mich. 25 ; People v. Booth, 32 N. Y.

397.

Indeed, it would seem from the showing made by the plain-
tiff that even the taxpayers could not maintain an action to
recover from the county treasurer the money reoove»t or
which they have paid. It appears to have been a JiJ^YPilSf'™'
free and voluntary act upon their part, and it has been settled
by the repeated decisions of this court that money thus vol-
untarily paid cannot be recovered back by the individual
paying the same. Phillips v, Jefferson Co. 5 Kan. 412 ;
Wabaunsee Co. v. Walker, 8. Kan 431 ; Kansas Pac. Ry. Co.
V. Commissioners Wyandotte Co., 16 Kan. 587; Sapp v. Com-
missioners Brown Co., 20 Kan. 243 ; Thimes v. Stumpff, 33
Kan. .

If the action brought by the plaintiff could be maintained,
the peculiar dilemma is presented of inferentially authorizing
the defendant James A. Loper to receive all moneys which
persons choose to pay on account of the bridge bonds, and after
its receipt to lock the same up in his hands so that it cannot
be applied in payment of the bonds, as intended by those who
contributed it, and cannot be applied or paid out by him on
any account nor for any purpose. The citizens of Atchison
may, if they see fit, absolutely donate their money to the
city or to any individual, and no reason is seen why they
cannot, if they desire to do so, contribute their money to be
applied upon the bonds issued in payment of the bridges that
have been constructed in the city. It would seem in such a
case that the defendant Loper would be regarded as a trustee
for the individuals payihg the same, and it would therefore
be his duty to apply the money so received in accordance
with the will of those for whom he was acting. However
that may be, we are satisfied that the public has no such
interest in the controversy as will authorize the plaintiff, to
maintain this action ; and therefore the judgment of the dis-
trict court will be reversed, and the cause remanded for fur-
ther proceedings.

All the justices concurring.



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652 TOWN OF BURLINGTON V. SCHWARZMAN,



Town of Burlington

V.
SCHWARZMAN.

(52 Connecticut, 181.)

Where a public way is obstructed by a fence set across the travelled
path, though easily removable, and a continuance of such obstruction is
threatened, an injunction will lie against the party making the ob-
struction.

The liability of a town for an injury received by a traveller from such
obstruction gives it a sufficient interest to make ft a proper party to bring
a suit for the injunction.

Suit for an injunction against the obstruction of a high-
way. Facts found and injunction granted. Appeal by de-
fendants. The opinion states the facts.

W. IV. Perry for appellant.

E. Johnson and 5. O. Prentice for appellees.

LoOMis, J. — This is an appeal from a judgment of the
Court of Common Pleas restraining the defendant, by in-
junction, from fencing in and obstructing a public highway.

The first ground of appeal is that the town is not the
proper party plaintiflF. It is contended that highways are
TO^wjow*?^ mere public easements which belong to the general
^^ n moH. rather than the local public, and, therefore, that
the town, as such, has no interest sufficient to maintain the
suit. The defendant fortifies this position, by the following
citation from High on Injunctions, § 756 : " The simplest and
most generally accepted test in determining whether one is
a proper party complainant to a bill for an injunction is
whether he possesses a legal or equitable interest in the sub-
ject-matter of the controversy." This would seem to be in
point, but it would have more weight as applicable to the
case at bar, were it not that the section immediately preced-
ing in the same treatise says : " The corporate authorities of
a town are proper parties to enjoin a public nuisance. Thus,
the erection of building^ upon a public square which has
been dedicated as such to the use of the inhabitants of a
town constitutes a public nuisance which may be enjoined



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TOWN OF BURLINGTON V. SCHWARZMAN. 655

by the corporate authorities/' It is obvious that the test
mentioned was never intended for universal application. It
needs, at least, this qualification, that where the threatened
act is one involving corporate responsibility, the town so
responsible may resort to this preventive remedy by in-
junction, upon the same principle as if the legal or equitable
title to the subject-matter was in the town ; or, perhaps, the
rule g^ven by the learned author needs no other qualification
than such a liberal construction of the terms " legal or equita-
ble interest " as would include corporate responsibility.

But the defendant also applies to the case another test,
which, he argues, is fatal to the plaintiff*s right to bring the
suit. This is found in section 783 of Wood on ^^^/liw^i
Nuisances. It is there stated that " unless the neSwsSSt ^to
party injuriously affected cpuld maintain an action bill for wjumo-
at law, he cannot maintain a bill for an injunction." This
cannot be necessarily the case, for the jurisdiction of a court
of equity is far more extensive than that of a court of law*
It is the very fact that a court of law cannot afford ample re-
dress for all injuries, or even any redress for some, that called
courts of equity into existence ; hence, when a right is vio-
lated, even though it is a merely equitable right, which a
court of law could not redress, equity will interfere.

Our conclusion is that the liability of the town to pay
damages in case a person is injured by the obstruction is a
sufficient interest to dnable it to appear as plaintiff" NmaANCB-iH-
in a complaint in equity to prevent the threatened ^""restoftowk
obstruction ; and if this position needs further confirmation
it may be found in the cases of City of New Haven v. Sar-
gent, 38 Conn. 50; Derby v. Ailing, 40 Conn. 410; Trus-
tees of Watertown v. Cowen, 4 Paige, 510 ; and Mayor, etc.,
of London v. Bolt, 5 Ves. 129.

2. The defendant's next claim is that if the plaintiff is the
proper party no case is shown for equitable relief. The facts
upon which the claim is based are the temporary temporary, re-
character of the obstruction, the fact that it might ^SS?l?Li„.°'
have been removed easily, even by a traveller, and J^*^''^*-
that a public prosecution might have been instituted or a
civil action brought by one injured against the defendant.

The defendant cites in support of the proposition Bun-
nell's Appeal, 69 Penn. St. 62. It is said in the opinion



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654 TOWN OF BURLINGTON V. SCHWARZMAN.

" that where a mere wall of stone and timber was built across
the road — a mere barricade temporary in character and
easily and inexpensively removed — a remedy by injunction
should be refused." This isolated passage comes fully up to
the claim made in this case, but the actual decision falls far
short of it; which was, not that an injunction should be
permanently refused, but only temporarily, till after a trial
at law ; for the opinion proceeds immediately to say, " This
is not the ordinary case, which was evidently in the mind of
the learned judge " (referring to the court below that had
granted the injunction), "of an old and long-known road.
. . . But here the facts that the road was never opened
throughout its entire length, . . . that the surveys lately made
had no reliable beginning or ending point, and that the route
has been disputed many years, are all reasons to lead a chan-
cellor to doubt, and to send the case to a jury ; while the ob-
struction complained of is but an unimportant barricade made
to contest the right, and not a permanent or valuable erec-
tion or likely to produce irreparable injury." All these
elements of doubt rendered it very proper to send the case
to a jury for trial before determining the question as to an
injunction.

It is quite possible that the Pennsylvania courts would go
to the length indicated in the passage from the opinion relied
upon by the defendant, for it must be conceded that there is
considerable contrariety of decision in regard to the nature
of the threatened act or exigency which will constitute such
an irreparable injury as to justify the remedy by injunction.
But as this branch of equity has been administered in this
State, we cannot doubt that the facts of the case at bar lay an
adequate foundation for an injunction.

Were the way merely a private one^ thus wrongfully ob-
structed and threatened, we think our courts would not
hesitate to enforce the remedy upon the ground of prevent-
ing a recurring grievance and a multiplicity of suits. But
its being a public way and the act a public nuisance makes
the case, in our judgment, vastly stronger; many people are
exposed to great annoyance and injury and may have occa-
sion to bring many suits. Moreover, the act complained of
is one that denies the existence and defeats all the purposes
of a public highway. Consequently the injury to the high-



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TOWN OF BURLINGTON Z/. SCHWARZMAN. 655

way as such may well be terrtied irreparable. All remedies
other than by injunction would be tardy, uncertain, and im-
perfect; that would be speedy, complete, and every way
effective. As to the remedy by injunction, we like the rea-
soning of Breese, C. J., in giving the opinion of the court in
Craig V. The People, 47 III. 496; although it refers to a more
important highway than the one now in question, yet the un-
derlying principle as to the nature of the remedy would be
the same in both cases. The judge says: "It is true an
action at law would lie against these appellants, should thej^
obstruct the road. . . . But this remedy . . . would not only



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 67 of 73)