marriage the parties separated and have never lived together as husband and wife; that the marriage was performed in this Commonwealth and the libelant has resided here more than five years next preceding the filing of his libel; that since the marriage the libelee had committed the crime of adultery as charged in the libel.

Upon the foregoing evidence the court ruled that the libel could not be maintained, and dismissed it.

Messrs. W. S. B. Hopkins and Frank B. Smith, for libelant:

ant's sole charge, and if it is a nuisance the de- | husband and wife; that immediately after the fendant is responsible. Staple v. Spring, 10 Mass. 72, 74; Nichols v. Boston, supra. Such an occupation of the plaintiff's land cannot be excused, for the reasons assigned. A city cannot enlarge its school grounds by taking in the land of an adjoining owner by means of a wall or fence. The public use and the general benefit will not justify such a nuisance to the property of another. If more land is needed, it must be taken in the regular way, and compensation paid. But if by the action of the elements, or otherwise, without the plaintiff's fault, the defendant's wall comes upon the plaintiff's land and continues there, it becomes a nuisance, for which the defendant is responsible, and so are the authorities. Gorham v. Gross, 125 Mass. 232, 239; Khron v. Brock, 144 Mass. 516, 4 New Eng. Rep. 424; Eastman v. Meredith, 36 N. H. 284, 296; Hay v. Cohoes Co. 2 N. Y. 159; Tremain 7. Cohoes Co. Id. 163; Weet v. Brockport, 16 N. Y. 161, 172, in note; St. Peter v. Denison, 58 N. Y. 416, 421; Cumberland v. Willison, 50 Md. 138; Harper v. Milwaukee, 30 Wis. 365; Pumpelly v. Green Bay & M. Canal Co. 80 U. S. 13 Wall. 168, 181, 20 L. ed. 557, 561; Dillon, Mun. Corp. § 985.

The case is distinguishable from Middlesex Co. v. McCue, 149 Mass. 103, where soil from the defendant's land upon a hill-side was washed into the plaintiff's mill-pond by the rains, when the defendant had built no artificial structure, and had done nothing more than to cultivate his land in the ordinary way. Exceptions overruled.

EXCEPTIONS by libelant to a ruling of the Superior Court for Worcester County dismissing his libel filed to obtain a divorce from his wife because of her alleged adultery. Sustained.

The evidence proved that the libelant had had sexual intercourse with the libelee before marriage: that the libelee was pregnant as the result of such intercourse, and the libelant was under arrest, upon a bastardy process, instituted by the libelee, at the time of their mar riage; that the libelant married the libelee for the purpose, as he testified, "to give the child a name" and to have it born in lawful wed. lock, and under an agreement, made with the libelee, that they should not live together as NOTE.-The briefs and opinion in this case present the authorities on the question involved so fully that a note thereon would be superfluous.

I. Although the parties married under an agreement that they should not live together as husband and wife, the marriage was legal and binding, and the collateral agreement "not to live together as husband and wife," was a mere nullity, so far as the legality of the marriage was concerned, as contrary to the policy of the law.

Barnett v. Kimmell, 35 Pa. 13; Harrod v. Harrod, 1 Kay & J. 4, 16; Brooke v. Brooke, 60 | Md. 524.

Consensus non concubitus facit matrimonium. Dumaresly v. Fishly, 3 A. K. Marsh. 368; Jackson v. Winne, 7 Wend. 47; Dalrymple v. Dalrymple, 2 Hagg. Consist. 54: Sottomayer v. De Barros, L. R. 5 Prob. Div. 94, 98.

The mere present consent constitutes marriage, except that by statute law certain specific forms may or must be superadded and subsequent copula is not material.

Eaton v. Eaton, 122 Mass. 276; Lindo v. Belisario, 1 Hagg. Consist. 216; Patrick v. Patrick, 3 Phillim. 496; Walton v. Rider, 1 Lee, Eccl. 16; Potier v. Barclay, 15 Ala. 439; Graham's Case, 2 Lew. C. C. 97; State v. Patterson, 24 N. C. 346.

II. The agreement to separate and the living apart do not bar a decree for subsequent adul tery.

The fact that the separation was by agreement and mutual consent negatives any finding of desertion on his part.

Thompson v. Thompson, 1 Swab. & T. 231; Cooper v. Cooper, 17 Mich. 205; Lea v. Lea, 8 Allen, 419; Crow v. Crow, 23 Ala. 583.

If libelant has not committed the offense of desertion, this case is taken out of that line of cases which hold that a suitor for a divorce cannot prevail, if open to a valid charge of any matrimonial offense of equal grade under the

Statute with that which is the cause for the di-
vorce sought.

v. Cumming, 135 Mass. 386.
Handy v. Handy, 124 Mass. 394; Cumming

be on the condition that the parties should live
Agreements of separation are interpreted to
chastely.

L. R. 30 Ch. Div. 57.
Gandy v. Gandy, L. R. 7 Prob. Div. 77, 168,

either who afterwards commits adultery.
So a divorce may be maintained against

Morrall v. Morrall, L. R. 6 Prob. Div. 98; Anderson v. Anderson, 1 Edw. Ch. 380, 6 L. ed. 179; Galusha v. Galusha, 50 Hun, 185; Beeby v. Beeby, cited in 1 Hagg. Consist. 142, note; Woodcock v. Woodcock, cited in 1 Hagg. Consist. 143, note; Durant v. Durant, 1 Hagg. Consist. 733; Parkinson v. Parkinson, L. R. 2 Prob. & Div. 25, 27; Mortimer v. Mortimer,

Living apart by agreement is no bar to a suit for divorce brought by either against the other Especially is this so under the stringent Mas on the ground of adultery. A voluntary sepsachusetts rule, which holds that the presump-aration is not a license to commit adultery; and tion of the legitimacy of a child born in law ful wedlock can only be rebutted by evidence which proves beyond all reasonable doubt that the husband could not have been the father. Phillips v. Allen, 2 Allen, 453; Sullivan v. Kelly, 3 Allen, 148.

KENTUCKY COURT OF APPEALS.

NOTE.-Injunction to prevent passage of a municipal | the scope of the corporate powers and will not work irreparable injury. Murphy v. East Portland, 42 Fed. Rep. 308.

The decisions generally deny the power of a court to enjoin the passage of a municipal ordinance. Harrison v. New Orleans, 33 La. Ann. 222; Crescent City L. S. L. & S. H. Co. v. Jefferson Police Jury, 52 La. Ann. 1192; People v. New York, 32 Barb. 35, 9 Abb. Pr. 254, 10 Abb. Pr. 144; Warwick v. New York, 28 Barb. 223; Chicago v. Evans, 24 Ill. 52. This proposition has been qualified by adding the But supervisors will not be restrained by injuncproviso that the proposed ordinance is not beyondtion from paying illegal claims if it is not in excess

2. Withdrawal of an illegal ordinance, held by the city for wharf purposes.
after commencement of the suit will not defeat
the right to an injunction against its passage.

(October 8, 1891.)

PPEAL by complainants from a decree of

defendants in a suit brought to enjoin the passage of a municipal ordinance. Reversed.

The facts are fully stated in the opinion. Messrs. Lane & Burnett and T. L. Burnett for appellants.

Mr. H. S. Barker for appellees.

Lewis, J., delivered the opinion of the

court:

The

plaintiffs, who are numerous, state they are residents and owners of property in said City subject to municipal taxation, and engaged there in commercial business; that the City of Louisville has heretofore, by virtue of Acts of the Legislature, and with money procured by at corporate limits along Ohio River, land to be held and used, and which has so far been kept and maintained, in aid of its commerce and trade, for public wharfs, those using them for business purposes being required to pay wharfage: that, although the City of Louisville holds said property for public use, without right to transfer to another its power and duty to preserve and maintain public wharfs, and the commisThere was introduced in the general council sioners of the sinking fund are without right of the City of Louisville, referred to a joint to acquire or hold it for any purpose, yet the committee of the board of aldermen and board general council, mayor, and commissioners of of councilmen, and a report agreed, by a the sinking fund have wrongfully and unlawmajority of that committee, to be made in fav- fully agreed and conspired together for the or of passage of the following ordinance: City of Louisville to abdictate its right to and "That the mayor be and he is hereby author- possession of said property, refuse hereafter to ized to convey by deed of special warranty to preserve and maintain it for the purpose inthe commissioners of the sinking fund of the tended, and by deed convey it to the commis City of Louisville all of the real property front- sioners of the sinking fund, with a view and ing on the Ohio River acquired and held by the to the end the latter may sell, convey, or transCity for wharf purposes. Said commissioners fer it at discretion to private individuals, thereare to hold said property upon the same trusts by preventing public use of the wharfs, which and for the same purposes as it is now held by is indispensable to the business of plaintiffs said city, and to have the same power over, and others similarly situated. They further and authority to sell, convey, lease, or other-state that said ordinance, already prepared and erwise dispose of, the same, or part thereof, which said City now has. This ordinance to go into effect from and after its passage. But, before the ordinance was reported back by the committee, though on the same day of a regular meeting of the general council, the plaintiffs, now appellants, commenced this action against the City of Louisville, mayor, members of the general council (sued by names), and commissioners of the sinking fund, to obtain an injunction, which was granted temporarily, restraining the general council passing, and the mayor approving, that or any ordinance for like purpose, and the City of Louis ville conveying, and commissioners of the sinking fund taking possession of, controlling, or interfering with, any property acquired or

""

|

sent by the mayor to the general council, in pursuance of the scheme mentioned, will be at once passed, followed by immediate transfer of the property, and irreparable injury thereby done to the plaintiffs, unless the injunction be granted; and, the commissioners of the sinking fund being insolvent, there will be no adequate remedy at law. No answer was filed by the mayor, nor any member of the general council, except A. S. Stoll, of the board of aldermen, who, denying he was in favor of the passage of the ordinance, yet admitted it had been sent by the mayor to the general council for passage, and would have passed both boards thereof, if the injunction had not been granted. The City of Louisville by the city attorney, answered, denying its alleged want of power

of their jurisdiction. Merriam v. Yuba County, 72 although it takes the form of a resolution, may be Cal. 517.

The rule that the legislative action of a municipal corporation cannot be enjoined applies to prevent an injunction against the passage of an ordinance allowing gas companies to lay pipes in streets in violation of an exclusive privilege previously given to another company. Montgomery Gaslight Co. v. Montgomery, L. R. A. 616, 87 Ala. 245; Des Moines Gas Co. v. Des Moines, 44 Iowa, 505.

In the absence of bad faith a municipal council cannot be restrained from passing an ordinance within the scope of their authority to vacate a street. Meredith v. Sayre, 32 N. J. Eq. 557.

And an ordinance within the scope of the power of the municipality to provide for the payment of money without providing means of payment will not be enjoined although the amount of the proposed indebtedness will exceed the lawful limit. Murphy v. East Portland, 42 Fed. Rep. 308.

In California the Statute prohibits an injunction to prevent a legislative Act by a municipal corporation. Alpers v. San Francisco, 32 Fed. Rep. 503. But the grant of a franchise by a city council,

restrained by injunction. People v. Sturtevant, 9 N. Y. 263; Davis v. New York, 1 Duer, 451.

And tax-payers may enjoin the acceptance of an ordinance by a street railway company which would complete a contract in abuse of the corporate powers of the city. Cincinnati Street R. Co. v. Smith, 29 Ohio St. 291.

An injunction in limine will not lie to prevent a mayor from signing an ordinance passed by the municipal council purporting to repeal a previous ordinance which constituted a contract. New Orleans Elev. R. Co. v. New Orleans, 39 La. Ann. 127.

And an injunction will not issue to restrain the approval of an ordinance or resolution declining a trust for a charity where the city is not required by charter or ordinances to accept and administer it. Dailey v. New Haven (Conn.) post,

On the same principle that applies to ordinances the proceeding of a council to impeach a city officer is beyond the reach of an injunction. State v. Orleans Civil Dist. Ct. Judges, 35 La. Ann. 1075. B. A. R.

to transfer to another the wharf property; and, though it was averred the ordinance had, since commencement of the action, been withdrawn, there was no denial it was introduced, referred to a committee, and would have been at once passed, and the purpose of it carried out, but for the injunction. The commissioners of the sinking fund in their answer denied that the free and uninterrupted use of the wharves is, as alleged in the petition, indispensable to prosecution of the business of the plaintiffs, and, in substance, averred existence of power in the City of Louisville to transfer, and not only its own power, but, because charged with payment of the City's bonded debt, also its right to hold and control, the wharf property, and revenues arising therefrom.

were about to jointly do an act, not only, in our opinion, illegal, but of so serious a nature as transfer of the title of real property, held in trust by the City of Louisville, and change of its control from the general council, that has its powers and duties in respect thereto prescribed and defined, to a corporation, without right to own or hold it, and which, according to an uncontroverted charge in the petition, is insolvent. It is moreover apparent there would be, in case of such transfer, great danger of the wharf property being so managed as to impair its usefulness to the public, and seriously injure, if not prevent altogether, the successful prosecution of the business of plaintiffs and others; for it is hard to see what is the purpose of the commissioners of the sinking fund in seeking or accepting possession and control of the property, if not to increase revenue therefrom, by increasing wharfage beyond the present, and, it may be assumed, reasonable, rates, or else, by lease or transfer to particular persons, who, in consideration of special privileges or advantages, not enjoyed generally, would pay more than now received. The plaintiffs in this case are engaged in buying and shipping stove coal to Louisville for sale and delivery, which has to be landed at the city wharves, and the free use thereof, at reasonable charges, is obviously indispensable to their business. Consequently they would suffer a special and peculiar injury, distinct from that of the public, in case of either excessive wharfage or obstruction of free public use of the wharf property. "It is," says Dillon, "the prevailing and almost universal doctrine in this country that property holders or taxable inhabitants have the right to resort to equity to

It seems to us the pleadings in this case, independent of any testimony, placed beyond question that the mayor, members of the general council, or a majority of them, and commissioners of the sinking fund did agree upon the scheme mentioned in the petition for a transfer of the wharf property, and, if not restrained, would have carried it out; and if the power to make such transfer does not exist that scheme was, as charged, wrongful and unlawful; but whether the injunction sought was, in whole or in part, the proper remedy is the question for determination. The power of a municipal corporation to acquire land for the purpose of erecting wharves thereon, and to charge wharfage, is not a necessary incident of its charter, but must, like all its other powers, be derived directly from the Legislature; of course to be exercised within the limits and upon conditions of the grant. Dillon, Mun. Corp. 110. And, looking to the nature and purpose of such special grant, it must be re-restrain municipal corporations and their ofgarded as a trust, involving duties and obligations to the public and individuals which can not be ignored or shifted; for the power to acquire implies duty of the municipality, through its governing head, to maintain and preserve wharf property for benefit of the public, without discrimination or unreasonable charges for individual use. In every instance, so far as we have observed, wharf property of the City of Louisville has been acquired under Act of the Legislature, and paid for by taxation; and in no case is there evidence of legislative intention that it should be held otherwise than in trust for use of the public, and in aid of trade and commerce. The wharf property being so held, the City of Louisville cannot transfer its title or possession, nor, according to a plain and well settled principal, can the general council, which is by statute invested with power of control, and burdened with duty of maintaining, preserving, and operating the wharves, either delegate the power or disable itself from performing the duties. Id. SS 96, 97. It is even more manifest that "the commissioners of the sinking fund," which is a distinct corporation, created by that name for specified purposes, and invested with limited power, cannot hold or control the wharf property, authority to do so being nowhere given by its charter; nor would it be either provident or consistent with the purpose of its creation to so invest it.

We thus have a case where the defendants have either admitted, or failed to deny, they

ficers from transcending their lawful powers, or violating their legal duties, in any mode which will injuriously affect the tax-payers; such as making an unauthorized appropriation of the corporate funds, or an illegal or wrongful disposition of the corporate property, or levying and collecting void and illegal taxes and assessments." Section 914. And, though the question of power to enjoin illegal and wrongful disposition of corporate property has not been, at the suit of tax payers, directly presented to and decided by this court, the power of equity, in such action, to restrain the levying and collecting void and illegal taxes, which is founded on the same principle, has been distinctly recognized and sustained. Therefore, if, when this action was instituted, the ordinance in question had been already passed, it could undoubtedly have been maintained against the mayor and commissioners of the sinking fund, restraining the former from conveying, on behalf of the City of Louisville, title of the property, and the latter from taking possession of or interfering with it; for the plaintiff's had legal capacity to bring and prosecute the action. An act not only illegal, but of irreparable injury to them, was intended, and about to be committed, and they would have had no adequate remedy at law.

But it is contended in argument, and seems to have been the ground for dismissing the action, that a court of equity will not enjoin passage by a municipal body of an ordinance or resolution. In High on Injunctions (§ 1243),

relied on by counsel, it is said: "It is unques-in its private or proprietary character, property tionably true that purely legislative Acts, such or funds in trust for taxpayers and inhabitants as the passage of resolutions or the adoption of within its limits, occupies towards them a ordinances by a municipal body, even though relation like that of a purely private corporaalleged to be unconstitutional and void, will tion to its cestuis que trustent, who are its not be enjoined, since it is not the province of shareholders; for in each case the corporation a court of equity to interfere with the proceed- or its governing body is a trustee. And, if ings of municipal bodies in matters resting creditors or shareholders may maintain an acwithin their jurisdiction, or to control in any tion against the board of directors (the governmanner the exercise of their discretion. A ing body of a private corporation) to prevent distinction, however, is properly drawn be- or avoid an illegal and wrongful act, as untween the case of restraining an alleged act questionably they can do, why may not taxattempted under the authority and sanction of able inhabitants maintain one against a munica municipal body and restraining the corpora- ipal corporation and its governing body, the tion itself from granting such authority." But city council or board of trustees, to prevent, as in the same section it is conceded that "the well as avoid, an act, illegal and wrongful, question of equitable interference by injunc- done or about to be done in relation to proption with the legislative action of municipal erty, or funds held in trust? In High_on bodies has given rise to some apparent conflict Injunctions (§ 1241) is this language: "The of authority, and is not wholly free from restrictions thus placed upon equitable interdoubt." It is said by Dillon (§ 308) “to be ference with the action of municipal corporasettled that it is competent for the Legislature tions do not extend to cases where the act to delegate to municipal corporations the power sought to be enjoined is in excess of the corpoto make by-laws and ordinances, with appro- rate power, but are limited to cases of a conpriate sanctions, which, when authorized, have ceded jurisdiction, within the bounds of which the force, in favor of the municipality and the municipal power is acting; and, while it is against persons bound thereby, of laws passed thus shown equity will not enjoin the action of by the Legislature of the State;" and in a note municipal corporations while proceeding withcases are cited in which is stated the general in limits of their well-defined powers, as fixed proposition that courts will not enjoin the by law, it has undoubted jurisdiction to restrain passage of unauthorized ordinances, and will them from acting in excess of their authority, ordinarily act only when steps are taken to and from the commission of acts ultra vires.' make them available. Of course, if every Though it is not quite clear from the language municipal ordinance has the quality and force used whether the test of jurisdiction is meant of a law of the State Legislature, courts of to apply to acts of municipal corporations done equity would be without power to enjoin or as well in their public as private character, it otherwise interfere with passage of any; be- is manifest such restraining power, to be effectcause, on account of the peculiar structure ual, must operate upon the general council of of the state government, each of the three de-a city or board of trustees of a town; for acts partments thereof is distinct and acts in its own sphere, independent of the others. But the power delegated to a municipality to legislate is not, as to all subjects, absolute even within corporate limits. On the contrary, it is not only restricted by statute, but also subordinate to settled principles of law and equity, in view of which it is presumed to be delegated; for such a corporation is created for a double purpose, and consequently has a dual character,-one governmental or public, the other private or proprietary. As said in Oliver v. Worcester, 102 Mass. 489: "The distinction is well established between the responsibilities of towns and cities for acts done in their public capacity, in the discharge of duties imposed on them by the Legislature for their public benefit, and for acts done in what may be called their 'private' character, in the management of property and rights voluntarily held by them for their own immediate profit and advantage as a corporation, although inuring, of course, ultimately for the benefit of the pub lic." It was in reference to its governmental or public character that it was, in the case of Louisville v. Com., 1 Duvall, 295, held that a city or town in this State, "to the extent of the jurisdiction delegated to it by its charter, is but an effluence from the sovereignty of Kentucky, governs for Kentucky, and its authorized legislation and local administration of law are legislation and administration by Kentucky, through the agency of that municipality."

But a municipal corporation, when holding,

done in excess of authority, or ultra vires, cannot be committed by a corporation except by its governing body or head; and such must have been intended to be the meaning and scope of the proposition, for several leading cases in England are cited in which the power of a court of equity to enjoin passage of an illegal ordinance is distinctly recognized.

The case of Des Moines Gas Co. v. Des Moines, 44 Iowa, 505, cited by counsel, was as to the power of equity to enjoin passage of an ordinance repealing a former one, under which a contract had been made with the plaintiff. It was held by the court that the municipal council had, in reference to the matter, discretionary power, and was acting within the scope of it, and was neither violating a trust nor doing an irreparable injury to the plaintiff; and, though it was there said, in general terms, that the ordinance in question had the force of an Act of the Legislature, and could not be enjoined, it was still conceded that one creating a public nuisance might be, because it could not be a rightful subject of legislation, and the mischief therefrom might be irreparable, which was in effect a concession of the power in every case of like conditions.

In People v. Dryer, 90 N. Y. 402, it was upon principle and authority of previous decisions in that State, held that, while equity will not ordinarily interfere with matters resting largely in the discretion of municipal authorities, when the threatened action will produce irreparable injury, and consist in an