entered into the agreement. It is not necessary to suggest that the paper was not correctly read to defendant. The evidence does not create the impression on our minds that it was incorrectly read, but the entire evidence strongly tends to show that defendant was induced by the acts and declarations of plaintiff to believe that he was to get the Sigmon option, and thereby secure another home, if he parted with the one which he then had. If, upon an appropriate issue, the jury so find, he should not be compelled to convey his home to plaintiff. The jury may well say, as was said by Judge Gaston: "We entirely acquit the plaintiff of intentional misrepresentation." But we find that the contract, in the light of the status of the parties, their acts and declarations, was not "certain, fair, and just in all its parts."

the court should rest. It cannot be that the
question whether the contract is one which
a court of equity will enforce specifically
is to be decided by the jury. The ultimate
decision of the case is to express, not the
arbitrary discretion of the judge, but the
sound judicial discretion, guided by the
principles and rules which have heretofore
been adopted and applied by chancellors in
similar cases. The judgment is, of course,
subject to review by this court. We would
suggest that, upon another trial of this
cause, the question presented by defendant's
prayer for instruction be submitted in the
form of an issue, or question of fact.
There must be a new trial.

If they so find, the court, administering CONNECTICUT SUPREME COURT OF

ERRORS.

LEWIS B. JUDSON

V.

BOROUGH OF WINSTED, Appt.

(80 Conn. 384, 68 Atl. 999.)

Municipal corporation - liability injuries through manipulation hydrant.

for

of

1. A borough is liable for private injury caused by the negligence of an employee in flushing a borough hydrant, if the flushing is an incident of its regular water service, but not if it is incident to its fire-departTrial - duty to instruct.

2. If evidence is introduced which will justify the submission to the jury of an issue in the case, it is incumbent on the court to give such instructions as will be adequate for the jury's guidance in reaching a proper conclusion upon the issue of fact presented. corporation purpose Municipal

equity in accordance with an enlightened
standard of morals applied to the daily
transactions of men, will not compel per-
formance on one part, and permit the plain-
tiff to refuse to transfer the Sigmon land.
The true principle is well stated by defend-
ant's wife, when she says: "I am willing
to stand by the agreement if they will."
The jury find that no damage is sustained
by the refusal of defendant to execute the
deed. An impression has prevailed to some
extent that, because "the distinction be
tween actions at law and suits in equity is
abolished" by the Constitution, equitable
rights and remedies are thereby destroyed.ment service.
This court has uniformly held that no such
result follows the change in the forms of
procedure. Ely v. Early, 94 N. C. 1; Boles
v. Caudle, 133 N. C. 528, 45 S. E. 835; and
many other cases. It is sometimes difficult
to so frame issues for the jury that equita-
ble rights and principles are presented. The
purpose of the reformed procedure certainly
was not to destroy, or impair, those rights
and remedies which the experience of the
ages had shown to be essential to a system
of enlightened jurisprudence. Prof. Pome-
roy, in his admirable work on Code Reme-
dies, says that the difficulty of administering
legal and equitable remedies in one form of
action has been experienced in the "Code
states," and that the same difficulty pre-
sented itself to the advocates of the new
procedure in England, while the measure
was pending in Parliament. It was obvi-
ated by inserting in the "supreme court of
judicature act" the following clause: "Gen-
erally, in all matters in which there is any
conflict between the rules of equity and the
rules of the common law, with reference to

the same matter, the rules of equity shall
prevail." In this case the issues do not very
clearly present the matters of fact in con-
troversy and upon which the judgment of

flushing hydrant.

of

3. That a hydrant is a part of a borough's water system, and is flushed under the su pervision of the superintendent of the water department, does not prevent the flushing from being so incident to the fire service alone as to relieve the borough from liability for injuries through negligent performance of the act.

Trial question for jury - purpose of flushing hydrant.

4. Whether or not a borough has succeeded in showing that the flushing of a

hydrant was for the benefit of the fire department, so as to relieve it from liability for negligence therein, where the hydrant was part of the waterworks system and flushed under supervision of its superin

Note.

the liability of a municipal corporation for The cases upon the question of injuries through use of fire hydrants are gathered in a note to Asher v. Hutchinson Water, Light, & P. Co. 61 L.R.A. 58.

lish and regulate a fire department, is, while | ice; and the jury were in effect so told. in the exercise of that power, performing a public, governmental duty, and therefore exempt from the application of the rule of respondeat superior. The defendant, as respects its fire service, comes within the application of this principle. 12 Special Laws, chap. 23, p. 763.

That aspect of the case alone was dwelt up-
on, so that the conclusion which the jury
must have drawn from the charge was that
the only issue in the case was that as to the
negligence of Griswold.
It would appear
that the court was under the impression
either that the fact that the hydrant
was an appliance connected with the wa-
ter system as hydrants are, necessarily
made it and all use and manipulation
of it, or of the water which might flow
through it, an adjunct, at least in part,
of the water-supply service, and prevented
its being considered in any proper sense an
incident of a fire service alone; or that the
general employment of Andrews as super-
intendent of the waterworks, when taken in
connection with the flushing of the hydrants
under his direction, was so conclusive of the
fact that the work delegated to Griswold was
not solely in the sphere of fire service that
any other contingency might be ignored. It
is not necessarily so, however, that fire hy-
drants may not be so installed and used that
they would be instrumentalities of a fire
department exclusively. It is not necessarily
so that a present use or manipulation of a
hydrant installed for a mixed purpose might
not be such as to justify its inclusion in fire

The finding states that the defendant offered evidence to prove and claimed to have proved, that the hydrant in question had been installed for use in extinguishing fires; that no revenue had ever been derived from the use of the water which passed through it; that the duty of keeping it, as also all the other hydrants in the borough, in proper condition for the use of t'e fire department, had for a number of years been intrusted to Andrews, who performed that duty in connection with his duties as superintendent of the waterworks, and that the flushing of the hydrant in which Griswold was engaged at the time of the accident was solely for the purpose of ascertaining if it was in repair in case of fire, and not as an aid in the sale of water. This statement suggests that the evidence introduced by the defendant, if accepted as true, may have fallen short of showing such an entire dissociation of the work in which Griswold was engaged from the water service, and such a complete as-service pure and simple. Neither is it imsociation of that work with the fire service possible that Andrews, holding the position as a distinct and independent department of of superintendent of the waterworks, should the activities of the borough, as would neces- have intrusted to him, by the borough, powsarily or naturally satisfy a reasonable trierers and duties entirely independent of the that the defendant had made out a case for the application of the principle of governmental agency. But the court evidently understood, and intended that this court should understand, that the defendant offered such evidence in support of its defense as to justify its submission to the jury upon the is sue of fact presented by the pleadings, and it was so submitted. In this situation, it was incumbent upon the court to give such instructions as would be adequate for the jury's guidance in reaching a proper conclusion upon the question of fact presented, and thereupon rendering the appropriate verdict. This it did not do. The doctrine to which the defendant appealed was not stated, and the issue involved not recognized. There was, indeed, at one point, an intimation that the law recognizes conditions under which NEW the defendant might enjoy some kind of immunity from the strict application of the principle of respondeat superior. What that immunity was, however, and the conditions under which it would be enjoyed, were not stated. On the contrary, the instructions appear to have been framed upon the assumption that the work in which Griswold was engaged was necessarily an incident, in part at least, of the defendant's water serv

water service. The defendant here undertook the perhaps not easy task of establishing some such conditions with respect to this hydrant or its present use as would stamp the flushing of it by Griswold, under Andrews's directions, as an act related to the fire-department service of the borough and to that alone; and it was for the jury, under proper instructions, to decide whether or not it had succeeded in presenting satisfactory proof of the necessary facts.

Other objections to the charge made in the reasons of appeal need not be considered. There is error, and a new trial is ordered.

The other Judges concur.

Office

JERSEY COURT OF ERRORS
AND APPEALS.

LEWIS LANG, Plff. in Err.,

V.

MAYOR, ETC., OF BAYONNE.

(74 N. J. L. 455, 68 Atl. 90.)

unconstitutional creation
- effect.

ficial acts

of

Police commissioners appointed under an
Headnote by GUMMERE, Ch. J.

unconstitutional law creating the office are, until the statute is declared to be unconstitutional by the courts, de facto officers whose acts are binding on persons affected thereby; and therefore a police officer removed by them cannot compel his reinstatement when the courts pronounce the statute unconstitutional.

E

(July 2, 1907.)

RROR to the Supreme Court to review a judgment in defendant's favor in a mandamus proceeding to compel reinstatement of plaintiff as a police officer. Af firmed.

Mr. Thomas F. Noonan, for defendant in error:

The acts of the board while in office de

facto, even though the act is void, are lawful and binding as to individuals.

2 Dill. Mun. Corp. 3d ed. ¶ 892, p. 883; Doe ex dem. Burke v. Elliott, 26 N. C. (4 Ired. L.) 355, 42 Am. Dec. 142; Burton v. Patton, 47 N. C. (2 Jones, L.) 124, 62 Am. Dec. 194; State ex rel. Mitchell v. Tolan, 33 N. J. L. 195, 201; Ex parte Moore, 62 Ala. 471; Duke v. Cahawba Nav. Co. 16 Ala. 372; Dillard v. Webb, 55 Ala. 468; King v. Miller, 6 T. R. 269; King v. Osbourne, 4 East, 327; Buncombe Turnp. Co. v. M'Carson, 18 N. C. (1 Dev.

The facts are stated in the opinion.
Mr. Gilbert Collins for plaintiff in er- & B. L.) 306; Robinson v. London Hospital,

ror.

Case Note.

De jure office as a condition of a de facto officer. Eliminating a class of cases, to which attention is called in the foregoing opinion, holding that the legal existence of a municipal or quasi municipal corporation cannot be collaterally drawn in question by private parties, the very decided preponder ance of authority-which, however, is not without a decided conflict-is to the effect that the existence of a de jure office is a necessary condition of a de facto officer. As is apparent from the cases cited under the following subdivisions, the doctrine is sustained not only by cases which have applied it with the result of holding that the person or persons in question were not de facto officers, and that their acts could not be upheld as such, but also by cases which concede the general doctrine, but either hold that in the particular instance there was a de jure office thus satisfying the condition, or undertake to limit and restrict the scope of the doctrine, and thus take the particular case out of its operation.

Office created by unconstitutional statute. The doctrine that the existence of a de jure office is a condition of a de facto officer is clearly declared and expounded by the United States Supreme Court in Norton v. Shelby County, 118 U. S. 425, 30 L. ed. 178, 6 Sup. Ct. Rep. 1121, and was there applied to acts of persons done before the unconstitutionality of the statute purporting to create the offices which they assumed to fill had been judicially declared unconstitutional. The court in that case specifically held that the members of a county board of commissioners purporting to have been created by an act eventually declared unconstitutional were not de facto officers so as to uphold bonds of the county issued by them before the unconstitutionality of the statute purporting to create the board had been decided by the courts. In this case the bonds were issued pending an appeal from a decision of the lower court upholding the statute. The court, speaking by Mr. Justice Field, utterly repudiated the contention

21 Eng. L. & Eq. 371; Heath v. State, 36 that a legislative act, although unconstitutional, may in terms create an office which will make its incumbent a de facto officer.

The cases which have criticized, or attempted to limit, the doctrine of this case, will be cited under subsequent headings. In the meantime attention is directed to the cases which have applied the doctrine where the persons whose acts are in question had assumed to be incumbents of offices created by statutes which were unconstitutional, though not judicially so declared prior to the acts in question.

The doctrine was applied in People v. Toal, 85 Cal. 333, 24 Pac. 603, holding that, the police court of a city having been illegally established because the legislature attempted to create it by resolution instead of a bill regularly passed, the incumbent was not a de facto officer. In view of the cases cited under a subsequent subdivision which hold that the doctrine does not apply to an office having a potential existence, it may be noted that the doctrine was applied in this case notwithstanding that it was clearly within the power of the legislature to establish such a court in a proper manner under the constitutional provision declaring that the judicial power of the state should be vested, inter alia, in a supreme court and such inferior courts as the legislature might establish in any incorporated city or

town.

In Hildreth v. M'Intire, 1 J. J. Marsh. 206, 19 Am. Dec. 61 (a leading case on the subject), the doctrine was applied by holding that the incumbents of the office of judge and clerk of a court of appeals, so-called, which the legislature had attempted to create in the place of the court of appeals ordained and established by the Constitution, which it undertook to abolish, were not de facto officers. The court said: "There might be, under our Constitution, and there have been, de facto officers. But there never was, and never can be, under the present Constitution, a de facto office." The court, however, suggested an exception in case the government were entirely revolutionized and all its departments usurped by force.

The case of State, Flaucher, Prosecutor, v. Camden, 56 N. J. L. 244, 28 Atl. 82, is suthi

Ala. 273; People ex rel. Sullivan v. Weber, 86 Ill. 283; State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409; State v. Douglass, 50 Mo.

593.

Mr. Elmer W. Demarest also for defendant in error.

in 1869, the board of councilmen of the city were authorized to establish a police force, and to regulate and define the manner of the appointment and removal of its members, and their duties and compensation; that the mayor was made the head of the police force when it should be created; that,

Gummere, Ch. J., delivered the opinion shortly after the incorporation of the municiof the court:

The plaintiff in error, by this proceeding, seeks to obtain a peremptory mandamus against the defendants in error, compelling them to restore him to his position as a member of the municipal police force. It appears from the alternative writ which was allowed by the supreme court, and from the return thereto, that, by the charter of the city of Bayonne, granted by the legislature ciently set out in the opinion in LANG V. BAYONNE, by which it is overruled.

pality, a police department was created under the provisions of the charter, and that, on the 3d of July, 1893, the plaintiff in error was appointed a member of the force. It further appears that a supplement to an act, entitled, "An Act to Remove the Fire and Police Departments in Cities of This State from Political Control," was passed by the legislature on March 30, 1905, by the provisions of which a board of police com784, it was held that an act authorizing a court commissioner, resident in a village, In Kirby v. State, 57 N. J. L. 320, 31 Atl. having jurisdiction to act in either of two 213, the court, upon the authority of the counties situated in different circuits, the Flaucher Case, held that, the statute boundary line of which ran through the creating the offices of license commissioners village, was void, and he was not a in certain counties being unconstitutional, de jure officer; and Cole, J., who wrote the incumbents thereof were not de facto the opinion said that his brethren officers.

Although the question under discussion does not seem to have been involved in People v. White, 24 Wend. 520, Chancellor Walworth, in that case, thus defined de facto officers: "An officer de facto is one who comes into a legal and constitutional office by color of a legal appointment or election to that office."

In People ex rel. Sinkler v. Terry, 42 Hun, 273, the general term of the third department, upon the ground that, in order that there may be an officer de facto, there must actually exist the office into which he can intrude, held that one acting as justice of the peace for a village under a statute which it declared unconstitutional could not be deemed a de facto officer. The decision was reversed by the court of appeals in 108 N. Y. 1, 14 N. E. 815, but the decision was put upon the ground that the act in question was constitutional. There were irregularities attending the election of the justice which, apart from the question of the constitutionality of the act, deprived him of the character of a de jure officer; and, as the court of appeals held that he was a de facto officer, its discussion of the question as to the constitutionality of the act creating the office seems to imply that the existence of the office was a condition essential to render the justice a de facto officer.

One assuming to act under an unconstitutional statute purporting to authorize actions in which the judge is interested or prejudiced to be tried by consent before a counselor of the court is not even a judge de facto, and his judgment is absolutely void. Van Slyke v. Trempealeau County Farmers' Mut. F. Ins. Co. 39 Wis. 390, 20 Am. Rep. 50.

were of the opinion that he was not even a de facto officer, and that, while he himself had some doubt upon the latter point in view of the earlier decisions, he deferred to their judgment on the question.

In Herrington v. State, 103 Ga. 318, 68 Am. St. Rep. 95, 29 S. E. 931, the court said that there was considerable, and perhaps the greater, weight of authority to the effect that there cannot be a de facto officer where the office purports to be created by an unconstitutional statute; but held that in any event there could not be a de facto officer where there was no color of legislative authority for the office,-in this case county policeman, which the person whose acts were in question assumed to fill.

In Farrington v. New England Invest. Co. 1 N. D. 113, 45 N. W. 191, the court said that there could be no such officer as deputy assessor de facto because there existed no such office de jure.

It will be observed that the following cases conceded the doctrine that a de jure office is a condition of a de facto officer, and admitted its applicability even where the office purported to have been created by an unconstitutional statute, though they held that the offices in question were de jure, thus satisfying the condition.

In Re Allison, 13 Colo. 525, 10 L.R.A. 790, 16 Am. St. Rep. 224, 22 Pac. 820, the court said that, when the statute creating a court or office is unconstitutional, there is no de jure court or office; and there is the highest authority for the view that there can be no de facto court or office in such case (citing the Norton Case). In this case, however, the court in question was held to be a de jure one.

In People ex rel. Stuckart v. Knopf, 183 Ill. 410, 56 N. E. 155, the court said that, In Fenelon v. Butts, 49 Wis. 342, 5 N. W. if the act which creates the office itself is