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a marble hall, modelled upon some English noble- ster's opinion the greatest of his time - a giant in man's country seat, and he kept also a deer-park.” | body and in mind. The best thing told of him by “Mr. Sullivan describes Mr. Gore as rather tall, Mr. Morse is the following: “While Mason was tryand in middle age, of full person and erect; but ing a case, the judge interposed with a question to he began to bend forward at an earlier age than a witness.
Mason promptly checked the reply, and, common.' He was bald on the top of his head, and turning to the court, said: "On which side does such hair as he had was ‘tied behind and dressed your honor put that question ? If for the other side, with powder. His face was round and florid, his we object to it as inadmissible; and if for us, we eyes black; his manners courteous and amiable. don't want it.'” If we are not mistaken, Mason His eloquence was dignified and impressive. In all furnished the grounds and theory of Webster's great his relations and deportment he had the bearing of argument in the Dartmouth college cause. a polished and well-bred gentleman.'”
In the instances of Lowell, Dana, and Dexter, we To one who has read the memoirs of Parsons, Mr. note the inheritance of intellect in those great New Morse does not tell much news of him. “He belonged England families, noticeable also in the Adams famto a school widely different from that of Dexter and ily. In this connection Mr. Morse concludes: “The Gore, Otis and Sullivan. They were gentlemen of grandson of Judge Charles Jackson, Oliver Wendell the old style, dignified, courteous in a stately fash- Holmes, Jr., perpetuates the professional acquireion, of a grand bearing, as much as to say to all ments of that very learned judge, and is well known persons, “We are the best.' Parsons, on the other not only as a practicing lawyer, but as a profound hand, was far from impressive after this method; student of the philosophy of the law. A son of he was rather a wag in his way, slatternly in dress Theophilus Parsons, who wrote the life of the chief and appearance, slouching in figure, an able lawyer, justice, was a lawyer and writer by no means withindeed, and distinguished judge, and showing his out ability and reputation in his day. Judge Story, ability in his countenance, but certainly with noth- one of the greatest lawyers not only of New Enging of the aristocrat about him.” "He injured his land, but of the United States, who would have health in early youth by over-application to his legal been chief justice of the Supreme Court had not studies; he grew thin, was ever afterward nervously President Jackson's ignorant and stubborn antipaanxious about his health, and became in short a hy- thy to the odious school of Story and Kent'stood pochondriac. He was an incessant worker, and in his way, was the father of William Story, lawhad other tastes and pursuits besides the law. He yer, poet, and sculptor, whose fame needs no trumwas six feet tall, with rather spindling legs, and in peting. William Prescott also might properly have the latter part of his life he was of a full habit. He been mentioned among those famous at the bar in was very careless in his dress, often tying a colored the early years of this century; and his son was silk handkerchief round his neck, outside of his William H. Prescott, the historian. What may be coat, putting on his brown tie-wig so that it fell done by those still young in whom these same over his forehead to his eyebrows, and left his own streams flow it is yet impossible to say. hair standing out at the back of his head; then he | These examples are gathered at random, without used to tip his face down upon his breast and look out research or inquiry, from a single calling only. But between his shaggy eyebrows at the person speak when one reflects how small was the population, ing to him.” The following we do not remember and how few individuals could rise to prominence having seen before: “The chief justice was to pre- at the bar alone, it is a striking and inevitable reside at the Hampshire Sessions; an old lawyer of flection that transmission seems to have been that county, falling ill, gave his cases in charge to rather the rule than the exception.” Mills, then a young man, advising him at the same time to engage senior counsel, and giving him a let
LEGISLATIVE HUMORISTS. ter of introduction to the chief justice.
T is a
* I think on the whole,' replied the chief, that you tute of those attractions which are found in popular had better employ no one.
You and I can do the literature and camuot, therefore, be expected to take business about as well as any one.' Such a verbum
rauk among the works of standard authors; and that
though they may be calculated to further the interests sap. was not to be disregarded; and at the close of
of the State, they are not to be recommended to those a not unsuccessful campaign through the session, who are in quest of amusement. This opinion is not Mills called to pay his respects to his powerful ally. only erroneous, but it does gross ivjustice to those deWhile he sat with the chief a senior counsel camo lightful humorists who sit in our legislative halls. It in – he had perhaps lost business by the arrange
is doubtless due to ignorance, and is one of those
hastily formed opinions which are dispelled by careful ment between Mills and Parsons; after a few words
investigation; but for this very reason, light should of civility he rose to go, and Parsons said he should
be thrown on the subject in order that justice may be expect to see him at the next term. “I'm not so done to a much-abused class of authors. To this end, sure of that, judge,' replied the old lawyer, 'I think I wish to call attention to a few of the laws of the some of sending my office-boy with my papers.
State; and I shall confine iny references to those cases
in which legislators bave indulged their love of fun You and he together will do the business full as
during the preseut year. well as I can.'”
One of the favorite jokes of the Legislature is to Jeremiah Mason was another great man — in Web- amend a repealed law. This joke is, to be sure, rather threadbare. It is to be found in the writings of nearly seded, so far as it relates to cities. A perusal of this every Legislature for years past. But it has something act of 1880 will afford enjoyment to mechanics and practical about it, and this is perhaps the reason why material-men. it proves so fascinating to the funny men of the Legis- It would seem as if enough had been done to satisfy lature and is indulged in more and more frequently. the desire of any reasonable Legislature to acquire a The amendment treats the original law as if it was reputation for furnishing amusement to the people. still in force, and if an investigator acts on this as- But the wags of 1880 were not content. They longed sumption and fails to discover that the original law to immortalize themselves by some gigautic and unhas been previously repealed, he may suffer serious paralleled outburst of fun, and when a magnificent injury; and this is where the point of the joke comes opportunity was offered to them by the commissioners in. Other instances of humorous writing will appear appointed to revise the statutes, they hastened to imin the references hereafter made. Many of the ex- prove it. They presented to the people the remainder tracts to which I shall refer have been before alluded of the new Code. This book abounds in humorous to in the columns of the LAW JOURNAL; but they paragraphs; but in that portion of it entitled, “Prohave been cited, singularly enough, as evidence that ceedings supplementary to an execution against propthe Legislature is in the habit of making mistakes, and erty," the success of the legislators has exceeded the as deserving of blame rather than praise. It is how- hopes of their most ardent admirers. A brief considever very apparent that no body of men could blunder eration of the portion of the act just mentioned will so persistently and overwhelmingly, and that the ex- make this apparent. planation here given is the true one. The following “Proceedings supplementary to an execution against instances, which are only a few of many, will give property” is the title of title XII, chapter 17 of the some idea of the efforts of the Legislature in the line new Code. It provides for the examination of a judgof humor.
ment debtor and his debtor or bailee, at the instance Title 2d, chapter 5, part 2d of the Revised Statutes of the judgment creditor. The former Code had also was repealed by sub. 2, § 1, chapter 245 of the Laws of provided for such an examination; but there had been 1880. Section 23 of that title was then amended by nothing laughable about its provisions. The authors chapter 423, Laws of 1880. Moreover, it is section 22 of the new Code perceived this defect, and made the instead of 23 to which the amendment relates.
necessary changes. The first change occurs in section Section 1 of chapter 467 of the Laws of 1880 was re- 2458, wbich provides that "in order to entitle a judgpealed by chapter 417, Laws of 1877; chapter 467 was ment creditor to maintain either of the special prothen wholly repealed by chapter 245, Laws of 1880, ceedings authorized by this article, the judgment must section 1, sub. 46; section 1 of chapter 467 was then have been rendered upon the judguent debtor's apamended by chapter 480, Laws of 1880..
pearance, or personal service of the summons upon Chapter 717 of the Laws of 1870 was repealed by sub. him, for a sum not less than twenty-five dollars, ex46, section 1, chapter 245, Laws of 1880. Section 7 of clusive of costs; and the executiou must have been chapter 717 was then amended by chapter 487, Laws of issued out of a court of record," etc. So that if a 1880.
person recovers judgment for costs only, in a court of Chapter 515 of the Laws of 1875 was re-enacted by record, whether bis judgment is for $100 or $500, he chapter 398, Laws of 1880. Chapter 625, not 515, was cannot maintain supplementary proceedings. the one which demanded re-enactment.
The second change occurs in section 2460, and is much Chapter 436 of the Laws of 1877 was amended by more striking than the first. I quote the entire section : chapter 233, Laws of 1880, by adding a section num- “Sec. 2460. A party or a witness, examined in a bered 10, and changing section 10 of the original act to special proceeding, authorized by this article, is not sectiou 11. Section 10 of the original act was then excused from answering a question, on the ground amended by chapter 580, Laws of 1880.
that his examination will tend to convict him of the Chapter 526 of the Laws of 1879 was amended by commission of a fraud; or to prove that he has been a chapter 435, Laws of 1880. But chapter 526 was merely party or privy to, or knowing of, a conveyance, assignamendatory of chapter 161, Laws of 1872, which was ment, transfer, or other disposition of property for repealed by sub. 48, section 1, chapter 245, Laws of 1880. any purpose; or that he or another person claims to be
It is true that in some of these cases the repeal did entitled, as against the judgment creditor, or a renot take effect until after the amendment, since chap- ceiver appointed or to be appointed in the special proter 245 of the Laws of 1880 was not to go into operation ceeding, to hold property, derived from or through the prior to September first. But the Legislature evi- judgment debtor, or to be discharged from the paydently overlooked this fact and therefore are entitled ment of a debt which was due to the judgment debtor, to the credit of attempting to amend a repealed law. or to a person in his behalf. But an answer cannot be
The Legislature of 1880, having thus repeated all the used as evidence against the person so answering, in a old jokes of preceding Legislatures, determined to civil or criminal action, or in any other special probranch out into something new. One of their happiest ceeding, civil or criminal.” efforts at originality will be found in chapter 486 of the The beauties of title XII will now be seen. A judgLaws of 1880. That act relates to mechanics' liens in ment debtor may be examined; he may be compelled the cities of this State. It provides for the creation to answer questions touching the disposition of his of liens in cities by the filing of a verified notice of property; he may plainly declare that he has disposed lien at any time before or within thirty days after the of it in order to defraud his creditor and avoid paying completion of the work or the furnishing of the mate- his debt; and he may then, in the language of the poet, rials. It then requires that “the liens provided under “walk off, wagging pleasantly his fingers at his nose.” this act shall be enforced by civil action commenced in Of course a creditor's suit would be entirely out of any court of record in said city, having equitable juris- the question, since the debtor's examination could not diction," etc. Now, as only a very few cities in the be used in such a suit. Thus proceedingssupplementary State are favored with courts of record having equita- to execution lose all practical value. But they still ble jurisdiction, it will be very amusing when those have their use in affording the parties a little recreawho have filed liens in the less favored cities, under tion and enabling them to indulge in social interthis act, attempt to enforce them. They will have course. some difficulty in finding a court which answers the While this title is, as I have said, a nearly perfect description. And if they endeavor to enforce their specimen of humorous writing, I venture to suggest Jiens in the way provided by the former act, they will that it can be improved in one or two particulars. It be met by the objection that that act has been super- would be well, for instance, to change the title, so that
it should read: “Proceedings for the amusement of
a cloud upon title, and the remedy of the owner is in a judgment debtors." And I would advise the insertion, court of law. after section 2463, of some such section as the follow
If a city ordinance imposes certain conditions which must
be complied with in order to make a valid assessment ing: “The object of this article is the amusement of
or tax, the neglect or omission of the city's officers or the judgment debtor; and it shall be the duty of the
agents to comply with any one of the conditions ren. judge or referee, who takes the examination of a judg- ders the tax void ; and should the payment of an inment debtor or other person, under the provisions of valid tax be enforced by a threatened or actual sale of this article, to burn such examination immediately property, real or personal, the owner may pay the after the close of the proceedings. And in case tho
amount of the tax under protest and bring his action judgment debtor or other person so examined makes
against the city to recover back the amount so paid, or affidavit before one of the officers specified in section
he may have an action of trespass for the recovery of
damages ; or, where real estate has been sold under a 2434, that his feelings were hurt or that he was not
tax levy, the owner may test the validity of the tax by amused by such examination, it shall be the duty of
an action of ejectment. Another remedy is by a writ such officer to punish the judgment creditor institut- of certiorari. ing such examination, by a fine of not less than fifty Equity will interpose to prevent a multiplicity of suits, but dollars, or by imprisonment for not less than six multiplicity does not mean multitude, and an injuncmonths, or by both such fine and imprisonment." By
tion will not be granted where the object is to obtain a these proposed changes the subject of the act will be
consolidation of actions, or to save the expense of plainly expressed in the title, in compliance with the
separate actions. Constitution, and the interests of the judgment debtor will be, if possible, more thoroughly protected. Sec" | ACTION to restrain the collection of a tax brought
in the Court of Chancery for Newcastle county tion 2457 merely provides for the punishment of the
by William A. Murphey and others against the Mayor judgment creditor, as for a contempt, in case he fails
and City Council of Wilmington and others. From a to pay the costs which may be awarded to the judg
decision of the chancellor dismissing the bill, comment debtor. But by the proposed section the judg- plainants appealed. ment creditor would be induced to exert himself to the utmost to make things pleasant for the judgment
Edward G. Bradford, for appellants. debtor.
Samuel A. MacAllister, for respondents. I cannot hope to do more than call attention, in this general way, to the writings of some of the greatest
WALES, J. The appellants, who were complainants humorists of the present time; but if the attention of
below, obtained a preliminary injunction restraining the public is once directed to their works, they will
the defendant corporation from enforcing the payment meet with a wide sale. And even if this should not
of an assessment which had been laid on certain real be so; even if this hard and practical age should refuse
estate belonging to complainants, on Monroe street, in to do homage to King Fun, our legislators may bide
the city of Wilmington, for the construction of a pub
lic sewer. their time with confidence. Their fame is assured.
After a hearing before the chancellor, on For I am satisfied that future generations, more ap
bill, answer and depositions, the bill was dismissed, preciative than our own, will not consider their
and thereupon an appeal taken to this court. The libraries complete unless they contain the comic works
transactions which led to the application for an injuncof the Legislatures of the State of New York.
tion are fully set forth in the bill, but the material J. H. HOPKINS.
charges on which the complainants rely for equitable relief are that the city's officers and agents acted with
out lawful authority, both in the constructiou of the EMINENT DOMAIN – DIVERSION OF PRI
sewer and in the manner and mode of laying the assessVATE WATER-COURSE BY CITY – AS
ment, and that the latter is therefore illegal and void. SESSMENT -- CLOUD ON TITLE
It is charged that the sewer was made for the purpose ILLEGAL TAX PAID UNDER
of diverting a small water-course which had previously COMPULSION.
flowed through a portion of the property now assessed,
and not for the purpose of general drainage; that the DELAWARE COURT OF ERRORS AND APPEALS, JUNE
diversion of the water-course was the exercise of the TERM, 1880.
right of eminent domain without authority, the city
government not being invested with legal power to MURPHEY V. MAYOR, ETC., OF WILMINGTON.
divert the stream; and that, even admitting the pos
session of the power, the assessment was illegal and The diversion of a private water-course by a municipal cor- void by reason of the neglect or failure of an officer of poration for the purposes of general drainage, at the
the city to perform an essential duty in relation instance and with the acquiescence of the owners, is not an exercise of the right of eminent domain, nor a
thereto, the performance of which duty was necessary taking of private property for public use without com
to the making of a legal and valid assessment. It appensation.
pears from the papers on file that the water-course was When the power is expressly given to it by its charter, such not only of no value to any of the complainauts, or to
corporation may levy the cost of local improvements the former owners of the assessed property, but by by assessments, in whole or in part, on the property reason of its being an outlet for the refuse of factories specially benefited.
and slaughter-houses located higher up the stream, The collection of such assessments will not be prohibited
was at times a positive nuisance, so that one or more by injunction except under special circumstances, such as leave the complainant without any remedy at
of the complainants, with some sixty residents in the law and bring his case under some one of the recognized
same neighborhood, signed a petition addressed to the heads of equity jurisdiction, as of fraud, irreparable city council, requesting that a culvert might be coninjury, clouding title to real estate, or the prevention structed to carry off by perfect drainage all the water of a multiplicity of suits.
coming from above, and thus prevent a continuance of A lien or incumbrance that clouds a title to real estate, so what the petitioners represented to be a source of danas to entitle the owner to relief in equity, is one that is
ger to the public health. The fact is not disputed that regular and valid on the face of the proceedings, but is
the petitioners contemplated the construction of the in fact irregular and void from circumstances which have to be proved by extrinsic evidence. If the in
sewer in Monroe street as being the best and most validity of the assessment is apparent on the record of
effectual means of removing the difficulties and annoythe proceedings by which it was laid, and requires no ances of which they complained. The sewer was made proof aliunde to show it, such assessment does not cast under and along Monroe street, from a point above to
a point below the complainant's land, at a cost of $7,266.35, being at the rate of $9.98 per lineal foot, and, the water-course being turned into it, the nuisance was entirely abated. There was some attempt to show that the city was in fault in causing the nuisance by not keeping that part of the water-course which was below the complainant's land open and unobstructed, and thus backing up the waters, but the evidence does not sustain this. The surface of some of the complainants' land was depressed below the banks of the stream and the grades of the surrounding streets, making a basin in which, during heavy rains, the flooded waters would collect and remain until carried off by absorption or evaporation. On the completion of the sewer a statement of its cost was presented to the city council, which body ordered that one-half of the said cost should be paid out of the city treasury, and directed that a portion of the remainder, amounting in all to $1,036.92, should be charged against “the estate of John Montgomery,” a former owner of the land, now belonging to the complainants, and of which he had died seized and intestate. The property had descended to the children and heirs of John Montgomery, and bad continued in their possession as coparceners until a short time before the entry of the assessment upon the lien book of the city. The description in the lieu book is a general one, being for 257.8 feet on the west side of Monroe street, between Second and Front streets, and for 157.8 feet on the south-east corner of Second and Monroe streets. The complainants, by claiming ownership of the assessed property, have established its identity and thus removed any objection to the generality and indefiniteness of its description.
The answer, admitting property in the complainants, and the diversion of the water-course, claims that the latter was done at the instance and with the knowledge and approval of the complainants; that the sewer was made for general drainage, and that the assessment was regularly and legally imposed. The cost of the sewer was reported to the city council on May 29th, 1873, and the matter of the assessment appears to have been considered by that body at several subsequent meetings until September 11th, 1873, when it was finally approved and ordered to be entered on the lien book. In the meantime, in the month of June, in the same year, the assessed property was sold at public sale, by an agent duly appointed for that purpose by the heirs of John Montgomery. The land was divided into building lots and sold to sundry purchasers, now the complainants. The agent retained out of the proceeds of the sale a sufficient sum to pay the assessment, in fulfillment of a condition previously announced, that the assessr..ent would be paid, and the land sold * clear." Part of the money so retained by the agent he afterward paid over to the heirs, who protested against the validity of the city's claim. One of the purchasers and a party to the bill deposed that the value of the property was increased $3,000 by the sewer.
Au amendment to the charter of Wilmington, passed January 30th, 1866, confers upon the city council the entire jurisdiction and control of the drainage of the city, with power to pass ordinances for the opening of gutters, drains and sewers, and for the regulating, maintaining, cleansing and keeping the same and the natural water-courses, runs and rivulets within the city limits, open, clear and unobstructed, and for the entry upon private land for such purposes, and by general regulations to prescribe the mode in which the work shall be done, and who shall bear the expense thereof, and in its discretion to assess the costs thereof upon the persons and property, real and personal, of those particularly benefited thereby, or of those holding lands through, or along which, said sewers, drains aud water-courses shall flow or pass, and prescribe the
mode of collection thereof. The statute provides that private property shall not be taken for public use without just compensation, but is silent as to the mode in which such compensation shall be ascertained. A city ordinance passed June 21st, 1866, by virtue of the authority thus given, sets out in detail the manner in which the cost of constructing sewers, etc., shall be assessed. It makes it the duty of the street commissivner to keep an accurate account of the cost of such construction, and through the street committee, to report the same to the council, together with a list of the persons and estates particularly benefited thereby, as well as of those holding lands through, or along which, said sewers shall pass, and an estimate of the value of the lands upon which said expense ought to be assessed, the said value to be estimated independently of buildings or improvements. The city council may, or may not, order any part of such expense to be paid out of the general fund, and the whole or remainder, as the case may be, shall be apportioned among those persons and estates particularly benefited, or among those holding lands, along which the sewer shall pass. If the owners be unknown, the assessment shall be generally against the lot or premises by particular or general description. The assessment, being approved by council, shall be entered on the lien book, and may be collected by warrant under the hand and seal of the mayor.
The bill denies the authority of the city to lay a special tax for the payment of the sewer, and assumes that the expense should be wholly defrayed out of the funds produced by general taxation. But the position most earnestly contended for by the complainants is, that the city having constructed a work partly for an unlawful object, namely, the diversion of a natural water-course without license from the owners thereof, such unlicensed act of diversion, being outside of its chartered powers, taints the entire work with illegality, and no portion of the expense can be lawfully assessed on the property holders, notwithstanding that another and a lawful end may have been intended at the same time. The doctrine insisted on is, that where a tax or assessment is laid partly for a legal and partly for an illegal purpose, and such tax or assessment is entire and indivisible, the whole tax or assessment is illegal and void. The evidence, however, does not warrant the application of this principle to the present case. The city had the power, under the statute of 1866, to regulate and change the flow or direction of the natural drains and water-courses within its limits, to construct sewers and to assess the cost upon the owners of property specially benefited. No authority is given to invade or appropriate private property without compensation; this is expressly prohibited. It is true, the statute does not point out any way of fixing the compensation, but in this instance there was no necessity for ascertaining what might be due for taking for public use a property which was worthless and detrimental to its owners who asked for its removal as a boon and have derived a profit from its loss. These owners, and their privies in estate, stood by and saw the preparations made for depriving them of their property, without remonstrance or objection. The building and completion of the sewer occupied several months, and its uses aud objects were well known. No attempt was made to interfere with the work, nor was the diversion of the water-course objected to. Some of the complainants requested the city council to carry off by perfect drainage the waters coming from above, and no word of disapproval was heard until the parties benefited were called upon to contribute to the payment of the expense. These facts admit of but one interpretation. The diversion having been made with the consent and approval, and to the evident advantage of the property owners, the action of the defendant corporation was not illegal or ultra
vires. The water-course had no existing or prospective and the officers intrusted with the duty of fixing the value for the driving of machinery or for domestic tax rate have exceeded their authority, or if from any uses, and by its continuance in its old channel rendered other cause, appearing on the face of the proceedings, the lots through which it flowed unsalable. Its appro- the tax is irregular and void, it will not affect the title, priation by the city was more of a public burden than the defect being visible and undoubted. But a tax a public benefit, while it afforded a special and advan- may be, from all that appears to the contrary, entirely tageous relief to the lot-owners. Such an appropria- regular and valid, the authority to levy it may be untion, under all circumstances, does not fall within the disputed, and every preliminary step necessary to be definition of the exercise of the right of eminent taken by way of notice to the owners of property and domain. We may therefore dismiss the further con- its valuation, the amount of revenue to be raised and sideration of the want of power in the city, under the the final apportionment, may have been, on the face of statute of 1866, to make the diversion complained of, the record, in strict compliance with the requirements and direct our attention to the other points presented of the law, and yet by reason of fraud, corruption or on behalf of the complainants.
neglect on the part of the officer making the assessThat tbe expense of local improvements, in a town ment the tax is void. The record may be false. or city, may be met by local assessments, in whole or Notice to owners and valuation of property may not, in part, appears to be so well established as to require in fact, have been made, or the assessing officer may no discussion. Stroud v. Philadelphia, 61 Penn. St. have conspired to make an unjust and partial assess255; 2 Dill, ou Mun. Corp. 596 and notes. But when, ment. An assessment or tax made and levied in the under what conditions, and to what extent, a court of manner supposed, being apparently regular and legal, equity should interfere to prevent the collection of and in reality arbitrary and corrupt, but requiring exsuch assessments, are questions which have not been triusic evidence to establish the fact, casts a cloud uniformly decided. The inconvenience and confusion upou title. Tho contention here is, that the statute of which might be caused by an indefinite delay in the 1866, which grants power to the city to regulate or receipt of municipal or other public revenues, and the change, within its limits, the course of natural rivuserious embarrassments that might follow such delay, lets, to construct sewers aud assess the costs upon the are obvious, and courts of equity have therefore parties specially benefited by the improvement, is unbeen disinclined to put any obstacle in the way of their constitutional, in so far as it undertakes to give the prompt collection, except under special circumstances, right of taking private property without providing any such as left the complainant without any remedy at mode of ascertaining the amount of compensation to law, or where it was clear that the tax had been im- be paid to the owner; and that waiving this objection, posed without authority and was absolutely void. and admitting the statute to be valid, certain condiEven in the latter case, where the only question is one tions precedent, prescribed by the city ordinance, and of excess of authority, depending on purely legal prin- which must be observed in order to make a legal asciples, it is doubtful whether equity should interpose. sessment, have not been complied with. It is the duty Those courts which most closely adhere to the distinc- of the street commissioner, under the ordinance, when tions between legal and equitable jurisdiction have he reports to the city council the cost of constructing generally refused to interfere by injuuction with mu- a sewer, to present at the same time an estimate of the nicipal assessments, except in cases which come under value of the lauds upon which said expense ought to some one of the recognized heads of equity jurisdic- be assessed, the value of such lands to be estimated tion, and the doctrine is uuiversally accepted that the independently of any buildings or improvements collection of a tax will not be enjoined except upon thereon. It is charged that the commissioner failed to the clearest grounds. The most important question, perform his duty in this respect, and that the records therefore, to be considered, is that of jurisdiction; for and proceedings of the city council do not show, nor although the arguments addressed to us by counsel does it appear from any other source, that the required were chiefly directed to other matters, this question estimate of value was made or presented. The only was not waived, but it was expressly contended on the answer to this is the presumption that official duties part of the city that the complainants, whatever might have been regularly fulfilled. Without entering into be their rights in a court of law, were not entitled to any inquiry as to the effect of this alleged omission of redress in a court of equity.
duty by the commissioner, it is sufficient to know that The complainants insist upon their right to an in- the omission appears on the face of the proceedings. junction for the reason, that the assessment being Conceding, then, all that is claimed by the counsel for illegal and void, a threatened sale thereunder for its the complainants, the assessment is void by reason of collection casts a cloud upon their titles which they its inherent defects. An unconstitutional law confers have no adequate legal remedy to remove; that such no authority, and if a city ordinance imposes certain sale would cause them an irreparable injury; that conditions which must be complied with in order to some of the complainants having only an equitable make a legal tax, the failure to comply with any one title are absolutely without any remedy at law; and of the conditions renders the tax void, so that on one that to refuse the writ would lead to circuity of action hand, the city council having acted without authority, and a multiplicity of suits. These are recognized and on the other, in violation of its own self-imposed heads of equity jurisdiction and we are to inquire restrictions, the assessment is not binding, creates no whether the complainants' case falls under any one of lawful lien, and does not cloud the titles of the comthem.
plainants. But all these matters are wholly within the Is this assessment a cloud upon their titles? It is not jurisdiction a court of law, to be determined by an every irregular or even void assessment that clouds a examination of the statute, an inspection of the jourtitle. A lien or incumbrance, to throw a shadow upon nals and records of the city government connected title to real property so as to give the owner a right to with this particular assessment, and do not call for relief in equity, must be one that is regular and valid any outside evidence for the purpose of ascertaining on its face, but is in fact irregular and void from cir- the validity of the tax. Authority in support of this cumstances which have to be proved by extrinsic evi- view of what makes a clouded title may be found in dence. The test is well defined in Heywood v. City of the opinion of Chancellor Walworth, in Wiggin v. Buffalo, 14 N. Y. 539, to be where there is an apparent Mayor of New York, 9 Paige, 23, a case involving the validity in the incumbrance and a total invalidity invalidity of an assessment for the opening of a street. fact which can only be proved by evidence aliunde. If “If the whole proceedings,” says the chancellor, “in the authority under which the assessment was made relation to the opening were absolutely void in law, is unconstitutional, or if the power to tax is conceded, and that fact appears upon the face of the ordinance