streets by persons who use vehicles, or solicit or transact business thereon***". The majority opinion holds that the legislature has given municipalities express power to regulate the use of their streets, and that such power is broad enough to permit a village to prohibit the use of such streets by motor busses, on reasonable grounds. Moreover, it is declared that "all powers of local self government" include the power by municipalities which maintain the streets, to decide how they shall be used. Jones, J., dissenting, says: "The minority of this court do not deny the right of a municipality to control the use of the streets, or to license motor buses, where these regulations are reasonable and not arbitrarily adopted; but we do deny the right of a municipality to extend its powers beyond municipal limits, to throttle state functions, and to prohibit the use of the state highways for general commerce."

The powers of a municipality may be traced to three sources: those expressly granted by legislation, or the state constitution; those implied as reasonably incidental to the delegated powers; and those essential to the performance of its duties as a corporation." It is clear that the court, in the principal case, found the ordinance to be within the implied power of the statutes, and also within the implied general powers of the constitutional provision granting a municipality local self-government.

8

Let us first deal with the conclusion of the court that the ordinance prohibiting motor busses from stopping to take on or discharge passengers, within the village limits, was contemplated by the statutes empowering the village to regulate the use of its streets. What are the practical effects of such a construction? The ordinance describes a motor bus "as one engaged in carrying passengers for hire to and from the village of Perrysburg." It is reasonable to suppose that motor busses thrive very little on the business of passenger carrying within a village, which is defined in Ohio as a municipal corporation of less than five thousand inhabitants. 10 Most of their business probably consists of carrying passengers to and from villages, or is carried on entirely outside of village limits. By the terms of the ordinance, citizens of Perrysburg, and all other citizens, riding on such busses from other parts of the state to the village, must get off at points outside of the village, and walk to the village, since motor busses are forbidden to stop and let them off within the village. Conversely, any persons within the village, including citizens of Perrysburg, wishing to ride in a motor bus to any other part of the state, or outside of it, are compelled by the ordinance to embark upon such bus outside of the village. Both citizens of Perrysburg, and others, are deprived of their liberty to board such bus on any of the streets of the village. Is it conceivable that the state legislature

"Gen. Code, II Page's Compact Ed., sec. 3632, p. 2161.

6140 N. E. (Oh.) 595, 599 (1923).

"Bogue v. Bennett, 156 Ind. 478, 480 (1900); I Dillon, Municipal Corporations, sec. 237, p. 448.

Supra, notes 4, 5.

9140 N. E. (Oh.) 595, 599 (1923).

10Gen. Code, III Page's Compact Ed., p. 6152; Const. of Oh., art. 18, sec. 1.

intended to give such drastic powers to a municipality? Where powers are delegated to a municipality, and the latter passes an ordinance by virtue of an implication from those powers, such ordinance must be reasonable.11 This ordinance is certainly unreasonable, since it deprives citizens of the right and liberty to the "common use" of public streets.12

There is left for us to consider the conclusion of the court that the broad constitutional provision, granting a municipality the power of local self-government, empowers a village to prohibit the use of its streets to motor busses. If such a power exists, it is an implied power. An ordinance passed by virtue of such an implied power is also confronted with the same test of reasonableness which we have considered above. 13 Having established that the ordinance in question was an unreasonable exercise of a power implied from the statutes, it follows that it was also an unreasonable exercise of a power implied from the constitutional provision, and should be treated as invalid.

But the ordinance must also be viewed with regard to the rights of bus owners. Passenger-carrying by motor busses is a lawful business. It is a form of state commerce. Was the village of Perrysburg authorized to prohibit part of the lawful business of passengercarrying by motor busses within its limits, or was this an unreasonable restraint upon state commerce, and so invalid?15 While doing busi

"Bogue v. Bennett, supra, n. 7, pp. 481, 486:-The city was empowered by statute "To regulate the use of ***vehicles for transportation of passengers* * *for hire***" The court held: “* * *it is evident that they [cities and towns] have no authority, under their implied powers, or under the general grant of power over the streets and alleys, to prohibit traction engines or other vehicles not propelled by animal power from using all the streets. Such an ordinance is not a reasonable exercise of such power over the streets."

The City of Chicago v. The Hebard Express and Van Co., 301 Ill. 571, 577 (1922): The city of Chicago passed an ordinance requiring moving vans for hire to file with the city authorities a record of the following: the place from which, and to which, their patrons moved, the date of removal, and the character of the articles moved. The legislature gave the city power to license and regulate omnibus drivers, expressmen, and to pass all necessary police ordinances. It was held that the ordinance was not a reasonable one regulating the business, and that it was "***an unreasonable* * *interference with the liberty of individuals to move from place to place* * *and is void." For a note on this case, see 4 Ill. L. Q. 277.

12The right of everyone to the use of a public highway is asserted in Summer County v. Interurban Transportation Company* Joseph H. Beale, The Progress of the Law, Municipal Corporations, 33 Har. L. Rev. 1058, 1065. Sumner County v. Interurban Transp. Co., 141 Tenn. 495, 498 (1918):-The county sought to enjoin the defendant, who was engaged in the transportation of freight, from using heavy trucks which injured the road. It was held that "a public road is a way open to all the people, without distinction, for passage and repassage at their pleasure." Since the legislature did not authorize the restriction of the size of vehicles, the attempt of the county court to do so was held void.

Freund, Police Power (1904), sec. 168: "The common use of the street consists in passing along the street for purpose of pleasure or business, on foot or by vehicles.' Idem, sec. 63; "The question of reasonableness usually resolves itself into this: is regulation carried to the point where it becomes prohibition, destruction, or confiscation?"

13 Supra, notes II, 12.

14 Supra, notes 4, 5.

15Commonwealth v. Stodder, 2 Cush. (Mass.) 562, 576 (1848).

ness, such as passenger-carrying for hire on the highway, is different from the right to the use of such highway by citizens in the ordinary pursuits of daily life, nevertheless, it is a privilege which a municipality ought not to be held to have the implied right to take away.16 In its decision that a village ordinance may totally prohibit motor busses from doing business on its streets, the Ohio court seems to stand alone in its declaration that a village may thus entirely annihilate a legitimate form of state commerce.

The right of a municipality to regulate the motor bus business is not questioned. Licensing motor busses, for example, providing that only certain streets may be used, for the safety of the public, and other reasonable regulatory measures, are within the scope of such powers as the village of Perrysburg was granted. Total prohibition, however, bringing with it a denial of individual liberties, and an interference with a legitimate form of state commerce, cannot be upheld by reasonable men.

H. Wolkinson.

Pleading: Necessity under New York Civil Practice Act of pleading facts showing special damage. In the case of Winter v. Aniline Products, Inc., 236 N. Y. 199 (1923), there arises the infrequent situation in which the defendant moves for, and the plaintiff opposes, an order for judgment for the plaintiff for nominal damages. Such an order granted by the Appellate Division1 is reversed by the Court of Appeals and a certified question whether the complaint as amended stated a cause of action warranting judgment for more than nominal damages is answered in the affirmative. The complaint in question. alleged a contract to sell thirty-three hundred pounds of lemongrass oil, and a positive refusal before delivery was tendered to accept the goods contracted for. Damages were demanded measured by the difference between the contract price and the market price on the day of tender of delivery, the prices on those respective days being pleaded. The Appellate Division pointed out that the proper measure of damages was the difference between the contract price and the market value when the breach occurred, as the plaintiff might then have sold the oil and prevented loss from a further drop in the market value. Their conclusion was that the complaint had

16Quigg v. State ex rel. Radel, 93 So. (Fla.) 139, 140 (1922):-The city of Miami, Fla., passed an ordinance prohibiting jitney busses from operating on certain streets. The city is granted general welfare powers under its charter. It also has the power to regulate traffic upon the streets, and to regulate motor busses, jitney busses, etc. The court held that the power to regulate“* *****does not confer authority to wholly prohibit the operation of jitney busses on streets of the city. Nor does the general welfare power clause authorize a prohibition of use* For a note on this case, see 32 Yale L. J. 190.

While it is admitted that the Florida court may have gone too far in denying the right to prohibit the use of some streets, nevertheless, the court emphatically points out that the authority to regulate does not give the power to prohibit. How much more is this statement applicable to the principal case, where there was a total prohibition by the village to conduct the motor bus business on its streets!

Winter v. Aniline Products, Inc., 204 App. Div. (N. Y.) 792 (1923). 2Supra, n. 1, 794.

failed to state facts allowing proof of proper damages and that the defendant who admitted a nominal breach of the contract was entitled to succeed in his motion for judgment for the plaintiff for nominal damages. Without passing on the ruling in the Appellate Division as to the impropriety of the measure of damages claimed, the Court of Appeals reverses the order for judgment for nominal damages, expressing the opinion that even if the wrong measure of damages was stated in the complaint, it still set forth a cause of action for substantial damages.3

Section 241 of the New York Civil Practice Act is cited to the effect that "a complaint shall contain a plain and concise statement of material facts" and that evidence by which those facts are to be proved is not to be pleaded. The language of the court, however, leaves some room for doubt whether it is meant to construe this section as doing away with the general rule that facts upon which special damages depend must be pleaded in order to recover such damages, or whether the decision is that this rule is still in effect, but that in this case the substantial damages demanded are general and so need not be specially pleaded.

It would seem that the latter position is the one on which the court relies. Under the Code of Civil Procedure it was always necessary to plead facts showing special damage in order to recover such damage. Thus far the Court of Appeals has been of the opinion that section 241 of the Civil Practice Act did not obviate this necessity. Had there been any intention of changing so important a rule in the instant decision the court would undoubtedly have been sufficiently explicit to leave no room for conjecture as to the basis of its holding. There would seem to be no reason for taking the decision in the instant case to be a repudiation of the well-established rule that facts on which special damages depend must be pleaded in order to recover such damages, so long as it may with equal facility be taken to mean that the damage shown here is not special, but general, damage, and thus falls within the rule.

The Appellate Division held that the measure of damages claimed was wrong, and that the complaint consequently failed sufficiently to state facts showing damage. But, as the Court of Appeals points out, it is possible to disregard as surplusage all the statements as to damage, except the statement of the amount of damage and the demand of that amount, and still have "a complaint which contains a plain and concise statement of material facts disclosing a written con

'Instant decision, p. 205.

""Every pleading shall contain a plain and concise statement of the material facts, without unnecessary repetition, on which the party pleading relies, but not the evidence by which they are to be proved."

Parsons v. Sutton, 66 N. Y. 92 (1876); Johnson v. City of Troy, 124 App. Div. (N. Y.) 29 (1908); Keefe v. Lee, 197 N. Y. 68 (1909); Scheffler Press v. Perlman, 130 App. Div. (N. Y.) 576 (1909); Czarnikow, MacDougall & Co., Ltd., v. Baxter, 146 App. Div. (N. Y.) 81 (1911); Kurak v. Traiche, 226 N. Y. 266 (1919); Orester v. Dayton Rubber Mfg. Co., 228 N. Y. 134 (1920).

"Sayer v. Wilstrop, 200 App. Div. (N. Y.) 364 (1922); Foster v. DiPaolo, 236 N. Y. 132 (1923).

"Supra, n. 2.

tract, breach of same by defendant, and damage to plaintiffs by reason thereof in the amount stated the relief to which plaintiffs supposed they were entitled,"s (citing C. P. A. secs. 241-255). Such a pleading would seem to let in proof of all general damage arising proximately, and necessarily10 from the facts stated to make out the plaintiffs' cause of action. Loss due to decreased market value of the goods would seem to be so necessary and proximate a result of the vendee's refusal to accept the goods when he should, as to be provable as general damage under a complaint showing non-acceptance of goods by a contract vendee.11

In some cases, general damages have been considered to be those against which the defendant could reasonably be expected to guard when apprised of the facts constituting the cause of action. Special damages, then, are those which, if proved under a complaint stating only the cause of action, might surprise the defendant and find him unprepared to combat the proof of them.12 Under this view, which seems to be based on the only valid reason for a rule requiring special pleading of facts showing special damage the element of surprise,the defendant in the instant case could not be heard to complain of the introduction of evidence as to the loss resulting from a drop in value of the goods contracted for, as the fact of the drop in price appeared in the complaint, and where more than nominal damages are claimed in an action for breach of a contract to sell, the natural inference is that the plaintiff has suffered by a discrepancy between the contract price and the market price at some later date. In fact section 145 of the New York Personal Property Law fixes the measure of damage in such a case as the difference between the contract price and the market value on the day of the breach.13 It would seem that the element of surprise is undoubtedly lacking and the plaintiff's loss could be proved as general damages under an allegation of a breach of a contract to buy. It seems more than likely that the result in the instant case rests on this basis although the language is not entirely unambiguous.

The interesting problem whether and when a defendant is entitled to demand that a judgment be entered for the plaintiff (so that defendant may, by paying nominal damages, discharge the cause of action) is eliminated from the case by the decision that the complaint

Instant decision, p. 204.

'Mood v. Western Union Telegraph Co., 40 S. C. 524 (1893).

10Mills v. San Diego Conservatory of Music, 47 Cal. App. 300 (1920); Bristol Mfg. Co. v. Gridley, 28 Conn. 201, 212 (1859); McMahon v. Kansas City Rys. Co., 233 S. W. (Mo.) 64 (1921); Hibbler v. Kansas City Rys. Co., 292 Mo. 14 (1922).

"Dustan v. McAndrew, 44 N. Y. 72 (1870); Windmuller v. Pope, 107 N. Y. 674 (1887); Waumbek Mfg. Co. v. Alfandri, 196 App. Div. (N. Y.) 64 (1921). 12Sutherland, Damages, (4th ed.), sec. 419 and cases cited thereunder in footnote 47.

13 Subd. 3 reads, "Where there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances, showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept."