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notice.

It was the case of an alleged fraudulent sale of personal property, and held that one who purchases in good faith from the vendee, is not chargeable with constructive notice of the fraud by mere negligence and omission to investigate facts calculated to awaken suspicion in prudent minds. Rapallo, J., learnedly reviews the subject, and concludes that in such cases the doctrines applicable to transfers of negotiable paper are applicable. This case is reported in the forthcoming 45th volume of American Reports, and the editor appends the following note:

"Constructive notice " has been defined as fol

lows: In Birdsall v. Russell, 29 N. Y. 220, 249, the court said; "Constructive notice is a legal inference from established facts." Constructive notice I take to be in nature no more than evidence of notice the presumptions of which are so violent that the court will not allow even its being controverted. Plumb v. Fluitt, 2 Anst. 438; Rogers v. Imes, 8 N. H. 270. Chanceller Kent laid down the rule in Sterry v, Arden, 1 Johns. Ch. 261, in these words: "I hold him chargeable with constructive notice or notice in law because he had information sufficient to put him on inquiry." Constructive notice is of two kinds, that which arises from testimony and that which results from a record. Griffith v. Griffith, 1 Hoff. Ch. 153.

It will thus be seen that the distinction between "actual" and "constructive" notice lies essentially in this: "actual notice is a question of fact for a jury, Tufts v. King, 18 Penn. St. 157; Bradbury v. Falmouth, 18 Me. 65, to be determined by evidence either direct or circumstantial or both and may be rebutted." On the other hand "constructive" notice is a presumption of law which cannot be rebutted, whether from evidence of facts or of knowledge or circumstances, which if they had been acted on would have brought to light the very facts which would charge the party with actual notice and is a question of law for the court. Birdsall v. Russell, 29 N. Y, 220; Rogers v. Jones, 8 N. H. 264. But in Wade on Notice, § 40, p. 22, citing Story's Eq. Jur., § 410, it is said that "Such notice as depends upon possession, upon knowledge of an agent, upon facts to put one upon inquiry, and some other similar matters, although often called constructive notice, is rather implied notice or presumptive notice sub

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ject to be rebutted or explained. Constructive notice is thus a conclusive presumption, or a presumption of law, while implied notice is a presumption of fact. If this distinction were carefully preserved by writers upon this subject, it would enable us to escape a good deal of confusion in regard to the subject of notice."

KNOWLEDGE OF FACTS TO PUT ON INQUIRY.A purchaser having knowledge of any fact sufficient to put him upon inquiry as to the existence of some right or title in conflict with that he is about to purchase is presumed either to have made the proper investigation or to have been guilty of negligence, etc., fatal to his claim as a bona fide purchaser. Williamson v. Brown, 15 N. Y. 354; Cambridge Bank v. Delano, 48 id. 326; Walworth v. Farm

ers' Loan Co. 1 id. 433. But the basis of this rule

is negligence, and it is only applicable to cases where the purchaser or incumbrancer is chargeable with gross negligence in not making the examination. Acer v. Westcott, 46 N. Y. 384. The rule that what is sufficient to put a purchaser upon inquiry is notice of whatever the inquiry would have disclosed, applies to actual, not constructiue notice. Bullock, 11 Brader (Ill.), 665.

Battenhausen v.

Circumstances amounting to mere suspicion of fraud are not to be deemed notice, and where an inference of notice is to affect an innocent purchaser it must appear that the inquiry suggested if fairly pursued would result in the discovery of the defect. Simons v. Morse, 2 Fed. Rep. 325; Maul v. Rider, 59 Penn. St. 167; Wilson v. Hunter, 30 Ind. 466. If the transferee of property has before him facts which would put a person of ordinary intelligence and prudence on his guard or create a suspicion which being followed up would lead him to find out that there was a fraudulent intent on the part of the transferrer, his abstaining from making such inquiry is a want of good faith. Burnham v. Brennan, 42 N. Y. Supr. Ct. 51. By reasonable diligence is meant that implied where there is some reason to awaken inquiry and direct diligence in a channel in which it would be successful. Maul v. Rider, 59 Penn. St. 167; Cambridge Bank v. Delano, 48 N. Y. 326. So the legal presumption is that all conveyances are made in good faith and not fraudulently, and the burden of proof rests upon one who seeks to impeach the same for fraud. O'Neal v. Boone, 82 Ill. 589. To impeach a sale for fraud as against the vendor's creditors, both the vendor's fraudulent intent and the vendee's knowledge of it (or of circumstances which charge him with the duty of inquiry) must be shown. Hopkins v. Langton, 30 Wis. 379; Tantum v. Green, 21 N. J. Eq. 364; Jaeger v. Kelley, 52 N. Y. 274; Newman v. Cordell, 43 Barb. 448. There need not be "good and substantial evidence of the vendor's fraudulent intent such as sends conviction home to the mind and establishes a well founded belief" to charge the vendee with notice thereof. A less degree than this will charge the vendee with the duty of inquiry. Hopkins v. Langton, 30 Wis. 379. When the facts and circumstances

are such as to put a reasonable man on inquiry, that obligation is not satisfied by an inquiry addressed to the chief actor in the suspected fraud, and who has every motive for concealing the truth, when better and reliable sources of information are open to him. Singer v. Jacobs, 11 Fed. Rep. 559. To make a sale void for fraud as against the creditors of the seller, the buyer must have had notice of the intended fraud if his purchase was in good faith and for a valuable consideration. McCormick v. Hyatt, 33 Ind. 546; Ruhl v. Phillips, 48 N. Y. 125 If a grantee without knowledge of the intended fraud becomes a purchaser for value he should be protected, although the grantor acted from fraudulent motives. Holmes v. Clark, 48 Barb. 237. It is not enough that the vendee has knowledge of the fraudulent intent, it must be made to appear that he participated in it. Dudley v. Danforth, 61 N. Y. 626. To avoid a sale made to defraud creditors it is not required that the purchaser should have had actual knowledge of the fraudulent purpose of the vendor. It is sufficient if he had constructive notice. Singer v. Jacobs, 11 Fed. Rep. 559; Atwood v. Impson, 29 N. J. Eq. 150. But see to contrary, Stearns v. Gage, 79 N. Y. 102.

The notice of fraudulent intent to affect the title of a purchaser for value must exist prior to the perfecting of the sale. Gottberg v. Conner, 44 N. Y. Sup. Ct. 554. Where constructive notice is alleged to result from facts or circumstances, the presumption may be repelled. Griffith v. Griffith, 1 Hoff. Ch. 153; Rogers v. Jones, 8 N. H. 264. A purchaser for a valuable consideration is not chargeable with constructive notice that the conveyance to him was made by his vendor with intent to defraud his creditors; actual notice is required to impair his title. Stearns v. Gage, 79 N. Y. 102. In this case the court (pp. 186-8), after stating the rule of constructive notice of fraud as laid down in Williamson v. Brown, 15 N. Y. 362, and Baker v. Bliss, 39 id. 70, say: "In the case at bar it is not apparent that the purchaser was acquainted with any fact which might create a well grounded belief that there was any defect in the title of his grantor. There is evidence to show that he had reason to believe and did suppose, that a full consideration had been paid for the farm, independent of the agreement to support the father of his grantor. He also knew that his grantor had worked for his father for a number of years and had no occasion to question the validity of the claim allowed for his services. Under such evidence it cannot be claimed that any question as to constructive notice was presented upon the trial. Be that as it may, however, we think that this is not material, as actual notice is required where a valuable consideration has been paid. The statute relating to fraudulent conveyances (2 R. S. 137, § 5), provides that its provisions shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of fraud rendering void the title of such grantor. This

plainly means that actual notice shall be given of the fraudulent intent, or knowledge of circumstances which are equivalent to such notice. Circumstances to put the purchaser on inquiry where full value has been paid are not sufficient. If he knew of the fraud that would be enough. It is not found that he had such knowledge in the case considered. As there is no such finding, we may assume that he had no knowledge of the fraud, and without this no case is established which would invalidate the conveyance to him and warrant the conclusion of the referee. No authority has been cited which sustains the principle that a purchaser for a valuable consideration without previous notice is chargeable with constructive notice of the fraudulent intent of his grantor, and such a rule would carry the doctrine of constructive notice to an extent beyond any principle which has been sanctioned by the courts, and cannot be upheld." The ruling in Stearns v. Gage was applied in the case of Farley v. Carpenter, 27 Hun, 359. In that case the defendant Abram Carpenter (the grantee), a brother of Charles Carpenter (the grantor), on examination supplementary to execution among other things testified, "I did not know at that time (meaning the time when the conveyance was made), that he owed any thing aside from me; thought something up from the way he talked; he asked me to deed this house and lot to his wife; Wednesday went to his house, he sent for me; he wanted to sell me his farm; I said 'what is up?' he said 'you need not ask any questions nor say any thing for two or three days; if I don't sell this to you I shall to some one else,' and I did not; what was up didn't know, but thought there was something; he was always a square fellow before this; supposed he was at this time." The referee found that the conveyance was taken by Abram without the knowledge of the fraudulent intent of his grantor, and in considering the question the court say: "Fraud implies an evil intent or illegal intent. Such intent can only exist

in case of knowledge. Under this statute fraud is not a question of negligence, it is a question of knowledge and intent. A party may be negligent in not examining the records for liens and incumbrances in real estate before purchase and still be strictly honest and innocent of fraud. The appellant's counsel contends that this decision (79 N. Y. 102), is in conflict with numerous other decisions in the Court of Appeals and he cites the cases of 15 N. Y. 354; 39 id. 10; 50 id. 345; 76 id. 386. * * * In neither of those cases was fraud alleged or claimed to exist on the part of the persons held to be chargeable with constructive notice. Our attention has not been called to a single case in the Court of Appeals brought under this statute where fraud is charged as the gravamen of this action, in which it has been held that there can be a recovery against the grantee without actual notice of the fraudulent intent of his grantor."

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It is not the duty of the purchaser to inquire into the motives of the seller for making the sale. Hence he is not chargeable with knowledge of a fraudulent

purpose on the part of the seller merely because he failed to avail himself of an opportunity of making investigation which, if made, would have revealed the purpose. State ex rel. Pierce v. Merritt, 70 Mo. 275. Where a debtor sold his entire stock of goods to a purchaser with the intent to defraud his creditors, a full consideration paid by such purchaser will not protect him if he has notice, actual or constructive, that the vendor is selling to hinder and delay his creditors. Singer v. Jacobs, 11 Fed. Rep. 559. On this point the court said (p. 561); "A full consideration paid in cash will not protect a purchaser who has notice, actual or constructive, that the vendor is selling to hinder and delay his creditors; and the reason is, that by aiding the debtor to convert his visible and bulky property, which cannot readily be concealed from creditors, into money which it is easy to put beyond their reach, he knowingly assists the debtor to carry out his fraudulent purpose." Tantum v. Green, 21 N. J. Eq. 364. On the question of fraudulent intent the parties to the transfer may testify as to their object and intent in making it. Abbott's Trial Ev. 739, 740; Bump on Fraud. Convey. (3 ed.) 593. Declarations of the seller shortly before his sale are admissible to show his intent, although they were not made in the presence of the creditors or to their knowledge. Bishoff v. Hartley, 9 West Va. 100. NOTICE TO AGENT IS ΤΟ PRINCIPAL. When notice to an attorney will be imputed to client see Fairfield Savings Bang v. Chase, 72 Me. 226; S. C. 39 Am. Rep. 319, 322, note. Notice to an agent of an unrecorded deed is notice to the principal. Drake v. Barker, 54 Vt. 372. Whatever information an attorney acquires in relation to the subject-matter of a suit he will be presumed to have communicated the same to his client, and notice to him is constructive notice to his client. Bierce v. Red

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Bluff, 31 Cal. 160. A principal is not affected by information imparted to the agent (attorney) before the agency existed, and which has not been retained in mind by the agent. Yerger v. Barz, 56 Iowa, 77. Notice to an agent of facts arising from or connect with the sub-matter of the agency is constructive notice to the principal where the notice comes to the agent while he is acting for the principal and in the course of the very transaction. Bierce v. Red Bluff, 31 Cal. 160.

RESPONSIBILITY-WITH A FORECAST.

I. Insanity being offered as a defense in a criminal action, the question for the judge to present to the jury is not, "was the defendant insane when he did the act charged?" but "was he then in such a condition that the law, as it is, regards him as not responsible therefor?"

The question then of course arises, "what conditions are those of which the law says, that the fact of being in such, renders a man not responsible?"

The answer to this question, not being an answer to the question, "was the defendant insane? " is not a "test of insanity," in the medical sense of the word

insanity; but is a statement of the "state of mind," which the law regards as relieving from responsibility. This state of mind may be different in different jurisdictions as, (a) a state such that the defendant is unable to distinguish right from wrong, or to know the wrongfulness of his act; (b) a state such that defendant is unable to perceive the consequences of his act;

(c) a state in which the defendant had not the power

of self-control, is moved by an uncontrollable impulse; or in a given jurisdiction, any one of several states of mind may be considered as relieving from responsibility.

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Testimony, then, should be directed to the question, was the defendant, at the time he did the act, in the state of mind which the law of the given jurisdiction says relieves from responsibility?" The question,

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I was he then insane?" is confusing and misleading, because too broad.

Expert testimony should be directed to the question, In your opinion, founded on your knowledge of this man's life, of the act charged, of the circumstances connected with it, or his conduct before and since, of his antecedents, of his present appearance, together with your previous conclusions as to the states of mind of persons under circumstances, and conducting themselves in a manner analogous to the circumstances of this act and the conduct of this defendant, was the defendant, at the time of doing the act, in the state of mind which (as the law of this jurisdiction says), "relieves from responsibility?"

Plainly, the" definition of insanity" is not a duty for the witness, expert or others; but it is as suggested, for the judge to declare what the law lays down as the state of mind, by which a defendant is relieved from responsibility.

II. In considering the legal aspects and relations of crime and insanity; two things, as appears from the above statement, need definition and explanation: (a) Responsibility, and

(b) The states of mind which the law regards as relieving from responsibility.

Responsibility is that condition a person is in when he is declared to be punishable. A person is not responsible until he has done or omitted something which brings him under the law. He may become responsible at any moment; but an act, or an omission, which may for present purposes be considered an act, is necessary before the term responsibility is properly applicable. After the act, the law presumes, i. e., declaring on the strength of the common knowledge, that men are similar, that the doer of the act is responsible; or that presumption being met by evidence, declares him responsible on the strength of evidence, additional to that which the general knowledge of the similarity of men furnishes. This declaration that he is responsible is, so far as the legal significance of the word is concerned, the declaration that he is subject or amenable to the law, punishable.

Punishable is the condition a person is in when he has done, with intent, an act (an omission, or criminal negligence may be shown to be subject to the same considerations as an act), which the law declares to be a crime.

A crime is an act which society finds to be so detrimental to its welfare, as to make it seem expedient to attempt to deter individuals from a commission of it, by inflicting on those who commit it, certain burdens known to be displeasing to mankind.

Intent is the consciousness or knowledge accompanying the commission of an act, that is of the primary movement of the body following the determination, that under the circumstances known to the actor, the act will probably be followed by a certain result.

All acts, then, are criminal, so far as intent alone is concerned, except those strictly automatic or uncon

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scious. Lack of knowledge of right and wrong, the presence of an overpowering impulse, or other states of mind" generally considered as relieving from responsibility do not so relieve.

It does not assist in restricting responsibility, to add to the elements necessary to form criminality that of motive. The motive added being a desire that the probable resulting act should take place. For the knowledge which we have defined as intent, and which is present in all except automatic or unconscious acts, necessarily includes a desire that the act be done. The muscular system cannot be directed to the execution of a conscious, non-automatic act, if the desire for accomplishment of that act be not present.

III. Our consideration of responsibility leads to the conclusion, that every one is responsible for all except automatic or unconscious acts, which is in violation of the criminal law. Next as to the states of mind which the law regards as relieving from responsibility: Ignorance of the consequences of the act does not so relieve, except in so far as it is a state of automatonism, or unconsciousness as to the act charged, and that state relieves from all the elements of responsibility. Ignorance of the quality of the act does not so relieve, for the ignorance is either that the act is contrary to the law, and ignorance of the law excuses no man, or that the act is contrary to prevailing rules of morality, and the fact that one follows the dictates of his own conscience is no excuse under the law, whether he disregards the prevailing rules of morality from choice or from ignorance.

IV. So it appears that logically no abnormal or unusual state of mind relieves from responsibility, because no such state removes the element of intent from conscious, non-automatic acts. But that the presence, or supposed presence, of certain states of mind does absolve from responsibility, in the opinion of judges and jurors, is plain from the almost daily acquittals on the ground of insanity. Whence comes this inconsistency? It may be shown to arise from the dim recognition of the fact that the determinations, and hence the resulting acts, of men are, like all other natural phenomena, subject to law, and in the sense that they are caused, are necessary. The average man, if questioned, asserts that he is free, thinking that he means thereby more than the simple fact that generally he is at liberty to carry out his determinations; but, being conscious at the same time that he is not blameworthy, in the sense of being a creator of sin, for much of his wrong conduct, he feels that another man may be so constituted or so situated as to be relieved from responsibility, not only in the moral but also in the legal sense. Hence the acquittals by reason of insanity in tribunals of justice, and the excuses, on the ground of temperament or temptation, in daily life.

V. The idea of the essential wickedness of man, of original sin, is a necessary corollary of the prevalent views of man's place in the universe, as the child of a God who is but a magnified man, and as having in himself the liberty to choose the wrong in opposition to the right, even though the motives to each be of equal weight. This supposed power of preferring evil, of creating sin, is thought of as something which every man has, and which he can exercise or not, at pleasure. Exercising it, he is sinful, blameworthy, and in law as well as in daily life, responsible; refraining from its exercise, he is good and praiseworthy. But as suggested above, most men are so constituted that they feel themselves not only not altogether praiseworthy for their good determinations, but often not blameworthy for their evil ones; recognizing that in some of their determinations this element of primary choice, which they suppose is generally present, is altogether wanting. Hence they can, without much difficulty,

be persuaded that other men, under circumstances and conditions which seem peculiar only because they are exaggerated, may not have had the opportunity to exercise this power of choice at all, and as fellow citizens, they excuse them, as jurors they acquit them.

Now that sin is seen to be the natural result of the necessary failure of the conduct of the individual to conform to the standards of the environing society; society always establishing standards, seen to be necessary for its own well-being, to which the individual is unable to conform; and now that the determinations, the so-called choices of individuals are shown to be embraced in the chain of causality, and in that sense to be necessary, it seems proper that we reject the common, the biblical significance of the words blame, responsible, and the like, and limit them to the meaning, simply, that the person to whom they are applied is the one in whom the determination resulting in the act under consideration, has arisen. The common acceptance of this view, that constitution and evironment are the only factors in conduct, would not make laws useless, but would lead to their more rational enactments, for it would be perceived that their great value is that of motives to right conduct, with the lesser one of improving the individual coming under them; it would not remove the moral quality from acts, for the moral quality would be seen to consist in conformity or want of conformity to acknowledged standards of conduct, and those standards would be as necessary and as elevated, resulting as they do from the felt necessity of a conduct in individuals advantageous to society as a whole, as they are at present; it would not prevent our praising and loving the good and dispraising and hating the evil man, for then as now the former would be seen to be the best thing that society could encourage or that individuals could imitate; it would not remove any incentives to right living, for all the present motives to such would still exist; it would not remove the discouragements to vice, for the punishment of the law and the disapprobation of society would still be present. In daily life such a view of wrong doing, of non-conforming conduct, would extend infinitely our charity. The evil disposed man would be thought of as one to whom all the motives for good, present to most men, had not come, or as one on whom, through his constitution, such motives had not their usual influence. Each man's conduct would be directed to the adding motives for good conduct to the influences bearing on others, not to prejudiced, unreasoning disapprobation of them. Realizing that we are all of necessity what we are, but that we may ourselves improve, that we may aid others in bettering themselves, and that our posterity may be made still an advance upon us, our efforts would be intelligently directed to self and mental improvement.

VI. The adoption of such a view of man's nature, would have an effect upon the law, perhaps ultimately a great effect. I will venture on a forecast, of course merely tentative, of what the proceedings will be at and after the trial of a person accused of a crime, at some future day:

1. The fact of the commission of the deed constituting the crime is established.

2. The question, "did the accused commit it?" is answered in accordance with the evidence, as now. 3. If the answer be no, the accused is, of course, discharged.

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4. If the answer be yes, the further question arises, I was it done automatically," or as I may be charged with making man an automaton, by the view of his nature set forth above, I will say, "unconsciously?" The word unconsciously, as here used, has reference to the complete ignorance of the accused, that any primary movement of his might result in the act in

question. In this sense the acts of a drunken man are not necessarily unconscious, he being presumed to know that his drinking might result in the commission by him of the act charged.

5. Again, if the answer to this question be yes, the accused is discharged.

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6. If the answer to the question in (2) be yes, and with knowledge," a further examination is had of the accused and of the circumstances of the crime, before a permanent commission established for the purpose, who make detailed discovery in regard to the following facts:

(a) The ancestry or pedigree of the accused.

(b) His past life, including his education and surroundings.

(c) His character as to criminality, as shown by his reputation in the broad sense of that word.

(d) His physical condition at the time of the commission of the act and the time of the examination.

(e) The circumstances of the act and those leading up to it, including herein the temptations, the direct ultimate motives to it.

(f) The mental state of the accused.

7. The result of this inquiry being laid before a judge or jury, decision is by them made as to the mental condition of the accused, the condition in which they declare him to be, together with the nature of the act, being the guide to his treatment nuder the law.

8. He may be declared to belong, as to his criminality, to

Class A. Meaning thereby that he has no abnormal or unusual tendency to crime, but committed the act charged under peculiar circumstances, not likely again to arise. Of this class the treatment is such as may chiefly act as a restraining motive to others; or to

Class B. Meaning that the accused has an abnormal tendency to crime, but a tendency largely if not wholly acquired from life surroundings. Of this class the treatment, in addition to the feature mentioned in (A) and common to those that follow, is directed mainly to moral education; or to

Class C. Meaning that the accused has an abnormal, probably inherited, tendency to crime, strong, but not plainly ineradicable. Of this class the treatment is long confinement, with subsequeut supervison possibly extending through [life, and at last until the criminal tendency has been apparently eradicated; or to

Class D. Meaning that the accused belongs to the group, already recognized as existing, of persons having an inherited, ineradicable criminal nature. The treatment of this class is confinement for life, with the purpose of rendering them as little injurious to society as possible, while not causing them to suffer unnecessarily. Of each class the treatment varies somewhat with the nature of the crime, but depends in large part on the ascertained character of the individual. The presumption is always present that every man is of normal character, and the mere fact of the commission of a forbidden act, without reference to attendant circumstances, is not considered as overthrowing the presumption.

JOHN CATTON DANA.

STATE LEGISLATION IN RELATION TO CORPORATE CHARTERS.

SUPREME COURT OF THE UNITED STATES, FEBRUARY 4, 1884.

SPRING VALLEY WATER WORKS V. SCHOTTLER. A water company was created under the authority of a Statute of California to supply water to the city of San Francisco. The statute provided that water should be fur

nished to consumers at reasonable rates to be fixed by an impartial tribunal designated therein.

The Constitution of California reserved the power to the State to alter and amend and control charters of corporations created by it. After the water company had made large expenditures, the people adopted a new Constitution which provided that the rates for supplying water to a city or county should be fixed by the county supervisors or city council. Held, that this provision was not in violation of the Federal Constitution

N error to the Supreme Court of California. The defendants constituted the board of supervisors of the city and county of San Francisco. The opinion states the case.

WAITE, C. J.

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Article 4, section 31, of the Constitution of California adopted in 1849 is as follows: 'Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes. All general laws and special acts passed pursuant to this section may be altered from time to time, or repealed."

Acts were passed by the Legislature under this authority on the 14th of April, 1853, and the 30th of April, 1855, providing for the formation of corporations for certain purposes, and on the 22d of April, 1858, these acts were extended so as to include the formation of corporations for the purpose of suplying cities, counties, and towns with water. Under this extension water companies were empowered to acquire lands and waters for their works by purchase and condemnation, and subject to the reasonable direction of the public authorities, to use streets, ways, alleys, and public roads for laying their pipes, but it was expressly provided, by an amendment enacted in 1861, "that all canals, reservoirs, ditches, pipes, aqueducts, and all conduits * * * shall be used exclusively for the purpose of supplying any city or county, or any cities or towns, in this State, or the inhabitants thereof with pure, fresh water." Section 4 is as follows:

"All corporations formed under the provisions of this act, or claiming any of the privileges of the same, shall furnish pure, fresh water to the inhabitants of such city and county, or city or town, for family uses, so long as the supply permits, at reasonable rates, and without distinction of persons, upon proper demand therefor, and shall furnish water to the extent of their means, to such city and county, or city or town, in case of fire or other great necessity, free of charge. And the rates to be charged for water shall be determined by a board of commissioners, to be selected as follows: Two by such city and county, or city or town authorities, and two by the water company; and in case that four cannot agree to the valuation, then in that case, the four shall choose a fifth person, and he shall become a member of said board; if the four commissioners cannot agree upon a fifth, then the sheriff of the county shall appoint such fifth person. The decision of a majority of said board shall determine the rates to be charged for water for one year, and until new rates shall be established. The board of supervisors, or the proper city or town authorities, may prescribe such other proper rules relating to the delivery of water, not inconsistent with this act and the laws and Constitution of this State." The Spring Valley Water Works Company was formed under this act on the 19th of June, 1858, and since that time has expended a very large amount of money in the erection of extensive and substantial works for the supply of the city and county of San Francisco with water. In January, 1878, the board of supervisors of the city and county appointed Isaac B. Friedlander and H. B. Williams, and the company ap pointed W. F. Babcock and Charles Webb Howard, and these four afterward appointed Jerome Lincoln, to constitute a board of commissioners to determine, under the provisions of section 4, the rates to be

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