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cover for the counsel fees demanded by him; nor for skill and advice" between July 29th and October 31st; nor for any services rendered by him between October 31st and December 8th, Parke, B., saying: "If the pauper is liable for this part of the claim, it must be by virtue of some contract; but there was no such evidence, and indeed the case was not rested upon that ground at the trial; and if it had been, I think it would have failed, as being a contract without consideration, and consequently nudum pactum. The plaintiff clearly had no ground for charging the defendant in his original agreement." See Revel v. Pearson, 12 Ired. 244.

In Kelly's case (N. Y.C. P.), N.Y. Reg., May 10, 1883, Mrs. Kelly agreed with an attorney to give him onehalf of what he might recover from a defendant, in an action for personal injuries to her. The attorney began the suit in the Superior Court, but it was dismissed with costs. Thereupon he began another action in the common pleas, and obtained an order to proceed in forma pauperis, and in this action the plaintiff obtained a judgment. Held, that as against the plaintiff, the agreement to divide the money recovered was void, because the plaintiff sued as a pauper, and that whether the defendant could or could not set off the costs of the first action against the costs of the second, so far as the plaintiff was concerned, the attorney could not, by virtue of his agreement, raise that question. See also Clark v. Dupree, 2 Dev. 411.

An attorney assigned by the court to defend one charge with a crime cannot recover from the county for his services. Cooley Const. Lim. *334; also Case v. Shawnee Co., 4 Kans. 511; People v. Albany Co., 28 How. Pr. 22; Wayne Co. v. Waller, 90 Penn. St. 99; Wright v. State, 3 Heisk. 256; Elam v. Johnson, 48 Ga. 348; Rowe v. Yuba Co., 17 Cal. 61; Kelley v. Andrew Co., 43 Mo. 338; Dane v. Smith, 13 Wis. 585; Weisbrod v. Winnebago Co., 20 id. 418; Reg. v. Fogarty, 5 Cox C. C. 161; see Jones v. Goza, 16 La. Ann. 428; Gordon v. Dearborn Co., 52 Ind. 322.-JOHN H. STEWART, REP.

TELEPHONE-POWER TO TAX.

SUPREME COURT OF WISCONSIN, DECEMBER 16, 1884.

WISCONSIN TELEPHONE Co. v. CITY OF OSHKOSH. A statute authorizing the formation of telegraph companies applies to telephone as well as telegraph companies, though not expressly mentioned.

The imposition of a tax by the common council of a city upon a telephone company, unless expressly authorized by its charter, is void.

APPEAL from Circuit Court, Winnebago county.

It appears from the complaint in effect, that October 29, 1880, Athearn had, by permission, consent, and approval of the defendant, used and operated a telephone line in the city, and had erected poles in the streets and alleys thereof, on which were placed the necessary wires to use in the business, and continued to hold and operate the same until March 21, 1881, when the plaintiff, having become incorporated, became the owner thereof by purchase from Athearn; that under chapter 345, Laws 1883, the plaintiff obtained a license from the State to operate its line and conduct its business throughout the State during the year 1883; that prior to that act the plaintiff had established its line, office, and business in Oshkosh, and had by its wires connected its subscribers in that city with many other cities and villages in that State; that June 5, 1883, the "defendant well knowing the premi

ses, but with the design and intent to collect an unjust and illegal tax from the plaintiff, passed an ordinance purporting to give to the plaintiff the right to erect or maintain its telephone lines upon poles or posts in certain streets and public alleys of the city in such a manner as not to create obstruction to the free passage of people travelling thereon; and also to run lines of telephone wires from such poles or posts along, through, over, and across such streets and public alleys, so far as the right of the city was concerned; provided the plaintiff would first pay the city $300 for each and every year that the same should be so maintained; and that if it failed to so pay within ten days after the ordinance was published, or within ten days after May 1st, in any succeeding year, then the city should cause such poles and posts to be taken down and removed; that the plaintiff refused to comply with the ordinance until the defendant proceeded to cut down and remove such poles, when the plaintiff was compelled to, and did, under protest, July 3, 1833 comply with and pay the $300 so legally exacted; that thereafter, and August 24, 1883, the plaintiff demanded the repayment of the amount so paid, which was refused, and this action was brought to recover the same. The answer was to the effect that the defendant admitted the incorporation and the organization of the plaintiff, but denied any knowledge or information sufficient to form a belief as to whether the plaintiff had a license from the State, and alleged that the Athearn ordinance was made without power or authority, and was therefore unlawful; that in any event it was repealed by the ordinance of June, 1883, and recited the enactment of that ordinance, the refusal to pay as required, the pulling down of the poles, and the cutting of the wires in consequence of such refusal; that the city had exclusive control and management of such streets and alleys, and the right to abate and remove all obstructions therefrom; that such poles were obstructions, and that such payment had been exacted for the right and privilege of so using and enjoying such streets and alleys for the purposes of the plaintiff's said business. The plaintiff demurred to the answer upon the ground that it did not state facts sufficient to constitute a defense, and from the order sustaining the same the defendant brings this appeal.

Finches, Lynde & Miller, for respondent.
John W. Hume, for appellant.

CASSODAY, J. The telephone is a new invention; so recent that even our statutes, as revised in 1878, fail to mention it. By what authority is it at large in Oshkosh? May that municipality legally exact a license fee of $300 a year for the privilege of its remaining? This is the question that confronts us. The corporate existence of the plaintiff, not having been specifically denied, stands as admitted. Section 4199, Rev. Stat.; Crane Bros. Manfg. Co. v. Morse, 49 Wis. 370; S. C., 5 N. W. Rep. 815. Of course the corporation was neces sarily formed and the character necessarily obtained, under chapter 86, Revised Statutes. As indicated there is no express mention of any telephone therein. Section 1771 of that chapter does expressly authorize the formation of corporations for the "purpose of "building and operating telepraph lines, or conducting the business of telegraphing in any way; or for any lawful business or purpose whatever, except" certain classes of business specifically mentioned. Precisely the same language is preserved in the amendment to that section. Chapter 220, Laws 1883. Such corporation, "to build and operate telegraph lines, or conduct the busines of telegraphing," is especially authorized to "conduct and maintain such lines, with all necessary appurtenances, from

** *

point to point upon or along or across any public road, highway, or bridge, or any stream or body of water, or upon the land of any owner consenting thereto, and from time to time extend the same at pleasure; and may connect and operate its lines with the lines of any person, company, or corporation without this State; and charge reasonable tolls for the transmission and delivery of messages. But no such telegraph line, or any appurtenance thereto, shall at any time obstruct or incommode the public use of any road, highway, bridge, stream, or body of water." Section 1778. In addition to the special powers so given, every such corporation, when so organized, is made a body corporate by the name designated in its articles, and has the powers of a corporation, conferred by the statutes, necessary or proper to conduct the business, or accomplish the purposes, prescribed by its articles, but no other or greater; and may take, manage, hold, convey, lease, or otherwise dispose of, at pleasure, such real and personal property, of whatever kind, as shall be necessary to its business or purposes, or to the protection or benefit of its property held or used for the corporate business or purposes. Section 1775, Rev. Stat.

It is urged that the power thus expressly given to form and organize corporations for the purpose of building and operating telegraph lines, or conducting the business of telegraphing in any way, includes the power of forming and organizing corporations for the purpose of building and operating telephone lines, or conduct the business of telephoning in any way. Of course there is a distinction between the two classes of business, but in almost every respect they are very similar, if not identical. Each of them must erect its poles or posts, and upon the tops of them attach its lines of wire from point to point. Each must almost necessarily enter upon, along, or across public roads, highways, streams, bodies of water, and upon the lands of individuals, for the purposes mentioned. In these respects they seem to be identical. One may require more lines of wire than the other, but we are not aware of any other distinction outside of their offices or places of operation distinguishable to the naked eye. It is these indistinguishable features alone that the city of Oshkosh had to deal with. Possibly there may be a marked distinction in the varying intensity of the electric currents in the one case and in the other at the point of transmission or receiving, or even at points along the line; but such difference, if it exists, hardly concerns the question here presented.

As for the difference in the mode of communication by means of a telegraphic and telephonic apparatus, see Attorney-General v. Edison Telephone Co. of London, 6 Q. B. Div. 244; S. C., 29 Eng. Rep. 602. In that case Mr. Stephens, one of the judges of the exchequer division of the high court of justice, who unlike most American judges, seems to have sufficient time not only to satisfy his own curiosity, but the curiosity of all the curious, has given a very lengthy and definitive discussion of that subject. In that case the court conclude that Edison's telephone was a telegraph, within the meaning of the telegraph acts, although the telephone was not invented nor contemplated when those acts were passed. It is there said, in effect, that the mere "fact, if it is a fact, that sound itself is transmitted by the telephone, establishes " no "material distinction between telephonic and telepraphic communication, as the transmission, if it takes place, is performed by a wire acted on by electricity." It is there further said, that "of course no one supposes that the Legislature intended to refer specifically to telephones many years before they were invented, but it is highly probable that they would, and it seems to us clear that they actually did, use language embracing future dis

coveries as to the use of electricity for the purpose of conveying intelligence." It is upon this theory of progressive construction that the powers conferred upon Congress to regulate commerce, and to establish postoffices and post-roads, have been held not confined to the instrumentalities of commerce, or of the postal service, known when the constitution was adopted, but keep pace with the progress and developments of the country, and adapt themselves to the new discoveries and inventions which have been brought into requisition since the Constitution was adopted, and hence include carriage by steamboats and railways, and the transmission of communications by telegraph. Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1. If there remains any doubt as to the power given to charter a telegraph company being sufficiently broad to include a telephone company, then it must be dispelled by the general clause above quoted from section 1771, to wit, "for any lawful business or purpose whatever, except," etc., for by a well-settled rule of construction these general words extend to things of a kindred nature, to those specifically authorized by the section, and hence to whatever is of a kindred nature to telegraphing, which most certainly includes telephoning. Noscitur a sociis.

We must conclude that under the statute it was competent to form, organize, and incorporate a telephone company possessing like powers with those given to telegraph companies. It appears in the record before us that the poles and posts of the plaintiff in the streets and public alleys of the city, and the wires upon them, had been put there and operated to June, 1883, by the permission, consent, and approval of the defendant, under what was known as the Athearn ordinance. The common council had the power to pass that ordinance “for the benefit of the trade and commerce" of the city. Section 4, subs. 6, ch. 123, Laws 1877; § 3, subs. 6, ch. 183, Laws 1883. Of course the city had no power to authorize any permanent obstruction or interference with the free passage or travel upon the streets and public alleys. Hume v. Mayor, 74 N. Y. 264; Cohen v. Mayor, 33 Hun, 404. Such obstruction or interference was expressly prohibited by the statute quoted. That ordinance did not attempt to give such authority, but the contrary. All the poles and posts seem to have been set, and the wires suspended, in accordance with the permission given in the ordinance. The plaintiff succeeded to the property and rights owned and enjoyed by Athearn under that ordinance. Thus it appears that the plaintiff occupied certain portions of the streets and public alleys of the city to June, 1883, not only by express grant of the Legislature, but by the express permission of the city authorities. Assuming that the city might otherwise exact an an annual license from the plaintiff for the privilege of operating its lines in the city, then it might, for the purposes of this case, be conceded that it was not precluded from so doing merely by reason of the poles and posts being set, and the wires suspended, in pursuance of the Athearn ordinance. Memphis Gaslight Co. v. Taxing District, 109 U. S. 398; Butchers' Union, etc., Co. v. Crescent City, etc., Co., 111 U. S. 746. But as we view this case, that question does not arise. Nor does the question arise whether the city could legally authorize such an occupation of the streets and public alleys against the will of consent of the abutting owners, for the simple reason that the city did not, by that ordinance, undertake to give such authority. It only undertook to authorize "so far as the rights of said city were concerned." Whether such occupancy was an additional burden upon the highway, for which abutting owners might have exacted compensation, is a question upon which the courts are divided.

The Supreme Court of Illinois has held that in the case of telegraph companies it was. Board of Trade Tel. Co. v. Barnett, 107 Ill. 507; S. C., 47 Am. Rep. 453. In Massachusetts the contrary doctrine has been held by a divided court. Pierce v. Drew, 136 Mass. 75; S. C., 49 Am. Rep. 7. As the question is not here squarely involved we express no opinion upon it; nor as to whether the statute has given to telephone or telegraph companies the right of eminent domain. By chapter 345, Laws 1883, the plaintiff was required to pay to the State annually a license fee of 1 per centum of the gross receipts of its business within the State, and thereby it secured a license to carry on its business in the State. This it did. The act also provides that such license fee shall be in lieu of all taxes for any purposes authorized by the laws of the State, except upon certain specific property. Of course the city could not levy a tax in violation of that act. But a mere license is not a tax. Nor could the city exact an additional license without legislative authority so to do. Moran v. New Orleans, 5 Sup. Ct. Rep. 38. Undoubtedly the common council had authority, and it was its duty, by ordinances, resolutions, or by-laws, to control and regulate the streets, alleys, and public grounds of the city, and to remove and abate whatever might be fairly regarded as an obstruction or encroachment thereon. Subs. 30, § 3, subs. 6, ch. 183, Laws 1883. The same section declares that the common council shall have like authority "to regulate, control, and prohibit the location, laying, use, and management of telegraph, telephone, and electric light and power wires and poles." Sub. 66, id. But we do not think this was designed as giving to the municipality absolute authority to remove such poles and wires entirely from the city, nor to exclude such companies altogether from carrying on or operating their business within the corporate limits of the city, but simply to regulate the same, and to prohibit such location in improper places. Otherwise the municipalities of the State would have the power to nullify what the Legislature had expressly authorized.

Undoubtedly the common council, under the charter, had the right to regulate, in order to guard and secure the public safety and convenience, but their regulations, to be valid, should have been reasonable and fair, and not have gone to the extent of confiscation, nor of wholly excluding the plaintiff from the city. American U. Tel. Co. v. Harrison, 31 N. J. Eq. 627. But express power to exclude merely would not be a grant of power to license. Leonard v. Canton, 35 Miss. 189. The pecuniary exaction here was merely for doing what the Legislature had expressly authorized to be done. The mere exaction of money for revenue only for such authorized act was not among the police powers of the city. Mayor v. Second Ave. R. Co., 32 N. Y. 261. Besides neither telephones nor telegraphs are named among the several things that the common council are expressly authorized "to license." Subs.2, § 3,subs. 6, ch. 183, Laws '83. The charter having thus expressly stated what the common council might license, without naming telegraphs or telephones, has by necessary implication prohibited the exaction of such license of either of those companies. Expressio unius est exclusio alterius. It follows that the ordinance of June 5, 1883, exacting the $300 in question, was unauthorized by the charter, and in conflict with the statute, and therefore void. The order of the Circuit Court is affirmed.

INNKEEPER-GUEST-TAKING ROOM FOR PUR-
POSES OF PROSTITUTION.

WISCONSIN SUPREME COURT, MARCH 31, 1885.
CURTIS V. MURPHY.*

C. went to a hotel near his residence about midnight with a disreputable woman, registered as "C. and wife," and

* S. C., 22 N. W. Rep. 825.

was given a room for the night. Before going to the room he delivered to the night clerk $102 for safe-keeping, and received a receipt therefor. During the night the clerk absconded with the money. Held, that C. was not a guest, and was not entitled to recover the money from the proprietor of the hotel.

APPEAL from County Court, Milwaukee county.

J. E. Wildish, for appellant.

John A. Wall, for respondent.

COLE, C. J. The defendant in this action was a proprietor of the St. James Hotel in Milwaukee. The plaintiff was a single man, and kept a saloon not many blocks distant from the hotel. The following facts are clearly shown by the plaintiff's own testimony: About 12 o'clock at night on the 13th of March, 1882, the plaintiff came to the hotel with a disreputable woman whom he met on the street, and whose name he did not know, and registered himself and the woman as "Thomas Curtis and wife," called for a room, and it was assigned him by a person or clerk who was in charge of the office. The plaintiff testified that before going to his room he said to this clerk that he saw on the top of the register that all moneys and jewels should be given to the proprietor; when the clerk replied that the proprietor was in bed, and that he held the position of night clerk. Thereupon the plaintiff handed the clerk $102 for safe-keeping, and took a receipt, which read, "I O. U. $102," signed by the clerk. That night clerk absconded with the money. The plaintiff sues to recover it of the proprie tor of the hotel.

The natural, perhaps necessary inference from the plaintiff's own testimony is that he went to the defendant's hotel at midnight with a prostitute, and engaged a room solely for the purpose of having sexual intercourse with the woman. True, he says that he went to the hotel as a guest, and asked the clerk if he "could stay there for bed and breakfast." But he lived near by, gave no reason why he did not go to his usual lodging-place, therefore we feel entirely justified in assuming that he went to the hotel for the unlawful purposes above indicated. This being the case, the question arises whether he was a guest in a legal sense, and entitled to protection as such. The learned counsel for the defendant insists that he cannot and should not be deemed a guest under the cir cumstances, and entitled to the rights and privileges of one. If the relation of innkeeper and guest did exist between the parties, it is difficult to perceive upon what ground the defendant can escape responsibility for the loss of the money handed to the clerk or person in charge of the office; for the common law, as is well known, on grounds of public policy, for the protection of travellers, imposes an extraordinary liability on an innkeeper for the goods of his guest, though they may have been lost without his fault.

It is not easy, says Mr. Schouler, to lay down, on the whole, who should be deemed a guest in the common-law sense; the facts in each case must guide the decision. Bailm. 256. A guest is a "traveller or wayfarer who puts up at an inn." Calye's case, 8 Coke, 32. "A lodger or stranger in an inu." Jac. Law Dict. A traveller who comes to an inn and is accepted becomes instantly a guest. Story Bailm., § 477. "It is wellsettled that if a person goes to an inn as a wayfarer and traveller, and the inkeeper receives him into his inn as such, he becomes the innkeeper's guest, and the relation of landlord and guest, with all its rights and liabilities, is instantly established between them." Jalie v. Cardinal, 35 Wis. 118.

"The cases show that to entitle one to the privileges and protection of a guest he must have the character

of a traveller; one who is a mere temporary lodger, in distinction from one who engages for a fixed period at a certain agreed rate. The main distinction is the fact that one is a wayfarer, or transiens; and it matters not how long he remains provided he assumes this character." 7 Am. Dec., note to Clute v. Wiggins, 451.

In these definitions the prominent idea is that a guest must be a traveller, wayfarer or a transient comer to an inn for lodging and entertainment. It is not now deemed essential that a person should have come from a distance to constitute a guest. "Distance is not material. A townsman or neighbor may be a traveller, and therefore a guest at an inn as well as he who comes from a distance or from a foreign country." Walling v. Potter, 35 Conn. 183.

Justice Wilde says, in Mason v. Thompson, 9 Pick. 284, that "it is clearly settled that to constitute a guest in legal contemplation it is not essential that he should be a lodger or have any refreshment at the inu. If he leaves his horse there, the innkeeper is chargeable on account of the benefit he is to receive for the keeping of the horse."

Judge Bronson, in commenting on this case in Grinnell v. Cook, 3 Hill, 485-490, says where the owner of a horse sent the animal to an inn to be kept, but never went there himself, and never intended to go there as a guest, it seemed but little short of downright absurdity to say that in legal contemplation he was a guest. On principle it would seem that a person should himself be either actually or constructively at the inn or hotel for entertainment in order to establish the relation of landlord and guest.

In Atkinson v. Sellers, 5 C. B. (N. S.) 442, Cockburn, C. J., remarks: "Of course a man could not be said to be a traveller who goes to a place merely for the pur pose of taking refreshments. But if he goes to an inn for refreshments in the course of a journey, whether of business or of pleasure, he is entitled to demand refreshment and the innkeeper is justified in supplying it."

If a traveller have no personal entertainment or refreshment at an iun, but simply care and food for his horse, he may be a guest, for he makes the inn his temporary abode-his home for the time being. Ingalsbee V. Wood, 36 Barb. 452; Coykendall v. Eaton, 55 id. 188. And while the definition of guest has been somewhat extended from its original meaning, it does not include every one who goes to an inn for convenience to accomplish some purpose. If a man or woman go together or meet by concert at an inn, or hotel in the town or city where they reside, and take a room for no other purpose than to have illicit intercourse, can it be that the law protects them as guests? Is the extraordinary rule of liability which was originally adopted from the considerations of public policy to protect travellers and wayfarers, not merely from the negligence but the dishonesty of innkeepers and their servants, to be extended to such persons? If so, then for a like reason it should protect a thief who takes a room at an inn and improves the opportunity thus given to enter the rooms and steal the goods of guests and boarders. We do not think that the relation of innkeeper and guest can or does arise in the cases supposed. One whose status is a guest is a traveller or transient comer who puts up at an inn for a lawful purpose to receive its customary lodging and entertainment. It is not one who takes a room solely to commit an offense against the laws of the State. So upon the facts detailed by the plaintiff himself we have no hesitation in saying that he was not a guest at the hotel within the legal sense of the term. The relation of landlord and guest was never established between them. We feel the more confidence in the correctness of this conclusion when we consider the du

ties of an innkeeper. An innkeeper is bound to take in all travellers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation; and he must guard their goods with proper diligence. Bac. Abr. tit. "Inn and Innkeeper," C; Story Bailm., § 476.

Now if the defendant had been aware of the purpose of the plaintiff in applying for a room, could he not have refused to receive him into his house? Nay, more, if the plaintiff had been received by the clerk, and a room had been assigned him, could not the defendant, on learning the purpose for which the room had been taken, have incontinently turned the plaintiff and the woman with him into the street, or have called the police and had them arrested? It seems to us there can be no doubt of the right of the defendant thus to have treated the plaintiff. But if the plaintiff was a guest, and entitled to the rights and privileges of a person having that status at the hotel, he could not have been turned into the street, though his profligate conduct was outraging all decency and ruining the reputation of the hotel.

The questions which have frequently come before the courts for consideration were whether a person, upon the facts of the case, was a traveller or temporary sojourner, so as to be deemed a guest, or whether he was to be regarded as a boarder, or one at the hotel as a special customer. These questions are elaborately examined in some of the cases above cited; also in Mc Daniels v. Robinson, 26 Vt. 316; Berkshire Woolen Co. v. Proctor, 7 Cush. 417; Norcross v. Norcross, 53 Me. 163; Pinkerton v. Woodward, 33 Cal. 557; Hancock v. Rand, 94 N. Y. 1; Smith v. Keyes, 2 T. & C. 650; Fitch v. Casler, 17 Hun, 126; McDonald v. Edgerton, 5 Barb. 560; Shoecraft v. Bailey, 25 Iowa, 554; Manning v. Wells, 9 Humph. 746.

It seems to have been taken for granted in the court below that the plaintiff was a guest at the hotel. But the learned County Court held that section 1725, Rev. Stat., requires the guest to deliver his money to the innkeeper himself, or to a clerk having authority from the innkeeper to receive it. As it did not appear that the clerk in this case had such authority, the defendant was relieved from responsibility for the money lost by the clerk. We should hesitate to affirm the correctness of this view of the law. On the contrary, we think a traveller, when he goes to a hotel at night, and finds a clerk in charge of the office, assigning rooms, etc., has the right to assume that such clerk represents the proprietor, and has authority to take charge of money which may be handed him by a guest for safe-keeping. But still, in the view which we have taken of the character of the plaintiff, and that he was not a guest at the hotel, this error of the court is immaterial. On the whole record the judg

ment is right, and must be

Affirmed.

TAXATION - CEMETERIES NOT EXEMPT FROM

ASSESSMENTS.

OHIO SUPREME COURT, JANUARY TERM, 1884.

LIMA V. CEMETERY ASSOCIATION.*

An incorporated cemetery association is not relieved from assessment for a street improvement by a statutory provision exempting its lands from taxation, such exemption being regarded as confined to taxes as distinguished from local assessments.

While the lands of an incorporated cemetery association, so far as exempted, cannot be sold to pay an assessment for the improvement of a street, the municipal corporation may enforce the assessment by such remedies as the statute and courts of equity afford.

*S. C., 42 Ohio State Reports, 128.

ERROR

RROR to the Court of Common Pleas. Reserved in the District Court of Allen County.

In 1882, Lima, a city of the fourth grade of the second class (Rev. Stats., § 1548), made an assessment by the feet front, amounting to $318.16, on real estate within the city belonging to the Lima Cemetery Association, a company incorporated under the laws of this State. Rev. Stats., §§ 3571-3586. The real estate abuts upon an alley in this city, and the assessment was made in due form by the city for grading and paving the alley.

In an action in the Court of Common Pleas of Allen county under Rev. Stats., §§ 2286, 2287, to enforce the assessment, the association answered that the lands "are, and for a long time, to wit, before the making of said improvement, have been used exclusively as a graveyard and ground for burying the, dead, and that said lands are not held with a view to profit, or for the purpose of speculating on the sale thereof, and that said lands are not taxable, and that the same are not on the tax duplicate for taxation."

The court overruled a demurrer to the answer, and subsequently dismissed the petition; and a petition in error having been filed in the District Court, that court reserved the cause for decision by this court.

D. J. Cable, for plaintiff in error.

many years been in constant and active exercise in every part of the State, and was perfectly understood by every member of the convention. The popular as well as legal signification of this term had always indicated those special and local impositions upon property in the immediate vicinity of an improved street, which were necessary to pay for the improvement, and laid with reference to the special benefit which such property derived from the expenditure of the money. They had always differed widely from the ordinary levies made for the purposes of general revenue."

There is nothing then in the Constitution forbidding either the assessment of such property or its exemption from assessment. The words of the Constitution authorizing the exemption, assuming that they extend to an assessment, are strictly permissive. May in this case is not to be read shall. By the general terms of section 2264 the property of the association is within the assessment, and it is simply a question of construction whether it is taken out of the general words by the other provisions. But applying the well-settled rule for the construction of provisions exempting property from such burdens, that is, that they are to be strictly construed (Cincinnati College v. State, 19 Ohio, 110; State v. Mills, 34 N. J. L. 177) we are required by the clear weight of authority to hold that the exemption in our statutes of burying grounds

J. F. Brotherton and 1. Pillars, for defendant in from taxation (Rev. Stats., §§ 2732, 3571, 3578) has rela

error.

OKEY, J. A municipal corporation insisting upon the right to impose an assessment should be prepared to show that such power has been clearly granted by statute; but authority for such purpose being shown in general terms, whoever insists that his property is exempted from the burden, will be required to support his claim by a provision equally clear. Here authority to levy the assessment is clearly granted in general terms (Rev. Stats., § 2264), and whether it is shown by the cemetery association that its property is exempted from the assessment is the only question for determination.

1. It is claimed that suth exemption is implied from the provision limiting the assessment to twenty-five per cent of the value of property as assessed for taxation (Rev. Stats., § 2270) inasmuch as the property of the association cannot be assessed for taxation. Rev. Stats., §§ 2732, 3571, 3578. This objection was held to be fatal in First Presb. Ch. v. Fort Wayne, 36 Ind. 338; Matter of Hebrew Society, 70 N. Y. 476. But the difficulty encountered in the Indiana case is obviated in this State by Rev. Stats., § 2269, in which the course to be pursued by counsel in such a case is pointed

out.

* *

* * *

tion to taxation for revenue purposes, and does not extend to an assessment for a local improvement like that in question here. Under similar provisions such is the holding in New York: Buffalo City Cemetery v. Buffalo, 46 N. Y. 503, 506, cited in Roosevelt Hospital v. Mayor, 84 id. 108, 115; People v. Davenport, 91 id. 574, 586; Reclamation Dist. v. Goldman, 61 Cal. 205, 208. In Maryland: Alexander v. Baltimore, 5 Gill, 396; Baltimore v. Greenmount Cemetery, 7 Md. 517. In Massachusetts: Boston, etc., Soc. v. Boston, 116 Mass. 181; S. C., 17 Am. Rep. 153. In New Jersey: Paterson v. Society, etc., 24 N. J. L. 385; State v. Newark, 27 id. 185; State v. Newark, 35 id. 157. The latter case, though reversed in 36 id. 478, it still authority upon the point to which it is here cited (State v. Elizabeth, 37 N. J. L. 330), and Hoboken v. North Bergen, 43 id. 146, is consistent with the preceding cases. In Pennsylvania: Northern Liberties v. St. John's Ch., 13 Penn. St. 104; Pray v. Northern Liberties, 31 id. 69; Crawford v. Burrell Tp., Greensburgh v. Young, 53 id. 219, 280. The latter decisions are not inconsistent with the cases cited.

In Olive Cemetery Co.v. Philadelphia, 93 Penn. St. 129, it appeared that by the charter of the cemetery company the property was "exempt from taxation excepting for State purposes." The court properly said that "the rule is well settled that an exception in a statute excludes all other exceptions. Miller v. Kirkpatrick, 5 Casey, 226. In Virginia: Orange & A. R. Co. v. Alexandria, 17 Gratt. 176. In Rhode Island: Second Univ. Soc. v. Providence, 6 R. I. 236; Matter of College Street, 8 id. 476; Beals v. Rubber Co., 11 id. 381; S. C., 23 Am. Rep. 472. In California: Emery v. Gas Co., 28 Cal. 345; Reclamation Dist. v. Goldman, supra. In Indi ana: Palmer v. Stumph, 29 Ind. 329; First Presb.Ch. v. Fort Wayne, supra; Marks v. Trustees, 37 Ind. 155. In

2. The Constitution provides: "Laws shall be passed taxing by a uniform rule all real and personal property, according to its true value in money; but burying grounds * may by general laws be exempted from taxation." Art. 12, § 2. And by Rev. Stats., §§ 2732, 3571, 3578, as we have seen, burying grounds-cemeteries-are exempted from "taxation." It is insisted that this exemption embraces assessments. True, in a general sense, a tax is an assessment, and an assessment is a tax, but there is a plain distinction between them. The Constitution provides: "The General Assembly shall provide for the organi-Illinois: Illinois & M. Canal v. Chicago, 12 Ill. 403; zation of cities and incorporated villages by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power." Art. 13, § 6.

In Hill v. Higdon, 5 Ohio St. 243, Ranney, J., in referring to the insertion of the word assessment in the organic law, by the convention which framed that instrument, took occasion to say: "This power had for

Peoria v. Kidder, 26 id. 351; Pleasant v. Kost, 29 id.
490; People v. Graceland Cemetery Co., 86 id. 336. In
Iowa: Sioux City v. School Dist.,, 55 Iowa, 150. In
Michigan: Lefevre v. Detroit, 2 Mich. 586. In Ken.
tucky: Broadway Baptist Ch. v. McAtee, 8 Bush, 508;
Louisville v. Nevin, 10 id. 549. In Kansas: Paine v.
Spratley, 5 Kans. 525. In Connecticut: Bridgeport v.
Railroad, 36 Conn. 255. In Louisiana: Crowley V.
Copley, 2 La. Ann. 329; Lafayette v. Male Orphan Asy-

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