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cover for the counsel fees demanded by him; nor for ses, but with the design and intent to collect an un. • skill and advice" between July 29th and October just and illegal tax from the plaintiff, passed an or31st; nor for any services rendered by him between divance purporting to give to the plaintiff the right to October 31st and December 8th, Parke, B., saying: erect or maintain its telephone lines upon poles or “ If the pauper is liable for this part of the claim, it posts in certain streets and public alleys of the city in must be by virtue of some contract; but there was no such a manner as not to create obstruction to the free such evidence, and indeed the case was not rested upon passage of people travelling thereon; and also to run that ground at the trial; and if it had been, I think lines of telephone wires from such poles or posts along, it would have failed, as being a contract without con- through, over, and across such streets and public sideration, and consequently nudum pactum. The alleys, so far as the right of the city was concerned; plaintiff clearly had no ground for charging the defend-provided the plaintiff would first pay the city $300 for ant in his original agreement." See Revel v. Pearson, each and every year that the same should be so main12 Ired. 244.

tained; and that if it failed to so pay within ten days In Kelly's case (N. Y.C. P.), N.Y. Reg., May 10, 1883, after the ordinance was published, or within ten days Mrs. Kelly agreed with an attorney to give him one- after May 1st, in any succeeding year, then the city half of what he might recover from a defendant, in au should cause such poles and posts to be taken down action for personal injuries to her. The attorney be- and removed; that the plaintiff refused to comply with gan the suit in the Superior Court, but it was dismissed the ordinance until the defendant proceeded to cut with costs. Thereupon he began another action in the down and remove such poles, when the plaintiff was common pleas, and obtained an order to proceed in compelled to, and did, uvder protest, July 3, 1833 forma pauperis, and in this action the plaintiff ob- comply with and pay the $300 so legally exacted; that tained a judgment. Held, that as against the plaint- thereafter, and August 24, 1883, the plaintiff demanded iff, the agreement to divide the money recovered was the repayment of the amount so paid, which was revoid, because the plaintiff sued as a pauper, and that fused, and this action was brought to recover the same. whether the defendant could or could not set off the The answer was to the effect that the defendant adcosts of the first action against the costs of the second, mitted the incorporation and the organization of the so far as the plaintiff was concerned, the attorney could plaintiff, but denied any kuowledge or information not, by virtue of his agreement, raise that question. | sufficient to form a belief as to whether the plaintiff See also Clark v. Dupree, 2 Dev. 411.

had a license from the State, and alleged that the An attorney assigned by the court to defend one Athearn ordinance was made without power or aucharge with a crime cannot recover from the county thority, and was therefore unlawful; that in any for his services. Cooley Const. Lim. *334; also Case v. event it was repealed by the ordinance of June, 1883, Shawnee Co., 4 Kans. 511; People v. Albany Co., 28 and recited the enactment of that ordinance, the reHow. Pr. 22; Wayne Co. v. Waller, 90 Penn. St. 99; fusal to pay as required, the pulling down of the poles, Wright v. State, 3 Heisk. 256; Elam v. Johnson, 48 Ga. and the cutting of the wires in consequence of such 318; Rowe v. Yuba Co., 17 Cal. 61; Kelley v. Andrew refusal; that the city had exclusive control and manCo., 43 Mo. 338; Dane v. Smith, 13 Wis. 585; Weisbrodagement of such streets and alleys, and the right to v. Winnebago Co., 20 id. 418; Reg. v. Fogarty, 5 Cox C. abate and remove all obstructions therefrom; tbat C. 161; see Jones v. Goza, 16 La. Ann. 428; Gordon v. such poles were obstructions, and that such payment Dearborn Co., 52 Ind. 322.-John H. STEWART, REP. had been exacted for the right and privilege of so

using and enjoying such streets and alleys for the pur

poses of the plaintiff's said business. The plaintiff TELEPHONE-POWER TO TAX.

demurred to the answer upon the ground that it did

not state facts sufficient to constitute a defense, and SUPREME COURT OF WISCONSIN,

from the order sustaining the same the defendant DECEMBER 16, 1881.

brings this appeal.

Finches, Lynde & Miller, for respondent. WISCONSIN TELEPHONE Co. v. CITY OF OSHKOSH.

John W. Hume, for appellant. A statute authorizing the formation of telegraph companies applies to telephone as well as telegraph companies,

CASSODAY, J. The telephone is a new invention; 50 though not expressly mentioned,

recent that even our statutes, as revised in 1878, fail The imposition of a tax by the common council of a city upon

to mention it. By wbat authority is it at large in Osha telephone company, unless expressly authorized by its

kosh? May that municipality legally exact a license charter, is void.

fee of $300 a year for the privilege of its remaining?

This is the question that confronts us. The corporate PPEAL from Circuit Court, Winnebago county.

existence of the plaintiff, not having been specifically

denied, stands as admitted. Section 419S, Rev. Stat.; It appears from the complaint in effect, that Octo- Crane Bros. Manfg. Co. v. Morse, 49 Wis. 370; S. C., 5 ber 29, 1880, Athearn had, by permission, consent, and N. W. Rep. 815. Of course the corporation was necesapproval of the defendant, used aud operated a tele- sarily formed and the character necessarily obphone line in the city, and had erected poles in the tained, under chapter 86, Revised Statutes. As indistreets and alleys thereof, on which were placed the cated there is no express mention of any telephone necessary wires to use in the business, and continued therein. Section 1771 of that chapter does expressly to hold and operate the same until March 21, 1881, authorize the formation of corporations for the "purwhen the plaintiff, having become incorporated, be- pose" of " building and operating telepraph liues, or came the owner thereof by purchase from Athearn; conducting the business of telegraphing in any way; that under chapter 345, Laws 1883, the plaintiff ob

or for any lawful business or purpose whattained a license from the State to operate its line and ever, except” certain classes of business specifically conduct its business throughout the State during the mentioned. Precisely the same language is preserved year 1883; that prior to that act the plaintiff had es- in the amendment to that section. Chapter 220, Laws tablished its line, office, and business in Oshkosh, and 1883. Such corporation, “to build and operate telehad by its wires connected its subscribers in that city graph lines, or conduct the busines of telegraphing," with many other cities and villages in that State; that is especially authorized to "conduct and maintain June 5, 1883, the “ defendant well kuowing the premi- such lines, with all necessary appurtenances, from

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point to point upon or along or across any public road, coveries as to the use of electricity for the purpose of highway, or bridge, or any stream or body of water,or conveying intelligence." It is upon this theory of proupon the land of any owner consenting thereto, and gressive construction that the powers conferred upon from time to time extend the same at pleasure; and Congress to regulate commerce, and to establish postmay connect and operate its lines with the lines of any offices and post-roads, have been held not confined to person, company, or corporation without this State; the instrumentalities of commerce, or of the postal and charge reasonable tolls for the transmission and service, known when the constitution was adopted, delivery of messages. But no such telegraph line, or but keep pace with the progress and developments of any appurtenance thereto, shall at any time obstruct the country, and adapt themselves to the new discovor incommode the public use of any road, highway, eries and inventions which have been brought into bridge, stream, or body of water.” Section 1778. In requisition since the Constitution was adopted, and addition to the special powers so given, every such hence include carriage by steamboats and railways, corporation, when so organized, is made a body cor- and the transmission of communications by telegraph. porate by the name designated in its articles, and has Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1. If the powers of a corporation, conferred by the statutes, there remains any doubt as to the power given to necessary or proper to conduct the business, or ac- charter a telegraph company being sufficiently broad complish the purposes, prescribed by its articles, but to include a telephone company, then it must be disno other or greater; and may take, manage, hold, con- pelled by the general clause above quoted from section vey, lease, or otherwise dispose of, at pleasure, such 1771, to wit, for any lawful business or purpose whatreal and personal property, of whatever kind, as shall ever,except," etc., for by a well-settled rule of construcbe necessary to its business or purposes, or to the pro- tion these general words extend to things of a kindred tection or benefit of its property held or used for the nature, to those specifically authorized by the section, corporate business or purposes. Section 1775, Rev. and hence to whatever is of a kindred nature to teleStat.

graphing, which most certainly includes telephoning. It is urged that the power thus expressly given to Noscitur a sociis. form and organize corporatious for the purpose of We must conclude that under the statute it was building and operating telegraph lines, or conducting competent to form, organize, and incorporate a telethe business of telegraphing in any way, includes the phone company possessing like powers with those power of forming and organizing corporations for the given to telegraph companies. It appears in the repurpose of building and operating telephone lines, or cord before us that the poles and posts of the plaintiff conduct the business of telephoning in any way. Of in the streets and public alleys of the city, and the course there is a distinction between the two classes of wires upon them, had been put there and operated to business, but in almost every respect they are June, 1883, by the permission, consent, and approval of very similar, if not identical. Each of them must the defendant, under what was known as the Athearn erect its poles or posts, and upon the tops of them at- ordinance. The common council had the power to tach its lines of wire from point to point. Each must pass that ordinance“ for the bonefit of the trade and almost necessarily enter upon, along, or across public commerce" of the city. Section 4, subs. 6, ch. 123, roads, highways, streams, bodies of water, and upon Laws 1877; $ 3, subs. 6, ch. 183, Laws 1883. Of course the lands of individuals, for the purposes mentioned. the city had no power to authorize any permanent obIn these respects they seem to be identical. One way struction or interference with the free passage or require more lines of wire than the other, but we are travel upon the streets and public alley 8. Hume, v. not aware of any other distinction outside of their of- Mayor, 74 N. Y. 264; Cohen v. Mayor, 33 Hun, 404. fices or places of operation distinguishable to the naked Such obstruction or interference was expressly proeye. It is these indistinguishable features alone that hibited by the statute quoted. That ordinance did the city of Oshkosh had to deal with. Possibly there not attempt to give such authority, but the contrary. may be a marked distinction in the varying inteusity All the poles and posts seem to have been set, and the of the electric currents in the one case and in the wires suspended, in accordance with the permission other at the point of transmission or receiving, or given in the ordinance. The plaintiff succeeded to the even at points along the line; but such difference, property and rights owned and enjoyed by Athearn if it exists, hardly concerns the question here pre- under that ordinance. Thus it appears that the sented.

plaintiff occupied certain portions of the streets and As for the difference in the mode of communication public alleys of the city to June, 1883, not only by exby meaus of a telegraphic and telephonic apparatus, press grant of the Legislature, but by the express persee Attorney-General v. Edison Telephone Co. of Lon- mission of the city authorities. Assuming that the don, 6 Q. B. Div. 244; S. C., 29 Eng. Rep. 602. In that city might otherwise exact an an annual license from case Mr. Stephens, one of the judges of the exchequer the plaintiff for the privilege of operating its lines in division of the high court of justice, who unlike most the city, then it might, for the purposes of this case, American judges, seems to have sufficient time not be conceded that it was not precluded from so doing only to satisfy his own curiosity, but the curiosity of merely by reason of the poles and posts being set, and all the curious, bas given a very lengthy and definitive the wires suspended, in pursuance of the Athearn ordiscussion of that subject. In that case the court con- dinance. Memphis Gaslight Co. v. Taxing District, clude that Edison's telephone was a telegraph, within 109 U. S. 398; Butchers' Union, etc., Co. v. Crescent the meaning of tbe telegraph acts, although the tele- City, etc., Co., 111 U. S. 746. But as we view this case, phone was not invented nor contemplated when those that question does not arise. Nor does the ques. acts were passed. It is there said, in effect, that the tion arise whether the city could legally aumere“ fact, if it is a fact, that sound itself is transmit- thorize such occupation of the streets and ted by the telephone, establishes" no “material dis- public alleys against the will or consent of the abuttinction between telephonic and telepraphic commu- ting owners, for the simple reason that the city did nication, as the transmission, if it takes place, is per- not, by that ordinance, undertake to give such auformed by a wire acted on by electricity." It is there thority. It only undertook to authorize “so far as further said, that “of course no one supposes that the the rights of said city were concerned.” Whether Legislature intended to refer specifically to telephones such occupancy was an additional burden upon the many years before they were invented, but it is highly highway, for which abutting owners might have exprobable that they would, and it seems to us clear that acted compensation, is a question upon which the they actually did, use language embracing future dis- courts are divided.

an

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 iuvolved 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 ou 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 au additional license without legislative authority so to do. Moran v. New Orleans, 5 Sup. Ct. Rep. 38. Undoubtedly the common council bad 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 sball 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. 6:27. 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 amoug 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 liceuse." Subs.2, 3,subs. 6,ch. 183, Laws '83. The charter having thus expressly stated what the common council might license, without naming telegrapbs or telephones, bas 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.

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 pro

prietor of the hotel. AI

PPEAL 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 wlth 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 bis room he said to this clerk tbat 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, “10. 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 caunot and should not be deemed a guest under the circumstances, and entitled to the rights and privileges of one. If the relation of innkeeper and guest did ex. ist between the parties, it is difficult to perceive upon what ground the defendant can escape respousibility 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 inu." Calye's case, 8 Coke, 3. “A lodger or stranger in an inn." 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

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.

of a traveller; one who is a mere temporary lodger, in ties of an innkeeper. An innkeeper is bound to take distinction from one who engages for a fixed period at in all travellers and wayfaring persons, and to entera certain agreed rate. The main distinction is the tain them, if he can accommodate them, for a reasonafact that one is a wayfarer, or transiens; and it mat- ble compeusation; and he must guard their goods with ters not how long he remains provided he assumes this proper diligence. Bao. Abr. tit. “ Inn and Innkeeper," character." 7 Am. Dec., note to Clute v. Wiggins, C; Story Bailm., $ 476. 451.

Now if the defendaut had been aware of the purIn these defiuitions the prominent idea is tbat a pose of the plaintiff in applying for a room, could be guest must be a traveller, wayfarer or a transient not have refused to receive him into his house? Nay, comer to an inn for lodging and entertainment. It is more, if the plaintiff had been received by the clerk, not now deemed essential that a person should have and a room bad been assigued him, could not the decome from a distance to constitute a guest. “Distance fendant, on learning the purpose for which the room is not material. A townsman or neighbor may be a bad been taken, have incontinently turned the plainttraveller, and therefore a guest at an inn as well as he iff and the woman with him into the street, or have who comes from a distance or from a foreign country." called the police and had them arrested ? It seems to Walling v. Potter, 35 Conn. 183.

us there can be no doubt of the right of the defendant Justice Wilde says, in Mason v. Thompson, 9 Pick. thus to have treated the plaintiff. But if the plaintiff 284, that "it is clearly settled that to constitute a was a guest, and entitled to the rights and privileges guest in legal contemplation it is vot essential that he of a person having that status at the hotel, he could should be a lodger or have any refreshment at the inn. not have been turned into the street, though his profli: If he leaves his horse there, the innkeeper is charge- gate conduct was outraging all decency and ruining able on account of the benefit he is to receive for the the reputation of the hotel. keeping of the horse.”

The questions which have frequently come before Judge Bronson, in commenting on this case in Grin- the courts for consideration were whether a person, nell v. Cook, 3 Hill, 485-490, says where the owner of a upon the facts of the case, was a traveller or tempoborse sent the animal to an inn to be kept, but never rary sojourner, so as to be deemed a guest, or whether went there himself, and never intended to go there as he was to be regarded as a boarder, or one at the hotel a guest, it seemed but little short of dowuright absurd- as a special customer. These questions are elaborately ity to say that in legal contemplation he was a guest. examined in some of the cases above cited; also in Mc. On principle it would seem that a person should him- Daniels v. Robinson, 26 Vt. 316; Berkshire Woolen Co. self be either actually or constructively at the inn or v. Proctor, 7 Cush. 417; Norcross v. Norcross, 53 Me. hotel for entertainment in order to establish the rela- 163; Pinkerton v. Woodward, 33 Cal. 557; Hancock v. tion of landlord and guest.

Rand, 94 N. Y. 1; Smith v. Keyes, 2 T. & C. 650; Fitch In Atkinson v. Sellers, 5 C. B. (N. S.) 442, Cockburn, v. Casler, 17 Hun, 126; McDonald v. Edgerton, 5 Barb. C. J., remarks: “Of course a man could not be said to 560; Shoecraft v. Bailey, 25 Iowa, 554; Manning v. be a traveller who goes to a place merely for the pur Wells, 9 Humph. 746. pose of taking refreshments. But if he goes to an inn It seems to have been taken for granted in the court for refreshments in the course of a journey, whether below that the plaintiff was a guest at the hotel. But of business or of pleasure, he is entitled to demand re- the learned County Court held that section 1725, Rev. freshment and the innkeeper is justified in supply. Stat., requires the guest to deliver his money to the ing it."

inokeeper himself, or to a clerk having authorIf a traveller have no personal entertainment or re- ity from the innkeeper to receive it. As it did not freshment at an iun, but simply care and food for his appear that the clerk in this case had such authority, horse, he may be a guest, for he makes the inn his tem- the defendant was relieved from responsibility for the porary abode-bis home for the time being. Ingalsbee money lost by the clerk. We should hesitate to affirm v. Wood, 36 Barb. 452; Coykendall v. Eaton, 55 id. 188. the correctness of this view of the law. On the conAnd while the definition of guest has been somewhat trary, we think a traveller, when be goes to a hotel at extended from its original meaning, it does not include night, and finds a clerk in charge of the office, assignevery one who goes to an inn for convenience to ac- ing rooms, eto., has the right to assume that such complish some purpose. If a man or woman go to clerk represents the proprietor, and has authority to gether or meet by concert at an inn or hotel in the

take charge of money which may be hauded him by a town or city where they reside, and take a room for guest for safe-keeping. But still, in the view which no other purpose than to have illicit intercourse, can we have taken of the character of the plaintiff, and it be that the law protects them as guests? Is the ex- that he was not a guest at the hotel, this error of the traordinary rule of liability which was originally court is immaterial. On the whole record the judg. adopted from the considerations of publio policy to ment is right, and must be protect travellers and wayfarers, not merely from the

Affirmed. negligence but the dishonesty of innkeepers and their servants, to be extended to such persons ? If so, TAXATION - CEMETERIES NOT EXEMPT FROM then for a like reason it should protect a thief who

ASSESSMENTS. takes a room at an inn and improves the opportunity thus given to enter the rooms and steal the goods of OHIO SUPREME COURT, JANUARY TERM, 1884. guests and boarders. We do not think that tbe relation of innkeeper and guest oan or does arise in the

LIMA V. CEMETERY ASSOCIATION.* cases supposed. One whose status is a guest is a trav- An incorporated cemetery association is not relieved from eller or transient comer who puts up at an inn for a assessment for a street improvement by a statutory prolawful purpose to receive its customary lodging and en.

vision exempting its lands from taxation, such exemption

being regarded as confined to taxes as distinguished from tertainment. It is not one who takes a room solely to

local assessments. commit an offense against the laws of the State. So

While the lands of an incorporated cemetery association, so upon the facts detailed by the plaintiff himself we have no hesitation in saying that he was not a guest at

far as exempted, cannot be sold to pay an assessment for the hotel within the legal sense of the term. The re

the improvement of a street, the municipal corporation

may enforce the assessment by such remedies as the stat. lation of landlord and guest was never established between them. We feel the more confidence in the cor

ute and courts of equity afford. rectness of this conclusion when we consider the du

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

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error.

ERRO "RROR to the Court of Common Pleas. Reserved many years been in constant and active exercise in in the District Court of Allen County.

every part of the State, and was perfectly understood In 1882, Lima, a city of the fourth grade of the sec- by every member of the convention. The popular as ond class (Rev. Stats., $ 1548), made an assessment by well as legal significatiou of this term had always iudi. the feet front, amounting to $318.16, on real estate cated those special and local impositions upon propwithin the city belonging to the Lima Cemetery Asso-erty in the immediate vicinity of an improved street, ciation, a company incorporated under the laws of this which were necessary to pay for the improvement, and State. Rev. Stats., $$ 3571-3586. The real estate abuts laid with reference to the special benefit which such upon an alley in this city, and the assessment was property derived from the expenditure of the money. made in due form by the city for grading and paving They had always differed widely from the ordinary the alley.

levies made for the purposes of general revenne." In an action in the Court of Common Pleas of Allen There is nothing then in the Constitution forbidding county under Rev. Stats., SS 2286, 2287, to enforce the either the assessment of such property or its exempassessment, the association answered that the lands tion from assessment. The words of the Constitution “are, and for a long time, to wit, before the making of authorizing the exemption, assuming that they extend said improvement, have been used exclusively as a to an assessment, are strictly permissive. May in this graveyard and ground for burying the dead, and that case is not to be read shall. By the general terms of said lands are not held with a view to profit, or for the section 2264 the property of the association is within purpose of speculating on the sale thereof, and that said the assessment, and it is simply a question of conlands are not taxable, and that the same are not on the struction whether it is taken out of the general words tax duplicate for taxation.”

by the other provisions. But applying the well-settled The court overruled a demurrer to the answer, and rule for the construction of provisious exempting subsequently dismissed the petition; and a petition in property from such burdens, that is, that they are to error having been filed in the District Court, that court | be strictly construed (Cincinnati College v. State, 19 reserved the cause for decision by this court.

Ohio, 110; State v. Mills, 34 N. J. L. 177) we are reD. J. Cable, for plaintiff in error.

quired 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., $8 2732, 3571, 3578) has rela

tion to taxation for revenue purposes, and does not OKEY, J. A municipal corporation insisting upon the

extend to an assessment for a local improvement like right to impose an assessment should be prepared to

that in question here. Under similar provisions such show that such power has been clearly granted by stat

is the holding iu New York: Buffalo City Cemetery F. ute; but authority for such purpose being shown in gen

Buffalo, 46 N. Y. 503, 506, cited in Roosevelt Hospilal eral terms, whoever insists that his property is exempted

v. Mayor, 84 id. 108, 115; People v. Davenport, 91 id. from the burden, will be required to support his claim 574, 586; Reclamation Dist. v. Goldman, 61 Cal. 205, by a provision equally clear. Here authority to levy

208. In Maryland: Alexander v. Baltimore, 5 Gill, 396; the assessment is clearly granted in general terms

Baltimore v. Greenmount Cemetery, 7 Md. 517. In (Rev. Stats., $ 2264), aud whether it is shown by the

Massachusetts: Boston, etc., Soc. v. Boston, 116 Mass. cemetery association that its property is exempted

181; S. C., 17 Am. Rep. 153. In New Jersey: Pater. from the assessment is the only question for deter

son v. Society, etc., 24 N. J. L. 385; State v. Newark, 27 mination.

id. 185; State v. Newark, 35 id. 157. The latter 1. It is claimed that suth exemption is implied from

case, though reversed in 36 id. 478, it still authority the provision limiting the assessment to twenty-five vetn, 37 N. J. L. 330), and Hoboken v. North Bergen, 43

upon the point to which it is here cited (State v. Elizaper cent of the value of property as assessed for taxa

id. 146, is consistent with the preceding cases. In tion (Rev. Stats., $ 2270) inasmuch as the property of the association cannot be assessed for taxation. Rev.

Pennsylvania: Northern Liberties v. St. John's Ch., 13 Stats., SS 2732, 3571, 3578. This objection was held to

Penu. St. 104; Pray v. Northern Liberties, 31 id. 2; be fatal in First Presb. Ch. v. Fort Wayne, 36 Ind. 338;

Crawford v. Burrell Tp., Greensburgh v. Young, 53 id. Matter of Hebrew Society, 70 N. Y. 476. But the diffi- | 219, 280. The latter decisions are not inconsistent with culty encountered in the Indiana case is obviated in

the cases cited. this State by Rev. Stats., $ 2269, iu which the course

In Olive Cemetery Co.v. Philadelphia, 93 Penu. St. 129, to be pursued by counsel in such a case is pointed it appeared that by the charter of the cemetery comout.

pany the property was “exempt from taxation except2. The Constitution provides: “Laws shall be passed ing for State purposes." The court properly said that taxing by a uniform rule

all real and per

the rule is well settled that an exception in a statute sonal property, according to its true value in money:

excludes all other exceptions. Miller v. Kirkpatrick, but burying grounds * may by general laws be

5 Casey, 226. In Virginia: Orange & A. R. Co. V. Aler. exempted from taxation.” Art. 12, $ 2. And by Rev. andria, 17 Gratt. 176. _In Rhode Island: Second Unir. Stats., $$_2732, 3571, 3578, as we have seen, burying Soc. v. Providence, 6 R. I. 236; Matter of College Street, grounds-cemeteries--are exempted from “taxation."

8 id. 476; Beals v. Rubber Co., 11 id. 381; S. C., 23 Am. It is insisted that this exemption embraces assess

Rep. 472. In California: Emery v. Gas Co., 28 (al. ments. True, in a general sense, a tax is an assess

345; Reclamation Dist. v. Goldman, supra. Iu Indiment, and an assessment is a tax, but there is a plain

ana: Palmer v. Stumph, 29 Ind. 329; First Presb.Ch. v. distinction between them. The Constitution provides :

Fort Wayne, supra; Marks v. Trustees, 37 Ind. 155. In “The General Assembly shall provide for the organi

Illinois : Illinois & M. Canal v. Chicago, 12 D. 403; zation of cities and incorporated villages by general

Peoria v. Kidder, 26 id. 351; Pleasant v. Kost, 29 id. laws, and restrict their power of taxation, assessment,

490; People v. Graceland Cemetery Co., 86 id. 336. In borrowing money, contracting debts and loaning their Iowa: Sioux City v. School Dist., 55 Iowa, 150. In credit, so as to prevent the abuse of such power." Art. | Michigan: Lefevre v. Detroit, 2 Mich. 586. In Ken. 13, 3 6.

tucky: Broadway Baptist Ch. v. McAtee, 8 Bush, 508; In Hill v. Higion, 5 Ohio St. 243, Ranney, J., in re

Louisville y. Nevin, 10 id. 549. In Kansas: Paine F. ferring to the insertion of the word assessment in the Spratley, 5 Kans. 525. In Connecticut: Bridgeport 1. organic law, by the convention which framed that in- Railroad, 36 Cono. 255. In Louisiana: Crowley F. strument, took occasion to say: “This power had for Copley, 2 La. An. 329; Lafayette v. Male Orphan Astj.

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