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theories and principles which we have referred it appeared that in 1886, Iola, a city under the
as most remarkable were first advanced. Constitution of Kentucky, rating as of the third Miss Lanchester had formerly been regarded class, granted to the Iola Gas & Coal Company, as a sincere, high-minded girl of little more its successors and assigns, the right to lay gas than legal age, and had never attempted or pipes and mains in the streets and public threatened to violate any of the conventionali- grounds for the purpose of supplying the city ties of life ; but, in proportion to the increasing and its inhabitants with gas. In the charter no interest which she took in socialistic problems, rates were prescribed, except that the company came, also, an added concern in the principle should not charge the city more than one dolthat man and woman might love each other, lar per thousand cubic feet of gas for lighting but in order to remain as individuals and as the public buildings. It appears from the facts equals no marriage service of any kind should that on September 12, 1889, the company with occur, Falling in love with a man, Miss Lan- the assent of the city, assigned all its rights and chester advanced her ideas and proceeded to interests to one W. S. Pryor and another, their carry them out, having in mind at all times a heirs and assigns, one of the conditions being definite time when she should begin her rela-that said assignees would furnish private familtions with the man of her choice. Shortly be- lies with gas at the price not exceeding $2.50 fore the time set by Miss Lanchester for the per stove per month and forty cents per month commencement of her relations with the man
per burner for illuminating purposes; and for in question, her father and brothers, under the
some years past, said assignees have been furLunacy Act, sued out a process to enable them nishing natural gas to the city and its inhabito confine her in a lunatic asylum as an alleged tants. On May 10, 1895, the city enacted
After more or less legal con- an ordinance providing, among other things, troversy and wrangling Miss Lanchester was at that it should be unlawful for any person, firm last released from the asylum and started on or corporation furnishing gas in said city to the career which she herself had marked out. charge anything in excess of the prices therein The case is extremely interesting from many fixed, which were very much lower than those standpoints. To the lawyer, at least, it illus. named in the assignment, and lower than those trates the many deficiencies and errors which received from consumers. The Supreme Court exist in the marriage laws, as well as calls held that such an ordinance is inoperative and attention to a case which may be followed by void as to said Pryor and his partner, their other women who may discover that the lack heirs and assigns, in so far as the same pur. of uniformity between the laws of our different ports to establish prices for gas furnished by States and the absence of respect for the de-them to private consumers. The theory of the crees of another court has made the relation decision to us appears to be sound and proper. and forms of marriage of very little value, at The franchise originally only limited the comleast in the eyes of many who enter wedded pany as to the price they should charge the city, life and seek divorce with practically the same and their assignees should properly only be sense of obligation.
limited in the same manner as predecessors,
especially in view of the fact that the city conRecently it has become a familiar practice sented to the assignment. We believe that it is with legislatures and governments of munici- dangerous for legislatures and municipal governpalities to attempt to regulate the price of vari-ments to attempt to limit the price of commodious commodities which are sold to the public ties unless the parties furnishing the materials at large. Especially in the legislature of this or products have an exclusive monopoly of the State it has frequently been the case that at- business. In any State the excessive abuse of tempts have been made to regulate the price of the powers granted to a corporation, firm or ingas, and the same general practice has obtained dividual, will result in the commencement of in the different cities of the State.
In a case
the same kind of business by others and the entitled In the Matter of Pryor, decided by the natural laws will at once begin to operate. We Supreme Court of Kentucky (41 Pac. Rep. 958), I fear that too often legislatures and other law
making bodies are induced by peculiar ideas to | shall have power to lay pipes, mains and conattempt legislation which is unfair to those who ductors for conducting gas or water through have risked money in some enterprise. In the the streets, lanes, alleys and squares in such Matter of Pryor the court said:
city, town or village, with the consent of the "The only question arising upon the record is municipal authorities thereof and under such whether the city of Iola had authority to fix regulations as they may prescribe." Certainly the rates to be charged for natural gas furnished there is no express power conferred upon the to private consumers' by Pryor & Paullin un municipal authorities by this section to regulate der the circumstances above stated. In this the price of gas or
Whether they country municipal corporations (except the might, as a condition of their consent, provide city of Washington) are the creatures of the that gas or water should be furnished to the States in which they are located. They derive city or to its inhabitants at not exceeding certheir powers from the Constitution and the tain prescribed rates, we need not now inquire. statutes. In Anderson v. City of Wellington Consent was granted by Ordinance No. 268 to (40 Kan., 176; 19 Pac., 719) this court has the Iola Gas & Coal Company, its successors said: The power to pass a city ordinance must and assigns, without annexing any condition as be vested in the governing body of the city by to rates, except that no more than one dollar the Legislature in express terms, or be neces- per 1,000 cubic feet of gas should be charged sarily or fairly implied in and incident to the for lighting the public buildings. In certain powers expressly granted; and must be essen- cases the State may fix and regulate the prices tial to the declared purposes of the corpora- of commodities and the compensation for sertion; not simply convenient, but indispensable. vices, but this is a sovereign power, which may
Any fair and reasonable doubt con- not be delegated to cities or subordinate subdicerning the existence of the power is resolved visions of the State, except in express terms, by the courts against the corporation, and the or by necessary implication. No such power power is denied.” (See, also, i Dill. Mun. Corp., is expressly conferred upon cities of the third 4th ed., § 89.) The act providing for the class, and we do not think the right can be imorganization and government of cities of the plied from any express provision, unless possithird class contains no express grant or power bly that in the grant of consent to any person to fix or regulate the prices of gas, water or any or corporation 10 so use the streets and public other article of necessity or luxury. General grounds of the city a condition might be imauthority is given to enact ordinances for the posed as to the maximum rates to be charged. good government and welfare of the city (Gen. In Lewisville Natural Gas Co. v. State (135 St. 1889, pars. 958, 991), and such cities may Ind. 49; 34 N. E. 702), it was held that municiprovide for and regulate the lighting of streets, pal corporations of Indiana have no power at and they have power to make contracts with common law to fix by ordinance the price at any person. coinpany or association to erect which natural gas shall be supplied to comgas works, with the privilege of furnishing gas sumers, and that the act of March 7, 1887, to light the streets, lanes and alleys of the city providing "that the boards of trustees of towns for any length of time not exceeding 21 years and the common council of cities (Id., par. 984.) The respondent relies princi- shall have power to provide by ordinance reaspally upon a section of the Corporation law of onable regulations for the safe supply, distribu1868 relating to gas and water corporations, tion and consumption of natural gas within the and published as paragraph 1401, Gen. St., respective limits of such towns and cities," does 1889, which reads as follows: “Any gas or not confer the power to regulate the price at water corporation shall have full power to which natural gas shall be furnished; overruling manufacture and sell and to furnish such the case of City of Rushville v. Rushville Naquantities of gas
as may be re- tural Gas Co. (132 Ind., 575 ; 28 N. E., 853). quired by the city, town or village where in the opinion the court says: “ To secure the located, for for public or
or private buildings safe supply and use of natural gas is one thing, or for other purposes; and such corporations and to fix the 'price at which gas shall be sup
plied is another and a different thing." In City disapproving terms of investments in so-called of St. Louis v. Bell Tel. Co. (96 Mo., 623, 10 “mortgage participation certificates " used by S. W., 197) it was held that neither under its the Title Guarantee and Trust Company of authority to regulate the use of streets, nor the New York city for trust purposes. In his power to license, tax and regulate various pro- opinion the surrogate says : fessions and businesses, nor the general welfare
“ Each certificate represents that the Title clause permitting the passage of all such ordi- Guarantee and Trust Company has received nances not inconsistent with the provisions of $1,000 from the purchaser thereof for investthe charter or the laws of the State as may be
ment in the purchase of an undivided interest expedient in maintaining the peace, good gov- in a certain described bond and mortgage ernment, health and welfare of the city, its made to said Title Guarantee and Trust Comtrade, commerce and manufactures, can the pany, bearing four and a half per cent. intercity of St. Louis regulate by ordinance the est, payable semi-annually. The mortgage is tariff of charges of a telephone company.
In upon improved real estate situate in this Stille. the opinion the court says: We are at a loss | The bond and mortgage are deposited with the to see what this power to regulate the use of guarantor, as well as policies of fire insurance the streets has to do with the power to fix tele- of a certain designated amount, which amount phone charges. The power to regulate the the guarantor agrees to keep continuously in charges for telephone service is neither included force until the payment of the bond and mortin nor incident to the power to regulate the use
In said certificate it is mutually agreed of streets, and the ordinance cannot be upheld between the holders thereof and the holders of on any such grounds.” Under the section of all the other certificates and the title company, our statute herein before fully quoted a gas or first, that the title company is appointed irrewater company may lay its pipes and mains vocably the agent and attorney of all owners through the streets of a city only with the con- of certificate for the purpose (a) of collecting sent of the municipal authorities, and under the interest and principal of said bond and such regulations as they may prescribe, but mortgage and of satisfying and discharging the the regulations are only as to the laying of same in its own name on receiving full paypipes and mains, and have nothing to do ment; (b) of deciding when and how any prowith the price of the gas or water pass
vision of the bond and mortgage shall be ing through the pipes, and supplied to con- enforced and of enforcing it accordingly; (c)
Counsel for the respondent cite the of granting any extension of time of payment leading case of Munn v. Illinois, 94 U. S.
of the bond and mortgage.
113, and others of like character, to the effect that,
Further, the title company is to determine where the owner of property devotes it to a use
whether any action is to be brought respectin which the public have an interest, he must, | ing the certificates, and in case it decides that to the extent of the interest thus acquired by an action is to be brought they are to be transthe public, submit to the control of such prop- ferred to the company, which issues a trust reerty by the public for the common good. But ceipt in return therefore, Such agreement in these cases the control was exercised by the further provides that if the company elects 10 Legislature either directly or through muni- extend the time of payment it shall at once cipalities or agencies clothed by it with the notify the holders of certificates and shall be power. In the present case the legislative bound to take an assignment of all certificates, authority is wanting. We must therefore hold which shall, within thirty days thereafter, be that said Ordinance No. 368 is inoperative and tendered to it and pay for the same in cash, and void as to said Pryor & Paulin, their heirs and that out of the moneys collected by the comassigns, in so far as the same purports to estab- pany it shall pay semi-annually interest, at the lish the price for gas furnished by them to pri- rate of four per cent per annum, to the holders vate consumers.
of certificate coupons, and any excess of inter
est collected it shall retain as compensation for Surrogate Fitzgerald of New York city, in its services. The original bond and mortgage the Estate of Cheeseborough, has decided in I contains the following covenant: 'No payment
or release of the principal of said debt or of give a comparatively small portion for each any part thereof, or of the mortgage security beneficiary. To tie up such shares in trust therefor, shall be valid as against any subse- simply on general principles is a great mistake, quent debt, unless the fact of the payment or
which, unless there be some positive reason, release is indorsed on said bond, save that full should be advised against. An insignificant payment shall be sufficiently evidenced by the fixed annual income will not be as advantageous delivery of a satisfsction piece in proper form to a beneficiary as the absolute ownership of the to discharge the record of said mortgage. This principal, wherewith, for instance, to acquire
Of course, covenant shall be binding on and inure to the the equity in a home of bis own. benefit of the parties bereto and their heirs,
there is the chance that the beneficiary may be successors, representatives and assigns; and improvident and lose the money; but, if the any assignee of the whole or any part of said objects of a testator's bounty be fairly prudent . debt, on taking such assignment, may rely upon persons, it would seem better in the long run to the indorsements on said bond and upon the take such risk, than to certainly debar them absence thereof.' This clause, while protecting from substantial benefit from their portions. a subsequent assignee, under the circumstances Where, however, testator's are determined, stated, against the previous release of the either with or without special reasons, to create mortgage debt or of the mortgage security, small trusts, the restriction of the field and the seems to recognize the right of the company to practical difficulty of investments should be release the debt or the security after making an brought to their minds, and it should be ascerassignment thereof, and thus limit the protec- tained whether they wish to widen the field by tion of the assignee to the unsecured obliga special authority in the will. tion or liability of the company and its guar- The courts lean toward restricting a trustee antor.”
to legal investments, and toward holding him Substantially similar schemes have been responsible for loss if other investments are adopted by real estate companies in other cities made, whenever the language of a will admits to enable investors to speedily obtain slices of of doubt as to the scope of his power. In a mortgage where they have not sufficient funds King v. Talbot. supra, it was held that comto take the whole loaf. But it would seem mitting the investment to the “discretion" of that, in any such form of investment, there the trustee gives no additional authority as to must be so much discretionary power of con- the class of securities; that the discretion is trol retained in the holder of the mortgage, controlled by the rule and must be exercised and so little right of management and freedom within its limits. Words authorizing investof action in the different assignees of interests ment “in such manner, and upon such securitherein, that, under the surrogate's decision, this ties as to (the trustee) shall seem advisable," do general field is not open to trustees.
not enlarge the usual power.
Matter of KetelWe are not prepared to advocate statutory tas, 1 Connolly 468. The language, “in such extension of the classes of trust investments suitable manner as may be for the best interests sanctioned in New York. (See Smith v. Smith, of my estate to be determined by my said ex4 Johns. Ch. 281; King v. Talbot, 40 N. Y. ecutors,” does not authorize an investment on 76; Mills v. Hoffman, 26 Hun, 594; Ormiston personal security. (Matter of Cant, 5 Dem. 269; v. Olcott. 84 N. Y. 339; Judd v. Warner, 2
see, also, Adair v. Brimmer, 74 N. Y. 539; Den. 104; Laws of 1889, Ch. 65.) Neverthe Matter of Petrie, 5 Dem. 352; Pray's Appeal, less, the restriction to first mortgage loans and | 34 Pa. St. R. 100.) public securities makes it exceedingly difficult But when the language used is specific and for trustees in this city to obtain advantageous unambiguous, it would seem safe to act upon investments for comparatively small funds. its authority. In Matter of Wolfe (1 Connoly,
The average lawyer is constantly called upon 102), the will provided that the trustees might to draw wills of persons who have accumulated continue to hold the testator's estate in the a respectable competency, which, when divided form in which it was invested at his death, and among a considerable family of children, will I they were “in view of the express language,"
exonerated from liability for losses incurred by cision, is somewhat peculiar. It is apparent reason of stock bought by testator selling for that under the laws of Illinois she is single, and less than its inventoried value. In Clark v. may again marry. Under the laws of South Ry. Co., 58 How. Pr. 21, the court said : Carolina and under the laws of New York she
When a deed of trust directs, in plain terms, is still Mrs. McCreery. This may at first seem in what particular securities funds coming into to be a most ultra case showing the unfortunate the hands of trustees shall be invested, and result of lack of uniformity in State laws, but how, until so invested, they shall be held, the many similar decisions may easily be found court cannot by its judgment, defeat the inten- which illustrate the necessity for some immeditions of the creator of the trust and the bene- ate and radical action. ficiaries thereunder by directing other investments." To the same effect is Burrill v. Shiel, 2 Barb. 457, where a testator directed an in- DECREE OF SURROGATE'S COURT ADvestment to be made in England, and the court
MITTING WILL TO PROBATE BINDING
ONLY AS TO PERSONALTY declared it had no power to divert the investment from that country.
ACTION FOR PARTITION OF REAL ESTATE MAINIn order to render it safe for trustees to make
TAINABLE BY HEIR IN WHICH QUESTION OF VAinvestments other than those expressly sanc
LIDITY OF WILL MAY BE LITIGATED DE Novo. tioned by law, authority should be given by Supreme Court – General Term, First Departmentioning other securities, or at least the gen- ment. October, 1895. Present: Hons. Charles H. eral nature of permissible securities,
Van Brunt, P.J.; David L. Follett and Alton B.
Parker, JJ. Speaking of uniformity in State laws a recent
Michael Bowen, respondent, v. Michael Sweeney case decided by the Supreme Court of Alabama and Catharine Gallagher, appellants, impleaded demonstrates the absolute necessity for some
with others. such scheme, and that it should be done at the Appeal from an order denying a motion to set earliest possible moment.
In the case of Mc- aside the verdict, from the interlocutory judgment
entered on said verdict and on a decision of the Creery v. Davis, it appeared that a citizen of South Carolina had married in New York a
Special Term, and from the final judgment entered
on the report of a referee to sell in an action of citizen of that State and immediately thereafter
partition. the parties continued to reside in South Caro
August 27, 1885, Mary T. Hatton died seized in lina, until the wife left the husband and went fee simple of a piece of land situate at the northto live in Illinois. In that State the wife west corner of First avenue and Thirteenth street, obtained a divorce entirely in accordance with which is 43 feet and 3 inches wide on the avenue, the laws of Illinois, but without personal ser
and 80 feet long on the street. She left a last will, vice or the appearance of the husband, and on
executed April 17, 1880, by which she devised and a ground not recognized in either New York bequeathed all of her estate to Michael Sweeney
and Catharine Gallagher, to be divided equally beor South Carolina as a cause for divorce.
tween them. The will was admitted to probate South Carolina in the case under discussion, it October 18, 1886, by the Surrogate's Court of the was subsequently held that the Illinois judg- city and county of New York (3 N. Y. St. Rep. ment was void and that article 4, section 1, of 213). August 20, 1887, the decree of the Surrothe United States Constitution providing that gate's Court was reversed by the General Term of full faith and credit shall be given in each State the Supreme Court (10 N. Y. St. Rep. 19), which to the judicial proceedings of every other State, ordered the following issues to be tried before a and the act of Congress providing that records jury in the Court of Common Pleas:
First. Whether the decedent ever saw the paper and proceedings thereof, properly authenticated, shall have full faith and credit given them in propounded for probate as her last will and testa
ment until it was presented to her for execution. every court of the United States, as they have
Second. Whether the paper propounded for proin said State from whence they came, does not bate, as the last will and testament of Mary Teresa prevent an inquiry into the jurisdiction of the Hatten, was read by her or anyone aloud in her court which rendered the judgment. The bearing previous to the signing thereof. position of Mrs. McCreery, owing to this de- Tbird. Whether the decedent at the time of sign