Bull v. The Town of Southfield.

assessed upon and borne by the property benefitted thereby. The power "to cause avenues and streets to be opened, extended, widened, regulated, paved, macadamized, or covered with broken stone," "and, generally to make such other improvements in and about the streets, avenues and public squares of the village, as the public wants and conveniences may require," is conferred upon the village trustees by section 1, of title 10, while section 1, of title 15, provides that "the village shall constitute a separate road district, under the direction and supervision of the trustees of said village, and free from any interference or control by any other officers or persons." The legal effect of these provisions is to declare that the roads and streets in that part of the town of Southfield which lies within the limits of the village of Edgewater, are to be repaired, graded and macadamized when and in such manner as shall be determined on by the trustees of Edgewater, at the expense of the village, and not at the expense of the town, nor can any tax be levied upon the town for such a purpose. It cannot be supposed that the Legislature intended to confer powers like these upon the village trustees, and at the same time permit the same powers to be exercised by the town authorities. Indeed, the Act expressly declares the contrary, when it forbids "any interference or control by any other officers or persons;" and it is evident, from the nature of the powers, that it would be impossible for such powers to be exercised concurrently by the town officers and the village trustees. Furthermore, by title 13, section 3, of the Act of 1870, the power to borrow money upon the credit of the village is limited; and by section 4 the trustees are forbidden to contract any indebtedness, or incur any liability, for the payment of money, in any year, beyond the revenue of that year, except as expressly permitted by the Act itself. These provisions forbid the idea that it was the intention to leave the authorities of the town of Southfield with unlimited authority to impose upon the same locality an unlimited debt for the very same purposes. It seems impossible, therefore, for the Act of 1869 and the Act of 1870 to be operative at the same time, in the

Bull v. The Town of Southfield.

locality under consideration; and the conclusion is forced, that the legal effect of the Act of 1870 was to remove the town of Southfield from the operation of the Act of 1869, as effectually as were the counties of New York and Kings, by the express terms of the latter Act.

Under this view of the effect of the Act of 1870, the fact that the trustees of the village of Edgewater consented to the exercise by the town authorities of the authority which they assumed to exercise by virtue of the Act of 1869, when they issued the bonds in question, is wholly immaterial. The consent of the village trustees could not create a power when no such power existed, and the existence of the power has not been claimed, except by virtue of the Act of 1869.

Nor does it avail, that it appears on the face of the bonds that the money raised thereby might be expended on the Richmond road, which is outside the village limits and partly in the town of Southfield. The consideration of the bonds is entire and not separable. The illegal part thereof vitiates the whole; and, moreover, the bonds disclose their illegality upon their face, for they recite that they are issued in pursuance of chapter 855 of the Laws of 1869, for the purpose of repairing, regulating and macadamizing certain streets, which statute, as has been seen, had ceased to be operative in the town of Southfield, and could confer no power to pledge the credit of that town for the repairing, grading or macadamizing of any street whatever.

Entertaining these views in respect to the effect of the Act of 1870, it is unnecessary for me to pass upon the other grounds taken in behalf of the town, and it becomes my duty to declare the coupons upon which this action is brought to be void, for the reason that the bonds to which they were attached were issued without any authority of law. Judgment must, therefore, be for the defendant.

John A. Foley, for the plaintiff.

George J. Greenfield, for the defendant.

The United States v. Power.

THE UNITED STATES vs. MARTIN POWER.

It is provided by § 2165 of the Revised Statutes of the United States, that an alien may be admitted to be a citizen of the United States by "a Court of record of any of the States, having common law jurisdiction, and a seal ard clerk." A City Court, which is a Court of record and has a seal and a clerk, and has conferred upon it, by a statute of New York, all the power and jurisdiction of justices of the peace, and all jurisdiction and power, within the city, of the Marine Court in the city of New York, and whose judge is clothed with all the powers of a county judge and of a judge of the Supreme Court of the State at chambers, and which has civil jurisdiction in all actions for the recovery of money, when the amount recovered does not exceed $1,000, is a Court having common law jurisdiction, within the meaning of said § 2165. (Before BENEDICT, J., Southern District of New York, May 16th, 1877.)

BENEDICT, J. The prisoner is indicted under § 2165 of the Revised Statutes of the United States, for perjury committed by him in making an application to be naturalized before the City Court of Yonkers. A demurrer to this indictment brings before the Court the question, whether the City Court of Yonkers had jurisdiction to entertain the prisoner's application to be made a citizen of the United States. If that Court has not such jurisdiction, the indictment charges no offence, and the prisoner must be discharged.

The provision in the laws of the United States, upon this subject, is to be found in § 2165 of the Revised Statutes, where it is enacted, that an alien may be admitted to become a citizen of the United States, upon making certain declarations on oath before "a Court of record of any of the States, having common-law jurisdiction, and a seal and clerk." It is conceded, that the City Court of Yonkers is a Court of record, and that it has a clerk and a seal, but the question is, whether it is a Court having common law jurisdiction, within the meaning of the statute of the United States, above quoted. The jurisdiction of the City Court of Yonkers is to be found in the Laws of the State of New York. Chapter 866 of the Laws of 1872 confers upon that Court all the power and

The United States v. Power.

jurisdiction of justices of the peace, and all jurisdiction and power, within the city of Yonkers, of the Marine Court in the city of New York, and it clothes the judge of that Court with all the powers of a county judge and of a judge of the Supreme Court of the State at chambers. In addition to these powers, chapter 61 of the Laws of 1873 confers upon this Court civil jurisdiction in all actions for the recovery of money, when the amount recovered does not exceed $1,000. It is manifest, that, by virtue of these statutory provisions, the City Court of Yonkers is authorized to exercise some common-law jurisdiction, that is, it has jurisdiction to hear and determine causes which were cognizable by the Courts of law, under what is known as the common law of England, although it has not jurisdiction of all such causes. It will be noticed, however, that the statute of the United States does not require of Courts authorized to entertain applications for naturalization, that they shall have all the jurisdiction possessed by any Court of law. If the Court may exercise any part of that jurisdiction, it is within the language of the statute, and within its meaning, as well. Thus, the Courts of Massachusetts, in Ex-parte Gladhill, (8 Metcalf, 168,) held the Police Court of Lowell to be a Court exercising a common law jurisdiction, and, therefore, authorized to entertain applications to be made citizens of the United States, because it was by law authorized to "hear and determine all complaints and prosecutions, in like manner as justices of the peace," with "jurisdiction of all civil suits and actions cognizable by a justice of the peace.' The reasoning of this decision was adopted by the Circuit Court of the United States for the first Circuit, in Ex parte Cregg, (2 Curtis, 98,) where, upon the same ground, the Police Court of Lynn was held, by the Circuit Court of the United States, to be a Court having common-law jurisdiction, within the meaning of the United States statute. A like conclusion was reached by the Supreme Court of New Hampshire, in respect to the Police Court of Nashua, and upon the same ground. (State v. Whittemore, 50 N. H., 245.) In In re Conner, (39 Cal., 98,) a similar question in respect to the

The Alice Tainter.

County Courts of California was considered, and it was there adjudged, that a Court having jurisdiction to prevent or abate a nuisance was a Court exercising common law jurisdiction, within the meaning of this statute of the United States. The Court, in the case, say it is not necessary to have "jurisdiction over all classes of common law actions," and that "the Act of Congress does not require that the Courts shall have all the common law jurisdiction which pertains to all classes of cases." See, also, the meaning given by the Supreme Court of the United States to the words "common law," as used in the Constitution of the United States. (Parsons v. Bedford, 3 Pet., 433, 446.)

In the light of these decisions there seems to be no reason for doubting that the language of the statute is sufficiently broad to permit the City Court of Yonkers to hear and determine the prisoner's application to be made a citizen of the United States. This is the only question that has been presented for my consideration, and, entertaining the opinion above expressed, I must overrule the demurrer, and direct the prisoner to plead to the indictment.

William Burke Cochran, for the defendant.

Benjamin B. Foster, (Assistant District Attorney,) for the United States.

THE ALICE TAINTER.

Where a note of issue, on an appeal in Admiralty, is delivered to the clerk, under Rule 55 of this Court, with a view to his putting the cause on the calendar of causes to be tried, for a particular term, a fee of $1 to the clerk for the service is a lawful and proper fee, and, if paid by a successful party, can be taxed against his adversary, as costs in the cause.

It is proper for the clerk to charge for including the evidence, in a suit in

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