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deserving class, the act alluded to has become a law. It declares that it shall not be lawful for any person to purchase or have assigned to him any wages due or to become due for any price less than their amount, except upon discount at legal interest. And it punishes the breach of the law, on conviction, with a severe fine. This act tends to save the workman from himself.
An act authorizing one member of a dissolved firm to make a separate compromise with its creditors, without the release to him discharging his co-partner, seems to be a noteworthy change.
There is a statute among the new session laws of this State entitled, "An act to regulate the holding of aud to prevent fraud in the primary elections of the several political parties in cities of the State of New Jersey." It provides that officers of primary elections shall take an oath for faithful performance of their duties, in accordance with the laws of the State and of the United States, and in accordance with the rules and regulations of his party; and it makes disobedience to these rules, the rejection knowingly of the vote of any person entitled to vote under these rules, or the reception knowingly of the vote of any person not qualified, and any willful fraud in the election, a misdemeanor, punishable by fine and imprisonment.
With great deference to the Honorable, the Legislature of my native State. I must think that they have opened a new field for legislation, and passed a law which the courts will hardly sustain. To send a man to prison for disobeying rules which certainly have not the force of law, and cannot have it, will be a new thing indeed. There are some entities which the law has never recognized, and which it seems impossible that they ever should recognize; and one, if not the chief of them, is party. If this act stands, why not make it a legal crime to break the rules of a religious denomination, or of the Masonic order, or the order of Odd Fellows, or the by-laws of any corporation or the like? In fact, such an act would be more reasonable, since if there be any thing which the law, as such, ignores, or concerning which it at least maintaius a state of unconsciousness, it is the political parties which control the republic.
New York, as we have seen, interdicts telegraph and other poles. New Jersey, by a special act subsequent to that already noticed, permits the use of highways for them, but requires that it be with the consent of owners of the soil. In the same act under-ground wires are permitted without requiring that consent. The owners of property contiguous, by New Jersey law,own to the middle of all highways. It would seem as if law makers had been slightly oblivious of individual right.
An act of New Jersey authorizes city councils by ordinance to establish the depth and mode of construction of foundation walls in order to the protection of adjacent owners. Again it would seem risking the invading private right; for must not every case differ where adjacency needs protection?
The statute of the United States for the enforcement of the civil right of people of color, and which in certain respects was declared void by the Supreme Court, because beyond the provision of the Federal Constitution, has been substantially reproduced in New Jersey, which has enacted that all persons within her jurisdiction shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land and water, theatres and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. The example thus set should be everywhere followed; such civil rights de
pend not upon Federal but State authority. It may be that this law is simply declaratory. But the declaration is good policy.
I do not know that it is to the credit of New JerseyI do not myself think it is-but it is the fact, that more "noteworthy" new laws have come from her thau from any one of her sister States. It does not in my judgment afford an argument, either, against biennial legislative sessions.
But is not the groan of Solomon, "of the making of books there is no end," a mistranslation? Did he not really say, "of the making of laws there is no end? There is one recommendation of the legislation of New Jersey; it covers little printed space, at least compared with former experience. State of railroads and corporations as it is, its session laws of 1873 made a book of 1600 pages; those of 1874, another of 1300; of 1875, over 1000. Then came into operation a constitutional amendment providing that "the Legislature shall pass no special act conferring corporate powers, but shall pass general laws under which corporations may be organized and corporate powers of every nature obtained;" since which their volumes rarely exceed 300 pages. But a more valuable effect is that "lobbyism" is greatly diminished, and so is corruption; diminished, I say, for unfortunately it is not dead. Nor as long as human nature remains what it is, can we, I suppose, look for its entire extirpation.
The first act I have marked as "noteworthy" in the recent statutes of Pennsylvania is identical in language with that noticed from New Jersey, forbidding lapse of time to raise any presumption of right in those who stretch telegraph or electric wires over other peoples' land; indication this, that this class of trespass exists everywhere.
Act No. 16 has at least a worthy object. It is entitled "An act to authorize the creation and to provide for the regulation of voluntary tribunals to adjust disputes between employers aud employed in the iron, steel, glass, textile fabrics, and coal trades." Its preamble tells the story. It reads thus: "Whereas differences arise between persons engaged in the iron, steel, glass, textile fabrics, and coal trades in this State, and strikes and lock-outs result therefrom, which paralyze these important industries, bring great loss upon both employer and employed, and seem to find their only solution in force, which does not accord with the teachings of humanity and the true policy of our laws, and whereas voluntary tribunals, mutually chosen, with equality of representation and of rights, and a frank discussion therein by the persons interested of the business questions involved, are the plain paths to mutual concession and cessation of strife, and the choice of an umpire by the parties themselves, to whose arbitrament the matters in dispute are to be submitted for final decision, if they shall fail to agree, is in accord with the practice and policy of this Commonwealth." The statute then goes on to provide with the greatest care for the constitution of such tribunals, and for their procedure. The bar is excluded. The umpire is sovereign, and the court enforces his judgment.
No one can help wishing this scheme every success. It may tend to mitigate, if it cannot be expected to destroy, that strife between labor and capital which is looming up as the great cloud upon our future. Our country presents to view on the one side, the most colossal and speedily acquired wealth-on the other, but too often, the most hideous and sickening poverty. Capital and labor should always be close friends. So they will be in proportion as they each eschew selfishness. But alas! Capital forgets that it is a trustee. And labor resorts to combination, and through it. resolves to have what it thinks its own.
What histories are written in the words "strikes and lock-outs;" what horrors may not be prepared for a future not so very far away! The Molly Maguires of Pennsylvania show to what combination may come. The excesses there are checked, and as long as trade is reasonably flourishing, they seem no longer possible. But as population-and especially foreign populationincreases, and the masses of ignorance in our great cities and in mining and manufacturing districts accumulate, what is to become of capital, of property in every and any form, when some panic prostrates trade, and starvation fires the passions of the legions of labor, educated by secret societies in communism, and extenuated, if no more, by the presence everywhere of voluptuous luxury! Oh! for the statesman to appear who shall solve the enigma presented by the almost natural and unavoidable hostility between these two great forces, capital and labor!
An act to enforce the provisions of the 17th article of the Constitution, relative to railroads and canals, interdicts all undue or unreasonable discrimination in charges or facilities for freight, directs that charges be uniform, and enacts that if directors or employers shall be directly or indirectly interested in railroad business, they shall be guilty of a misdemeanor and punished by fine and imprisonment.
Another act escheats to the Commonwealth the telegraph lines and property of telegraph corporations, associations and companies, which violate the provisions of the Constitution prohibiting the consolidation or the holding of a controlling interest in the stock or bonds of a competing line of telegraph, or the acquisition by purchase or otherwise of any other competing line of telegraph.
These acts, and the Constitution they are intended to enforce, tell the story of the sins of corporations in the State of William Penn, and show that a struggle against the oppression of corporate power is going on. An act of a different cast from the last which directed an escheat, enables filii nullius, born of the same mother, who leave neither mother nor issue capable of inheriting, surviving, to take and inherit from each other as next of kin and heirs in fee simple, in the same manner as children born in lawful wedlock.
violence with dangerous weapons prevalent; and alas! of a fatal readiness to regard most crimes as offenses so largely against the individual, that compromises of the offense are to be almost assisted.
They tell of embezzlements through falsification of entries, and destruction of books, and of shrewd writings and telegrams in others' names, leading to loss of reputation, position and standing. They give us a picture of Wall street and its neighborhood, with its for-I ests of telegraphic poles, and its spider webs of telegraphic wires. They show the dangers to employees, and to travellers, of their railroad travel. They recognize the gravity of the complaint prevalent as to convict labor, while yet the State is not ready with the remedy.
New Jersey, home of railroads beyond almost any other, proportionable to territorial extent, a State too in manufactures equally eminent, gives up the time of her Legislature mainly to seeking to make these railroads pay fairly for the privileges they enjoy, and to comforting and protecting operatives.
Pennsylvania, specially the State of miners and manufacture, provides diligently against strikes, and being the home of many powerful corporations, contends by enactments against their abuse of power, and its extension by the fearful plan of consolidation. It seems deducible from the tenor of legislation, that in these middle States the struggles between capital and labor is more violent than in the eastern. It seems as if society was more turbulent, and its working classes more dangerous.
(To be concluded.)
BRADLEY, J. In October, 1871, Henry Clews & Co. opened a line of credit on their London house of Clews, Habicht & Co., for £6,000 in favor of Hennequin & Co., a firm doing business in New York and Paris, authorizing the latter to draw from time to time bills of exchange on the London house at ninety days from date, with the privilege of renewal, it being agreed that Hennequin & Co. should remit to Clews, Habicht & Co., a few days before the maturity of each bill, the necessary funds to meet and pay the same, so that Clews, Habicht & Co. should not have to advancə any money to pay it. In consideration of such accommodation acceptances, Hennequin & Co. deposited with Clews & Co. certain collateral securities, for the purpose of securing them, in case Hennequin & Co. failed to remit the requisite funds to pay the said bills of exchange, amongst which collaterals were twentynine Toledo railroad mortgage bonds, for $1,000 each. Clews & Co. used the said bonds by depositing them
*Affirming 77 N. Y. 427; S. C., 33 Am. Rep. 641, note.
with third parties as collateral security to raise money for their own purposes, although not called upon to make any advances to pay the bills of Hennequin & Co., all of which were protected and paid according to agreement. After the bills were all retired, Hennequin & Co. demanded a return of the collaterals; but Clews & Co. having failed in business, did not return them. Thereupon to recover the bonds, or their value, and damages, this suit was brought in the Superior Court of New York city by Hennequin & Co. against Clews & Co. and the parties with whom they had deposited the bonds. The suit was dismissed as to the latter parties, and Clews & Co., amongst other things, pleaded that on the 18th of November, 1874, they were adjudged bankrupts under the laws of the United States, and that a trustee was appointed, who succeeded to all their interest in said securities; and by a supplemental answer, filed afterward, they pleaded their discharge in bankruptcy. The following is a copy of the substantial part of this answer, namely: "The supplemental answer as amended of the defendants, Henry Clews and Theodore S. Fowler, to the complaint in this action, served by leave of the court first had and obtained, shows to the court that subsequent to the service of the original answer herein, in pursuance of the bankruptcy proceedings mentioned in said answer and the order of the court of bankruptcy, the District Court of the United States for the Southern District of New York, sitting as a court of bankruptcy, did make an order and grant to said defendants certificates of discharge under seal of said court on the 24th day of December, 1875, discharging the above-named defendants and each of them from all debts and claims which by the Revised Statutes, title Bankruptcy, are made provable against the estate of said defendants which existed on the 18th day of November, 1874, excepting such debts, if any, as are by said law excepted from the operation of a discharge in bankruptcy. * *And the defendauts further allege that the claim and indebtedness set forth in the plaintiff's complaint herein is one that was discharged by the operation of said bankruptcy discharge, and was provable in said bankruptcy proceedings, and was not one which was exempt from the operation of the bankruptcy statutes."
Copies of the certificates of discharge were annexed to the answer.
The parties thereupon went to trial, and the facts disclosed by the evidence were substantially in accordance with the above statement. The certificates of discharge of the defendants were given in evidence under objections; and the plaintiff asked to go to the jury on the question as to whether the debt was created by fraud, and also on the question whether it was a debt created by the defendants while acting in a fiduciary character; both of which requests were refused, and the court directed the jury to render a verdict for the defendants; to all which rulings and directions plaintiffs duly excepted. Judgment being entered for the defendant, the plaintiffs appealed to the Court of Appeals of New York, which affirmed the judgment, and remitted the record to the Superior Court. The case is brought here by a writ of error; and we have to decide the question, whether a discharge in bankruptcy under the act of 1867 operates to discharge the bankrupt from a debt or obligation which arises from his appropriating to his own use collateral securities deposited with him as security for the payment of money or the performance of a duty, and his failure or refusal to return the same after the money has been paid or the duty performed? or whether a debt or obligation thus incurred is within the meaning of the 33d section of said act (§ 5117 of the Rev. Stat.), which declares that "no debt created by the fraud or embezzlement of the bankrupt, or by his
defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act"? The New York courts decided that the effect of the discharge in bankruptcy was to discharge the debt, holding that the debt was not created by fraud, nor by embezzlement, nor whilst the bankrupt was acting in a fiduciary character.
The question first came up for discussion in the case upon an order for arresting the defendants, on a charge that the debt was fraudulently contracted. After obtaining their discharge in bankruptcy, the defendants moved to vacate the order of arrest, which motion the Superior Court denied; but the Court of Appeals reversed this judgment, and granted the motion. The opinion of the court on this occasion is reported in 77 N. Y. 427, and was referred to as the ground of judgment when the case finally came up on its merits.
The question, so far as relates to the principle involved, is not a new one. It came up for consideraation under the Bankrupt Act of 1841, which withheld the benefits of the act from all debts "created by the bankrupt in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity" (5 Stat. 441, § 1); and which further declared (amongst other things) that no person should be entitled to a discharge who should "apply trust funds to his own use." Id., § 4.
In the case of Chapman v. Forsyth, 2 How. 202, these clauses were brought before this court for examination. The case was an action of assumpsit for the proceeds of 150 bales of cotton shipped to and sold by the defendants as brokers or factors of the plaintiff. One of the defendants pleaded a discharge in bankruptcy and the judges of the Circuit Court were divided in opinion on the question whether a commission merchant or factor, who sells for others, is indebted in a fiduciary capacity within the act, if he withholds the money received for property sold by him, and if the property is sold, and the money received on the owner's account. The opinion of this court was delivered by Mr. Justice McLean, and the above question was answered in the following terms: "If the act embrace such a debt, it will be difficult to limit its application. It must include all debts arising from agencies; and indeed all cases where the law implies an obligation from the trust reposed in the debtor. Such a construction would have left but few debts on which the law could operate. In almost all the commercial transactions of the country, confidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense, a disregard of a trust. But this is not the relation spoken of in the first section of the act. The cases enumerated, the defalcation of a public officer,' 'executor,' 'administrator,' 'guardian,' or 'trustee,' are not cases of implied, but special trusts, and the other fiduciary capacity' mentioned, must mean the same class of trusts. The act speaks of technical trusts, and not those which the law implies from the contract. A factor is not therefore within the act. This view is strengthened, and indeed made conclusive by the provision of the fourth section, which declares that no 'merchant, banker, factor, broker, underwriter, or marine insurer,' shall be entitled to a discharge, who has not kept proper books of accounts.' In answer to the second question then we say, that a factor, who owes his principal money received on the sale of his goods is not a fiduciary debtor within the meaning of the act."
This decision was of course authoritative; it was not only followed, but approved by the highest courts of several of the States. In Hayman v. Pond, 7 Metc. (Mass.) 328, the Supreme Court of Massachusetts,
speaking through Shaw, C. J., after referring to the decision in Chapman v. Forsyth, said: "We have no doubt that this is the true construction of the law." In Austill v. Crawford, 7 Ala. 435, and in Commercial Bank v. Buckner, 2 La. Ann. 1023, the same views were expressed, though the contrary was held in Matteson v. Kellogg, 15 Ill. 547, and in Flagg v. Fly, 1 Edm. N. Y. Sel. Cas. 206.
Under the act of 1867 a series of diverse rulings by different courts arose on the subject; one class treating agents, factors, commission merchants, etc., as acting in a fiduciary character under the act, on the view that the act was conceived in broader and more general terms than the act of 1841; the other class taking the view that the act of 1867 used the phrase, “acting in any fiduciary character," in the sense which it had received by construction in the act of 1841. The cases on both sides of the question are collected in Bump's Law of Bankruptcy, under sec. 33 of the original Bankrupt Act of 1867, sec. 5117 of the Revised Statutes, pp. 742-745 (10th ed.) Those taking the first view are In re Seymour, 1 Benedict, 348; In re Kimball, 2 id. 554; S. C., 6 Blatch. 292; Whitaker v. Chapman, 3 Laus. 155; Lemke v. Booth, 47 Mo. 385; Gray v. Farran, 2 Cin. 426; Treadwell v. Holloway, 12 Bank. Reg. 63; Meader v. Sharp, 54 Ga. 128; S. C., 14 Bank. Reg. 192; Benning v. Bleakley, 27 La. Ann. 257. Those taking the other view are Woolsey v. Cade, 15 Bank. Reg. 238; Owsley v. Cobia, id. 489; Cronan v. Cutting, 104 Mass. 245. We have examined these cases, and others bearing on the subject, but do not deem it necessary to refer to them more particularly, inasmuch as the question has recently been fully considered by this court, and the decision in Chapman v. Forsyth has been followed.
We refer to the case of Neal v. Clark, 95 U. S. 704, reversing the decision of the Court of Appeals of Virginia in Jones v. Clark, 25 Gratt. 642. This case involved the meaning and application of the word "fraud" in the clause under consideration-" no debt created by fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged," etc. An executor sold certain bonds which he had received on the sale of the property belonging to the estate, the proceeds of which the will directed him to distribute in a certain way. The sale of the bonds was held by the State court to have been a misappropriation of them, amounting to a devastavit, in which Neal, the purchaser, was held to be a participant, and liable to account for the value of the bonds purchased; not because he was guilty of any actual fraud, but because in view of the circumstances attending his purchase he had committed constructive fraud. Neal had in the meantime obtained his discharge in bankruptcy, which he pleaded in bar to a recovery against him; but the State court held that "fraud," in the 33d section of the Bankrupt Act (of 1867), included both constructive and actual fraud, and overruled his plea. We reversed the judgment of the State court on this point, and decided that Neal was entitled, under the circumstances of the case, to the benefit of his discharge in bankruptcy. Adopting and applying the reasoning of the court in Chapman v. Forsyth we said, "that in the section of the law of 1867 which sets forth the classes of debts which are exempted from the operation of a discharge in bankruptcy, debts created by fraud' are associated directly with debts created by embezzlement.' Such association justifies, if it does not imperatively require, the conclusion that the 'fraud' referred to in that section means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, as does embezzlement; and not implied fraud,
or fraud in law, which may exist without imputation of bad faith or immorality."
The question came before us again in Wolf v. Slix, 99 U. S. 1, in which a sale of goods to Wolf by an insolvent firm was set aside as fraudulent against creditors, and Wolf and his sureties were then sued on the bond given by him for a return of the goods when attached at the commencement of the proceedings. Wolf having in the meantime become bankrupt, and obtained his discharge, pleaded the same in bar of the action. We held the plea to be a good one to the action on the bond.
The present case is not precisely like either that of Chapman v. Forsyth, or Neal v. Clark, but it is very difficult to distinguish it in principle from the cases of commission merchants and factors failing to account for the proceeds of property committed to them for sale. There is no more-there is not so much of the character of trustee in one who holds collateral securities for a debt as in one who receives money from the sale of his principal's property-money which belongs to his principal alone, and not to him, and which it is his duty to turn over to his principal without delay. The creditor who holds a collateral, holds it for his own benefit under contract. He is in no sense a trustee. His contract binds him to return it when its purpose as security is fulfilled; but if he fails to do so, it is only a breach of contract, and not a breach of trust. A mortgagee in possession is bound by contract, implied, if not expressed, to deliver up possession of the mortgaged premises when his debt is satisfied; but he is not regarded as guilty of breach of trust if he neglects or refuses to do so, but only of a breach of contract.
The English authorities are more in accord with the decisions in this country, which take a different view from our own on this question. The Debtor's Act of 1869 (32, 33 Vict., ch. 62) abolished imprisonment for debt, except in the case of statutory penalties, and when arising from the default of a trustee or person acting in a fiduciary capacity, who has been ordered by a court of equity to pay money in his possession or under his control; and except defaults of attorneys and solicitors and some other special delinquents. The Bankrupt Act of the same date (32, 33 Vict., ch. 71) declares that the order of discharge of a bankrupt shall not release him from any debt or liability incurred or forborne by means of any fraud or breach of trust. (Sec. 49.) Under those statutes, where an agent failed to pay over moneys collected for his principal, Sir George Jessel said, "No doubt this debt was incurred by fraud." Pashler v. Vincent, 8 Chan. Div. 825. The same doctrine was held in Morris v. Ingram, 13 Chan. Div. 338, where a son was in the management of his father's farm, and sold part of the stock and received the proceeds. After his father's death, being ordered to pay over the money, and failing to do so, he was held to be a person acting in a fiduciary capacity. In Middleton v. Chichester, 19 Week. Rep. 369, Lord Hatherly said that "the exceptions [in the Debtor's Act] are all referable, not to debts payable simpliciter, but to debts contracted in a manner in some degree sub ject to observation as being worthy of being treated with punishment. * * * In every case we find some shade of misconduct; something of the character of delinquency, though varying in description."
For other English cases arising under the acts referred to, see Wood's Case, Ex parte Chapman, 21 W. R. 71; Hooson, Ex parte Chapman, 21 W. R. 152; S. C., 8 L. R., Ch. 231; Cobham v. Dalton, Ex'r, 10 L. R., Ch. 655; In re Deere, Atty., id. 658; Halford v. Jacobs, 19 L. R., Eq. 436; Phosphate Co. v. Hartmount, 25 W. R. 743; Earl of Lewes v. Barnett, 6 Ch. Div. 252; Barrett
v. Hammond, 10 id. 285; Hemming in re Chatterton, 13 id. 163; Fisher's Dig. Supp. by Chitty, tit. Debtor's Act, Col. 1287.
It is evident that the English courts regard many transactions as frauds or breaches of trust under their statutes, which we do not hold to be such under our bankrupt acts. Perhaps the liberal construction made in favor of the certificate of discharge in this country is due to the peculiar modes and habits of business prevailing amongst our people. It is no doubt true, as said in Chapman v. Forsyth, that a construction of the excepting clauses, which would make them include debts arising from agencies and the like, would leave but few debts on which the law could operate. At all events we think that the previous decisions of this court and of the State courts in the same direction, accord with the true spirit and meaning of the act of Congress, and with the necessities of our business conditions and arrangements.
The judgment of the Court of Appeals of the State of New York is
NUISANCE - POWER OF MUNICIPALITY TO ABATE-FROPERTY OWNER'S REMEDY.
SUPREME COURT OF IOWA, JUNE 7, 1884.
While cities and towns have the right to abate nuisances,
The owner of the property destroyed has a right to have recourse to either of his legal remedies to test the validity of the action of the town council by certiorari, or to sue the authorities for damages sustained.
PPEAL from Jackson District Court.
This action is against the town of Bellevue, the iudividuals composing the town council, and others; and the petition states that the defendants unlawfully entered certain premises, and with force and violence pulled down and destroyed a dwelling-house, the property of the plaintiff. The defendants justified under a resolution of the town council declaring the building a nuisance, and ordering its abatement by the destruction of the house. Trial by jury, judgment for defendants, and the plaintiff appeals.
D. A. Wynkoop and L. A. Ellis, for appellant.
SEEVERS, J. 1. The dwelling-house in question was situate within the corporate limits of the town of Bellevue, and on the 2d day of April, 1880, the town Be it recouncil passed the following resolution: solved by the town council of the town of Bellevue, that upon investigation we find the old cement house on Second street, situated on lot 121, dangerous to the public, and that we therefore declare it a nuisance, and order its removal; and hereby order a notice to be served by the marshal upon the owner, Eli Cole, to remove said house within ten days from such notice, and if said owner shall fail to remove said house in said stated time the town council will remove it at. the expense of said owner, and such expense shall be taxed to said lot No. 121."
*19 N. W. Rep. 843.
The plaintiff had no notice or knowledge of the foregoing proceedings of the council, but after the passage of the resolution the notice therein contemplated was served on him. The plaintiff failed to remove the house, and afterward, on April 27, 1880, another notice was served on the plaintiff, similar to the foregoing, except that he was required to remove the building within forty-eight hours. The plaintiff failed to comply with this notice, and there was evidence tending to prove the house was torn down by some of the defendants, who claimed to be acting under the resolution of the town council.
The court instructed the jury as follows: "(4) Under the law, and the conceded facts in this case, the said council had, at least so far as any question can be raised in this suit, the right to pass said resolution, and the individual members of the council passing it cannot be made liable by reason of any acts done under or by virtue of it, and this resolution and authority of the council is also justification to the other defendants who acted under and by virtue of employment, so long as they so acted; but if they exceeded this authority, and did more than was authorized by it, or more than was essential or necessary to
carry it out and abate the nuisance condemned by it, they or either of them that so did are liable for the damage so done in excess of such authority or necessity, and in this event the measure of damages (no vindictive damages being insisted upon) would be the cash value of the property so destroyed, at the time and place of its destruction, with interest to this time."
It is provided by statute that cities and towns have the "power to prevent injury or annoyauce from any thing dangerous, offensive, or unhealthy, and to cause any nuisance to be abated." Code, § 456. The court seems to have been of the opinion that under this statute the council not only had the power to declare what constituted a nuisance, but that when it did so determine, such determination was final and conclusive, and justified the destruction of the house, unless the authority conferred by the resolution of the council had been exceeded by the persons acting under it. We are required to determine whether this construction of the statute is correct. Under the instruction given by the court it is immaterial whether the house, in fact, was a nuisance. The resolution of the council made it a nuisance, and this ended all inquiry, as the court thought. The building was adjudged a nuisance without the knowledge of the plaintiff, and he had no opportunity to be heard. No notice to him is required by the statute, and he has no right to appeal or be heard unless he can have the opportunity, in this action, of having the question determined whether his house was a nuisance or not. His property has been destroyed, but he is remediless, if the instruction above quoted is in accordance with the law of the land. The power to abate implies that there is or may be in existence something to be abated. A nuisauce must exist before it can be abated. The power conferred therefore authorizes cities and towns to abate an existing thing. No express power is given to declare a nuisance existing, nor do we think it can or should necessarily be implied. The council may abate all nuisances, but this does not imply it can determine what constitutes a nuisauce as an existing thing, for If it the reason the nuisance must in fact exist. does, then it may be abated. If it does not, the council has no power to declare it, or in other words, create, and then proceed to abate. We do not think the General Assembly intended to coufer on cities and towns the power to finally and conclusively determine, without notice or a hearing, and without the right of appeal, that any given thing constituted a nuisance; unless possibly in cases of great public emergency, 80 strong as to justify extraordinary measures, upon the