Abstracts learned appellate division dismissed the writ and affirmed the proceedings of the commissioners, with $50 cost and disbursements to them. If correctly understood, the only ground upon which the respondents attempt to sustain the order of the appellate division is that there was no allegation in the petition attacking the validity of the respondents' claim that the relator had ceased to be a member of the force under the provisions of the statute relating to an absence without leave for five consecutive days before the day of his trial. impossible to understand how the relator could have alleged in his petition the invalidity of a claim not made until nearly two years after the petition was filed, and which had no connection, actual or pretended, with the act charged, and for which the relator was dismissed from the force. It is difficult to believe that such a proposition is seriously submitted. But, be that as it may, it is totally without substance, and does not merit further consideration. It follows that the order of the appellate division should be reversed, and the determination of the police commissioners dismissing the relator annulled and set aside, with costs to the appellant in all the courts. PARKER, C. J., and O'BRIEN, BARTLETT, VANN, LANDON, and CULLEN, JJ., concur. Order reversed, etc. Bourbon Stock-Yards Co. v. City of Louisville et al. Powers of Attorney Employed to Assist City Attorney.-An attorney employed by the mayor of a city of the first class, with the approval of the members of the board of public works, to assist the city attorney in defending an action against the city and the members of the board of public works, and who also represented other persons interested in the litigation, but not parties to the action, is authorized, on appeal from a judgment in favor of defendants, to make a motion to affirm as a delay case, as he is still acting as attorney with the approval of those who employed him. Appeal from circuit court, Jefferson county, chancery division. "Not to be officially reported." Action by the Bourbon Stock-Yards Company against the city of Louisville and others. Judgment for defendants, and plaintiff appeals. Affirmed. Charles A. Gibson and Gibson, Marshall & Gibson, for appellant. R. W. Woolley, for appellees. PAYNTER, C. J. It appears that Col. R. W. Woolley represented the appellees, city of Louisville and Charles F. Granger, Thomas L. Jefferson, and Thomas B. Saterwhite, members of the board of public works, defendants in the court below. The services which he rendered were in connection with Henry L. Stone, who was and is city attorney, and with Abstracts his approval. He not only represented the city, but some property owners who were interested in the litigation, but not parties to the action. He was employed by the mayor with the approbation of the members of the board of public works. He is still acting with the approval of those who employed him, and never has been dismissed as an attorney in the action. We are of the opinion that he was authorized to make the motion to affirm this as a delay case. An examination of the record has convinced us that the motion should be sustained, and the judgment is accordingly affirmed. Vanneman. Pusey. (Court of Appeals of Maryland, June 14, 1901.) Mayor Eligibility.-The assessment of city real estate of a value greater than $2,000 to a partnership composed of two persons, by which it is owned in common, is a sufficient assessment against a member of the partnership to prevent him from being ineligible for the office of mayor, under Pub. Loc. Laws, art. 13, 142, as amended by Act 1890, c. 180, rendering a person not assessed for city real estate in the sum of $1,000 ineligible for mayor. Appeal from circuit court, Hartford county; James D. Waters, Judge. Mandamus by Robert K. Vanneman against Clarence C. Pusey to try title to the office of mayor of Haver de Grace. From an order dismissing the petition, plaintiff appeals. Affirmed. Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. George L. Van Bibber, S. A. Williams, Thos. H. Robinson, and P. L. Hopper, for appellant. O. T. Rogers, Richard Dallam, and Edwin G. Baetjer, for appellee. FOWLER, J. In our opinion, the construction suggested by the plaintiff is too narrow. If it should be adopted, it would follow that, if the defendant, Pusey, were alone doing business in the name of Pusey & Co., and owned the whole of the real estate assessed in the name of Pusey & Co., he would not be qualified, because, although he, and he alone, would be liable for the taxes, the assessment is made in his business or firm name. We think the assessment relied on by the defendant gratifies the provisions of the charter, and the order appealed from dismissing the petition should be affirmed. Order affirmed, with costs. Municipal Officers—Prosecution for Official Misconduct-Expenses of · Defense Not to Be Borne by City-Unconstitutional Statute.-Laws 1899, c. 700, provides for the appointment of a referee to examine into and report the amount of reasonable counsel fees and expenses of a city or county officer in defending successfully in any trial to remove him from office or convict him of crime alleged to have been committed in connection with his official duties, the amount to be paid by the issue of revenue bonds by the city or county affected: held, that such act, so far as it attempts to create an indebtedness against a city or county for expenses incurred by a police officer in defending charges against him for official misconduct, would constitute the application of money to an individual, and not to a city or county purpose, in violation of Const. art. 8, 10, prohibiting a county or city from incurring any indebtedness except for a county or city purpose. Appeal from supreme court, appellate division, First department. In the matter of the application of George S. Chapman for the payment of a claim against the city of New York. From a judgment of the appellate division (68 N. Y. Supp. 1135) affirming an order of the special term denying a motion for the appointment of a referee to hear and examine into the claim, the claimant appeals. Affirmed. William F. S. Hart, for appellant. John Whalen, Corp. Counsel (Theodore Connoly, of counsel), for respondent. ** * VANN, J. The statute under which this proceeding was instituted provides for the appointment of a referee "to hear, examine into, and report," the amount of reasonable counsel fees and expenses paid or incurred by a city or county officer in successfully defending himself in any trial or proceeding "to remove him from office or to convict him of any crime" alleged to have been committed "in the performance of or in connection with his official duties," and that the amount allowed by the referee, when confirmed by the court, be paid by the issue of revenue bonds, to be included in the taxes levied for the following year in the city or county affected. Laws 1899, c. 700. Another part of the act provides for the payment of similar claims by the state, but, as the validity of that part is not involved in this appeal, no further allusion need be made to it. While other questions have been discussed before us, the main question is whether the legislature had power, under the constitution of our state, to pass this statute. That question has been passed upon several times by the supreme court, and the conclusion reached by every judge who considered it is that the statute is unconstitutional. In re Straus, 44 App. Div. 425, 61 N. Y. Supp. 37; In re Jensen, 28 Misc. Rep. 379, 59 N. Y. Sup. 653, affirmed in 44 App. Div. 509, 60 N. Y. Supp. 933; Chapman v. City of New York, 57 App. Div. 583, 68 N. Y. Supp. 1135; In re Fallon, Abstracts 28 Misc. Rep. 748, 59 N. Y. Supp. 849; In re Labrake, 29 Misc. Rep. 87, 60 N. Y. Supp. 989. Our examination has led us to the same result, and, as the discussion of the subject has been so thorough and able in the courts below, it is necessary for us to do little more than announce our conclusion. PARKER, C. J., and BARTLETT, HAIGHT, LANDON, CULLEN, and WERNER, JJ., concur. Order affirmed. Fresno Canal & Irrigation Co. v. McKenzie et al. Claim against City-Payment by City Treasurer under Decree of Court. Where a decree of a court having jurisdiction directed a city treasurer to pay a certain claim against the city, such decree was a complete defense to an action to charge him with official misconduct in having paid the claim. Judgment against City-Refusal of Trustees to Issue Warrant—Payment by Treasurer.-Where judgment had been rendered for plaintiff in an action against a city treasurer and board of trustees to compel payment of a claim against the city, such judgment was sufficient to justify the treasurer in paying the claim, though the trustees refused to approve it, or issue a warrant thereon. Same Same Same-Admission of Judgment in Evidence.-Where a city treasurer, acting under a judgment, paid a claim against the city, such judgment was admissible in evidence as justification in an action charging him with official misconduct in having paid the claim. Department 2. Appeal from superior court, Fresno county; J. R. Webb, Judge. Action by the Fresno Canal & Irrigation Company against W. H. McKenzie and another. From a judgment in favor of defendants, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed. Frank H. Short, for appellant. E. D. Edwards and W. C. Graves, for respondents. MCFARLAND, J. The judgment appealed from is right. Where there are several holders of claims against a municipal corporation, each claim being payable only out of the municipal revenues of a certain year, and those revenues being insufficient to satisfy all the claims, no doubt, under our law on the subject as it now stands, creditors may be somewhat embarrassed, as was noted in Weaver v. City and County of San Francisco, 111 Cal. 319, 43 Pac. 972; but in the case at bar the question is whether or not McKenzie, as treasurer, was guilty of such official misconduct or malfeasance as made him liable to plaintiff in damages. The general rule undoubtedly is that the mandate of a court having jurisdiction in the premises protects the officer who obeys it, and we see nothing in the case at bar which takes it out of that rule. The force of the judgment is sought to be lessened by the suggestion that it refers only to moneys in the sewer fund "not otherwise appropriated"; but, even if that expression can be Abstracts construed as qualifying all preceding clauses, and as embracing "any money now in his hands," still there is no ground for contending that the money decreed in the judgment to be paid by the treasurer to McBean had been theretofore "otherwise appropriated." There is nothing in the proposition that, although the trustees and the treasurer had defended the action brought by McBean, and judgment had been rendered in his favor, still such judgment was worthless unless the trustees should afterwards "approve" it, and order a warrant to issue for its payment. All the opposition which the defendants in that action could make to McBean's demand was ended by the judgment, which was a judicial adjudication that the treasurer should pay that demand. The final arbiter was the court, not the trustees. Indeed, the ordinance itself, which provides for the auditing of demands and their payment on warrants, contains the clause, "except as otherwise by law provided." The contention of appellant that the court erred in allowing the introduction in evidence of the judgment roll in the McBean case is, of course, under the above views, not maintainable. It could not have been rightfully excluded on the ground that appellant was not a party to that action. The respondent had the right to introduce the judgment under which he justified his action, and the question is whether he was guilty of official misconduct in obeying it. The judgment and order appealed from are affirmed. We concur: HENSHAW, J.; TEMPLE, J. City of Iron Mountain v. Uddenberg, City Treasurer. [86 N. W. Rep. 434.] City Treasurer-Salary.-The statute governing the organization of the relator provides that the city treasurer shall receive such annual salary as the council shall determine by ordinance. The council passed an ordinance fixing a salary, and providing that it should be in full compensation for all services rendered the city by him. The statute imposes the duty upon the city treasurer to collect all taxes, state, county, and municipal: held, that the salary included all the compensation to which the treasurer was entitled, and that the collection fees belong to the city. Certiorari to circuit court, Dickinson county; John W. Stone, Judge. Application by the city of Iron Mountain for a writ of mandamus against Arthur Uddenberg. From an order granting the writ, defendant brings certiorari. Affirmed. The relator is a city of the fourth class, organized under section 3060, c. 88, 1 Comp. Laws (being section 38 of chapter 7 of the act), provides for the compensation of city officers, and that the treasurer, among other city officers, "shall receive such annual salary as the council shall determine by ordinance." The relator passed an ordinance in which the salary of the city treasurer was fixed at $750, and provided that it |