Abstracts Appeal from district court, Arapahoe county. Action by William J. Hayes and others against the city of Denver and others. From a judgment for plaintiffs, defendants appeal. Affirmed. J. M. Ellis, City Atty., Guy Le Roy Stevick, Asst. City Atty., S. L. Carpenter, Asst. City Atty., and N. B. Bachtell, Asst. City Atty. (Fred. A. Williams, George F. Dunklee, and James H. Brown, of counsel), for appellants. Bicksler, McLean & Bennett and Thomas W. Heatley, for appellees. CAMPBELL, C. J. Not a single authority has been cited by the city attorney in support of the construction which we are asked to sanction, but he says that there are no similar constitutional and statutory provisions in other states on which a decision might be expected. This may be true, but there are several decisions which we consider, in principle, to be squarely against his contention. He cites, however, the case of Thomas v. City of Grand Junction, 13 Colo. App. 80, 56 Pac. 665, as authority for the proposition that an ordinance which authorizes the purchase or construction of waterworks is not void on account of including two subjects. But the court there expressly ruled that the one subject and one object of the ordinance under consideration was to secure for the city the ownership of its own waterworks. "It authorizes the purchase or construction, not the purchase and construction." This language impliedly recognizes the rule that, if there had been more than one purpose included, the ordinance would be void. Whether the distinction made is sound we do not say. But nothing in that case decided is against the conclusion which we have reached, but, if there is, it must give way to the ruling here. The following, among other, cases are in harmony with our resolution of the question under consideration. Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St. 374. 49 N. E. 335; Truelsen v. City of Duluth, 61 Minn. 48, 63 N. W. 714; Metcalfe v. City of Seattle, I Wash. St. 297, 25 Pac. 1010; Petros v. City of Vancouver, 13 Wash. 423, 43 Pac. 361; Board of Sup'rs of Fulton Co. v. Mississippi & W. R. Co., 21 Ill. 338, 372; Gray v. Mount, 45 Iowa, 591. The cross error assigned by appellees, that the trial court was wrong in refusing to allow interest on the deposit from the date of the demand on the city to return it, is resolved against them. This is not a case for the award of interest. The judgment of the district court being in accordance with our conclusion, it is affirmed. McHugh v. City and County of San Francisco et al. Public Improvements-Public Act Superseded by City Charter.— Since the San Francisco city charter provides a complete scheme for Abstracts the acquisition of "permanent municipal buildings and improvements, which include school houses, sewers, etc., by bonded indebtedness, the public improvement act, relating to the construction of such improvements in the same manner, is superseded by the charter, being inconsistent with the latter; and hence bonds issued for such purposes cannot be issued under such act, but must be issued under the charter. In bank. Appeal from superior court, city and county of San Francisco; J. M. Seawell, Judge. Action by Felix McHugh against the city and county of San Francisco and others. From a judgment in favor of defendants, plaintiff appeals. Reversed. Wm. T. Baggett, Charles E. Naylor, and Arthur H. Barendt, for appellant. Franklin K. Lane, for respondents. PER CURIAM. This case in all essential particulars is the same as Fritz v. City and County of San Francisco (S. F. No. 2,377) 64 Pac. 566, this day decided. By the facts disclosed upon this appeal, there is no question whatever but that the bonded indebtedness is to be created for the purpose of acquiring "permanent municipal buildings and improvements. School houses, sewers, etc., come directly within that classification. This being so, the act termed the "Public Improvement Act" is inconsistent with the provisions of the charter; for by the charter provisions a complete scheme for the acquisition of this character of municipal improvements by the creation of a bonded indebtedness is provided. For this reason the improvement act is superseded by the charter, and, being superseded, it stands as to the municipality exactly the same as if it were repealed. No bonds can be issued under its provisions, for as a law it is dead to the city. The bonds, therefore, if they may be issued at all, must be issued under the provisions of the charter. Yet bonds cannot be issued under the provisions of the charter unless their issuance has been authorized by the provisions of the charter. While the notice of election in this case appears to have been in a similar form to that laid down in the charter, yet the other objections suggested to the proposed issuance of these bonds are fatal. For these reasons, and upon the authority of the decision in Fritz v. City and County of San Francisco, supra, the judgment in this case is reversed, and the cause remanded. TEMPLE, J. I concur in the judgment. Broadfoot v. City of Fayetteville. (Supreme Court of North Carolina, June 7, 1901.) Constitutional Law -Municipal Bonds-Interest.-Const. art. 7, % 7, provides that no municipal corporation shall contract any debt, except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein. Laws 1874-75, c. 248, enabled the town authorities to fund the then bonded indebtedness of the town, Abstracts and to execute and deliver new bonds for like amounts in payment of the outstanding bonds, with interest not to exceed 8 per cent., the outstanding bonds having been issued under Laws 1852, c. 207, and carried interest at 6 per cent. The town, acting under Laws 1875 issued bonds to plaintiff with interest at 7 per cent., but no election was held on the question of authorizing the issue of the bonds: held, that that part of the act increasing the rate of interest was contrary to the constitution, and hence the whole interest would fail. Appeal from superior court, Cumberland county; Moore, Judge. Action by C. W. Broadfoot against the city of Fayetteville to recover a debt represented by certain bonds of the town of Fayetteville. From a judgment in favor of plaintiff for the amount of the bonds and interest at the rate of 7 per cent., both parties appeal. Modified. Geo. M. Rose and Hinsdale & Lawrence, for plaintiff. Defendant's Appeal. MONTGOMERY, J. In the case before us the interest was provided for in the face of the bonds. It was a part of the debt, but to be distinguished still from the principal of the debt. That part of the act of 1874-75, c. 248, as to the principal amount of the bonds, was not contrary to the requirement of article 7, § 7, of the constitution. The general assembly, however, undertook to give the town authorities of Fayetteville the power to increase the rate of interest from 6 per cent. to as much as 8 per cent., in their discretion. That much of the act-the power to increase the rate of interest— was repugnant to the feature of the constitution which we have cited. A part of an act of the general assembly can be constitutional and a part unconstitutional. McCless v. Meekins, 117 N. C. 34, 23 S. E. 99. What, then, is the effect of the unconstitutional part of the act? Does the whole interest fail, or only the difference between 6 per cent., the amount provided for in the original bond, and the 7 per cent., allowed in the new bonds? We think the whole interest fails, for the one and simple reason that, as the rate agreed on was, in its effect, contrary to the provision of the constitution which we have pointed out, we cannot, by judicial decree, fix upon either 6 per cent. or any other rate. We cannot make a contract for the parties. That part of the judgment below is erroneous in so far as 6 per cent. interest is allowed upon the bonds, as only the principal sum of the bonds can be collected, with interest from the time of the maturity of the bonds. The judgment below is modified as in this opinion set out, and affirmed except as to the modification. Modified and affirmed. Plaintiff's Appeal. MONTGOMERY, J. There was no error against the plaintiff in the ruling and judgment of the court below. No error. Abstracts Keller v. City of Scranton et al. (Supreme Court of Pennsylvania, July 17, 1901.) [49 Atl. Rep. 781.] Municipal Indebtedness-Constitutional Restriction Applicable to Unliquidated Damages Assumed by City.-A contract by a city for the building of a viaduct without expense to itself, but by which it assumes the damages to abutting property, is within Const. art. 9, 8, providing that a city shall not incur any debt, or increase its indebtedness to exceed 2 per cent. of the assessed value of property therein, without the consent of the electors. Appeal from court of common pleas, Lackawanna county. Suit by Luther Keller against the city of Scranton and others for injunction. Decree for defendants. Decree for defendants. Plaintiff appeals. Reversed. I. H. Burns and Streeter & Lowry, for appellant. A. A. Vosburg, Joseph S. Clark, and Willard, Warren & Knapp, for appellees. The MITCHELL, J. It is true that the constitution does not exempt municipalities, how great soever their indebtedness, from liability for wrongful and tortious acts. But it does not authorize the voluntary assumption of obligation to pay money by the scheme of a tort. The distinction between real or unpremeditated torts, and voluntary acts, under the technical name of "torts," done by agreement for the accomplishment of a purpose prohibited to be done by contract, is clear and substantial. And that is what we have here. taking or injury to land by eminent domain is not a tort, in the sense of a wrongful act. When the broad distinction of actions into those ex contractu and those ex delicto was established, damages from the exercise of eminent domain were unknown. When they came into existence they did not strictly fit into either class, but, as they were certainly not founded on express contract with the landowner, they were put in the only other class, as torts. But when, as in the present case, the act which is called a "tort" is done under a contract, and the assumption of the consequent damages is an express term of such contract, we have a perfectly clear case outside of the principle that makes municipalities liable for their wrongful acts, without regard to their indebtedness, and within the constitutional prohibition of a contractual obligation to pay in future for a consideration in the present. We are therefore obliged to hold that the ordinance in question is void, as increasing the indebtedness of the city of Scranton beyond its constitutional limits. The other objections to the ordinance are not sustained. Town of Winneconne v. Village of Winneconne. Unconstitutionality of Incorporating Statute Plea in AbatementEffect of Curative Act.-Where a suit was instituted against a munici Abstracts pal corporation, and defendant pleaded in abatement the nonexistence of the corporation, because the statute under which defendant had attempted to incorporate had been declared unconstitutional, the fact that a curative act had been passed before trial did not render the plea ineffective. Same Same Same-Failure to Serve Process after Passage of Curative Act.-A village was sued and served as an alleged corporation, and pleaded in abatement the nonexistence of the corporation, because the statute under which the village had attempted to organize had been declared unconstitutional, and after the passage of a curative act the case went to trial without service of process on the village created by the curative statute: held, that the action was properly dismissed, since the present legally existing village was never brought into court. Appeal from circuit court, Winnebago county; George W. Burnell, Judge. Action by the town of Winneconne against the village of Winneconne. From a judgment dismissing the complaint, Affirmed. plaintiff appeals. This action was commenced July 9, 1894, by the plaintiff to recover of the defendant village certain liquor license moneys collected by the village during the years 1891, 1892, and 1893. The complaint alleged the corporate character of the town; that the defendant was a village duly incorporated, under chapter 40, Rev. St. 1878, and lying wholly within the limits of the plaintiff town, and had not at any time provided by ordinance for the support of the poor of said village, and that it had at no time a population exceeding 1,400; that the defendant had attempted to issue licenses to saloon keepers and pharmacists for the sale of spirituous and malt liquors during the years 1891, 1892, and 1893, and had received as license moneys upon such licenses a sum aggregating $2,796, and had expended of such money only the sum of $977.34 for the relief of the poor, and had used the balance thereof for other purposes; that the town system for the support of the poor was in force during all said time in the county of Winnebago and the town of Winneconne; and that no part of said moneys has ever been paid to the county. The complaint further alleged demand, and the proper filing of the claim and its disallowance. The answer pleaded in abatement that the defendant was never a duly-incorporated village; that an attempt was made to incorporate the defendant as a village in the year 1887, under the Revised Statutes of 1878, but that the law under which such attempt was made was unconstitutional, and hence that such proceedings were void, and that the defendant never became incorporated. The facts were stipulated, and the case was submitted upon such stipulation in November, 1899, and findings were made at that time by the court to the effect that defendant was formally incorporated June 3, 1887, under the general law then existing for the organization of villages, and that said law was unconstitutional, and hence that no such village as the village of Winneconne had ever existed. On these findings the complaint was dismissed, without costs, and the plaintiff appeals. |