that it is precluded from doing it in any other. | the property benefited. The complaint alleged And where the City has proceeded in the ut- every fact except the payment of the award, most good faith with its improvements, and but the court held that this fact ought also to the contractor has fulfilled all of his engage- have been averred. The court further held in ments with the City, I am unwilling to say that that case that it was the duty of the common he shall not be paid because of a technical de- council to take the necessary measures to have fect in the notice, which ordinary judgment the sums assessed collected, and for the negand sagacity could hardly guard against. Be- lect of that duty an action on the case would lie. sides, I do not think, under the charter, this After this examination of the preceding technical defect in the notice destroyed or im- part of the charter, and of the authorities, we paired the power of the City to contract. That can better appreciate the force and meaning of power inheres in every corporation, and is co- section 5, art. 6, of the Charter. So much of extensive with its corporate powers; but in this that section as is supposed to be controlling by instance we do not have to depend on implica- the defendant's counsel is as follows: "In case tion. The power is conferred in the plainest the notice be for the improvement of a street and most comprehensive terms. The defend- or part thereof, the council may proceed to asaut's claim is not that the general power did certain and determine the probable cost of not exist, but there was a slight departure from making such improvement, and assess upon the authority conferred in the particular al- each lot or part thereof liable therefor its proready pointed out, and for that reason the portionate share of such cost." A different whole proceeding was ultra vires and void. form of expression is used in the succeeding Under the circumstances of this case, I am un-sections in reference to the assessments upon able to accede to this argument. Nor is a cor- lots. When the probable cost of the improveporation always, and in every way, allowed to ment has been ascertained and determined, avail itself of this plea. and the proportionate share thereof, for each lot or part of lot, has been assessed as herein provided, the council must declare the same by ordinance. Section 6. The docket of city liens is a book in which must be entered, etc. Section 7. These forms of expression are not necessarily conclusive, but I think, where the meaning of the charter is not free from doubt, they have weight in determining the question. Said Allen, J., in Whitney Arms Co. v. Barlow, 63 N. Y. 62: "The plea of ultra vires should not, as a general rule, prevail, whether interposed for or against a corporation, when it would not advance justice, but, on the contrary, would accomplish a legal wrong." The respondent relies upon Springfield Milling Co. v. Lane County, 5 Or. 265. That was a case where a superintendent of a bridge with power to let a contract for its construction and superintend it, purchased lumber without authority, and used it in the construction of the approaches to the bridge, and it was held that Lane County was not liable on two grounds: (1) it was a case where the letting must have been to the lowest bidder; and (2) Powers, the superintendent, exceeded his authority. The principle of the case does not seem to me to be controlling here. Saxton v. St. Joseph, 60 Mo. 153, is another case relied upon by the defendant. That was a case where the common council adopted a resolution ordering the city engineer to let a contract for macadamizing a street, without the concurrent action of the mayor, and it was held the city was not liable, the court holding that the concurrence of the mayor was necessary to give any validity to the proceeding. Swift v. Williamsburgh, 24 Barb. 427, is another case relied upon by the defendant. In that case the city was not authorized to take any proceeding whatever to open, regulate, grade or pave any street or avenue, except upon petition signed by one third of the persons owning land situated within the assessment limits. The council proceeded without such petition, and the city was held not liable, and properly So. In that case the court expressly draws the line of distinction between cases where a general power is conferred and one where it is of a more limited nature, and cites Wetmore v. Campbell, 2 Sandf. 344, and Manice v. New York, 8 N. Y. 130, as examples. McCullough v. Brooklyn, 23 Wend. 458, is another case relied upon by the defendant. That was a case where the corporation took the land of the plaintiff for a street, which it was authorized to do, and to assess the damages upon There are two cases in this court involving the liability of the City of East Portland under its charter for work done on its streets to improve the same. The first is Frush v. East Portland, supra. In passing on this case the court says: "It will be observed that, though the improvements were local, there is nothing in the contract to show that it was in the minds of the contracting parties at the time the same was entered into that a special and local tax was to be resorted to in order to raise the fund from which the warrants were to be paid. The contract provided simply that the respondent should do certain work at a stipulated price, and that, upon its completion and acceptance, the city would pay him the contract price through the instrumentality of warrants to be drawn upon a fund which the city agreed to provide for the purpose of liquidating the same." The force of this language is too plain for controversy. It clearly recognizes the power of the City to create a liability against itself for work in improving its streets, and for which it may be generally liable without first making a local assessment from which alone the liability is to be discharged. And in North Pacific Lumbering & Mfg. Co. v. East Portland, supra, this court felt compelled to adhere to Frush v. East Portland. So that in every view of the subject, whether on the construction of the charter alone, or the general principles of law, or the adjudged cases in this court, the defendant is liable on the facts before us. The judgment of the court below must therefore be reversed, and the cause remanded for further proceedings. Lord, J., concurring: For the purposes of this case it may be ad mitted that a municipal corporation cannot | to make such improvement of streets or parts contract in any other mode than is authorized of streets, and to pay therefor without resort to by its charter. When, to make a contract for the special mode by local assessments. And if the improvement of a street, and to provide the the corporation contract for such improvefunds to pay for it, the charter prescribes it ments, and the improvements are made, but are shall only be done by local assessments on the to be paid for by local assessments upon abutabutting property, this amounts to a direct in- ting property, and the City fails to perform its hibition against making any contract for such duty by doing the acts prescribed by the charimprovements only as such mode is pursued, ter to supply such fund, such negligence or and the failure or omission of the city to create omission of duty will subject it to a general lithe fund from the sources indicated to pay for ability. such improvements, when made, will not sub- In North Pacific Lumbering & Mfg. Co. v. ject the city to any general liability therefor. East Portland, 14 Or. 6, 7, while the personal The reason is plain. As the city is without opinion was expressed that the city did not have any general power to contract for and provide any power to contract for a street improvethe funds to pay for such improvements, ex- ment, it was held that where it undertook to cept by way of local assessments, it necessarily provide for the payment of such improvement results that it cannot be subject to any general by local assessments, but failed or neglected to liability. To subject the city to a general lia perform the required acts intended to supply bility, there must be some general power under such fund, a general liability attached in conwhich it would be authorized to raise the funds sequence thereof. The language of Mr. Jus to pay for such improvements. But where tice Thayer in that case is: "I do not think it such general power is conferred, and an im- [the city] has any power to enter into any such provement is projected to be paid for out of engagements for the improvement of a street; funds to be derived from local assessments, and but it does undertake to perform all the acts the city authorities upon whom is devolved the required by the charter intended to supply the duty neglect or fail to take the requisite pro-requisite fund to defray the expense attending ceedings to create the lien which is to supply the funds to pay for such improvement, the improvement being within the scope of the general power of the corporation, independent of the special mode by local assessments, such neglect or omission, after the improvement is made, will subject the city to a general liability to pay therefor. By the charter of East Portland the trustees are authorized and empowered to improve streets, parts thereof, etc.; and to do this it is expressly given full power to provide everything necessary to the exercise of the powers granted, which necessarily includes the right to levy taxes and pay for such improvements of its streets out of the general fund. In a word, the general power is given to make street improvements, and to provide the means of paying therefor. In addition to this, there is also conferred the power to make such improvements, etc., of streets by means of local assessments, or the creation of liens upon the property of abutting owners, as prescribed by section 2 et seq. As this last mode involves that kind of interference with individual right of property as subjects it to liens for local assessments upon the theory of benefits received, such powers can only be exercised where it is expressly conferred, and the mode of its exercise prescribed. Hence, to enable the City to make improvements by means of local assessments upon the adjoining property, it was necessary to expressly confer the power and the mode of its exercise, as without it the City would be confined to the general power. Such special mode of making such improvements, and supplying the funds to pay for them, is not, therefore, exclusive, but it was inserted in the charter ex rei necessitate,—because it must be there to authorize the City to make such improvements by local assessments; but its existence does not abate or nullify the general power conferred, as both may co-exist without conflict, and be exercised as justice may require. So that, according to my view, there is the general power conferred on the corporation it; and a failure to comply with any of the requirements of the charter by which the fund may be realized would subject it to a general liability." My concurrence in that result rests upon the principle that the right to subject the City to a general liability is based upon the general power conferred to make such improvement, and to defray the expenses thereof out of the general fund; for if the City has not such general power, but is confined exclusively in making and defraying the expenses of such improvements to the fund derived from local assessments upon abutting property, there would be no authority, even though there was a failure to perform all the required acts intended to provide such fund, and to subject the acts to a general liability. It would be ultra vires, and, in my judgment, the case in 14 Or. supra, could not be sustained. The right to subject the City to a general liability finds its authority in the general power conferred to make such improvements; as without it such improvements could only be authorized in the special mode prescribed, which would necessarily be exclusive, and could only be paid for out of the funds derived from local assessments. Unless, therefore, the City has the general power to make such improvements, the court could not subject it to a general liability, as it did in the case referred to, where the fund to pay for such improvements was to be derived from local assessments, which failed, by reason of neglect, to comply with the requirements of the charter. But, according to my construction of the charter, I understand the City has the general power expressly conferred to make such improvements, and to do all acts or things necessary to effect that object, as well as the special power to make such improvements, and to defray the expenses attending it by local assessments upon the abutting property; and when such special power has not been pursued by reason of neglect or omission of the city authorities to take the proper steps to create the fund to pay for the improvement, when the contract for such improvements has been fully performed on the part of the contractor, that the City may be subject to a general liability, because the improvement made, and of which the City has the benefit, was within the scope of its general powers, and for which the City could have provided and paid out of the general funds. It may be true that it imposes some hardship when an improvement is projected, the expenses of which are to be defrayed by local assessments, that all should be taxed for the failure of the city officers to do their duty; but it is a greater hardship that he who performs the labor or supplies the materials, or both, for making such improvements, and of which the City has the possession and benefit, should go without his pay, especially when the evil complained of may be remedied by procuring proper legislative authority to make a valid reassessment of the property in view of an assessment that is insufficient or defective, and thereby provide for reimbursement. Thayer, Ch. J., dissenting: I am unable to concur in the opinion of the majority of the court delivered herein. My dissent, however, is from the premises from which the opinion is deduced. The premises claimed are that the City of East Portland has, under its charter, general power to improve its streets, and defray the expenses thereof out of the general fund of the City. If this were so, then there would be no ground of disagreement between my learned associates and myself. But it seems to me that no one can carefully read the charter and arrive at such a conclusion. The charter does empower the common council of the City, among other things, "to improve the sidewalks, pavements, streets and parts of streets, within the limits of the City, making full or partial improvement thereof." Section 1, art. 6, Charter. If this section stood alone, it might warrant the assumption claimed, but the subsequent provisions of the charter point out the mode in which the power is to be exercised, which, under all rules of construction in such cases, becomes the measure of the power conferred. Section 2, same article of the Charter, provides as follows: When any improvements mentioned in the preceding section are to be made the council shall cause the recorder to give notice of the same by publishing a notice for fifteen days previous to the undertaking of such improvement," etc. "Such notice must specify with convenient certainty the street or part of street proposed to be improved, or of which the grades proposed to be established or altered, and the kind of improvement to be made." Section 3, same article, provides that, "within ten days from the final publication of such notice, the owners of a majority of the property adjacent to such street or part thereof, as the case may be, may make and file with the recorder a written remonstrance against the proposed improvement, grade or alteration thereof, and thereupon the same shall not then be further proceeded with or made." Section 4, same article, provides that "if no such remon strance as provided for in the preceding section be made, the council at its earliest convenience, within six months from the final publication of the notice mentioned in section 2, of this article, may establish the proposed grade or alteration thereof, or commence to make the proposed improvement, as herein provided." These several sections of the charter, taken together, show to my mind, beyond any doubt, that the common council of the City has no authority to improve any of the streets thereof, or to establish or alter the grade of any street, without causing the notice to be published as provided in said section 2; and then the proposed improvement of a street, or establishment or alteration of the grade of a street, may be defeated by remonstrance, as provided in said section 3. The claim by the majority members of the court, that publishing the notice and complying with the other conditions of the charter is only necessary where the cost of the improvement is made chargeable upon the property adjacent to the street, cannot be maintained. There is no language in the charter which warrants any such construction, nor will such a doctrine logically hold together. The requirement of publication of the notice applies the same to the proposed establishment or alteration of the grade of a street as it does to the improvement of a street, and the cost of the former is not chargeable upon adjacent property in any case. Section 30, same article, provides in express terms that "the cost of establishing or altering the grade of any street or part thereof shall be paid out of the general fund of the City." It follows, therefore, that if the improvement of a street could be made chargeable upon the general fund of the City, the publication of the required notice of the proposed improvement would be necessary in order to confer power upon the common council to undertake such improvement. Again, section 27, same article, provides when such notice may be dispensed with. It says: "The proceedings authorized by this article for the establishment or alteration of a grade, or the improvement of a street or a part thereof, may be taken and had without giving the notice prescribed in section 2 of this article, whenever the owner or owners of two thirds of the adjacent property shall in writing petition the council therefor." When the charter declares expressly in what cases the notice need not be given, ought this court to undertake to say that the notice need not be given in any other case? It will be an unfortunate period in civil affairs when the officers of a public corporation are accorded the right to bind the corporation except in the manner specifically pointed out by law. But the charter of the City of East Portland, I maintain, provides that the cost of the improvement of the streets within its limits shall be made chargeable upon the adjacent property, and that no part of it can rightfully be paid out of the general fund of the City, except in the establishment of the grade and one other special instance. Section 5 of said article 6 of the Charter provides as follows: "In case the notice be for the improvement of a street or part thereof, the council may proceed to ascertain and determine the probable cost of making such improvement, and assess upon each lot, or part thereof, liable therefor, its proportionate share of such costs. And, if the council shall adjudge that any such lot or part of lot would not be benefited that instrument, and hence its efforts in that direction were a nullity. Its acts were no more binding upon the City than upon the lot-owners whose lots abutted upon the street proposed to be improved. by the improvement in the full sum of the cost | it failed to comply with the requirements of of making the same upon the half of the street abutting upon such lot or part of lot, the council shall assess upon such lot or part of lot, as its proportionate share thereof, such sum only as it shall find [the] lot or part of lot to be benefited by such improvement.' Section 18, same article, provides: "Each lot or part thereof, within the limits of a proposed street improvement, shall be liable for the full costs of making the same upon the half of the street in front of and abutting upon it, and also for a proportionate share of the cost of improving the intersections of two of the streets bounding the block in which such lot or part thereof is situated, unless the council shall have determined that such lot or part thereof will not be benefited by such improvement in the full sum of such costs, in which case such lot or part thereof shall be liable for so much of said cost only as the council shall have found the same to be benefited thereby; and the further cost of making said improvement in excess of the benefits so found shall be paid from the general fund of the City." These two sections show unmistakably that the cost of the improvement of a street is to be borne by the adjacent lot-owners, except, where the council shall determine that a lot or part thereof will not be benefited by such improvement in the full sum of the costs of making the same upon the half of the street in front of and abutting upon it, then it shall only be liable for so much thereof as the council has determined that it was benefited by the improvement; "and the further cost of making said improvement, in excess of the benefits so found, shall be paid from the general fund of the City." It would be very remarkable, it seems to me, if the whole cost of a street improvement could be made chargeable against the general fund of the City, when the charter points out where a portion of it can be paid therefrom, and makes the lot-owners liable for the payment of the entire residue. The expression of one thing, in such cases, is generally supposed to be the exclusion of another. But again, section 29, same article, provides: "The common council is authorized to repair any improved street or part thereof whenever it deems expedient, and the cost of the same shall be paid out of the street repairing fund, such repairs to be made under the direction of the street commissioner, and paid for accordingly." The clear inference from this latter section is that the common council is not authorized to repair an unimproved street. Nor has the common council authority to improve a street which has been once improved. Section 28, art. 6, of the Charter, is decisive upon that point. Taking these several provisions of the charter together, it is apparent that the Legislature intended by the Act to provide a specific mode for the improvement of the streets of the City, and to designate the class of persons who should bear the main burden of it; and, having prescribed the manner in which it shall be done, no argument need be produced to prove that the common council of the City cannot pursue any other course. Nor did the common council attempt in this case to follow any other mode than that pointed out in the charter, but Newbery v. Fox, 37 Minn. 141, is a very similar case to this. There it seems, from the facts disclosed in the opinion, that the town council of Taylors Falls, a municipal corporation, entered into a contract with one Fox for the grading of a street; that Fox did the work in good faith, and was told by the members of the council before he did the work that he had a good and valid contract. But it appeared that the contract was entered into without any order having been first made requiring the owners of the real estate, or occupants of such real estate, in front or adjacent to where the improvement was made, to make or cause it to be made, or opportunity given them to make it. This failure upon the part of the town council was held fatal to the contract. The court there said (Dickinson, J.) that "not only was the party entering into this contract legally chargeable with notice that by the public charter the authority of the council was thus restricted, but the allegations in the complaint that the plaintiff warned the defendant that the contract was void before he commenced to perform it are admitted by the answer. The doctrine of ultra vires has, with good reason, being applied with greater strictness to municipal bodies than to private corporations, and, in general, a municipality is not estopped from denying the validity of a contract made by its officers, when there has been no authority for making such contract." It was claimed upon the rehearing that the contract attempted to be made on behalf of the City of East Portland, and the parties who undertook to make the improvement, although void as to the lot-owners, was good as between the City and the contractors, and the majority members of the court seem to sanction that theory. Such a view is altogether too artificial for my comprehension. How a single agreement can be valid and binding, and at the same time utterly void, is past my understanding. I am aware that different obligations may arise out of a general transaction which affects different parties, and that some of them may bind and others not; but how a proceeding instituted by the agents of a public corporation, acting under mere statutory authority, can bind the corporation, when it is irregular and void as to the parties mainly interested in the affair, and upon whom the statute casts the primary liability, I am unable to discover. I think it is a wholesome doctrine that parties who attempt to contract with such agents should be required to ascertain whether or not the agents are authorized to make the contract before proceeding to perform it. That doctrine had the approval of this court in Springfield Milling Co. v. Lane County, 5 Or. 265. The court there said: "This rule may sometimes work a hardship upon a contractor who, without having considered whether the law has been complied with or not, has performed labor or furnished material for a public corporation, and expects compensation therefor, the same as if it had been done or furnished for a private individual. But nevertheless the authorities hold that a contractor, no less than the officers of a municipal corporation when dealing in a matter expressly provided for by law, must see to it that the law is complied with. Where work is done without authority upon the streets of a city liability does not follow because the streets may be improved thereby or their use continued. Such continued use constitutes no such evidence of acceptance as to create a liability against the corporation." The financial condition of our cities is bad enough now; and, if their officers are allowed loose rein to engage in enterprises and create obligations against them without regard to restrictions as to the mode of procedure to be pursued, irretrievable bankruptcy and ruin will certainly follow. I think the judgment appealed from should be affirmed. ALABAMA SUPREME COURT. 66 pression has been made on the community touching the qualities of the man; but it is this resultant of conduct, and not conduct itself,— whether regard be had to a general course of life or to particular acts,—which may go to the jury in a given case to aid them in arriving at a just conclusion as to the fact, and in some instances the degree, of guilt. The law draws no inferences, nor permits the jury to indulge in speculations, as to guilt or innocence, in respect to the act charged, from the fact that the accused has or has not been guilty of other acts,except in certain cases, wholly foreign to the question of character; or that his walk in life has been exemplary or the reverse. And a witness to character cannot speak of particular acts, or even the course of conduct of the person inquired about, but is confined to a statement of general reputation in the neighborhood in which he lives. The rule applies with equal force to original and rebutting testimony. The issue is good or bad repute, and to this each party is confined. Similarly, the cross-examination of a character witness must be conducted within the limits of this inquiry. The Appellant, defendant below, was convicted on an indictment charging him with larceny from a tug-boat, under section 3789 of the Code. On the trial defendant introduced one Chand-cardinal rule applicable to cross-examination is ler, who testified that he knew the general character of the accused in the neighborhood in which he lived, and that it was very good.' This witness, on cross-examination, was asked by the solicitor whether he "didn't know that the defendant used to run away from home for weeks and months at a time, and his father had to send and bring him back," and replied: "Yes; he used to go off for a week or so at a time, but I used to tell his father where he was; and this is all I ever heard against him." The defendant objected to the interrogatory, and moved to exclude the answer, but both his objection and motion were overruled, and the evidence allowed to go to the jury. This action of the court was duly excepted to, and is now presented for our consideration. that while it may take a wider range in the case than was covered by the examination in chief, and even elicit facts not before in evidence, it must still “relate to facts in issue, or relevant, or deemed to be relevant, thereto." Stoudenmeier v. Williamson, 29 Ala. 558; 2 Brick. Dig, 549, § 125. It is manifest that where good or bad repute is the issue, and this issue is incapable of being solved, either way, by evidence of conduct or particular acts, such evidence is wholly beyond the inquiry, and irrelevant. The only exception to the general rule last stated, which bears any relation to the matter we are considering, is that irrelevant questions, which tend to test the accuracy, veracity or credibility of the witness, may sometimes be asked on cross-exam The doctrine is too familiar to require sup-ination. port, from a citation of texts or adjudged cases, It is inconceivable that the accuracy or credthat character, good or bad, can only be estab-ibility of a witness, who has testified to a fact lished by evidence of general reputation. The which does not in any degree rest in evidence issue involved, when it is sought to influence of conduct, can be impeached by any sort or the verdict of jurors by inviting their consid-amount of proof as to conduct. There is a class eration of the good character of the defendant, of questions which are admissible only on crossembraces no element of conduct, but is met and filled solely by the repute in which the person inquired about is held in the community in which he lives. Conduct doubtless is, in all cases, to a greater or less degree the basis of reputation, the efficient cause of whatever im examination, and are competent solely under this exception; but they raise no inquiry as to the conduct of the person whose character is in issue. Since it is the opinions of a man's neighbors which constitute the character which may become the subject of judicial investiga |