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have expired, which may be taken as only prescribing for this purpose a minimum limit of time. It is assumed by the statute that the company's property as a whole is of such a character that it should be conveyed by deed, and if having been granted general authority to make and receive such a conveyance, an agreement in writing had been executed by the parties as between vendor and purchaser, which embodied similar terms of sale, a court of equity in its discretion could decree specific performance on a bill brought by either of them. Old Colony Railroad Corp. v. Evans, 6 Gray, 25, 30, 66 Am. Dec. 394; Thaxter v. Sprague, 159 Mass. 397, 34 N. E. 541. The doctrine that where a party can be fully compensated by damages he may be remitted to his suit at law has no applica tion, for if equitable relief is denied there is no other adequate mode of redress. Roberts v. Cambridge, 164 Mass. 176, 181, 41 N. E. 230; s. c., 170 Mass. 199, 49 N. E. 84. See Jones v. Newhall, 115 Mass. 244, 288, 15 Am. Rep. 97. The right respectively to sell, and to buy in the manner prescribed are specifically conferred by the statute, for otherwise Rev. Laws, c. 25, § 31, would have to be followed, or further special legislation obtained. Because the company has elected to sell, the town cannot proceed to build, and the delay and uncertainty caused from litigation in various forms to ascertain the respective rights of the parties would be deemed sufficient to relieve the company from the forfeiture found in the last sentence of section 12, or it may be said that the town by bringing its bill has waived this provision. To deny appropriate relief would enable the company to take advantage of a refusal to perform, after its reasons for nonperformance are shown to be untenable, and also, when performance only became obligatory and essential by reason of its initiatory step. The elements of compensation under section 13, are not to be determined or the amount estimated until the title passes, and if the board of water commissioners and the company agree upon the price, and this is satisfactory to the town, no further consideration of either will be required, but if they disagree, or the town rejects their agreement, resort may be had to this court, and until thus presented, any consideration of the important questions which then may arise would be pre
The bill of the company must be dismissed, but as a receiver has been appointed who has administered the property during the litigation, the terms of the decree must be settled before a single justice. A decree for the cancellation of the deed, and for specific performance of the contract made under St. 1905, p. 492, c. 477, § 12, is to be entered in favor of the town, though as to the individual defendants the decree from which it took an appeal is affirmed with costs.
(192 Mass. 443)
ROBBINS v. HORGAN et al. (Supreme Judicial Court of Massachusetts. Middlesex. June 21, 1906.) PRINCIPAL AND AGENT-JOINT AGENTS-INDIVIDUAL POWERS.
Where nonresident heirs gave powers of attorney to a nonresident and a resident jointly, pursuant to which the resident agent procured the appointment of an administrator, he had no authority to receive from the administrator, without the consent of the other agent, the sums due the heirs, and the administrator was not entitled to credit for a payment to the resident agent alone.
Exceptions from Supreme Judicial Court, Middlesex County.
Judicial settlement of the account of Frederick D. Robbins, as administrator of the estate of Joseph H. Horgan, deceased. The probate court having allowed said account, appeals were taken to the Supreme Judicial Court. From a decree allowing some and disallowing other items of the administrator's account, the administrator brings exceptions. Exceptions overruled.
All the heirs and next of kin of the deceased lived in Ireland. One Walker obtained the addresses of the heirs by advertising and retained one Geo. A. Smythe to take charge of the case, it being agreed that Smythe and Walker should have 35 per cent. of the estate for their services and divide the money between them. All the heirs except Ellen Horgan signed powers of attorney giving Walker and Smythe jointly full power to act for them in settling the estate. Smythe procured the appointment of Robbins, a clerk in his office, as administrator. Robbins paid over the money received from the estate to Smythe, who absconded with it. Robbins simply did as Smythe told him to do and supposed he had a right to pay the money to Smythe. In the Supreme Judicial Court the single justice allowed some of the items in the account and disallowed others, and the administrator excepted.
Stephen H Tyng and Thos. J. Kenney, for administrator. Wm. H. H. Tuttle and F. L. Hanson, for respondents.
HAMMOND, J. The crucial question is: Was the payment to Smythe the agent a payment to his principals? Smythe's only authority to receive the money was under the power of attorney. Under that power he was a joint agent with Walker. They were private agents as distinguished from public agents. They were not partners in business, nor did they have any interest in the fund to
which their principals were entitled. They were mere agents having only a bare authority and both constituted one agent and neither was a complete agent by himself. In the language of Coke they "had but a mere and bare authority and they both [did] in law make but one attorney." Co. Litt. 49 b. The powers of the agency were
conferred upon neither acting alone and without the consent of the other, but only upon both acting together. The logical resuit of such a situation is that the act of both, or at least the consent of both to the act of one, is essential to the valid exercise of any power of the agency; and such is the law. Co. Litt., ubi supra; Towne v. Jaquith, 6 Mass. 46, 4 Am. Dec. 84; Copeland v. Mercantile Ins. Co., 6 Pick. 198; 2 Kent, Com. 633, and cases cited; Story, Agency (9th Ed.) § 42, and cases therein cited. See, also for collection of some of the authorities, 1 Am. & Eng. Encyc. of Law (2d Ed.) p. 1057. The payments were made to Smythe alone. He appropriated the money to his own use and absconded. The court found that the blank power as originally drawn by Smythe and sent to Walker, the United States consul at Queenstown, contained only the name of the former as the proposed agent, but that, before it was executed, Walker's name was inserted "because of doubts entertained by Walker and his secretary, Piatt, as to the financial responsibility of Smythe." He further found that Walker had no knowledge that the payments were being made to Smythe; that he, Walker, "supposed * that Smythe would attend to such legal matters as required to be attended to here, but that any money that might be collected or realized would be sent to him for distribution amongst the heirs"; also that Walker never consented that Smythe should receive the money without authority from him, and never gave him any such authority and never gave to the administrator any authority to pay or to transfer to Smythe the property. The principals never have ratified personally the payment to Smythe. They never have ratified it by the act of their agents under the power, because only one of the joint agents has consented to it. The lack of the consent of the other is fatal to the validity of the act as an exercise of agency under the power.
It is urged by the accountant that under the circumstances of this case the fair interpretation of the power is that Smythe who resided here, where the money was, was to do all things here necessary and proper to collect and receive it, and that he was to send it to Walker in Ireland, where the principals resided, for the simple purpose of distribution. But we cannot so interpret the power. It was perfectly easy for the accountant to keep the money until he received the consent of both agents, or of the principals, as to what he should do with it. All the circumstances indicate that the principals never intended that Smythe alone should receive the money without at least the consent of Walker, so that the latter might be held accountable as though both had received it. They looked to Walker for safety and not alone or chiefly to Smythe. There is nothing in the circumstances of this case to control the general principle.
Nor does the case come within certain commercial exceptions where the general rule has yielded for the benefit of trade, or to meet the supposed necessities in contracts made by one of several joint owners of ships, and in cases of sales made by one of two factors of goods consigned to them for sale. See Hawley v. Keeler, 53 N. Y. 114. The case is also clearly distinguishable from cases like Heard v. Lodge, 20 Pick. 53, 32 Am. Dec. 197, upon which the accountant relies. Nor is the fact that Smythe appeared as attorney for the principals, to consent to the appointment of the accountant as administrator of importance. Exceptions overruled.
(192 Mass. 440)
TEASDALE et al. v. NEWELL & SNOWLING CONST. CO.
(Supreme Judicial Court of Massachusetts. Norfolk. June 21, 1906.)
- AUTHORITY — LI
HEALTH LOCAL BOARD CENSES-NUISANCES-STABLES. Under St. 1893, p. 1135, c. 407, St 1894, p. 11, c. 4, St. 1894, p. 283, c. 288, and St. 1894, p. 575, c. 483, giving to the metropolitan park commissioners complete control of the parks, boulevards, etc., of the city, as agents of the state, where contractors with such commissioners for the construction of a boulevard found it necessary to construct a stable thereon in which to stable horses used in the construction, they were entitled to temporarily maintain and use such stable without a license from the board of health of the city, as required by Rev. Laws, c. 102, § 69.
Appeal from Superior Court, Norfolk County: Franklin G. Fessenden, Judge.
Bill by William H. Teasdale and others, as members of the board of health of the city of Quincy, to restrain the Newell & Snowling Construction Company from occupying and using a certain stable constructed on a boulevard in such city in which to stable horses employed in constructing such boulevard without a license from the board of health. A final decree was rendered dismissing the bill, from which complaints appeal. Affirmed.
A. E. Pillsbury and G. E. Adams, for appellants. Gargan, Keating & Brackett, for appellee.
HAMMOND, J. Inasmuch as the ground on which the bill was dismissed is not mentioned, the plaintiffs have the burden of maintaining that upon the facts which appear they have a right to a decree in their favor. Donovan v. McCarty, 155 Mass. 543, 30 N. E. 221. Moreover, since the evi dence at the hearing was. substantially all oral, the findings of the trial court will not be disturbed unless plainly wrong. Dickinson v. Todd, 172 Mass. 183, 51 N. E. 976.
We have examined the evidence, and in view of the locality of the work, the number of horses employed, the attempts made by the respondent to secure stable room, the action of the board of health upon the pe
tition made to them and the apparent attitude of the board upon the whole question of stable room, the propriety of doing the work with horses and the saving thus made in expense when compared with other methods of doing the work, a reasonable and proper view which the trial court could have taken of the evidence was that the method adopted and carried out to procure stable room was reasonably necessary for the prosecution of the work. At least such a view of the evidence could not be set aside as clearly wrong, and it is to be presumed in support of the decree that the trial court took that view. In the same manner it is to be presumed that the park commissioners considered it reasonably necessary that the stable should be erected upon the park land during the work to be done under the contract, and that under a vote of the board it was erected upon a spot selected by the engineer, and that this act is sanctioned by the commissioners.
! Here then is a case where the commissioners have made a contract for the proper preparation of land taken for park purposes, and it is reasonably necessary to the performance of that contract that a stable should be placed temporarily upon the unfinished park, and such a stable has been erected under a vote of the commissioners and by their sanction.
Rev. Laws, c. 102, § 69, reads thus: "No person shall erect, occupy or use for a stable any building in the city whose population exceeds twenty-five thousand unless such use is licensed by the board of health of said city, and, in such case, only to the extent so licensed." Quincy, within whose limits the stable stands, is a city of more than 25,000 inhabitants, and the erection and use of the stable has not been licensed by the board of health of that city.
The question is whether the section above quoted is applicable to this stable. The statutes under which the metropolitan park commissioners act contain elaborate provision for the establishment of parks or "open spaces for exercise and recreation." 1893, p. 1135, c. 407; St. 1894, p. 283, c. 288: St. 1894, p. 575, c. 483. The commissioners are authorized to acquire, by right of eminent domain or otherwise, and to “maintain and make available" such open spaces for such purposes, to take charge of the same, to make rules and regulations for the government and use of the same, and further, in general to "do all the acts needful for the proper execution of the powers and duties granted to and imposed upon them." St. 1894, p. 11, c. 4. In a word, these parks are placed under the control of these commissioners acting as the agents. of the state in exercising the authority of the sovereign over its own property. As such agents, performing the duty of making available for park purposes the land in question, it is found reasonably necessary for them to
erect upon it and use this stable. Such an act must be regarded as needful in the proper execution of the powers which the state may exercise over its own property; and the general law made for the regulation of citizens must be held subordinate to this special statute regulating the use of the property of the state unless there is express provision to the contrary. It is not to be presumed that the Legislature intended to give to the local licensing board the authority to thwart the reasonably necessary efforts of the park commissioners to perform their duty as agents of the state.
Within the meaning of section 2966-18, Rev. St. 1906, the chairman and secretary of a nominating convention are the "proper officers" to execute certificates of nominations made by such convention.
[Ed. Note. For cases in point, see vol. 18, Cent. Dig. Elections, § 125.]
2. SAME-POLITICAL CONVENTIONS-DUTIES OF SECRETARY.
A person who acts as secretary of two rival conventions may be compelled by mandamus to execute certificates of nomination made by each convention, in order that rival candidates may present their claims for determination by the election board named in section 2966-23, Rev. St. 1906.
3. MANDAMUS-RIVAL POLITICAL CONVENTIONS-IDENTICAL SECRETARY-DUTY-MAKING CERTIFICATE-SCOPE OF INQUIRY.
Upon an application of this character the court will consider only questions relating to the relator's right to such certificate of nomination, leaving all questions involved in the validity of the claims of rival candidates to be the nominee to be determined by said election board.
[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, §§ 381-383.]
(Syllabus by the Court.)
Application by the State, on relation of one Milner, for writ of mandamus to one Jones, secretary of the Republican convention. Writ allowed.
Harry W. Miller and Noah J. Dever, for relator. A. R. Johnson, S. L. Patterson, R. U. Wilson, and George M. Osborn, for defendants.
SHAUCK, C. J. On the 31st day of May, 1906, the Republicans of the judicial subdivision named in the above title, which is composed of the counties of Adams, Lawrence, Jackson, and Scioto, held two delegate conventions in the courthouse in the city of Portsmouth for the purpose of nominating two candidates for judge of the court of common pleas. The two conventions, though held upon the same day, were not so precisely synchronized as to prevent the defendant's acting as secretary of both
place the relator in his proper attitude before the election officers named in the section of the statute referred to, without any decision or intimation from this court upon any question which will be involved in the determination of the question which of the two candidates was in fact and in law nominated.
The writ will be allowed.
conventions. The convention which acted | sought will have no other effect than to first in point of time, by the usual modes of parliamentary proceeding, declared the relator nominated as one of said candidates. The other convention declared in his stead the nomination of Edward C. Corns. The pleadings and briefs invite us to the consideration of many questions which under the statutes regulating the subject are not now to be considered by us, but under section 2966-23 of the Revised Statutes of 1906 are to be considered and determined by the board of election officers designated in that section. Since those facts are not to be considered by us, it will not be helpful to state them. It may be conceded that they involve questions upon which the validity of the nomination depends and whose decision must determine which of the rival candidates is entitled to a place upon the blanket ballot for the election next November.
The suit of the relator is to compel the defendant to sign a certificate of the action of the convention which declared his nomination. This to the end that he may have a standing before the election officers designated in the section referred to, in order that they may determine, in the exercise of the power conferred upon them by that section, which of the two candidates was nominated. We consider none of the facts which counsel present for our consideration, except those which are involved in the relator's right to that standing. Those facts are: First, that the statute enjoins the duty of making the certificate upon the proper officers. of the convention without designating who they are; and, second, that the defendant, having already given a certificate of the nomination of Mr. Corns by the second convention, is now functus officio.
As to the first of these objections, it seems to be sufficient to say that the defendant regarded himself as the proper officer of the second convention so as to be bound under the statute to make the certificate of the nomination of the candidate in whose favor it declared. His conclusion in that regard rests upon so much reason that we do not doubt it is broad enough to cover his relation to the first convention. the second fact alleged, whatever there may be of personal inconsistency in the attitude in which the defendant has permitted himself to be placed by acting as secretary of the two rival conventions, there is no official incompatibility between his action in certifying that one convention nominated Mr. Corns, and his proposed certificate that the other covention nominated the relator. The determination of the question which of these rival candidates was really nominated is not now for this court, and certainly it is not and never was for the defendant, to determine. The writ
PRICE, CREW, SUMMERS, SPEAR, and DAVIS, JJ., concur.
(74 Oh. St. 359) LOUISVILLE & N. R. CO. v. GLOBE SOAP CO.
(Supreme Court of Ohio. June 12, 1906.) ERROR, WRIT OF-DISMISSAL WITHOUT PREJUDICE-SECOND WRIT.
A petition in error filed in the Supreme Court for the reversal of a judgment of the circuit court, and by leave of the court voluntarily dismissed without prejudice because of the plaintiff's failure to file within 60 days a printed copy of the record to be reviewed, is not a bar to the prosecution of another petition in error for the reversal of the same judgment.
[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and. Error, §§ 48-52.]
(Syllabus by the Court.)
Error to Circuit Court, Hamilton County. Action between the Louisville & Nashville Railroad Company and the Globe Soap Company. From the judgment, the Louisville & Nashville Railroad Company brings error. Motion to dismiss overruled.
On January 10, 1906, the circuit court rendered a final judgment against the plaintiff in error and in favor of the defendant in error. On February 21st, the plaintiff in error filed a petition in error in this court for the reversal of said judgment. On April 27th, the following entry was made here: "Now comes the plaintiff in error herein and by leave of the court dismisses its petition in error herein without prejudice." This course was taken by the plaintiff in error because of its failure to file the printed record within 60 days from the filing of the petition in error, 4 months from the date of the judgment of the circuit court, the time limited for the filing of a petition in error, not having yet expired. On April 30, 1906, the present petition in error was filed, and the defendant now moves to dismiss it because of the filing of the former petition in error for the reversal of the same judgment and the action which was taken thereon.
Ellis G. Kinkead, H. Kenneth Rogers, and Challen B. Ellis, for plaintiff in error. Kittredge & Wilby and Harry L. Gordon, for defendant in error.
SHAUCK, C. J. (after stating the facts). The motion is supposed to be justified by section 6711, Rev. St. 1906, which requires
the printing of the record which is to be reviewed or the depositing with the clerk of sufficient money to pay for such printing, and provides that, if the plaintiff in error "fail for sixty days after filing the petition in error to file such printed record or make such deposit, the petition in error shall be dismissed, unless the court, on good cause shown, extend the time or dispense with such printing." But by the terms of the section it can have no application to the petition whose dismissal is sought, for since the filing of that petition there has been no failure to file the printed record within the time required. The petition which was not followed by the filing of the printed record within the time limited was dismissed by the voluntary act of the plaintiff in error and by leave of the court. The present petition having been filed within four months of the rendition of the judgment whose reversal is sought, and that having been followed within 60 days by the filing of the printed record as required by the section quoted, the motion must be overruled unless we conclude either that the section affects the limitation on the proceeding in error or that it gives to the filing of the former petition and the action which was taken with respect to it the effect of an adjudication upon the errors assigned in the present petition.
The section contains no language suggestive of an intention to give it either effect. It leaves the limitation of the proceeding in error wholly to section 6723, Rev. St. 1906, which relates exclusively to that subject, and provides that it shall be commenced "within four months after the rendition of the judgment or the making of the final order complained of." There is not in either section a provision giving any effect whatever to the filing and voluntary dismissal of a petition in error before the time limited for the commencement of the proceeding. The question is therefore to be determined by the rule with which repeated decisions have made the bar of the state familiar, viz., that proceedings in error, in the absence of provisions especially relating to them, are governed analogically by the rules and principles applicable to original actions. The question presented by the motion before us could not have been determined by the entry formerly made, for the present petition in error had not yet been filed. The only question which could then have been raised upon the record was whether the former petition should have been dismissed. But really nothing was decided. The record shows that the dismissal of the former petition was without prejudice, and as the voluntary act of the party it was necessarily so. If a motion to dismiss the former petition had been made and considered, the court might then have exercised the discretion clearly conferred by the section quoted to extend the time for filing the printed record, or it might have dispensed with it
entirely. None of the elements of a former adjudication appears.
Railroad Company v. Belt, 36 Ohio St. 93, is cited as an authority in support of the motion. The case is so scantily reported that the grounds of the decision do not certainly appear. It does, however, appear that in that case a motion to dismiss the former petition had been made and a counter motion had been made by the defendant in error for further time in which to file the printed record. These motions were contested. The latter motion was overruled and the former sustained, and that action was held to require the dismissal of a petition subsequently filed for the reversal of the same judgment. Whether the refusal to extend the time for filing the printed record was because the proceeding was found to be without merit does not appear in the report. The case suggests no reason why the present petition in error should be dismissed, and we need not consider whether it justifies the action there taken.
PRICE, SUMMERS, and DAVIS, JJ.,
(74 Oh. St. 363) STATE ex rel. ELLIS, Atty. Gen., v. MUL HERN, Sheriff.
(Supreme Court of Ohio. June 26, 1906.) 1. STATUTES-CONSTRUCTION.
In giving construction to a legislative act the position in the order of precedence of the several provisions will be given due consideration, but there is no arbitrary rule which requires that a provision found in the later part of the act shall necessarily be given an effect to repeal conflicting provisions in the earlier part of the act.
[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes. § 284.]
2. SAME-CONFLICTING PROVISIONS.
Where such conflicting provisions are irreconcilable, the court may, if the subject-matter is of minor interest, hold the whole act to be inoperative. But where the matter is of vital interest, a court will seek such construction as will make the act enforceable, and in doing so will be governed by the apparent purpose and obvious policy and intent of the General Assembly, as gathered from the whole act, even though it results in a disregard of the later provision. [Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 282-288.]
3. COUNTIES-COUNTY COMMISSIONERS-TERMS OF OFFICE.
The provision in the second section of the act passed April 2, 1906 (98 Ohio Laws, p. 271) entitled "An act to conform the terms of various state and county officers to the constitutional provisions for biennial elections," which requires that the term of office of county commissioners shall commence on the 1st day of December next after their election is in irreconcilable conflict with the provision of the first section which ex tends the terms of certain county commissioners to the third Monday in September of the oddnumbered years next succeeding the time when they would otherwise expire, and as both cannot be enforced, and as the last above-stated provision more nearly conforms to the obvious