statement in the office of the clerk of the quarter sessions before incurring the debt; that the placing of a part of the proceeds of the three-mill tax in the appropriation for contingencies was improper and illegal, and the borough should be restrained from applying any part of this to payment of other than the interest and bonded indebtedness. Accordingly, as to this last conclusion, the borough was restrained from making any other use of the three-mill tax, but as to all other complaints the bill was dismissed. From this decree the plaintiffs appeal, alleging error in finding (1) that the levy of the threemill tax was legal; (2) in finding that the constitutional limit of indebtedness was not exceeded by such levy. Other errors, embraced in the third and fourth general assignments, are brought to our attention in the argument, but it seems to us the case turns upon the first two.

The payment of the interest and part of the principal annually of the bonded debt was not voluntarily assumed by virtue of any corporate action of the new borough. It was born with this burden, and there was no escape from it when it chose to adopt an independent existence. It was incorporated under the act of 1887, the first section of which provides: "It shall be the duty of the court, before entering the decree, to appoint❘ an auditor who shall ascertain the existing liabilities, * * * and shall report the same to the said court, with the form of a decree adjusting the liabilities *** for all indebtedness." The auditor was appointed, and made report that 4th March, 1889 (the date of the decree), the total indebtedness of Verona borough was $23,376.75, and that this should be adjusted by imposing upon Oakmont, 58.82 per cent., or $13,680.08; and this adjustment was settled by the decree then made. It was a somewhat large indebtedness for a new borough to start with, one with an assessed valuation at that date of about $1,000,000. In addition to the interest on the whole, and the installments of the principal.-$1,000 falling due on the 1st of May each year,-the new borough must make provision for the expenses of a new municipal organization and the annual current expenses. If it had not started in life with a heavy debt, annual payments on which, from the very nature of the contract, admitted of no postponement, the new organization might very well have been left to take care of itself, without peremptory directions as to its duty concerning the bonded debt from the court; or, if the debt had been insignificant in amount, the court could have assumed it might easily be discharged from the ordinary annual revenues. But the legislature knew very well that, as to such, a debt, the contract with the original bondholder must not be violated, no matter into how many fractions the original municipality might be severed; so the same section of the act of 1887 enacts that the court "may v.30A.no.20-61

order and direct a special tax to be levied upon the property * so detached from said borough, for the payment of so much of the indebtedness as may be awarded against it, and direct how the same shall be assessed and collected." Obviously, the legislature intended that if, by the adjustment of the indebtedness of the two boroughs, there was any considerable burden imposed upon the new, the court should, by proper decree at the date of the incorporation, fix the rate of tax to be levied to meet it. Until that be done, no certain provision is made for responding to the legal demand which the old borough may make upon it; while the creditor's obligation of the old borough fixes his legal demand upon it. We do not think, in view of the facts here, the court of quarter sessions, in 1889, made as full a decree as the law and facts warranted; and therefore the authority to councils to levy a special three-mill tax was wanting. This was doubtless the neglect of counsel in framing the decree. Without this direction, however, any payments made on the indebtedness would have to be made out of the fund raised by taxation for general purposes. A special tax to meet a part of the indebtedness of the old borough must be preceded by the decree of the court. There is no authority in councils to carry out that part of the act without such decree. The court of quarter sessions must define to what extent and within what limits that special power shall be exercised. Statutes delegating the taxing power are always strictly construed.

It may be conceded, as is argued by appellees, that the act of 1874 was an enabling act, and enlarged the limit of taxation prescribed by the act of 1851. But this is not to the point. The exercise of the power to accomplish the particular end sought here must follow the method pointed out by the act of 1887. The attempt is in addition to the tax for current expenses,-to levy a special tax for a special purpose. The debt was created by Verona borough, under the act of 1874. Part of it became a debt of Oakmont, not by contract with it as a municipal organization, under the act of 1874, but by reason of a legal obligation to pay under the operation of the act of 1887. Being subject generally as a borough to the act of 1874, it may, by agreement with the old borough, and by the consent of creditors, take up the Verona bonds, and issue them as an obligation of its own: Then provision for the interest and principal can be made, under the act of 1874. But, as it stands, it is a debt of a special character created by the act of 1887; and if paid, under the provisions of that act, by a special tax, the method pointed out by that act must be followed. The suggestion that the decree was not made because not necessary is negatived by the fact that the special tax was laid, and counsels, in their answer to plaintiffs' bill, aver it was necessary.

The attitude of the parties to this contention suggests to our minds that it would never have arisen if this decree had been comprehensive enough, when made, to have included the power to councils to levy a special tax to meet Oakmont's share of the old indebtedness. So far as since the organization such tax has been levied, collected, and paid in discharge of the indebtedness, without decree, the borough having paid only what was justly owing, as the court would have decreed, neither it nor its officers can be disturbed by future complaints or litigation on part of taxpayers. As to the tax now in dispute, levied in June, 1893, the court of quarter sessions can amend its decree nunc pro tune; can date the amendment to take effect as of the 4th March, 1889; and thus legalize the ordinance of 2d of June, 1893. Especially should this be done when the court of common pleas, after full hearing, has found that this special tax was a reasonable and proper levy under the circumstances.

As to the argument that the rate and amount of tax were excessive, that may be, but it is not manifestly true. As the money raised cannot, under the decree of the common pleas, be used for any purpose other than for the payment of interest and principal on the bonded indebtedness, no serious injury can result to the taxpayers from its collection.

The averment that, by the contract for the electric light, the indebtedness will exceed 2 per cent. of the last assessed valuation of the property of the borough, it is unnecessary for us to follow the close computations of counsel for appellants, which, as he argues, demonstrate that the indebtedness incurred by the electric light contract is extravagant, and exceeds the constitutional limit two or three hundred dollars. It was within the discretion of the council to procure a better light for their streets, and pay for the same such price as in their judgment was reasonable. We cannot review that discretion. Their action is that of the people of the borough, for they are their representatives. It was done in good faith, to promote the comfort and convenience of the citizens, for they so aver in their answer, and there is no denial. annual sum, to be paid monthly, for lighting the streets for a limited term, is not the incurring of a "new indebtedness," within the meaning of the constitution or of the act of 1874; and there is no evidence that this contract was framed to evade the inhibitions of either. The borough binds itself to pay $133.33 per month for lighting the streets. This was a current expense, the same as if it had rented a council chamber for a fixed term of years, at a monthly rental. The amount of the annual payment to be made for the bonded debt was as already indicated. There it was, not in any reasonable sense of the words as used in the constitution, the incurring of an indebtedness to the

An

amount of the aggregate monthly installments for the seven years. And therefore, under the authority of City of Erie's Appeal, 91 Pa. St. 403, the contract is not forbidden. That case is here cited as authority by counsel on both sides, and decides: "If the contracts and engagements of municipal corporations do not overreach their current revenues, no objections can be lawfully made to them, however great the indebtedness of such municipality may be; for in such case their engagements do not extend beyond their present means of payment, and so no debt is created."

There is nothing of merit in the remaining suggestions of error. The decree of the court below is affirmed, except in this particular: It is directed that an injunction issue from said court restraining defendants from proceeding to collect the three-mill tax levied by ordinance of June 2, 1893, for purpose of liquidating the maturing interest and principal of the bonded indebtedness of said borough, until by amendment or supplement to its decree of 4th of March, 1889, the court of quarter sessions of the county of Allegheny doth order and direct a special tax to be levied upon the property of the borough of Oakmont, detached from the borough of Verona, for the payment of so much of the indebtedness of the borough of Verona as was awarded against the borough of Oakmont, and doth direct how the same shall be assessed and collected. Further, when the certificate of the court of quarter sessions be filed in the court of common pleas showing that the decree of said court of the 4th of March, 1889, has been amended as herein indicated, then the injunction shall be forthwith dissolved.

McTWIGGAN et al. v. HUNTER et al. (Supreme Court of Rhode Island.

TAXATION

1895.)

G

Jan. 24,

NOTICE OF ASSESSMENT · RELIEF IN
EQUITY.

1. When notice of an assessment is not given, as required by Pub. St. c. 43, § 6, for three weeks next preceding the assessors' meeting, the assessment is invalid, said section being mandatory.

2. Where the assessors intentionally omitted and neglected to assess property of a certain corporation liable to taxation, although such omission did not increase the rate of taxation on other property owners for that year, the assessment was illegal under Const. art. 1, § 2, which provides for uniform taxation.

3. When a taxpayer, suing in his own behalf, attacks an assessment for an illegality extending to the whole tax and its assessment on every person taxed, equity will take jurisdic tion, although such complaining taxpayer has an adequate remedy at law.

Bill by William H. McTwiggan and others against George F. Hunter and others. Heard on demurrer to bill. Overruled.

Bassett & Mitchell, for complainants. E. P. Allen and Cooke & Angell, for respondents.

MATTESON, C. J. This is a bill to enjoin the collection of a tax. It alleges that the assessors gave no notice of the time and place of their meeting to make the assessment by posting notices in three public places in the town for three weeks next preceding the time of meeting, and by advertising the same in some public newspaper published in the town for the same space of time, but that, on the contrary, the assessors before assessing the tax wholly failed to give such notice of the time and place of their meeting. This is an allegation that the assessors did not comply with the requirement of Pub. St. R. I. c. 43, § 6. Proceedings for the assessment of a tax are quasi judicial. Hence notice is essential to give validity to an assessment, and the statutory requirement as to notice is to be regarded as mandatory. Cooley, Tax'n (20 Ed.) pp. 285-288, 363-366, and cases cited. The bill also alleges that in the assessment the assessors intentionally omitted, from the list of ratable property in the town assessed by them, the property of the Grosvenordale Company, that corporation at the time of the assessment and prior thereto owning valuable property in the town subject to and liable to taxation; and that the assessors, though well knowing these facts, willfully and intentionally neglected to assess the property, and willfully, intentionally, and illegally exempted the corporation from the tax and assessment. Taking this allegation to be true, as on demurrer we must, we are of the opinion that the assessment was clearly illegal; for, as argued by the complainants, if the assessors may omit from the assessment, and thereby exempt, the property of one individual or corporation from the tax, they may another, and so on, until half of the ratable property in the town is exempted from taxation, and may thereby subject the other half to the whole burden of taxation for the public needs. This would clearly be contrary to the constitutional provision that the public burdens ought to be fairly distributed. Const. R. I. art. 1, § 2. It is urged that the vote of the town under which the assessment was made was that a tax at a certain rate be levied on the ratable property in the town, and, consequently, that the complainants are not injured, because the present assessment on their property is no greater by reason of the exemption of the property of the Grosvenordale Company. Though this may be true of the assessment for the present year, if a portion of the ratable property in the town is exempted from taxation, the burden must necessarily fall more heavily on the other ratable property in the town for the next and subsequent years.

The point is taken that the demurrer should be sustained because the complainants have an adequate remedy at law. While it is true that equity will not enjoin the collection of a tax at the suit of an in

dividual taxpayer on the ground of illegality, when the illegality affects him alone, but will leave him to his remedy at law (Greene v. Mumford, 5 R. I. 472), yet when the ille- \ gality extends to the whole tax, so that the question involved is the validity of the whole tax and its assessment on every person taxed, equity may properly take jurisdiction at the suit of one or more taxpayers, suing in behalf of all the taxpayers as well as in his or their own behalf; since the rights of all persons interested may be more conveniently and speedily determined by its decree in one suit than by leaving them to work out their rights by individual suits, and a multiplicity of suits will thereby be avoid-j ed. To this effect is a dictum in Sherman v. Benford, 10 R. I. 559, and the doctrine is supported by a preponderance of authority. The question is so ably and exhaustively discussed by Judge Green in Williams v. County Court, 26 W. Va. 488, in which the conflicting cases are collected and reviewed, that further citation of authority seems superfluous. The demurrer is overruled.

GREENE v. JACKSON BANK et al. (Supreme Court of Rhode Island. Jan. 24, 1895.)

BANKS-LIEN ON COLLECTIONS-CLAIM AGAINST

INSOLVENT.

1. Where, at the time of making an assignment, the insolvent was indebted to a bank which had for collection a note belonging to him, the bank is entitled to the proceeds of the note as against the assignee.

2. Where the dividend paid by the estate, in addition to the sum realized by a creditor from collaterals held by him, is not sufficient to pay the claim in full, the amount of the collaterals should not be deducted before proving his claim.

Action by Thomas C. Greene, assignee and receiver, against the Jackson Bank and others. Certain questions were submitted to the supreme court for instructions thereon.

Thomas C. Greene, in pro. per. William G. Roelker, Bassett & Mitchell, and H. W. Kimball, for respondents.

MATTESON, C. J. This is a bill in the nature of a bill of interpleader and for instructions. The first question is whether the complainant, as receiver under a certain deed of assignment for the benefit of creditors, made by Amos M. Warner, late of Providence, de- ◄ ceased, dated February 20, 1888, or the respondent the Jackson Bank is entitled to $6,924.53, which sum is one-half of the amount of a dividend by the trustees under a trust deed for the benefit of creditors made by William Barstow on certain promissory notes made or indorsed by Barstow. Warner, at the time of making the assignment, owned one-half of these notes. The case shows that these notes on which the dividend accrued had been left, prior to the assignment, with the bank for collection in the usual course of business.

ALLEN et ux. v. KEILLY.

(Supreme Court of Rhode Island. Feb. 11, 1893.)

EJECTION OF TENANT-SUIT AGAINST LANDLORDJUSTIFICATION-ILLEGALITY OF LEASE.

1. Pub. St. c. 80, § 4, providing that the use of the premises by the tenant for the illegal sale of liquor shall annul the lease without any act of the owner, who may enter the premises without process, does not justify a lessor, who agreed that if his lessee would allow him to use one room of the premises on Sundays for the sale of liquor, she might occupy the premises rent free, in ejecting the person put in charge of the premises by the lessee.

2. Although a married woman cannot bind herself by contract, she has a right to have a servant in her employ.

3. In an action of trespass for assault and battery in ejecting plaintiff from leased premises in charge of which she was placed by defendant's lessee, plaintiff need not show that she was the lessee's servant,-it being sufficient that she was in charge of the leased premises by the lessee's authority.

Action by John Allen and wife against Owen Keilly. There was a verdict for plaintiffs and defendant petitions for a new trial. Denied.

John N. Brennan, for plaintiffs. John Palmer and George J. West, for defendant.

PER CURIAM. The defendant petitions for a new trial, alleging that certain rulings of the court at the trial were erroneous. The action is trespass for assault and battery. The plaintiff Catherine Allen, on whom it is alleged the assault and battery were committed, was in the temporary charge of a certain tenement for one Bridget Baldwin, who had been in the occupation of it as a tenant under the defendant. The defendant alleged and offered testimony to the effect that the tenancy had been determined by the failure of the tenant to pay the stipulated rent for several months after it had been demanded. The plaintiffs alleged, and offered testimony to show, that no rent was due, for the reason that a new agreement had been made by the defendant and Mrs. Baldwin that if she would allow him to use the dining room in the tenement on Sundays for the sale of liquors, he having a liquor store in the basement of the building in which he carried on his business during the rest of the week,and would keep the room clean, and also the room of the bartender, who boarded with Mrs. Baldwin, she might occupy the tenement without charge for rent; and that this agreement had been in force for three months prior to the commission of the assault and battery in ejecting Mrs. Allen from the tene

ment of which she was in charge under Mrs. Baldwin, as stated. The court instructed the jury that, if there was such a contract, it was illegal, but, though illegal, it would nevertheless so far bind the defendant as to prevent him from claiming that Mrs. Baldwin was a trespasser. This instruction is complained of by the defendant, but, even if it be not strictly accurate, we think that it was sufficiently favorable for the defendant. Pub. St. R. I. c. 80, §§ 1, 4, are as follows:

"Section 1. All buildings, places or tenements used as houses of ill-fame, resorted to for prostitution, lewdness or for illegal gaming, and all grog shops, tippling-shops or buildings, places or tenements used for the illegal sale or keeping of intoxicating liquors, or where intemperate, idle, dissolute, noisy or disorderly persons are in the habit of resorting, are declared to be common nuisances." "Sec. 4. If any person, being a tenant or occupant under any lawful title, of any building or tenement not owned by him, shall use said premises or any part thereof for any of the purposes enumerated in section one of this chapter, such use shall annul the lease or other title under which said occupant holds, and without any act of the owner, shall cause the right of possession thereof to revert and vest in him, and said owner may make immediate entry thereon without process of law."

In Almy v. Greene, 13 R. I. 350, it was held that knowledge on the part of a lessor, before or at the time of the execution of a lease, that the lessee intended to use the demised premises in violation of the same provision of the statute as that contained in section 1, above, was not sufficient to render the lease void in the absence of any further participation in or furtherance of the illegal purpose of the lessee; and that the mere use of the leasehold premises for the purposes prohibited in section 1 did not, ipso facto, render the lease absolutely void, but that section 4 was intended for the benefit of the lessor, and he alone could take advantage of the avoidance, at least unless he himself had been a privy to such illegal use. There is nothing in the evidence to show that Mrs. Baldwin in any way participated in the unlawful sale of liquors on Sunday, or did anything in furtherance of the business as such. It is true that by the agreement she was to keep the dining room clean, and also the room of the bartender. But the former she was obliged to do for her own use of the dining room during the rest of the week, and her duty as a boarding mistress required her to keep clean the room of the bartender, who was her boarder. As held in Almy v. Greene, above, the knowledge of Mrs. Baldwin that the dining room was to be used for the illegal purpose at the time she entered into the agreement for its use did not render the agreement void; nor did the mere use of the dining room for that purpose by the defendant, with her knowledge, render the agreement