Argued November 5 and 6, 1906. Decided | vides expressly for the assessments of beneDecember 3, 1906.

fits and damages for pavements already con

structed in West Chapel street. I

N ERROR to the Supreme Court of Er- “This conclusion entitles the plaintiff to

rors of the State of Connecticut to re-relief from the assessment as laid by the view a judgment which, on a third appeal, amendment to the report of the bureau of affirmed the judgment of the Superior compensation; and it is therefore ordered Court of New Haven County, in that state, that the assessment be reduced to the sum establishing an assessment against a street of $5,823, as recommended by the bureau railway company for the cost of paving be- of compensation." tween its tracks and 1. foot on each side.

And the judgment of the superior court Affirmed.

recited: See same case below, 1st appeal, 75 Conn.

"The asphalt pavement in said street is 442, 53 Atl. 960; 2d appeal, 77 Conn. 219, not a direct benefit to the plaintiff or its 58 Atl. 703; 3d appeal, 77 Conn. 667, 60 property, but, on the other hand, is a diAtl. 651.

rect damage to the plaintiff and its proper. The facts are stated in the opinion. ty, inasmuch as it largely increases the ex

Messrs. George D. Watrous and Talcott pense of repairing the roadway between the H. Russell for plaintiff in error.

rails, and of general repairs to the track, Messrs. Leonard M. Daggett and E. P. ties, and structure of the railroad. The Arvine for defendant in error.

only benefit to the railroad is such as re

sults from the general improvement to the Mr. Justice McKenna delivered the opin- locality by reason of such pavement tendion of the court:

ing to increase the population and traffic in This case involves the validity of an as- that section of the city. Such benefit does sessment of $36,879, against plaintiff in er- not exceed the amount of $5,823.” ror, for the cost of paving between its

Upon the appeal of the city the judgment tracks and for 1 foot on each side thereof. was reversed by the supreme court of erPlaintiff in error operates a double track rors. 75 Conn. 442, 53 Atl. 960. On the reelectric railway through West Chapel street turn of the case to the superior court that in New Haven,

court rendered judgment dismissing the apIn pursuance of certain laws of the state plication of plaintiff in error, and confirmthe court of common council, through a con- ing and establishing the assessment of tractor, caused the street to be paved with $36,879. The judgment was reversed by sheet asphalt. The work was begun in the supreme court of errors and the case reJune, 1897, and completed in October ormanded to the superior court, with direcNovember of the same year. The city paid tions to deduct from the assessment the for the work, and, as provided by the stat-cost of repair. In accordance with this diutes, assessed against plaintiff in error its rection the superior court deducted from the proportion of the cost; to wit, $36,879. On assessment the sum of $3,590.85, and conappeal to the superior court for New Haven firmed the assessment less such deduction. county, that court reduced the assessment This judgment was affirmed by the supreme to $5,823, and entered judgment against court of errors. plaintiff in error for that sum.

The statutes under which the street was The learned judge of the superior court expressed the contentions of the parties and tiff in error was made may be summarized

paved and the assessment against plainhis conclusions as follows:

as follows: Section 9 of the charter of "It is contended by the defendant that the assessment against the plaintiff is legal plaintiff in error authorized the common and valid under the act of 1895. Charter council of the city to establish such regulaof New Haven, page so.

tions in regard to the railway as might be

in and along "It is contended by the plaintiff that the required for “paving act of 1895 is repealed by the act of 1899, the street,” and the company was required Special Laws of 1899, p. 181; and if it to conform to the grades then existing or is not repealed, the act of 1895 is uncon

thereafter established. And it was prostitutional and void.

vided that the company should “keep that “Inasmuch as I hold and rule that the act portion of the streets and avenues of 1895 is repealed by the act of 1899, it which their road or way shall be laid down, is unnecessary to pass upon the constitu- with a space of 2 feet on each side of the tionality of the former. The intention and track or way, in good and sufficient repair, effect of the latter act is to repeal the for- without expense to the city or town of mer. The last act covers the whole subject-New Haven, or the owners of land adjoinmatter of assessments for benefits and dam- ing said track or way." ages arising from paved streets, and pro- It was provided ($ 13) that the act might

be altered, amended, or repealed at the damages, and a specification of limits of pleasure of the general assembly.

the assessment, varying with the kind of The charter was amended July 9, 1864, material used for paying. Assessment of and the company was authorized to lay benefits and damages for the pavement on down its tracks and run its cars through certain streets and on West Chapel street Chapel street, subject to the prohibitions of were required to be laid in accordance with the 9th section of its original charter. the provision of the act. Anyone aggrieved

In 1893 a general law was passed applica- by the assessment was given the right of ble to all railways, by $ 6 of which it was pro- appeal to the superior court. The act was vided that every street railway was re- declared to be an amendment to the charter quired to keep so much of the street or of the city, and acts inconsistent therewith highway as is included within its tracks, were repealed. The liability of street railand a space of 2 feet on the outer side of way companies under the general laws was the outer rails, in repair, to the satisfac- preserved. tion of the authorities of the city, town, The statutes and the assessments made or borough which was bound by law to under them are attacked by plaintiff in ermaintain such street or highway. More ex- ror as repugnant to the contract clause of pensive material, however, was not to be the Constitution of the United States and required than that used on the other parts the 14th Amendment. of the street, except, however, for a space 1. The contention that the assessment of 1 foot on each side of each rail, unless was unconstitutional, even though the act a more expensive kind of material was re- of 1895 is constitutional, was commented on quired in the order permitting the original | by the supreme court of errors on the seclocation of such railway. If the railway ond appeal as follows: company did not make such repairs after “Other claims new to the case are made, notice, it was provided that the city might to the general effect that, as the street had do so, and recover the expense thereof from been paved twenty-three years before, and the company. And it was provided that the plaintiff had been assessed a portion of the act should be deemed an amendment to the cost thereof, and especially as the city the charters of all existing railway com- had not shown the need of the new pavepanies.

ment as a means of repair, an unconstituOn July 1, 1895, an act was passed author. tional use of the act would result if the izing and empowering the court of common present charge against the plaintiff was encouncil of the city to issue bonds for the forced. These claims have no foundation, construction of permanent pavements, and either in the application or pleadings, and providing that all pavements laid by au- therefore have no standing in the case. thority of the act should be laid upon the We do not hesitate to say, however, withgrade of the street, and the city was em out discussion, that in view of the pleadpowered to collect the cost thereof from ings, which did not put the defendant to the owners of abutting land. The act con- the proof of the necessity of the new work tained the following provisions as to rail- as a means of repair and proper mainteways:

nance of the street, the facts indicated "On all streets occupied by the track, or could not be held sufficient to accomplish tracks, of any railway company or com- the results claimed for them.” [77 Conn. panies, said company or companies shall 224, 58 Atl. 705.] be assessed and shall severally pay to the Plaintiff in error contests this conclusion city the cost of paving and repaving the of the court, and insists that the claims full length, and 9 feet wide for each and were made on the first appeal of the case, every line of track of such railway or rail- and were overlooked by the court. It is ways, now existing, or that may hereafter questionable whether we may dispute the be laid in any street of said city.”

ruling of the supreme court of errors as By supplement to this act, passed in to what the record in the case before it March, 1897, it was provided that, in eso showed. But, granting we have such power, timating the cost of each square yard to the record does not justify the assertion be assessed, the entire cost of laying the of plaintiff in error. A bill of exceptions pavement and the agreement to keep the was tendered by plaintiff in error to the pavement in repair for a period not ex. superior court of certain claims and receeding fifteen years should be considered. quests for rulings made by plaintiff in er

An act passed, April 28, 1899, provided ror, so that the questions arising thereon for an assessment upon the "grand list" could be considered by the supreme court 1 mill on the dollar for the paving of of errors in connection with those by the streets, to be expended only for the original appeal of the city, and one of the claims construction of pavements. There was a was "that the repavement, if required at provision for the laying of benefits and all, could only be required when it was found to be a satisfactory, or the most , 1895; the railway company claims to limit satisfactory, method of repair, which did its liability at least to the smaller sum asnot appear in this case.”

sessed by the court, upon the strength of The bill of exceptions stated also that the rule of assessment prescribed in the act the court did not rule upon the requests, of 1899, as interpreted by the court and acbecause it was of opinion that the act of cepted by the company.” And after the 1895, so far as it affects the pavement in construction and discussion of the proviquestion, was repealed by the act of 1899, sion of the two acts the court said: “The "and therefore decided against said

against said re- situation is, we think, susceptible of a simquests." The court allowed the bill of ex- ple explanation. The act of 1899 is to ceptions, and expressed the reason as fol- be taken in its natural meaning. Its prolows: "Being of the opinion that some, visions relating to assessments were intendat least, of the questions arising upon the ed to deal only with assessments of beneabove bill of exceptions will arise again if fits and damages in favor of or against a new trial of this cause should be had, owners of land whose land adjoins the the above bill of exceptions is hereby al- street in which the pavement is laid, by lowed, and ordered to be made a part of reason of some benefit or damage received the record."

affecting its value. The railway compaBut this does not militate with the rul- nies were not meant to be and are not to ing of the supreme court of errors, nor in- be regarded as within their scope. No dicate that the court did not consider the change in the burden already upon them claims and requests of plaintiff in error. for the completed work was intended to be The ruling was based upon the application effected.” [75 Conn. 446, 450, 53 Atl. 962, or pleadings, and it is not contended that 963.] the court's view of the application or plead- So, deciding between the statutes, the ings was erroneous. Indeed, on the return court adjudged that the act of 1895 was of the case to the superior court an appli- constitutional, on the ground that it was cation was made by plaintiff in error for a proper exercise of the police power of the leave to amend its application by adding state, and on the ground that the act was six paragraphs, setting out the grounds in an exertion of the power reserved by the dicated above and other grounds why the state of altering, amending, or repealing the assessment was an unconstitutional exer- charter of the railway company. If either cise of the authority in terms conferred ground is tenable the judgment must be by the act of 1895. The motion was de- affirmed. .

,

We will place our decision on nied on the ground (1) that the court had the second ground, as being of more local no power to allow the amendment, and (2), character, and because the exercise of the that the amendment ought not, as a mat- power expressed only comes under our reter of discretion, to be allowed. The rul- view in its excesses. ing was affirmed by the supreme court of We accept the decision of the supreme errors. Justifying its ruling, the court de- court of errors, that the statutes were innied that it thereby enforced a stringent tended as an exercise of the power of rule of pleading, but said it enforced only amendment reserved by the state, although the familiar one which confined the evidence plaintiff in error contends that such was to the matters pleaded, and that it was not their intention. The court treated the the duty of plaintiff in error to have made question involved as primarily one on statits application full enough to cover all the utory construction, and “best approached," claims desired to be made.

to use the language of the court, “by an (2) It will be observed that the superior examination of the statutory situation,” court ruled that the act of 1895 was re- and upon that examination pronounced pealed by the act of 1890, and that the lat. its conclusion that “the act of 1895 was in ter act covered the whole subject-matter of effect an amendment of the plaintiff's charassessment for benefits and damages ac- ter," citing Bulkley v. New York & N. H. cruing from paved streets, and provided ex- R. Co. 27 Conn. 479; New York & N. E. pressly for the assessments of benefits and R. Co. v. Waterbury, 60 Conn. 1, 22 Atl. damages for pavements which had been con- 439. Was such an amendment in excess structed on West Chapel street. The su- of the power of the state? The limitation preme court of errors reversed the ruling upon the power of amendment of charters and sustained the contention of the city of corporations has been defined by this that the assessment should be made under court several times. It is said in one case the act of 1895. The court said: “This that such power may be exercised to make difference of view explains the situation dis- any alteration or amendment in a charter closed by the case. The city bases its granted that will not defeat or substantialclaim to the larger sum assessed by it upon ly impair the object of the grant or any the rule of recovery laid down in the act of rights which have vested under it, which the legislature may deem necessary to securement of the charter in 1864 this obligation either the object of the grant or any other was retained, and also in the public acts public right not expressly granted away by of 1893. In the act of 1895 the duty of the charter. Holyoke Water-Power Co. v. paving and repaving was imposed on all Lyman, 15 Wall. 522, 21 L. ed. 140. In railway companies. We shall assume, for another case it was said that the “altera- the purpose of our discussion, that the duty tions must be reasonable; they must be to repair did not include the duty to pave made in good faith, and be consistent with and repave, although much can be said and the scope and object of the act of incorpo- cases can be cited against the assumption. ration. Sheer oppression and wrong cannot Does the change and increase of burden upbe inflicted under the guise of amendment on the plaintiff in error come within the or alteration.” Shields v. Ohio, 95 U. s. limitations upon the reserved power of the 324, 24 L. ed. 359. Later cases have re- state? Has it no proper relation to the peated these definitions. Sinking Fund objects of the grant to the company or any Cases, 99 U. S. 720, 25 L. ed. 502; Green of the public rights of the state? Can it wood v. Union Freight R. Co. 105 U. S. be said to be exercised in mere oppression 13, 26 L. ed. 961; Close v. Glenwood Cem- and wrong? All of these questions must be etery, 107 U. S. 476, 27 L. ed. 412, 2 Sup. answered in the negative. The company Ct. Rep. 267. In the Sinking Fund Cases, it was given the right to occupy the streets. was said that whatever regulations of a It exercised this right first with a single corporation could have been inserted in its track, and afterwards with a double track. charter can be added by amendment. All | Before granting this right the state certhe cases are reviewed and their principles tainly could have, and reasonably could affirmed in Stanislaus County v. San Joaquin have, put upon the company the duty of & K. River Canal & Irrig. Co. 192 U. S. 201, paving as well as of repairing. Such re48 L. ed. 406, 24 Sup. Ct. Rep. 241, and quirement would have been consistent with water rates fixed by the board of super- the object of the grant. It is yet consistvisors of the county of Stanislaus under a ent with the object of the grant. It is not law of the state sustained though the in- imposed in sheer oppression and wrong, and come of the company was reduced from 142 the good faith of the state cannot be quesper cent per month to 6 per cent per annum. tioned. It is imposed in the exercise of one

In the light of these cases let us exam of the public rights of the state,—the estab. ine what the statutes of Connecticut require lishment, maintenance, and care of its highof plaintiff in error. By its original char- ways. The extent of this right is illustrated ter (1862) plaintiff in error was required to by West Chicago Street R. Co. v. Illinois, keep the street between its tracks, with a 201 U. S. 506, 50 L. ed. 845, 26 Sup. Ct. Rep. space of 2 feet on each side of the tracks, 518, and cases cited. in good and sufficient repair. In the amend. Judgment affirmed.

NATIONAL LIVE STOCK BANK OF CHI belonging to one W. B. Grimes, and by him

. CAGO, ILLINOIS, Plff. in Err., mortgaged. The trial resulted in a judgment V.

for the defendant, which was affirmed by FIRST NATIONAL BANK OF GENESEO, the supreme court of the territory, and the ILLINOIS.

plaintiff has brought the case here by writ

of error. Appeal-distinction between appeal and writ

The action has been twice tried. The first of error.

1. Writ of error is the proper method of trial ended in a judgment for the plaintiff. reviewing a judgment of the supreme court

Upon appeal to the supreme court of the of the territory of Oklahoma, affirming a territory it was reversed and the case rejudgment of the court below in an action of manded, and a second trial had, resulting replevin tried by the court upon waiver of in the judgment for defendant now under a jury. *

review. Upon the second appeal to the suError-to territorial supreme court-state- preme court of the territory a brief opinion ment of facts.

was given, in which it was stated that upon 2. There is a finding of facts upon appeal from the first judgment the court had which a review can be had in the Supreme "promulgated an opinion, in which it made Court of the United States by writ of error

a full statement and findings of facts and to the Oklahoma supreme court, where the

enunciated the law as applied thereto, relatter court states in its opinion that on a prior appeal it had made a full statement versed the judgment of the lower court, and and findings of facts,” and had enunciated remanded the case, directing a new trial. the law as applied thereto, and that finding 13 Okla. 719, 76 Pac. 130." The court also the record the same as stated in its former stated in its opinion on the second appeal opinion, and being satisfied with the law as that it had been agreed upon between the therein declared, no new question being parties in the trial court that a jury should raised, the judgment of the trial court is af

be waived and the case submitted on the firmed.

record as made on the first trial, and that Chattel mortgage-assignment-record.

"no new question is raised on this appeal. 3. The provision for recording the satis- The record is the same as stated in our faction of a chattel mortgage by the mort. former opinion, and we are fully satisfied gagee, his assigns or personal representative, which is made by Kan, Gen. Stat. 1901, Świth the law as therein declared. The judg. 4251, 136, does not make it necessary to ment of the lower court is hereby affirmed record or file the assignment of a chattel at the cost of the appellant." [(Okla.) 79

. mortgage in order to protect the assignee.t

Pac. 1134.] Chattel mortgage-assignment-record. The following facts were found by the

4. The failure of the Kansas laws to supreme court on the first appeal, and were prohibit the recording of the assignment of adopted by it as the facts for review on the à chattel mortgage given to secure a nego second appeal: tiable note does not make such action neces.

One W. B. Grimes, who at the time was sary in order to protect the assignee, but, a resident of Clark county, in Kansas, exein order to compel such action, there must cuted at that place, on the 27th day of be a law which provides for such record; June, 1900, and delivered to Siegel-Sanders either in express terms or by plain and necessary implication.

Live Stock Commission Company, his nego

tiable promissory note for $11,111.23, due [No. 33.]

November 1, 1900, with interest from matu

rity at the rate of 8 per cent per annum. To Argued October 17, 18, 1906. Decided De- secure the payment of this note he executed cember 3, 1906.

and delivered a chattel mortgage to the payee of the note on 526 cattle then in the

Territory of Oklahoma to review a judg- the office of the register of deeds of Clark ment which, on a second appeal, affirmed a county on July 12, 1900.

. The note was judgment of the District Court of Woodward then indorsed and delivered by the payee to County, in that territory, in favor of defend the Geneseo Bank, the defendant in error. ant in an action of replevin. Affirmed. It does not appear that there was any sep

See same case below (Okla.) 79 Pac. 1134; arate assignment of the mortgage. No recon former appeal, 13 Okla. 719, 76 Pac. 130. ord of any assignment was ever made in

the register's office of Clark county, KanStatement by Mr. Justice Peckham: sas. On the 24th day of November, 1900, al.

This is an action of replevin, brought by though the Siegel-Sanders Company had althe plaintiff in error against the defendant ready sold and delivered the note for $11,in error, in the district court of Woodward 111.23 to the Geneseo Bank, the defendant in county, in the then territory of Oklahoma, error, yet, notwithstanding such sale, the to recover possession of certain cattle, once president of that company, Frank Siegel,