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mer suit. In answering this question, refer- tained in the written lease. He remained in possession ence must be had, of course, to the pleadings until judgment was rendered in this case, as hereinafter
, as well as to the judgment or decree.
mentioned, and for aught that appears is still in posses
sion. If the court had decreed specific perform
On May 8, 1872, proceedings were commenced in the ance, the money paid by the purchaser would
common council of the city of Cincinnati, with a view to have been credited to him in taking the ac- the construction of sewers in certain streets, aniong count with the vendor; or, on the other hand, others in that part of Court street upon which the propif the contract had been canceled, he would erty in question abuts. That sewer was constructed by have been compensated for the money he had J. B. H. Nolte, under a contract with the city inade Janupaid in performance of the contract. The
ary 26, 1874, and an assessment by the frontage, amountcourt, however, did neither, but refused to
ing to $739.82, was, on June 12, 1874, levied on the prop
erty in question. interfere, and left both parties to their strict
The assessment not having been paid, the city, suing legal rights.
for Nolte, brought suit in the court of cominon pleas, on The refusal of the court to rescind the con
February 2, 1875, against Davis and the owners of the tract is not inconsistent with the alleged prom- fee, to recover the same, asking in the petition a personal ise of the vendor to refund the money paid, judgment against them and an order for the sale of the in consideration of his release from the con- premises. Davis denied that he was the owner of the tract.
premises, and claimed that he was not liable to a perThat may have been the ground upon which
sonal judgment. The cause was submitted to the court, the court refused to declare a rescission; but,
and on request the facts and conclusions of law were
found. The facts so found were substantially as above whether so or not, such refusal does not nega
set forth, and judgment was rendered against Davis for tive the existence of such agreement to refund. $840.21, the amount of the assessment, penalty and inter
A judgment is conclusive by way of estop- est, and the property assessed was ordered to be sold to pel only as to facts, without the proof or ad- satisfy the amount so found to be due. The court fur. mission of which it could not have been ren- ther found that the owners in fee were not liable to a perdered. Burlen v. Shannon, 99 Mass. 200 ;
sonal judgment. On error, prosecuted by Davis, the disLea v. Lea, Id. 493.
trict court affirmed the judgment, and this petition in
error was filed by him to reverse the judgment of afirmJudgment of the district court and that of the common pleas reversed, and cause re
E. A. Ferguson, for plaintiff in error: manded to the court last named for a new trial.
McGuffey, Morrill & Strunk for the city, and Paxton [This case will appear in 36 0. S.]
& Warrington, and F. K. Pendleton, for the owners in sessment is made on real estate subject to a life estate, fied copy thereof to Thompson, the township such assessment shall be payable by the tenant for life; clerk, with a request to certify it to the superbut upon application of said life tenant to a court of
fee. SUPREME COURT OF OHIO
The single question is whether Davis was liable to perSAMUEL DAVIS
sonal judgment for the assessment. The chapter on sewo.
ers in the municipal code (66 Ohio L. 149, 28 612, 614), proCITY OF CINCINNATI.
vided, among other modes for assessing the cost and ex.
pense of constructing main and local sewers, that it In an action under section 626 of the Municipal Code
might be done according to frontage. (66 Ohio L. 254), to enforce an assessment for the construc
Section 629 of the same chapter was as follows : “ All tion of a sewer, it is error, where the proper defense is made, to render a personal judgment against one in pos
assessments made under the provisions of this chapter session of the property assessed, but having no other in- shall be a lien on the lots or lands assessed. They sball terest therein then as lessee for a term of ten years; he is be transferable, and may be collected against the owner not an "owner" within the meaning of that section; and it will make no difference, in such action, that the lease
personally, or by enforcement of the lien upon the propprovides for the payment by the lessee of all assessments erty subject thereto." upon the property.
The “owner” referred to in section 626 must, as a genError to the District Court of Hamilton County.
eral rule, be one having a freehold estate in the premises On February 1, 1862, George H Pendleton, Elliot H. assessed. Perhaps exceptions to the rule exist. See Rev. Pendleton, Martha L. Dandridge, and Anna C. Schech, Stats. 222733, 4181. The term “owner" does not, as a being the owners in fee of certain premises, situated on general rule, include the holders of chattels real. The Court street and Gilbert avenue, in the city of Cincin- assessment is on land, and it is an owner of land who nati, executed a lease for the same to Samuel Davis, Jr., is liable to the personal judgment. We are clear that the for the term of ten years, at a rent of $600 a year, payable term "owner" does not include one having no other inquarterly, and placed him in possession. It was stipu- terest than as a lessee for a term of ten years. Any other lated in the lease that Davis should pay all taxes, charges construction would lead to absurd consequencos. A tenand assessments of every kind, which were or thereafter ant holding for a month might be personally bound for should be assesssed, taxed, charged and levied on the permanent public improvements of the most expensive premises or any part thereof, or which should in any character. manner depend upon or grow out of the said lease, dur. Where a party is personally liable for an assessment, ing the term therein granted. At the expiration of the his liability is precisely commensurate with the lion upon term, February 1, 1872, Davis continued in possession of the property. The only express exception to the rule the premises, holding over under a verbal agreement that such party must be the owner of the fee, is found in with the owners in fee to give him another term of ten section 641 of the municipal code, which, as amended in years upon the same terms and conditions as those con- 1870 (67 Obio L. 80), is as follows: “Where & special as.
visor, to be raised by tax on the township; but proper jurisdiction, by action against the owners of the
that Thompson declared that he would not do it, estate in fee, such court may apportion the cost of said and pretended that there was no supervisor; assessment between said tenant for life and owner in fee, that one Mitchell Spillman, who had been superin proportion to the relative value of said improvement
visor, had resigned; and that if there were any to their estates respectively, to be ascertained and deter
supervisor, still he would not do it; that he himmined by said court on principles of equity.” Other ex
self had resigned, and was not clerk of the ceptions to the rule may exist, as already indicated.
township; that the supervisor and himself had But it was urged that here was a lease in which Davis
both resigned for the express purpose of defeatexpressly bound himself to pay all assessments, and that
ing the collection of petitioner's judgment, and this lease had been renewed, so that it was in full force
other similar claims. "The petition charges that when the improvement was projected, and when the as
the said supervisor and clerk have fraudulently sessment became a lien upon the property; and that, in
combined to cheat and defraud the petitioners order to prevent circuity of action, a suit may be maintaided by the city directly against Davis. But the lia
by falsely pretending to resign, whereas they bility to a personal judgment for an assessment of this
actually continue to discharge the duties of their character is statutory; such liability is confined to the
offices-setting forth various fa&ts corroborative
of the charge. owner of the property, and Davis, as we have seen, is not such owner.
The court below having granted a rule to show We express no opinion upon the question whether, by cause why a mandamus as prayed for should not force of the parol agreement between the owners of the issue, the defendant filed an answer to the petifee and Davis, the liability of the latter to pay assess- tion admitting that a judgment had been enments did or did not continue after February 1, 1872. tered against the township, as stated in the peBut assuming that it continued to be, in all respects, the tition, but averring that it was not a valid judgsame that it had been during the preceding ten years, ment, because, as the answer alleged, the court still the agreement between the parties cannot be con- never obtained jurisdiction; that no service was sidered in this statutory action. Whatever liability from ever had of process in the cause upon the superDavis to the owners of the fee may exist, is a inatter en- visor of the township: that Alonzo D. Brown, tirely between themselves, and with which the city and upon whom service was made, was not at the Nolte have no concern.
time supervisor; and that although one Clapp, The judgment against Davis will be reversed, and the
an attorney, appeared for the township, he was order of sale will be affirmed.
never employed by the township; that the deJudgment accordingly.
fendant was, it is true, duly elected clerk of the UNITED STATES SUPREME COURT
township in April, 1876, but that he resigned
his office before the certified copy of the judgTHOMPSON v. UNITED STATES EX REL. ('AMBRIA
ment was served upon him, by filing in the IRON COMPANY.
office of clerk [ that is, his own office and de
positing with the files of the township a written APRIL 18, 1881.
resignation addressed to the township board; Proceedings in mandamus against a municipal officer
and that he has not acted as clerk since. He to compel the performance of an oficial duty do not admits that he refused to certify the judgment, abate by the expiration of the office of the defendant, but did so because he was not clerk, and because when there is a continuing duty irrespective of the in
there was cumbent, and the proceedings are undertaken to enforce
no supervisor, Spillman, who had an obligation of the corporation or municipality to been supervisor, having resigned. This answer which the office is attached.
was demurred to, but the demurrer was overruled In error to the Circuit Court of the United and the cause came on for trial. The jury renStates for the Western District of Michigan. The dered a special verdict, as follows: opinion states the case.
“First. That on the 23d day of November, BRADLEY, J.
1875, Alonzo Brown, upon whom the declaration This case arises upon a petition for a mandamus was served in the original case of The Cambria to com pel Thompson, the townshipclerk of the Iron Company v. The Township of Lincoln, was township of Lincoln, in the county of Berrien, supervisor of sail township of Lincoln, and was State of Michigan, to make and deliver to the such supervisor at the time the declaration in supervisor of the township al certified copy of a said cause was served upon him as such superjudgment recovered against it by the Cambria visor by the marshal. Iron Company, the petitioners, in order to its Second. That George S. Clapp, who entered being placed upon the tax-roll for collection and
his appearance as attorney for the defendant in payment. The questions arising are much the said cause and appeared and pleaded therein for same as those disposed of in the case of Edwards suid township of Lincoln, was duly authorized v. United States, reported. The petition states by said defendant to appear and plead for it in that the Cambria Iron Company recovered
said cause. judgment against the township of Lincoln, in “ Third. That the respondent, John F. B. the Circuit Court of the United States, on the Thompson, was, at the time of the service of the 29th of May, 1876, for the sum of $6,273.32, order to show cause in this, why a mandamus besides costs, and caused to be delivered a certi- I should not issue against him, clerk of the said
township of Lincoln, and still is such clerk, and ance, or its equivalent. It could not be given in has not resigned the said office.
evidence under any of the issues in the cause. “Fourth. That Mitchell Spillman was, at the Jackson v. Rich, 7 Johns. 194; Jackson v. Mctime the said order to show cause was served, the Call, 3 Cow. 79. supervisor of said township, and still holds the But we cannot accede to the proposition that said office, and held the said office on October proceedings in mandamus abate by expiration 1st, A. D. 1876."
of office of the defendant where, as in this case, The questions raised on the trial were, as in there is a continuing duty irrespective of the the previous case of Edwards, whether the ten- incumbent, and the proceeding is undertaken der of a resignation by a supervisor or clerk of a to enforce an obligation of the corporation or township, by filing the same' with the clerk, was municipality to which the office is attached. valid and effectual as a resignation, so as to dis- The contrary has been held by very high authorcharge the officer of his official character, with- | ity.
ity. People v. Champion, 16 Johns. 61 ; People out an acceptance by the township board, or an v. Collins, 19 Wend. 56; High on Extr. Rem. $ appointment to fill the vacancy. Such a resig- 38. We have had before us many cases in which nation was relied on to show that Brown, on the writ has, without objection, been directed to whom process in the original action was served, 'the corporation itself
, instead of the officers indiwas not supervisor, and that Spillman was not vidually; and yet in case of disobedience to the supervisor, and the defendant was not clerk peremptory mandamus, there is no doubt that when the present proceedings were commenced. the officers by whose delinquency it was incurAs we have fully discussed this question in the red would have been liable to attachment for previous case, it is not necessary to say anything contempt. The proceedings may be commenced further on the subject. The ruling of the court with one set of officers and terminate with anbelow was in conformity with our decision in other, the latter being bound by the judgment. that case.
This also disposes of the question of Bd. Commissioners v. Knox Co., 24 How. 376; the appearance of Clapp, the attorney in the 1 Supervisors v. United States, 4 Wall. 435; Von original action, he having been employed by Hoffman v. Quincy, id. 535; Benbow v. Iowa Brown, the supervisor.
City, 7 id. 313 ; Butz v. City of Muscatine, 8 id. Another question raised at the trial was 575; Mayor v. Lord, 9 id. 409; Commissioners v. whether the petitioner might show the motive Sellew, 99 U. S. 626'; and many others. and intent with which the supervisor and clerk And so, if we regard the substance and not attempted to resign, with a view to show that it the mere form of things, a proceeding like the was done for the purpose of defrauding the peti- present, instituted against a township clerk, as tioners, and avoiding to do those acts which are à step in the enforcement of a township duty necessary to the collection of his judgment. to levy the amount of a judgment against it, The court allowed evidence to be given on the ought not to abate by the expiration of the parsubject, and to this the defendant excepted. We ticular clerk's term of office, but ought to pro do not see why the evidence was not admissible ceed to final judgment, so as to compel his for the purpose of showing that the attempted successor in office to do the duty required of him resignation was simulated and fraudulent. But in order to obtain satisfaction from the township. it is not necessary to decide this point, since the The whole proceeding is really and in substance admission of the testimony did not injure the a proceeding against the township, as much as defendant, because the attempted resignations if it were named, and is in the nature and place were not completed by the acceptance of the of an execution. If the resignation of the offitownship committee.
cer should involve an abatement, we would Another point raised was that it appeared by always have the unseenly spectacle of constant the township book, offered in evidence, that the resignations and re-appointments to avoid the eftownship board did appoint a successor to the fect of the suit. Where the proceeding is in subdefendant as township clerk on the 4th day of stance, as it is here, a proceeding against the November, 1876, after the cause was at issue. corporation itself, there is no sense nor reason in On motion of the petitioner's counsel this evi- allowing it to abate by the change of individudence was stricken out, for the reason that such als in the office. The writ might be directed to fact having arisen since the return was made, the township clerk by his official designation, it was not competent under the issue framed and will not be deprived of its efficacy by inthereon. It does not appear that this matter serting his individual name. The remarks of was in any way brought to the notice of the Mr. Justice Cowen, in People v. Collins, 19 Wend. court, or sought to be put in issue, until the 68. are very pertinent to the case and seem to evidence was offered during the trial. In addi- us sound. That was a mandamus to commistion to this, the evidence was not conclusive. It sioners of highways who were elected annually; did not show that the attempted appointment and it was objected that their term would expire was effectual. Had the point been properly put before the proceedings could be brought to a conat issue the whole matter could have been clusion. Justice Cowen said: “The obligation known. We think the court was justified in sought to be enforced devolves on no particular striking out the evidence. As a matter of de- set of commissioners, and no right is in question fense, whether in abatement or in bar, it should which will expire with the year. The duty is have been set up by a plea quis darrein continu- perpetual upon the present commissioners and
oficers of the government, whose alleged delinwhich illustrate and declare the ways of pros
their successors ; and the peremptory writ may and the beauty of his moral character, like the be directed to and enforced upon the commis- white robes of righteousness, cover all defects of sioners of the town generally. To say otherwise person, voice and manner. would be a sacrifice of substance to form." In Governments, corporations, merchants, manuthis connection we may also refer to the recent facturers, and producers apply to him for guidcase of Commissioners v. Sellew, 99 U. S. 626. ance. It is his business to know the principles
The case in which it has been held by this which govern their various affairs, and the rules court that an abatement takes place by the ex- under which disaster may be avoided and sucpiration of
cess quency was personal, and did not involve any perity in business, and the secret causes of cacharge against the government whose officers lamity therein. The results of these cases are they were. A proceeding against the govern stated in the opinions of courts, and they are ment would not lie. Secretary v. McGarrahan, reliable, because every step thereto has been con9 Wall. 298; United States v. Boutwell, 7 id. 604. tested by counsel and subjected to judgment.
We think that the proceedings have not It is pleasanter, easier, and cheaper to buy the abated either by the resignation of the clerk result of experience from a competent lawyer, and the appointment of a successor, or by the than to arrive at the like results by suffering the expiration of his term of office, even if it suffi- experience. ciently appeared that either of these contingen- A great lawyer knows the nature and limits of cies had occurred.
power, and defends the rights of persons and of The judgment of the Circuit Court is affirmed. property against its encroachments. The courts
listen to him with pleasure, for they know he A GREAT LAWYER.
will illuminate the subject of discussion with
learning, reason and authority, even if he fail to A truly great lawyer is one of the highest convince them that the particular judgment he products of civilization. He is a master of the asks ought to be given. science of human experience. He sells his cli- His associates regard him with affectionate ents the result of that experience, and is thus esteem, for he seeks to deprive no one of his just the merchant of wisdom. The labors of many honors or rewards. His dignity requires no generations of legislators and judges enrich his stilts to uphold it; and his stores of learning stores. His learning is sufficient to enable him and courtesy are so ample, that, though always to realize the comparative littleness of all hu-giving, he has always enough and to spare. man achievements. He has outlived the ambi- It is estimated that, vear by year, the counsel tion of display before courts and juries. He loves of a good lawyer will decrease the dangers of justice, law and peace.
failure more than fifty per cent., and largely add He has learned to bear criticism without irrita- to the profits of any commercial or manufacturtion, censure without anger, and calumny with-ing business. out retaliation. He has learned how surely all He takes the client's place, free from the bias schemes of evil bring disaster to those who sup- of the self-interest that so often blinds the busiport them; and that the granite shaft of a noble ness man to the approach of peril. reputation can not be destroyed by the poisoned Seeking fame and fortune chiefly by wise breath of slander.
counsel to business men, the great lawyer will A great lawyer will not do a mean thing for incidentally win distinction and the reward of money. He hates ovice, and delights to stand toil, by consummate ability in the conduct of forth a conquering champion of virtue. The causes before the courts. A statesman in the good opinions of the just are precious in his counsel-room, he becomes a general in the forum,
, esteem; but neither love of friends nor fear of and delights the observer with displays of the foes can swerve him from the path of duty. magnificent art of war. When war is inevita
He esteems his office of counsellor as higher ble, he remembers that the truest mercy is to than political place or scholastic distinction. make it in earnest; and he tries the case that He detests unnecessary litigation, and delights must be litigated, so that a thousand may be setin averting danger and restoring peace by wise tled by its results. This is why the public bears counsel and skillful plans. The good works of so large a share of the expenses of judicial prothe counsel-room are sweeter to him than the ceedings, and why litigation is so expensive to glories of the forum. He proves that honesty is the client and relatively so unprofitable to the the best policy; and that peace pays both law- lawyer. The public has the benefit of the conyer and client, better than controversy.
test. The client pays too much for the result. In a legal contest, he will give his client the The lawyer receives too little for his time, labor, benefit of the best presentation of whatever and learning. It is in his office that his golden
. points of fact, or of law, that may be in his opinions bring the amplest golden rewards, to power; but he will neither pervert the law, nor the equal satisfaction of himself and of his patfalsify the facts to defeat an adversary. The Both are spared the delays, the vexations, motto of his battle-flag is: Fidelity to the law and the expenses of a course through the courts. and the facts—semper fidelis.
As a general rule, controversies should be setThe splendor of his intellectual attainments, 1 tled under the direction of lawyers. It is only
as an exception that they should go to the courts. it not at the feet of the Supreme Law-giver? There will be litigation enough from the per- How shall he advise the tribunals of justice, if versity of parties in some cases, and the inhe- he learn not wisdom of Him who alone is perrent difficulty of the case in others; and, unless fectly just? How shall he counsel concession to it be manifest that efforts at amicable adjust-avoid controversy, if he be not taught by the ment will be fruitless, the lawyer should try to Divine Counsellor, who is the Prince of effect a settlement. And the client should be as Peace? Such a lawyer thrives, not on the miswilling to pay for the results of a litigation, fortunes, but on the prosperity, of his fellow. without the litigation, as for the same results
His fortune increases with their success. burdened by delay, vexation, and increased ex- They rely upon his judgment with confidence, penses. Thus the true interest of the client and on his fidelity without fear. is the true interest of the lawyer, and peace- Officers of the judicial courts, counsellors of making better than strife.
the highest human tribunals, sworn upholders of If it be said that such lawyers as are here de- the Constitution and the laws, and defenders of scribed are not abundant, it may be replied that private and public rights, ministers of justice the supply is probably equal to the demand; and and equity, the character and conduct of lawyers that the profession will doubtless conform to can never be a matter of indifference to the pubthis ideal as rapidly as the community may lic mind. require. But the number of really good law- Intimately connected with the administrayers is very great; and, if sought for, they are tion of the Government and largely concerned easily found. Scarcely any community is with- in all that constitutes the greatness of the Naout them, and the fidelity of the profession, as a tion, the virtues of the legal profession and the whole, to the trusts committed to its charge, is honors of the leaders of the Bar are inseparable one of its crowning distinctions. It has its from the national fame. vagabonds and imposters, like other callings, If such a lawyer be elevated to the bench, his but they are more easily known and shunned virtues shine with a brighter luster, and his lathan those of almost any other pursuit. It is bors are crowned with higher and more far-reachnot a difficult matter to learn the legal, ing results. He discerns the soul of justice in moral and social character of any member of the the forms of law; penetrates the disguises of profession; and, if one choose to patronize a wrong; and so applies the legal principles apmock-auction, he should not complain of the plicable to the case, as best to repress the evil wares he is sure to receive there.
and promote the right. Before his judgmentThe architects of civil government must nec- seat the law is a living science, keeping pace essarily be lawyers. Untrained hands can no with the advance of civilization, and adapting more draw constitutions, statutes and ordinances, itself, with wondrous flexibility, to new condithan build ships, or erect temples. It is the work of tions as they arise. The fetters of obsolete forms the lawyer, in the higher walks of the profession, are powerless to bind the arms of Justice where to discover, to invent, preserve, fortify, defend, he presides. He claims no authority to create and vindicate the best means of securing “life, new rights, but, in the recognition and enforceliberty, and the pursuit of happiness.” Could ment of rights otherwise conferred, he magniany calling be more beneficial to the commu- fies his lofty office, and sits in judgment, the nity, or more honorable to those who follow it terror of the evil-doer and the friend of the opfaithfully?
pressed. The student who ponders the opinions Unfortunately, there are members of the legal of such a judge learns the meaning of the profession who are not lawyers. One may be maxim : "Jurisprudence is the science of jusfamiliar with law.books, may practice law, and tice.” even act as judge, and still not be a lawyer in
CHARLES C. BONNEY, the true sense of the term. With ordinary
Chicago, Ill. talent and industry, one may follow law as a trade with a fair measure of apparent success.
UNITED STATES CIRCUIT COURT, NORTHWith great intellectual and moral endowments,
ERN DISTRICT OF ILLINOIS. and a natural taste for jurisprudence, as the science of human affairs, he may, by prodigous
HENRY R. ALLERTON labor and the blessing of Providence, become an eminent lawyer.
City of ChicAGO AND CHICAGO CITY RAILWAY Co. The gift of eloquence is as dangerous to a law- The police power is inherent in a municipal corporayer as that of beauty is to a woman. It tempts tion, and cannot be transferred. its possessor to build his house upon the sand of Power to "regulate the management" of a business
includes tbe power to require a license for carrying it on. a mere accomplishment, instead of the enduring Under a statute authorizing a city to license hackmen, rock of an informed and cultivated judgment. omnibus drivers, “and others pursuing like occupations,' But, as great merit and beauty are sometimes
the city has the power to require street railway compa
nies to take out licenses for their cars. found united in the same person, so, also, are The distinction between the taxing and the police brilliant eloquence and equal intellectual power. power discussed by DRUMMOND, J.
The highest type of lawyer must be in the On demurrer to bill in equity. truest sense, a Christian gentleman. How shall The council of the city of Chicago passed an he understand the spirit
of the law, if he learn ordinance requiring the companies which ope