by the act of November 25, 1885, (Sess. Laws, 102,) without being altered in this particular. From this it appears that since October 14, 1864, if not before, Portland has been authorized "to purchase, hold, and receive" real property for "city improvements." This is a general and comprehensive provision; and unless limited in its operation by some other enactment, to which attention has not been called, it includes property intended for a public square, park, landing, levee, or the like. 2 Dill. Mun. Corp. (3d Ed.) §§ 562-564. And under the grant of power contained in section 37, subds. I, 2, of the act of 1864, and the following ones, to levy and collect taxes for general municipal purposes, and for "any specific object" within the authority of the corporation, it is not apparent why Portland is not authorized to improve such square, park, landing, or levee in any way that may be calculated to promote its usefulness or improve the city. The fact that the river front is generally in the hands of private parties, on which wharves and wa.rehouses are maintained by private enterprise, has no: bearing on the question of "the authority of Portland in the premises, or the power of the legislature to confer, withhold, or withdraw the same at pleasure. What is a wise or the best policy in the premises is a matter for the legislature in the first instance, and the corporation in the second. Under the circumstances, it would be sheer assumption for the court to say that it is contrary to public policy for Portland to have a public landing or levee on the river bank, or to improve and maintain the same, either directly or through the agency of third persons. The act of February 24, 1885, (Sess. Laws, 100,) which the plaintiffs allege is a "renunciation" by the state of the trust arising from the dedication of this property to public uses, is largely a mass of senseless and redundant verbiage; but so far as this case is concerned, it may be shortly stated as a grant or license to the defendant the Portland & Wallamet Valley Railway Company, then and now engaged in constructing a road between Portland and Dundee, the use of a levee for a depot, and the wharves and warehouses necessary and convenient for receiving, storing, and shipping freight, on condition, among others, that said company shall not charge any vessel for "dockage" while receiving or discharging cargo at auy wharf on the premises. The act also contains a provision to the effect that nothing therein shall be construed "to take away any pecuniary (?) or property rights" that Portland may have in the premises, and which the state cannot "lawfully appropriate;" nor to deprive the same of any "legal claim or remedy it may have to (?) damages in consequence of the appropriation of said public levee;" and that the company shall not sell or assign "the premises or rights" thereby granted, otherwise than as an "appurtenant" of said railway. As the state has no power to "appropriate" or "grant" this property otherwise than to provide for and
COFFIN V. CITY OF PORTI,AND.
regulate its use as a public landing, the language of the act is not well chosen, and is susceptible of a construction that would give it effect beyond the power of the legislature in the premises. But giving it effect within such power, and construing it accordingly, as the court is bound to do, if it can, the act is a grant to the defendant of the right to improve and use the premises as a public landing, with the added facility of direct and immediate railway connection therewith. The company is so far the agent of the state; and in consideration of the advantage of being allowed access to ship navigation at this point, and the right to maintain a depot thereat, undertakes to furnish the public with suitable wharf and warehouse facilities there for the transaction of business, including free "dockage" for vessels engaged in loading or discharging cargo. And as Portland has no "pecuniary" or other right in this property, except as trustee, and then only so far as the legislature may provide or permit, it is not apparent what claim it can have for damages in consequence of its "appropriation" to such uses and purposes. 2 Dill. Mun. Corp. (3d Ed.) §§ 567-573. Nor is it apparent how the operation of this act impairs the obligation of any contract concerning this property, and especially to .the injury or prejudice of these plaintiffs; for no one can be heard to question the validity of an act of the legislature on the ground that it impairs the obligation of a contract, without showing that such impairment works an injury to him of which the law will take cognizance. 'l'he learned counsel for the plaintiffs states their case in this respect on this wise:
"In the case at bar the federal question of the power of the legislature to devote the property to the railroad's use, forms an ingredient in the original cause of suit. The right of reversion to the donor or his heirs, and the power of the legislature to destroy that right of reversion, are the principal points in the case; and a determination of the power of the legislature is indispensable to a determination of the suit upon the other point. The relief prayed for will be allowed or rejected according to whether the act be determined to be valid or invalid."
But if the act is invalid for any cause, no one can claim any right under it, and for the same reason no one can be deprived of any right by it. The argument involves the novel proposition that the legislature, by the passage of a void act, whereby it undertook to divert the use of this property from the public to a private corporation, has caused the right of the public therein to be forfeited, and the property to revert to the donor or his heirs, discharged from the easement. This is making one person answer for the sins of another, with a vengeance. The mere statement of the proposition ought to be a sufficient answer to it. The public, to whom the use of this property was dedicated by Stephen Coffin, is not responsible for the illegal acts of the legislature; and for that matter they do not bind or affect anyone.
But it is not conceded that there is any implied contract accompanying or growing out of this dedication; that the public will make any particular use of the premises, except when and as it may suit its convenience or the public good; nor that the same shall reved to the donor or his heirs in case of any failure of the public to use the same, or any attempt on the part of the state or Portland to divert the property to some use other than the one intended by the donor. Where the fact of dedication of a street or landing is in dispute, nonuser is evidence, more or less cogent, according to circumstances, against a dedication. But where, as in this case, the dedication is admitted, the evidence of non-user is immaterial. The right to the use, once admitted, is not affected by it. Barclay v. Howell, 6 Pet. 505. Property dedicated to public use does not revert to the donor, unless, it may be, where the execution of the use becomes impossible; and if such property is appropriated to an unauthorized use, a court of equity will compel a specific execution of the trust, by restraining the parties engaged in the unlawful use or by causing the removal of obstructions or hindrances to the lawful one. Barclay v. Howell, 6 Pet. 507. See, also, 2 Dill. Mun. Corp. (3d Ed.) § 653. The bill is clearly without equity; and, in my judgment, the case made by it does not involve a federal question. The demurrer to the bill is sustained, and the same is dismissed.
CLAFLIN and others
(Circuit Oourt, E. D. Louisiana. March, 1886.)
FRAUDULENT CONVEYANCE LOUISIANA. REVOCATORY ACTION UNDER CIVIL CODE OF
Under the Civil Code of Louisiana the judgment in the revocatory action instituted by creditors to set aside a fraudulent conveyance, if the action be successful, is that the conveyance be avoided as to itseJIects on the complaining creditors, and that all the property or money taken from the original debtor's estate by virtue thereof, or the value of such property, to the amount of the debt, be applied to the payment of the complaining creditors.
The same rule will be applied in equity in the circuit court of the United States with respect to property in Louisiana, the complaining creditors being citizens of other states.
SAME-WIFE'S LEGAL MORTGAGE.
The lien of a "legal mortgage" in Louisiana to secure a debt due by the husband to the wife affects third persons only from the date of its recordation, and attaches only to property in the parish belonging to the husband. or therein and thereafter acquired by him. When, therefore, after a fraudulent conveyance to the wife by the husba d, she records h"r debt, her lien as mortgagee does not attach to the property theretofore conveyed, which, as be· tween the spouses, belongs to her, and not to him.
Reported by .Toseph P. Hornor, Esq., of the Xew Orleans bar.