of habeaa Corpu8, producing the prisoner, and stating that he had been lodged in jail under commitment by a trial justice of the state of South Carolina, upon charges of forgery and felony. It nowhere appears, in any affidavit read before me, that he was arrested under state authority for any act done in pursuance of federal authority, and warranted by it. Nor does it appear in any way that he was arrested by the state authorities with the motive or intent on the part of anyone to interfere with the service of the process of the United States. Under these circumstances, I cannot do anything but relIland him into the custody of the state authorities. In re Bull, 4 Dill. 323; Rev. St. U. S. § 753. In doing this, however, I desire to commend the action of the marshal in suing out the writ of habeas corpus. When any deputy marshal is arrested in possession of the process of a commissioner or of this court, the duty of the marshal is at once to learn in the most authoritative way the reason for such arrest, and the mode selected by him in this instance is the best. Let an order be prepared remanding the prisoner to the custody of the state authorities.
MuRPHY 'PJ. EAST PORTLAND
(Circuit Court, D. Oregon. June 9,1890.)
MUNIOIPAL CORPORATIONS-FISCAL MANAGEMENT-INDEBTEDNESS-ORDINANCE.
An ordinance of a municipal corporation, which provides for the payment of money by the town without providing the means wherewith to make snch payment, creates an indebtedness against such corporation, within the meaning of section 5, art. 11, of the constitution of the state. A court of equity will not enjoin a municipal corporation in the exercise of its legislative function, unless the proposed act is beyond the scope.of its power, and its passage would work irreparable injury. .
SAME-INJUNCTION OF LEGISLATIVE ACT.
3. SAME-INJUNCTION OF ORDINANCE CREATING INDlIIBTEDNESS-TuES-JURISDICTIONAL AMOUNT. . In 11. suit by a tax-payer to enjoin the passage of an ordinance an indebt.
edness against the town on account of its alleged illegaUty, the matter In dispute is the sum Of the taxes which the plaintiff would probably have to pay in discharge of said indebtedness; and it rp.ust appear with reasonable certainty from the facta stated in the bill that such taxes exceed in value the sum of $2,000. (synabu8 by the Court.)
In Equity. Charles H. (farcy and Paul R. Deady, for plaintiff. Alfred F. Sears, Jr.) for defendants. DEADY, J. This suit is brought by the plaintiff, a citizen of Washington, fo enjoin the defendants, the municipal corporation of East Portland, the mayor and common council of the same, and the Oregon corporation, the East Side Water Company, from pasBing a certain ordinance, now pending before said council. It is alleged in the bill that the plaintiff is the owner of a tract of land within the limits of the town of East Portland, assessed therein at
MURPHY V. EAST PORTLAND.
$5,600, upon which municipal taxes for the year 1890 were levied to the amount of $42.00; that the act incorporating said town provides "that no debt shall ever be created against the same exceeding in amount the sum of $25,000," (Sess.Laws 1885, p. 308,) which amount is now incurred; that said town is authorized to levy taxes on the property therein for all purposes at a rate not exceeding 17-20 of 1 per centum; that there is now pending before said council an ordinance granting the defendant, the water company, the right to lay water-pipes in the streets of the town, and furnish water to the inhabitants thereof, which also provides for the making of a contract between said town and said water company, whereby the latter is to furnish the former with water for public use, for 10 years, at the rate of $200 a month, and for the purchase of said works by the town, within 90 days after it is authorized so to do by the legislative assembly, whereby an indebtedness will be created against said town exceeding the sum of $25,000, for the payment of which the taxes levied on the plaintiff's property would exceed· in amount the sum of $2,500, in satisfaction of which, said property may be levied on and sold on the warrant of the town, as upon an execution. The defen(:ants demur to the bill, objecting that the court has not jurisdiction of thl! of the suit. .On the hearing it was also assigned, as a cause of demurrer, that eqcd.' will not interfere to prevent legislative action by a municipal corpOl'Ution. It is admitted that the promise or undertaking provided for in the or..; ainance in question will, if formally made or entered into, create a debt .against the town for the sum of $24,000. Section 5, art. 11, of the constitution of the state provides: "Acts of legislative assembly, incorporating towns and cities, shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit." In pursuance of this injunction the power of the town to create a debt is limited by its charter to $25,000, which amount is already incurred. In Water Co. v. Salem, 5 Or. 29, the supreme court of the state held that an agreement to pay the plaintiff $1,800 a year for 17 years, without any provision beiug made for the payment of the same as it became .due, necessarily created a debt against the defendant, within the meaning of the constitutio.n. It did 11ot, however, decide what would be the .effect if the ordinance authQrizing such agreement also provided the means for the payment of the indebtedness when and as it became due. In Coulsonv. Portland, Deady, 481, held that an ordinance whereby -the defendant assumed the payment of the interest coupons, amounting to $350,000, of the bonds of the Oregon Central Railway Company,creat.ecl a debt within the meaning of the constitution, although provision was made therein for the levy of taxes to pay such coupons as they be.carne due. It appearing from the bill that the existing indebtedness of the town .bas reached the limit prescribed by its charter, the additional $24,000
eohreniplatedby this ordinance, there being no provision nlade' f'6r its paylneIit, is clearly illegal and void. Whether the town could, under the restraint imposed on its power of taxation; by subdivision 2, §2, art. 4, of its charter, Laws 1887, p. 202,) levy a tax sufficient to 'pay such indebtedness, as it becomes due, isa question. It could only be done under the levy for the" general fund," which is limited toone-fourth of 1 per centum. The authorities are not uniform on the question of the power of a court of equity to restrain a municipal corporation in the exercise of its legislative functions. The more modem, and, I think, the better doctrine is, that the court ought not to interfere by injunction with legislative action of a municipal corporation, unless the proposed legislation is beyond the scope of the corporate power, and its' passage would, under the circumstances. work irreparable injury. After the passage of such an ordinance, its ,enforcement, if attended with such injury, may be enjoined. CoulBOnv. Portland, Deady, 492; Water- Works v. Bartlett, 8 Sawy. 555, 16 FecI. Rep. 615; Alpers v. City and (Joulatyo! San Francisco, 12 Sawy. 631, 32 Fed. 'Rep. 503; High, Inj. § 1243. In the abstract the passage of this ordinance is not beyond the power of the town. B1 subdivision 7 ,§ 2-, of its charter, (Sess. Laws 1887, p. 203,) it is authorized "to provide the city with good and wholesome water," and the cost of this not oxceed the limit of indebtedness prescribed by the charter. ' But owing to the existing state of its indebtedness, the town is, for the time being. prohibited, incapacitated, from passing any ordinance on any subject,which will increase the same. But I. do not perceive how the mere passage of this ordinance can vVork:il'reparableinjury to any does not execuHdtself. Indeed, ifiInity;never be passed. Butifitis. and an attemptis made to enforce it, by entering into the contract with the water company, as provided therein, or by levying orcollecting a tax to pay the indebtedness thereby created,any one so injured may have the officers charged with or attempting suoh enforcement enjoined. . Neither does it'appearthat "the matter in dispute" exceeds in value theso:m of $2,000.. . IHstrue, it is so alleged in the bill,but the facts stated therein do not warrant the assertion. For instance, it is stated that the additional and. illegal taxes which the plaintiff will be compelled to pay on her property to meet the assessed expense of the proposed water supply, top:ether with the purchase of "the water-works system," will exceed in 10 years the Bum of 82,500. But the 'purchase of the plant of the water company is only proposed by the 'ordinance, and on the condition that the town shall receive the proper from the legislature; and then, and in that event, the pUl'-ehnBe will be vaHd; ., i , "The matter in dispute" is the right of the town. by means of this ordinance,to create an indebtedness payable in installments oU200 subject theplainti'ff's property to the
WOOLDRIDGJjl v. StERN. ,"I-, , ,. ."
,payment of i ts of tax necessary for this purpose.. :the value of such "matter" to the parties to the suit is the value or amount of the taxes which be levied on the property in case the ordinance should be passed.-and enforced. The burden is on .the plaintiff to allege and prove that these taxes would exceed in value the sum of $2,00,0. Beyond the bare assertion ·that this II value " does exceed $2,000, the bill is a blank on the subject. ;It appears that the property now pays for all taxes levied under the char"general fund,l' "street repairing," "fire purposes," and ·"payment of indebtedness"-the surn,of$42. In 10 years this would to $420. .Would the water-tax amount to more or less? On the facts stated in the bill no one can say. Such tax would have to be · ahout five times the sum of aU the taxes now levied on the property to give this court jurisdiction, on account of the value of the"mattel' in' disI,t. ,is not at all .probable that it would amount. to' ,so much. · But, it may.,g must appear :with reasonable certainty from the in the bijUhat the matter in dispute exceeds the value .2,000;. and this "matter" is not nor the property ()f the. but the sum of. the taxes which the plaintiff might hllve to ·pay'ona:cqoUt;ltof pro.perty by reason of such I;. ,Ifif f.rom the ,bill what rate levied upon the Property on roll of. t\>wn would be necessary to rl),isethis vrater, tax, it. be a slmple, :mllt,ter to .howm,?-ph .of the would. be reqpired, to pay. ,If 01167f.ourthoK,l the rate, :plaintiff be required .topsy mllkethe value/of, the 'll?d pOP,ulation,> and · tpe. dim;imshrl".her than ,i ,Th,e;demurrer is sustained. >. .
(O£rcuu Court,W. D. Missouri:, W. D.
Ma, 5, 1800.)
8'l'ATUTBOP. FRAUDS-AGREEMENTS NOT TO DE PERJI'ORlIIED WITHIN' A YBA.R.
A promise to support a child 15 years old until he comes of age is not an agree. ttlent"not to be performed within a year," within the meaning of the statute of frauds, sinoosucn promise. might btl fully performed within a year. if theobUd should die within that time.
At Law. On motion for a-new trial. . Action by Elizabeth Wooldridge against Jonas A·. Stern. plaiIitjff.. Defendant moves for a new'trial.. ., G,. Clark and U. M. Ingraham, $Q,fflz. BoYd apd SO/m),. l)qV'i$jJor deferidt}nt.
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