JARECKI MANUV'G CO.
CITY OF TOLEDO.
the premises were to be occupied by the One Price Clothing Store, and that at the time of the execution of the first lease, and at the time of the. renewal in December, 1886; the actual ownership of the business, and the defendant's supposition upon the subject, was not a controlling or material consideration; that during the summer or fall of 1891 the defendant was offered a rental exceeding the sum named in the lease by something like $1,000 a year, and the refusal to comply with the option provision results from this offer, rather than the discovery of ownership. Upon the facts, I rule that neither the failure to state the ownership, under the circumstances, nor the character of the occupancy, works a forfeiture of the option provision; and I think the defendant should execute a lease according to the terms of the agreement, and it is so ordered. It may be considered at the defendant's option to execute the lease to Daniels, aa agent, or to the Manchester One Price Clothing Store, or to Sarah J. Bliss.
JARECKI MANUF'G CO., Limited, v. CITY OF TOLEDO, (three oases.). (Circuit Court. N. D. Ohio, W. D. January 3, 1893.) No. 1,076.
MUNICIPAL CORPORATIONS-CONSTITUTIONAL LAW-RETROSPECTIVE LAWS.
Where a city incurs liabilities for materials furnished for the completioll of a natural g'lS plant, after exhausting the proceeds of bonds issued under an enabling :lCt, a suppl('mentary statute (Act Ohio, April 7, 1892) y-alidating and providing for the enforcement of such obligations is not unconstitutional, as imposing upon the city burdens without consent or consideration. or asconferrng new corporate powers upon the city. Read v. City .of Plattsmouth,2 Sup. Ct. Rep. 208, 107 U. S. 568, and New Orleans v. Clark. 95 "G. S. 644, applied.
At Law. Actions by the J3l'ecki Manufacturing Company, Lim: ited, against the city of Toledo, Ohio, to recover for materials furnishEd and used in the completion of a natural gas plant. Heard ,on demurrer to the amended reply. Overruled. King & Tracey and E. W. Tollerton, for plaintiffs. W. H. A. Read, for defendant. RICKS, District Judge. This suit, and two others of similar character, were instituted against the city of Toledo to recover for the value of certain material furnished the trustees of the natural gas works of the city, and used in completing their lines, in order to furnish natural gas to the citizens of that city. The plaintiffs, in their petitions, aver that the materials and suppliCR were furnished at prices upon, and were used for the pur· poses l:ltated; that the city received said materials and Rupplies; has used. the same in the construction of said natural gas plant; is still using the same; has not paid the plaintiffs any part of the sums due, but that the same are just liabilities against said city. The answer sets forth, substantially, the defense that under the original enabling act the city of Toledo was authorized to issue not to exceed
. nDBRAL RBPORTER.
$75Q;OOOJ>f bonds, and from the proceeds thereof .to constroct a natural gM plant. for the use of the inhabital1ts of saidicity; that all ofsai4 ff/.pds have. been exhausted; and that the indebtedness set forthm the petitionaof the several plaintiffs was created without complying with the or:dinances of the city and the laws of the state of Ohio. in the several ri¥ll)ects named in the answer, and was therefore not Qtnding on the city.. To this answer the plaintiffs reply, admit· ting that the legislature passed the original enabling act January 22, 1889, and denying each and every other allegation in the amended an· swer· con,tained, except those herein specifically admitted. The· second paragraph. of the reply sets forth the fact that on the 7th of AprU, 1892, the legislature of the state of Ohio duly passed an aet enUtled "An act to fllupplement section 2491 of the Revised Statu1:e$()f: Ohio, as heretofore supplemented, by adding section 2491c antl 2491d," andt sets out section 2491d in full, which au· thorizeagas trustees, has constructed or cllused to be constructed a natural gas plant, or (lny portion thereof, and has accepted and approved the labor performed and the materlal furnIShed. 'in such construction at a price or prices ab'Teed upon betweev board the person 91-" persons furnishing snch labor and materials. and theelaimbr '('lalmstherefor have never been paid, nor any funds provided for the payment thereof,and such city still remains in the use and enjoyment of the material and laborso furnished, the prices so agreed to be paldl$hAltbe,deemedand:held to be binding and conclusive as to all of said <lontrB,ctlng parties, although such city, or board contracting In behalf thereof, exceeded ·the power and, authority heretofore granted tOl!luch city or board, and..may.not have with the laws then in force."
"Any city of the thlrd grade, of the first class, which, by Its board of natural
. . Theplainttlrs £Urthel' allege that all materials mentioned in their several we!'e so' furnished by them to the defendant long prior to the passage of the act aforesaid, and said defendant, ever sinc.e the SaIne was furnished, has been and still remains in the use and e:njoyment of the materials so. furnished; that said claims have never been. pald, provided for the payment thereof. The principal contention now to be considered is the claim of the defendant that this enabling act of the 7th of April, 1892, is uncon· stitutional, because it ,is It special act of the legislature, attempting to confer upon the city of Toledo corporate power' contrary to the constitution of the state. There is no dispute but that the original enabling act, authorWing the city to construct and operl;l>tea natural gas plant,. was valid and constitutional. There is no dispute but that the city, tlu'ough its gas trustees, in pursuance of the powers conferred by said act, prPceeded to buy territory, sink gas wells, construct high and low pressure pipe lines, .for the purpose of furnishing the of Toledo, and that they executed their natural trust, so .far. as the funds available under the original act permitted them to do. There is nO dispute but that, acting under this power, they creltted additional liabilities, which were deemed by them necessary for the completion of their work, and in order to furnish the city the benefits of the contemplated by the original act. There is no dispute but that the city has. received and used the supplies sued for in these three different suits, and no dispute but that
JARECKI MANtJF'<i CO. tI. CITY OF TOLEDO.
the city is justly indebted to the plaintiffs in s6me ainount,-whether to thefuII sum claimed or not it is not necessary to consider, for the purpose ofdisposing of this demurrer. . . . 'l'hequestion now presented is, broadly stated, whether the city can be permitted to thepaymentqf theseNst debts because the legislature had no constitutional power tOYalidate them, as it atttcmptt'd to do. b" the aet referred to. Ifis contended on behalf of the city that the legislature has no to make legal and valid debts which were incurred when the city had no constitutional power to create such indebtedness. The proposition, as stated, is not the real one under consideration. It is better expressed by Mr. Justice Matthews, in his usual lucid and forcible style, in his opinion in the case·of Read v. City of Plattsmouth, 107U. S. 568, 2 Sup. Ct. Rep. 208, where he says:
"The act In question, so far as it relatelil to the bonds in suit, does not confer any corporate power upon the city, in the sense of the constitution of th,) state. The statute operates upon the transaction itself,which had already previously been consummated, and seeks to give it a character IUld effect different In its legall;l$pect from that which it had when It was in fieri. Whether sneh an effect may be given by the legitimate exp.rc1se of legislative power, depends upon tho!le·considerations which draw the line beyond wlilch retroacti,e laws <tannot pass,and is not affected by the supposed form of the enactment as a lilpecial or general act conferring corporate power; for it operates upon the rights of the as determined by the equity on their circuiUst:mccs and relations, and gives to them the sanction derived from subsequent confirmation by clothing them witlJ. forms which arp. essential to their enforcement, but not to their existence."
.. Apply the principle here announced to the cases under consideration. The act in question, so far as the accounts sued upon are concerned, does not confer upon the city of Toledo any corporate power, in the sense of the constitution. These transactions had already been consummated. The relations of the parties had been determined by their voluntary act'>. The equities of these relations and surround· ir:gs were of the highest rank. The defendant had received and used the material and supplies furnished by the plaintiffs, and agreed to pay therefor. The legislature, finding such strong equities to exist, and the defendant willing to be clothed with power to confirm the contracts, enacted this general statute, which operates upon the transactions themselves, and upon the rights of the parties, by clothing them with forms essential to their enforcement. In the same opinion, the justice further states:
"In the present case, the statute hi question does not impose upon the city of Plattsmouth, by an arbitrary act, a burden, without consent and consideration. On the contrary, upon the supposition that the bonds issued as to the excess over$lu.OOO.OO were void, because unauthorized, the city of Plattsmouth received ilie money of the plaintiff merror, and applied it to the purpose intcmled.-of building a schoolhouse on property,-the title to which is confirmed to it by the very statute now claimed to be unconstitutional; and an obligation to restore the value thus received, kept, and used immediately arose."
These words in their spirit, and almost literally, apply to the present cases. The statute which validated these claims does not impose upon the city of Toledo, by an arbitrary act, burdens without consent and considf'ration. It is a matter of local history that the people of
Yote4 to issue these bonds and incur this vaet indebtedness was fully canvassed, and all the objections fully con· sidered. So that it may be fairly, said that the people took upon themlffllves this immense burden, of over $1,000,000, with full knowledge()f aJ,l, the responsibility to follow. This court is certainly not disposed to help them avoid paying full value for all material furno matter how unfortunate that investment has proved to be. Thecousequences must rest upon those responsible for the undertak· -. . . ing. : I think the case above referred to, in 107 U. S. and 2 Sup. Ct. Rep., atld the case of v. Clark, in 95 U. S., are both applicableto and of the questions in these cases. .I do not think tbj,g act confers any new power upon the dty of Toledo. The city was bound by the force of the transactions, 3.'i! stated, to reo turn to the vendors. 11 fair and legal equivalent for the materials received .and useq.; arid. the statute now in question only recognized the exililten,ce Of that obligation, and, by confirming it, provided a medium for enforcing it according to the original intention and purpose. This 1$ notcottferring any new corporate power upon the city. It is merely away from the corporation tue power to interpose a.n unconscionable defense against a just clabn, and to avoid an obligation to pay an equivalent for public benefits which it has con· tinued -to enjoy. It cannot restore to 'the plaintiffs the material reo ceh"ed from them amt used, and doea llot now offer to do ,so. It certailllyought to be able to do one or the other,-to return the material, ')r to be bound to pay a reasonable price for the same. It is furtber contended that this act seeks to take away from the city all right and authority to defend as to the value of the materials furnished. The act, upon its face, referring to the amount of such obligations, says:
"The prices so agreed to be paid shall be deemed and held to be binding and 'OnchlSive as to all of saldcontracting parties, altllOugh such city, or board contracting in behalf thereof. exceeded the power and authority heretofore gJ:lllltcd to such city or board, and although such city or board may not have l.'.oIPplied with the laWs then in force."
U there was any averment that there was any fraudulent comb,iruttion between the parties as to the prices agreed upon, by which the people of the city were to be defrauded, I think it perhaps doubtful whether the actcolJld be held to make such prices conclusive; but, as I say. that question is not now presented. Even if this part of the act should be Ullconstitutional, it would not invalidate the entire act, if other.parts of it were valid and constitutional. ,On the Whole, I am clearly of the opinion that the demurrer to the of the reply should be overruled.
"'1'hethree easelS SUbsequently tried to court, and judgment in each case for plaintiff.
. It is not necessary to pass upon this particular question at this
LAKIN V. DOLLY.
SAME v. UOBERTS et at
(Circuit Court, N. D. California. March 23, 189L) Nos: 10,596, 10,630.
A land patent from the goyernment of the UnIted States, issued with all the fOl'm8 of law, may be sho'9\'ll to be void by any extrinsic evidence which is callaule lif showing a want of authority for the isaue of the patent.
2. MINING CLAIM-PATENT-VALIDITY.
By tbe Tll'O\'j!o'iom; of Hey, SI.. t 2320, the land office has no pOWIll' to issue a patent to a n,ining claim extending more than 300 feet in width on e:lch side of the miclllleoJ:tlw l<:de. Such patent, if issued, is absolutely not merely voidable. as to sllch excess, and can be collaterally attacked in an action of ejectment; but one patent maJ" embrace two or more clliims on the same lode.. Smelting Co. v. Kemp, 104 U. S. 636, followed.
LANDLORD AND TENANT-EsTOPPEL TO DENY TITLE.
In 1876, B. entered and claimed for agricultural and building purposes certain public lumls. tllim; his claim in the county records, but acquiring no title from the UnIte.d States. A patE:nt to a mining claim, including this land, had been previously applied for, and was subsequently granted, but was void as to the lands in question. In 1883 nominal rents of from one to five dollars were paid to the patentee by assignees of B.'s interest, and other persons, after 1&'XI, entered on similar land, with the perlllission of the patentee, or with the understanding that he did not object so long as his rights w"!re not interfered with. In IS89 one claiming under the patentee's title notified such occupants to pay rent, to purcbase the land, or to quit. Held, in an action of ejectment, that the occupants had acted under a mistake as to the law in regard to the patentee's title, and that there was 110 relation of landlord and tenant sutlicient to estop them from denying such title.
SAME-",EvIDENCE-PAYMENT OF TAXES.
A mining company paid state and county taxes from 1878 to 1888 on certain lands covered by its but in respect to which the patent was void. After 1883 certain occupying claimants paid taxes on their improvements. Held, in an action of ejectment by the mining company against the Oc.cupyiDg claimants, that the payment of taxes was irrelevant and immaterial to establish title in either party.
At Law. Actions of ejectment by William H. Lakin against O. B. Dolly, (No. 10,596,) and against J. H. Roberts and others, (No. 10,630.) In cause No. 10,596 judgment was heretofore given for plaintiff. It is now resubmitted on an agreed statement of factB. Cause 10,630 is submitted on the same facts. Judgment for defendants in both cases. H. L. Gear, for plaintiff. Goodwin & Goodwin, for defendants. HAWLEY, District Judge. These cases are actions of ejectment. The Dolly case is submitted upon a stipulation"That defendant may move to set aside the judgment, and for a new trial of. the above-entitled action, without previous service of notice of intention, and witllOut showing of facts CO'lStitutiDg surprise or excusable neglect as a !,'round. of the motion; it bE'ing that if the facts hereinafter stipulated do, as matter of law, show a tight of the d"!fendant to defend the action saccessfully