692
FEDERAL REPORTER.
tiff. On appeal the judgment was reversed and a new trial ordered. The opinion of the court was delivered by Mr. Justice SA.WYER, who 'said: "We think this is not a case that falls within the rule. The plaintiff did not pretend to have any other title than bS naked possession." In Coakley v. Perry, supra, the court says: "The decisions in this country, in which the grantee and those claiming under him were held to be estopped to deny the title of the grantor, were cases in which the grantee received and held possession under the conveyance, and relied upon it as his source of title, and not where the grantee held the title under a prior and independent conveyance."
Here the defendant derived nothing from the plaintiff, and does not rely on his conveyance as a source of title, but does rely on a title derived from the United States pripr to such conveyance. On the whole, my judgment is that this is not an exception to the rule which allows a vendee to deny his grantor's title, and from the facts stated in this defense it clearly appears that the defendant took nothing by the conveyance from the plaintiff, and is therefore not bound to keep the condition or covenant therein concerning the plaintiff's ditch. The demurrer must be overruled; and it is so ordered.
TRESCOTT
v.
CITY OF
WA.TERLOO. 1
(Circuit Oourt, No D. Iowa, E. D. November Term, 1885.) MUNICIPAL CORPORATION-IMPRISONMENT UNDER VOID ORDINANCE-ACTION FOR F AT.SE IMPRISONMENT.
A party who has been arrested for violation of an unconstitutional municipal ordinance, requiring a license fee to be paid by non-resident peddlers, and, on conviction, has served out his fine in prison, cannot maintain an ac· tion against the municipal corporation for false imprisonment.
At Law. Demurrer to petition. Blum « Blum, for plaintiff. C. W. Mullan, for defendant. SUIRAS, J. The questions submitted to the court are presented by a demurrer to the petition. The plaintiff avers that for the past two years he has been a citizen of the state of Illinois; that the defendant is a municipal cor!,oration, created under the laws of the state of Iowa; that it has legislative authority to license and regulate can. vassers and peddlers; and that, in pursuance thereof, in 1884, it adopted an ordinance as follows: "PEDDLERS AND HAWKERS.
"Pl"Qprietors of dollar stores and gift enterprises, and all persons transientl) remaining in the city, selling, or offering for sale, in any manner, any goods. 1 Reported
by Robertolon Howard, Esq., of the St. Paul bar.
TRESCOTT '11. CITY OF WATERLOO.
593
wares, or merchandise at retail, either in any temporary place of business, or traveling about the city, shall pay such sum as the mayor shall determine in each particular case."
-That said ordinance is unconstitutionalllnd void; that in February, 1884, the plaintiff, while engaged in peddling spectacles from door to door in said city of Waterloo, without having a license therefor, was, by order of the mayor of said city, arrested for so doing, fined, and imprisoned for non-payment of such fine, causing damage to plaintiff, for which judgment is sought in this action. To this petition a demurrer is interposed, on the ground that the facts alleged do not show a cause of action against the city. In the cases of Marshalltown v. Blum, 58 Iowa, 184, S. C. 12 N. W. Rep. 266, and Town of Pa.cijic Junction v. Dyer, 64 Iowa, 38, S. C. 19 N. W. Rep. 862, the supreme court of Iowa held that ordinances discriminating in favor of the residents of the city or town, against residents of other states, or against residents of other sections of Iowa, were void. Not questioning that the ordinance adopted by the city of Waterloo comes within the ruling thus made, and is therefore void, counsel have discussed the question whether the city can be held liable for damages to the plaintiff under the state of facts alleged in the petition. It will be borne in mind that the plaintiff could, by proper action on his part, have defeated the assessment of a fine against him for selling without a license. If the decision in the police court was adverse to him in this particular, he could, by appeal, have carried the case to a higher conrt, and thereby have caused the reversal of the judgment assessing a fine against him. Had he paid the fine under protest, he might have recovered the same in a proper action. He did not pursue either of these confses. Having undertaken to peddle goods without a license, and having been arrested for a violation of the ordinance, he suffered a fine to be entered against him, · and, rather thau appeal or pay the fine in money, he discharged the fine by suffering imprisonment under the provisions of the state statute. He now seeks to recover damages against the city on the ground that the ordinance is void because it discriminates in favor of the residents of the city. The supreme court of Iowa, in repeated decisions, affirms, as the law of the state, the general rnle that the police regulations of a city are not made and enforced in the interests of the city in its corporate capacity, but in the interest of the public, and that consequently the city is not liable for the acts of its officers in enforcing such regulations. Ogg v. Lansing, 35 Iowa, 495; Calwell v. City of Boone, 51 Iowa, 687; S. C. 2 N. W. Rep. 614. The regulation and control of peddlers, hawkers, proprietors of dollar stores, gift enterprises, and the like, as provided for in the ordinance passed by the city of Waterloo, is a police regulation, within the meaning of the rule laid down in the cases cited. v.26F.no.8-38
594
Again, the action of the city in adopting the ordinance in question was, upon its part, a legislative act, and the exercise of a right of sovereignty primarily belonging to the state, but by the state delegated to the city. For errors of judgment in the exercise of such powers the cities are not liable in their corporate capacity. Fowle v. Alexandria, 8 Pet. 898; Duke v. City of Rome, Ga. 635; Ogg v. Lansing, 85 Iowa, 495. . The demurrer to the petition is therefore sustained.
WILEY
for Use, etc., v. BOROUGH
OF
TOWANDA.
(OiJrcuit Oourt, lY. D. Pennsywania. February 17,1886.) CONTRACT IN BEHALF OF PROPOSED CORPORATION-PRELIM:INARY AGREEMENT -SUBSEQUENT ADOPTION OF CONTRACT.
The defendant and W. (who professedly acted in behalf of a corporation to be organized) executed an agreement under seal, providing for the erection, by the proposed corporation, of water-works; the defendant covenanting to pay to such corporation for the use of water a certain sum of money yearly, and it was stipulated that the agreement should inure to the exclusive benefit of the proposed corporation, and should be adopted and executed by it within 80 days from the date of its letters patent, or else the agreement should be void. The contemplated corporation having been created, within the prescribed time adopted the agreement. and formally executed the same under its corporate seal. In an action for subsequent breaches of the defendant's said covenant. brought by W. for the use of the corporation, held, that the agreement between the defendant and W. was preliminary, and was superseded by the completed contract between the defendant and the corporation. which ensued upon the adoption and execution of the agreement by the latter, and that the right of action was in the corporation and not in W.
At Law. Action of covenant. John F. Slmderson and John N. Califf, for the demurrer. W. B. Rodgers and John S. McCleave, contra. ACHESON, J. It is quite true that where the citizenship of the plaintiff gives jurisdiction, and the legal right to sue is in him, the court will not inquire into the citizenship of the party beneficially in" terested in the claim. The question presented, then, is whether Solon L. Wiley is invested with such legal right. To determine this, resort must be had to the written agreement declared on; and, as the scope thereof is indicated by the opening paragraph, it may be well to quote it at length: "This agreement marle this twpnty-eighth day of October, A. D. 1879, between the bor{)ugh of Towanc1a, in the connty of Bradford, and state of Pennsylvania, party of the first part, in pursuance of a resolution adopted by the town council of said borough on the twentieth day of October, A. D. 1879, and Solon L. Wiley, for and on behalf of the corporation to be organized in pursuance of the act of assembly of Pennsylvania approved the twenty-ninth day of April, 1874, and its supplements, for the supply of water to the lie, party of the second parti and this contract shall only inure to the benefit