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December 3, 1906.

Argued November 5 and 6, 1906. Decided | vides expressly for the assessments of benefits and damages for pavements already constructed in West Chapel street.

I

N ERROR to the Supreme Court of Errors of the State of Connecticut to review a judgment which, on a third appeal, affirmed the judgment of the Superior Court of New Haven County, in that state, establishing an assessment against a street railway company for the cost of paving be

tween its tracks and 1. foot on each side. Affirmed.

See same case below, 1st appeal, 75 Conn. 442, 53 Atl. 960; 2d appeal, 77 Conn. 219, 58 Atl. 703; 3d appeal, 77 Conn. 667, 60

Atl. 651.

The facts are stated in the opinion. Messrs. George D. Watrous and Talcott H. Russell for plaintiff in error.

Messrs. Leonard M. Daggett and E. P. Arvine for defendant in error.

"This conclusion entitles the plaintiff to relief from the assessment as laid by the amendment to the report of the bureau of compensation; and it is therefore ordered that the assessment be reduced to the sum of $5,823, as recommended by the bureau of compensation."

And the judgment of the superior court recited:

"The asphalt pavement in said street is not a direct benefit to the plaintiff or its property, but, on the other hand, is a direct damage to the plaintiff and its property, inasmuch as it largely increases the expense of repairing the roadway between the rails, and of general repairs to the track, ties, and structure of the railroad. The only benefit to the railroad is such as results from the general improvement to the locality by reason of such pavement tending to increase the population and traffic in This case involves the validity of an as-that section of the city. Such benefit does sessment of $36,879, against plaintiff in er- not exceed the amount of $5,823." ror, for the cost of paving between its tracks and for 1 foot on each side thereof. Plaintiff in error operates a double track electric railway through West Chapel street in New Haven.

Mr. Justice McKenna delivered the opin

ion of the court:

In pursuance of certain laws of the state the court of common council, through a contractor, caused the street to be paved with sheet asphalt. The work was begun in June, 1897, and completed in October or November of the same year. The city paid for the work, and, as provided by the statutes, assessed against plaintiff in error its proportion of the cost; to wit, $36,879. On appeal to the superior court for New Haven county, that court reduced the assessment to $5,823, and entered judgment against plaintiff in error for that sum.

The learned judge of the superior court expressed the contentions of the parties and

his conclusions as follows:

"It is contended by the defendant that

the assessment against the plaintiff is legal and valid under the act of 1895. Charter of New Haven, page 80.

"It is contended by the plaintiff that the act of 1895 is repealed by the act of 1899, Special Laws of 1899, p. 181; and if it is not repealed, the act of 1895 is unconstitutional and void.

"Inasmuch as I hold and rule that the act of 1895 is repealed by the act of 1899, it is unnecessary to pass upon the constitutionality of the former. The intention and effect of the latter act is to repeal the former. The last act covers the whole subjectmatter of assessments for benefits and damages arising from paved streets, and pro

Upon the appeal of the city the judgment was reversed by the supreme court of errors. 75 Conn. 442, 53 Atl. 960. On the return of the case to the superior court that court rendered judgment dismissing the application of plaintiff in error, and confirming and establishing the assessment of $36,879. The judgment was reversed by the supreme court of errors and the case remanded to the superior court, with directions to deduct from the assessment the cost of repair. In accordance with this direction the superior court deducted from the assessment the sum of $3,590.85, and confirmed the assessment less such deduction. This judgment was affirmed by the supreme court of errors.

The statutes under which the street was

paved and the assessment against plaintiff in error was made may be summarized as follows: Section 9 of the charter of

plaintiff in error authorized the common council of the city to establish such regulations in regard to the railway as might be required for "paving . . . in and along the street," and the company was required to conform to the grades then existing or thereafter established. And it was provided that the company should "keep that portion of the streets and avenues over which their road or way shall be laid down, with a space of 2 feet on each side of the track or way, in good and sufficient repair, without expense to the city or town of New Haven, or the owners of land adjoining said track or way."

It was provided (§ 13) that the act might

be altered, amended, or repealed at the damages, and a specification of limits of pleasure of the general assembly.

The charter was amended July 9, 1864, and the company was authorized to lay down its tracks and run its cars through Chapel street, subject to the prohibitions of the 9th section of its original charter.

the assessment, varying with the kind of material used for paying. Assessment of benefits and damages for the pavement on certain streets and on West Chapel street were required to be laid in accordance with the provision of the act. Anyone aggrieved by the assessment was given the right of appeal to the superior court. The act was declared to be an amendment to the charter of the city, and acts inconsistent therewith were repealed. The liability of street railway companies under the general laws was

The statutes and the assessments made under them are attacked by plaintiff in error as repugnant to the contract clause of the Constitution of the United States and the 14th Amendment.

In 1893 a general law was passed applicable to all railways, by § 6 of which it was provided that every street railway was required to keep so much of the street or highway as is included within its tracks, and a space of 2 feet on the outer side of the outer rails, in repair, to the satisfac-preserved. tion of the authorities of the city, town, or borough which was bound by law to maintain such street or highway. More expensive material, however, was not to be required than that used on the other parts of the street, except, however, for a space of 1 foot on each side of each rail, unless a more expensive kind of material was required in the order permitting the original location of such railway. If the railway company did not make such repairs after notice, it was provided that the city might do so, and recover the expense thereof from the company. And it was provided that the act should be deemed an amendment to the charters of all existing railway companies.

1. The contention that the assessment was unconstitutional, even though the act of 1895 is constitutional, was commented on by the supreme court of errors on the second appeal as follows:

"Other claims new to the case are made, to the general effect that, as the street had been paved twenty-three years before, and the plaintiff had been assessed a portion of the cost thereof, and especially as the city had not shown the need of the new pavement as a means of repair, an unconstitutional use of the act would result if the present charge against the plaintiff was enforced. These claims have no foundation, either in the application or pleadings, and therefore have no standing in the case. We do not hesitate to say, however, with

On July 1, 1895, an act was passed authorizing and empowering the court of common council of the city to issue bonds for the construction of permanent pavements, and providing that all pavements laid by authority of the act should be laid upon the grade of the street, and the city was em-out discussion, that in view of the pleadpowered to collect the cost thereof from ings, which did not put the defendant to the owners of abutting land. The act con- the proof of the necessity of the new work tained the following provisions as to rail- as a means of repair and proper maintenance of the street, the facts indicated could not be held sufficient to accomplish the results claimed for them." [77 Conn. 224, 58 Atl. 705.]

ways:

"On all streets occupied by the track, or tracks, of any railway company or companies, said company or companies shall be assessed and shall severally pay to the city the cost of paving and repaving the full length, and 9 feet wide for each and every line of track of such railway or railways, now existing, or that may hereafter be laid in any street of said city."

By supplement to this act, passed in March, 1897, it was provided that, in estimating the cost of each square yard to be assessed, the entire cost of laying the pavement and the agreement to keep the pavement in repair for a period not exceeding fifteen years should be considered.

An act passed, April 28, 1899, provided for an assessment upon the "grand list" 1 mill on the dollar for the paving of streets, to be expended only for the original construction of pavements. There was a provision for the laying of benefits and

Plaintiff in error contests this conclusion of the court, and insists that the claims were made on the first appeal of the case, and were overlooked by the court. It is questionable whether we may dispute the ruling of the supreme court of errors as to what the record in the case before it showed. But, granting we have such power, the record does not justify the assertion of plaintiff in error. A bill of exceptions was tendered by plaintiff in error to the superior court of certain claims and requests for rulings made by plaintiff in error, so that the questions arising thereon could be considered by the supreme court of errors in connection with those by the appeal of the city, and one of the claims was "that the repavement, if required at all, could only be required when it was

found to be a satisfactory, or the most, 1895; the railway company claims to limit satisfactory, method of repair, which did its liability at least to the smaller sum asnot appear in this case."

sessed by the court, upon the strength of the rule of assessment prescribed in the act of 1899, as interpreted by the court and accepted by the company." And after the construction and discussion of the provision of the two acts the court said: "The situation is, we think, susceptible of a sim

The bill of exceptions stated also that the court did not rule upon the requests, because it was of opinion that the act of 1895, so far as it affects the pavement in question, was repealed by the act of 1899, "and therefore decided against said requests." The court allowed the bill of ex-ple explanation. The act of 1899 is to ceptions, and expressed the reason as follows: "Being of the opinion that some, at least, of the questions arising upon the above bill of exceptions will arise again if a new trial of this cause should be had, the above bill of exceptions is hereby allowed, and ordered to be made a part of the record."

be taken in its natural meaning. Its provisions relating to assessments were intended to deal only with assessments of benefits and damages in favor of or against owners of land whose land adjoins the street in which the pavement is laid, by reason of some benefit or damage received affecting its value. The railway compa

be regarded as within their scope. No change in the burden already upon them for the completed work was intended to be effected." [75 Conn. 446, 450, 53 Atl. 962, 963.]

So, deciding between the statutes, the court adjudged that the act of 1895 was constitutional, on the ground that it was a proper exercise of the police power of the state, and on the ground that the act was an exertion of the power reserved by the state of altering, amending, or repealing the charter of the railway company. If either ground is tenable the judgment must be affirmed. We will place our decision on the second ground, as being of more local character, and because the exercise of the power expressed only comes under our review in its excesses.

But this does not militate with the rul-nies were not meant to be and are not to ing of the supreme court of errors, nor indicate that the court did not consider the claims and requests of plaintiff in error. The ruling was based upon the application or pleadings, and it is not contended that the court's view of the application or pleadings was erroneous. Indeed, on the return of the case to the superior court an application was made by plaintiff in error for leave to amend its application by adding six paragraphs, setting out the grounds indicated above and other grounds why the assessment was an unconstitutional exercise of the authority in terms conferred by the act of 1895. The motion was denied on the ground (1) that the court had no power to allow the amendment, and (2), that the amendment ought not, as a matter of discretion, to be allowed. The ruling was affirmed by the supreme court of errors. Justifying its ruling, the court denied that it thereby enforced a stringent rule of pleading, but said it enforced only the familiar one which confined the evidence to the matters pleaded, and that it was the duty of plaintiff in error to have made its application full enough to cover all the claims desired to be made.

(2) It will be observed that the superior court ruled that the act of 1895 was repealed by the act of 1899, and that the latter act covered the whole subject-matter of assessment for benefits and damages accruing from paved streets, and provided expressly for the assessments of benefits and damages for pavements which had been constructed on West Chapel street. The supreme court of errors reversed the ruling and sustained the contention of the city that the assessment should be made under the act of 1895. The court said: "This difference of view explains the situation disclosed by the case. The city bases its claim to the larger sum assessed by it upon the rule of recovery laid down in the act of

We accept the decision of the supreme court of errors, that the statutes were intended as exercise of the power of amendment reserved by the state, although plaintiff in error contends that such was not their intention. The court treated the question involved as primarily one on statutory construction, and "best approached," to use the language of the court, "by an examination of the statutory situation," and upon that examination pronounced its conclusion that "the act of 1895 was in effect an amendment of the plaintiff's charter," citing Bulkley v. New York & N. H. R. Co. 27 Conn. 479; New York & N. E. R. Co. v. Waterbury, 60 Conn. 1, 22 Atl. 439. Was such an amendment in excess of the power of the state? The limitation upon the power of amendment of charters. of corporations has been defined by this court several times. It is said in one case that such power may be exercised to make any alteration or amendment in a charter granted that will not defeat or substantially impair the object of the grant or any rights which have vested under it, which

the legislature may deem necessary to secure | ment of the charter in 1864 this obligation either the object of the grant or any other was retained, and also in the public acts public right not expressly granted away by of 1893. In the act of 1895 the duty of the charter. Holyoke Water-Power Co. v. paving and repaving was imposed on all Lyman, 15 Wall. 522, 21 L. ed. 140. In railway companies. We shall assume, for another case it was said that the "altera- the purpose of our discussion, that the duty tions must be reasonable; they must be to repair did not include the duty to pave made in good faith, and be consistent with and repave, although much can be said and the scope and object of the act of incorpo- cases can be cited against the assumption. ration. Sheer oppression and wrong cannot Does the change and increase of burden upbe inflicted under the guise of amendment on the plaintiff in error come within the or alteration." Shields v. Ohio, 95 U. S. limitations upon the reserved power of the 324, 24 L. ed. 359. Later cases have re- state? Has it no proper relation to the peated these definitions. Sinking Fund objects of the grant to the company or any Cases, 99 U. S. 720, 25 L. ed. 502; Green- of the public rights of the state? Can it wood v. Union Freight R. Co. 105 U. S. be said to be exercised in mere oppression 13, 26 L. ed. 961; Close v. Glenwood Cem- and wrong? All of these questions must be etery, 107 U. S. 476, 27 L. ed. 412, 2 Sup. answered in the negative. The company Ct. Rep. 267. In the Sinking Fund Cases, it was given the right to occupy the streets. was said that whatever regulations of a It exercised this right first with a single corporation could have been inserted in its track, and afterwards with a double track. charter can be added by amendment. All Before granting this right the state certhe cases are reviewed and their principles tainly could have, and reasonably could affirmed in Stanislaus County v. San Joaquin have, put upon the company the duty of & K. River Canal & Irrig. Co. 192 U. S. 201, paving as well as of repairing. Such re48 L. ed. 406, 24 Sup. Ct. Rep. 241, and quirement would have been consistent with water rates fixed by the board of super- the object of the grant. It is yet consistvisors of the county of Stanislaus under a ent with the object of the grant. It is not law of the state sustained though the in- imposed in sheer oppression and wrong, and come of the company was reduced from 11⁄2 the good faith of the state cannot be quesper cent per month to 6 per cent per annum. tioned. It is imposed in the exercise of one In the light of these cases let us exam- of the public rights of the state, the estabine what the statutes of Connecticut require lishment, maintenance, and care of its highof plaintiff in error. By its original char- ways. The extent of this right is illustrated ter (1862) plaintiff in error was required to by West Chicago Street R. Co. v. Illinois, keep the street between its tracks, with a 201 U. S. 506, 50 L. ed. 845, 26 Sup. Ct. Rep. space of 2 feet on each side of the tracks, 518, and cases cited. in good and sufficient repair. In the amend

Judgment affirmed.

NATIONAL LIVE STOCK BANK OF CHI- | belonging to one W. B. Grimes, and by him CAGO, ILLINOIS, Plff. in Err.,

V.

ILLINOIS.

mortgaged. The trial resulted in a judgment for the defendant, which was affirmed by

FIRST NATIONAL BANK OF GENESEO, the supreme court of the territory, and the plaintiff has brought the case here by writ of error.

Appeal-distinction between appeal and writ of error.

1. Writ of error is the proper method of reviewing a judgment of the supreme court of the territory of Oklahoma, affirming a judgment of the court below in an action of replevin tried by the court upon waiver of a jury. *

Error-to territorial supreme court-statement of facts.

2. There is a finding of facts upon which a review can be had in the Supreme Court of the United States by writ of error to the Oklahoma supreme court, where the latter court states in its opinion that on a prior appeal it had made "a full statement and findings of facts," and had enunciated the law as applied thereto, and that finding the record the same as stated in its former opinion, and being satisfied with the law as therein declared, no new question being raised, the judgment of the trial court is af

firmed.

Chattel mortgage-assignment-record.

3. The provision for recording the satisfaction of a chattel mortgage by the mortgagee, his assigns or personal representative, which is made by Kan, Gen. Stat. 1901, 8 4251, 36, does not make it necessary to record or file the assignment of a chattel mortgage in order to protect the assignee.† Chattel mortgage-assignment-record.

4. The failure of the Kansas laws to prohibit the recording of the assignment of a chattel mortgage given to secure a negotiable note does not make such action neces

sary in order to protect the assignee, but, in order to compel such action, there must be a law which provides for such record, either in express terms or by plain and necessary implication.

[No. 33.]

The action has been twice tried. The first

trial ended in a judgment for the plaintiff. Upon appeal to the supreme court of the territory it was reversed and the case remanded, and a second trial had, resulting in the judgment for defendant now under review. Upon the second appeal to the supreme court of the territory a brief opinion was given, in which it was stated that upon appeal from the first judgment the court had "promulgated an opinion, in which it made enunciated the law as applied thereto, rea full statement and findings of facts and versed the judgment of the lower court, and remanded the case, directing a new trial. 13 Okla. 719, 76 Pac. 130." The court also stated in its opinion on the second appeal that it had been agreed upon between the parties in the trial court that a jury should be waived and the case submitted on the record as made on the first trial, and that "no new question is raised on this appeal. The record is the same as stated in our former opinion, and we are fully satisfied with the law as therein declared. The judg ment of the lower court is hereby affirmed at the cost of the appellant." [(Okla.) 79 Pac. 1134.]

The following facts were found by the supreme court on the first appeal, and were adopted by it as the facts for review on the second appeal:

One W. B. Grimes, who at the time was a resident of Clark county, in Kansas, executed at that place, on the 27th day of June, 1900, and delivered to Siegel-Sanders Live Stock Commission Company, his negotiable promissory note for $11,111.23, due November 1, 1900, with interest from maturity at the rate of 8 per cent per annum. To

Argued October 17, 18, 1906. Decided De- secure the payment of this note he executed

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cember 3, 1906.

N ERROR to the Supreme Court of the Territory of Oklahoma to review a judgment which, on a second appeal, affirmed a judgment of the District Court of Woodward County, in that territory, in favor of defendant in an action of replevin. Affirmed.

See same case below (Okla.) 79 Pac. 1134; on former appeal, 13 Okla. 719, 76 Pac. 130.

Statement by Mr. Justice Peckham:

This is an action of replevin, brought by the plaintiff in error against the defendant in error, in the district court of Woodward county, in the then territory of Oklahoma, to recover possession of certain cattle, once

and delivered a chattel mortgage to the
payee of the note on 526 cattle then in the
county, and the mortgage was duly filed in
the office of the register of deeds of Clark
county on July 12, 1900. The note was
then indorsed and delivered by the payee to
the Geneseo Bank, the defendant in error.
It does not appear that there was any sep-
arate assignment of the mortgage. No rec-
ord of any assignment was ever made in
the register's office of Clark county, Kan-
sas. On the 24th day of November, 1900, al-
though the Siegel-Sanders Company had al-
ready sold and delivered the note for $11,-
111.23 to the Geneseo Bank, the defendant in
error, yet, notwithstanding such sale, the
president of that company, Frank Siegel,

*Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 8-21.
tEd. Note.-For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 451.

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