See same case below, 6 App. D. C. 34.

appropriate relief in all cases within its ju- tolls, etc., and to restrain the District from
risdiction, enables it to do this without vio-prescribing regulations for such market, etc.
lence to principle. If one or the other must Affirmed.
give way, good sense unhesitatingly requires
that justice and positive rights, founded both
on valid statutes and valid contracts, should
not be sacrificed to mere questions of mode
and form." See also, to the same effect, the
case of Holland v. Challen, 110 U. S. 15 [28:
52].

Of course, these views are not applicable to cases arising out of interstate commerce, where the policy to be enforced is Federal. Nor has it been found necessary to consider whether the agreement between these parties was, as a contract of life insurance, void because the defendant had not complied with the statutes of Minnesota.

The decree of the Circuit Court of Appeals, affirming that of the Circuit Court, is accordingly affirmed.

COMPANY,

DISTRICT OF COLUMBIA.

(See S. C. Reporter's ed. 361-371.)

Rules of Washington Market Companypower to incur pecuniary liabilities-statute of frauds.

1.

2.

The power to establish rules and regulations with respect to the Washington Market Company, incorporated by the act of Congress of May 20, 1870, is given by § 16 to the city government, and not to the market company. The governor, either with or without the sanction of the board of public works of the District of Columbia, had no authority un

der the organic act of February 21, 1871, to incur a pecuniary liability with respect to the improvement of the market grounds, the erection of market buildings, and the operation of the market, which were within the province of the legislative assembly. 8. A court of equity will not release an individual from the operation of the statute of frauds, which requires that interest in lands be created by an instrument in writing, and impose an equitable lien upon land in

Statement by Mr. Justice White: *The Washington Market Company was in-[362] corporated by act of Congress approved May 20, 1870 (16 Stat. at L. 124, chap. 108). Authority was conferred upon the company to construct suitable buildings and operate public market on the site of the "Center Market Space," situated in the northwest section of the city of Washington, between Seventh and Ninth streets and B street and Pennsylvania and Louisiana avenues. exception of the sixteenth section, the provisions of the statute related solely to the public market thus authorized, and the operation and duration of the franchise.

With the

The sixteenth section is as follows:
"Sec. 16. And be it further enacted, That
the city government of Washington shall
have the right to hold and use, under such
rules and regulations as the said corporation
may prescribe, the open space at the inter-
section of Ohio and Louisiana avenues with
Tenth and Twelfth streets, as a market for
the purchase and sale of the following art-
icles: to wit, hay, straw, oats, corn, corn
meal, seed of all kinds, wood for sale from
the wagon, cattle on the hoof, swine on the
hoof, country produce sold in quantities
from the wagon, and such other bulky and
coarse articles as the said corporation may
designate. And from and after sixty days
from the passage of this act marketing
of the products named herein shall be ex-
cluded from Pennsylvania and Louisiana
avenues and the sidewalks and pavements
thereon."

The present litigation was begun on Jan-
uary 17, 1892, by the filing, on behalf of the
Washington Market Company, of a bill in
the supreme court of the District, the de-
fendant *named therein being the District of[363)
Columbia. The bill averred that the com-
plainant was vested by the section above
quoted with authority to establish the rules
and regulations therein referred to for the
government of the wholesale market author-
ized to be established. It was also averred
that, under authority of what was claimed to
be a contract arising from correspondence
had with the District, complainant, in 1871,
entered into possession of a part of the open
market space referred to in said section 16,
and, in 1886, of the entire space. The cor-
respondence relied on is set out in the
margin. It was alleged that the complain-[364]
†Washington Market Company,
November 8, 1871.
Decided Jan- Hon. Henry D. Cooke, Governor of the District

favor of one who makes improvements thereon, knowing that the title is in another,especially where the money is expended under an express understanding with reference thereto, had with the owner,--but will leave the party to the remedies, if any, which a court of law provides.

[No. 83.]

Argued December 9, 12, 1898. uary 3, 1899.

ON APPEAL from a diet cof the moist af

Appeals of the District of Columbia affirming the decree of the Supreme Court of said District dismissing a suit in equity brought by the Washington Market Company against the District of Columbia, seeking a decree against the District for losses occasioned by it to the market company by the abolition of

of Columbia.

Sir In section 16 of the charter of this comtersection of Ohlo and Louisiana avenues with Tenth and Twelfth streets Is assigned as a market for cattle and bulky and coarse articles to be sold in quantities from the wagon, and the marketing of such products in Pennsylvania

and Louisiana avenues is prohibited.

Notwithstanding this prohibition dealers are continuing to occupy Louisiana avenue in de

ant graded the grounds and made valuable | acts of interference by the District and also structures thereon; that it had operated and by recent public assertions of an exclusive was still operating a wholesale market there- right to possess and regulate said market, on, and that it had received and was receiv- the receipts from the operation of the same 365]ing the sources of revenue mentioned in the had been greatly diminished, so that the exalleged contract, except as to certain charges penses of maintaining the market had been which, it was averred, defendant had wrong-largely in excess of the sum received from its fully abolished. operation. It was prayed that an account might be taken and the District decreed to pay the losses occasioned by it; that the grain, and wood, and suitable stables, pens, and cattle yards, as soon as the concrete paving company, now occupying the western portion of said ground, shall vacate the same; all to be done to the satisfaction of the District authorities, and in such manner as to furnish creditable accommodations for a wholesale market.

District might also be restrained from pre-examine the contentions urged in the order scribing or attempting to prescribe rules and in which they have been made. regulations for said market, from interfering with the sources of revenue mentioned in the contract, and from forcibly ousting or resort [366]ing to legal proceedings to obtain possession of the premises. General relief was also prayed.

The answer of the District asserted the invalidity of the alleged contract; averred that the District alone was entitled to occupy said market space and to establish rules and regulations respecting the conduct of the market; and further averred the legality of any action taken by or on its behalf respecting said market space and the tolls imposed in the operation of the market.

The court entered a decree dismissing the bill; and, on appeal, its action was affirmed by the court of appeals of the District. 6 App. D. C. 34. An appeal was then taken to this court.

Mr. William Birney for appellant. Messrs. S. T. Thomas and A. B. Duvall for appellee.

[366] *Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

As to the claim that the market company is the corporation empowered by section 16 of the charter to establish rules and regulations with respect to the market therein authorized.

We do not find in the text of the statute anything justifying a construction of the words "rules and regulations" as employed in section 16, which would attach to them a less broad signification than is given to the word "regulations" in the second section, in which section, with reference to the public market authorized to be constructed and maintained by the Washington Market Company, it was provided that "the municipal government of said city shall at all times have the power to make and enforce such regulations with regard to said market and the management thereof as in their judg ment the convenience, health, and safety of the community may require." The fact that the power to establish and enforce regulations with respect to the market to be erected by the market company was vested in the municipality, and the further fact that a voice in the establishment of the amount of rent to be paid for stalls in the market of the company was expressly conferred upon It is difficult to determine precisely the the District authorities, prevents the infertheory upon which appellant predicates its ence that, with reference to the market which right to relief at the hands of a court of the city itself was "to hold and use," the city equity. In the bill what is termed a "title was deprived of the power to make rules and [368] to possession" of the market grounds is as-regulations, or that a broad and comprehenserted to be in complainant, and its right sive authority to establish such rules and regnot only to prescribe rules and regulations ulations was vested in the market company. with respect to the market is averred, but The grammatical structure of the sentence also a right to the sources of revenue men- also supports the view that the corporation tioned in the alleged contract. Despite, referred to in the sixteenth section was the however, the position thus taken in the plead-city government, for the nearest antecedent ings, and the fact that the complainant demanded that the District be compelled to account for the losses which, it is alleged, the complainant had sustained by claimed wrongful interferences of the District, counsel, in the argument at bar, bases the right to relief solely upon the prayer for general relief contained in the bill. In consequence of this abandonment of the specific grounds stated in the bill, the argument at bar is that while the market company, under the [367]section above referred to, had not obtained a general power to regulate and control the market, it was by said section vested with the power to locate and assign stands therein, and that the facts averred and shown by the proofs established an implied contract by which the District constituted the company an agent to manage and control the market and collect and disburse the revenues therefrom. And it is then argued that from these facts such a situation resulted as that it would be inequitable to permit the District to interfere in any wise with the possession, control, and management of the market without antecedently "reimbursing appellant for moneys expended as its agent in the administration of the wholesale market of Washington city."

Disregarding the fact that the claims asserted in the pleadings on the one hand and at bar on the other are divergent, we shall

to the word "corporation" is the city govern-
ment of Washington, the market company
not being named at all in the section.

As respects the alleged contract stated in
the bill to have been initiated in 1871 and
perfected in 1874.

By the written proposal concerning the
use and occupancy of the open market space,
bearing date November 8, 1871, addressed to
the governor of the District, the Washington
Market Company stated: "This company pro-
poses, with your permission, properly to grade
the grounds and to place thereon suitable plat-
forms of inexpensive construction, which will
enable the marketmen to do business on the
open space as contemplated by the act, charg-
ing them for the use of their stands such
sums as you and the District authorities may
prescribe, not to exceed the interest on the
actual outlay and the actual expenditures for
keeping the market in order.'
And it was
added: "There can be no possible objection
to this course." Upon this letter was placed
the following indorsement: "Approved, sub-
ject to such regulations as the legislative as-
sembly may hereafter prescribe. H. D.
Cooke, governor."

Irrespective of what may have been the
power possessed by the governor concerning
the market grounds or market, it is clear that
there is nothing in this proposal of the mar-
ket company, or in the qualified approval of

the governor iraporting a surrender by the on the part of the governor and board of pub legislative assembly of any rights which by lie works that the company, so far as those law were vested in it, such as the power to officials had the power, would not be disturbed establish and alter at pleasure the rules and in its possession without just cause. There regulations with respect to the manner of oc- was no agreement that a source of revenue cupancy and the tolls to be exacted for the would be supplied adequate to meet the exuse of stands. Certainly no easement was at-penditures, or that the District assumed liatempted to be created in favor of the market bility for any deficit in the revenue. If, how company in the land; at most, there was a ever, the correspondence and action taken mere revocable license to hold and use the thereon could be construed as importing an grounds. So, also, the language of the com- agreement to impose a pecuniary liability on [369]munication was carefully framed to permit the District, an inspection of the terms of the no inference that the District would incur organic act of February 21, 1871 (16 Stat. at any pecuniary liability for the cost of grad- L.419,chap.62),providing a government for the ing or the erection of the "inexpensive" plat- District of Columbia, clearly establishes that forms. The market company was evidently it was without the power of the officials uninterested in the placing of the grounds in dertaking to enter into the arrangement. suitable condition for occupancy by dealers, The making of regulations with respect to the and was willing to assume the risk of mak- use of the market grounds and the establishing expenditures, in reliance upon fair treatment of a tariff of charges, with the power to ment and good faith on the part of the Dis- subsequently alter or abolish the same, and trict authorities. the authority to incur a pecuniary liability The communication of April 8, 1872, evi- with respect to the improvement of the mar denced the fact that the market company had ket grounds, the erection of market buildings, gone into possession of the grounds, had and the operation of the market, were, be graded the surface, and erected two plat-yond question, within the province of the legforms, one of which contained an eatinghouse islative assembly; and any assumption on the and storehouses. The company solicited au- part of the governor, either with or without thority to collect certain tolls and charges, the sanction of the board of public works, of including storage fees, and agreed to keep an authority to conclude the legislative assemoffice upon the grounds and furnish suit- bly in such matters, would have been purely able watchmen, and after applying the reve- ultra vires. nucs to the expenses of management and keep- There was nothing in the conduct of the ing in repair and good condition the grounds, District subsequent to 1874, which, if it pos with ten per cent annually on the cost of im- sessed the power, could be construed as a ratprovements, promised to pay over the balance ification of the alleged contract or as import of revenue, if any, to the District. That the ing binding efficacy upon the District. company did not consider itself in the light There was certainly no recognition of the of an agent or employee of the city in making market company as a mere employee making improvements on the grounds is shown in the expenditures and disbursing revenues solely communication. Thus, the buildings for the as the agent of a principal, and the Disuse of which it solicited authority to charge trict authorities were never notified that the storage rent are referred to as "their" build- *market company would look to it for repay-[371] ings. It is expressly stated in connectionment of any deficit in revenues. So long as with the stipulation that the company might retain from the revenue ten per cent annually on the cost of improvements, that such improvements were "to be made at the company's charge;" and it is also stated that the company should be entitled to receive a fair compensation for "its" buildings and improvements on the market grounds, if by authority of Congress the company should at any time be dispossessed of the use and occupancy of the grounds. While this latter arrangement is said to have been orally acquiesced in, it was not until April 6, 1874, that formal official action was taken approv The facts in the case at bar bear no analoing the same, with the proviso, however, that gy to those which were present in the cases the arrangement was not to prejudice any referred to in Pomeroy's Equity Jurispru lawful future action of the board, of the leg-dence (vol. 1, § 390), to which our attention islative assembly, or of Congress." has been directed by counsel for the appellant. There individuals, acting on the supposition that they had a title to or interest in lands, expended money in erecting buildings or other improvements thereon, while the real owner stood by and made no protest. No ground exists for the pretense that such was the case here. A court of equity will not relieve an individual from the operation of the statute of frauds, which requires that in terest in lands be created by an instrument of writing, and impose an equitable lien up

Assuming that authority was vested in the [370]governor and *board of public works to enter into the arrangement suggested in the second proposition of the company, it is clear that thereby no easement was created in the land in favor of the market company, and the company recognized the fact that Congress might lawfully dispossess the market company from the use and occupancy of the grounds. The qualified acceptance of the proposal at most only constituted an implied assurance U. S., Book 43.

172 U. S.

31

the company was willing to care for the grounds and to operate the market, while the annual revenues were less than the ordinary expenses of management, as appears to have been the case, without calling upon the District to assume the responsibility for a deficit, there was no occasion for the District to take decisive action. The furnishing of accounts, beginning with 1888, possesses no weight, as manifestly the District was inter ested in the ascertainment of the fact whether or not there was any surplus revenue to which it was entitled.

481

on land in favor of one who makes improve- | advertisement stated that "for information ments thereon, knowing that the title is in in regard to the location and site of the another, especially where the money is ex- docks bidders are referred to the commandpended under an express understanding with ants of the Brooklyn and Norfolk Navy reference thereto had with the owner, but will Yards." On May the 23d, pending the publeave the party to the remedies, if any, which lication, the Navy Department addressed to a court of law provides. the commandant of the Brooklyn Navy Yard the following letter:

Argued October 19, 20, 1898. Decided Janu-ers, applied for information as to the pro