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could have been known to, the landlord; but a contract to make the premises safe, or a it was not so obviously dangerous as to have warranty of their condition; and, keeping this deterred an ordinarily careful person from rule in view, the tenant and his boarder are using it, or seeing its danger. It is said that entitled to as much protection against the landthe landlord's liability to his tenant is more lord as is the stranger passing along the street restricted than it is to third persons, and this or occupying adjoining premises. It cannot is unquestionably so, in so far as it rests upon be the law that the owner of an hotel which is the contract between the parties, and want of in an unsafe condition, known to him to be so, care in the tenant; but, in this and similar cases, or by reasonable care and diligence he could there is a separate and distinct ground of lia- | know, can lease it to a tenant, who exercises bility, depending, not upon contract or want reasonable care and diligence, and does not of contract, but upon the obligation the land discover the danger, and then escape liability lord or landowner is under to his tenant, as to eitber the keeper of the hotel, or his family well as third persons, not to expose them to or servants, or the persons who enter the hotel danger which he knows or could know by the for its accommodation. What the hotel exercise of reasonable diligence. The rule laid keeper's liability may be at the same time is down does not place upon the landlord the pot a question now before us. While many obligation of an insurer or warrantor by con- of the cases cited in the opinion are cases tract, nor does it impose the extreme duty of where the liability was held to exist as to constant care and inspection, but it does impose third persons, there is no difference between upon him the duty of reasonable care and such third persons and the tenant and his diligence to inform himself of the condition of servants, the matter of contract and negligence the property which he proposes to let; and if, of tenant being out of the way, as is said in when he leases, he knows, or by the exercise Cowen v. Sunderland, 145 Mass. 363. There is of reasonable care and diligence should know, an exception to the general rule of caveat that the premises are dangerous, it is his duty emptor. as between lessor and lessee, “arising to make them safe before be leases, or inform from the duty which the lessor owes the lessee. the tenant of their condition; and if he does not, This duty does not spring directly from the he must respond, to any person not in fault, contract, but from the relation of the parties, for damages caused by such condition of the and is imposed by law.” We quote from Wood premises, whether tenant or third person. Nor on Landlord and Tenant (p. 855): “Where does this holding imply, as counsel suggests, there are defects in the premises not open to that the tenant is thereby entirely relieved ordinary observation, of the existence of which from the duty of proper diligence on bis part, the landlord knows, or ought to know, which and that the landlord is virtually made guar- are dangerous to the person of the tenant, it is dian for the tenant. The obligation of the his duty to disclose them to the tenant, and if tenant to exercise proper diligence was prop. he fails to do so, and the tenant is in jured erly stated by the trial judge, and there is thereby, the landlord is responsible for all the poihing in the ruling of this court that can damages that epsue to the tenant therefrom." legitimately bear the construction given to it Again (p. 869), the same author says: “But, by counsel to relieve the tenant of such care. when the premises, at the time when they are

The contention in the Sterberg Case is, leased are in so defective a condition as to be mainly, that, being a boarder, she was the per se a nuisance, especially when they are guest of the tenant, and not a third person in leased for a quasi-public use, the landlord is the eye of the law. It suffices to say, upon responsible for injuries resulting either to the this point, without noting other considerations, tenant or third persons lawfully upon the that the evidence shows that the bouse was let premises therefrom.” to be used as a boarding house, and recom- The rule laid down by this court, and (as we mended by the landlord for that purpose. If think) sustained by autbority and reason, is it was unsafe for that purpose, which is a that, in the absence of a contract to repair, or quasi-public purpose, and defendant knew it, warranty of covdition, both the landlord and or could by reasonable care and diligence bave tenant must use reasonable care and diligence. known it, he should respond in damages to any If the tenant neglect such reasonable care and person injured on the premises. The boarder diligence to ascertain the condition of the is there as much by invitation of the landlord premises, or, knowing their condition, assumed as of the tenant. She is there, not strictly as the risk, then he cannot recover against the a guest, but as a third person, legitimately on landlord. On the other hand, if the landlord the premises on business, for the purpose for neglect to use reasonable care and diligence in which they were let. The rule is that, if the ascertaining whether his premises are safe, or landlord is guilty of delictum or negligence, be if he actually knows they are unsafe, and conis liable; otherwise, not. And in this view of ceals or misrepresents their condition, then he the case, the tenant and his boarder stand upon is liable, the tenant being in no fault. It is the same footing, the contract being out of the not upon the ground of an insurer or warrantor way. The tenant may have more extensive of condition under his lease contract, but on rights if she expressly contracts for safe prem. the ground of the obligation implied by law ises, and is assured of their safety; and, on the pot to expose the tenant or the public to danger other hand, her rights may be restricted if she wbich he knows, or in good faith should know, is guilty of negligence in ascertaining for her- and wbich the tenant does not know, and canself the condition of the premises when she not ascertain by the exercise of reasonable rented them, or took them knowing them to care and diligence. The cases are numerous be unsafe. The rule, as laid down by this which use the expression, laid down in the court, imposes reasonable care and good faith opinion in this case, that the landlord is liable, con both landlord and tenant, in the absence of l not only for actual knowledge, but also for

TENNESSEE SUPREME COURT,

FEB.,

care.

reasonable care and diligence in obtaining such the time the lessees entered into the possession knowledge,-not only when he knows, but of the storeroom does not appear.” As illuswhen he ought to know, of the defects, by trative of the application of the rule we bave using ordinary care and diligence. As using laid down, we cite the following, among otber this expression, we cite, amoug others, Martin cases, showing when the rule is applied, and v. Richards, 155 Mass. 381; State, Bashe, v. as to what persons held applicable: In Suords Boyce, 73 Md. 469; Carson v. Godley, 26 Pa. v. Edgar, 59 N. Y, 28, 17 Am. Rep. 295, a 111, 67 Am. Dec. 404; Coke v. Gutkese, 80 Ky. ’longshoreman in the service of the tenant sued 598, 44 Am. Rep. 499. In the late case of the owner, and recovered. In Godley v. Hag. Lindsey v. Leighton, 150 Mass. 288, it was held erty, 20 Pa. 387, 59 Am. Dec. 731, a servant that it was not necessary to show that the owner of the tenant sued the owner, and recovered. bad actual knowledge of the defects. His duty In Carson v. Godiey, supra, a customer of the was that of due care, and ignorance of the tenant sued the owner, and recovered. In defect was no defense, in the absence of such Cesar v. Karutz, 60 N. Y. 229, the owner was

In Moynihan V. Allyn, 162 Mass. 272, held liable to the child of the tenant. In Coke it was held that it was the duty of the landlord v. Gutkese, supra, the owner was beld liable to inform the tenant of any hidden defects, for injuries sustained by a child of the tenant. wbich could pot be discovered by reasonable In Martin v. Richards, 155 Mass. 381, three diligence on his part, and of which the defend cases were tried together, and the owner was ant ought, for his proper protection, to be held liable for an injury to the child and wife informed; citing quite a number of other Mas- of the tenant. In Minor v. Sharon, 112 Mass. sachusetts cases. Mr. Pingrey says, in § 592 477, three cases were tried together, and the of his work on Real Property: “Of course, if owner was held liable for injuries to the tenant's there is a concealed defect which renders the children. In State, Bashe, v. Boyce, 73 Ma. premises dangerous, which the tenant cannot 469, the owner was held liable for injuries 10 discover by the exercise of reasonable diligence, the servant of the tenant. Ip Gill v. Middleton, of which the landlord bas or ought to have 105 Mass. 477, 7 Am. Rep. 548, the owner was knowledge, it is the landlord's duty to disclose held liable for an injury to the wife of the it, and he is liable for an injury which results tenant. In Nugent v. Boston, C. & M. R. Co. from his concealment of it.” In $ 594 the same 80 Me. 62, the owner was beld liable to persons author says: It is held that the obligation rightfully on the premises. In Nelson v. Lir. and liability are the same to the tenant's guest erpool Brewing Co. L. R. 2 C. P. Div. 311, the and to his servants, “and the landlord is re- right of the servant of the tenant to sue was sponsible, unless it appears that such owner did recognized. In Moynihan v. Allyn, 162 Mass. pot kuow, or by reasonable care and diligence 272, the right of the child of the tenant to sue could not have known, of the upsafe condition was recognized. And Mr. Pingrey, in his work of the premises when he leased them." on Real Property, expressly states that there is

Under the principle we have attempted to lay no distinction in the rule as to the liability of down, the landlord's liability, leaving the con- the owner to the tenant or to the tenant's tract of lease out of view, is the same to the guest, or to the tenant's servant. In each in tenant as to his servant, or his guest, or bis stance be says the rule is the same. customer, or his wife or child, or to the stranger We see no reason or occasion for rebearing passing along the streets or on the premises for the causes upop further arguments or briefs. any legitimate purpose. The only case cited The petitioners make no new grounds of deby counsel apparently holding a doctrine con- fense, and lay down no principles that bave not trary to that laid down by this court is that of already been fully argued by counsel for deBurdick v. Cheadle, 26 Ohio St. 393, 20 Am. fendant, and still more fully investigated and Rep. 767. This case is also reported in 50 Am. considered by the court. It could serve no Dec. 782, and referred to as a peculiar case, useful purpose to bave further argument along and, as we think. very justly criticised, as lines that the court does not consider conclusive placing the party injured in a very anomalous or material in the case. The court is satisfied position. The case is clearly out of line with with its conclusions, and has no doubt of the current of authority. It may be remarked, ibeir correctness when properly understood however, that in that case the court said: and applied. "Whether the noxious structures existed at The petition to rehear is denied, and dismixsed. 34 L. R. A.

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GRAND ISLAND & NORTHERN WYOMI proceeding to enjoin defendants from collect-
ING RAILROAD COMPANY ing certain taxes which had been levied in

Crook county for the year 1895. Answers fa-
Norval H. BAKER et al.

corable to complainant.

The facts are stated in the opinion. (.... ....Wyo.........)

Messrs. Burke & Fowler and N. K.

Griggs for plaintiff. 1. A question arising upon the plead- Messrs. J. L. Stotts and M. Nichols, for ings which is certified to the supreme court for defendants: decision cannot be answered if the facts do not There is no distinction made by the courts suficiently appear in the pleadings to authorize between bonded debt and liquidated debts gena complete determination of it.

erally so far as the application of the term 2. In determining whether not public debt" is concerned. The bonded debt

county indebtedness violates a consti- is simply a funded debt and the other a floating
tutional provision that no county shall create debt.
any

indebtedness exceeding 2 per centum State, Palmer, v. Hickman, 11 Mont. 541; upon the assessed value of the taxable property People, Seeley, v. May. 9 Colo. 80, 9 Colo. 404; in it, compulsory obligations imposed by the Late v. People, Iluck, 87 III. 385; Gray v. Benlegislature must be included.

nett, 3 Met. 526. 3. The fact that the validity of the

In United States, Butz, v. Muscatine, 75 U. S. debt on which a judgment against a county 8 Wall. 575, 19 L. ed. 490, the court states: was rendered cannot be questioned in a proceed-“The statute of Iowa, that the city of Muscaing to enforce a tax to pay it does not prevent tine shall levy a tax of only 1 per cent a year a resistance of the tax on the ground that it was does not excuse such city from levying a tax not authorized by law.

to pay a judgment against it. so long as the 4. A judgment against a county for a claim which should have been paid out of

state Code provides for the levying of such

tax. current revenue, but was not because the amount limited by the Constitution was exhausted, and

See Carroll County Supers. v. United States, which did not become valid county indebtedness 85 C. S. 18 Wall. 71, 21 ‘L. ed. 771. because the constitutional limit of indebtedness

The county purposes or taxes for which any bad already been reached, or because it was not certain county, by $ 2, chap. 6, Laws of 1867, legally adopted by the people, is not "public is limited to 3 mills on the dollar, except on a debt" within the meaning of a provision of a vote of the people, include only the ordinary Constitution limiting the tax rate except for expenses of the county, and do not include public debt and interest thereon.

money to pay principal or interest of a county 5. Recourse to the claims upon which debt. judgments against a county were ren. McCormick v. Fitch, 14 Minn. 252; State v. dered may be bad to determine to what class Milwaukee, 25 Wis. 122; Cooley, Taxn. they belong, and whether or not any limit is im- 138. posed upon taxation by which they may be en- The limitation of 12 mills for county revenue forced.

was to prevent the board of county commis. 6. The expense of maintaining the dis- sioners from incurring indebtedness by extrava.

trict court is a county purpose which must be gant or reckless management. But the salary provided for out of the fund raised by the lim- of an officer is not an indebtedness of the ited tax levy authorized by Const. art. 15, 8 5.

county which is created by the county board. 7. Compensation to be made to a land. State, Wessel, v. Weir, 33 Neb. 35; State,

owner for land taken by a county for the loca. Rotwitt, v. Hickman, 9 Mont. 370, 8 L. R. A. tion of a public road must be paid out of tbe or- 403; Welch v. Strother (Cal.) 16 Pac. 22. dinary county revenue raised by the limited tax

A liability imposed by the legislative power provided by Const. art. 15, 8 5.

of the state does not come under the general 8. A board of county commissioners rule limiting the creating of public indebted

which can only act as a body in session cannot
confess judgment against the county under a
statute requiring defendant to personally appear People, Rollins, v. Rio Grande County Comrs.

Grant County v. Lake County, 17 Or. 453; in court in order to confess judgment.

7 Colo. App. 229. 9. A power of attorney to confess judgment

Mr. Chester B. Bradley amicus curia. cannot be given by a board of county commis

Mr. R. H. Vosburg for Weston county. sioners without statutory authority.

Mr. J. T. Hoop for Sheridan county. (June 30, 1896.)

Potter, J., delivered the opinion of the

copii Crook County for the opinion of the Su- Plaintiff filed its petition in the district court preme Court of certain questions arising in al for Crook county, praying for an injunction

Dess.

NOTE.-On the question, What constitutes an in. | pel its payment, see Howard v. Huron (S. D.) 26 L. debtedness of a municipal corporation within the R. A. 493; but attention should be called to the meaning of provisions restricting it, see Beard v. distinction between the conclusiveness of the judgHopkinsville (Ky.) 23 L. R. A. 402, and note.

ment itself and the right to exceed the limitation As to the conclusiveness of a judgment against a fixed for taxes. municipality in a proceeding by mandamus to com

against the collection of a portion of the taxes parties thereto attached, in excess of the limlevied in that county for the year 1895. A deitation, as fixed by the Constitution and laws murrer was interposed, and upon the hearing of the state of Wyoming? (2) Separate and thereof the court ordered the cause to be re- apart from each of the propositions berein served to this court for its opinion upon certain made, is or is not the defendant entitled to questions certified to be important and diffi- judgment on its agreement with the plaintiff cult. In the year 1895 the board of county Exbibit A, plaintiff's petition) for the sum of commissioners of the county of Crook levied $927.66? (3) For wbat purposes can a tax be the following taxes: General revenue, 10 mills; levied by the board of the county commisgeneral county school, 2 mills; judgment tax, sioners in excess of the 12-mills limitation, and 31 mills; court-house and jail bonds, 2 mills; under the term “Public Indebtedness and Infunding bonds, 24 mills, -amounting in the terest Thereon," as the term is used in $ 5 of aggregate to 194 mills on the dollar. The only art. 15 of the Constitution? (4) Can a tax in part of the levy complained of in this action is excess of 12 mills be levied by the board of the ibe judgment tax of 37 mills, wbich is assumed county commissioners for the payment of an to have been levied to pay certain judgments indebtedness growing out of and by reason of rendered against the county. The facts con- the provisions of cbapter 6 of the Laws of 1893, nected with the judgments are not, as the entitled "An Act to Encourage the Destrucpleadings now stand, sufficiently disclosed to tion of Predatory Wild Animals?" (5) Cap a definitely indicate the precise nature of the tax in excess of 12 mills be levied by the board claims entering into them. We are not in of the county commissioners for the purpose formed by the pleadings, either, as to the time of paying warrants issued for salaries of county when, or the court wherein, such judgments officers when the revenue of tbe county de were secured. Inferentially it may appear that rived from taxation in previous years has not they were obtained since the admission of the proved sufficient to defray its expenses, and state, and largely upon warrants issued in pay- such warrants are outstanding and unpaid for ment for current expenses of the county, since the want of sufficient funds? (6) Does the the adoption of the Constitution. Indeed, the placing of warrants, issued for legitimate argument in this court was largely confined to county expenses, into judgment, justify the the effect of judgments rendered upon warrants board of the county commissioners in levying so issued, and the taxing power associated a tax in excess of 12 mills with wbich to pay therewith, although the suggestion was ad- the same? (7) In case judgment has been ren. vanced by counsel that for all which appeared dered in favor of a landowner for damages in the pleadings funding bonds might bave caused by the location, construction, and openconstituted the source of the judgments. Iting of a public road through his land, cap a would seem that no necessity exists for dispute tax be levied to pay such judgment in excess upon the essential facts. It would have been of 12 mills provided by law to be levied for all more satisfactory, therefore, and would per- county purposes, the revenue raised by the 12haps bave narrowed the scope of our investi. mill tax being all required and used for county gation, bad the issues been fully made up prior purposes? (8) Has the board of the county to the reservation to this court, so as to clearly commissioners authority and power under the and without cavil present the questions submit- Constitution and laws of the state to confess and ted by the learned court for our consideration. authorize a confession of judgments against the It is not our duty, however, to pass upon the county? (9) Can a judgment rendered by the demurrer. Our jurisdiction is limited to a de district court of Crook county, having juriscision upon the certified questions, and we are diction over the person and subject matter, be pot requested thereby to direct the ruling attacked collaterally in this case? (10) Cannot wbich should be made upon tbe present condi- the board of the county commissioners levy tion of the pleadings.

the district-court tax for the maintenance of The judgment tax is charged to have been the court in addition to the levy of 12 mills for illegal and void, and levied without authority; county revenue? tbat the same was not levied for the payment The second question, viz., "Separate and of the public debt of the county, or the interest apart from each of the propositions herein thereon; and the county had exhausted its made, is or is not the defendant entitled to power to levy taxes for general revenue pur- judgment on its agreement with the plaintiff poses by a lery of the constitutional limit of 12 (Exbibit A, plaintiff's petition) for the sum of mills for such purposes in the year 1895 and $927.66,”—-cannot receive our consideration, each year thereiofore since the organization of for the reason that the facts do not sufficiently the state. It is attempted also to attack the appear in the pleadings before us to authorize a judgments upon two grounds: First, that the complete determination thereof upon the merits alleged debts upon which they were obtained of the cause. were void, as having been contracted, or the For the purposes of convenience, we propose evidences of such indebtedness baving been to discuss the legal questions involved in the issued, in excess of the limit upon county in- various questions, without, as in general, a debtedness established by the Constitution; specific reference to any particular question, second, that the said judgments were pro or the order in which they are presented. A cured through the consentand confession of the majority of the certified questions do not board of county commissioners contrary tolaw. admit of categorical answers. A careful eluci.

The questicos certified for our decision áre dation of the views entertained by the court as follows: (1) Is the levy of the board of covering the subject matters of the questions county commissioners of the county of Crook ought to, and, we conceive, will, be sufficiently of 3+ mills of judgment tax, as set forth in indicative of our opinion upon the questions plaintiff's petition, and the agreement of themselves.

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Involved in the questions thus submitted is county, to be ascertained by the last assessthe construction of the various constitutional ment for territorial and county taxes previous provisions affecting the power of counties to to the incurring of such indebtedness. Stat. incur indebtedness and levy taxes. The 1st Sess. 49th Cong. chap. 818, p. 171; Rev. gravity of the interests which may depend Stat. Wyo. 1887, p. 39. The language of that upon a determination of these questions bas act is as follows: “That no political or municpot been underestimated, and with a keen ap- ipal corporation, county, or other subdivision preciation of the responsibility resting upon the in any of the territories of the United States courts in such matters it is only after studious shall ever become indebted in any manner or and mature deliberation that we bave arrived for any purpose to any amount in the aggre. at our conclusions. Upon the argument much gate, including existing indebtedness exceedattention was devoted by counsel to the policy ing,” etc. Acknowledging this last limitation of the constitutional restrictions upon public upon county indebtedness, the Constitution exindebtedness and taxation, but the courts pos-pressly authorized the bonding of the public sess no control over matters of mere policy. debt of any county in any sum within the If the people of the commonwealth by adopt. congressional limit of 4 per cent. Article 16, ing a Constitution have committed themselves $ 3. As a primary proposition it must be to a mistaken policy, the only remedy is an manifest that the framers of the Constitution amendment, by constitutional methods, of did not propose to afford vitality to any indebtthat instrument. Within the province of the edness incurred in excess of the limitation legislature, recourse must be bad to that body declared by Congress. In case any county had for the correction of any errors of policy which become so indebted, it was not permitted to may bave induced its enactments. The juris. issue bonds to pay such excess; and no other diciion of the courts extends only to the con constitutional provision refers to it. This may struction and enforcement of the Constitution become an important consideration. County and laws as they exist. That jurisdiction indebtedness amounting to, but not exceeding, should be zealously guarded, but not used as 4 per cent on the assessed value of taxable a cloak to encroach upon the functions of the property was therefore recognized as valid and other departments of government. The pro- enforceable; and, as no limitation was placed visions of the Constitution controlling the mat- by the Constitution upon the power to levy ters before us are as follows:

taxes to pay the valid public debt of a county, Article 15. $ 5: “For county revenue there means were allowed by which the same could shall be levied annually a tax not to exceed 12 be eventually satisfied. It is also clear that in mills on the dollar for all purposes including authorizing the funding of county indebted. general school iax, exclusive of state revenue, ness in an amount not exceeding 4 per cent, all except for the payment of its public debt and manner of indebtedness, whether for imposed the interest thereon. An additional tax of $2 or voluntary obligations, was understood to be for each person between the ages of twenty- included within the congressional limitation, one and fifty years, inclusive, shall be annually it being obvious that the intention was to perlevied for county school purposes."

mit the bonding of all legal and valid debts Article 16, S 3: “No county in the state of existing at the time of the adoption of the ConWyoming shall in any manner create any institution, and that it was not the purpose to debtedness exceeding 2 per centum on the repudiate any valid obligation or liability. assessed value of taxable property in such Upon future indebtedness another limit was county, as shown by the last general assess placed by the Constitution. First, it is proment, preceding; provided, however, that any vided that no county shall in any manner county, city, town, village, or other subdivision create any indebtedness exceeding 2 per thereof in the state of Wyoming, may bond its centum on the assessed value of taxable proppublic debt existing at the time of the adoption erty in such county,as shown by the last general of this Constitution, in any sum not exceeding assessment, preceding; second, no debt in ex4 per centum on the assessed value of the taxa cess of the taxes for the current year shall in ble property in such county, city, town, any manner be created by any county, unless village, or other subdivision as shown by the the proposition to create such debt shall have last general assessment for taxation."

been submitted to a vote of tbe people, and Article 16, § 4: “No debt in excess of the by them approved. Without reference now to taxes for the current year shall, in any man. the classes of indebtedness included within per, be created by any county or subdivision these restrictions, if any distinction in that rethereof, or any city, town, or village, or any spect exists, it is apparent tbat, if the indebted. subdivision thereof, in the state of Wyoming, ness of a county has reached or exceeds 2 per unless the proposition to create such debt shall centum on the assessed value of taxable prophave been submitted to a vote of the people erty, such county is powerless to create any thereof and by them approved.”

debt in excess of ihe tases for the current year, Other provisions, which may affect the con- either with or without a submission of the struction to be given to the sections above matter to a vote of the people, or their ap: quoted, will be referred to as we proceed. proval thereof. The absolute limit of lawful

We are to consider the power and authority indebtedness being reached, it cannot be exof a county in this state, first to create indebt-ceeded. If, however, the indebtedness of a edness, and, second, to levy taxes. Prior to county thus restrained is less than sách 2 per the admission of Wyoming as a state, munic- centum, then there arises the further prohibiipal, and county indebtedness in this as well as tion against the creation of any debt in excess other territories was limited by congressional the taxes for the current year without first enactment to 4 per centum on the value of the submitting the same to a vote of the people,

axable property within such corporation or I and thereby securing their approval; but, in

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