defendants, it would be evidence of its formation in place, and, of consequence, more probable that it did not come down, through such crack, from the surface.

If you should find the issues for the plaintiff, it will become necessary for you to assess the amount of damages resulting from the trespass. This is the value of the ore taken by the defendants from within the side lines of the Battle Mountain claim prior to the institution of this litigation. On this issue, you have before you the estimates of plaintiffs' witnesses, ranging from $17,598 to $28,200 and $28,799, while the defendants placed it at from $6,000 to $8,000, gross, subject to a deduction of 40 per cent. for the net result. You must determine, between these extremes, which of them most nearly approximates the true value. It has been insisted by counsel for plaintiffs that, after defendants had knowledge that plaintiffs contested their right to mine within the side lines of plaintiffs' claim, they should have kept the ore there extracted segregated from other ores, so that its exact measurement and valuation could have been more nearly ascertained, and that their failure to do so should be construed most strongly against them. Of course, gentlemen, if you should believe, from the evidence, that this was so,-that defendants thereafter mingled the ore taken from within plaintiffs' side lines with other ore, with the purpose of preventing or obstructing the ascer tainment of its quantity and value, or in willful disregard of plaintiffs' rights, you would be warranted in construing such conduct against the defendants. If, on the other hand, you should believe that defendants, in the honest belief that they were of right pursuing their vein of ore, and without any design to cover up the quantity or value of ore taken, and in the usual mode of handling and marketing such ore, they suffered it to mingle with other ore, or failed to keep it segregated, and that they have presented here the best evidence obtainable by them, of the result of the ore so excavated and shipped, then you should ascertain the approximate value of the ore as best you can, from all the facts before you bearing upon this issue.

Gentlemen, you are the sole judges of the weight of the evidence and credibility of the witnesses; and, from the close attention you have given to the evidence, and to the arguments of the able counsel engaged herein, I feel such confidence that your intelligence, judgment, and impartiality may so far be relied upon to comprehend, analyze, and properly apply the evidence to the law as to relieve the court from any further review of the evidence.

Verdict for defendants.

THE PRESIDENT ex rel. MORAN et al. v. MAYOR, ETC., OF CITY OF ELIZABETH.

(Circuit Court, D. New Jersey. December 17, 1889.)

1. MUNICIPAL CORPORATIONS-JUDGMENT-MANDAMUS TO LEVY TAX-CONTEMPT. Act N. J. March 27, 1878, entitled "Supplement to an act entitled 'An act respecting executions,' " which provides that the assessors of taxes of a municipal corporation shall, upon service of a copy of a writ of execution, assess the moneys to meet it, does not disturb the charter mode of levying taxes by the common council of the city of Elizabeth, as amended by Act N. J. April 2, 1869, and the neglect of the common council to levy a tax to pay the interest on its bonds, in obedience to a writ of mandamus from the circuit court of the United States, is a contempt punishable by attachment.

2. SAME-OFFICERS LIABLE.

Where a city charter vests in the common council the power of levying taxes and filling vacancies, the mayor, comptroller, and treasurer cannot be attached for contempt for disobedience of a writ of mandamus to make such levy and fill vacancies in the board of assessors.

8. SAME.

Where there is a peremptory writ of mandamus to the common council of a city to levy a tax and fill vacancies in the board of assessment, disobedience of the writ cannot be justified by showing that another course of procedure preliminary to the granting of the writ could have been selected to collect the tax to pay the indebtedness for which the writ issued.

Motion to Attach for Contempt.

This is a motion to attach the mayor, comptroller, treasurer, and common council of the city of Elizabeth, for contempt for failure to obey a peremptory writ of mandamus.

Strong & Mathewson, for relators.

Mr. Bergen, for respondents.

GREEN, J. From the recital in the peremptory writ of mandamus sued out in this cause, it appears that the relators, Charles Moran, D. Comyn Moran, and Amandee D. Moran, on the 9th of June, 1888, in the circuit court of the United States for the district of New Jersey, recovered a judgment against the city of Elizabeth for the sum of $9,802.12 debt, and $57.98 costs of suit; that said judgment was rendered against the city of Elizabeth for interest due by it to said relators upon bonds of the said city, held and owned by them; that a writ of execution was duly issued out of said circuit court upon said judgment against the said city of Elizabeth, directed to the marshal for said district of New Jersey; that said writ was returned unsatisfied, there being no property belonging to the said city sufficient to satisfy said writ; that a copy of said writ of execution was duly served by the marshal of the district upon the defendant; that there were at that time eight vacancies existing in the board of assessment and revision of taxes for said city of Elizabeth, on account of the resignation or failure to qualify of the persons theretofore elected as members of said board; that the said board constitute the only assessors of the city of Elizabeth, who are, by law, required to assess the taxes in and for said city; that it was the duty of the city of Elizabeth and the board of assessment and revision of taxes to assess

and levy, in addition to the regular taxes, the amount due to the said relators on their said judgment, and to collect and pay the same to said relators; that it was the duty of the common council of said city of Elizabeth to fill any vacancies which might exist in the board of assessment and revision of taxes of said city; that the city of Elizabeth and the said board of assessment and revision of taxes have neglected and refused to perform their said duties, and have neither assessed nor collected nor paid to the relators any part of their said judgment; and that the common council has not filled, or attempted to fill, the vacancies in said board. The mandate of the writ was that each of the defendants do assess and levy, in addition to the regular taxes, the amount due upon the said relators' judgment, with interest and costs, to be assessed and collected according to the form of the statute in such case made and provided; and that the president and members of the common council of said city of Elizabeth forthwith should fill any vacancies existing, or which may exist, in said board of assessment and revision of taxes for said city of Elizabeth.

This writ was duly served upon the mayor, the comptroller, the treasurer, and the common council of the city of Elizabeth on May 10, 1889. No service was made upon the board of assessment and revision of taxes. The only return made to the writ is by the common council, and it is to the effect that the common council have elected certain persons, naming them, to fill vacancies in the board of assessment and revision of taxes. There is no pretense that the amount due the relators upon their judgment, or any part thereof, has been, by either of the defendants, assessed or levied, collected or paid over to them. It further appears, in the testimony taken on this rule to show cause why the defendants should not be attached for non-obedience, that although the writ of peremptory mandamus was served upon the common council on May 10, 1889, no steps were taken to obey its mandate "to fill forthwith any vacancy in the board of assessment and revision of taxes" until September following, at which time the persons named in the return were elected; that not one of the persons so elected has taken the required oath of office, or in any wise legally qualified himself to perform the duties so cast upon him, but, on the contrary, each has neglected or refused so to do. It is alleged that this neglect or refusal was the result of a combination or conspiracy to avoid the performance of the act commanded by the writ of manda

mus.

A motion is now made on behalf of the relators to attach the defendants as for a contempt, because of their failure to obey this writ, and it is claimed that their disobedience arises in two respects: First, in not "assessing and levying, in addition to the regular taxes, the amount due upon said relators' judgment and execution, with interest to the time when the same shall be paid to the United States marshal for said district of New Jersey, with costs of these proceedings, to be assessed and levied according to the form of the statute in such case made and provided;" and, second, by failing "to fill forthwith any vacancies existing in said board of assessment and revision of taxes for said city of Eliza

Are the defendants, or either of them, guilty of this alleged dis

beth." obedience?

It will be noticed that this writ is directed to the mayor, the comptroller, and the treasurer of the city of Elizabeth, as well as to the common council and the board of assessment and revision of taxes. The duties commanded to be performed are the "assessment and levying of a tax," and the "filling of vacancies" in one of the municipal boards. The "mayor," the "comptroller," and the "treasurer" of the city of Elizabeth are statutory officers, exercising powers, and performing duties, clearly defined and limited by the charter of the city, or by acts supplementary thereto. Unless within them can be found, clearly and undisputably expressed, the power necessary to an obedience of this writ, it must be held that such power has not been granted. It will hardly be contended that the broadest construction possible of these statutes will result in the finding of any authority vested in the officers named to "levy taxes" or "fill vacancies." On the contrary, the power to perform these municipal acts is, by the charter of the city of Elizabeth, expressly vested elsewhere; and, had these officers attempted to obey this writ in these respects, they would undoubtedly have been guilty of an assumption of power not granted to them, expressly or by implication, and by such usurpation would have rendered themselves liable to impeachment, and to criminal indictment. As to these officers, therefore, this writ must be held to be nugatory. The law never seeks to command the impossi

ble, and it has always been held by the courts of this country, as well as by those of England, that "impossibility of obedience" is a good and sufficient return to a writ of mandamus. Shortt, Mand. 390; Rex v. Round, 4 Adol. & E. 139; Rex v. Railway Co., 1 El. & Bl. 372, 381; State v. Perrine, 34 N. J. Law, 254; High, Extr. Rem. c. 1, § 14.

So far, then, as this motion to attach as for contempt affects the "mayor, the comptroller, and the treasurer" it is denied, but without costs. And I think it proper to say that costs are refused to these defendants because they are, perhaps, guilty of a technical disobedience of the writ in failing to make any return to it. As their intention was to justify their failure to obey its mandate by showing an absolute and inherent want of power, the better practice requires that such justification should be made to appear, not orally, but in a formal return to the writ itself. However, as no harm has come to the relators from the laches of the defendants in this respect, I will permit such return to be made, in this case, nunc pro tunc.

The charge of disobedience made against the common council of the city of Elizabeth rests upon a very different basis. The allegation is that the common council is possessed of ample power to "levy taxes," and to fill vacancies in the "board of assessment," yet absolutely refused or neglected to obey the mandate of the writ in these respects. If the allegation be well founded, the defendants, who are members of the common council, are guilty of disobedience as charged. The common council is the legislative body of the municipality. It derives its existence from the charter of the city, and by that charter it is endowed with great and v.40F.no.14-51

purposes:

* * *

varied power, covering apparently every conceivable necessity for legislative action that could arise in the ministration of the internal affairs of a large city. Especially has been granted to it ample power for the levying of taxes. Thus in the thirty-first section of the charter of this city it is enacted "that the common council shall have power within the said city to make, establish, publish, and modify, amend or repeal, ordinances, rules, regulations, and by-laws for the following purposes: : ** * (33) To adopt all legal and requisite measures for levying and collecting the taxes." Charter City of Elizabeth, tit. 3, § 31. And again, in the sixty-fourth section of the same charter, it is enacted "that the city council shall have power to raise by tax, in each year, such sum or sums of money as they shall deem expedient for the following (11) For the payment of the interest upon the city debt, and upon temporary loans, and such part of the principal thereof as may be due and payable." Vide Charter City of Elizabeth. And that there should be no mistake as to the comprehensiveness of this power, by an act supplementary to the act of incorporation, and approved March 31, 1864, a legislative definition of the term "debt" was obtained, and it was declared that the indebtedness of the city of Elizabeth should be divided into the "general debt," in which should be included the present bonded and floating debt of said city, the amount due or to become due for the purchase of real estate, the building, completion, and furnishing of school-houses, engine-houses, almshouses, market-house, and other public buildings, and loans for the payment of bounties; and the "improvement debt," in which shall be included all liabilities incurred by the city for improvements authorized by the charter, the expenses and costs of which are payable by assessments. It was for a debt of the city of the second class or division—that is, “improvement debt"-that the judgment of the relators was obtained. It seems to me, therefore, the contention of the relators that the common council had ample power to levy a tax to pay their judgment is correct.

The defendants insist that, granting that such power was originally vested in the common council, it has been taken away from it by "A supplement to the charter of the city of Elizabeth," approved April 2, 1869. This supplementary act provides "that, for the purpose of assessing taxes required by law to be levied in the city of Elizabeth, and revising the same, a board of commissioners is hereby constituted, to be known and designated as the 'Board of Assessment and Revision of Taxes in the City of Elizabeth;"" and the insistment is that this board, solely, has the power to levy and assess, by way of tax, moneys to meet the indebtedness of the city, and hence the failure of the common council to obey the writ of mandamus in this respect is excusable from want of power. I do not so construe the act. This supplementary act changes the charter of the city in one important respect only: whereas, theretofore, assessors of taxes were simply ward officers, and acted, in assessing city property, independently of each other, thereafter they were officers of the city at large, and acted in all things jointly, as a board. No part of the charter of the city was repealed by this supplement, save