ant, and given in a modified form, are, as they went to the jury, consistent with the other instructions which we have approved. It follows, therefore, that there was no error in modifying them, as was done. The twelfth instruction asked by the defendant was properly refused, because it was in direct contlict with the other instructions given.

The court refused to permit the defendant to prove by experts the manner of adjustment of losses by insurance companies. This was clearly incompetent evidence. The rights of the plaintiff were perfect or otherwise, under the policy, when the loss occurred. A custom as to the manner of adjusting such loss could not affect her, unless she had knowledge thereof at the time the policy was executed, or at least that such custom was so general and well understood that it must have entered into and formed a part of the contract. It is lastly urged that the court erred in overruling the motion for a new trial; and, as we understand the point made, it is that the evidence is not sufficient to warrant the verdict. Under the settled principles of this court, we can not interfere with the verdict on this ground. Affirned.

203; Mississippi Ins. Co, v. Neyland, 9 Bush. 430; Sheldon v. Cenn. Mutual Ins. Co., 25 Conn. 207; Viele v. Germania Ins. Co., 26 Iowa, 9; Westchester

ire Ins. Co. v. Earle, 33 Mich. 143; Bowman v. Agricultural Ins. Co., 59 N. Y. 521; Brohun v. Williamsburg Ins. Co., 35 N. Y. 131, and cases there cited. In Hartford Fire Ins. Co. v. Walsh, 54 Ill. 664, the policy stipulated that “ if the premises shall be vacated by removal of the occupant for a period of more than thirty days without notice and consent indorsed upon the policy, it shall be void.” While it was in force consent was obtained to let them remain vacant. The party to whom notice was given ceased to be an agent for the insurer. The policy was renewed, and afterwards one of the houses became vacant for more than thirty days. It was held that the policy was avoided. In American Ins. Co., v. Padfield, 8 Ch. L. N. 138, it was held that the consent of an agent before the issuance of the policy, and at the time of the application for insurance, to the non-occupancy of the premises, could not bind the company. The other cases holding the same doctrine and involving substantialiy the same state of facts, are Wustum v. City Fire Ins. Co., 15 Wis. 138; Ashworth v. Builders Mutual Ins. Co., 112 Mass. 422; Ætna Ins. Co. v. Burns 6 Ins. L. J. 69; Keith v. Quincy Mutual Ins. Co., 9 Allen, 231. But in some of these cases the principle question involved was what constituted an occupancy, Although cited as holding a contrary doctrine to that enunciated in the case under consideration, the fact is the question is not fully raised in any one of them, and mostly the opinions in regard to the question under consideration are extra-judicial.

But opposed to this are the cases of Hough v. City Fire Ins. Co., 29 Conn. 10; Cannell v. Phønix Ins. Co., 59 Me. 582; Foy v. Ætna Ins. Co., 3 Allen (N. B.), 29; Young v. Hartford Fire Ins. Co., supra; Peoria Fire & Marine Ins. Co. v. Hall, 12 Mich. 213; Warner v. Peoria Fire & Marine Ins. Co., 14 W is. 319; Rowley v. Empire Ins. Co., 36 N. Y. 050; Keenan v. Missouri State Mutual Ins. Co., 12 Iowa, 131, and cases there cited. In all these cases, the question was raised and discussed, and the same conclusion was reached as in the case at bar.

C. M. D.

NOTE.-In regard to the question of the proofs of loss in the foregoing opinion of the learned judge, it certainly appears that he has given great latitude to one of the cases cited in support thereof, viz.: Ayers v. Hartford Ins. Co., 17 Iowa, 176. The difference between that case and the present one is this. In this case the question was whether the proofs of loss were made according to the terms of the policy, requiring them to be made before the nearest magistrate. If they were not made before the nearest magistrate they were inadmissible as proof. In Ayres' v. Hartford Ins. Co., supra, there was no dispute as to the validity of the proofs themselves; but that they were made by only one party in interest, he making them for himself and the plaintiff Ayres. In that case, the court held that if the co-owner was not an agent for the plaintiff, the proofs so made were not sufficient. Mason v. Harvey, 8 W. H. & G. 819; Keenan v. Dubuque Mutual Ins. Co., 13 Iowa, 375. However, the ruling of the court regarding the construction of the clause in the policy in regard to proofs of loss is sustained by the weight of authority. Francis v. Ocean Ins. Co., 6 Cow. 404; Catlett v. Pacific Ins. Co., 1 Wend. 561; Ocean Ins. Co.v. Francis, 2 Wend. 64; Bumstead v. Div. idend Mut. Ins. Co., 12 N. Y. 81; MacMasters v. Westchester Mutual Ins. Co., 25 Wend. 37; Thuring v Great Western Ins. Co., 111 Mass. 93; Imperial Fire Ins. Co. v. Murray, 73 Penn. St. 13; Globe Ins. Co. v. Boyle, 21 Ohio St. 119, and cases there cited.

The question discussed by the learned judge regarding the occupancy of the building and the power of the agent to bind his principal is not altogether clear or free from doubt. The decisions thereon are yet conflicting; but the better opinion seems to be that every statement of an agent to the insured, having the power to issue policies, receive premiums, give consent to increase of risks, and waive forfeitures, which waives any printed conditions of the policy, is binding on the company, And the insured is not bound to take notice of the powers and duties of the agent. If he has knowledge of any limitations on his powers, such as heretofore enumerated, he is bound thereby. But he is not bound as in matters of which he is chargeable with having knowledge, such as matters of common observation. Young v. Hartford Ins. Co., 45 Iowa, 376; Bartholomew v. Merchants Ins. Co., 25 Iowa, 507: Aultman v. Phænix Ins. Co., 27 Iowa,

CITY OF INDIANAPOLIS V. INDIANAPOLIS

GAS LIGHT AND COKE CO.

Supreme Court of Indiana, June, 1879.

1. A MUNICIPALITY CAN NOT ABRIDGE ITS LEGISLATIVE POWER by contract, and it can not impair a contract by its legislative power; neither can it make a valid contract beyond its power to contract, and a contract made within its power to contract is valid.

2. A CONTRACT MADE BY A MUNICIPAL CORPORATION, not ultra vires, not against public policy, and not fraudulent, may be enforced the same as the contract of a person.

BIDDLE, J., delivered the opinion of the court:

The complaint in this cause alleges, in substance, that, on the 22d day of July, 1876, the city of Indianapolis and the plaintiff entered into a contract in due form of law, whereby the latter agreed to furnish gas of a quality and kind specified in the

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3d section of an ordinance of the city, enacted March 19, 1866, for the supply of all the street lamps, city offices, engine houses, council chamber, tunnels, bridges, station houses, and all other places where gas was required for the use of the city in her corporate capacity, in consideration of an agreed compensation; that the contract was to be in full force and operation for the term of five years from its date, and a further term of five years, if the city so elected; that, among other provisions, it contained the following: “It is further stipulated and agreed, that nothing in this contract shall alter, modify or suspend the provisions of the contract at this time existing between the said party of the first part (the company), and the said city of Indianapolis, as evidenced by the ordinance (of March 19, 1866, and which was for a term of tw nty years), except so far as may be necessary to give effect to the provisions of this contract, and when this contract shall terminate, either by the expiration of the time limited, or by the failure or refusal of the city to perform its part thereof, then the said contract of March 19, 1866, shall stand and continue for the unexpired term thereof, to be the contract between the parties hereto

in all respects as though this contract had never been made."

It was also stipulated between the parties that, if the Gas Company failed to keep the street lamps and posts clean and in repair, the city should cause them to be cleaned and repaired, and deduct the cost from any sum of money due to the gas company from the city; and, also, that the city should have the right to deduct from any amount due to the company, fifteen cents for each la mp for each night that it was not lighted, and kept lighted during the time required by the time-table. Also that the city should, at all times, have the right to test the quality of the gas furnished by the company, and the capacity of the burners on the street lamps.

It is further alleged that, on the faith of this contract, and for the purpose of being better able to carry it out, the plaintiff had, in good faith, from time to time, made extensive additions to its apparatus, extended its mains, etc., into newly-added streets, on many of which there were few, if

any, private consumers, made large repairs to lamps, etc., and was, by reason of the contract, enabled to furnish gas to private consumers at a rate much less than would be practicable without it; that the plaintiff had fully complied with the contract, and was prepared to, in all things, discharge its obligations; and that the city had so done, until the

-, 1878, when it notified the plaintiff, through its clerk, “ that unless it accepted $55,000 for 2,000 hours, and the company to light and extinguish the lamps so as to give the most light, that the city would discontinue the use of gas on August 1, 1878, and that payment of said gas should begin July 1, 1878, and end June 30,

the plaintiff returned answer to the defendant, refusing to recognize the action referred to, and setting out at length the reasons therefor, and also declaring its intention to continge lighting the streets, etc., as provided for by the contract, until the city should refuse to pay as therein provided; that on the ensuing 31st day of July the council and board resolved that, inasmuch as the legislature, by the act of 1877, bad limited the levy, for revenue purposes of tbe city, to ninety cents on the one hundred dollars, and the decline in valuations had greatly reduced the amount of taxables on the city duplicate, thereby reducing the revenue for the then fiscal year, and it was impossible to carry on the city government, and light the streets, etc., as during the preceding year, and no arrangement could be made with the company for lighting which would be within the city's revenue, it was deemed that the best interests of the city required the discontinuance of the lighting with gas from August 1, 1878, and the same was accordingly ordered, and the engineer was directed to notify the company that the city would pay for no gas consumed, etc., after that day. He was also ordered to remove the burners and seal the lamps, and it was ordered that inquiry should be made respecting the cost of lighting by other means than gas. It is averred that a copy of the resolution was served on the company, but notwithstanding, it continued to furnish gas and perform its agreements until the nineteenth day of August following, when the parties entered into a provisional agreement, which was set out in full in the complaint. After reciting the execution of the contract of July 22, 1876, that disputes had arisen respecting its validity, and that suit involving this question had been instituted by the company, it was provisionally agreed for the term of one year from August 2, 1878, that the company should proceed to furnish gas, etc., according to the terms specified, and that after the expiration of the contract the parties were to be remitted to whatever rights they had under the contract of July, 1876, and that the provisional agreement was not to be construed as against the positions occupied by the parties respecting its validity, etc., nor as barring any right of action the company may have had for gas furnished, etc., on the first day of August, 1878. The contract concludes as follows:

And, for the purpose of determining the right of said company to recover for said gas, and lighting and extinguishing the same, the following facts are agreed, to wit: That said city, on the twentyninth day of July, 1878, notified said gas company that she did cot regard herself bound by said contract of July 22, 1876, and elected to, and did treat said contract as a nullity; and that the city would not pay said company for gas furnished, and for lighting. extinguishing, cleaning and repairing of lamps, under the terms of said contract, on and after the first day of Angust, 1878; and that she (the said city), claimed the right to regulate the lighting of the streets and alleys of said city, and of determining what amount of gas should be consumed by the city; and that the city, by her Common Council and Board of Aldermen, had resolved

day of

nished by the city civil engineer,” and which notice was based on a resolution to that effect, of the Board of Aldermen and Common Council, adopted July 22, 1878; that, on its reception,

ordinances for the government of others. Municipal corporations, besides the power to contract, which is generally granted to them within certain limits, have legislative or governmental powers, by which they make by-laws to govern themselves, and pass ordinances to govern others, as the citizens of a town or city within their geographical limits. This power to legislate, within the authority delegated to them by law, is distinct from the power to contract, although exercised by the same corporation. They can not, by contract, delegate or restrict their legislative power, nor can they merely, by their legislative power, make a contract. These two powers need not be confounde The exercise of the legislative power requires the consent of no person except those who legislate, while it is impossible to make a contract without the consent of another, or others. We think, therefore, that when the city of Indianapolis made the contract in question, with the gas light company, it made it in the exercise of its power to contract, and not in the exercise of its power to legislate, although the power to make the contract was authorized by an ordinance; and having the power to make a contract touching the subject-matter, it had the right to make it according to its own discretion, as to its prudence or good policy, within the limits of its franchise. Nor can we see that the contract in the least restricts the legislative power of the city, except that, as the sanctity of the contract is shielded by the Constitution of the United States, it can not, in the exercise of its legislative power, impair its validity; for it would be a solecism to hold that a municipal corporation, by an ordinance or resolution, can impair the validity of a contract, when the State, which created the corporation by its most solemn acts, has no such power.

The counsel upon both sides, who discussed the question before us, seemed to think that the authorities upon the question were seriously in conflict. This court had occasion to remark, in the case of Roll. v. City of Indianapolis, 52 Ind. 547, as follows: “ The question presented in this case is one of intrinsic difficulty. The authorities may possibly be reconciled, but they are not entirely barmonious. No doubt the discrepancies sometimes arise out of the differences in the powers granted by municipal charters, which are not always distinguished in the decision, thus leaving us in danger of being misled by propositions which seem general, when they are applicable only to a given municipality." So, we may well say in the present case, we do not think the authorities, upon the principles of construing the powers of municipal corporations, are in serious conflict. If all the charters were the same, we think the authorities would essentially harmonize. It is necessary, therefore, in examining the authorities, to be particular in ascertaining the premises in each case; where they are the same the authorities will generally agree. They all agree in the following propositions, we believe: That a municipality can not abridge its legislative power by contract, and that it can not impair a contract by its legislative power; that a municipality can not make a valid contract beyond its

power to contract; and that a contract made within its power to contract is valid; so that, when the powers granted are different, the conclusions must be different also. But the case of Rittenhouse v. The Mayor, etc., 25 Md. 336, which seems to hold that the repeal of an ordinance authorizing a contract, abrogates the contract, it must be admitted can not be reconciled with the current of authori. ties. We have found no other case that does not hold upon that point directly the reverse; we therefore can not follow that case.

The case of Garrison v. City of Chicago, 7 Biss. 480, relied upon by appellant's counsel, does not seem to us to support their views. That case was upon a contract made by the gas company with the city of Chicago, to furnish the city with gas for ten years. At the time the contract was made, or, rather, at the time when a previous contract was extended, the charter contained a provision that no contract should be made by the city involving any expense, unless due appropriation was previously made to meet it; and the comptroller was required in May of each year, to submit an estimate of the amount necessary to defray the expenses of the city for the current fiscal year. No such appropriation was previously made, and the court puts the case expressly on that ground, in the following words: “The question to be determined is whether there was a reasonable necessity, on the part of the city council, to extend the contract in controversy here, and which will not be maintained for ten years from its date, there being no appropriation made commensurate with the obligation of the contract." Here is a contract not only without authority in the charter to make it, but made in violation of its express terms, which both parties were bound to know at the time they contracted. Of course such a contract is invalid. The extension of the contract already made, ten years beyond its terms, is not different in principle from making a new one.

In the case of City of Oakland v. Carpentier, 13. Cal. 540, wherein the trustees pretended to convey to Carpentier and his representatives, the exclusive right and privilege of constructing wharves, piers and docks, at any point within the coporate limits of the town of Oakland, with the right of collecting such wharfage and dockage as he might deem reasonable, upon certain conditions expressed in the ordinance." This contract was held to be invalid, because it parted with the public authority over the wharves and docks, and left them to be controlled by private interest, and not because the city of Oakland had no power to contract for building wharves and docks. By the contract we are considering, the city of Indianapolis is not restricted in any respect from the legitimate exercise of its public power touching the subject-matter of the contract; but expressly reserves its administrative authority to keep the posts, lamps, and burners in good order and repair, if the gas company should fail to do so; and also reserves the right to test the quality of the gas furnished by the company, and the capacity of the burners at all times. We can not see wherein, by the contract, the city is restricted from extending its streets, es