Board, etc., of Ridgefield Tp. v. Board, etc., of Cliffside Park issued, and that thereby the said defendants became entitled to said school house and property. It further avers that on September 5, 1896, an action was commenced in this court by said McCully against the plaintiffs to recover the amount of his said bond, and that such proceedings were had therein that on February 16, 1897, McCully recovered a judgment against the plaintiffs for $1,227.59. It further avers that the plaintiffs, upon a writ of execution issued against them upon such judgment, paid, in satisfaction thereof, the sum of $1,342.55, and that by means thereof, and according to the tenor and effect of an act entitled "A supplement to an act entitled 'An act to establish a system of public instruction [Revision],' passed March 27, 1874," approved April 6, 1897, and a further supplement to the same act, approved April 22, 1897, the defendants became liable to reimburse and pay to the plaintiffs the sum of money paid by the latter upon the said judgment, with interest.

Argued February term, 1899, before MAGIE, C. J., and GARRISON, LIPPINCOTT, and COLLINS, JJ.

Charles J. Roe, for plaintiff.

Samuel G. H. Wright, for defendant.

MAGIE, C. J. (after stating the facts). The first cause of demurrer presented by defendant is that the count demurred to fails to show that the trustees of school district No. 1 in the county of Bergen, the maker of the bond in question, had power to make the same. The averment is that the bond was issued pursuant to the public instruction act of March 27, 1874. The second cause of demurrer assigned by defendant insists that this Issue-Pleading. statement is insufficient, because by that act authority to issue such bonds by school districts requires the consent of the inhabitants of the district. When corporate bonds of a municipality are issued by special agents having limited powers, the declaration on such bonds must exhibit the possession of such powers. Morriv. Inhabitants of Bernards Tp., 36 N. J. Law, 219;

Action on Municipal BondsAuthority to

son

Statutes-Titles.

Board, etc., of Ridgefield Tp. v. Board, etc., of Cliffside Park Cotton v. New Providence, 47 N. J. Law, 401, 2 Atl. 253. But when corporate bonds are issued by general agents, or the corporation itself, no such averments are necessary. Montague v. School Dist., 34 N. J. Law, 218; Rahway Sav. Inst. v. City of Rahway, 53 N. J. Law, 48, 20 Atl. 756. The averment of this count that the bond in question was issued by the corporation known as the "Trustees of School District No. 1 in the County of Bergen" is sufficient. The third cause of demurrer assigned by defendant is that the acts of the legislature of April 6, 1897, and of April 22, 1897, upon which the liability of the defendant to the plaintiff is founded, are void, because the objects of said acts are not expressed in their titles. The provisions of the act of April 6, 1897, were construed by this court in the case of McCully v. Board (N. J. Sup.) 42 Atl. 776. It was there held that the act imposed the indebtedness of a bond such as that in question upon a separate school district set off from a township, if there was within its limits a school house belonging to the board of education of the township, and for the erection of which there is an indebted ness on such bond for which the said board is liable, and that the said indebtedness shall be assumed and become the obligation of the board of education of the set off school district, and that whenever the board of education of the township is compelled to pay by suit and judgment at law any portion of such indebtedness the board of education of the set off school district must repay to the board of educa tion of the township the amount of the judgment, with interest, and the same may be collected by action. The objection now made to this legislation does not seem to have been presented to the mind of the court in that case. The provisions of the act of April 22, 1897, substantially impose the same. obligation. The act to establish a system of public instruction, approved March 27, 1874, conferred corporate powers for school purposes, including the power to purchase land to 'build school houses, to borrow money for those purposes, and to incur and issue obligations therefor. These corpo

Evans v. City of Denver

rate powers are plainly within the title of the act under the construction given to our constitutional provision on that subject in cases too well known to require citation. Legislation properly apportioning or imposing obligations that have been thus issued among such corporations as the legis lature deemed to be properly liable are within the scope of the title of the public instruction act in question. The result is that the demurrer must be overruled, and the plaintiff is entitled to judgment thereon.

NOTE.

Municipal Bonds-Actions-Pleadings.-The declaration in an action on a municipal bond must exhibit the authority or power to issue it. Nashville v. Ray, 19 Wall. 468; Thayer v. Montgomery Co., 3 Dill. C. C. R. 389; Kennard v. Cass Co., 3 Dill. C. C. R. 147.

EVANS et al.

2.

CITY OF DENVER et al.

(Supreme Court of Colorado, April 17, 1899.)

Local Assessments-Retrospective Laws.-A statute providing that when any assessments for the construction of sewers theretofore made by a city have been declared invalid by an appellate court of the state, the city may, nevertheless, upon the passage of a resolution by the council declaring such sewers necessary for sanitary purposes, assess the value of that portion of a sewer adjoining lots, assessments for which remain unpaid, against such lots, with interest from date of construction, is in conflict with a constitutional provision prohibiting the passage of retrospective laws.

Retrospective Laws-Constitutional Provisions.-That such assessment as was attempted to be made in the leading case is void under a constitutional provision forbidding the passage of a law retrospective in its operation, see City of St. Louis v. Clemens, 52 Mo. 133. Such general prohibition is found in the constitutions of Colorado, Georgia, Maryland, Missouri, Montana, and Ohio.

Evans v. City of Denver

ERROR by plaintiffs to Arapahoe county district court. Reversed.

In the case of Keese v. City of Denver, 10 Colo. 112, 15 Pac. 825, it was held by this court that the assessments levied to defray the expense incurred in constructing a sewer in the Thirteenth sewer district of the city of Denver, under the provisions of ordinances passed by its council March 6, 1882, and July 3, 1883, which created this district, and under which such assessments were made, could not be enforced, because the provisions of the city charter relative to conditions precedent had not been observed, which were necessary in order to legally authorize the assessment of adjoining lots with their pro rata share of the expense of the construction of such sewer. In 1893 the general assembly passed an act which, in terms, provided that when, by final judgment of the court of appeals or of this court, any assessments theretofore made by the city of Denver for the construction of sewers in any district in the city have been declared invalid in a direct action to determine their validity, the city nevertheless may, upon the passage of a resolution by the council declaring such sewers necessary for sanitary reasons, assess the reasonable value of that portion of the sewer adjoining lots in the district, assessments for which remain unpaid, against such lots, with interest from date of construction. Section 48, art. 7, p. 219, Laws 1893. Under this law the city council caused the respective lots of the respective plaintiffs to be assessed for the purpose of defray ing the expenses of the construction of the sewer, the former assessments for which, in Keese v. City of Denver, had been declared invalid; and it is to restrain the collection of these latter assessments that plaintiffs brought this action. Upon the issues being made up, the parties entered into a stipula tion regarding the facts, by which the only question presented for determination is whether or not section 48, supra, is in conflict with section 11, art. 2, of the constitution, which provides in express terms that no law retrospective in its operation shall be passed by the general assembly. The

Evans v. City of Denver

judgment of the trial court was in favor of the defendants. Plaintiffs bring the case here on error.

Benedict & Phelps, Robert W. Bonynge, and Horace Phelps, for plaintiffs in error.

J. M. Ellis, S. L. Carpenter, F. A. Williams, G. Q. Richmond, and John C. Norris, for defendants in error.

GABBERT, J. (after stating the facts). The only question presented, and upon which a decision of the case rests, is whether or not the act of the legislature under which the city, by its subsequent action, seeks to enforce the collection of the levy made, is retrospective in its legal sense. It will be observed that this levy is for the purpose of compelling adjacent lot owners to pay the expenses of a sewer constructed prior to the time when the act of the general assem bly authorizing the action of the municipal authorities, which plaintiffs in error seek to restrain, took effect. By the terms of the city charter in force when the sewer was constructed it was provided: "The city council shall cause sewers to be constructed in any district whenever a majority of the property holders resident therein shall petition therefor, or whenever the board of health recommend the same as neces sary for sanitary reasons, and said recommendation is approved by the city council." Laws 1879, p. 200, § 3. Neither of these conditions was observed, but it is contended by counsel for the city that it is within the power of the leg islature to pass an act curative in its nature, whereby illegal assessments for public improvements may be legal ized. In the Keese Case, supra, the assessments were declared invalid, not because of any irregularity in making the levy, but for the reason that no obligation to pay for the sewer existed, because the preliminary steps authorizing its construction had not been observed. This omission constituted a conclusive defense against any action on the part of the corporate authorities in attempting to enforce a liability against lot owners for the cost of the construction of such sewer. Before this act, no steps could be

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