words "necessary charges" are still retained in the statutes, but they have been strictly construed by the courts. We do not find either in the colony or the province laws any legislation relating to the buying and selling of coal or wood by towns for the use of the inhabitants, or any legislation on any similar subject. It is possible that there may be found in the records of some town a vote or votes showing that the town, in an emergency, was authorized to buy wood or coal for the purpose of supplying its inhabitants with fuel, but we have not found any Certainly, it was not usual for towns to supply their inhabitants with fuel, unless they were paupers. Neither was it usual for towns to supply their inhabitants with grain or other commodities. We know of no instance of this being done except by the town of Boston. In the fall of 1713 there was a scarcity of grain, and the general court prohibited the exportation of it. 1 Prov Laws, (State Ed.) p. 226. The town of Boston, in March, 1713-14, voted to lay in a stock of grain to the amount of 5,000 bushels of corn, and to store it in some convenient place, and it was left to the selectmen to dispose of it as they saw fit. Eighth Report of Record Commissioners, pp. 101, 104. After that, as shown by the records, the town regularly bought and stored grain, and sold it to the inhabitants, as late as 1775, and perhaps later; and it established two granaries, one of which, in the common, remained in use probably as long as the town bought and sold grain. Whether after the Revolution the town continued to buy grain, we are not informed, as the records have not been printed. The amount which could be sold to any one person was often limited to a few bushels at a time. The report of a committee in 1774 shows that from March, 1769, to March, 1774, the quantity of corn and rye purchased was 5,836 bushels, and that the stock on hand was 376 bushels. It is apparent that the original purpose was to provide against a famine, and that it was not the intention of the town to assume the business of buying and selling all the grain which the inhabitants needed, but of keeping such an amount in store as was necessary in order that small quantities might be obtained, particularly by the poorer inhabitants, at what the selectmen, or a committee of the town, or the town itself, deemed reasonable prices. May 25, 1795, the town voted to sell the granary. This action of the town of Boston was an exception to the usages of towns, and it appears from the reports of committees that before the Revolution it had come to be considered as of doubtful expediency, and during the Revolution, or not long after, it was discontinued. The nearest analogy, under the constitution, to the subject we are considering, is the authority given by the recent statute, (St. 1891, c. 370.) whereby cities and towns are empowered to maintain works for the manufacture and distribution of gas or electricity for furnishing light to the municipalities and their inhabitants.

On

In the opinion given to the house of representatives on May 27, 1890, which is

printed in 150 Mass. 592, 24 N. E. Rep. 1084, the justices advised that the manufacture and distribution of gas or electricity for furnishing light to the inhabitants of cities and towns might properly be regarded as constituting a public service. It was there said that "it must often be a question of kind and degree whether the promotion of the interests of many individuals in the same community constitutes a public service or not." Gas or electricity for furnishing light has in recent times become a most convenient means of lighting both public and private buildings, streets, and grounds. It is impracticable that each individual should manufacture gas or electricity for himself; but this can best be done by some company or the municipality for a considerable territory, and for the use of both the municipality itself and the inhabitants. Everybody who chooses, within that territory, cannot be permitted to manufacture and distribute gas or electricity for the public use or the use of other persons, as it is distributed by means of pipes or wires; and the number who properly can be permitted to lay pipes or wires in a given territory must be limited to one, or at most to a few, persons or corporations. The pipes or wires must be laid in or over the public ways, or in or over land taken for the purpose, which may require the exercise of the right of eminent domain. These were some of the reasons why the subject seemed to the justices a proper one for municipal regula. tion and control, and to constitute a service which a municipality could be authorized to perform for itself and its inhabit. ants. But when the constitution was adopted the buying and selling of wood and coal for fuel was a well-known form of private business, which was generally carried on as other kinds of business were carried on, and is now carried on in much the same manner as it was then. It was and is a kind of business which, in its relations to the community, did not and does not differ essentially from the business of buying and selling any other of the necessaries of life. Although all kinds of business may be regulated by the legislature, yet to buy and sell coal and wood for fuel requires no authority from the legislature, and requires the exercise of no powers derived from the legislature; and ever person who chooses can engage in it, in the same manner as in the buying and selling of other merchandise. We are not aware of any necessity why cities and towns should undertake this form of business, any more than many others which have always been conducted by private enterprise; and we are not called upon to consider what extraordinary powers the commonwealth may exercise, or may authorize cities and towns to exercise, in extraordinary exigencies, for the safety of the state or the welfare of the inhabitants. If there be any advantage to the inhabitants in buying and selling coal and wood for fuel at the risk of the community on a large scale, and on what has been called the "co-operative plan, we are of the opinion that the constitution does not contemplate this as one of the ends for which the government was established, or

as a public service for which cities and towns. may be authorized to tax their inhabitants. We therefore answer the questions in the negative.

WALBRIDGE A. FIELD.
CHARLES ALLEN.

MARCUS P. KNOWLTON.
JAMES M. MORTON.
JOHN LATHROP.

May 7, 1892.
To the Honorable the House of Repre-
sentatives of the Commonwealth of
Massachusetts:

I am of opinion that when money is taken to enable a public body to offer to the public, without discrimination, an article of general necessity, the purpose is no less public when that article is wood or coal than when it is water or gas or electricity or education, to say nothing of cases like the support of paupers, or the taking of land for railroads or public markets.

I see no ground for denying the power of the legislature to enact the laws mentioned in the questions proposed. The need or expediency of such legislation is not for us to consider.

OLIVER WENDELL HOLMES, Jr. To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

In reply to the questions submitted by your order of April 12, 1892, for the opinion of the justices of the supreme judicial court, I have to say that under our constitution "the end of the institution, maintenance, and administration of government is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights and the blessings of life." Without artificial heat, very few of our inhabitants would have the power of enjoy: ing these rights and blessings. So far, and so far only, as it is a necessity of society, as now organized, for the government to supply fuel in order to afford an environment which shall give this power, it is competent for the government to furnish or to provide for a supply But it is not within its constitutional power to engage in trade or manufacture merely for the purpose of having any branch of business conducted upon a convenient or economical plan. Fuel is now legitimately furnished to paupers by towns and cities at public expense. If there is an emergency, local or general, which cannot be adequately met by ordinary private agency, it is within the constitutional power of the government to supply the needs of the people in this respect, either through the towns and cities or through other agencies. The question of the exigency, in the first instance, is for the legislature. If there is no adequate source of supply of fuel except through the establishment of governmental agencies, they may be lawfully inaugurated. If, on the other hand, there is no want of adequate service, the legislature has no con. stitutional right to create agencies for the purpose. It has no right to authorize towns and cities to engage in trade merely

1. After a member of a mutual benefit association had forfeited her membership by failure to pay an assessment within the time required by the certificate, the assessment was paid, and a receipt given therefor, which recited that the payment was made and received and the receipt given by the association, and received by the member, on condition that such member "is now in good health, and free from all diseases, infirmities, or weaknesses." It appeared that the member's health had begun to be affected about a year before the forfeiture by the natural decline of age, which resulted in her death soon after the receipt was given, but that she was subject to no disease, and that her only infirmities were those natural to old age. Held, that the evidence failed to show that the condition of the receipt was not fulfilled.

2. A member of a mutual benefit association failed to pay an assessment within the time required by her certificate of membership, which by

its terms was to become void in the event of such failure to pay, but which might be reinstated by the officers of the association for reasons satisfactory to them, and on such conditions as they might require. A few days after the expiration of the time limited the member paid the assessment, and a receipt therefor was given, which declared that the payment was received on condition that the member was at the time "in good health, and free from all diseases, infirmities, and weaknesses," and that no subsequent payment to the association on the certificate shall "impair, waive, alter, or change any of the conditions of this receipt or of said certificate." Notices of subsequent assessments were given, which declared that payment of such assessments would be received only on the agreement that no condition on "which any previous payment had been received is waived thereby, and these assessments were paid. Afterwards a notice of an annual assessment to pay the expenses of the association was sent to the member, which recited that "the sending of this notice shall not be held to waive any forfeiture or lapse of membership, if previous assessments remain unpaid. " Held that, though the condition of the first receipt was not fulfilled, the subsequent dealings between the parties showed a waiver of the forfeiture for non-payment of the assessment within the required time.

3. A corporation cannot avail itself of the defense of ultra vires, unless it is pleaded.

4. Laws N. Y. 1883, c. 175, which provides that, where any other state shall impose any obligation on co-operative life insurance companies of New York doing business in such other states, "the like obligations are hereby imposed on similar corporations of such other state transacting business in this state," does not impose on a Massachusetts corporation doing business in New York the prohibition of St. Mass. 1885, c. 183, § 10, that no policy or certificate shall be issued on "the life of any person more than 60 years of age," since it is the obligation, and not the prohibitions, imposed on foreign companies by the retaliatory act of 1883.

5. A cause of action on a policy of life insurance issued by a foreign corporation to a resident of New York, who dies in that state, arises in New

CAMMERER, Respondent, v. MULLER, Appellant.

(Court of Appeals of New York. May 6, 1892.) BREACH OF MARRIAGE PROMISE-COMPETENCY OF PARTY-MARRIED MAN-ESTOPPEL.

1. An action may be maintained upon a married man's breach of contract to marry, provided the contract was entered into by the woman in ignorance of the promisor's existing marriage.

2. Plaintiff contracted to marry defendant in ignorance of the fact that he was already married. After discovering the marriage, she repudiated the contract, unless defendant should furnish evidence of a divorce, which he represented to her had been obtained by him. He engaged to do this, and a date was then fixed for the marriage, at his instance. Held, that there was no abandonment of the original contract of marriage on the part of plaintiff, and that she was entitled to recover against defendant, in default of his production of such evidence.

3. In such case plaintiff is not estopped by the fact that she acquiesced in postponing the marriage until production of papers showing a divorce. 14 N Y. Supp. 511, affirmed, without opinion. Robert H. Griffin, for appellant. Eugene H. Lewis, for respondent.

No opinion. Judgment affirmed, with costs, on opinion of VAN BRUNT, P.J., in general term. 14 N. Y. Supp. 511. All concur.

(133 N. Y. 600)

VAN CAMP, Respondent, v. FOWLER et al., Appellants.

(Court of Appeals of New York. May 3, 1892.) RES JUDICATA-QUESTION NOT RAISED-PARTIES.

1. A testator devised his property in trust for the maintenance of his widow for life, and for the maintenance and education of his only son during minority. After the son's death, in an action against the trustee by the widow as heir of the son, claiming the balance of the funds in the trustee's hands, it was found that the widow was entitled to the interest of the balance of the fund, and to the principal, if necessary to her comfortable support, and judgment was entered directing the trustee to invest the fund, and apply it accordingly. Held, that there was no intention to pass on the disposition of the fund after the widow's death, and that her heirs were not estopped by the judg ment to maintain that the will vested the residue of testator's estate in his son, and that on the son's death his interest passed to the widow as his heir at law.

2. The other claimants were testator's brothers and sisters, who maintained that the residue was not vested by the will in the son, but reverted to them as testator's heirs at law. Held that, since the brothers and sisters were neither parties nor privies to the action by the widow against the executor, and were not bound by the decision therein, the widow's heirs were not bound thereby, since estoppels must be mutual.

16 N. Y. Supp. 281, affirmed, without opinion. Ceylon H. Lewis, for appellants. William M. Ross, for respondent.

No opinion. Judgment aflirmed on opinion of MERWIN, J., below, (6 N. Y. Supp. 281,) with costs. All concur.

(133 N. Y. 625)

VAN RENSSELAER V. BULL et al. (Court of Appeals of New York. May 6, 1892.) MORTGAGE-FORECLOSURE-SALE.

A mortgage described the land conveyed therein by metes and bounds, one of which was a certain creek, and added: "Together with all the right, title, and interest of said parties of the first part in and to the land in said creek lying in front of and adjoining said premises, to the middle line of said creek." The judgment of foreclosure followed the language of the mortgage, as did also the terms of sale read at the foreclosure sale at which the land in the creek was purchased by appellants. Held, that they were chargeable with notice that all they were to get was the "right, title, and interest "of the mortgagor, and that they should not be relieved from their purchase because of a defect of title. 17 N. Y. Supp. 117, affirmed, without opinion.

Eugene L. Burke, for appellants. James E. Chandler, Robert P. Harlow, and John Alex. Beall, for respondent.

No opinion. Order affirmed on opinion in general term, (17 N. Y. Supp. 117,) with costs. All concur, except ANDREWS and O'BRIEN, JJ., not voting.

(133 N. Y. 601)

In re SHEDD'S ESTATE.

(Court of Appeals of New York. May 3, 1892.) ALLOWANCE TO WIDOW.

Testator died leaving a widow and one daughter. He had lived apart from his wife for 10 years preceding his death, and did not contribute to her support except during the last two years of his life. He paid for the clothing of his daughter, who lived with her mother, but he did not pay for his daughter's board. The cause of the separation did not appear. During the separation testator did not keep house, and at his death he had no servants nor any minor child. Held, that testator had "a family," within Laws N. Y. 1842, c. 157, as amended by Laws 1889, c. 406, which provides, "when a man having a family shall die leaving a widow or minor child or children," there shall be set apart for the use of such widow, etc., property of the value of $1,000. 14 N. Y. Supp. 841, affirmed, without opinion.

Frank W. Stevens, for appellant. Obed Edson, for respondent.

No opinion. Judgment affirmed on opinion below, (14 N. Y. Supp. 841,) with costs. All concur.

(133 N. Y. 573) PEOPLE ex rel. STOBO, Respondent, v. EADIE, Appellant.

(Court of Appeals of New York. April 26, 1892.) CORPORATIONS-RIGHT TO INSPECT STOCK BOOK.

Laws 1882, c. 409, § 199, gives the absolute right to a stockholder, within 30 days prior to an election of directors, to make an examination of the books containing the names of stockholders. Held to be within the discretion of the court to compel the company to allow such examination at other times than that specified in the statute. 18 N. Y. Supp. 53, affirmed, without opinion.

Lemuel Skidmore, for appellant. James J. Allen, for respondent.

No opinion. Order affirmed on opinion below, (18 N. Y. Supp. 53,) with costs. All concur, except GRAY, J., dissenting.

RICHARDSON, Respondent, v. NEW YORK CENT. & H. R. R. Co., Appellant. (Court of Appeals of New York. April 12, 1892.) Camp & Dunwell, for appellant. Gillette, for respondent.

John

Co., Appellant.

(Court of Appeals of New York. April 12, 1892.) Samuel Blythe Rogers, for appellant. William G. Bussey, for respondent. No opinion. Judgment affirmed, with costs. All concur, except FINCH, J., absent. See 13 N. Y. Supp. 598.

KERNER, Respondent, v. BOARDMAN et al., Appellants.

(Court of Appeals of New York. April 12, 1892.) Wm. 8. Beaman, for appellants. Charles Fox, for respondent.