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tense relates to the purchaser's means or ability to pay, unless the pretense is made in writing and signed by the party charged." A most salutary provision which prevents perjury and injustice. A protection however which is not extended to the civil debtor. This is the punitory remedy which will exact good faith in commercial transactions if enforced. And the law favors the prosecution of criminals.
Caveat venditor (as has been suggested), is the rule which should govern transactions involving credit. No
man is obliged to give credit to acts on his B
own good judgment, he is usually paid for the risk which he takes as he includes it in his price; the custom of "discounts for cash," among merchants, illustrates this.
The creditor should be entitled to absolutely fair dealing, and protected from fraud and misrepresentation as to the debtor's ability to pay, and this the criminal law affords him.
If there is any offense now punishable by imprisonment in a civil action which is not a crime or a misdemmeanor, it should be made so.
The remedy by execution against the property of a judgment debtor is assisted by the proceeding supplementary to execution, which is a most efficient remedy when carefully pursued; you are more likely to find property by the examination under direction of counsel thau from the debtor's schedule presented on application for a discharge.; it more prolific of discovery, and if you find property which is all you want, the court will direct it to be paid to a receiver, and in default of so doing he will be committed for contempt.
Here is a strong coercive remedy, beginning at the right end of the matter, after it has been discovered that the debtor has property and not before. The debtor may still be imprisoned, but his affair is with the court, which may discharge him in its discretion. He is under its control and care but not at the mercy of a relentless creditor.
Who will say that the community has suffered since the passage of the Stilwell Act, exempting honest debtors from imprisonment. Every argument which was urged in favor of its adoption, applies with equal force to the adoption of the Titus bill.
Many of the States have already passed similar laws abolishing imprisonment in civil actions altogether, including Maryland, Missouri, Minnesota, Missis sippi, Alabama, Tennessee, Texas, and District of Columbia.
In Indiana, Virginia and Vermont, arrest is allowed in cases where it is made to appear that defendant is about to depart from the State.
In California imprisonment is allowed in same cases as here but limited to two years.
Even the opponents of the Titus bill agree that the law needs serious amendment. Is it not best that a law so full of defects and inconsistencies, so subject to abuse, so grossly unjust and inhumane, and withal so impolitic, should be swept away altogether? The Senate has declared for four successive years that it should be; it remains to be seen what the statesmen and law-makers of the House will do for the cause of humanity and higher civilization, and to place the Empire State abreast of sister States in enlightened legislation. J. NOBLE HAYES. ATTORNEY - INDIGENT SUITOR— AGREEMENT AS TO COMPENSATION.
NEW JERSEY COURT OF CHANCERY.
OCTOBER TERM, 1884.
HASSELL V. VAN HOUTEN.*
Under the statute authorizing the assignment of counsel to indigent suitors, the complainant was assigned to assist
* To appear in 39 N. J. Eq. Reports 105.
the defendant in a suit to recover from a life insurance company the amount of a policy on her husband's life. The complainant thereupon made an agreement with her to prosecute the claim; and if successful, to receive onehalf of the amount recovered, and if not successful, to receive nothing. He did prosecute the suit, paid the costs incurred, and recovered the amount of the policy with interest thereon. Held, that he was entitled to onehalf of the whole amount.
for relief. On final hearing on pleadings and proofs. The opinion states the facts. J. Coult, for complainant.
S. H. Baldwin, for defandant, Mrs. Van Houten. THE CHANCELLOR. This suit is brought to recover one-half of a fund, represented by a bank check, given by the Masonic Mutual Life Insurance Company, of Newark, in payment of the debt and interest due on the decree of this court in Van Houten v. Pine, 11 Stew. Eq. 72. For the taxed costs and interest thereon the company gave its check to the complainant in this suit, Abram M. Hassell, Esq., who was solicitor for the complainant (Mrs. Frances L. Van Houten) in that one, and for the debt and interest gave her its check payable to her order. That check was certified to be good by the bank on which it was drawn. Mr. Hassell took possession of it to secure him for the amount of his fee for collecting the money, according to an agree. ment between him and Mrs. Van Houten on that head, made before the suit was begun. She refused to indorse the check, or to authorize him in any way to receive the money for it, or to pay him the fee, according to the agreement. This suit is brought against her and Messrs. Pine and Ingalls, in their official capaci ties (one is president and the other secretary and treasurer of the company, which is unincorporated), and the bank, for relief in the premises, to establish Mr. Hassell's lien for the fee on the check and the fund which it represents, and to compel Mrs. Van Houten to indorse the check, or authorize him or some one else to indorse it for her, so that he may draw the money, and after taking out his fee, pay the balance to her. The bill also prays that the company may be required to give to him a new check for or pay to him the amount of the fee, and pay her the balance. A general demurrer to the bill by Messrs. Pine and lugalls has been allowed, on the ground that the bill presents no claim for relief against the insurance com. pany (infra p. 113). Since this suit was begun the money has, by agreement of parties, been drawn upon the check, and after paying $250 to the complainant on account of his demand, and the like sum to the solicitor of Mrs. Van Houten, the balance has been paid into court to the credit of the cause.
The complainant alleges that Mrs. Van Houten agreed with him, before the suit to recover the insurance money was brought, that if he would undertake to collect the claim upon the policy, which was for $1,000, on the life of her deceased husband, she would pay him for his fee for the service one-half of the amount recovered, whether obtained by suit or compromise. If he failed to collect or settle the claim, he was to have nothing. She denies that she agreed to pay him any specified sum for his services, but in her answer admits that before the suit was begun she offered to pay him $500, but says he declined to accept that sum and declined also to enter into any agreement for payment of his fee out of the money to be recovered, on the ground that the existence of such agreement, if known, might prejudice her in the suit, and told her he would charge her only what was right. The proof establishes, by weight of evidence, the fact that the agreement was made as alleged in the bill. Not only does the complainaut swear to it positively and distinctly, but he is corroborated by proof of the
admissions of Mrs. Van Houten that such was the agreement between them. Jacob H. Van Ness testifies that after the suit was ended, she said that she had agreed with Mr. Hassell to give him half of the claim for his services. William M. Smith says she said he had agreed to give Mr. Hassell half of the principal for his services. William M. Clark testifies that she told him while the suit was in progress, and soon after it was begun, that she had employed Mr.
of whatever he should recover. There is also evidence that she made a like offer to another lawyer before she employed Mr. Hassell, but the former declined to undertake the business for a contingent fee. There is nothing opposed to this testimony by and on behalf of the complainant, except her own denial (notwithstanding what is said in the answer on the subject) that she ever agreed or offered to pay him any sum for his services. Mrs. Van Houten was in indigent circumstances, and unable to pay a lawyer for his services in endeavoring to collect her claim. According to the bill, she had offered to settle it with the company if they would pay her a comparatively small sum of money (from $300 to $500), enough to buy a lot in a cemetery. The answer does not deny it. Mr. Clark testified that after the suit was brought she requested him to get a settlement with the company on those terms, but he declined. Before Mr. Hassell undertook the business, she appears to have been unable to get any one to prosecute or undertake to collect her claim, because she was unable to pay for such service. The amount recovered was $1,339.27, of which $339.27 was interest. The suit was in progress for over a year and a half. After the decree had been obtained, she said she was willing to pay Mr. Hassell $500, one-half of the principal, and in her answer she says, as before stated, that she originally offered him that sum. He and she disagree as to his right to one-half, $169.63, of the interest. There is no legal objection to the enforcement of the contract in question. It has been held by the Supreme Court that the law of champerty and maintenance does not exist in this State. Schomp v. Schenck, 11 Vr. 195. And I do not see any reason for denying the validity of such an agreement. If such agreenments cannot be enforced, there must be many cases in which the poor will be unable to assert their rights. It is true our law and practice provide for the furnishing by the court of the requisite professional assistance to poor persons having a cause of action or suit, and for the rendering by the attorney or solicitor and counsel, and of all other officers of the court, of their services in the litigation, without compensation, yet there are services, such as the procuring of the necessary proof, and expenses, such as the cost of printing, etc., which may be requisite to the vindication of the suitor's rights, which are not thus devolved upon the attorney or solicitor or counsel so assigued. In this case, such an assignment of Mr. Hassell was made. Out of the taxed costs recovered he paid all the fees to which, by law, the other officers of the court who had rendered services in the suit would have been entitled had there been no assignmeut. It is urged that under that assigument he was bound to render his services without compensation, and therefore is debarred from enforcing the agreement. But the object of the humane provision under consideration is to furnish to indigent suitors the means of vindicating their rights, which otherwise, because of their poverty, they would not be able to assert; and if they are unsuccessful, the officers of the court whose aid has been required under it must of necessity go without compensation. The fact that he has been so assigned will not debar the lawyer from enforcing an agreement for compensation dependent upon success in establishing the right, by which suc
cess the suitor will be provided with the means of remuneration. The complainant in this case has established a valid contract for the payment to him, for his services, of one-half of the sum recovered, besides his costs, and he should be decreed to have a lien accordingly upon the fund in court for so much of his claim as still remains unpaid, besides his costs of this suit.
NOTE.-By an old order in chancery, after party had been admitted to sue in forma pauperis, and counsel had been assigned, no fee, profit, or reward could be taken by him from the pauper, nor could any agreement be made for compensation afterward. Beames on Costs, *118; 1 Dan. Ch. Pr. *41.
In Philipe v. Baker, I C. & P. 533, in an action of assumpsit for business done as a solicitor, with the common counts, it appeared that the defendant had employed the plaintiff to defend him in a suit in chancery; that the plaintiff, before filing an answer therein, had prepared a petition that the plaintiff be allowed to proceed in forma pauperis, which was ordered, and the answer thereupon entered, but that the suit proceeded no further. Held, that the plaintiff, as solicitor, could only recover the amount of money he had actually paid out.
In Dooly v. Great Northern Railroad, 4 El. & Bl. 341: 2 El. & El. 576, the plaintiff sued in forma pauperis, and recovered £150, and the court certified for costs. The plaintiff's attorney thereupon paid fees to his counsel, and claimed in the bill of costs the fees so paid, and also remuneration for his own services. The master on taxation disallowed both. Lord Campbell, at chambers, approved the master's decision. On rule to show cause, Lord Campbell's ruling was affirmed. See also James v. Harris, 7 C. & l. 257; Hoare v. Coupland, 14 Jur. 247.
In Wright v. Burroughes, 3 C. B. 344, a pauper plaintiff having behind the back of his attorney, and under circumstances showing an intention to deprive him of his costs, agreed with the defendants, in an action for unliquidated damages, to execute a release, and the defendant having pleaded the release, the court, at the attorney's instance, set aside the plea, Tindal, C. J., saying: "It is the spes spolii alone that induces the attorney to undertake the conduct of a pauper cause." See Quinnan v. Clapp, 10 Abb. N. C. 394, note.
In Holmes v. Penney, 9 Exch. 584, the plaintiff brought an action for work and labor, as an attorney. At the trial it appeared, in June, 1851, the defendant retained the plaintiff as his solicitor in a chancery suit, in which he was a defendant; that he stated to the plaintiff that he was a poor man, but that he would be entitled to some property upon his father's death. The plaintiff agreed to do the work "upon the ordinary terms," and consented not to press the defendant, but to wait until he should come into the possession of his property.
On July 29th the defendant obtained an order to proceed in the chancery suit in forma pauperis, and the plaintiff was appointed his solicitor therein, and the defendant had counsel also appointed to him.
On October 31st, defendant's father died, of which the plaintiff became aware, but took no steps to have the defendant dispaupered. On December 8th an order was made that the defendant should be dispaupered as from October 31st. On March 10, 1852, the bill in chancery was dismissed.
This action was brought to recover compensation for services performed in the chancery suit, including counsel fees, which however had not been paid. The plaintiff recovered a verdict for £180, the full amount of his claim, with leave to the defendant to move to reduce it to such sum as the court should think fit. On a rule to show cause, held, that plaintiff could not re
cover for the counsel fees demanded by him; nor for skill and advice" between July 29th and October 31st; nor for any services rendered by him between October 31st and December 8th, Parke, B., saying: "If the pauper is liable for this part of the claim, it must be by virtue of some contract; but there was no such evidence, and indeed the case was not rested upon that ground at the trial; and if it had been, I think it would have failed, as being a contract without consideration, and consequently nudum pactum. The plaintiff clearly had no ground for charging the defendant in his original agreement." See Revel v. Pearson, 12 Ired. 244.
In Kelly's case (N. Y.C. P.), N.Y. Reg., May 10, 1883, Mrs. Kelly agreed with an attorney to give him onehalf of what he might recover from a defendant, in au action for personal injuries to her. The attorney began the suit in the Superior Court, but it was dismissed with costs. Thereupon he began another action in the common pleas, and obtained an order to proceed in forma pauperis, and in this action the plaintiff obtained a judgment. Held, that as against the plaintiff, the agreement to divide the money recovered was void, because the plaintiff sued as a pauper, and that whether the defendant could or could not set off the costs of the first action against the costs of the second, so far as the plaintiff was concerned, the attorney could not, by virtue of his agreement, raise that question. See also Clark v. Dupree, 2 Dev. 411.
An attorney assigned by the court to defend one charge with a crime cannot recover from the county for his services. Cooley Const. Lim. *334; also Case v. Shawnee Co., 4 Kans. 511; People v. Albany Co., 28 How. Pr. 22; Wayne Co. v. Waller, 90 Penn. St. 99; Wright v. State, 3 Heisk. 256; Elam v. Johnson, 48 Ga. 348; Rowe v. Yuba Co., 17 Cal. 61; Kelley v. Andrew Co., 43 Mo. 338; Dane v. Smith, 13 Wis. 585; Weisbrod v. Winnebago Co., 20 id. 418; Reg. v. Fogarty, 5 Cox C. C. 161; see Jones v. Goza, 16 La. Ann. 428; Gordon v. Dearborn Co., 52 Ind. 322.-JOHN H. STEWART, REP.
TELEPHONE-POWER TO TAX.
SUPREME COURT OF WISCONSIN, DECEMBER 16, 1884.
WISCONSIN TELEPHONE Co. v. CITY OF OSHKOSH. A statute authorizing the formation of telegraph companies applies to telephone as well as telegraph companies, though not expressly mentioned.
The imposition of a tax by the common council of a city upon a telephone company, unless expressly authorized by its charter, is void.
APPEAL from Circuit Court, Winnebago county.
It appears from the complaint in effect, 'that October 29, 1880, Athearn had, by permission, consent, and approval of the defendant, used and operated a telephone line in the city, and had erected poles in the streets and alleys thereof, on which were placed the necessary wires to use in the business, and continued to hold and operate the same until March 21, 1881, when the plaintiff, having become incorporated, became the owner thereof by purchase from Athearn; that under chapter 345, Laws 1883, the plaintiff obtained a license from the State to operate its line and conduct its business throughout the State during the year 1883; that prior to that act the plaintiff had established its line, office, and business in Oshkosh, and had by its wires connected its subscribers in that city with many other cities and villages in that State; that June 5, 1883, the "defendant well knowing the premi
ses, but with the design and intent to collect an uu. just and illegal tax from the plaintiff, passed an ordinance purporting to give to the plaintiff the right to erect or maintain its telephone lines upon poles or posts in certain streets and public alleys of the city in such a manner as not to create obstruction to the free passage of people travelling thereon; and also to run lines of telephone wires from such poles or posts along, through, over, and across such streets and public alleys, so far as the right of the city was concerned; provided the plaintiff would first pay the city $300 for each and every year that the same should be so maintained; and that if it failed to so pay within ten days after the ordinance was published, or within ten days after May 1st, in any succeeding year, then the city should cause such poles and posts to be taken down and removed; that the plaintiff refused to comply with the ordinance until the defendant proceeded to cut down and remove such poles, when the plaintiff was compelled to, and did, under protest, July 3, 1833 comply with and pay the $300 so legally exacted; that thereafter, and August 24, 1883, the plaintiff demanded the repayment of the amount so paid, which was refused, and this action was brought to recover the same. The answer was to the effect that the defendant admitted the incorporation and the organization of the plaintiff, but denied any knowledge or information sufficient to form a belief as to whether the plaintiff had a license from the State, and alleged that the Athearn ordinance was made without power or authority, and was therefore unlawful; that in any event it was repealed by the ordinance of June, 1883, and recited the enactment of that ordinance, the refusal to pay as required, the pulling down of the poles, and the cutting of the wires in consequence of such refusal; that the city had exclusive control and management of such streets and alleys, and the right to abate and remove all obstructions therefrom; that such poles were obstructions, and that such payment had been exacted for the right and privilege of so using and enjoying such streets and alleys for the purposes of the plaintiff's said business. The plaintiff demurred to the answer upon the ground that it did not state facts sufficient to constitute a defense, and from the order sustaining the same the defendant brings this appeal.
Finches, Lynde & Miller, for respondent.
CASSODAY, J. The telephone is a new invention; so recent that even our statutes, as revised in 1878, fail to mention it. By what authority is it at large in Oshkosh? May that municipality legally exact a license fee of $300 a year for the privilege of its remaining? This is the question that confronts us. The corporate existence of the plaintiff, not having been specifically denied, stands as admitted. Section 4199, Rev. Stat.; Crane Bros. Manfg. Co. v. Morse, 49 Wis. 370; S. C., 5 N. W. Rep. 815. Of course the corporation was necessarily formed and the character necessarily obtained, under chapter 86, Revised Statutes. As indicated there is no express mention of any telephone therein. Section 1771 of that chapter does expressly authorize the formation of corporations for the "purof “building and operating telepraph lines, or conducting the business of telegraphing in any way; * * * or for any lawful business or purpose whatever, except" certain classes of business specifically mentioned. Precisely the same language is preserved in the amendment to that section. Chapter 220, Laws 1883. Such corporation, "to build and operate telegraph lines, or conduct the busines of telegraphing," is especially authorized to "conduct and maintain such lines, with all necessary appurtenances, from
point to point upon or along or across any public road, highway, or bridge, or any stream or body of water,or upon the land of any owner consenting thereto, and from time to time extend the same at pleasure; and may connect and operate its lines with the lines of any person, company, or corporation without this State; and charge reasonable tolls for the transmission and delivery of messages. But no such telegraph line, or any appurtenance thereto, shall at any time obstruct or incommode the public use of any road, highway, bridge, stream, or body of water." Section 1778. In addition to the special powers so given, every such corporation, when so organized, is made a body corporate by the name designated in its articles, and has the powers of a corporation, conferred by the statutes, necessary or proper to conduct the business, or accomplish the purposes, prescribed by its articles, but no other or greater; and may take, manage, hold, convey, lease, or otherwise dispose of, at pleasure, such real and personal property, of whatever kind, as shall be necessary to its business or purposes, or to the protection or benefit of its property held or used for the corporate business or purposes. Section 1775, Rev. Stat.
It is urged that the power thus expressly given to form and organize corporations for the purpose of building and operating telegraph lines, or conducting the business of telegraphing in any way, includes the power of forming and organizing corporations for the purpose of building and operating telephone lines, or conduct the business of telephoning in any way. Of course there is a distinction between the two classes of business, but in almost every respect they are very similar, if not identical. Each of them must erect its poles or posts, and upon the tops of them attach its lines of wire from point to point. Each must almost necessarily enter upon, along, or across public roads, highways, streams, bodies of water, and upon the lands of individuals, for the purposes mentioned. In these respects they seem to be identical. One may require more lines of wire than the other, but we are not aware of any other distinction outside of their offices or places of operation distinguishable to the naked eye. It is these indistinguishable features alone that the city of Oshkosh had to deal with. Possibly there may be a marked distinction in the varying intensity of the electric currents in the one case and in the other at the point of transmission or receiving, or even at points along the line; but such difference, if it exists, hardly concerns the question here presented.
As for the difference in the mode of communication by means of a telegraphic and telephonic apparatus, see Attorney-General v. Edison Telephone Co. of London, 6 Q. B. Div. 244; S. C., 29 Eng. Rep. 602. In that case Mr. Stephens, one of the judges of the exchequer division of the high court of justice, who unlike most American judges, seems to have sufficient time not only to satisfy his own curiosity, but the curiosity of all the curious, has given a very lengthy and definitive discussion of that subject. In that case the court conclude that Edison's telephone was a telegraph, within the meaning of the telegraph acts, although the telephone was not invented nor contemplated when those acts were passed. It is there said, in effect, that the mere fact, if it is a fact, that sound itself is transmitted by the telephone, establishes " no "material distinction between telephonic and telepraphic communication, as the transmission, if it takes place, is performed by a wire acted on by electricity." It is there further said, that "of course no one supposes that the Legislature intended to refer specifically to telephones many years before they were invented, but it is highly probable that they would, and it seems to us clear that they actually did, use language embracing future dis
coveries as to the use of electricity for the purpose of conveying intelligence." It is upon this theory of progressive construction that the powers conferred upon Congress to regulate commerce, and to establish postoffices and post-roads, have been held not confined to the instrumentalities of commerce, or of the postal service, known when the constitution was adopted, but keep pace with the progress and developments of the country, and adapt themselves to the new disc0Veries and inventions which have been brought into requisition since the Constitution was adopted, and hence include carriage by steamboats and railways, and the transmission of communications by telegraph. Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1. If there remains any doubt as to the power given to charter a telegraph company being sufficiently broad to include a telephone com pany, then it must be dispelled by the general clause above quoted from section 1771, to wit, "for any lawful business or purpose whatever, except," etc., for by a well-settled rule of construction these general words extend to things of a kindred nature, to those specifically authorized by the section, and hence to whatever is of a kindred nature to telegraphing, which most certainly includes telephoning. Noscitur a sociis.
We must conclude that under the statute it was competent to form, organize, and incorporate a telephone company possessing like powers with those given to telegraph companies. It appears in the record before us that the poles and posts of the plaintiff in the streets and public alleys of the city, and the wires upon them, had been put there and operated to June, 1883, by the permission, consent, and approval of the defendant, under what was known as the Athearn ordinance. The common council had the power to pass that ordinance "for the benefit of the trade and commerce" of the city. Section 4, subs. 6, ch. 123, Laws 1877; § 3, subs. 6, ch. 183, Laws 1883. Of course the city had no power to authorize any permanent obstruction or interference with the free passage or travel upon the streets and public alleys. Hume v. Mayor, 74 N. Y. 264; Cohen v. Mayor, 33 Hun, 404. Such obstruction or interference was expressly prohibited by the statute quoted. That ordinance did not attempt to give such authority, but the contrary. All the poles and posts seem to have been set, and the wires suspended, in accordance with the permission given in the ordinance. The plaintiff succeeded to the property and rights owned and enjoyed by Athearn under that ordinance. Thus it appears that the plaintiff occupied certain portions of the streets and public alleys of the city to June, 1883, not only by express grant of the Legislature, but by the express permission of the city authorities. Assuming that the city might otherwise exact an an annual license from the plaintiff for the privilege of operating its lines in the city, then it might, for the purposes of this case, be conceded that it was not precluded from so doing merely by reason of the poles and posts being set, and the wires suspended, in pursuance of the Athearn ordinance. Memphis Gaslight Co. v. Taxing District, 109 U. S. 398; Butchers' Union, etc., Co. v. Crescent City, etc., Co., 111 U. S. 746. But as we view this case, that question does not arise. Nor does the question arise whether the city could legally authorize such an occupation of the streets and public alleys against the will or consent of the abutting owners, for the simple reason that the city did not, by that ordinance, undertake to give such authority. It only undertook to authorize "so far as the rights of said city were concerned." Whether such occupancy was an additional burden upon the highway, for which abutting owners might have exacted compensation, is a question upon which the courts are divided.
The Supreme Court of Illinois has held that in the case of telegraph companies it was. Board of Trade Tel. Co. v. Barnett, 107 Ill. 507; S. C., 47 Am. Rep. 453. In Massachusetts the contrary doctrine has been held by a divided court. Pierce v. Drew, 136 Mass. 75; S. C., 49 Am. Rep. 7. As the question is not here squarely involved we express no opinion upon it; nor as to whether the statute has given to telephone or telegraph companies the right of eminent domain. By chapter 345, Laws 1883, the plaintiff was required to pay to the State annually a license fee of 1 per centum of the gross receipts of its business within the State, and thereby it secured a license to carry on its business in the State. This it did. The act also provides that such license fee shall be in lieu of all taxes for any purposes authorized by the laws of the State, except upon certain specific property. Of course the city could not levy a tax in violation of that act. But a mere license is not a tax. Nor could the city exact an additional license without legislative authority so to do. Moran v. New Orleans, 5 Sup. Ct. Rep. 38. Undoubtedly the common council had authority, and it was its duty, by ordinances, resolutions, or by-laws, to control and regulate the streets, alleys, and public grounds of the city, and to remove and abate whatever might be fairly regarded as an obstruction or encroachment thereon. Subs. 30, § 3, subs. 6, ch. 183, Laws 1883. The same section declares that the common council shall have like authority "to regulate, control, and prohibit the location, laying, use, and management of telegraph, telephone, and electric light and power wires and poles." Sub. 66, id. But we do not think this was designed as giving to the municipality absolute authority to remove such poles and wires entirely from the city, nor to exclude such companies altogether from carrying on or operating their business within the corporate limits of the city, but simply to regulate the same, and to prohibit such location in improper places. Otherwise the municipalities of the State would have the power to nullify what the Legislature had expressly authorized.
Undoubtedly the common council, under the charter, had the right to regulate, in order to guard and secure the public safety and convenience, but their regulations, to be valid, should have been reasonable and fair, and not have gone to the extent of confiscation, nor of wholly excluding the plaintiff from the city. American U. Tel. Co. v. Harrison, 31 N. J. Eq. 627. But express power to exclude merely would not be a grant of power to license. Leonard v. Canton, 35 Miss. 189. The pecuniary exaction here was merely for doing what the Legislature had expressly authorized to be done. The mere exaction of money for revenue only for such authorized act was not among the police powers of the city. Mayor v. Second Ave. R. Co., 32 N. Y. 261. Besides neither telephones nor telegraphs are named among the several things that the common council are expressly authorized to liceuse." Subs.2,§ 3,subs. 6, oh. 183, Laws '83. The charter having thus expressly stated what the common council might license, without naming telegraphs or telephones, has by necessary implication prohibited the exaction of such license of either of those companies. Expressio unius est exclusio alterius. It follows that the ordinance of June 5, 1883, exacting the $300 in question, was unauthorized by the charter, and in conflict with the statute, and therefore void. The order of the Circuit Court is affirmed.
INNKEEPER-GUEST-TAKING ROOM FOR PURPOSES OF PROSTITUTION.
WISCONSIN SUPREME COURT, MARCH 31, 1885.
C. went to a hotel near his residence about midnight with a disreputable woman, registered as "C. and wife," and *S. C., 22 N. W. Rep. 825.
was given a room for the night. Before going to the room! he delivered to the night clerk $102 for safe-keeping, and received a receipt therefor. During the night the clerk absconded with the money. Held, that C. was not a guest, and was not entitled to recover the money from the proprietor of the hotel.
PPEAL from County Court, Milwaukee county.
J. E. Wildish, for appellant.
John A. Wall, for respondent.
COLE, C. J. The defendant in this action was a proprietor of the St. James Hotel in Milwaukee. The plaintiff was a single man, and kept a saloon not many blocks distant from the hotel. The following facts are clearly shown by the plaintiff's own testimony: About 12 o'clock at night on the 13th of March, 1882, the plaintiff came to the hotel with a disreputable woman whom he met on the street, and whose name he did not know, and registered himself and the woman as "Thomas Curtis and wife," called for a room, and it was assigued him by a person or clerk who was in charge of the office. The plaintiff testified that before going to his room he said to this clerk that he saw on the top of the register that all moneys and jewels should be given to the proprietor; when the clerk replied that the proprietor was in bed, and that he held the position of night clerk. Thereupon the plaintiff handed the clerk $102 for safe-keeping, and took a receipt, which read, “I O. U. $102," signed by the clerk. That night clerk absconded with the money. The plaintiff sues to recover it of the proprietor of the hotel.
The natural, perhaps necessary inference from the plaintiff's own testimony is that he went to the defendaut's hotel at midnight with a prostitute, and engaged a room solely for the purpose of having sexual intercourse with the woman. True, he says that he went to the hotel as a guest, aud asked the clerk if he "could stay there for bed and breakfast." But he lived near by, gave no reason why he did not go to his usual lodging-place, therefore we feel entirely justified in assuming that he went to the hotel for the unlawful purposes above indicated. This being the case, the question arises whether he was a guest in a legal sense, and entitled to protection as such. The learned counsel for the defendant insists that he cannot and should not be deemed a guest under the circumstances, and entitled to the rights and privileges of one. If the relation of innkeeper and guest did exist between the parties, it is difficult to perceive upon what ground the defendant can escape responsibility for the loss of the money handed to the clerk or person in charge of the office; for the common law, as is well known, on grounds of public policy, for the protection of travellers, imposes an extraordinary liability on an innkeeper for the goods of his guest, though they may have been lost without his fault.
It is not easy, says Mr. Schouler, to lay down, on the whole, who should be deemed a guest in the common-law sense; the facts in each case must guide the decision. Bailm. 256. A guest is a "traveller or wayfarer who puts up at an inn." Calye's case, 8 Coke, 32. "A lodger or stranger in an iun." Jac. Law Dict. A traveller who comes to an inn and is accepted becomes instantly a guest. Story Bailm., § 477. "It is wellsettled that if a person goes to an inn as a wayfarer and traveller, and the inkeeper receives him into his inn as such, he becomes the innkeeper's guest, and the relation of landlord and guest, with all its rights and liabilities, is instantly established between them." Jalie v. Cardinal, 35 Wis. 118.
"The cases show that to entitle one to the privileges and protection of a guest he must have the character