was the person of any one threatened or en- | K. B. 275; Wilkes v. Wood, 19 How. St. Tr. dangered. Their power to arrest without 1154. In Money v. Leach the king's bench, warrant, where the public peace and good order of the county are interfered with, did not exist. The antitheses of public peace and order are violence and turbulence.

But it is said they went to abate a public nuisance. Whence did the power arise by which these officers could determine the fact of public nuisance, and upon such determination of their own proceed to abate it? Public nuisances are subjects of indictment, to abate which a public officer must have the judgment and order of the court. No man is given the power, upon his mere individual judgment, to undertake to so redress a public wrong. There is nothing in the case tending to show a right, as private citizens, to abate the alleged nuisance, under the well-settled doctrine on that subject. Brown v. De Groff, 50 N. J. L. 409, 12 Cent. Rep. 818. Unless we are willing to hold that the domicil of every citizen against whom these officers have a suspicion may be invaded by force, and their houses ransacked to find evidence justifying their suspicion, their action in this case must be disapproved.

The judgment below is affirmed.

NOTE BY JUSTICE MAGIE.

This opinion was found among the papers of the late Mr. Justice Knapp, to whom its preparation had been intrusted. It is known to his associates that he had intended to add some new matter to it. But it has been thought best to publish the opinion as it is, and to place in its note the matter which it is understood was intended to be added.

without determining the question of the authority of the secretary of state to issue any warrant, decided that his warrant, not nam. ing or particularly describing the person to be seized, was wholly void, and sustained a verdict in favor of Leach, who had been arrested on such a warrant. In Huckle v. Money a similar warrant come in question, under which Huckle, a journeyman printer, had been arrested. A verdict for exemplary damages was sustained in the common pleas, Lord Chief Justice Platt saying of the action of the jury: "I think they have done right in giving exemplary damages. To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish inquisition.' In Entick v. Carrington the warrant in question expressly directed the apprehension of Entick, and also the seizure of his papers. In his action against the messengers, Entick confined his claim for damages to the trespass committed by breaking into his desks and boxes, and examining and seizing his papers. In the report of the case in the state trials, Lord Chief Justice Camden thus deals with the claim that a search in a suspected person's papers could be justified as a means of detecting offenders by discovering evidence: "Lastly, it is urged as an argument of utility, that such a search is a means of detecting offenders by discovering evidence. I wish some cases had been shown where the law forceth evidence out of the owner's cus

tody by process. There is no process against papers in civil causes.

In the criminal law, such a proceeding was never heard The closest parallel to the claim of plain- of. It is very certain that the law tiffs in error, that a public officer may law- obligeth no man to accuse himself because fully break open a house, or, being lawfully the necessary means of compelling self-actherein, may break into rooms, to discover cusation, falling upon the innocent as well evidence of the commission of a crime, will as the guilty, would be both cruel and unbe found in those cases which arose in Eng- just, and it would seem that search for eriland shortly before the separation of this dence is disallowed upon the same principle. country, respecting the publication of sedi- There, too, the innocent would be contious libels in the North Briton Monitor and founded with the guilty.' The report of the other periodicals. In those cases the secre- same case in 2 Wils. K. B. contains the detary of state issued general warrants, direct-cision of the common pleas upon a special ing the arrest of the authors and publishers of such libels, (without naming them,) and the search and seizure of their papers. Mes. sengers, to whom the warrants were directed, arrested and confined a large number of persons, and broke into rooms and desks, examined and seized their private papers, and delivered them to a clerk of the secretary of state. Many of those who were thus treated brought actions of trespass against the messengers, and recovered substantial damages. Upon motions in arrest of judgment or for a new trial or otherwise, questions involving the validity of such warrants, and the authority of messengers, were considered in the king's bench and in the common pleas. Money v. Leach, 1 W. Bl. 555; Huckle v. Money, 2 Wils. K. B. 205; Beardmore v. Carrington, 2 Wils. K. B. 244; Entick Carrington, 19 How. St. Tr. 1070, 2 Wils.served from decision. 16 L. R. A.

V.

verdict, and, after two solemn arguments, it was determined by the whole court that there was no jurisdiction in the secretary of state to grant a warrant "to break open doors, locks, boxes, and to seize a man, and all his books, etc., in the first instance, upon an information of his being guilty of publishing a libel." From these cases it is clear that the common law did not admit of the invasion of private property, even under color of a warrant, for the purpose of procuring evidence of crime. A fortiori such an invasion without warrant was not justifiable. It does not necessarily follow that the Legislature may not, with proper restrictions, authorize such invasion of private property to procure evidence of crimes difficult otherwise to detect. This question Justice Knapp in his opinion has distinctly re

ILLINOIS SUPREME COURT.

SHELBYVILLE WATER CO., Appt.,

D.

PEOPLE of the State of Illinois, ex rel.
Ambrose M. CRADDICK, County Col-

lector.

prising the city of Shelbyville. The appellant has erected, upon its land adjoining said city, a building and works, containing the necessary machinery for supplying the city with water, and for producing and furnishing electric light. The water-mains and electric wires are connected with the machinery. The mains are imbedded in the 1. The water mains and electric wires earth, and extend from the works for some of a water and light company are per- distance on the company's land, and thence sonal property for purposes of taxation. through the streets of the city, by permission 2. Failure to enter opposite the name of its authorities, under ordinances passed of a personal tax delinquent the cause for that purpose. Fifty hydrants, standing of failure to collect the same and make each about three feet above the ground, are oath as to the truth of such cause and that the fixed to and form a part of the mains. The taxes remain unpaid, as required by Rev. Stat. water is drawn by the machinery from a 1891, chap. 120, § 170, may be corrected by amend-river, and forced by the engines into the ment of the record at the hearing of a proceeding mains and pipes. The wires also extend to collect the taxes out of real estate, under sec- through the city from the dynamo and power tion 191 of that Act, which provides for supplying engine in the building. Attached to them are thirty electric lamps. The wires, and the pole on which they are strung, beyond the land of appellant, are also upon the streets of the city by permission of the authorities expressed in city ordinances.

omissions of tax officers.

3. Where the statutes make real estate liable for taxes levied on personal property when they cannot be made out of the personalty, and direct the collector to select real estate for that purpose when it becomes necessary, it will be presumed when the books show charges of unpaid personal taxes against land that they were necessary because the taxes could not be made out of personalty although it is not

so stated on the return.

(March 26, 1892.)

PPEAL by defendant from a judgment of

The first objection is that these mains and wires are a part of the realty, and were therefore improperly assessed as personalty. By express provision of our Revenue Act, gas mains and pipes laid in roads, streets, or alleys are declared to be personal property, and are required to be listed and assessed as such. Rev. Stat. chap. 120, § 16; 2 Starr & C. Stat. such

A the County Court for Shelly County hold however, exists in regard to wate proving or

ing its real estate liable for the payment of
taxes which had been assessed as personal-
property taxes. Affirmed.

The facts are stated in the opinion.
Messrs. J. William Lloy and William C.
Kelley for appellant.

Messrs. W. B. Townsend and Moulton,
Chaffee & Headen for appellee.

Magruder, Ch. J., delivered the opinion of the court:

electric poles and wires. There are authorities which hold that the mains of a gas company are appurtenant to its lots, and are taxable as realty, unless it is otherwise provided by statute. Capital City Gas-Light Co. v. Charter Oak Ins. Co. 51 Iowa, 31; Providence Gas. Co. v. Thurber, 2 R. I. 15. Under the doctrine of such authorities, it would seem that water-mains and electric wires should be assessed as part of the realty, where there is no statutory provision directThis is an appeal from a judgment of the ing otherwise; and in Iowa such water-mains county court of Shelby county, rendered at have been held to be real estate, and treated the May Term, 1891, against delinquent as appurtenances to the water-works. Appeal jands, including certain lots and acre prop-of the Des Moines Water Co. 48 Iowa, 324. erty belonging to the appellant company. There are other authorities, however, The company appeared and filed objections, which hold that gas-mains in the streets of which were overruled, and exception was taken. Judgment was rendered against the lots of appellant in the original town of Shelbyville for a certain sum as personal property taxes, penalties, and costs, and against ten acres of appellant in said county for a certain other sum as personal property taxes, penalties, and costs. The two assessments of personal property taxes were made on the water mains and pipes and hydrants, and also upon the electric wires and lamps and poles, of the appellant, a part of which are in school-district No. 2, and a part in school-district No. 1, the latter com

a city are personalty. In People v. Brooklyn Bd. of Assessors, 39 N. Y. 81, it was said: "These mains, running under the streets of the city, not being erected upon or affixed to the relator's land, cannot be regarded as real estate, under the statute, for the purpose of taxation. The mains are not 'real estate,' as that term is defined in the statute regulating the assessment of taxes, and I do not think they can be held as fixtures, under the common doctrine upon that subject." In Memphis Gas-Light Co. v. State, 6 Coldw. 310, 98 Am. Dec. 452, the Supreme Court of Tennessee says: "It is insisted that the

NOTE.-For a case holding that the mains, pipes | the course of the decisions on the subject, see Osand hydrants of a water company are to be as- kaloosa Water Co. v. Oskaloosa Board of Equalizasessed as part of its real estate, and a note showing tion (Iowa) 15 L. R. A. 296.

See also 16 L. R. A. 581; 21 L. R. A. 525.

The next objection filed in the court below is that the said personal property taxes should not have been charged against the real estate, for the alleged reason that the town collector did not note in writing, opposite the name of appellant, "the cause of failure to collect the same," and did not make oath, and sign and enter upon the collector's book an affidavit, that the cause of delinquency noted was true and correct, and that such sums remained due and unpaid, and that he had used due diligence to collect the same. Rev. Stat. 1891, chap. 120, § 170; 2 Starr & C. Stat. par. 172, p. 2078. Upon the trial the court ordered the clerk to correct and supply the record; and thereupon the town collector was called, and entered upon his delinquent report or list, opposite appellant's name and opposite each amount of the total personal taxes, and under the head of "Remarks," the following words, "Refused payment, and no available prop. erty on which to levy." The town collector also made the oath, and attached to said list the affidavit provided for in said section 170. The action of the court in this regard was objected to and exception taken. We think the court was authorized to allow the record to be amended in the respect above indicated, under the provisions of section 191 of the Revenue Act. Rev. Stat. 1891, chap. 120, § 191; 2 Starr & C. Stat. par. 193, p. 2087. That section provides for amendments in judicial proceedings for the collection of taxes; and that no charge for any of said taxes shall be illegal on account of any irregularity in the tax-lists; and that no informality not affecting the substantial justice of the tax shall vitiate or affect it; and that any irregularity in the tax-lists, or any omission of any officer connected with the levying of such taxes, may, in the discretion of the court, be corrected, supplied, and made to conform to law, etc.

pipes used for conveying the gas manufact- the manufacturing establishment. In the ured to the consumers, and laid down, not present case the water-mains and electric upon the land of the company, but through wires are a part of the apparatus for the deand under the public streets of the city, are livery of water and light to the inhabitants not a part of the manufacturing establish- of the city, and, as such, constitute a part ment. Pipes laid through the streets of the of the machinery, including the engines and city in the manner above mentioned, by boilers, which is located in appellant's permission of the corporate authorities, do building. We think that the mains and not become the property of the city or a part wires were properly assessed as personal of the realty. They are personal property, property. and the property of the company.' So far as the application of this doctrine is concerned, there is no difference between the mains and the wires. In this conflict of authority we are inclined to hold that these mains and wires are personalty, as this view is in harmony with the spirit, if not the letter, of our own statutes, and with the tone of our own decisions. In Johnson v. Roberts, 102 Ill. 655, it was claimed that certain machinery in a building had been improperly assessed as personal property, because the engines and boilers were permanently attached to and were a part of the realty; and we there beld that, although the engines and boilers would be regarded as permanent fixtures and part of the realty at common law, and as between grantor and grantee, yet that the Legislature has the power to declare personal property to be realty, and realty to be personal property, for the purposes of taxation; that it had changed the rule so far as the facts of that case were concerned; that the engines and boilers, though attached to the realty, were to be treated as personalty under the twentyfifth section of the Revenue Act, which mentions "every steam-engine, including boilers and the value thereof," as the sixth item in the schedule of personal property. 2 Starr & C. Stat. p. 2036. The evidence in the case at bar shows that the machinery in appellant's building, used for forcing water into the mains and furnishing electric light to the city, "consists of two Worthington pumping engines, two tubular boilers, one New York safety high-speed power engine, and one electric dynamo and fixtures." The mains and wires, being directly connected with these engines and boilers, which are personal property for the purposes of taxation under the doctrine of the Johnson Case, can as well be held to be a part of the ma chinery as of the realty to which the machinery is attached. If they are a part of the engines and boilers with which they are connected, they may, like such engines and boilers, be regarded as personal property for the purposes of taxation. In Com. v. Lowell Gas-Light Co., 12 Allen, 75, it was held that the gas mains and pipes, laid down in the streets for the purpose of distributing gas to the consumers, constituted a part of the machinery in operation at the gas-works. So, also, in Memphis Gas-Light Co. v. State, supra, it was held that the pipes were a part of the apparatus for the delivery of gas to the consumers; that the delivery was as much within the purpose of the creation of the gas company as the manufacture: that the apparatus for delivery was merely an extension and continuation of the apparatus for manufacture; and that both belonged to

A strict construction of section 170 would lead to the conclusion that the only cases of failure to collect the tax upon personal property which are contemplated by that section are "removal" or "insolvency" or some "error in the tax-book." Primarily, this section would seem to have special reference to the settlement of the town collector with the county collector. It is illogical to require that the insolvency of a party charged with a personal property tax shall be a prerequisite to a charge of such tax upon his land. If he owns land, he is not insolvent. Section 255 of the Revenue Act provides that "real property shall be liable for taxes levied on personal property, but the tax on personal property shall not be charged against real property, except in cases of removals, or where said tax cannot

the tax on personal property against real property, the county collector shall select for that purpose some particular tract or lots of real property owned by the person owing such personal property tax, etc. 2 Starr & C. Stat. par. 185, p. 2082. The officer will be presumed to have done his duty. Job v. Tebbetts, 10 I11. 382. Inasmuch as the books of the collectors, when introduced in evidence by the company itself, showed the charge of unpaid personal property taxes against particular parcels of land, it will be presumed that such charge had become necessary, because the tax could not be made out of personal property. Therefore the amendment allowed by the court merely stated what the law presumed without an amendment. Some other objections are made, but we do not deem them of sufficient importance to justify any further discussion. A careful consideration of them has led us to the conclusion that they have reference to such mere irregularities in the proceedings as do not affect the substantial justice of the tax, and consequently are cured by the provisions of said section 191.

be made out of the personal property." 2
Starr & C. Stat. par. 257, p. 2112. Sections 170
and 255 should be construed together. The
latter is broad enough to include other causes
for a failure to collect the tax upon personal
property besides insolvency. In the present.
case the proof shows that the town collector
made a demand upon appellant about Feb-
ruary 1, 1891, for the payment of the taxes
upon its personal property; that appellant
made no objection to the taxes, nor denied
its liability therefor, but asked for as much
time as possible, and was given until March
20. 1891, promising that payment would be
made at that time; that a second demand
was made about March 20, and payment was
refused. If it was not then too late to make
a levy, it is doubtful whether it would have
been advisable to levy upon the water-mains
under the streets and the electric wires over
the streets, in view of the interest which the
public had in both the water and the light
thereby supplied. The books of the town
and county collectors showed the amount of
these personal taxes, and that they were un-
paid, and showed the particular parcels of
land against which they were to be charged.
Section 183 of the Revenue Act provides firmed.
that, "when it becomes necessary to charge

The judgment of the County Court is af

MINNESOTA SUPREME COURT.

E. H. EIDAM, Respt.,

v.

Andrew J. FINNEGAN et al., Appts.

(........Minn.........)

*1. A stipulation by an attorney that the action shall abide the event of another action *Head notes by GILFILLAN, Uh. J.

NOTE.-Control of guardian ad litem or next friend over the action.

A guardian ad litem will not be permitted to do any act, or make any admission, or enter into any agreement or stipulation which tends in any degree to prejudice or compromise the infant's rights. Revely v. Skinner, 33 Mo. 98.

The guardian ad litem of an infant plaintiff has no authority to bind the infant by a settlement of the action unless made with the express sanction of the court. Edsall v. Vandemark, 39 Barb. 589. The court said, p. 599: "The authority conferred upon him is to prosecute, not to settle, to obtain for the infant an adjudication as to his rights-not to barter away those rights in such manner as the guardian may choose." To the same effect is Isaacs v. Boyd, 5 Port. (Ala.) 388.

The next friend of a lunatic has no power to compromise a suit brought by him as such, without the approval of the court. Clark v. Crout, 34 S. C. 417. While it may well be considered to be within the official duty of the next friend of an infant plaintiff to negotiate a fair adjustment of the action without subjecting the plaintiff to the expense and risk of a trial. still, a settlement of the action of an infant by a next friend, unless sanctioned by the court or affirmed by entry of judgment in regular course, is invalid, and cannot be shown in bar of the action, nor can admissions made by the next friend in the negotiation for such settlement be

pending binds his adult clients, unless it be improvidently, fraudulently, or collusively

made.

2. But such stipulation does not bind an infant party unless approved and ratified by the court upon a showing that it is for the interest, or, at least, not prejudicial to the interest, of the infant. It must appear that the matters in controversy in the two actions, so far as affected the infant, are precisely the same, and that

proved on the question of damages. Tripp v. Gifford (Mass.) Nov. 30, 1891.

A guardian ad litem cannot bind his ward by a submission of the matters in litigation to arbitation and approval of the award of the arbitrators. Fort v. Battle, 13 Smedes & M. 133; Hannum v. Wallace, 9 Humph. 129.

A next friend has no right to submit the case of an infant plaintiff to arbitration. Tucker v. Dabbs, 12 Heisk. 18.

But the defendant cannot object to the award because of the plaintiff's infancy. lbid.

A prochein ami has no right to compromise, or to receive the money due upon a judgment recovered by him in the name of an infant. Miles v. Kaigler, 10 Yerg. 10, 30 Am. Dec. 425.

The money must be paid only to a qualified guardian, or, if there be no such guardian, it should remain in court until such guardian qualifies or the minor becomes of age. Galveston City R. Co. v. Hewitt, 67 Tex. 473, 60 Am. Rep. 32.

One acting as a next friend for an infant in litigation has no authority to bind the infant by a contract for attorney's fees. Houck v. Bridwell, 28 Mo. App. 644.

A guardian ad litem cannot make a contract with an attorney for compensation that will deprive the court of the power to fix such compensation at a reasonable amount. Cole v. Superior Court, 63 Cal. 86, 49 Am. Rep. 78.