administration of law are legislation and administration by Kentucky, through the agency of that municipality.' But a municipal corporation, when holding in its private or proprietary character property or funds in trust for taxpayers and inhabitants within its limits, occupies toward them ■ relation like that of a purely private corporation to its cestuis que trust, who are its shareholders; for in each case the corporation, or its governing body, is a trustee; and if creditors, or shareholders, may maintain an action against the board of directors, the governing body, of a private corporation, to prevent or avoid an illegal and wrongful act, as unquestionably they can do, why may not taxable inhabitants maintain one against a municipal corporation and its governing body, the city council or board of trustees, to prevent as well as avoid an act illegal and wrongful, done, or about to be done, in relation to property or funds held in trust?

"In High on Injunctions, section 1241, is this language: 'The restrictions thus placed upon equitable interference with the action of municipal corporations do not extend to cases where the act sought to be enjoined is in excess of the corporate power, but are limited to cases of a conceded jurisdiction, within the bounds of which the municipal power is acting. And while it is thus shown equity will not enjoin the action of municipal corporations while proceeding within limits of their well-defined powers as fixed by law, it has undoubted jurisdiction to restrain them from acting in excess of their authority and from the commission of acts ultra vires.' Though it is not quite clear from the language used whether the test of jurisdiction is meant to apply to acts of municipal corporations done as well in their public as private character, it is manifest such restraining power, to be effectual, must operate upon the general council of a city or board of trustees of a town; for acts done in excess of authority, or ultra vires, cannot be com mitted by a corporation except by its governing body or head. And such must have been intended to be the meaning and scope of the proposition, for several leading cases in England are cited in which the power of a court of equity to enjoin passage of an illegal ordinanance is distinctly recognized.

'The case of Des Moines Gas Co. v. The City of Des Moines, 44 Iowa, 505; 24 Am. Rep. 756, cited by counsel, was as to the power of equity to enjoin passage of an ordinance repealing a former one under which a contract had been made with the plaintiff. It was held by the court that the municipal council had in reference to the matter discretionary power and was acting within the scope of it, and was neither violating a trust nor doing an irreparable injury to the plaintiff. And though it was there said in general terms that the ordinance in question had the force of an act of the legis lature and could not be enjoined, it was still conceded that one creating a public nuisance might be, because it could not be a rightful subject of legis. lation, and the mischief therefrom might be irreparable, which was in effect a concession of the power in every case of like conditions.

"In the People v. Dwyer, 90 N. Y. 402, it was, upon principle and authority of previous decisions in that state, held that while equity will not ordinarily interfere with matters resting largely in the discretion of municipal authorities, when the threatened action will produce irreparable injury, and consists in an illegal grant, or the disposition of property, by devoting it in whole or in part to the use of a private corporation, or where an illegal grant is threatened, or the action attempted is corrupt and fraudulent and an abuse of trust, the court may interfere by injunction to restrain passage of an ordinance for the purpose.

"In our opinion, the general proposition that a court of equity may not enjoin passage of a municipal ordinance, must be confined in its application

to subjects over which the corporation in its governmental or public character has discretionary authority. And if it be conceded taxable inhabitants have a right to resort to equity, at all, to restrain a municipal corporation and its officers from making an illegal or wrongful disposition of corporate property, whereby the plaintiffs will be injuriously affected, it reasonably follows the power exists to enjoin passage of the ordinance authorizing the act whenever irreparable injury will be done to the plaintiffs, and they have no adequate remedy at law; for, from its nature, a preventive remedy may be applied at the inception of a wrongful act; in fact, when it is about to be done or is threatened.

"There may, however, be subjects in relation to which the municipal corporation has discretionary power to legislate, and with which courts of equity upon grounds of expediency and policy will not interfere in the absence of fraud or breach of trust. But this is not such a case; for the plain legal duty is imposed upon the general council to hold, control and manage the wharf property for use of the public, which can not be evaded by transfer of it or otherwise. Yet, passage of the ordinance in question might have been, if it was not actually intended to be, followed so soon by transfer of the property as to put it out of the power of the plaintiffs and all other parties aggrieved to prevent consummation of the wrongful act.

"We think the court of equity has not only the power to restrain passage of an ordinance authorizing an illegal or wrongful disposition of property ac quired and held, as is the case of the wharf property, but, if needful, compel the general council to perform the duty of preserving, protecting and maintaining it for the purpose intended, though, of course, leaving it to the discretion of that body as to the manner of discharging its trust.

"It is stated, in the answer, that the ordinance was withdrawn after commencement of the action, and was not before the general council when the trial was had. But as the plaintiffs had a cause of action, withdrawal of the ordinance did not have effect to defeat their right to the relief sought, especially as another ordinance of the same character may be hereafter introduced and passed, unless the right to do so be perpetually enjoined. The judgment dismissing the action, being as already indicated erroneous, is reversed and cause remanded for proceedings consistent with this opinion." COUNTIES-DEFINITION.-Counties are political subdivisions of the states created by the sovereign power for the exercise of the functions of local gov. ernment: Fry v. County of Albemarle, 86 Va. 195; 19 Am. St. Rep. 879. A county is a corporation within the meaning of the article of the constitution of Pennsylvania providing that municipal and other corporations exercising the right of eminent domain shall make just compensation: County of Chester v. Brower, 117 Pa. St. 647; 2 Am. St. Rep. 713. Counties are political, ag. gregate corporations, capable of exercising such power as they may be vested with by the legislature, and are sometimes called quasi corporations: Louisville etc. R. R. Co v. County Court, 1 Sneed, 637; 62 Am. Dec. 424, and note. Counties are public corporations, subject to complete legislative control: Coles v. County of Madison, Breese, 154; 12 Am. Dec. 161. A county is not a corporation for municipal purposes, so far as they are to be considered cor. porations at all, they are political corporations: People v. McFadden, 81 Cal 489; 15 Am. St. Rep. 66. See also the extended note on counties to Gilman v. County of Contra Costa, 68 Am. Dec. 291.

INJUNCTION TO RESTRAIN THE DISCRETIONARY POWERS of officers will not be issued: Mc Whorter v. Pensacola etc. R. R. Co., 24 Fla. 417; 12 Am. St. Rep. 220, and note.

INJUNCTION TO RESTRAIN THE UNLAWFUL APPROPRIATION OF PUBLIO FUNDS.-An abutting owner is entitled to an injunction to restrain a city council from paying a street contractor for imperfect work: Lodor v. McGovern, 48 N. J. Eq. 275; 27 Am. St. Rep. 446, and note. This question is thoroughly discussed in the extended note to McCord v. Pike, 2 Am. St. Rep. 98.

CITY OF JOLiet v. Shufeldt.

[144 ILLINOIS, 403.]

NEGLIGENCE-PROXIMATE CAUSE.-IF A PERSON IS INJURED BY THE CON. JOINT RESULT of an accident and of the negligence of a city, and but for such negligence the injury would not have occurred, the city is liable. Therefore, if, without the fault of the driver of a horse attached to a buggy, the bridle broke, and the horse became unmanageable, and ran away, and turned into a public street, and there, because of the defective condition and want of repair of the street, the buggy was thrown against a wall, and an injury inflicted on the driver, which he would not have suffered had the street been in proper repair, the municipality is answerable.

ACTION to recover damages for injuries suffered by the plaintiff, Mary A. Shufeldt, while she was driving along a street in the city of Joliet. It was found "that the bit had broken at the connection of the mouthpiece with one ring, and the bridle was pulled back off from the horse's head upon his neck, and he was freed from any kind of restraint." He ran down Broadway street, and turned into Exchange street, at which point the buggy struck a stone wall, about five feet in height, and was turned over into a lower roadway, and the plaintiff fell upon the wall, and thence into the lower roadway, broke her arm, lacerating her hand, and sustaining injuries from which she was paralyzed, and became utterly helpless, with no prospect of recovery. The wall causing this damage had been erected and maintained by the city for the purpose of separating the two roadways constructed in Exchange street, leaving one of them very much higher than the other. Judgment for the plaintiff.

J. W. Downey, city attorney, and J. L. O'Donnell, for the appellant.

George S. House, and Shuman and Defrees, for the appellee.

407 SHOPE, J. The principal point urged for reversal arises upon the second instruction given on behalf of plaintiff; whereby the jury were in effect told, that if the plaintiff with a companion who was driving, was riding in a buggy drawn

by a horse along and upon one of the public streets of the city, and that without the fault of the plaintiff, or her companion, they being in the exercise of ordinary care and prudence, the bit of the bridle, on the horse, became loosened so that control of the horse was lost, 408 and thereby the horse became and was unmanageable and ran away, without negligence on the part of plaintiff or said driver, and turned from said street into another public street of said city; and the loosening of the bit, and loss of control of the horse was a pure accident, which common prudence and sagacity could not have foreseen and provided against, and that said street into which the horse turned was so out of repair, or defective, that the same was not reasonably safe or secure to guard against ordinary accidents likely to occur thereon to persons using the same without fault, and in the exercise of ordinary care aud prudence, and that by reason of the unsafe and defective condition and repair of said street, the said buggy was thrown against a wall there existing, with such force as to throw the plaintiff out of the buggy, and cause the injury complained of, and the city had actual notice of such defects in the street, etc., the city would be liable for the injuries thus sustained.

It is insisted with great force that conceding the negligence of the defendant, such negligence was not the proximate cause of the injury; and that in any event the running away of the horse concurring in producing the injury, the defendant is, therefore, not liable. We are referred to a number of Massachusetts cases, and some others may be found, which sustain the views of counsel. In this state, however, those cases have not been followed. In Joliet v. Verley, 35 Ill. 58, 85 Am. Dec. 342, we held that if a plaintiff, while observing due care for his personal safety, was injured by the combined result of an accident, and the negligence of a city, or village, and without such negligence the injury would not have occured, the city or village will be held liable, although the accident be the primary cause of the injury, if the consequences could with common prudence and sagacity have been foreseen and provided against. This doctrine has received express approval in many subsequent cases, among which may be mentioned Bloomington v. Bay, 42 Ill. 503; City of Lacon v. Page, 48 Ill. 499; Village of 409 Carterville v. Cook, 129 Ill. 152; 16 Am. St. Rep. 248. In City of Lacon v. Page, 48 Ill. 499, the doctrine was applied to a case like the present, where the accident concurring with negligence of the city in

producing the injury, was the running away of the plaintiff's horses, without fault on his part. There the city having constructed a drain under one of its streets, allowed it to so get out of repair, that a hole a foot wide, two feet long, and eight inches deep had been made in the street. The plaintiff was driving his horses to a lumber-wagon, when they ran away, one wheel of the wagon going into this hole; in the rebound plaintiff was violently thrown to the ground and injured. We there said, after approving the rule in the case of Joliet v. Verley, 35 Ill. 58, 85 Am. Dec. 342, and holding it applicable: "One great reason for requiring a corporation to keep its streets in repair is to reduce, as far as possible, the injuries that may result from the accidents so liable to occur in crowded thoroughfares. If the accident would not have caused the injury but for the defect in the street, and that defect is the result of carelessness on the part of the city, and the plaintiff has used ordinary care, the city must be held liable."

The same doctrine has been announced in many decided cases elsewhere: See Ring v. City of Cohoes, 77 N. Y. 83; 33 Am. Rep. 574; Baldwin v. Greenwoods Turnpike Co., 40 Conn. 238; 16 Am. Rep. 33; Hull v. Kansas City, 54 Mo. 601; 14 Am. Rep. 487; Hunt v. Town of Pownal, 9 Vt. 411; Winship v. Enfield, 42 N. H. 197; Hey v. Philadelphia, 81 Pa. St. 44; 22 Am. Rep. 733; Sherwood v. City of Hamilton, 37 U. C. Q. B. 410; Palmer v. Andover, 2 Cush. 600; Kelsey v. Glover, 15 Vt. 708.

In Baldwin v. Greenwoods Turnpike Co., 40 Conn. 238, 16 Am. Rep. 33, it is said: "If the plaintiff is in the exercise of ordinary care and prudence, and the injury is attributable to the negligence of the defendants combined with some accidental cause to which the plaintiff has not negligently contributed, the defendants are liable. Nor will the fact that the horse of the plaintiff was uncontrollable for some distance before the injury occurred in any way affect 410 the liability of the defendants." And the court held the loss should be charged upon the party guilty of the first and only negligence. In Ring v. City of Cohoes, 77 N. Y. 83, 16 Am. Rep. 33, after reviewing the authorities upon this subject, it is said: "When, without any fault of the driver, a horse becomes uncontrollable or runs away, it is regarded as an incidental occurrence, for which the driver is not responsible; and the rule, as laid down In the cases cited, may be formulated thus: When two causes