and this to be certified to councils, to be accepted or modified by them. The act of March 15, 1878, supplement to the act of 1877, provided that the sums appropriated for educational, school, and poor purposes, shall be paid out upon warrants issued by the educational, school, or poor boards. The act of June 12, 1878, above mentioned, provides that the central board of education shall ascertain and determine the amount of money necessary for conducting the schools of the city, and certify the same to councils, and councils shall add the same to the aggregate of the taxes; and this act also declares it to be the true intent and meaning of the act to which it is a supplement that none of the powers theretofore belonging to the central board of education and the various school boards of the said cities prior to the passage of such act shall be impaired or affected in any manner, except in relation to the levy and collection of taxes. It is argued by counsel for defendants that the effect of these acts is to place on the central board the power to ascertain and determine the amount necessary for conducting the schools, and the conducting of the schools means, not only the payment of the teachers and similar expenses, but the provisions for buildings, grounds, and all things necessary for housing and accommodating the pupils, and the power of the subdistrict given by the 'sixty-third section of the act of 1869 to levy taxes is taken away, and they cite the case of Com. v. Shaw, 96 Pa. 274. If we agreed with counsel for defendants in this respect, we should be of the opinion that the central board of education was bound to levy taxes for the purchase of lands and the building of school houses upon the city at large, and that the taxes levied of 8.2 mills on the dollar on taxable property in the Eighteenth ward was wholly illegal, not for the reason that it exceeded the amount of the regular annual school tax, but because no other authority appears to have been granted to the central board of education to levy special taxes upon parts of the city different in amount from those levied upon the rest of the city. As to the case of Com. v. Shaw, supra, although there are expressions in the opinion of the late president judge of this court favorable to the contention of counsel, yet all that was decided in the case was that a mandamus could not be granted to compel the central board of education to do that which, if they had power to do, was a matter of discretion. (3) We are of the opinion, however, that the sixty-third section of the act of 1869, so far as it authorized the subdistrict to levy taxes, or requires the levy of the same for building purposes, is not repealed by any of the acts above mentioned, but, on the contrary, that the legislative interpretation contained in the third section of the act of June 12, 1878, in addition to its legislative force, is a correct interpretation of the act, and the subdistrict being required to build and maintain school houses sufficient for the needs of the district. It is not to be supposed that the legislature means to take away from the subdistricts the power to levy taxes for that purpose, although the mode of levying the same might be modified. (4) By the act of May 24, 1881 (P. L. 29), above referred to, an attempt was made to settle the question which appears to have been raised as to whether or not the sixtythird section of the act of 1869 was still in force, and the act provides that the several boards of directors of the sub-school districts shall have power to purchase ground and erect buildings, etc., to borrow money and provide for the payment of it, and levy taxes for such purposes as fully as such power existed and belonged to said boards prior to the act of 1877. It is alleged by defendants that this act is unconstitutional, in that it violates section 6, art. 3, of the constitution, in attempting to revive a law by reference to its title only, without re-enacting and publishing it at length; and this position seems to be well taken, at least so far as the act undertakes to define the powers granted by reference to those which existed before the passage of the act of 1877, and that is all that concerns us in this case. (5) The provision of the sixty-third section of the act of 1869, limiting the special tax to the amount of the regular annual school tax, was copied into the act of 1855, creating the central board of education, from the general school law of 1854, where it referred to a tax levied by the same body as that which levied the special tax, and was copied from the act of 1855 into that of 1869, under both of which acts the central board of education levied a regular annual school tax, or that which might properly be called such, being a certain millage upon the taxable valuation which was required by law to be ascertained before the levy of the special tax. As the law now stands, however, since the act of 1878, the central board of education does not levy any school taxes, but presents to councils a lump sum, which councils are required to add to the aggregate of taxes required for cities, and appropriate the same to the use of the central board, and, as above stated, the councils of the city of Pittsburg levied a tax of 15 mills for general city purposes, which includes the proportion to the central board of education. It is true that if the subdistrict board can ascertain, before levying their taxes for building purposes, the exact valuation of the property of the whole city for taxable purposes, and the central board of education has certified to the city councils the amount deemed by them necessary for conducting the schools, it can by a mathematical calculation arrive at the percentage of the amount as of the whole taxable valuation of the city, and in one sense this would represent that which was originally intended by the regular annual school tax. No machinery appears, however, to be provided by which the subdistrict board is to be informed of the various elements of the problems thus presented to them. We are of the opinion, therefore, that there is now in the city of Pittsburg no regular annual school tax levied which can be the measure of the special tax which may be levied by the subdistrict, and that the part of the sixty-third section of the act of 1869 which refers to the amount of such annual school tax has been repealed by implication or become inoperative. (6) The act of 1874 and its supplements, relating to the indebtedness of the municipalities above mentioned, is a general act giving power to all the bodies to which it relates, including the subdistricts of the city of Pittsburg, to borrow money, and requires the levy of a certain amount of taxes in proportion to the money borrowed for the payment of the same, and this act substitutes the methods and limitations theretofore existing in different portions of the state, and substitutes its own provisions for them. Chalfant v. Edwards, 176 Pa. 70, 34 Atl. 922. As the district has a bonded indebtedness of over $140,000, there must be levied a considerable tax at the time of the borrowing of this money, of the amount of which we are not informed, and which is included in the 8.2 mills above mentioned. For anything that clearly appears in the evidence, the whole of this 8.2 mills may have been originally levied in the provisions of the act of 1874 and its supplements. We cannot in any event declare the whole of the levy of 8.2 mills illegal, and, if any part of it is not legalized by the act of 1874, we cannot enjoin the collection of such part, even if otherwise illegal, because we cannot ascertain its amount. (7) The view we have taken for regulation above mentioned relieves us from the necessity of discussing the constitutionality of the act of 1877, which is claimed by plaintiffs' council to be unconstitutional, because the title does not allude to the subject of schools, and the school districts were not, at the time of the passage of the act, departments of the city government, being districts of the state having a separate corporate existence. (8) It was stated upon the arguments, and not denied, that the practice of levying a special school tax by the subdistricts for building purposes, as was done in this case, has been universally adopted in all subdistricts of the city for upward of 20 years, and that in many cases heretofore, and in the ordinance levying the tax complained of for the present year, the taxes levied by the subdistricts were larger than the proportion borne by the central school board of education's estimate to the whole value of the city, and that the same has not been heretofore questioned. It is certain that very great confusion would arise in many subdistricts of the city if the interpretation of the various acts in question claimed by the plaintiffs were to be adopt ed, and, while this would not be a reason for not adopting that interpretation, if it were clearly right, it is strongly persuasive that it should not be adopted, if a reasonable interpretation sustaining the present practice can be found. (9) Under the above findings of fact as to the contracts of the school board, which are alleged to be illegal, as creating an indebtedness beyond the amount allowed by law, we think there is no question that the subdistrict is acting within its rights, and that the contracts complained of do not create an illegal debt. Wade v. Oakmont Borough, 165 Pa. 479, 30 Atl. 959; City of Erie's Appeal, 91 Pa. 398. Being of the opinion, therefore, that the tax of 8.2 mills complained of is not excessive or illegal, and that the contracts above mentioned do not constitute an illegal increase of debt, the plaintiffs are not entitled to any of the relief prayed for, and the bill is dismissed, at their costs. Let a decree be drawn accordingly." H. T. Watson, for appellants. A. E. Goss, J. E. McKelvey, and W. B. Rodgers, for appellees. PER CURIAM. We have carefully examined and considered the findings of fact and conclusions of law in this case, and are satisfied that the learned judge of the court below has committed no error in the findings and conclusions referred to. The exceptions filed by the plaintiffs' counsel were reviewed, and on due consideration dismissed. Upon hearing had on bill, answer, and testimony, and on the findings, conclusions, and exceptions argued, it was adjudged and decreed that the bill be dismissed, at the costs of the plaintiffs. Decree affirmed. (23 R. I. 312) GARDNER v. PROVIDENCE TEL. CO. (Supreme Court of Rhode Island. Sept. 20, 1901.) Motion for rehearing. Denied. PER CURIAM. The evidence shows, as stated by the complainant, that the defendant refuses to furnish a long-distance extension set in connection with a grounded telephone circuit. The evidence does not convince a majority of the court that such a combination can be made generally without impairment of the service. The uniform practice of the company is against this contention. The company offers to annex to the complainant's grounded circuit, for a reasonable price, such an extension set as is appropriate for the circuit, and which it contends will give satisfactory service. This is all that the complainant can demand. He is in default in not requesting the company to provide what it says it is willing to give him, and in insisting on the exact form of appa. ratus which he has installed. It is for the company, not for the subscriber, to determine the type of apparatus it shall use; and there is no evidence that the type it offers is inadequate. These points were fully considered by the court upon the former hearing, as a careful examination of the opinion will show. It may further be observed that in this case there is no evidence that the defendant's charge for a metallic circuit combined with a long-distance set is exorbitant. The wellknown superiority of a metallic circuit to a grounded one in all essential features, and the greater cost of construction, make it reasonable to charge more for the use of the me tallic circuit than for the other. The question of price is not strictly before the court, for the complainant does not desire this kind of service, and the defendant will not tolerate the combination which the complainant has made at any price. The motion for reargument is denied. (74 Conn. 326) CITY OF NEW BRITAIN v. NEW BRITAIN TEL. CO. (Supreme Court of Errors of Connecticut. Jan. 8, 1902.) Dissenting opinion. For majority opinion, see 50 Atl. 881. and voices what we must suppose to have been the true intent of the parties. While the Southern New England Company is spe cifically named, it is clear from the whole transaction that the city's design was, not solely to keep the defendant from the control of that corporation, but chiefly that the defendant should maintain an independent integrity as an active business concern,either under its then existing management, or under such other control as would insure the preservation of the city's rights under its contract. The condition against absorption by this particular corporation was only a detail of this general design, and not its main purpose. Probably the precise danger so sought to be guarded against was the only danger in sight when the agreement was entered into by the parties. In this view of the undertaking, and, it seems to me, in this view only, the provision for maintaining "competition" is without offensive significance. It becomes merely an alternative way of expressing the real spirit of the obligation, which was to preserve in the defendant, or in its legal successors, an effective instrument for the carrying out of the contract. Under whatever name it is urged, therefore, the only basis for a recovery here is the defendant's surrender of its control to another corporation. The fact that its successor happens to be the Southern New England Company is without necessary significance in considering the question of damage. The condition of the obligation provides, both generally and specially, for the contingency which has arisen. It recites that "if the said obligor shall sell its property, or its control shall go into the hands of other parties," the bond shall be of full force. Obviously the damages recoverable for such a breach alone CASE, J. If it was the main purpose of the city to stimulate a business rivalry between the defendant and the Southern New England Telephone Company, then certainly, in the absence of any finding that the city had a legitimate interest in the event, or of facts from which that conclusion fairly follows, the undertaking falls outside its corporate powers. The city had power to stipulate for the continuance of the defendant's business by the defendant, if the city's in--that is, unless it includes as an element terests under the antecedent contract were fairly involved in such action; but, without some real or apparent ground therefor, arising out of its contract relations and based upon self-protection, it had no right to discriminate against a single company, while leaving the defendant open to convey to or combine with any other. To hold broadly and without limitation that it might so do under the usual charter powers of a municipal corporation, or even to hold that the mere contracting for the use of the poles carried with it as a necessary incident such extraordinary power as that referred to, is to remove restrictions upon municipal action at a point where it seems most essential to retain them. It is the policy of the law to hold municipal bodies to the exercise of their proper functions, not to discover for them new lines of activity foreign to the scope or purpose of their corporate existence. But it is the duty of the court to sustain the agreement, if any reasonable construction which its terms admit justifies that conclusion. Such a construction is possible here, this matter of "competition"-are to be measured strictly by the damage shown to have been suffered because of it. The resolution of the common council, directing the exaction of a bond and dictating its terms and amount, makes this clear. It provides, as one of the conditions of the bond, "in case this company sells out, or its control goes into other hands, that its competition must be kept up with the Southern New England Company, and in case its control passes into their hands the bond shall be forfeited." It is only when the control passes to this one named possible successor that an attempt is made to assess the damages in advance. The range of possible change of control is unlimited, save by this one restriction. The field is open to all the world, save to this one company, and, except in this single contingency, the plaintiff recognizes the possibility of determining the actual damage that may follow such a change of control, and is satisfied with a recovery commensurate to the damage suffered, to be estimated upon actual proof of loss. If the provision for "competition" is stripped of 50 ATLANTIC REPORTER. its literal import, therefore, the agreement cannot be sustained, as one calling for liquidated damages, without full recognition of its arbitrary and inequitable character; and nothing upon the record discloses sufficient ground for the discrimination which it attempts. We are not to assume that peculiar or unusual elements of damage to the city would attend the transfer of the defendant company to the Southern New England Company which would not attend a transfer to any other concern, or that greater difficulty would attend the assessment of actual damages in one event than in the other. finding warrants no such conclusion. The facts found as bear at all upon this feature Such of the case plainly exclude it.. This essential unfairness of the stipulation in question, if given literal effect, is, therefore, apparent at the outset. It is, of course, emphasized by the fact that the changed condition of affairs which brings about the forfeiture is one merely in name, so far as the city is concerned, and that neither inconvenience nor damage has resulted from it. Presumably the security which the bond affords was exacted as a legitimate protection against loss or damage. It does not follow that such loss or damage was expected, even though the event that might give rise to it was foreseen. The results which have followed the broken condition are those which might have been expected to follow. If the parties had in contemplation only such elements of damage as the bond can reach, it is hardly conceivable that a different result was looked for. If, on the other hand, they had in mind, as an element of recoverable damage, the effect upon the New Britain public generally of an abandonment of "competition" by the defendant company, they were obviously reckoning with something that the city's undertaking does not and cannot include. In either event, the circumstances show that there was no attempt to determine in advance a fairly compensatory sum, and that the sum in fact named bore no intelligent relation to any reasonable expectation of damage. In this situation the duty of the court is plain. It cannot lend its aid to give the plaintiff the inequitable advantage that must follow the literal enforcement of the stipulation. It is well settled that the language of the parties in such an instrument is of no determining force, where it conflicts with the true character of the undertaking embodying it. No expressed agreement to fix or stipulate or liquidate damages in advance will avail as such against the real nature of the obligation. It is suggested in 2 Sedg. Dam. (7th Ed.) p. 254, as "the fundamental principle governing the whole subject," that courts "will only follow the expressed intention of the parties to liquidate the damages, when this intention is not calculated to work injustice, or to substitute for the compensation which the law regards as proper an arbitrary and oppressive fine." It is not conclu (Conn. sive that the parties say the damages are fact, and the actual liquidation of damages liquidated. It must appear that this is the bitrary sum. means more than the mere naming of an arThe sum named must bear provided against. This rule has found gensome rational relation to the contingency eral support in the courts of this country. One of the latest cases which fully approves it, after a careful review of the authorities, is that of Chicago House Wrecking Co. v. U. S., 45 C. C. A. 343, 106 Fed. 385. It is clearly entitled to favor here, where it is but the extension of an equitable principle that finds expression in our statute limiting the recovery on a penal bond to such damages "as are equitably due." Gen. St. § 1115. As is said in the case just cited: "If the parties could at will change what is essentially a penalty, and properly intended to enforce the obligations of the contract, into stipulated damages, it could be done in any case, although the damages might be either nominal or easily assessable." For the reasons given, I think the rule is of application to this case, and that upon the facts found it was error for the trial court not to so hold, and render judgment for only nominal damages. (74 Conn. 425) DORE V. BABCOCK. NEGLIGENT BURNING OF BUILDING-AGENCY FOR VERACITY-EVIDENCE-RELEVANCY. 1. In an action for negligently burning plaintiff's building, where plaintiff claimed that the fire was caused by defendant's servant negligently setting a lighted candle near a pan of oil, or carelessly knocking it over after so placing it, and defendant claimed that the evidence tended to show that, a light being needed there, and it being plaintiff's duty to furnish one, he gave the candle to defendant's servant to use in performing plaintiff's duty as to lighting, failure to specifically instruct, in effect, that, if these facts were true, defendant's serv-. ant was plaintiff's agent in the placing and upsetting of the light, was error; mere general instructions as to liability of employers for acts of their agents, or that the jury should determine the question of agency between these parties from all the facts and circumstances, being insufficient. 2. Evidence that a witness' wife did not live with him, but had obtained a divorce on the ground of desertion and witness' neglect of all the duties of the marriage relation, is incompetent to discredit, because not affecting, the witness' character for veracity. 3. The witness being an important one, and the judge having emphatically told the jury that they should consider such evidence as tending to discredit the witness, the error was prejudicial. Appeal from superior court, New Haven county; George W. Wheeler, Judge. Action by Daniel Dore against Frederick W. Babcock to recover for negligently causing the burning of plaintiff's store building and dwelling house and contents. From a judgment in favor of plaintiff, defendant appeals. Reversed. Charles S. Hamilton and Edward A. Harriman, for appellant. James H. Webb and Arnon A. Alling, for appellee. TORRANCE, C. J. The new trial heretofore granted on the plaintiff's appeal in this cause (72 Conn. 408, 44 Atl. 736) resulted in a verdict and judgment for the plaintiff, and the defendant now appeals for alleged errors of the trial court in its rulings and in its charge to the jury. The evidence produced by both sides on this second trial was substantially the same as that produced by them on the first trial, and the substance of it is so fully stated in the report of this case in 72 Conn. 408, 44 Atl. 736, that it is unnecessary to restate here anything more than the substance of some of the facts found upon the record. Upon the second trial, as upon the first, the defendant claimed to have proved that upon the day of the fire the place in plaintiff's store where the oil was to be poured by Higgins, the defendant's servant, into the pan connecting with the tank, was so dark that an artificial light was necessary there, while the plaintiff claimed to have proved that no such light was necessary. The defendant also upon this trial, as upon the other, claimed to have proved the following facts, in substance, with reference to the use of the candle which it was claimed caused the fire: That Higgins on the day of the fire asked the plaintiff's servant McEnroe for a light to be used at the pan, to enable Higgins to pour the oil therein properly; that McEnroe furnished Higgins with a candle to be used for that purpose, and a match to light it; and that Higgins placed three bundles of kiln-dried wood on the floor, about three or four feet from the pan, and piled them up, making a base about nine inches high on which he placed the lighted candle, affixing it thereto by grease melted and allowed to harden. One of the important questions-indeed, the pivotal questionin the case below was whether Higgins, in so placing and using the candle in this way, was as to these acts the servant of the defendant, or the servant of the plaintiff; and one of the things of which the defendant now complains is the charge of the court upon this question. In substance, he claims that the charge upon this point was not sufficient for the guidance of the jury in determining this important point in the case. More precisely, the complaint is that the court failed to say to the jury, in any effective way, that if Higgins, in lighting and placing the candle as and where he did, was doing something by the plaintiff's consent which it was the duty of the plaintiff to do, he was, in what he so did, the servant of the plaintiff, and not of the defendant. think this complaint is well founded. We The defendant claimed that the evidence tended to show (1) that an artificial light was necessary at the pan; (2) that it was the duty of the plaintiff to furnish such light there; and (3) that when the defendant, through Higgins, asked for such light there, the plaintiff, through McEnroe, as his servant and agent, recognizing his duty to furnish it, began the performance of that duty, and thereby impliedly authorized Higgins to com plete it. This claim was fairly supported by the evidence as the defendant claimed it to be. Was McEnroe authorized to act for the plaintiff, and as his servant, for the purpose of furnishing the necessary light? Did the plaintiff recognize his duty to furnish that light? Did McEnroe, in his behalf, begin the performance of that duty by handing a candle to Higgins, for Higgins to use in completing the performance of the plaintiff's duty by using the candle, as the plaintiff's agent, to light the place where the oil was to be poured into the pan? These were material questions of fact for the jury to decide. If they were all answered by the jury in the affirmative, then the law was that Higgins, in lighting and placing the candle, was the servant of the plaintiff, and not of the defendant, and the jury should have been so instructed. The court instructed the jury correctly enough as to the "general rules of law governing the liability of employers for the acts of their servants or agents." They were also distinctly told that if Higgins, in placing the candle as he did, was the agent of the plaintiff, the defendant was not liable; but they were not told that, if the defendant's claims upon the evidence on the points in question were found true, Higgins, in placing the candle, was the agent of the plaintiff. They were, it is true, told that in determining this important question they should "examine the situation as disclosed by the evidence, the relation between the parties, methods and modes of doing business, the character of Higgins' acts, and the acts themselves, taking into consideration, if you find it to be proven, Dore's prohibition from Higgins using the candle,indeed, taking all the evidence into your consideration,-and then determine from all the facts and circumstances disclosed whether Higgins, in what he did, was the agent of the defendant, or of the plaintiff"; but we think, under the somewhat peculiar circumstances of this case, that this general instruction was not sufficient for the guidance of the jury, and that they should have been instructed specifically as herein before indicated. The plaintiff claimed the fire to have been caused by the negligence of Higgins, either (1) in placing the candle as he did; or (2) in carelessly knocking it over in delivering oil after it was placed. The jury should have had specific instructions, adapted to the facts bearing upon each of these claims, to enable them to determine whose servant Higgins was while doing the one or |