Abstracts city of Minden. Judgment for defendants, and plaintiff brings J. L. McPheeley and J. B. Scott, for plaintiff in error. Mayor, etc., of City of Baltimore et al. v. Bonaparte. Taxation-Revaluation by Court of Appeals Not a Judicial Function -Constitutional Law.-Baltimore City Charter, 170, provides that the determination of the Baltimore city court reviewing a decision of the appeal tax court as to a revaluation of property may be appealed to the court of appeals, and that the latter court shall hear and determine the questions involved in the appeal: held, that where the city appeals from a decision of the city court, the only question involved being the propriety of the amount of valuation, such question cannot be reviewed, since the court of appeals cannot review a question of fact, and the legislature cannot impose on such court the duty of making valuations for taxation, the same not being a judicial duty. Appeal from Baltimore city court; Henry Stockbridge, Judge. "To be officially reported." Appeal by Charles J. Bonaparte from the action of the appeal tax court revaluing certain property. From a reduction of the assessment the mayor and city council of Baltimore and others appeal. Dismissed. Argued before McSHERRY, C. J., and PAGE, PEARCE, FOWLER, and SCHMUCKER, JJ. Wm. Pinkney Whyte and Charles W. Field, for appellants. Charles J. Bonaparte, pro se. MCSHERRY, C. J. The function of assessing property for purposes of taxation is essentially not a judicial function, and it cannot be made a judicial function by being imposed upon or committed to the judicial department. In the case of Robey v. Commissioners (recently decided by this court) 48 Atl. 48, we had occasion to say, in speaking of an act of assembly which required the judges of certain circuit courts to approve the accounts of constables, sheriffs, and other officers against the county, that the duty thus attempted to be imposed was not judicial, and did not become judicial by being assigned to a judge. The thing to be done does not derive its character from the individual who does it. If it be not, by reason of its attributes, judicial, it does not become judicial by being performed by a judicial officer. Hence it is that the nature of the act must be sought in its attributes and qualities apart from the official title of the actor. The ordinary, usual valuation of property for purposes of taxation is in no sense a judicial act, though requiring the exercise of judgment in its performance. As this court can only be required to discharge judicial duties, it cannot, on an appeal involving solely the question of the Abstracts accuracy of an assessment, be directed by the general assembly to sit in judgment on such a valuation, because such a valuation is not the result of the exercise of any judicial function, and it must be assumed that the legislature knew this, and, knowing this, that it did not intend, by the language it used, to include such a duty in the appeal which section 170 of the charter authorizes. There doubtless may be cases in the forum of equity where relief would be granted against an unlawful assessment, but we are not considering such a situation; we are dealing only with the power of the legislature to convert this court on appeals under section 170 into a final board of review and revaluation to reassess property for purposes of taxation. We hold that the general assembly could not lawfully require this court to exercise this nonjudicial function, and that, therefore, it did not intend to impose it. For the reasons we have assigned, the appeal must be dismissed. Appeal dismissed, with costs. Swords, Sheriff and Tax Collector, v. Baillio (Parish of St. Landry, Intervener). (Supreme Court of Louisiana, May 20, 1901.) [29 So. Rep. 942.] Constitutional Law-Parish License-Exemption of Municipalities.There is no conflict between article 48 and the concluding paragraph of article 229 of the constitution of 1898. The latter merely gives the general assembly authority to exempt municipalities from the payment of parish licenses when the licenses levied by such municipalities are equal in amount to those levied by police juries for parochial purposes; but in the case of towns of less than 2,500 inhabitants this must be done by a general law applicable alike to all municipalities of that class, and not by a special law applicable alone to one municipality. (Syllabus by the Court.) Appeal from judicial district court, parish of St. Landry; Edward T. Lewis, Judge. Action by M. L. Swords, sheriff and tax collector, against G. R. Baillio. The parish of St. Landry intervenes. Judgment for plaintiff, and defendant appeals. Amended. Kenneth Baillio, for appellant. William J. Sandoz, for appellee Swords. R. Lee Garland, Dist. Atty. (E. B. Du Buisson, of counsel), for appellee parish of St. Landry, intervener. New York Life Ins. Co. v. Board of Com'rs of Cuyahoga County, Ohio. (Circuit Court of Appeals, Sixth Circuit, January 8, 1901.) [106 Fed. Rep. 123.] Statutes Retroactive Effect-Requiring County to Fulfill Moral Obligation. Under authority given by an act of the legislature of Ohio, a county issued and sold bonds at par and accrued interest for the purpose of purchasing a site and building an armory for the use of the state national guard. After it had purchased the site and prac6 M C Cas-53 Abstracts tically completed the building, expending for the purpose nearly all the proceeds of the bonds, and after it had paid two installments of interest thereon, the supreme court of the state decided, in a suit by a taxpayer, that the act authorizing the issuance of the bonds was in violation of the constitution, as authorizing the imposition of a local tax for a general state purpose, and that the bonds were void. In 1898 the legislature passed an act (Rev. St. Ohio, 2834c) which in effect required any county having issued and sold bonds under the circumstances of this particular case to recognize and fulfill the equitable and moral obligation created thereby to reimburse the holders of such bonds to the amount of the principal and interest thereof, and, in case of its refusal to do so, gave the holders of the equitable claim a right of action thereon, further providing that the county might devote the building to any county purpose: held, that such act was not retroactive in a constitutional sense, as applied to the county in question, nor in violation of the provision against local taxation for general state purposes, but was valid; it being within the province of the legislature to determine, as between the state and county, upon which the moral obligation rested to discharge the debt and take the property, and the facts upon which it acted being undisputed. In Error to the circuit court of the United States for the Northern District of Ohio. Henry A: Garfield, for plaintiff in error. P. H. Kaiser, for defendant in error. Before HARLAN, Circuit Justice, SEVERENS, Circuit Judge, and THOMPSON, District Judge. SEVERENS, C. J. Recurring to the circumstances of the present case, the county received the full par value of the bonds, purchased the site, and erected the building, continuing to recognize its obligation upon the bonds by paying interest, and now holds the title to, and is in possession of, the property acquired by the borrowed money. No taxpayer of the county appears to have raised any objection until after the transaction had been substantially accomplished. There was no other fault that could be attributed to either party than that of having made a mistake in respect to the legal authority of the county. The circuit judge was impressed by the equities of the case, and indicated his sense of justice in the state's assumption of the obligation. Doubtless this might have been done. But the legislature, in doing this, would have been in the exercise of a power which included the power to determine whether, upon its view of the fitness and justice of the case, the burden should be cast upon the state or upon the county. It might think that as the county, not acting under compulsion, had, upon consideration of the local advantages which would accrue to it from having an armory for the National Guard in its midst, determined to build one and pledge its own faith for the necessary funds, and had taken no step to recant until after it had spent the lender's money, it would not be inequitable that it should take the burden as its own obligation. In point of fact, however the matter might stand in theory, the substantial benefits of the building of an armory in that locality were enjoyed most largely by the local public, and in a much less degree by the people of the state at large. This may be Abstracts regarded as a broad view of the matter, but it is upon such views that the legislative discretion is exercised. The claim having been established as a moral obligation of the county, it was erroneous to hold that the act which required the county to pay it was in violation of the provision of the constitution which ordains that taxes for general purposes must be levied upon all the taxable property of the state. It remains to notice some incidental suggestions bearing upon the principal questions advanced by counsel for the defendant in error. Our attention is called to section 28 of article 11, whereby certain curative powers are conferred upon the legislature, relating to "omissions, defects and errors in instruments and proceedings." But, as it is not claimed that the legislature exercised its power under that grant, the suggestion becomes irrelevant and need not be pursued. In connection with the subject of the disposition of the money borrowed and the acquisition of the armory, it is urged that the county did not have the legal capacity to take and hold property acquired for such a purpose. But the act in question, if otherwise valid, recognizes the acquisition of the property by the county as vesting the ownership in it, and further authorizes the appropriation of it to any county purpose. Such provisions would validate the acquisition of the property. 2 Dill. Mun. Corp. 560. Besides, on the general principle, if the taking of the title was not for an authorized purpose, the state alone is competent to make objection. Id. 574. It is also contended that the statute is obnoxious to section 10 of article I of the constitution of the United States, which prohibits legislation impairing the obligation of contracts. But this assumes a contract which is legally valid, and the county denies the existence of any such contract. The legislature concedes this, and imposes the duty upon other grounds, which it is empowered to take notice of for the purpose of determining whether, independently of the existence of a contract, a moral obligation rests upon the county. Moreover, the county being a mere governmental agency of the state, its contracts for public purposes, so long as they remain unperformed, are, as between the county and the state, subject to the control of the legislature. The county has no vested right in such case which it can oppose to the paramount authority. Maryland v. Baltimore & O. R. Co., 3 How. 534, 11 L. Ed. 714; Board v. Lucas, 93 U. S. 108, 23 L. Ed. 822; Board v. Skinkle, 140 U. S. 334, II Sup. Ct. 790, 35 L. Ed. 446. For the reasons stated, we are of opinion that the circuit court erred in sustaining the demurrer. The judgment is accordingly reversed, and the cause remanded, with directions to overrule the demurrer and take such further proceedings in the case as it may be advised, not inconsistent with this opinion. Abstracts City of Rochester v. West. (Court of Appeals of New York, Nov. 20, 1901.) Police Power-Billboards-Power of City Council to Regulate Height.-Under Rochester city charter (Laws 1880, c. 14, § 40, subd. 21, as amended by Laws 1894, c. 28, 9), authorizing the city to license and regulate bill posters and sign advertising, and to prescribe the terms and conditions on which any such license should be granted, an ordinance prohibiting the erection of billboards exceeding six feet in height without permission of the council is not an unreasonable and undue restraint of a lawful business, or of the lawful use of private property; being intended to provide for the safety of the community. Appeal from supreme court, appellate division, Fourth department. Robert West was convicted in the police court of Rochester of violating a city ordinance regulating bill posting, and appealed. On affirmance by the county court (51 N. Y. Supp. 482), accused appealed to the appellate division, which affirmed the judgment. 53 N. Y. Supp. 1101. Appeal on certified questions from the appellate division. Affirmed. John R. Fanning, for appellant. P. M. French, for respondent. MARTIN, J. We are of the opinion that this ordinance is reasonable; that the legislature authorized its adoption; that the statute in pursuance of which it was passed was valid; and, consequently, that the defendant's appeal cannot be sustained. It follows that the judgment appealed from should be affirmed. The questions certified to this court are answered as follows: (1) The common council of the city of Rochester had authority, under its charter, to pass the ordinance under consideration. (2) The ordinance in question is not unreasonable or an undue restraint of a lawful trade or business, nor a restraint upon the lawful and beneficial use of private property. O'BRIEN, BARTLETT, HAIGHT, VANN, and LANDON, JJ., concur; PARKER, C. J., not sitting. Judgment affirmed, with costs. Springfield Water Co. v. Burgess, etc., of Borough of Darby. (Supreme Court of Pennsylvania, May 27, 1901.) [49 Atl. Rep. 275.] Ordinance Regulating Connections with Water Pipes-Reasonableness. An ordinance regulating the making of openings, laying pipes, etc., in streets is a reasonable exercise of the police power, and therefore binding on a water company, it requiring a permit prior to the making of an opening, the paying of a fee of $3 by an applicant for a permit, and the giving by him of an obligation, with sureties, conditioned that the excavation shall be properly filled, and providing that the length of the excavation for which a permit may be granted shall not exceed 300 feet, and shall remain in force not exceeding 10 days. |