ment. And my impression is that that is the proper course, but I need not now decide the point. If you have a defense in equity, on equitable grounds, to impeach the judgment, perhaps you had better file a bill on the equity side of the court; but you can consider the question and take your own course. The answer does not set up a sufficient defense to the action on the judgment, and the demurrer thereto is sustained, with leave to the defendant to amend his answer, or to file a bill in equity as he may be advised.

ORDERED ACCORDINGLY.

A CITY, by accepting a statute which authorizes it to make and maintain reservoirs and public hydrants "in such places as may be deemed proper," and building its works under it, does not enter into any contract with, or assume any liability to, the owners of property to furnish means or water for the extinguishment of fires, upon which an action can be maintained.

Action of contract, with counts in tort. Trial in the Superior Court, before ALDRICH, J., who allowed a bill of exceptions substantially as follows:

The plaintiff put in evidence tending to show that she was the owner of a certain mill in the city of Worcester, which was destroyed by fire June 17, 1874; that the fire, when first discovered, could have been extinguished, without the mill receiving material injury, if there had been water in a certain hydrant in a street near the premises; and that the loss occurred by reason of this absence of water.

The plaintiff also put in evidence tending to show that the defendant had accepted the statute of 1864, c. 104, authorizing the introduction of water into the city; and had, under the authority of the same, introduced water and laid pipes through the streets of the city, and adopted certain ordinances in relation to the management of the same; that the plaintiff, by her agent Daniel Tainter, applied by petition to the city council to put in the hydrant above referred to, to be used for extinguishing fires, which petition was referred by a vote of the council to the committee on water, on April 12, 1869, and the committee on September 16th following, made the following report: "On petition of Daniel Tainter to be furnished water for his new mill on Garden street, the committee report that the pipe was laid in said street in 1864 by the Adriatic Mill Company, and that it is important for the purposes of Mr. Tainter and

other parties wanting water upon this line that the city should own the pipe laid by this company;" that it was thereupon ordered by vote of the council that the committee on water "be authorized to purchase the pipe laid by the Adriatic Mill to Southgate street," which is the pipe to which the hydrant is attached; that in pursuance of this authority, the committee purchased the pipe for the city and verbally agreed with the plaintiff to put in the hydrant and connect the same with the acqueduct and keep the same supplied with water for the purpose of extinguishing fires, the same to remain under the control of the city for public use, provided the plaintiff would pay for the same; that the hydrant was put in by the committee and connected with the pipe, and the plaintiff. paid therefor between $200 and $300; that the plaintiff also at her own expense put water-pipes into her building, and with the consent of the committee, connected them with the pipes passing through the hydrant; that the plaintiff having failed to pay water rates for the use of the water on her premises, the water was cut off on May 23, 1874, as provided in the city ordinances, from the hydrant and the pipes in her building by order of the committee on water; that the fire occured while the water of that year was so cut off; that the plaintiff had never paid her water rates due at the time the water was so cut off; that the pipes were so arranged that the water could have been conveniently cut off from the pipes in the building without cutting it off from the hydrant; and that there was an abundant supply of water in the pipe to which the hydrant was attached at the time of the cutting off and also at the time of the fire, and there was no reason for not supplying water to the hydrant, except that the plaintiff had failed to pay her water-rates, which water-rates were for water supplied for the ordinary uses of the plaintiff's mill, and not for water supplied to the hydrant.

The judge ruled that the action could not be maintained. The jury returned a verdict for defendant, and plaintiff alleged exceptions.

GRAY, C. J., delivered the opinion of the court: This action is brought against the city of Worcester to recover damages suffered by the destruction of the plaintiff's mill by an accidental fire, by reason of the negligence of the city to maintain a hydrant by which the fire might have been extinguished. The declaration is in several counts, and no objection is made to its form, provided the plaintiff is entitled to maintain an action against the city upon the evidence stated in the bill of exceptions.

The protection of all the buildings in a city or town from destruction or injury by fire is for the benefit of all the inhabitants, and for their relief from a common danger; and cities and towns are therefore authorized by general laws to provide and maintain fire engines, reservoirs and hydrants to supply water for the extinguishment of fires. Allen v. Taunton, 19 Pick. 485; Hardy v. Waltham, 3 Met. 163; Fisher v. Boston, 104 Mass. 87, 93. The Worcester Water Act, St. 1864, c. 104, § 3, authorizes the city to make and maintain reservoirs and public hydrants" in such places as may

be deemed proper," that is to say, of course, by the city or its officers or agents, just as the St. 1867, c. 158, authorizes the Selectmen of towns, for the protection of persons and property therein against fire, to order conductors to be put into the pipes of acqueduct corporations, for the purpose of attaching hydrants or conducting water into reservoirs, and in such places as the engineers of the fire department shall think necessary. The works to be constructed by the city of Worcester, under the St. of 1864, were, so far as related to safeguards against fire, to be erected and maintained by the city for the benefit of the public and without pecuniary compensation or emolument.

The questions whether and where public hydrants should be erected were within the exclusive discretion and control of the municipal authorities, as the public interest might seem to them from time to time to require. The city by accepting the statute and building its works under it, did not enter into any contract with, or assume any liability to, the owners of property to furnish means or water for the extinguishment of fires, upon which an action can be maintained. Grant v. Erie, 69 Penn. St. 420; Wheeler v. Cincinnati, 19 Ohio. St. 16; Brinkmeyer v. Evansville, 29 Ind. 187; Fisher v. Boston, ubi supra; Hill v. Boston, 122 Mass. 344.

The judgment of the Court of Exchequer in Atkinson v. Newcastle Waterworks, L. R. 6 Ex. 404, much relied on by the plaintiff, in which an action was maintained against a water company for not keeping pipes in which fire plugs were fixed, charged with water at a certain pressure, as required by its act of incorporation, whereby the plaintiff's property was destroyed, has been reversed in the Court of Appeal, consisting of Lord Chancellor Cairns, Chief Justice Cockburn, and Lord Justice Brett, 2 Ex. D. 441. In Metallic C. C. Co. v. Fitchburg Railroad, 109 Mass. 277, the action was not against the city for neglect to furnish proper means to extinguish fires, but against a third person for unlawfully cutting a hose while actually being used to put out a fire; and the decision of the Court of Exchequer in Atkinson v. Newcastle Waterworks, was cited only to the point that the act of the defendant was the direct and efficient cause of the injury.

For the reasons already stated, the plaintiff has no right of action against the city, by reason of any duty imposed or liability assumed under the St. of 1864, for neglecting to maintain the hydrant. Having failed to pay the water rates, she has no right of action for cutting off the water. And she cannot sue the city upon the alleged agreement of the committee, because the authority to purchase the plaintiff's pipe did not authorize them to agree in behalf of the city to maintain a hydrant, and there is no other evidence of any authority from the city to make such an agreement. Palmer v. Haverhill, 98 Mass. 487.

Exceptions overruled.

THE nomination of William H. Hunt, of Louisiana, to be Associate Justice of the Court of Claims, vice Judge Peck resigned, has been confirmed by the Senate.

CONSTITUTIONAL LAW-SPECIAL ASSESSMENT-LIABILITIES OF COUNTIES AND

DISTRICTS.

BORO v. PHILLIPS COUNTY.

United States Circuit Court, Eastern District of Arkansas, February, 1878.

Before Hon. HENRY C. CALDWELL, District Judge.

1. A STATE MAY IMPOSE SPECIAL ASSESSMENTS on districts for the purpose of building levees, etc., by virtue of its police power, such an assessment not being in conflict with the constitutional provision requiring equal and uniform valuation of all property for purposes of taxation.

2. THE GENERAL RULE OF LAW that "where one takes a benefit from the result of another's labor, he is bound to pay for the same," does not apply to cases where the benefit of the work is immediately to the adjacent property, and only incidental to the county at large.

3. WHEN THE COUNTY COURT MERELY ACTS AS AN AGENT for a district, and by law it is made the duty of the county court to assess a tax on the lands of the district to pay for the work, upon a failure or refusal on the part of the county court to discharge its duty in the premises, mandamus is the proper remedy, but such failure or refusal will not make the county liable for the obligations of the district.

4. THE COUNTY BEING DIVIDED INTO SEVERAL LEVEE DISTRICTS, each of which is to pay its own obligations for work done within the district, the obligations, although made payable by the levee treasurer of the county, are payable only out of the funds of the district in which the work was done, and can not be made the form of an action against the county.

An act of the general assembly of this state, approved February 16th, 1859, provided, among other things: That the county courts of the counties of Desha and Phillips, should divide the overflowed lands in each of said counties into not less than four, nor more than seven levee districts; that it should appoint for each levee district, three freeholders, residents of the district for which they were appointed, whose duty it was to report to the county clerk a list of all lands in their districts, respectively, subject to overflow. For each levee district one levee inspector was, in the first instance, to be appointed by the county court, and afterwards to be elected by the qualified voters of the district, who was required to give bond to the state of Arkansas, for the use and benefit of the levee district, for which he was appointed. The levee inspector for each district assessed the lands therein for levee purposes, the act fixing the minimum value of the land for this purpose at $10 per acre, and returned his assessment roll to the county clerk, whose duty it was to enter the same on the tax book, and to extend the levee tax against the same at the rate fixed by the county court, which could not be less than one-fourth of one, nor more than two per cent. annually.

The sheriff of the county collected the taxes thus assessed and levied, and paid the same over to the "levee treasurer of the county," who, in the first instance, was appointed by the county court and

afterwards elected by the qualified voters of the levee districts, whose duty it was to receive and safely keep the levee funds of each levee district, and pay the same out on the order or warrant of the levee inspectors, drawn against the levee fund of their districts respectively.

The levee inspector for each district was invested with large powers, and authorized to make contracts for building and repairing the levees in his district, and payment for such work belonging to his district was to be made out of the fund arising from the levee tax assessed and collected for such district in the manner indicated, and the inspector was authorized, when money was due for levee work in his district, to draw his warrant upon the treasurer for the amount which the act declared 66 might be in the following terms, to wit: State of Arkansas, County of

The Levee Treasurer of or order the sum of money in the treasury trict No. this

county pay toDollars, out of any belonging to levee disday of 18-. A. B. C.

Levee Inspector of Levee District No. By an act approved January 15th, 1861, the first act was amended in several respects, not material to notice, and the following provisions were enacted relating to the levee warrants or scrip theretofore issued by the levee inspectors of the several districts. Sect. 19. That all the levee bonds, scrip or drafts issued by the several levee inspectors of said counties prior to the taking effect of this act, shall be presented to the county clerk of the county in which such bonds, scrip or drafts were issued on or before the first day of January, 1862, whose duty it shall be to issue to the holders thereof the same amount of bonds, scrip or drafts, bearing the same rate of interest, which interest shall run from the date of the scrip, bond or draft bears interest before renewal, and each bond, scrip or draft, shall be confined to the county and district in which it was issued and out of the fund of which the same is to be paid. It was further provided that the county clerk shall keep a register of the scrip presented to him for renewal, showing the date, number, amount, to whom payable, what inspector issued the same, and the number of the district, out of the fund of which the same is payable, and shall file the same in his office for the inspection of the county court, and it was provided that levee scrip should be received in payment of levee taxes in the levee district, out of the funds of which the same is made payable, and that no lands in the county shall be taxed for levee purposes that were not taxable for that purpose under the first act, i. e., lands subject to overflow, and included in a levee district. Under the provisions of section 19, of the last act, above quoted, the holders presented to the county clerk of the county levee orders or warrants, previously issued by the levee inspectors of the several levee districts in the county, and for each bond, scrip or draft so presented the clerk issued a renewal bond or draft. A further act, approved April 8th, 1869. gives to the holders of levee scrip or bonds, issued under the previous

acts, one year in which to present the same to the county court for payment, filed and numbered, in order to enable the court to estimate the necessary amount to be levied each year upon the land situated in each levee district, as laid off and designated by each of said county courts, and it was made the duty of the county court to levy an annual tax upon all the lands in each of the districts to pay the levee bonds and scrip of said districts respectively. The levee bonds or scrip in suit were presented to the county court and filed and registered as required by this act.

The county court refused or neglected to levy a tax on the lands in the levee districts to pay scrip or bonds, as required by the act of 1869, and no such tax has been assessed or collected since 1862, and no moneys arising from such a tax are now or ever have been in the county treasury or used or appropriated by the county for general county purposes, but all moneys arising from the levee tax on lands, is these districts, were paid out by the levee treasurer on levee bonds, or scrip issued for building and repairing levees in the several districts.

The acts of February 16, 1859, and January 15th, 1861, were repealed by the act of March 23d, 1871. The plaintiffs are holders of a large amount of the renewal bonds issued by the county clerk, under sec. 19, of the act of January 15th, 1861, and seek by this action to recover a general judgment against the county thereon.

W. H. Hiddell, for plaintiff; Tappan & Hornor and Palmer & Nicholls, for defendant.

CALDWELL, J.

In seasons of high water, a considerable portion of the finest cotton lands of the south, bordering on the Mississippi and its tributaries, are subject to overflow. The protection of these lands from inundation by the construction of levees was early found to be practicable and necessary to the growth and prosperity of the rich alluvial districts of the southern states. Coeval with organized governments in these states, laws were passed looking to the reclaimation of these lands by the construction of levees, and providing a mode in which the money should be raised to pay the same. The usual mode adopted for this purpose was to divide the overflowed lands into convenient districts, appoint local officers therefor, to determine the location of levees and to contract on behalf of the district for their construction and repair, and providing for a special assessment on the lands benefitted by the construction of the levees to pay the cost of the same.

The authority of the state to impose a special assessment for this purpose on the lands benefitted is vested in the police power. A special assessment for such a purpose is not a tax in the strict legal sense of that word, and hence it has been uniformly held that the usual constitutional provisions requiring the burdens of taxation to be equally distributed, and requiring an equal and uniform valuation of all property for purposes of taxation, have relation to taxation for general state and county purposes, and are not limitations on the exercise of the police power, and do not inhibit

special local assessments, when the fund raised is expended for the improvement of the property taxed. McGhee v. Mathis, 21 Ark. 40. Cooley on Taxation, pp. 401, 402, 427, and authorities cited.

The policy of imposing the cost of the construction and repairs of the levees on the lands benefitted thereby, was adopted by the legislature in reference to the levees in Desha and Phillips counties. The acts are explicit on that subject. By these terms these lands subject to overflow are divided into districts. Each district has its own officers to contract on behalf of the district for the construction of levees.

Provision is made for raising a fund to pay for all levee work by an assessment on the lands benefitted, and it is expressly provided that other lands and property in the county shall not be assessed or taxed for this purpose.

The acts in question adopted a scheme for the construction of levees and raising a fund to pay therefor quite independent of the action of the county proper in its corporate capacity. The contracts for levee work were to be made by the levee inspector of the district, and the work was to be paid for out of the levee fund arising from the assessment made on the lands in the levee district. The warrant or order for such payment was drawn by the levee inspector of the district on the levee treasurer of the county, an officer elected by the qualified voters of the levee districts of the county, and not by the qualified voters of the whole county, and was payable out of money in his hands, belonging to the levee district in which the work was done. The levees that might be built were for the exclusive benefit and advantage of the land reclaimed from overflow, and for this reason the acts in question made provision for the whole cost of the construction upon the lands thus benefitted. If this scheme proved inadequate for raising the funds, that does not make the county liable. The act does not provide that the county shall be liaable in such an event, or in any event, and the general rule" that when one takes a benefit from the result of another's labor, he is bound to pay for the same," does not apply to cases of this kind, where the benefit arising from the work or improvement is immediately to the adjacent property and only incidently to the county at large. Argente v. San Francisco, 16 Cal. 255. Opinion by Field, C. J.

The acts impose no liability on the county. Neither the county court nor any officer of the county had any authority or power to enter into a contract, or make cr create an obligation binding on the county in relation to the work. It was suggested in the argument that a sufficient authority for the county court to bind the county in such case was found in Section 9, Article 6, of the constitution of 1836, in force at the date of the transaction, which declares "the county court shall have jurisdiction in every other case necessary to the internal improvements and local concerns of the county."

In 1857 an act was passed providing for the construction of levees in Chicot county, identical in

many of its provisions with the acts here in question, and in McGhee v. Mathis, supra, the Supreme Court say: "Nor are the levees provided for by act of January 7th, 1857, an 'internal improvement and local concern,' within the meaning of that clause of the constitution above cited. These terms, as there employed, relate to public internal improvements, and local concerns for general county purposes, which appertain to the county at large as a body politic, and not to improvements for special local purposes, where the funds expended in making the improvements are raised by assessments imposed only on the particular property improved." But in this case the county court has not attempted to make the cost of these levees a charge upon the county, and, if it had done so, its act would have been a nullity. By the terms of these acts, there were but two parties to the contracts to build the contemplated leveesthe levee inspector of the district acting for and in behalf of his district and the contractor.

The act pointed out specifically the source from whence the fund was to be obtained to pay for such work, and limited the payment to that fund, and the parties must be presumed to have contrac ed in reference to these provisions. of the act. The county was no party to the contract, and no contract or obligation entered into by a district levee inspector could bind the county. What the county court had to do in the premises was to levy such rate of tax within the limits fixed by the act, on the lands in each district as listed, assessed and reported by the levee inspector thereof, as might appear to be necessary to meet the obligations of the district. The county court was merely resorted to as a convenient and suitable agent for these purposes. If the county court failed or refused to discharge its duty, it might have been compelled by mandamus, or other appropriate proceedings at the suit of an aggrieved party to perform its duty, but the failure of the county court to discharge any or all of the duties imposed on it by these acts would not render the county liable for the debts of the levee districts. If the money arising from the local assessments to pay the debts of the levee districts have gone into the county treasury and been used or appropriated by her for general county purposes, a different question would be presented, but the fact is conceded to be otherwise. The bonds or certificates sued on were issued by the county clerk, and were intended, doubtless, to conform to the requirements of section 19, of the act of January 15, 1861, if not issued by authority of that section, they are of no validity, because no other authority for their issue can be found.

There is an obvious error in the preamble to these renewal bonds, the clerk reciting that they are issued under and by virtue of section 11, of the act of February 16, 1859, when it is apparent that they must have been issued under section 19, of the act of January 15, 1861. That section expressly provides, that each renewal draft issued by the clerk "should be confined to the county and district in which it was issued and out of the fund, of which the same is (to be) paid." They were intended to

be, and declared to be," renewals" of the drafts drawn by the levee inspectors of the several levee pistricts, and like them they were made payable in terms out of money in the treasury belonging to the levee district, in which the work was done. The bonds in suit declare the "levee treasurer" will pay the sum named therein "in part payment of work done according to contract within and for Levee District, No. They are not in terms payable out of the funds of any particular district, though the district in which the work was done, on account of which the bond is issued, is mentioned, and inasmuch as the act provides, the work done in a district shall be paid for out of the funds of that district, it is possible the legal effect of these bonds is the same, as if they had been made payable in terms out of the funds of the district liable for their payment. If this is not so, then the bonds on their face are void for non-compliance with the law, and the levee treasurer, though in possession of funds to do so, would not be authorized to pay them, Martin v. City and County of San Francisco, 16 Cal. 285; Bayerque v. City of San Francisco, 1 McCol. C. C. Rep. 175. And if they are treated as valid instruments properly issued under the law, then they are payable only out of the funds of the levee district in which the work was done, and can not be made the foundation of an action against the county. Dillon on Mun. Cor., section 413; Lake v. Trustees of Williamsburg, 4 Denio, 520; McCollough v. Mayor of Brooklyn, 23 Wend. 458; Keagsberry v. Pettis County, 17 Mo. 479; Campbell v. Polk County, 49 Mo. 214.

This act of 1869 removed or postponed the bar of the statute of limitations, changed the mode of assessing the lands in the levee districts for levee purposes, and re-enacted with some emphasis the provisions of the act of 1859, relating to the duty of the county court to levy the required tax on the lands in the several levee districts to pay the debts of those districts respectively.

This act is not repugnant to the Constitution in any of its provisions, but it does not impose the levee districts on the county. Judgment for defendant.

WILLFUL ACTS OF SERVANTS.

A communication in a recent number of this Journal, ante p. 251, contained so severe an attack upon the principle of law governing the responsibility of the master for the tortious acts of his servant, as laid down by Lord Kenyon in the leading case of McManus v. Crickett. 1 East, 107, that it ought not to pass unnoticed. After being cited as law for three-quarters of a century, McManus v. Crickett has never been repudiated by any court, nor, so far as appears, even doubted. And the dictum of Lord Kenyon is especially worthy of remembrance as combining, in language exact and luminous, the earliest statement of the doctrine, since fully developed, that the motive of the servant is material in making out the master's liability, this being one of the few cases where motive is of any consequence in an action of tort.

Certainly there has been great confusion in this branch of the law, and not a little of it, as was intimated in the article referred to, is owing to the loose use of the word "willful." Even Baron Parke said that the master was not liable for the servant's willful acts; but the decisions having now settled down to the view that willful means simply "on purpose," such cannot now be said to be the law. The chief perplexity on this subject springs from the difficulty of framing a general rule to guide the court in determining what is properly a jury question. The following, drawn inductively from a large number of cases has served the writer in the understanding of others.

The master is responsible for the injurious consequences of his servant's act, which is one of a class of acts so far within the scope of his employment as to be directly adapted to the attainment of the end or object for which the servant is hired, unless the servant "had quit sight of the object for which he was employed," (MeManus v. Crickett) and does the act accidentally or solely for the attainment of a personal end. If he has thus quit sight of the object for which he was employed, then, whether the act is or is not adapted to advance this object, the master is not responsible. If the servant does the act from motives both personal and official the master is responsible.

That the master is liable when the servant acts from mixed motives, see Howe v. Newmarch, 12 Allen 49; Puryear v. Thompson, 5 Hump. 397.

The ground of the master's liability having its origin, as it does, in the old law of status, is not very satisfactorily explained; but so far as any principle underlies the modern cases, it seems to be this, that when the master sets before the servant an end to be attained, he necessarily trusts to his discretion as to the means or method of attaining it, and gives an implied authority thus to use a discretion. Nor can he exempt himself by specific instructions or prohibitions as to particular means, for this is only in effect saying that he does not trust to the servants discretion, which is contrary to the fact. The real question, then, is as to how far, taking into view the purpose for which the servant is hired and the circumstances under which he may have occasion to act, the master does, in fact, trust to his discretion, or, in other words, how far an authority can be implied to resort to particular means to effect a general end, for which some choice of means is of necessity left to the servant's judgment. It is evident there must be more than a remote connection between the means and the end. If I send my servant to shoot a certain bird, and to be more sure of hitting it, he practices at a mark and chances to injure my neighbor, I am not liable. The act which caused the mischief had some tendency to further the object sought, but quite too remote. This whole matter being a question of degree, it is not surprising that the courts have eagerly grasped at generalizations as a guide to the settlement of particular cases. For example, in the class of cases where it is sought to charge the owner of a team with injuries resulting from the negligence of the