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Vol. II.)

Citizens' SAVINGS, ETC., Association v. City of TOPEKA.

(No. 4.

grist-mill, and box-factory machinery, to be built in that town by them. There was a provision to secure the town by mortgage on the mill, and the selectmen were authorized to issue town bonds for the amount of the aid so voted. Ten of the taxable inhabitants of the town filed a bill to enjoin the selectmen from issuing the bonds.

The supreme judicial court of Maine, in an able opinion by Chief Justice Appleton, held that this was not a public purpose, and that the town could levy no taxes on the inhabitants in aid of the enterprise, and could therefore issue no bonds, though a special act of the legislature had ratified the vote of the town, and they granted the injunction as prayed for.

Shortly after the disastrous fire in Boston, in 1872, which laid an important part of that city in ashes, the governor of the state convened the legislative body of Massachusetts, called the general court, for the express purpose of affording some relief to the city and its people from the sufferings consequent on this great calamity. A statute was passed, among others, which authorized the city to issue its bonds to an amount not exceeding twenty millions of dollars; which bonds were to be loaned, under proper guards for securing the city from loss, to the owners of the ground whose buildings had been destroyed by fire, to aid them in rebuilding.

In the case of Lowell v. City of Boston, in the supreme judicial court of Massachusetts, not yet reported, the validity of this act was considered. We have been furnished a copy of the opinion, though it is not yet reported in the regular series of that court. The American Law Review for July, 1873, says, that the question was elaborately and ably argued. The court, in an able and exhaustive opinion, decided that the law was unconstitutional, as giving a right to tax for other than a public purpose.

The same court had previously decided, in the case of Jenkins v. Andover, 103 Massachusetts, 94, that a statute authorizing the town authorities to aid by taxation a school established by the will of a citizen, and governed by trustees selected by the will, was' void because the school was not under the control of the town officers, and was not, therefore, a public purpose for which taxes could be levied on the inhabitants.

The same principle was decided by the state court of Wisconsin in the case of Curtis v. Whipple, 24 Wis. 350. In that case a special statute which authorized the town to aid the Jefferson Liberal Institute was declared void, because, though a school of learning, it was a private enterprise not under the control of the town authorities. In the subsequent case of Whiting v. Fond du Lac, already cited, the principle is fully considered and reaffirmed.

These cases are clearly in point, and they assert a principle which meets our 'cordial approval.

We do not attach any importance to the fact that the town authorities paid one instalment of interest on these bonds. Such a payment works no estoppel. If the legislature was without power to authorize the issue of these bonds, and its statute attempting to confer such authority is void, the mere payment of interest, which is equally unauthorized, cannot create of itself a power to levy taxes, resting on no other foundation than the fact that they have once been illegally levied for that purpose.

Vol. II.)

Boon v. Ætna INSURANCE Co.

(No. 4.

The act of March 2, 1872, concerning internal improvements, can give no assistance to these bonds. If we could hold that the corporation for manufacturing wrought iron bridges was within the meaning of the statute, which seems very difficult to do, it would still be liable to the objection that money raised to assist the company was not for a public purpose, as we have already demonstrated.

The judgment of the circuit court affirmed.

CIRCUIT COURT OF THE UNITED STATES. — DISTRICT OF

CONNECTICUT.

INSURANCE. - PROXIMATE AND REMOTE CAUSE. — CONSTRUCTION OF

“ MILITARY OR USURPED POWER.”

BOON v. ÆTNA INS. CO.

A policy contained a proviso that the company would not be liable for loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power." During the late civil war, while a battle was going on, to prevent certain stores from falling into the hands of the enemy, a United States officer set fire to the building in which the stores had been placed, from whence it was communicated to the property insured, and a loss ensued. "Held, that the battle was not the proximate cause of the loss, and that the terms of the policy did not warrant a refusal to adjust.

THIS was an action of assumpsit on a policy of fire insurance, brought to the circuit court of the United States for the District of Connecticut, and tried, on an issue closed to the court, before Woodruff, Circuit Judge, and Shipman, District Judge, at the April term, 1874.

The facts are stated in the opinion. . F. Fellowes, for plaintiffs. G. W. Parsons, for defendant. WOODRUFF, J. The facts in this case are not doubtful nor in dispute. The action is brought to recover from the defendant the amount of an insurance against loss by fire upon the goods of the plaintiffs in their store in Glasgow, Missouri, in the sum of six thousand dollars. It is founded on a policy executed by the defendant, dated September 2, 1864, and the goods were destroyed by fire on the 15th day of October, 1864, within the term of the insurance. The loss was sufficiently great to entitle the plaintiffs to recover, if the defendant is liable at all, the whole sum insured. The plaintiffs have complied with all the terms and conditions of the policy, by the payment of premium, furnishing proper preliminary proofs, and compliance with all other requirements. The policy however contained the following express proviso, annexed to the agreement of insurance, and in the body of the policy, namely:

“ Provided always, and it is hereby declared, that the company shall not be liable to make good any loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commo

Vol. II.)

Boon v. Ætna INSURANCE Co.

(No. 4.

tion, or of any military or usurped power, or any loss by theft at or after a fire.”

The defence herein rests solely on this proviso, and on the facts which are claimed to bring the plaintiffs' loss within its operation, so as to exempt the defendant from liability under the policy. At and before the time of the fire in question, the city of Glasgow, within which the said store of the plaintiffs was situated, was occupied as a military post by the military forces and portion of the army of the United States engaged in the civil war, then, and for more than three years theretofore, prevailing between the government and the citizens of several Southern States who 'were in rebellion, and seeking to establish an independent government, under the name of “ The Confederate States of America."

As such military post, the said city of Glasgow was made the place of deposit of military stores for the use of the army of the United States, which stores were in a building called the city hall of the said city of Glasgow, situated on the same street, and on the same side of the street, and about one hundred and fifty feet distant from the plaintiffs' store, three buildings being located in the intervening space, not however in actual contact with either.

Colonel Chester Harding, an officer of the United States government, and in command of the military forces of the United States, held the possession of the city and had lawful charge and control of the military stores aforesaid.

On the said fifteenth of October, 1864, an armed force of the rebels, under military organization, surrounded and attacked the city at an early hour in the morning, and threw shot and shell into the town, penetrating some buildings and killing soldiers and citizens. The city was defended by Colonel Harding and the military forces under his command, and battle between the loyal troops and the rebel forces continued for many hours. The citizens fled to places of security, and no civil government prevailed in the city. The rebel forces were superior in numbers, and, after a battle of several hours, drove the forces of the government from their position, compelled their surrender, and entered and occupied the said city.

During the battle, and when the government troops had been driven from their exterior lines of defence, it became apparent to Colonel Harding that the city could not be successfully defended, and he thereupon, in order to prevent the said military stores from falling into the possession of the rebels, ordered Major Moore, one of the officers under his command, to destroy them. In obedience to that order to destroy the said stores, and baving no other means of doing so, Major Moore set fire to the city hall, and thereby the said building, with its contents, was consumed. Without other interference, agency, or instrumentality, the fire spread along the line of the street aforesaid to the building next adjacent to the city hall, and from building to building through two other intermediate buildings, to the store of the plaintiffs, and destroyed the same, together with its contents, including the goods insured by the defendant's policy aforesaid.

During this time, until after the fire had consumed such goods, the battle continued, and no surrender had taken place, nor had the forces of the rebels nor any part thereof obtained the possession of or entered the city. Vol. II.]

Boon v. Ætna INSURANCE Co.

(No. 4.

with lion, its phe fire ; tbved the per the in

Upon these facts, and in view of the before mentioned proviso in the policy of insurance, the question arises, is the defendant liable for the loss of the plaintiffs' goods, or does that proviso exempt the defendant from liability ?

That question depends upon the answer to be given to some other questions, that is to say :

1. It is insisted that, within the just and proper meaning of the proviso, the fire happened by means of the unlawful and rebellious attack upon the city, by forces acting in assumption of usurped power, endeavoring to capture the forces of the United States, obtain possession of territory in the lawful possession and power of the United States, in aid of the usurped rebel government, and to forcibly accomplish its objects and designs; that the fire, and therefore the destruction of the goods, were a military necessity created by such attack by an illegal armed force, and that so they happened by means of the rebellion and the employment of organized forces to effect the object thereof, and the actual attempt of such forces to overcome the authority and government of the United States ; that this was therefore the direct or proximate cause of the loss, or, in the words of the proviso, “ means " by which the fire, destroying the goods, “ happened.”

We think that this reasoning cannot prevail. Fire destroyed the goods. The fire was not communicated to the goods, nor to the building from which it spread, by the rebel forces, nor by any one acting in coöperation with them; nor was it so communicated in any wise in furtherance of the rebellion, its purposes, or objects. No act of the rebels, in any physical sense, caused the fire ; there is nothing to justify the inference that the rebels would have destroyed the government stores found in the city hall, by fire or otherwise, nor to justify the inference that the destruction of the goods or any loss thereof would have happened to the plaintiffs by the capture and the occupation of the city by the rebels. As matter of fact, there was no connection, direct or by necessary inference, between such destruction of the goods and the attack of the rebels, the capture of the United States forces, and the occupation of the city.

But it is said that such attack by a superior armed force created a military necessity that the government stores should be destroyed ; which destruction, in the manner in which alone it could be done, involved the destruction of the plaintiffs' goods, and so that destruction was the necessary result of the attack ; that the fire being thus the necessary result of the attack, it “ happened by means thereof."

The fire was actually and voluntarily communicated to the city hall by the military authority of the United States. It is conceded on this trial that, in the exigency, it was a lawful exercise of such military authority. The power was discretionary, and if the circumstances were such as made it discreet — and no doubt they were — such setting fire to the city hall may have been a duty. In saying that it was voluntary we can only mean that it was not a physical necessity, nor the physical result of any agency or act of the rebels, or of their unlawful or usurped power. It was physically independent of them, hostile to them, and an act which they not only did not commit, but would not have committed, and would if possible have prevented.

Vol. II.]

Boon v. Ætna INSURANCE Co.

[No. 4.

What is called a military necessity was therefore nothing more than this : it constituted the motive and no doubt the sufficient motive to the burning of the city hall. This was not even an act of resistance to the attack upon the city ; it was no part of the defence, nor a force employed in any wise in maintenance of the authority or possession of the government. It was done in the exercise of military discretion, for the incidental purpose of preventing an accession to the means of the rebels for maintaining their rebellion. The importance of preventing such an accession to their means furnished a motive, and it may be conceded a controlling motive, to the burning of the city hall; but that did not make the fire happen by means of anything done by them. In a certain sense it may be true that the city hall was set on fire by reason of the attack upon the city by an armed force of rebels; but between that attack and the fire was interposed another actor who caused the fire, who set in operation the means by which it happened. An efficient and a sufficient cause of fire, and the means by which it happened, intervened between the acts of the rebels and the fire itself, and a cause or means without which (notwithstanding the acts of the rebels), the fire would not have happened at all.

In the language of Mr. Justice Miller, in the supreme court of the United States, in Insurance Co. v. Tweed, 7 Wallace, 52, “ If a new force or power has intervened, of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote.” That language was used in reference to a similar provision in a policy of insurance, and in aid of the inquiry by what “means” the fire happened. There, as in this case, there was in some sense another cause but for which the fire would not have happened at all. And the opinion shows that the existence of just such an influential cause is not enough to bring a case within the proviso. The facts here are much stronger than the reasoning there, in withdrawal of the case from the operation of the proviso, because, although the fire would not have happened but for the existence of such remote cause (the attack by the rebels), it is equally true that such remote cause would not have produced the fire at all.

To apply the criterion suggested by Mr. Justice Miller, there was here the intervention of distinct, new, affirmative power and force, other than the acts of the rebels, not only sufficient, but efficient as the cause of the fire in the city hall, and the actual means by which it happened.

We think therefore that it cannot be held that, within the meaning of the proviso in question, the fire which destroyed the plaintiffs' goods happened by means of the rebellion, or of anything done by the rebel forces.

2. An obvious inquiry is suggested by the facts stated: Whether the setting on fire of the city hall was the cause of the loss in such sense that, within the proviso, it was “the means” by which the fire happened? or whether that also was not the remote cause of the fire which destroyed the plaintiffs' goods.

In our preceding discussion we have assumed that the setting on fire of the city hall was the means of communicating the fire to the plaintiffs' goods within that proviso, unless the rebellion or the acts of the rebels should be held such means; that in that sense the acts of the lawful mil

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