author: Reed, V. C.

text:
    The Coast Company v. The Mayor and Common Council of the Borough of Spring Lake et al.
    [Filed December 12th, 1896.]
    1. While a court of equity will not, as a rule, correct irregularities in municipal procedure, it will nevertheless restrain an irregular proceeding if it threatens irreparable injury.
    2. A municipality, as the representative of the public, may sue to abate or prevent a nuisance upon public property within its limits.
    3. The power of a' municipal officer to abate a public nuisance without statutory or judicial process, stands upon the same footing as the power of a citizen.
    4. The fact that a general statute for the formation of boroughs has been judicially declared to be unconstitutional in an action brought by the attorney-general to test the de jure existence of one corporation formed under the act, cannot, in a collateral suit, affect the existence or powers of another borough organized under the same act.
    5. Where the objection that a party has an adequate remedy at law is not taken until after the testimony is all in, the court, in its discretion, will retain the cause if the court is competent to grant the relief asked for and has jurisdiction over the subject-matter.
    6. The common council of a borough, by resolution, threatened to tear down a building being erected on land which it claimed was dedicated to public use. A bill was filed to restrain the borough and its officers. The borough answered, setting up a dedication of the building site, and also filed a cross-bill upon the same ground, praying that the nuisance might be abated. — Held, that the action of the borough council was irregular; that the injury threatened was irreparable and that the nuisance was not such as a municipal officer could abate at common law; therefore, their threatened acts will be restrained. But further — Held, that as to the case made upon the cross-bill — no objection to the jurisdiction of the court having been made until the evidence was concluded, and it appearing that the dedication of the land is reasonably clear— 'the court will retain the cause and decree an abatement of the nuisance.
    This bill is filed by the Coast Company to restrain the defendants from tearing down certain buildings in the course of erection along the edge of Spring lake, within the limits of the borough of Spring Lake, on laud which the latter claims has been dedicated to public use.
    The admitted facts are these: About the year 1875 several gentlemen conceived the notion of creating a seaside resort on the Atlantic coast. They caused to be purchased a tract of land within the limits of the township of Wall, in the county of Monmouth. On March 15th, 1875 (P. L. of 1875 p. 100) these gentlemen caused an act to be passed incorporating the Spring Lake Beach Improvement Company, with power to buy land, lay it out and locate streets and lines of division thereon and to sell the property. The land so purchased was conveyed to this corporation. By direction of the corporation, a map of the property was made in 1875 and filed in the office of the clerk of the county of Monmouth. Within the boundaries of the tract was a fresh-water lake, which was christened “Spring Lake.” Around this lake; on the map, was delineated a street marked “Lake Avenue.” Between the avenue and the lake was a margin of land, and at certain points upon this strip, where the lake, by irregularities in its shores, receded from the street, there were certain marks to denote shrubbery. With the exception of another portion of the tract, marked with the same indication, and of a square marked “Farm Land,” the remainder of the entire tract was plotted into lots and streets.
    In 1878 a new map was made by the same surveyor who had made the preceding map, but modifying the original map by slight changes in the course of Lake avenue, around the lake, and marking two lots within the avenue, at the northwesterly end of the lake.
    The company, by its agents,, proceeded to sell lots. Such agents, by authorization from the company, represented to those whom they solicited to become purchasers that the lake would remain open to the use of the lot-owners, or that the lake would-remain open to the use of the public. The sale of the lands by the original corporation continued until December 19th, 1889, when that corporation sold all its interest in the land to a new company incorporated under the name of “The Spring Lake and Sea Girt Company.” The control of the land and the sale of the lots were thereafter conducted by the latter corporation.
    On February 20th, 1893, the latter company sold a portion of the said tract to the complainant, the Coast Company. The part so sold included the southerly end of Spring lake, opposite the Monmouth House. The deed purported to grant the right of hiring pleasure boats on the lake, and contained a clause that the grant should not prevent the Spring Lake and Sea Girt Company from giving to resident property-owners or guests the free use of the waters of the lake for the enjoyment of themselves, their friends and visitors. The Coast Company, in 1895, began the erection of five frame stores, one story high, on the edge of the lake at its southerly point.
    In 1893 a new municipal corporation was created, known as the borough of Spring Lake. It included within its territorial, limits all the land of the original Spring Lake Beach Improvement Company. On June 17th, 1895, the borough council passed a. resolution wherein it was stated that whereas certain persons were, without authority of law and to the common nuisance of the public, erecting a building on the lake and its banks, and said persons, although notified by the mayor to discontinue-said work and remove said structures, were still prosecuting the work, it was resolved that the mayor cause to be affixed to the said structure a notice that the same must be removed within twenty-four hours, and, if the said notice was not complied with, then the mayor was authorized to cause said structure to be torn down and removed. It was resolved that the mayor should appoint ten persons as policemen.
    The bill in this case was then filed for the purpose of restraining the borough and its agents from carrying out the purpose announced in the foregoing resolution.
    The answer to the bill sets up that the borough is organized under “An act for the formation and government of boroughs,” approved April 2d, 1891. It insists that the borough, as the representative or trustee for the inhabitants of the borough, was invested with the authority to protect the rights of the people and inhabitants of the borough in the lake, grove and grounds surrounding it as property devoted to public uses.

      Mr. Edwin Robert Walker and Mr. James Buchanan, for the complainant.

      Messrs. Hawkins & Durand and Mr. Richard V. Lindabury, for the defendants.
   Reed, V. C.

The question litigated at the trial was whether the site upon which the complainant was erecting the structures, was public ground. Apart from the merits of its cause upon this ground, however, the complainant insists that it is entitled to a decree restraining the defendants from carrying out their purpose. It is pressed as a.tenable proposition that, even if it be admitted that the locus in quo has been dedicated to public use, nevertheless the.defendants had no authority to interfere with complainant’s buildings, and that this court will restrain their threatened attempt to do so. The mayor and members of the common council, it is argued, cannot invoke any official authority to justify their proposed acts; that it therefore follows that they must be regarded not as officials, but only as citizens of the borough, and that as citizens they have no right to abate a public .nuisance unless it inflicts some special private injury upon them distinct from that of the public.

If the first step in these series of propositions is admitted, the others legally follow.

It is entirely settled that the authority of a private person to abate a public nuisance arises entirely from the fact that it interferes with some special individual right possessed by him distinct from the general rights of the public. Brown v. De Groff, 21 Vr. 411. It is clear that nothing appears in this cáse to exhibit the existence of any special injury to any one of the defendants likely to flow from the presence of those buildings. The defendants, therefore, must justify by virtue of some official authority. Indeed, the defendants do not pretend to claim a power to do the proposed acts as private citizens, but they claim to have been invested with an official character by which, as the representatives of the people, they possessed authority to abate public nuisances within the borough. Upon this point the parties are at issue.

It is admitted that the defendants were officers of a going municipal corporation organized under the general statute (P. L. of 1891 p. 280), and that under this general charter these officers had power to pass ordinances, inter alia, for preventing or removing all obstruction, encroachment, encumbrances and nuisances from the streets, roads, highways, sidewalks, alleys and enclosures and lands in the said borough.

It is thus perceived that upon the mayor and common council was conferred a general authority over nuisances existing upon the streets and elsewhere. It is upon this power that they put their jurisdiction for the acts proposed in the resolution of the mayor and common council.

The complainant, however, denies that the pretended resolution possessed any official quality whatever. Its denial is put upon two grounds — -first, that the act under which the borough of Spring Lake was organized, and. which purports- to confer upon the mayor and common council this power over obstructions in the streets and other public places, is unconstitutional; second, that if the act itself cannot be attacked upon this ground in this suit that then the charter of this municipality has defined the manner in which the power is to be exerted, namely, by ordinance, while in fact the common council, in this instance, had attempted to exert it by resolution.

In support of the first of these propositions I am referred to the case of State v. Borough of Cape May Point, in which it was held by the supreme court, on the authority of the case In re Ridgefield Park, 25 Vr. 288, that the act of 1891, under which this borough was erected, is unconstitutional. In the case of State v. Borough of Cape May Point the attorney-general had permitted an information to be filed in his name to test the legality of the corporate existence of the borough, and the court held adversely to the existence of the municipality attacked.

I am unable, however, to perceive in what way the decision in that case can, in this suit, introduce the question of the corporate existence of the borough of Spring Lake. The force of the judgment in the preceding case was spent when it annulled the corporate existence of the borough of Cape May Point. It is of course obvious that the decision in that case will be controlling as a precedent whenever the question of the constitutionality of the same act arises in a shape to be passed upon. The question can be raised- by an attack upon any step taken to organize a borough under the provisions of the act by means of a certiorari allowed before the corporation has become an existing entity.

After the corporation has been organized its existence can be called in question only by an information in the nature of a writ of quo warranto allowed by permission of the attorney-general. No unconstitutional feature in the scheme provided by the legislature for the institution of such a municipal corporation can be made a ground, for refusing to recognize the corporate function of a municipality so created when the corporate existence is involved in a collateral proceeding. Harvey v. Philbrick, 20 Vr. 374; Steelman v. Vickers, 22 Vr. 180.

No matter how clearly unconstitutional are the provisions of the general act providing for the organization of a municipality; no matter if in some other suit similar statutes or the same statute have been decided to be inimical to the constitution, nevertheless such a municipality is a de facto corporation until its municipal existence is annulled by a direct proceeding instituted for that purpose. The borough of Spring Lake, in this proceeding, must be regarded as a de facto corporation possessing the powers conferred upon it by its charter.

The second ground taken against the legality of the proceedings of the mayor and common council of Spring Lake is that they did not pursue the course marked out in their charter, in their attempt to cause the removal of complainant’s buildings. It is insisted that the proceedings should have been by ordinance and not by resolution.'

Now, it has been decided over and over again that when a charter prescribes that a municipal action shall be taken by ordinance, it cannot be exercised by resolution. But the answer made to this point is that the complainant cannot avail itself of this irregularity in a suit in equity; that the question of irregularity can only be raised on certiorari; that, therefore, although it may be admitted that the course taken was irregular, yet, if there resided in the borough authorities a right to cause an obstruction upon the public domain of the city to be removed as a nuisance, and if these buildings are of this character, in such case this court will not restrain the borough from pursuing its object, notwithstanding the fact that it is not proceeding in the manner pointed out by its charter.

In further pursuance of this line of argument the defendant insists that, aside from the power conferred upon the borough which is exercisable by ordinance, it has a special interest in the public property within its limits, which invests the municipal authority with the right to abate any encumbrance upon or obstruction to its use by the public. It is, therefore, insisted that this court will pass upon the question whether the site upon which these buildings are placed is dedicated land, and that if it should be found to be such the court will dismiss the complainant’s bill. In support of this position the following authorities are cited: Morris Canal and Banking Co. v. Jersey City, 1 Beas. 252; S. C. on appeal, 1 Beas. 547; Newark Lime and Cement Co. v. Newark, 2 McCart. 64; Pope v. Town of Union, 3 C. E. Gr. 283; Van Doren v. Mayor of New York, 9 Paige 388.

These cases, however, do not support the proposition as thus broadly stated. It is undoubtedly true that a court of equity will not, as a rule, concern itself with irregularities in municipal procedure. If, however, some other matter of equitable cognizance becomes entangled with or is the outcome of such irregularities, courts of equity do not hesitate to intervene. For instance, if an irregular municipal proceeding will lead to an injury which is otherwise irreparable, it will be restrained. In Morris Canal and Banking Co. v. Jersey City, supra, the common council of Jersey City had passed an ordinance to extend Hudson street over the canal of the complainant. It appeared that it was the intention of the city to remove a building and to convert a part of one of the company’s piers into a public street. The ground of complaint was that Hudson street did not run over this part of the canal company’s property. One of the answers to the bill of complaint, which was -filed to enjoin the city from interfering with the building and pier, was that the ordinance of the city, even assuming that no street existed where it was proposed to open the street, was merely irregular, and so the matter was not cognizable in a court of equity.

Chancellor Williamson, while conceding that a court of equity was not the proper tribunal to correct irregularities in inferior jurisdictions, held that there was no irregularity in that case, because the only question was whether there was a street, which he concluded “ was a ground entirely distinct from a question of irregularity of procedure.” He also held that the case was taken out of the general rule because it came within the well-recognized exception of irreparable injury. He also held that there was no dedication of the locus in quo to the purposes of a street and thereupon restrained the city. On appeal, the court took the view that there was a dedication and so dismissed the bill.

It is perceived that the only question was whether there was an existing street. If there was, then the proceedings taken by the common council to open it were entirely regular. After the chancellor had decided that the question of street or no street did not involve a matter of regularity, and after the court of appeals held that there was a street, neither court was called upon to say what the result would have been had the city proceeded in an irregular way to open and remove obstructions from what was in reality a highway.

So, in Newark Lime and Cement Co. v. Newark, supra, there was no question of irregularity in the method of procedure in directing certain alleged encroachments upon a street to be removed. The only question was whether there was a street where the alleged obstructions were placed. If so, the regularity of the method adopted for their removal was admitted.

So, the case of Pope v. Town of Union, supra, presented the same condition of affairs. An ordinance had been regularly passed in pursuance of the municipal power granted to open streets. The only question was whether the street intended to be opened was a public street.

The case of Van Doren v. Mayor of New York, supra, was a suit to set aside an irregular special assessment as a cloud upon the title to complainant’s land. The court held that, as there was an adequfite remedy at law, it would not interfere in this case, nor in any ease of that kind except where it was absolutely necessary for the preservation of the complainant’s rights.

None of these cases, it is perceived, involved the question whether, if a municipal corporation to whom is confided the power to remove obstructions from streets, to be exercised in a definite way, proceeds in a different way, a court of equity will interfere, even if there exists an obstructed street.

The inference to be drawn from these cases is that if such irregular action threatens irreparable injury, a court of equity-will assume jurisdiction. In the cases of Mayor of Brooklyn v. Messerole, 26 Wend. 132, and Haywood v. City of Buffalo, 4 Kern. 534, the doctrine that a court of equity would not review and correct errors and mistakes in the exercise of the powers of subordinate public jurisdictions and in the official acts of public officers was subject to two exceptions — first, where the proceedings lead to the condition of irreparable injury to the freehold, and second, where they lead to a multiplicity of suits. These cases were followed, and the first exception was recognized as one of the grounds for retaining jurisdiction in the case of Morris Canal and Banking Co. v. Jersey City, supra.

Nor do these cases, or the case of Van Keuren v. Manhattan Manufacturing and Fertilizing Co., 8 C. E. Gr. 251, support the notion that the defendants, as representatives of the city, had a right to destroy these buildings by virtue of an inherent authority in the borough to abate a nuisance at common law.

In the last-named case the court was speaking of the power of citizens as such, and not as representing the corporation. The language used in the opinion in that case in respect to the power of private citizens has been modified by the case of Brown v. De Groff, supra. The authority to abate a public nuisance without judicial order or without following a procedure pointed out by statute is no greater in a person as officer than as a citizen. Either can abate an absolute obstruction in the street which prevents his passage and so does him a special injury.

The case of Inhabitants of Greenwich v. Easton and Amboy Railroad Co., 9 C. E. Gr. 217; S. C., 10 C. E. Gr. 566, was an instance of an appeal to the courts. It is by confusing the right of the individual with the acts of officers that the courts, in some cases, have alluded to the existence of a common-law power in a municipality to abate a nuisance in a way that would mislead to the notion that the authorities had an inherent power to do what they, as citizens, could not do.

But if it should be conceded that the degree of special injury which would justify the abatement of a public nuisance is not to be so nicely measured when a citizen is also a municipal officer as when he has no official character, yet, in my judgment, the present case would not be one for private interference. It is of the utmost importance to the preservation of the rights of property as well as the public peace, that the exertion of this exceptional power should occur only in cases of necessity — in cases where the nuisance is manifest and unmistakable and where the danger or inconvenience is imminent and serious. There exist no such conditions in this case. The structures are not in a public street, blocking traffic, nor so placed in a public park or square as to seriously impair the useAf the same by the public. If they are upon dedicated land they are a purpresture or nuisance, but the injury resulting from their presence is not of such presently grave character as calls for immediate abatement by act of the party. The importance to the city of the presence of these structures upon the site selected arises from the fact that the complainant is asserting a right which, if permitted to remain unchallenged, will lead to a series of obstructions around the lake which will practically destroy its beauty and .impair its use by the public. Therefore, as I think, there was no power to abate in the method adopted, and as the result of the threatened demolition of the buildings comes within the pale of irreparable injury, this court will restrain without determining the question of dedication; for it cannot be granted that when a person comes into this court to restrain an act of this kind he thereby, as a matter of course, submits the question of dedication to this court. If this should be so held, then municipal officers, by a sudden and summary attack upon property which they claim to be a nuisance, can drive its owner into this court for protection and so compel him to try in equity a matter otherwise triable only at law. I am therefore of the opinion that the complainant, upon the original bill, is entitled to a decree.

But the case does not rest alone upon the bill and answer. There is a cross-bill, which prays that the structures may be abated by a decree in this court.

Against the relief prayed for by this cross-bill there are interposed several objections, even assuming that there was a dedication of the land by which the buildings were erected.

It is objected, first, that the cross-bill is not germane to the original subject-matter; second, that the proceedings should have been taken by information at the instance of the attorney-general ; third, that the borough had passed no ordinance upon the subject of nuisances, and fourth, that the remedy by ejectment or indictment is entirely adequate.

Hone of these objections are taken in the answer to the cross-bill, but are raised for the first time upon final hearing.

First. The answer is good as an original bill, in the nature of a cross-bill.

Second. The borough, as the representative of the public, was entitled to file the cross-bill. 1 Am. & Eng. Encycl. L. (2d ed.) 74; Mayor of London v. Bolt, 5 Ves. 129; Trustees of Watertown et al. v. Cowen et al., 4 Paige 510; Inhabitants of Greenwich v. Easton and Amboy Railroad Co., 10 C. E. Gr. 565; Inhabitants of Woodbridge v. Inslee, 10 Stew. Eq. 397; Newark Aqueduct Board v. Passaic, 18 Stew. Eq. 394; 1 Dick. Ch. Rep. 552.

Third. The borough could bring the suit for abatement of a nuisance per se without the passage of an ordinance. The purpose of an ordinance would have been to declare what were nuisances, aside from nuisances per se; to empower certain officers to act concerning nuisances, or to provide a summary method! for the ascertainment of nuisances and for their abatement. But when a general right of control over public property is vested in a municipality it can invoke the aid of the courts for the protection of this property, without resorting to a summary method of abatement provided by its charter.

“ The selectmen of Jersey City,” it was said in Dummer v. Jersey City, Spen. 86, “ by the act of incorporation, represented the public or the inhabitants of Jersey City, and the rights of the public in the common property are vested in them, and if such rights cannot be enforced in their name they cannot be enforced at all.”

Mr. Justice Depue, in his opinion in Trustees of Methodist Episcopal Church of Hoboken v. Council of Hoboken, 4 Vr. 17, 19, says: The corporation of the city or town in which the square is, have, by virtue of their corporate authority, power to regulate the public use of it, and may be regarded as representatives of the public, for the purpose of maintaining suits in equity or at law for the vindication of the public right.”

Chancellor Walworth said, in Trustees of Watertown v. Cowen, supra: “I can see no valid objection to considering the corporation as the proper representative of the equitable rights of the inhabitants of the village to the use of the public square, so as to authorize the filing of a bill by the corporation in this court, to protect those equitable rights against the erection of this nuisance.”

All the cases in this state in which similar actions have been sustained rest solely upon the right of the municipality, as representing the public, to protect the interests of the public in property devoted to public use.

The fourth objection, had it been taken in the answer, I should have regarded as unanswerable. There arises, as I have already observed, no imminent or serious injury to the public from the presence of the structures now alleged to be nuisances; therefore, the remedy open to the borough through an indictment or by an action of ejectment would seem to be altogether adequate.

The question, however, is whether now, after voluminous testimony has been taken, and after the case is ripe for final decisioii, the cross-bill shall be dismissed on this ground and the defendants sent to a court of law.

In the much-cited case of Attorney-General v. Heishon, 3 C. E. Gr. 410, Chancellor Zabriskie, while asserting the doctrine that a court of equity would never retain jurisdiction in cases of nuisances where there was an adequate remedy at law, nevertheless held that, by the testimony in that case, the fact whether there was a nuisance was left in doubt.

Of the cases cited by Chancellor Zabriskie, it appears that in Allan v. Board of Chosen Freeholders, 2 Beas. 68, a citizen who had suffered no special injury from the public nuisance was refused relief upon motion to dissolve an injunction; in Attorney-General v. Hudson River Railroad Co., 1 Stock. 560, the injunction asked for was allowed; in Attorney-General v. New Jersey Railroad and Transportation Co., 2 Gr. Ch. 140, the relief was denied upon the ground that the nuisance was already there and that injunction was a preventive remedy only.

The recent case of Township of Raritan v. Port Reading Railroad Co., 4 Dick. Ch. Rep. 11, was decided on a rule to show cause why an injunction should not issue.

The general rule is that a court may, of its own motion, dismiss a bill at any stage of the cause, on the ground that the complainant has an adequate remedy at law. But where the defendant has not raised the objection until after testimony on the merits has been taken, the court, in its discretion, will retain the case if the court is competent to grant the relief prayed and has jurisdiction over the subject-matter. Lehigh Zinc and Iron Co. v. Trotter, 16 Stew. Eq. 185, and cases cited by Mr. Justice Depue in his opinion.

I have concluded that this suit should be retained. While it is true that’ the legal rights of the parties have not been once settled, by an action at law, and while there is no question of irreparable injury to the public involved, yet there is involved no doubtful question of law, the material facts are not obscure or controverted, and the inference to be drawn from them, in regard to the question of dedication is, in my judgment, reasonably clear.

The question therefore remains, was there a dedication of the ground upon which the buildings stand?

It is proved beyond a doubt that the board of directors of the original land company, for the purpose of securing purchasers for their lots, empowered those persons who were to sell lots to represent to all who spoke of becoming purchasers that the lake and its surrounding ground was to be kept open. There is a mass of testimony to the effect that the power given to make-representations, and that the representations made, were to the effect that the lake and grounds were to be kept open for the use of the public. But it is not entirely certain whether the power given was to make representations that this land and water were to be kept open for the lot-owners or were to be kept open for the public, or were simply to be kept open. The witnesses were trying to recall language used in conversations which occurred twenty years ago, and not much reliance can be put upon their recollection of the precise words used in regard to the point whether the lake and banks were to be kept open for the use of the lot-owners or whether they were to be kept open for the use of the public. That they were to be always kept open and that the agents of the company were authorized to so represent, and that they did so universally represent, is proved beyond all question.

Again, that it was never intended that the fringe of land between Lake avenue and the waters of the lake should be the subject of profit to the land company, by sale-or private use, conclusively appears from one fact, namely, that in arriving at the cost of the lots which were plotted upon the company’s plan, the cost of the whole tract was divided so as to fall entirely upon the plotted lots. This was done for the purpose of fixing a price for the lots and upon the theory that from their sale alone was the original expense for the entire plot and the profits of the company to be realized.

But assuming that the representations were simply that the land and lake were to remain, open, what inference, as to the intent of the company, is to be drawn? What future condition of affairs must have been in mind as the outcome of such a representation ?

The purpose of the company was to organize a seaside settlement. The size and the number of the lots upon which dwellings were to be erected indicate that the design of the projectors was to found a village — an urban community. The lake and park were to be kept open undoubtedly for the use of all who owned or rented these houses. Among the first projects of those interested in the land company was the erection of a hotel, the present Monmouth House. The lake and park were to be kept open for the use of the guests of this house. Indeed, they were to so remain for the common use of the residents and their guests, of the hotel and its guests; in fact for all who were attracted to the place because of its character as a summer resort. It was intended that no portion of the public who were likely to enjoy them was to be excluded from such rights, and this constituted a dedication.

Again, Samuel B. Huey purchased the ground for the company and was its original secretary. He filed the map of the laud company in the county clerk’s office of Monmouth county, after being advised by legal counsel that a filing of the map would amount to a dedication of the streets and lake and park to public uses, and this advice he communicated to the company, who thereafter proceeded to sell lots delineated upon the plan.

While the effect of filing the map would not amount to a conclusive dedication of the lake and the surrounding fringe of land, yet the appearance of the plot itself, leaving this fringe unplotted into lots, in some places too narrow for plotting purposes, in others with shrubbery marked upon it, would carry a strong implication to any person viewing it that the strip of land between Lake avenue and the lake itself was never to be enclosed and was to be used as a park.

The force of the filing of this map springs out of the information which Mr. Huey received as to its effect, of his communication of that information to the company and of the sale of lots thereafter.

And then again, from the time the map was filed and lots were sold and lot-owners began to build, the lake, with the' walk around it, was used by all; the park was kept open, walks were built upon it and was, so far as appears, free for the use not only for lot-owners, but for all.

Again, about eight years ago- General Lucas, who then owned nearly or quite all of the stock of the company, called a meeting of the citizens of the village and proposed that inasmuch as the company had disposed of most of its land, that the expense of keeping the streets, park and lake in order should be borne by all the property-owners.. A committee of citizens was appointed to take charge of those affairs, under an agreement with the company that the company should pay one-third of the expense and that two-thirds should be assessed upon the other lot-owners. This voluntary assessment was collected and- the committee spent it in repairing streets, in cleaning out the edges of the lake, in making an island in its waters, in renewing the boardwalk-running partly around the lake and in- planting trees in and in-otherwise beautifying the park. A citizens’ meeting was held in the park to raise money for the same purpose, which money was expended in building a walk on-the west side of the lake.

Mr. Lucas also refused permission to Mr. Truett to put up a pavilion on the peninsula and enclose it with glass, saying that it was public property, and that there could be none built there.

So from the intention of the directors thus proved; from the representations to lot-owners, which raised an equitable estoppel against the closure of the park and lake against them; from the constant use of the park by the public since 1875, I do not see how it can be doubted that there was a dedication.

But the complainant sets up certain conduct of the owners of this land, as well as certain acts of the borough, as tending to refute the idea of such dedication.

It is first pointed out that the company changed the contour of the lake by filling in and encroaching upon the water at certain points; that it put a curbing around the lake, cleared the strip of land around it of underbrush, and trimmed the trees in the park and laid the boardwalks around the lake. But all this-was a part of the general plan to improve and beautify the lake and park, so as to make them more attractive and so induce persons to purchase lots. There was no one to do these • things: The township of Wall had no interest at this stage of the enterprise to take charge of these improvements, at the expense of the people of the township, for the benefit of the land company. All these acts were done as part of the scheme of improvement, which included the opening and grading of streets and forming of' sidewalks. As to the streets, no one- would contend for- a moment that these acts would tend to refute the idea of dedication.

Now, as Mr. Huey states, the company was in the market to sell lots, and it had to have streets, by which to sell lots: It was a- case of necessity; there was no other authority to do it, and, until there was some other organization, it was understood that the company would assume that task. These were all acts similar to those of the owner of the fee in a highway, who- plants trees upon or forms and sods the side of the road, or even grades the wagon track.

The complainant also relies upon the fact that ice-houses were erected by the company upon the peninsula, and that ice was got from the lake and sold by permission of the officers of the land company.

But this, iu my judgment, has little or no force to disprove the intention to dedicate. The houses were not erected until 1886, when the dedication was complete. Besides, the presence of the ice-houses was obviously for the purpose of storing ice mainly for the use of residents, and so was a convenience tó them about which they did not care to complain. The presence of the houses in no way interfered with the use of the lake for the purposes of summer visitors. Nor did the money received from the ice sold, so far as appears, arise from the sole right of the- company to cut. It is not proved that the company ever collected for ice cut by others. And the cutting of hay from the parks stands in the same posture. It interfered no more with the common use of the public than would the act of the owner of the fee in a highway in cutting grass upon or -pasturing on the roadside.

It is said that the company let the privilege of hiring boats to be used upon the lake, and it appears that the Monmouth House and the Lake House provided boats for the public use, undoubtedly mainly for the convenience of their guests. These boats were essential to the use of the lake and were in furtherance of the purposes for which it was to be kept open. The boats were put under the charge of a keeper, who paid certain sums to the owners of the boats. No one else was excluded from the use of the lake, and the hiring of the boats no more proves a claim of any private right in the lake than would the fact that the owner of an omnibus line had hired out his vehicles to one person prove that he claimed a private right in the streets through which they ran. The platform from which the boats started was not such an obstruction to the use of the lake and its surrounding grounds as to provoke a question of right.

So, the permission asked of and given by the employes of the land company to permit lot-owners to put boats upon the lake and put up boat-liouses and platforms was not inconsistent with the right of the public to the use of the lake. A request to the citizens was made to these persons because they were managing and controlling, in the absence of any public authority, the use of the lake for lot-owners as well as the general public.

Nor do I see how the fact that the company, by deed, dedicated a long, triangular lot in 1882 and another in 1885, both lying outside of Lake avenue, proves that the strip inside of that avenue was not previously dedicated. The only acts which asserted an exclusive right to any of thé property within Lake. avenue was the act of Mr. Lucas in 1886, in negotiating for the sale of a portion of the peninsula, which portion seems to have been afterwards sold. But these acts were ten years after the map was filed and after the dedication had become complete.

But it is again said that, after the formation of the borough in 1892, the borough authorities in various ways admitted that the lake and surrounding park were private property. On April 3d, 1892, and on August 15th, 1892, the common council directed its clerk to notify the Spring Lake and Sea Girt Company of the dangerous condition of the boardwalks around the lake, and directing the company to repair them.

On January 28th, 1895, the common council appointed the mayor a committee to wait on the owners of the beach and the lake and the sewer system within the borough of Spring Lake, to ascertain whether they were willing to sell the said property, and, if so, upon what terms.

Now, it is apparent that, if there had been a dedication of the land around the lake, that act was complete long before the organization of the borough. It arose by the filing of the map, with the understanding that it would constitute a dedication, by repeated declarations that this space would remain open; that from 1875 it had remained open, the fringe of land being used as a park where everyone sat or walked. It is apparent, therefore, that the resolutions of the common council can have no official significance whatever as to the rights of the public. The legislature had conferred no power upon the common council to discharge this property from the public easement. The power to vacate streets had not been put into action by the passage of an ordinance. The resolution of the common council amounted to nothing more than the expression of the individual members; that the land company had or claimed some right in the lake or surrounding land, and that it had an admitted right in the sewer system. The common council had apparently taken no legal counsel in respect to the existence* of any private right in the land company, and its action was of no importance in determining the existence or extent of such right.

The testimony respecting the manner in which the property has been from time to time assessed had, to me, no significance whatever.

The fact that upon the second map — that of 1876 — two lots were plotted within Lake avenue, at the northwesterly end of the lake, in view of the evidence of how.this came to be done and of the action of the land company concerning it, makes in favor of rather than against the existence of an intention to dedicate. The lots were so plotted by the surveyor of his own volition, and his act was disapproved of by the company as soon as it came to its attention. It is finally objected that if dedicated, there has never been an acceptance of the dedication of this property.

Acceptance requires no formal act.

The resolution of the mayor and common council was an assertion of a right of control over this property, equivalent to an acceptance for the public of the use tendered by the dedication. B'esides, there had been a public user of the property for nearly twenty years.

I am of the opinion that the land upon which the buildings were put is public ground; that the buildings are public nuisances and that there should be a decree upon the cross-bill for their abatement;


source: Caselaw Access Project

license: Public Domain

text:
    William M. Davis v. Edward Piggott et al. David Cressman, administrator, &c., of Christian Cressman, deceased, v. David Piggott et al. James D. De Witt v. John C. Kaniper.
    [Filed February 24th, 1898.]
    The mortgagee released a part of the mortgaged premises with notice of a subsequent mortgage upon the unreleased portion, but with an agreement with its holder that the first mortgage should be the first lien upon such unreleased part. — Held, that the agreement created a latent equity in favor of a third party and that a subsequent bona fide assignee of the second mortgage held it free from this equity.

      Mr. Osiris D. McConnell, for the complainant Davis.

      Mr. Joseph M. Roseberry, for the defendant Cressman, administrator.

      Mr. Irwin W. Schultz, for the defendant De Witt.

      Mr. Henry S. Harris, for the defendant Paxton.

      Mr. George M. Shipman, for the defendant Shober.

      Mr. George A. Nichol, for the defendants Rush and Butler.
   Reed, V. C.

These are three suits for the foreclosure of three mortgages. They were tried together.

The contest concerns the priorities of the respective mortgages. One Kaniper owned a tract of land containing one hundred and eighty-one and forty-hundredths acres, which will hereafter be styled the one-hundred-and-eighty-one-acre tract. He executed a mortgage upon this tract in March, 1873, to Christian and Levi Cressman, to secure two bonds, each one for $1,000, one held by Christian and the other by Levi Cressman.

In March, 1875, Kaniper made a second mortgage upon the same tract to James D. De Witt for $600.

In March, 1876, Kaniper sold off from the one-hundred-and-eighty-one-acre tract one hundred and eleven and twenty-four hundredths acres (which will hereafter be styled the one-hundred- and-eleven-acre tract), to one Edward Piggott. Piggott gave back to Kaniper a mortgage dated March 14th, 1876, for $2,000,' to secure part of the purchase-money. This mortgage was, on June 18th, 1877, assigned to W. H. Lawall.

By a release dated November 29th and acknowledged and recorded December 15th, 1877, Christian and Levi Cressman released the seventy acres still owned by Kaniper after the sale of the one-hundred-and-eleven-aere tract to Piggott, from the’ lien of their mortgage.

To the release was added an agreement, signed by De Witt, the holder of the second mortgage on the whole one-hundred- and-eighty-one-acre tract, and by Lawall, the assignee of the mortgage made by Piggott to Kaniper on the one-hundred-and-eleven-acre tract. This agreement is in the following words:

“We, the subscribers, James D. DeWitt and William H. Lawall, who hold subsequent encumbrances on the premises herein described, do hereby consent that the said premises be released and discharged as is herein set forth, and do for the consideration of one dollar to each of us in hand paid agree that in case the said Cressman or either of them attempt to collect the said mortgage or either of the bonds thereby secured, that in that case the said De Witt and Lawall agree that the moneys secured thereby and the interest and costs shall be first collected out of the premises (covered by said mortgages) remaining after the part is released as is therein set forth.
“Dated December 6th, 1877.
“J. D. DeWitt,
“W. H. Lawall.”

This agreement was not recorded.

Afterwards, on March 12th, 1886, the administratrix of Lawall, deceased, assigned the Kaniper mortgage to William M. Davis, the complainant in the first suit.

Kaniper sold of the seventy acres remaining after the sale of the one-hundred-and-eleven-acre tract to Piggott, in four parts as follows:

1. To Thomas Butler, November 14th, 1877, eight and fifty-one hundredths acres, for $153.18, the expressed consideration.

2. To Thomas Miller, on December 15th, 1877, thirty-two and fifteen-hundredths acres for $1,125.25, the expressed consideration.

3. To Rosetta Rush, on December 29th, 1877, nine and seventy-hundredths acres for $175, the expressed consideration.

4. To S. V. Davis, on January 1st, 1878, twenty-two and fifteen-hundredths acres for $725, the expressed consideration.

The order in which these three suits were instituted is as follows :

On April 17th, 1897, William M. Davis filed a bill to foreclose his mortgage upon the one-hundred-and-eleven-acre tract. Among others, he made parties to the suit Cressman, who held the oldest mortgage upon the one-hundred-and-eighty-one-acre tract, and De Witt, the holder of the second mortgage upon the same tract, and Davis, the holder of the Kaniper mortgage upon the one-hundred-and-eleven-acre tract.

The prayer of the bill is that the Davis mortgage may be decreed to be the first lien upon the one-hundred-and-eleven acre tract.

Subsequently, while this suit was pending, James D. De Witt, on July 8th, 1897, filed his bill to foreclose his $600 mortgage upon the whole tract, charging that by virtue of the release executed by the Chessmans his mortgage became a first lien upon the seventy-acre tract and a second lien, next in order after the Cressman mortgage, upon the one-hundred-and-eleven-acre tract. He prays that the whole tract may be sold.

To this suit all the preceding parties are made defendants.

On the same day, namely, July 8th, 1897, the administrator of Christian Cressman filed his bill to foreclose the Cressman mortgage so far as it secured the bond for $1,000 which has been held by Christian Cressman, now deceased. To this bill, Davis, the complainant in the first suit and a defendant in this suit, has filed a plea in abatement and an answer. The plea is grounded upon the pendency of his own suit, in which the same facts are pleaded and in which the administrator of Christian Cressman is a defendant. The answer claims that the lien of the Cressman mortgage upon the one-hundred-and-eleven-acre tract covered by complainant’s mortgage, is extinguished by the release given by the Cressmans of their lien upon the seventy acres.

The effect of this plea will be reserved.

I will proceed to consider the relative status of the holders of the several mortgages under the facts displayed upon the hearing.

It appears that when Kaniper, the owner of the one-hundred- and-eighty-one-aere tract, sold one hundred and eleven acres from it to Piggott, there were upon the whole tract two mortgages, the oldest, the Cressman $2,000 mortgage, and the next the De Witt $600 mortgage.

By the sale to Piggott of the one-hundred-and-eleven-acre tract, the seventy acres retained by Kaniper became first liable for the payment of these mortgages. Then Piggott gave to Kaniper the $2,000 mortgage on the one-hundred-and-eleven-acre tract. After this mortgage was made the condition of affairs was this: The one-hundred-and-eleven-acre tract became liable, first, for that part of the amount secured to Cressman and De Witt left unpaid after the sale of the seventy acres, and secondly, liable for the $2,000 secured by the mortgage made by Piggott to Kaniper. This was the position of affairs when the Kaniper mortgage was assigned to Lawall.

Afterwards the Cressmans released the seventy acres still owned by Kaniper from the lien of their $2,000 mortgage. They executed this release with knowledge of the existence of the.Kaniper mortgage upon the one-hundred-and-eleven-acre tract. Their knowledge of its existence is admitted in the pleadings; for the fact of such knowledge is charged in the bill of Davis and is not denied by Cressman or Paxton, the owners of the Cressman mortgage, both of whom filed answer to the Davis bill. Besides, the release was acknowledged December 15th, 1877. Attached to this release, and upon the same sheet upon which the release is written, is added the agreement already set out, which agreement is dated December 6th, 1877, upon which date it presumably was executed, which was nine days previous to the date of the acknowledgment by the Cressmans of the release. It was executed by Lawall, assignee of the Kaniper mortgage, and by De Witt.

The agreement displays upon its face the existence of subsequent encumbrances held by the signers. In the absence of any explanation by the Cressmans of the circumstances under which this agreement was attached to the release, or any testimony from them, upon the hearing, denying the knowledge which such a condition of affairs would impute to them, it is irresistible that they signed the release with notice of both encumbrances. The legal effect of such a release, with knowledge of the existence of subsequent encumbrances, is entirely settled. It operates to discharge the lien of the releasing mortgagee to the extent of the value of the part of the mortgaged premises released. Reilly v. Mayer, 1 Beas. 59; Vanorden v. Johnson, 1 McCart. 376; Harrison v. Guerin, 12 C. E. Gr. 219; Cogswell v. Stout, 5 Stew. Eq. 240.

The release, therefore, standing alone left that portion only of the sum secured by the Cressman mortgage, after deducting the value of the seventy-acre tract, a lien upon the one-hundred- and-eleven-acre tract. It left, secondly, the lien of that portion of the De Witt mortgage, if any, remaining unpaid after the sale of the seventy-acre tract. It left, thirdly, the lien of the Kaniper mortgage, then held by Lawall, for its full amount.

The important question in the case springs out of the agreement made between Lawall, who then owned the mortgage now held by Davis, with the Cressmans at the time the release was executed. The substance of this agreement was to shift the prior lien of the Cressman mortgage which rested upon the whole one-hundred-and-eighty-one-acre tract to the one-hundred- and-eleven-acre tract alone. Its effect was, therefore, to increase the encumbrance of the Cressman mortgage upon the one-hundred-and-eleven-acre tract, and so decrease the security of the holder of the Kaniper mortgage upon the same tract. Inasmuch as this arrangement was approved by the parties concerned at the time, including Lawall, who then owned the Kaniper mortgage upon the one-hundred-and-eleven-acre tract, it was, as between those parties, entirely valid. Had the Kaniper mortgage remained in the hands of Lawall, it would be clear that the Cressmans would be entitled to be first paid from the proceeds of the sale of the one-hundred-and-eleven-acre tract. But Lawall is not the owner of the Kaniper mortgage. After his death his administratrix sold it to Davis, who appears to have been a purchaser for value without notice of. the mentioned agreement. The question is whether he, as Lawall’s assignee, took the mortgage free from the equity by which Lawall was bound.

The doctrine is rudimental that an assignee of a mortgage takes it subject to all equities, latent or otherwise, in favor of the mortgagor against the mortgagee or his assignee. But the counsel for Mr. Davis insists that this was a latent equity created by the assignee of the mortgagee of the Kan ¡per mortgage in favor of a third person, and that Davis, as assignee of such mortgage for value and without notice of this equity, is not chargeable with its existence.

If this is a latent equity created by the mortgagor or his assignee in favor of a third person, under the law of this state, Davis undoubtedly took a title to the mortgage entirely relieved from the effect of this agreement.

In a number of cases, all cited in the opinion of Vice-Chancellor Van Fleet, in the last case upon this subject, namely, Vredenburgh v. Burnet, 4 Stew. Eq. 229, the distinction between latent equities in favor of the mortgagor and in favor of third persons has been repeatedly stated. In some of those eases, it is true, the equity was one existing in favor of the obligor or mortgagor, and so did not involve a decision upon the point whether latent equities in favor of third persons stood upon the same footing. In the case, however, of New York Chemical Manufacturing Co. v. Peck et al., 2 Halst. Ch. 37, the question was directly involved, and it was held that a bona fide assignee of a mortgage, first in execution and registry, took it free from an agreement between the first and second mortgagees, that the latter should be the prior encumbrancer. In Vredenburgh v. Burnet, supra, the doctrine that the assignee takes free from latent equities created by the mortgagee in favor of third persons was discussed at length and reasserted, and the case was affirmed by the court of appeals upon the opinion of the vice-chancellor in 4 Stew. Eq. 252. This case definitely settles the law in this state. The counsel for Mr. Cressman cited, as pertinent decisions modifying this doctrine, the following cases: Conover v. Van Mater, 3 C. E. Gr. 481; Coursen v. Canfield et al., 6 C. E. Gr. 92; Atwater v. Underhill, 7 C. E. Gr. 599; Mutual Life Insurance Co. v. Sturges, 6 Stew. Eq. 328.

In the opinions in one or more of these cases, expressions may be found to the effect that the assignee of a bond and mortgage takes it subject to all equities, but in none of the cases is the doctrine laid down in Vredenburgh v. Burnet impugned.

In Conover v. Van Mater, supra, the equity was not created by the mortgagee or the assignee in favor of a third person, but existed before the mortgage was made.

In Coursen v. Canfield and in Atwater v. Underhill, supra, the-respective equities were between the original parties and in favor of the mortgagors.

In Mutual Life Insurance Co. v. Sturges, supra, while the equity was latent and in favor of third parties, yet the assignee was appointed in bankruptcy proceedings. He was therefore not an assignee for value, and took only the property of the debtor as it existed at the time of the insolvency.

Did this agreement create a latent equity in favor of a third party? The conclusion that it did seems to be unavoidable, Lawall, whose mortgage lien was subject only to that part of the Cressman mortgage which would be left unpaid after the application of the value of the seventy-acre tract, agreed with Cressman that it should become subject to the whole amount due upon the Cressman mortgage. To this extent he agreed that the Cressman mortgage should have a priority to which it was not entitled by execution or record. This equity seems to-be exactly similar to that in Vredenburgh v. Burnet, supra. No inquiry directed to the mortgagor would have disclosed any defence to the mortgage or laid the foundation for estoppel against the mortgagor from asserting a defence; in fact, he had no defence. . In my judgment, Davis, who stands in the position of a bona fide purchaser for value, holds his mortgage free-from this equity.

The result is that the Cressman mortgage is a lien upon the., one-hundred-and-eleven-acre tract for so much of the mortgage debt as remains unpaid after the application upon it of the value-of the seventy acres released. The value of the released portion-must be estimated at the time when the release was executed. Hill v. Howell, 9 Stew. Eq. 25.

It is proven that the seventy-acre tract was sold by Kaniper by four conveyances, the aggregate consideration of which is the-sum of $2,178.43. All these sales were made within fifteen days of the time of the execution of the release, and as no other-evidence of value was offered at the hearing, this sum must be taken to have been the value of the tract at that time. This sum exceeds the amount due upon the Cressman mortgage for principal and interest. The one-hundred-and-eleven-acre tract is therefore discharged from any lien on account of the Cress-man mortgage.

In respect to the suit brought by them there must be a decree for the defendants. This renders the issue raised by the plea in abatement in this suit unimportant.

The seventy-acre tract should be sold under a decree in the De Witt suit, the portions of that tract being sold in the inverse order of their conveyances by Kaniper, the sale being continued until sufficient is released to pay this mortgage. If all the tract is insufficient to pay the mortgage, then the one-hundred-and-eleven-acre tract must be sold under that decree. If the seventy-acre tract is sufficient, then the one-hundred-and-eleven-acre tract must be sold under a decree in the Davis suit.


text:
    Samuel H. Lyon and James M. Lyon v. William S. Clawson, trustee, &c., et al.
    [Filed April 6th, 1898.]
    There was a bequest to executors of $20,000 to pay the interest thereof to A during life, and the principal sum to A’s children after her death. There was a codicil, reciting the former gift as one to the executors to pay interest to A during her life, and revoking this bequest and directing the executors to invest $12,000 instead of $20,000, and pay the interest thereof to A during her life. — Held, that the clause in the will directing the executors to pay the sum invested to A’s children after her death was not revoked by the codicil.

      Mr. William T. Hilliard, for the complainants.

      Mr. Samuel H. Grey, for the defendants.
   Reed, V. C.

This bill is filed to obtain a construction of the will of Isiah D. Clawson, deceased, and also to compel William S. Clawson, trustee under the said will, to pay to the complainants the shares of a legacy bequeathed to Israel Hires and Harry S. Hires, and by them assigned to the complainants.

The deceased, by his will, dated December 13th, 1871, made the following bequest:

“Item. I give, devise and bequeath to nay executors the sum of twenty thousand dollars, which I direct them to keep at interest on good mortgage security, and to pay to my sister Elizabeth, wife of Rev. Allen J. Hires, during her natural life, annually, the interest thereof; the first payment to be made to her in one year after my decease. And I do order my executors, within one year after the decease of my said sister Elizabeth, to pay over the principal sum of twenty thousand dollars, 'and the interest which may have accrued thereon, to the children of my said sister Elizabeth in equal portions, share and share alike; and should any child or children of my said sister Elizabeth die before my said sister Elizabeth, leaving a child or children surviving, then such child or children to take the share of such deceased parent. But should any child or children of my said sister Elizabeth, or any child or .children of a deceased child, not having attained the age of twenty-one years at the decease of my said sister Elizabeth, then I order the share of such minor child or children to be paid to them respectively when they arrive at the age cf twenty-one years.”

The testator afterwards, under date of December 11th, 1876, executed a codicil to this will, in the terms following:

“ Whereas, I, Isiah D. Clawson, of Woodstown, Salem county, New Jersey, have made my last will and testament, bearing date the first day of December, A. D. eighteen hundred and seventy-one, and, in my said last will, I give and bequeath unto my executors the sum of twenty thousand dollars, which I direct them to keep at interest on good security, and to pay the interest annually to my sister Elizabeth, wife of the Rev. A. J. Hires, during her natural life; now, I do take from my said executors the said sum of twenty thousand dollars and revoke and annul the said bequest, and direct them to keep and put at interest the sum of twelve thousand dollars instead of the twenty thousand dollars, for my said sister Elizabeth to have the interest of annually during her natural life, which sum of twelve thousand dollars I give my executors for the purposes aforesaid.”

All the rest of the estate was given to the executors to hold in trust for certain purposes. All these executors had died or resigned, and the defendant William S. Clawson is now trustee and entitled to said residue.

Elizabeth, the wife of the -Rev. Allen J. Hires, died July 29th, 1896. She left surviving her three children, Israel C. Hires, Harry S. Hires and Elizabeth E. Clawson. On April 9th, 1886, while their mother was still living, the two sons assigned their shares in said legacy to the complainants for a valuable consideration, and directed the executors of said will to pay the same to the complainants. This assignment seems to have been made to secure the payment by the two Hires to the complainants of the sum of $4,500, with interest thereon from April 9th, 1886, and also to secure the repayment of premiums paid by the complainants upon an insurance policy issued upon the life of Harry S. Hires, and also to secure the repayment of premiums paid by the complainants for fire insurance upon a steamboat. The complainants seem to have paid these premiums, and there is a debt due to them from the two heirs in excess of the sum of $8,000.

William S. Clawson and Martha Clawson, two of the defendants, filed an answer denying that any legacy belonged to the, children of Elizabeth, and that therefore no interest passed from them to the complainants by the assignment. They also chai-' lenge the right of the complainants to file this bill, even if the legacy belonged to the children of Elizabeth.

The first question in order is whether, assuming that Israel C. and Harry S. Hires were each entitled to one-third of the principal sum of $12,000 upon the death of their mother, and assuming that such right passed to the complainants, by assign-, ment, the complainants are rightly in this court in this suit.

I can perceive no substantial reason for a doubt.

Upon the death of Elizabeth there was imposed upon William S. Clawson, as trustee, the duty of paying over the money to the legatees. -The right of the legatees to compel the executor to execute this trust in this court is entirely clear. The right of the eestuis que trust passed to the complainants by the assignment, and whether the assignment was absolute or in pledge to secure the personal indebtedness of the legatees, in either case the complainants were invested with the right to recover the full amount of the gifts assigned to them. Their right to compel the execution of the trust, therefore, seems entirely clear.

The second is the important question. Had the children of Elizabeth E. Clawson any interest in the $12,000 after the death of their mother? The insistence of the trustee is that the codicil to the will revoked the provisions in the will by which the children of Elizabeth were to receive the principal sum of $20,000 or any other sum.

The gift contained in the codicil is clearly substitutional. The language is that $12,000 shall be kept out at interest, instead of $20,000 as is provided for by the will. The complainants rely upon the rule that the substituted legacy is subject to the same incidents and conditions as the original legacy. Hawk. Wills 306; Jarm. Wills (R. & T. ed.) 354.

Mr. Theobald states the rule to be drawn from the cases cited by him in this way :

“A gift in addition to or in lieu of a previous gift to the same legatee, is subject to the same conditions as the previous gift, with respect to vesting, separate estate, the fund out of which it is payable, freedom from legacy duty and provisions against lapsing.” Theob. Wills (4th ed.) 125.

In respect to the question whether a substitutional gift is subject to a gift over attached to the original gift, the same author remarks:

“It is not quite clear whether an additional or suhstitutional gift will be subject to the same executory gift over as the original gift. It seems, how-over, that it will not.”

Sir W. Paige Wood, master of the rolls, in Mann v. Fuller, Kay 624, said: “ If the former gift was absolute and free of legacy duty, the additional gift has been held to have all the same incidents; so, if the former is to be lost on a certain event, the additional gift is to be defeated on the same conditions. In no case has it been held that the latter gift is to go to the parties entitled under the subsequent limitations of the former gift.”

In that case a legacy was given to A for life, with an executory gift over, and then there was an additional gift simply to A, and it was held that A took the latter gift absolutely.

And in Sandford v. Sandford, 1 De G. & S. 67, the same was held in respect to a substitutionary gift. I have found no case, however, which seems to me to be similar to the one in hand. It is insisted by the counsel for the trustee that the case of Sandford v. Sandford is directly in point. In that case the testatrix bequeathed £3,000 to a person for life, and after her ’death to her children, and, in case there should be no children, to P, By a codicil, which stated that the legatee for life had been largely provided for from other sources, the testatrix deducted £2,900 from the legacy of £3,000, and revoked so much of the legacy accordingly, leaving the legatee £100 only as a remembrancer, it was held that the legatee took the £100 absolutely. If the gift of the $12,000 in the codicil of the present will had been given to Elizabeth absolutely, these two cases would bear an appearance of similarity, but this codicil gives her only a life interest in the $12,000 — the same interest that she had in the $20,000 mentioned in the will. Unless the children take after her death, this sum in this case falls into the residuum.

Apart from this difference between the two eases there were indications in the will, in the former case, of a testamentary intent (always the ultimate object to be ascertained) that the legatee should take the substituted gift absolutely. The substituted gift was an insignificant fraction of the original gift, and it was expressly given to the legatee as a souvenir. It was hot intended as a substitutional legacy for the purpose of providing for the family of the legatee, as was the obvious object of the original gift. On the other hand, in Condict v. King, 2 Beas. 381, there was a devise of land to testator’s grandson for life, with a remainder to testator’s daughter, and after the execution of the will the testator sold the land and put the proceeds into a mortgage, and then made a codicil giving the mortgage to the grandson, instead of the land, but making no limitation over. Chancellor Green held that the grandson took the life estate only in the mortgage, and at his death it became the property of the daughters; The.'circumstances in that case, particularly the fact that the mortgage represented the land, showed a testamentary intent that the incidents attached to the gift of the former were, although unmentioned in the codicil, inherent in the gift of the latter.

But, as already remarked, there is no question in this case whether Elizabeth took the substitutional gift upon -the same terms as she took the original. The language of the codicil gives her a life interest, just as did the will. The query is whether the silence of the codicil relative to the disposition of the principal after the death of Elizabeth revokes that part of the will that gave it to her children. It is urged that the gift in the will was to the executors and not to the children; that this gift was annulled and revoked in the codicil, and that, therefore, unless the substituted gift to the executors was coupled with a new direction to them to pay the principal, after the death of Elizabeth, to her children, the principal belongs to the trustee. But the same argument would apply to any substitutional gift whenever the codicil revokes and annuls the provision in the will bequeathing the original gift. The use of the words “revoke” or “annul” has no special force whenever the object of the revocation is to make a substitutionary gift. The use of these words does not prevent the substituted legacy from having the incidents of the original one. Cooper v. Day, 3 Mer. 154; Fisher v. Brierley, 30 Beav. 267. Besides, it is to be observed that the testator only revoked the bequest recited, and the bequest as recited was that for the use of Elizabeth during her life.

It seems obvious that the mind of the draftsman of the codicil was intent only upon a change in the amount of the gift. In making the change he wished to identify the particular gift in the will referred to. The feature of that gift which occurred to him as the most useful for that purpose was the fact that it was given to the executors to invest for the benefit of Elizabeth during her life; that it was a gift made for that purpose — was entirely sufficient to identify the particular gift to be changed by the codicil. The draftsman' did not go on to set out that it was the gift which the executor was to pay after the death of Elizabeth to her children, and also the provisions concerning the effect upon its course arising from the death of such children. The incorporation of all that in the description was unnecessary for the purpose then in mind, namely, to identify the original gift meant.

After describing the gift 'meant to be changed, the codicil proceeds:

“ I do take from the said executors the said sum of $20,000, and revoke and annul the said bequest and direct them to keep and put out at interest $12,000, instead of $20,000, for my said sister Elizabeth to have the interest during her natural life.”

His meaning was this: Instead of giving my executors the $20,000, which I directed them to invest and pay to my sister the interest thereof during her life, I give them $12,000 to invest and pay the interest to her during her life. The concluding words, “ which sum I give for the purpose aforesaid,” are merely redundant, and do not mean that it was given for that purpose solely and only. A change in the gift over to the children, apart from the amount given, was not in the mind of the draftsman of the codicil at all. If it had been his intention to annul the gift to the children, it is inexplicable why he did not do so in express words. It seems to me he would have limited the gift in the codicil solely to the payment of the interest to Elizabeth, or would have provided that, after the death of Elizabeth, the $12,000 should fall into the residue. The revocation of the gift over must be clear. It is not clear. I am of the opinion that there was no intention to revoke the gift over of the principal sum. The amount was reduced by the fact that the sum of $12,000 was substituted for the $20,000 as the amount to be invested by the executors; and as it was the sum directed to.be invested for the life use of Elizabeth, which the executors were directed to pay over to her children after her death, the change in that sum to be invested from $20,000 to $12,000 reduced the amount of the principal sum upon which the executory gift over was to operate.

Decree advised for complainants.


author: Stevens, V. C.

text:
    Frederick W. Schmalz, who sues, &c., v. Edwin Wooley et al.
    [Filed February 5th, 1898.]
    1. A hill on behalf of an association of journeymen hatters against manufacturers of hats, to enjoin them from using a counterfeit of the union label adopted by it, because the factory is not working under the jurisdiction of such association, cannot' be sustained where it does not allege that said association is the owner thereof or that it is trading in the hats or caps to which the label is applied or has ever put them on the market, !
    2. Gen. Stat. p. 3678 §§ 1, 2, 5 held unconstitutional, as a local law granting to certain associations exclusive privileges.
    3. Act of March 23d, 1892, is entitled “A further supplement to an act entitled ‘An act to protect trade-marks and labels.’ ” There was no act entitled “An act to protect trade-marks and labels,” the ouly previous act relating to the subject of labels and trade-marks being the act of 1889 (Gen. Stat. p. 3678) entitled “An act to provide for the adoption of labels, trade-marks and forms of advertising by associations or unions of workingmen, and to regulate the same.” The latter act was unconstitutional, as a private law granting exclusive privileges. — Held, that, assuming that the title to the act of 1892 is to be read as referring to the act of 1889, the former is a supplement to an act to provide for the adoption of labels by associations of workingmen, to which restricted object the act itself must be limited, though-the enacting part embraces all kinds of persons.
    4. The words “the same ” in the title of the act of 1889 (Gen. Stat. p. 3678) cannot be read as referring to labels, trade-marks and forms of advertising generally instead of to those only adopted by associations or unions.
    5. The title of the act of 1897 (P. L. of 1897 p. 215) extends only to labels and trade-marks adopted by associations or unions of workingmen, and the body of the original act, or of any supplement thereto, must be restricted to such labels and trade-marks, and hence such legislation is unconstitutional, as a special law granting an exclusive privilege.
    6. The court cannot reject a part of the title of an act for the purpose of saving the act.

      Mr. Joseph A. Beecher, for the complainant.

      Messrs. Guild & Lum, for the defendants.
   Stevens, V. C.

This bill is filed on behalf of an unincorporated association of journeymen hatters known as the Union Hat Makers’ Association of Newark, New Jersey, of which complainant is president. It alleges that the association, on September 16th, 1896,. caused to be filed for record with the secretary of state duplicate copies of the label, trade-mark, &c., before that time adopted by said association, and that the same has been owned and in actual use by the United Hatters of North America and by the Union Hat Makers’ Association, a sub-association, and the other sub-associations and local unions of journeymen hatters throughout the United States and Canada for about ten years past,

“ for the purpose of designating, making known or distinguishing goods, wares, merchandise or other product of labor as having been made, manufactured, produced, prepared, packed or put on sale by such persons or associations or unions of workingmen known as journeymen hatters, or by a member or members of such associations or unions,”

and that the class of merchandise to which the label has been appropriated consists of hats and caps upon which the skilled labor required has been done by a member of the United Hatters of North America or of the sub-associations or local unions of journeymen hatters belonging thereto. The label consists of a picture or representation of a globe, over which is written the words “Union Made,” and around which is written “The United Hatters of North America.” The bill alleges (after stating the rules and regulations of the United Hatters and some other particulars to which it is not necessary to advert) that the defendants Wooley & Crane, of the city of Newark, are and have been for more than three years last past partners in trade, engaged in the business of manufacturing and selling hats in large quantities at their factory in Fair street, Newark, and that they are now, and for the last three years have been, wrongfully and knowingly using a counterfeit or imitation label on all or nearly all hats finished at and sent out from their factory, and that their factory is a “foul shop,” not working under the jurisdiction of the said United Hatters of North America. The bill prays for au injunction and damages. The defendants demur.

The complainant puts his title to relief, first, on the principle on which equity ordinarily interferes in such cases, and second, on the provisions of those acts of the legislature which provide for the adoption of labels by unions of workingmen.

His first position is clearly untenable in view of the decision in Schneider v. Williams, 17 Stew. Eq. 391. That case is, in all its essential features, identical with the case in hand. In both cases a label was adopted which was to be placed upon goods made by members of the association only. In both cases such labels had been used for a considerable period of time, and in both cases the defendants were alleged to be conducting their business in such manner as to deceive those who dealt with them. But in neither case did the bill show that the complainant or those whom he represented had any property right in the goods labeled. In referring to the bill then before him, Vice-Chancellor Van Fleet said that it was defective in this respect: It did “not show that the complainants have applied their mark or label to a vendible commodity of which they are the owners or in which they trade, and that they have put such commodity, marked with their mark, on the market.” The case in hand discloses the same defect. It is not anywhere alleged that the association of journeymen hatters, on whose behalf complainant sues, are the owners of or that they are trading in the hats or caps to which the label is applied or -that they have ever put them on 'the market. Without overruling this decision it would be impossible to give complainant relief on the ground of the ordinary practice of courts of equity in dealing with trademarks or labels. The case of Schneider v. Williams has been followed in Weener v. Brayton, 152 Mass. 101, and a similar conclusion has been reached in McVey v. Brendel, 144 Pa. St. 235.

But it is said that the statute has conferred a new right upon these associations. The first act was passed in March, 1889, the year after the decision in Schneider v. Williams and presumably in view of that decision. It authorizes the court to enjoin the manufactur, use or display of labels made to counterfeit the labels adopted by associations or unions of workingmen.

This act is attacked as being contrary, to that.provision of the constitution of this state which prescribes that the legislature shall not pass private, local or special laws “granting to any corporatipn, association or individual any exclusive privilege, immunity; or franchise whatever.” The argument is that the legislature has conferred upon, associations or unions of workingme.n a right of property in labels or trade-marks which; it has not conferred upon other citizens.

What is the nature,of the right conferred? Section 1 (Gen. Stat. p. 3678) enacts that it shall be,lawful for associations:and unions of wbrki-ngmen to adopt for their protection, labels-, trademarks and forms . of advertisements announcing that goods manufactured, by members of such associations or unions are as manufactured. By section 2 it is enacted that persons counterfeiting, these labels., &c.,, shall be guilty of a-misdemeanor,punishable by .fine and imprisonment, and by section 3 it is further enacted that every association or union adopting a label may proceed by suit in the courts of this state “ to enjoin the manufacture, use, display or salé of any such counterfeits, and that all courts. having jurisdiction thereof (1) shall grant an injunction to restrain and prevent such manufacture, use, display or sale,” (2) shall award the complainant damages, (3) shall require the defendants to pay to the party injured the profits, derived from such use, and (4) shall order the counterfeit destroyed.

Now, it seems to me, by these, provisions, the legislature has sought to convert what was only an imperfect right — that is, a right incapable of being asserted in a court of justice against those who.violate it; — into a complete and perfect one — a right protected by both criminal and civil sanctions. Before its passage the right of property in a label or trade-mark could only be asserted by those who owned or traded in the goods to which it was applied. After its passage it was to become a'species of property per se, without any reference to whether the owner of the label or trade-mark owned or traded-in. the goods, to which it. was applied,o,r not, or to whether it had ever been applied to any goods or not.

This new property right was, however, by the act of 1889, given only to associations or unions of workingmen. Ho doubt these words apply to unincorporated as well as to incorporated associations and unions. Giving to them this their widest signification, it is self-evident that they embrace neither associations nor unions other than associations or unions of workingmen, nor individual citizens. What, then, the legislature has done is this: It has sought to give to some associations and to some individuals a right or privilege which it has not given to other associations and to other individuals. On this two questions arise — Is the right in question a “ privilege ” within the meaning of the constitution ? and if a privilege, is it one which may be given solely to associations or unions of workingmen ?

There are two cases which seem to me to have an important bearing on the first question—Alexander v. Elizabeth, 27 Vr. 71, and State v. Post, 26 Vr. 264. In the former case it was held that an act which conferred upon the owners of certain racetracks then existing a right to obtain licenses on conditions moré favorable than were accorded to persons who might thereafter wish to obtain them, was a special law granting an exclusive privilege. This privilege was a right conferred upon some persons to acquire, on more favorable terms, what all other persons might acquire on less favorable terms. If it had been given exclusively to those who were more favored and withheld altogether from others, the vice entering in the legislation would have been still more apparent. In State v. Post it was held that a right to plant oysters, given only to those citizens of the state now using any grounds lying under the tidewater of the state for the planting of oysters, was also a privilege within the mean ing of the constitution, and that inasmuch as the class to which this right was given was a class less extensive than the whole class of citizens who might thereafter wish to plant oysters, subject to such general regulations as the legislature might prescribe, it was special and therefore unconstitutional.

These cases seem to me to be in point. If the rights there accorded were privileges within the meaning of the constitution, then it appears to follow that the exclusive right to use the words, figures and designs contained in labels or trade-marks given to unions of workingmen, must be equally a privilege, and a privilege, too, of considerable value. The right to the absolute ownership of a distinguishing mark or design, protected by all the sanctions of the law, which may indicate either the origin of the article made, aside from ownership, or the bodies or persons who may have examined or approved it, is undoubtedly a valuable right to many persons under many circumstances.

It being clear that this right so conferred upon associations or unions of workingmen is a privilege, in the constitutional sense, the question then is whether it is a privilege which may be given solely to associations or unions of workingmen — that is, whether the law which confers it is, or is not, special. It is so, unless it embraces the entire class of persons to whose condition or needs it may be appropriate.

The law conferring the privilege must, in the language of Mr. Justice Knapp, in Randolph v. Wood, 20 Vr. 88, “ embrace all and exclude none whose condition and wants render such legislation equally necessary or appropriate to them as a class.” Now, the act in question does not embrace all whose condition and wants render such legislation appropriate. In the first place, it extends only to associations or unions of workingmen, not to individual workingmen, even though those workingmen may be members of an association or union. It would, I think, be difficult to assert that individual workingmen who have acquired a reputation for what they make might not derive the same kind of benefit- in greater or less degree from the right to adopt a label protected by the law that associations might derive from it. In the second place, giving to the word “workingman” a very broad significance, a significance perhaps broader than fairly belongs to it, and conceding it to include all who work, whether with their hands or with their brains, it could not be held to embrace partnerships, some of whose members contribute capital only, or corporations engaged in manufacturing or trading, and yet some of these firms and companies might find it convenient to have the same privilege, protected by the same sanctions, as is accorded to unions of workingmen, for this right is broader than the ordinary right to labels and to trade-marks properly so called. It seems plain, therefore, that this act does exclude from its operation some classes of persons to whom such legislation would be appropriate, and it is, therefore, open to the constitutional objection of being a special law. In State v. Julow, 129 Mo. 163, much the same question was involved. The court was there considering the constitutionality of a statute which made it unlawful for employers to discharge members of labor unions on the ground of their membership therein. It was said: “ The statute does not relate to persons or things as a class, to all workingmen, but only to those who belong to some lawful organization or society, evidently referring to a trade union, labor union, &c. "Where a statute does this — where it does not relate to persons or things as a class, but to particular persons and things of a class — it is a special as contradistinguished from a general law.”

But it is said that the defect is cured by the act of 1892, as amended by the act of 1895. Gen. Stat. p. 3679. That act so amended provides that whenever any person or any association or union of workingmen has adopted or shall adopt any label, &c., it shall be unlawful to counterfeit it and to use and sell the counterfeit. Thus worded, it embraces, no doubt, all kinds of persons and associations. Cohn v. People, 149 Ill. 486. The word “ person ” is inserted and the word “ association ” is divorced, by the mode of expression, from its exclusive relation to workingmen. The insistment on the part of the defendants is that this supplement does not comply with the constitutional requirement that “ every law shall embrace but one subject, and that shall be expressed in its title.” The title of the act of 1892 is “A further supplement to an act entitled 'An act to protect trade-marks and labels.’” The title of the act of 1895 is ''An act to amend an act entitled 'A further supplement to ah act entitled “An act. to protect trade-marks and labels,”’ approved March 23d, 1892.” Now, the difficulty arises here. There is upon our statute-books no act entitled “An act to protect trademarks and labels.” The original act of 1889, whose provisions I have already discussed, is styled “An act to provide for the adoption of labels, trade-marks and forms of advertising by associations or unions of workingmen and to regulate the same.” This was the only act upon our statute-books relating to the subject of labels and trade-marks when the act of 1892 was passed. Under these circumstances, we may deal with the title of the act of 1892 in two ways — we may consider it literally or we may read it as referring to the act of 1889.

If we take it literally, it clearly fails to conform to the constitutional provision above mentioned. “ The criterion in these cases,” says the late chief-justice, in Falkner v. Dorland, 25 Vr. 410, “ is to ascertain as closely as practicable what impression, as to the object of the statute, its titular expression is calculated to disseminate.” The expressed object of the title under consideration is to supplement another act, viz., an act entitled “An act to protect trade-marks and labels.” But as there is no such act upon our statute-books it cannot be supplemented. The expressed object of the act of 1892 is therefore incapable of being effectuated. The title “ is erroneous in the worst degree, for it is misleading.” Taken literally it cannot be sustained.

But it is not necessary that the title of the amended act should be set out in hœc verba. Thus an act the title of which was “An act to amend the several acts in relation to the city of Eochester,” was held to sufficiently express its object (People v. Briggs, 50 N. Y. 554), and in State v. Woolard, 119 N. C. 779, it was said that if sufficient appears in the title to make it clear beyond cavil what prior act is referred to, it will be good. Does it clearly appear in the title of the act of 1892 that the prior act referred to is the act of 1889? While I think this may admit of some doubt, I will assume that because there was only one act upon our statute-books relating to this subject the title of the act of 1892 is to be read as referring to that. Taking this view of the matter, and this is the view that is most favorable to complainant, we are met with another difficulty. The act then becomes a supplement to an act to provide for the adoption of labels, &c., by associations or unions of workingmen. To this restricted object the act itself, in its body, must be limited.

Says Mr. Justice Depue, in Dobbins v. Northampton, 21 Vr. 499, “ the enacting part of a statute, however clearly expressed, can have no effect beyond the object expressed in the title. To maintain any part of such a statute those portions not embraced within the purview of the title must be exscinded, and if the superaddition to the declared object cannot be separated and rejected the entire act must fail.” In that ease the operation of the act was, according to its title, limited to certain townships; in its body it extended to all townships. It was held that it must be construed in subordination to its title, and that so construed it was open to the constitutional objection of being special. To the same effect are Shivers v. Newton, 16 Vr. 469; Evernham v. Hulit, 16 Vr. 53; Falkner v. Dorland, 25 Vr. 409. The case in hand differs only from the cases just cited in this: In the cases cited the body of the act was, in the first instance, sufficiently general. In the case under consideration the body of the act, when passed, was as special as the title and only became general by amendment. But this, in principle, can make no-difference, and so, if authority were needed, the cases hold. State v. Bowers, 14 Ind. 198; Hyman v. State, 87 Tenn. 109; Tingue v. Village of Port Chester, 101 N. Y. 294.

It was contended by counsel for complainant that the title of the act of 1889 might be so construed as to make it sufficiently general; that the words “the same” might be read as referring to labels, trade-marks and forms of advertising generally, and not merely to those adopted by associations or unions. If the title in any part of it had dealt with the general subject of labels, trade-marks and forms of advertising, this construction might be possible. But it does not; it only deals with labels, trademarks and forms of advertising by associations or unions. This-limited class of labels, &c., is therefore the only antecedent to which the word “same” can by any possibility refer. There is no-other. In Stockton v. Central Railroad Co., 5 Dick. Ch. Rep. 70, the title under consideration was “An act to authorize the formation of railroad corporations and to regulate the same.” There the title was by construction read thus: “An act to authorize the-formation of railroad corporations and to regulate railroad corporations.” So construed it embraced not only companies organized under that act, but all railroad companies. Had the title read “An act to authorize construction of railroads by companies using steam for their motive power,” I hardly think the court would have been warranted in reading the word “ same ” as referring only to the word “ railroads,” to the exclusion of the qualifying words “ by companies p. e., constructed by companies] using steam for their motive power,” thus making the act applicable to companies using electricity, horses or other force. The title under consideration plainly has reference not to labels, &c., generally, but only to those adopted by associations or unions of workingmen, and the word “ same ” can refer only to the labels, &c., so adopted.

I have thus far considered the case on the assumption that the act referred to in the title of the act of 1892 is the act of 1889. It may be suggested that the words of reference are not sufficiently clear to justify this assumption, and that what the legislature really intended to do by the act of 1892 was to legislate for the first time on the general subject of labels and-trade-marks. To give effect to this supposed intention we must drop the words “ further supplement ” and read the title thus — ■ “An act to protect trade-marks and labels.” To do this, however, would be to make a new title, not to take that already made by the legislature. I do not think it has ever been decided that the court may reject a part of the title for the purpose of saving the act. If it may, then a title which expresses a double object can easily be converted into one which expresses a single object. And if the court may reject words I do not see why it may not add them. But the very numerous decisions on this subject in our courts do not give the slightest intimation that the judicial branch of our government possesses any such power. They do show very conclusively that it does not. Those of them which have been adverse to the constitutionality of the legislation under review ought, on the assumption that the court could add or reject words, to have been differently decided. The fact is that the court has no more power to reconstruct the title than it has to remodel the act itself. It must take both the title and the body of the act as it finds them and consider them accordingly.

I have thus far considered the case as affected by the statutes on the subject which have been enacted up to the time the bill was filed. On April 16th, 1897, the legislature passed an act to amend and correct” the titles of the acts of 1892 and 1895 and “ to declare the true intent and purpose of the titles hereby amended and corrected.” This act provided that the title of the act of 1892, entitled “A further supplement to an act entitled ‘An act to protect trade-marks and labels,’ ” should be amended so as to read, “A supplement to an act entitled ‘An act to provide for the adoption of labels, trade-marks and forms of advertising by associations or unions of workingmen and to regulate the same.’” The title of the act of 1895 was amended in like manner. Assuming that the act of 1897, section 3 of which provides that it shall be retrospective in its operation, is a proper subject of consideration, it is manifest that it is open to the objection heretofore pointed out, viz., that, although a title might easily have been framed sufficiently broad to embrace the whole subject of trade-marks and labels, the title as actually framed only extends to labels and trade-marks adopted by associations or unions of workingmen. As the title does not go beyond these associations or unions, the body of the original act or of any supplement thereto cannot go beyond them. As it cannot, the restricted legislation in question, as already shown, is open to the objection of being a special law, granting an exclusive privilege.

I have not thought it necessary to consider the other objections raised on the demurrer. I may say, however, that the bill, taken as a whole, does not make, it very clear whether the label in controversy is that of the Union Hat Makers’ Association or that of the United Hatters of North America. In Schedule B it is certified that it is the label of both organizations, but those portions of the constitution of the United Hatters set forth in the body of the bill would seem to indicate that it is under the exclusive control of the general organization. It is expressly stated in section 10 of the bill that the label counterfeited by defendants is the label of this general organization, and it is alleged in section 11 that any use made of the genuine label by the defendants, who are not entitled to use it, is in violation of the constitution of the United Hatters, not of the local association. The bill does not show what is the right of the local association, if any, in the label, or how, as against the general association, it may be or has been adopted by it within the meaning of the statute.

The demurrer should be sustained.