Gambar halaman
PDF
ePub
[ocr errors]

The word “necessity” in Code 1904, $, a canal improvement, should not be con. 1038, as amended by Acts 1908, c. 349, au- strued as meaning indispensably requisite, thorizing any city or town to acquire land and the construction of the clause in which necessary for the acquisition and operation it occurs is not to be limited to the particuof waterworks and other public utilities, but lar contract in which the clause is found, as no property shall be condemned, unless the the contract is for only a portion of an entire necessity therefor shall be shown to exist, improvement and must be construed in the does not mean absolutely necessary, but rea- light of the whole work, and it may be consonably necessary for the greatest benefit to strued as meaning reasonably necessary, and the public with the least inconvenience and the changes provided for as being those needexpense. Miller v. Town of Pulaski, 75 S. E. ful, requisite, or desirable, but not extrava767, 768, 114 Va. 85.

gant or wasteful of public funds, or made

without the exercise of sound discretion, or NECESSARY AND PROPER

arbitrary or such as substantially changed The words "necessary and proper," as the nature of the cost of the work. What used in the provision of the federal Constitu- changes are necessary in the contract is a tion declaring that Congress shall have pow- question for the courts. Ferguson Coner to pass all laws which are “necessary and tracting Co. v. State, 126 N. Y. Supp. 808, proper" for carrying into execution the pow- 811, 70 Misc. Rep. 472. er to regulate commerce between the states,

A contract for the construction of a secetc., do not imply the employment of only such means as are absolutely necessary to tion of the state barge canal, including a effect the object sought, but include as well lock, reserved to the state the right to make all the means which in the judgment of Con- deductions from the work, or such changes in gress may be proper to carry out the power

the plans as might be necessary, and that the so granted. United States v. Hoke, 187 Fed. contractor should make no claim for any 992, 991.

loss of profits resulting from any change so

made, and stated that the contractor had satThe allegation in an information that isfied himself by investigation as to the conthe board of county commissioners did not ditions affecting the work, and that he would make “necessary and proper” rules and regu- make no claim against the state because of lations to prevent the outbreak and spread estimates and representations by any agent of of contagious and infectious diseases is not a

the state, and that the contract should not sufficient allegation that no rules or regula- be invalidated by any changes so made. tions in regard thereto had been made. Cor- Held, that the provision for changes necesker v. Pence, 85 Pac. 388, 391, 12 Idaho, 152. sarily implied reasonable necessity therefor, NECESSARY BRIDGE

and where, by reason of the underlying charCode 1907, § 5765, provides that the court construct the lock on the section covered by

acter of the earth, it became impossible to of county commissioners shall have general the contract, and the state for that reason supervision of the public roads within the eliminated the construction thereof within the county, and may establish new roads and change or discontinue old ones, and shall breach of the contract by the state nor en

section, such change did not constitute a have power to maintain public roads, bridg-title the contractor to recover profits lost by es, and ferries, so as to render travel safe. Section 3024 confers on such court the same 97 N. E. 871, 874, 204 N. Y. 381.

reason thereof. Kinser Const. Co. v. State, powers over bridges as it has over public roads. Section 3025 provides that whenever NECESSARY CHARGES a bridge on the line between two counties is

All other Necessary charges, see All necessary, and the work is too great to be

Other. done by the overseers, the same must be built at the joint expense of such counties. Held, A vote of a town required the selectmen to that the court of county commissioners of insert in any franchise granted a street railone county cannot without the concurrence of way company certain conditions enumerated the court of another county make the latter as to the rails to be laid, and the portion of county liable for the expense of erecting a the street to be paved, and required the combridge on the line of the two counties, for a pany to employ resident laborers at uniform bridge, becomes necessary within the mean- wages, and that there should be but one fare ing of this act only when it has been declared of five cents to any point in another town. so by the concurring judgment of the commis- A second vote provided for a committee to sioners' courts of both counties. Pickens confer with the selectmen, or independently County v. Greene County, 54 South. 998, 999, attend and represent the town on all ques171 Ala. 377.

tions of franchises, etc., to be granted to any

street railway company, which committee NECESSARY CHANGES

was authorized to employ counsel, and a The word "necessary," as used in a con- third vote instructed the treasurer to bortract allowing the state to make necessary row $300 to carry the second vote into effect. changes in the plans and specifications for Held, that the three votes must be construed as a whole, and as in several of the condi- | Co., 86 Pac. 41, 42, 12 Idaho, 418, 10 Ann. tions, the town had no corporate interest, the Cas. 395. scheme as a whole did not constitute a “necessary charge,” within Rev. Laws, c. 25, $

NECESSARY EASEMENT 15, authorizing town officers to appropriate The term "necessary," used to describe money for necessary charges arising in the the easement which may be established by town. Flood v. Leahy, 66 N. E. 787, 183 an implied reservation where there has been Mass. 232.

a unity of possession and a subsequent sale

of a portion of the land over which the easeNECESSARY CONCLUSION

ment is claimed, means there can be no other The word “necessary," as used in an in- reasonable mode of enjoying the dominant struction that negligence must be based on tenement without the easement; there should and be a reasonable, logical, and necessary be an element of absolute necessity. Cherry conclusion from the facts and circumstances v. Brizzolara, 116 S. W. 668, 671, 89 Ark. shown by the evidence, meant beyond the pos- 309, 21 L. R. A. (N. S.) 508 (citing Crosland sibility of a doubt, and therefore rendered v. Rogers, 10 S. E. 874, 32 S. C. 130). the instruction erroneous. Da kan v. G. W. Chase & Son Mercantile Co., 94 S. W. 914, 951, NECESSARY EXPENSES 197 Mo. 238.

Any and all necessary expenses, see Any.

Other necessary expenses, see Other. NECESSARY COST OF PRESERVING ESTATE OF BANKRUPT

Of administrator The claim of a landlord for rent of prem- Under Code Civ. Proc. $ 2730, providises occupied by the receiver and trustee of ing that an administrator may be allowed a bankrupt is entitled to rank as a preferred such necessary expenses actually defrayed claim under Bankr. Act July 1, 1898, c. 541, by him as appears just and reasonable, a § 64b (1), 30 Stat. 563, as a necessary cost litigation can be treated as "necessary" only of preserving the estate. The trustee's com- when it has been prosecuted, not only in missions rank under subdivision 3 as a cost good faith, but also in the exercise of a of administration. An allowance made to the reasonable judgment. In re Huf's Estate, attorney for the trustee for services ordina- 115 N. Y. Supp. 984, 989, 62 Misc. Rep. 600 rily falls within the same subdivision, al-(citing Matter of Huntley, 35 N. Y. Supp. though, when such services were necessary 113, 13 Misc. Rep. 375; Matter of Stanton, to preserve the estate, such claim may be 84 N. Y. Supp. 46, 41 Misc. Rep. 278; St. classified under subdivision 1. In re Grignard John v. McKee (N. Y.) 2 Dem. Sur. 236; EsLithographing Co., 158 Fed. 557, 558.

tate of Peyster, 5 N. Y. St. Rep. 334). NECESSARY DILIGENCE

Of building and loan association "Necessary diligence” is that degree of

The acquisition of a place or home by a diligence which men, ordinarily engaged in building and loan association for the conand acquainted with a particular kind of duct of its business is a “necessary expense.” business, would use in their own affairs. within Ky. St. 1903, 8 863, making provision

for the allowance of necessary and proper Sanderson v. Brown, 57 Me. 308, 312.

expenses from moneys accumulated. Home NECESSARY DISBURSEMENTS

Savings Funds Co. Bldg. Ass'n v. Driver, 112 Under Code Civ. Proc. § 1866, providing S. W. 864, 866, 129 Ky. 754. that “a party to whom costs are awarded in Of city an action is entitled to include in his bill Furnishing light and water for public of costs 'necessary disbursements' as follows: purposes is a "necessary purpose," and the

The legal fees paid stenographers cost thereof is a “necessary expense” of mufor per diem or for copies;

the nicipalities furnishing the same. Wadsworth reasonable expense in making transcript for v. City of Concord, 45 S. E. 948, 950, 133 N. C. the Supreme Court”—the fact that copies of 587. the testimony were ordered during the trial

The construction of water and electric and prior to a final decision, being paid for light plants is a necessary expense, within by the parties obtaining them, did not pre Const. art. 7, § 7, providing that no municipal vent a recovery of the amount paid for them corporation shall contract any debt, except within the limitation fixed by statute; such for the “necessary expenses" thereof, unless copies being necessary to secure a review of by vote of the majority of the voters therein, the case.

Montana Ore Purchasing Co. v. and the indebtedness therefor need not be Boston & Montana Consol. Copper & Silver approved by popular vote; but under Code, Min. Co., 84 Pac. 706, 707, 33 Mont. 400.

88 3800, 3821, authorizing municipal corpora If a witness can recover compensation tions to levy taxes, and providing that their from the litigant who procured his attend-debts shall be paid only by taxation, they ance, the sum so paid would undoubtedly be have power to contract and provide for paya “necessary cost or disbursement” in the ment for such improvements, in the absence action, Anderson . Ferguson-Bach Sheep' of a charter provision forbidding them to do

[ocr errors]
[ocr errors]
[ocr errors]

Fawcett v. Town of Mt. Airy, 45 S. E. , to invest a district attorney with much dis1029, 1030, 134 N. C. 125, 63 L. R. A. 870, cretion in determining what expenses are 101 Am. St. Rep. 825.

necessary; the term "necessary expenses" The protection of a town from fire and being a flexible one, to be applied in the disdisease by providing water and sewerage is a

trict attorney's discretion, depending on the

Peo"necessary expense,” within the meaning of circumstances of each particular case. Const. art. 7, § 7, and Revisal 1905, & 2974, ple ex rel. Koetteritz v. Board of Sup'rs of providing that no municipal corporation shall Herkimer County, 132 N. Y. Supp. 808, 810, contract any debt, pledge its faith, or loan

148 App. Div. 392. its credit, nor shall any tax be levied or col- Of execution of will lected by any officers of the same except On appeal from the decree of a probate for the necessary expenses thereof, unless by court proving a will, the executor named in a vote of the majority of the qualified voters the will may, if acting in good faith, prosetherein, and, therefore a vote of the people cute the probate in the appellate court at is not required to render bonds issued to pro- the expense of the estate, and the reasonvide waterworks and a sewerage system valable expenses incurred by him in so doing, id, in the absence of statutory restrictions en- are “necessary expenses incident to adminacted under Const. art. 8, § 4, making it the istration.” Hazard v. Engs, 14 R. I. 5, 9. duty of the Legislature to restrict the power

Of guardian of cities to tax, borrow money, contract debts, or loan their credit. Underwood v. Town of not a liability of the guardian ad litem, and

A judgment against the ward for costs is Asheboro, 68 S. E. 147, 152 N. C. 641.

payment thereof by him is not, under ordiThe expense of maintaining the streets nary circumstances, to be recognized as a of a town in a proper manner is a “neces- necessary expenditure. In re McNaughton's sary expense,” within Const. art. 7, § 7, for- Will, 118 N. W. 997, 1006, 138 Wis. 179. bidding a municipality to contract a debt, etc.,

Of schools except for a necessary expense, without a

Graded school districts are public quasi popular vote. Town of Hendersonville v. Jordan, 63 S. E. 167, 168, 150 V. C. 35.

corporations within the term “municipal cor

poration," as used in Const. art. 7, § 7, proIn the absence of any legislative restric-hibiting any city, town, or other municipal tion on taxation and the contracting of debts, corporation from contracting debts except there is no objection to the issuance of for necessary expenses, unless by vote of the bonds for the necessary expenses of a town, qualified voters; so that a graded school without a popular vote authorizing the same; district could not issue bonds to erect a and bonds issued by a town, for the pur- school building unless their issue was appose of extending and enlarging its water proved by a majority of the qualified voters; and sewerage system and making street im- the erection of a school building not being a provements, fall within the class of “neces- "necessary expense" within section 7. Ellis sary expenses.” Town of Murphy v. C. A.

v. Trustees of Graded School of Oxford, 72 Webb & Co., 72 S. E. 460, 461, 156 N. C. 402. S. E. 2, 3, 156 N. C. 10 Working the roads is a "necessary ex

Of sheriff pense,” within Const. art. 7, § 7, forbidding

The sum allowed a sheriff for "necesthe levy of any tax by municipal corporations except for the necessary expenses there- sary expenses," under the statute, covers of unless by a vote of the majority of the and delivering convicts and lunatics to the

reasonable help and expenses in transporting qualified voters. Crocker v. Moore, 53 S. E.

penitentiary and asylum. Lenhart v. Cam229, 230, 140 N. C. 429.

bria County, 64 Atl. 876, 216 Pa. 25. Of condemnation proceedings

Of state The use of automobiles by commissioners

Under Const. art. 5, $$ 30, 31, requiring of appraisal in condemnation proceedings is not a “necessary expense” or “necessary nothing but appropriations for the "ordi

the general appropriation bill to embrace traveling expense,” which under Laws 1905, c. 725, § 5, and chapter 724, § 32, is to be al- nary” expenses of government, and prohibitlowed them, there being railroads, on which ing the appropriation of money except in many trains run, going very near all parts fraying the “necessary” expenses of govern

specified cases, among which is included deof the lands, and livery teams being accessible; the statute contemplating the ordi- ment, unless by a two-thirds vote of the Leg

islature, extraordinary expenses may be "necnary method of travel. In re Bensel, 124 N. Y. Supp. 716, 723.

essary," and may be authorized by a

jority vote. State v. Moore, 88 S. W. 881, of district attorney

883, 76 Ark. 197, 70 L. R. A. 671. County Law (Consol. Laws 1909, c. 11) $ 240, subd. 1, provides that the expenses nec- NECESSARY FOOD essarily incurred by the district attorney in Rev. St. 1909, $ 4492, provides that if criminal actions or proceedings arising in any father without lawful excuse neglects to his own county are a county charge. Held' provide such infant with "necessary” food,

ma

etc., he shall be punished. Defendant and construction of deeds. By these is not meant
his wife separated, the wife going to her a physical necessity, but a logical necessity.
father's house, taking with her one child of Where a clause is enlarged in its effect be-
the marriage, and another was born at the yond the import of the words used on the
house of the wife's father, and both the chil- theory of an intent established by an impli-
dren were there supplied with all necessary cation, it must be necessary to so enlarge it
food, etc. Defendant after the separation in order to give effect to the plain and ex-
contributed nothing to their support. Held, press provisions of other clauses, or the prob-
that "necessary" food, clothing, and lodging, ability of intent must be so strong that the
as used in the statute, is food, etc., which the contrary thereof cannot be supposed. Grif-
infant actually needed at the time; and that fin v. Fairmont Coal Co., 53 S. E. 24, 65, 59
as the infant children were receiving neces- W. Va. 480, 2 L. R. A. (N. S.) 1115.
sa ry food, etc., defendant was not guilty.

NECESSARY INDEBTEDNESS
State v. Thornton, 134 S. W. 519, 520, 232
Mo. 298, 32 L. R. A. (N. S.) 841.

The word "necessary,” as used in the

Constitution and laws of Montana, providNECESSARY FOR THE JOURNEY ing for the extension of the constitutional See Money Necessary for the Journey.

limit of municipal indebtedness when such

increase is “necessary" to construct a sewerNECESSARY FURNITURE

age system or procure a supply of water, on The words “necessary furniture," as used ratification by a vote of the taxpayers, dein Illinois Administration Act, $ 74 (Starr & fines the condition of affairs which requires C. Ann. St. 1896, c. 3, par. 74), allowing the the additional indebtedness. The condition widow certain articles of property, such as

must be such as to create the necessity. If bedsteads, bedding, and household and kitch- a municipality is not indebted in any amount en furniture, necessary for herself and fam- at all, or if it has the necessary funds in its ily, must be construed with reference to the treasury, no additional indebtedness can be circumstances and mode of life of the par- incurred; nor can it be said that any neties, and mean the ordinary and appropriate cessity has arisen demanding it. A city could furniture for such homesteads. Gillett v. only avail itself of the privilege of extension Gillett, 69 N. E. 942, 945, 207 Ill. 136 (quot- when the financial condition of the city reing Strawn v. Strawn, 53 Il. 263).

quired a resort to it, and could not arbitra

rily declare a debt to be in the extended limNECESSARY IMPLICATION

it when the city was not indebted to the con

Butler v. Andrus, 90 Pac. Plain implication synonymous, see Plain stitutional limit. Implication.

785, 786, 35 Mont. 575. By “necessary implication" as used in NECESSARY INJURY the rule that it is possible for a testator to "The 'necessary injury' resulting to a dispose of property by necessary implication parent from the negligent killing of his minor from his will, taken as a whole, is meant so child, within the meaning of the damage act strong a probability of intention that an in- (Rev. St. 1899, $ 2866), consists in the loss tention contrary to that which is imputed to of services of the deceased during minority, the testator cannot be supposed. Coberly v. the cost of nursing, surgical and medical atEarle, 54 S. E. 336, 339, 60 W. Va. 295 (cit- tendance, and appropriate funeral expenses." ing Bartlett v. Patton, 10 S. E. 21, 33 W. Va. Coleman v. Himmelberger-Harrison Land & 71, 5 L. R. A. 523; Graham v. Graham, 23 Lumber Co., 79 S. W. 981, 987, 105 Mo. App. W. Va. 36, 48 Am. Rep. 364; Beard v. Beard, 254 quoting and adopting definition in Rains 22 W. Va. 130; Irwin v. Zane, 15 W. Va.

v. St. Louis, I. M. & S. Ry. Co., 71 Mo. 164, 616).

36 Am. Rep. 459). "Necessary implication” means, not nat- The term "necessary injury," as used in ural necessity, but so strong a probability Rev. St. 1899, $ 2866, relating to damages in of an intention that an intention contrary to death actions, authorizing damages not exthat which is imputed to the testator cannot ceeding $5,000, as may be deemed fair and be imposed. Galloway v. Durham, 81 S. W. just with reference to the "necessary injury." 659, 660, 118 Ky. 544, 111 Am. St. Rep. 300 resulting to the surviving parties, etc., does (quoting 1 Ves. & B. 468).

not include more than pecuniary injury. "Necessary implication," in cases on the Brunke v. Missouri & K. Telephone Co., 87 construction of instruments, means, not nat. S. W. 84, 85, 112 Mo. App. 623. ural necessity, but so strong a probability of Under Rev. St. 1899, § 2865, authorizing intention that an intention contrary to that an action for the death of a person caused by which is imputed cannot be supposed. Tut- wrongful act, etc., and section 2866, providing tle v. Woolworth, 77 Atl. 684, 686, 74 N. J. that the jury may give such damages as they Eq. 310.

may deem fair and just with reference “to The phrases "plain implication" and the necessary injuries resulting from” such "necessary implication” have exactly the death, the measure of damages in an action same meaning, when used in reference to the' by a parent for the wrongful death of his minor son does not include loss of comfort ! on the death of the grantee in a deed sougnt and society of the son; the words "neces- to be set aside for fraud. Hagan v. McDersary injury" meaning "pecuniary injury,” | mott, 115 N. W. 138, 140, 134 Wis. 490. But and confining damages to property loss. not an agent to whom a deed absolute in Marshall v. Consolidated Jack Mines Co., 95 form was executed as security for a debt to S. W. 972, 973, 119 Mo. App. 270.

the principal. In re Russell's Estate, 84

Pac. 155, 156, 148 Cal. 768. NECESSARY LITIGATION Litigation to determine doubtful ques- have an interest in the subject and object of

“Necessary parties” are all those who tions as to the liability of transferees for the the action, and all persons against whom inheritance tax, and delays occasioned there relief must be obtained to accomplish the by, is "necessary litigation or other unavoidable delay," within Laws 1903, p. 69, c. 44, 8 line Canal & Reservoir Co., 98 Pac. 16, 19,

object of the suit. McLean v. Farmers' High6, providing that in such case the penalty of

44 Colo. 184. 10 per cent. interest for nonpayment of the tax shall not be imposed. State v. Pabst, 121

“Parties in equity are: (1) Formal parN. W. 351, 361, 139 Wis. 561.

ties. (2) Persons having an interest in the

controversy, and who ought to be made parNECESSARY PARTIES

ties in order that the court may act on that See Not a Necessary Party.

rule which requires it to decide on, and final

ly determine, the entire controversy, and do Persons who not only have an interest in the controversy, but an interest of such a involved in it. These persons are commonly

complete justice, by adjusting all the rights nature that a final decree cannot be made termed 'necessary parties’; but if their interwithout affecting that interest, or leaving the ests are separable from those of the parties controversy in such a condition that its final before the court, so that the court can prodetermination may be wholly inconsistent

ceed to a decree, and do complete and final with equity and good conscience, are "necessary parties.” Disbrow v. Creamery Pack- before the court, the latter are not indis

justice, without affecting other persous not age Mfg. Co., 115 N. W. 751, 752, 104 Minn. pensable parties. (3) Persons who not only 17; Perkins v. Hendryx, 149 Fed. 526, 528. have an interest in the controversy but

The words "necessary" and "indispensa- an interest of such a nature that a final ble" have sometimes been considered synony- decree cannot be made without either affectmous, and parties in equity have been classi- ing that interest, or leaving the controversy fied as "necessary parties” and “proper par- in such a condition that its final termination ties." Railroad Commission of Georgia v. may be wholly inconsistent with equity and Palmer Hardware Co., 53 S. E. 193, 195, 124 good conscience.” “The relation of an inGa. 633.

dispensable party to the suit must be such A distinction has been recognized be that no decree can be entered in the case tween necessary and indispensable parties, to which will do justice between the parties acascertain whether some of those, who under tually before the court, without injuriously the established rules of equity pleading and affecting the rights of such absent party." practice were deemed necessary, may not,

United States v. Allen, 179 Fed. 13, 21, 103 under such rules, be dispensed with as par. in Shields v. Barrow, 17 How. [58 U. S.) 130,

C. C. A. 1 (quoting and adopting definition ties, that equitable relief in a given case may 139, 15 L. Ed. 158; Waterman v. Canal-Louisinot wholly fail. Mathieson v. Craven, 164

ana Bank & Trust Co., 30 Sup. Ct. 10, 215 U. Fed. 471, 475.

S. 33, 49, 54 L. Ed. 80). “ 'Necessary parties,' when the term is

The use of the word “indispensable," as accurately used, are those without whom no

distinguished from "proper” or “necessary," decree at all can be effectively made deter

parties is stated in the citation of a case mining the principal issues in the cause." Leonard v. Pierce, 75 N. E. 313, 315, 182 N. holding that an indispensable party is one

whose interest in the subject matter of the Y. 431, 1 L. R. A. (N. S.) 161 (quoting and controversy is such that a final decree cannot adopting definition in Pomeroy's Remedies & be rendered between the other parties to the Remedial Rights, $ 329).

suit without radically and injuriously affectAll persons who are interested in the ing his interest, or without leaving the consubject-matter of a suit, and who will be troversy in such a situation that its final affected by the results thereof, are “necessa- determination may be inconsistent with equiry parties.” Sweeney V. Foster, 71 S. E. ty and good conscience. Defendants who 548, 550, 112 Va. 499. Such as beneficiaries were joined in a suit in a state court to and trustees. Mitau v. Roddan, 84 Pac. 145, recover an interest in lands only as trustees 147, 149 Cal. 1, 6 L. R. A. (N. S.) 275; Benton holding the paramount title in trust, and v. Benton, 115 Pac, 535, 536, 84 Kan. 691. Or whose title as such was not disputed, held the owners in proceedings to condemn land. not indispensable parties, whose citizenship Kansas City Interurban Ry. Co. v. Davis, 95 and residence in the same state as comS. W. 881, 884, 197 Mo. 669, 114 Am. St. Rep. plainant would prevent a removal of the 790. Or the persons in whom the title vested cause by the other defendants, who were the

« SebelumnyaLanjutkan »