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from the borough of Madison. It ap- the mere incidents of the business, peared that no passengers were taken which constitute the subject of taxaon or discharged within the corporate, tion.” bounds of Madison, except at the In a Massachusetts case involving a terminus. Passengers were not car- tax on one who operated an omnibus ried from place to place in Madison. between Boston and Roxbury for the The municipal regulation provided for carriage of passengers for hire, it a license tax on all persons using ve- was held that a statute authorizing hicles for hire for the transportation municipalities to regulate hackney of passengers “within the borough of coaches and other vehicles did not auMadison.” The decision of the court thorize the imposition of a license tax was to the effect that the act was by the city of Boston upon carriers meant to apply only to a local, and not operating from other towns. Com. v. an interborough, business, and the Stodder (1848) 2 Cush. (Mass.) 562, court declared that if the ordinance 48 Am. Dec. 679. had necessarily included the latter it In St. Charles v. Nolle (1872) 51 would have been declared invalid. Mo. 122, 11 Am. Rep. 440, a city whose

So, a city empowered by statute to charter provided that the mayor and make and establish ordinances to li- council should have power to provide cense and regulate cartmen and other for licensing, taxing, and regulating vehicles used for the transportation of hacks, drays, and other vehicles used passengers, baggage, etc., is not au- within the city for pay, and further thorized to require a license tax for provided that it should have power to revenue from a cartman, having his pass ordinances for the regulation and stand and living in another city, who policing of the city, was held to have comes into the city enacting the ordi- no authority by virtue of its charter to nance, for several loads of furniture impose a license tax on wagons owned to be carried to the city where he re- by a nonresident, which were used for sides. Cary v. North Plainfield (1886) hire to carry property from places out49 N. J. L. 110, 7 Atl. 42, affirmed in side of the city to a place within its (1887) 50 N. J. L. 176, 17 Atl. 1103. limits. The court said: “The inconvenience But it has been held that a city havattendant upon the exercise by every ing the right to exercise exclusive conmunicipality in the state of the power trol over all streets within its limits, of excluding from its limits all unli- and which is given the power to regucensed vehicles engaged in transport- late and license merchants of all ing goods or passengers for hire is kinds, drays and all other vehicles, has manifest. Its legitimate operation authority to impose a license fee upon would require the owners of such ve- a transfer company having its office in hicles to obtain licenses not only from another city which is but a few miles the authorities of the place where from the city enacting the ordinance, their business had its headquarters, it appearing that these two cities and but also from every neighboring town one situated between them comprise into which their casual engagements one trade area and district, from might call them, or else to unload which the company obtains its transtheir vehicles at the border line. Á fer business; and this was held to be general law having effects so burden- true although the company had only some or so absurd is not to be antici- transferred property from points outpated, and only unequivocal language side the city to points within, and from could convince a court that such legis- points within to points without, and lation was intended. The statute now had refused to transport property under review is not of this character. from one point within the city to anIts terms are satisfied by holding that other point within its limits. Carterlicense taxes are to be imposed only by ville v. Blystone (1911) 160 Mo. App. that municipality in which the busi- 191, 141 S. W. 701; Joslin Transfer ness or occupation is carried on or & Storage Co. v. Carterville (1911) 160 conducted. It is the business, and not Mo. App. 186, 141 S. W. 705. The court

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(197 Ky. 674, 247 S. W. 956.) Bastardy - bond – effect of death of principal.

Where bastardy proceedings are civil the death of the principal does not release liability on the bond executed after verdict.

[See note on this question beginning on page 602.]

APPEAL by defendant from a judgment of the Circuit Court for Madison County in favor of plaintiff in an action brought to recover the amount alleged to be due on a bastardy bond. Affirmed.

The facts are stated in the opinion of the court. Messrs. 0. P. Jackson, George T. amount due at the death of his prinRoss, and James Park for appellant. cipal. In the second paragraph he

Mr. G. Murray Smith for appelles. pleaded that the death of his princi

Clay, J., delivered the opinion of pal released him from all further the court:

liability. To this paragraph a deThe question on this appeal is

murrer was sustained, and the whether a surety in a bastardy judgment was rendered in favor of bond executed after verdict is re

the commonwealth for the use of

From that leased by the death of his principal. the mother and child. The question arises in the follow- judgment this appeal is prosecuted.

It is true that it is held in some ing way: On August 8, 1919, Green

jurisdictions that the death of the Kavanaugh, a negro boy who worked for appellant, was found guilty of principal in a bastardy bond releases

the surety. Com. use of Bruce v. bastardy, and adjudged to pay the Moran, 251 Pa. 477, 96 Atl. 1089; sum of $50 per year in quarterly People v. Tice, 272 Ilí. 516, 112 N. E. instalments for a period of twelve 372. These cases proceed on the years, for the support, maintenance, theory that, under the statutes of and education of the child. On

those states, a bastardy proceeding September 11, 1920, he entered into is a criminal proceeding; that the bond, with appellant as surety, for payment of money is a part of the the payment of $550 of the $600 ad- sentence and not a debt; that the judged against him. On January

On January bond is given to insure the perform8, 1922, the accused died, and this ance of the sentence, and, being exaction was brought to recover on the ecuted for the benefit of the people, bond. Appellant answered in two does not create the relation of debtor paragraphs. In the first paragraph and creditor between the reputed he admitted his liability for the father and the people.

. Therefore, when the principal dies, perform- the sums adjudged. In other words,

ance of the sentence the bond contains an absolute unBastardy-bond -effect of death is no longer possi- dertaking to pay a certain sum of of principal.

ble, and the liability money, and the relation of debtor of the surety ceases. The rule in and creditor necessarily follows. this state is entirely different. The Com. v. Smalling, 146 Ky. 197, 142 proceeding is civil and not criminal. S. W. 372; State v. Such, 53 N. J. Its purpose is to compel the father L. 351, 21 Atl. 852. That being to contribute to the support of true, the death of the principal does his own child, and the bond is for not affect the liability of the surety. the benefit of the mother rather The only way in which the surety than the commonwealth. Schooler may be discharged is by the death of V. Com. Litt. Sel. Cas. (Ky.) the child, a contingency provided for 91; Com. v. Wood, 1 J. J. Marsh. by the statute. Ky. Stat. $ 176. It 310. The judgment directs the follows that the ruling of the trial payment of money, and the bond court was correct. is conditioned for the payment of Judgment affirmed.

ANNOTATION.

Death of principal as relieving against liability on bastardy bond. There is a wide diversity of opinion better relief of the township as for among the authorities as to the exact the sustenance and relief of the nature of a bastardy proceeding. In child, for so long a time as the child jurisdictions where the proceeding is should be chargeable to the township, simply to compel the putative father it was held that the death of the to support his child it is almost uni- putative father, the principal in the formly held to be civil in its nature, bond, did not relieve the sureties upon for, to determine the nature of an the bond from liability for the payaction, the court should look not so ment of weekly sums accruing subsemuch to the method of procedure to be quently to the date of such death. followed as to the end to be attained. The opinion draws a distinction beIn a few jurisdictions, however, bas- tween a mere order of filiation, which tardy proceedings are considered to be becomes unenforceable upon death of criminal in nature; this is usually be- the father, and a bond conditioned to cause the statute creating the particu- perform such order, saying that when lar proceeding provides a punish- such bond requires "some act, or ment for the putative father, in ad- series of acts, which may reach bedition to providing for the child's yond the life of the obligor, his death support. In several jurisdictions such does not terminate the obligation. proceedings are considered by the The death of Carpenter did not relieve courts to partake of the nature of both the defendant from an obligation to civil and criminal suits. 3 R. C. L. see that the money was paid accord750, 751. These divergent views, as ing to the terms of the order." might be anticipated, are reflected in In Hoch v. Lord (1831) Thacher, the cases coming within the scope of Crim. Cas. (Mass.) 263, the point unthis annotation; and they are in the der annotation was not presented. If main responsible for whatever diver- an inference may be drawn, it is in gency exists here.

favor of the rule announced in the In State v. Such (1891) 53 N. J. reported case (EMMONS v. Com. ante, L. 351, 21 Atl. 852, an action upon a 601). Pursuant to the order of the bond given by one adjudged guilty in court, the person adjudged to be the a bastardy proceeding, and condi- putative father gave bond with surety tioned to pay to the overseers of the to the mother of the bastard child, poor a weekly sum, as well for the conditioned to pay to her a certain

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sum weekly until the further order of victed criminal “shall be sentenced in the court. It was there held that, addition to the fine aforesaid following the death of the father, and to give security .. to perform there being no one to represent his such order for the maintenance of the estate, the surety, because of his in- said child as the court

shall terest, may present affidavits and peti- direct and appoint." Said the court tion the court for an order relieving

in this latter case:

"The obligations against the payment of further sums, of the convicted defendant to pay the which relief will be granted, both as money named and to furnish the to decedent's estate and the surety, collateral security

are by the where all the facts warrant cessation very terms of the statute an integral of payment. It would appear that the part of the sentence itself. ... We surety had continued payments for cannot adopt as sound, then, the consome time subsequently to the death tention of the appellant that the porof the principal; at least, it is certain tion of the sentence fixing the sum that the considerations moving the to be paid and appropriating it to the court were the total amounts already maintenance of the child can be espaid the mother, the situation of the sentially different from the remainder mother, and the age of the child. of the sentence.

It is difficult In Philadelphia v. Haslitt (1880)

to see

how the fact that a 14 Phila. (Pa.) 138, 37 Phila. Leg. Int. defendant in a criminal case, who, in 386, the principal obligor had been the performance of his sentence, gave convicted in the court of quarter ses- the bond required by it under the sions of fornication and bastardy, authority of the statute, has created a following which, ser ence was im- debt in the ordinary legal acceptation posed for the payment of money for of that term,

or a cause of aclying-in expenses and a weekly sum tion sounding in contract which under for the support of the child, bond with general law would survive his death. surety being required to insure pay

If sound reason, good morals, ment of said weekly sum. It was held or wise policy demand a change in that the death of the principal dis- the legal status of the father of an charged the surety with respect to illegitimate child, such change must arrears accruing thereafter. It is be wrought by the legislative branch plain that the court viewed the order of the government. We but adminfor maintenance as part of a sentence ister the law as we find it.” imposed for the commission of a People v. Tice (1916) 272 Ill. 516, criminal act, intended as personal 112 N. E. 372, reversing (1916) 200 Ill. punishment, and not as creating a App. 617, is governed by the peculiar civil contract.

provisions of the Bastardy Act of that In Com. use of Bruce v. Moran state. The act provided that, follow(1914) 58 Pa. Super. Ct. 362, affirmed ing issue found against the defendant in (1916) 251 Pa. 477, 96 Atl. 1089, in bastardy proceedings, he shall be under a state of facts for all practical condemned by order and judgment of purposes identical with those in the the court to pay to the clerk of said foregoing case, the court arrived at court for the support, maintenance, a similar conclusion, though profess- and education of the child certain ing not to be bound by that decision. sums at regular intervals for a period In this case the bond was conditioned of ten years, security for the perto pay a weekly sum for five years for formance of which must be furnished the maintenance of the child, the by a bond with surety, made payable principal dying about one year after to the state; that, upon default in the filing of the bond.

the payment of any instalment, the As appears from the Moran Case, court shall issue a citation "to the these bonds were exacted by authority principal and sureties in said bond” of the Crimes Act of 1860, providing to show cause, followed by judgment that, following conviction on a charge and execution thereon; and, further, of fornication and bastardy, the con- that upon default the putative father

as

may be adjudged guilty of contempt pel him to support his illegitimate of court, commitment for which, how- child, and therefore the amount which ever, shall not operate to stay or de- the defendant in a bastardy proceedfeat judgment or collection by execu- ing has been condemned by order of tion against the principal and sureties the court to pay for the support of the upon the bond. Under this statute it child does not constitute a debt.” The was held that death of the principal court was further influenced by the discharges the surety to in- language of the provision authorizing stalments accruing thereafter. The a citation upon default, the only remecourt, following a previous decision dy provided for enforcing payment. (Rich v. People (1873) 66 Ill. 513), The court said: “The statute, by proadopted the view that, since under the viding that the court shall issue the statute the bond was made payable to citation to the 'principal and sureties' the state, and since for a default in in the bond, thus presupposes that the payment the father may be proceeded principal is not deceased, and that the against as for contempt and com- default has been wilful upon his part. mitted to jail, and because of the fur- The petition of the mother in this case ther provision that death of the child set up the death of Albert Tice, and should make the bond void, liability disclosed that the default was ocupon the bond constitutes in no sense casioned by reason of his decease. It a debt.

Said the court: “While it was therefore impossible for the court has been uniformly held that a pros- to observe the provisions of the statecution under the Bastardy Act is a ute and issue a citation against the civil and not a criminal proceeding, principal in the bond. As the obligathe object being not the imposition of tion of this bond did not constitute a penalty for the commission of an a debt, the payment of which was immoral act, but merely to compel the guaranteed, in any event, by the suredefendant to contribute to the support ties in the bond, the sureties cannot of his illegitimate child, it has also be held liable for the payment of any been held that the relation of debtor instalments becoming due after the and creditor cannot exist between the death of the principal, unless the statreputed father of a bastard child ute specifically provides that they and the people, who prosecute to com- shall be so liable."

L. S. E.

PAUL MURRAY, Admr., etc., of Mrs. A. G. Murray, Deceased,

v.
STANDARD PECAN COMPANY, Plff. in Certiorari.

Ilinois Supreme Court June 20, 1923.

(309 Ill. 226, 140 N. E. 834.) Principal and agent - agreement to repurchase stock - effect.

1. A corporation authorizing an agent to sell its stock and collect and turn over the money for it is not bound by his agreement to repurchase the stock.

[See note on this question beginning on page 607.] -binding effect of agent's acts. authority to act for his principal, he

2. Generally a principal is not bound must acquaint himself with the extent by the acts of his agent not within of the agent's authority. the scope of his authority.

[See 21 R. C. L. 853.] [See 21 R. C. L. 849.] duty of one dealing with agent.

- effect of taking advantage of agent's 3. When one deals with a special

act. agent or an agent who has only special 4. That a corporation retains the

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