There is the further allegation "that the improvement of said streets involve a total expenditure of over $75,000,000; that the work necessary to be done in and about the carrying out of said ordinance and the making of said improvements under the provisions of the laws of said state of Illinois involved, among other things, the following: The preparation of assessment rolls, accurately setting out a description of each piece of property involved," etc. If that allegation and the connected allegations have any place in the declaration, they must have the purpose of leading readers of the declaration to understand that those things were part of the work plaintiff was employed to do, but the making of the assessment roll and the other matters outlined in that averment are things to be done by the court commissioners under the direction of the court.

[5] All of the work preceding the filing of the petition for condemnation in the court of record was done and the ordinance passed prior to January 1, 1920, yet the declaration shows that the first recommendation of the finance committee, upon which the general order of the city council was later predicated for the employment of plaintiff, was not made until February 5, 1920, so that plaintiff's employment could not have related to work done before passage of the ordinance. There is no allegation or other thing to show that either the report of the finance committee or the order of the council had anything whatever to do with the improvements on Ogden and other avenues, which, it is alleged, were covered by the ordinance.

Directly following the alleged order, imposing the obligation upon the board of local improvements to secure the approval of the committee on finance, is the following: "And be it further ordered that the employment by the board of local improvements of Ernest H. Lyons" [plaintiff], real

estate experts, at $50 per day, be and the same is hereby approved." There is nothing to show, by averment or otherwise, that that order was made in connection with the improvements in question. Despite the fact that those orders were made in February, plaintiff alleges, in the next paragraph, that after numerous conferences he was, at a final conference prior to the 1st day of January, 1920, employed by the chairman of the board of local improvements, and further says that on March 2, 1921, a year and two months after he says he was employed, and after he

had been paid $322,369.93, "such employment was confirmed in a letter written by the chairman of the board of local improvements to plaintiff."

The letter, as averred, recites: "In compliance with this ordinance I am now instructing you to report to this department for work at the compensation fixed by the council, with the understanding that you will remain in the employ of the city during the years 1920, 1921, 1922, 1923, and 1924." The order, averred in the declaration, did not authorize the employment of the plaintiff or anybody else for five years, but, preceding a list of those to be employed, it said: "To employ the following for such periods of time during 1920 as may be necessary." Further, the letter, written a year and two months after it is said the contract was made, and after the work had been done and the money paid, said: "The commencement of your activities in the city's employment will be deemed as acceptance of the conditions named in this letter."

[6, 7] All pleadings are to be construed most strongly against the pleader, and the burden was upon the plaintiff in this case, by clear and unequivocal averments, to set forth such facts as would show that the money paid him was not subject to the assessment made. The declaration is so indefinite and uncertain that it fails to show what work he was employed to do, what work he did do for the money received, or whether his employment was such as to bring him within or leave him without the protection of the rule under con`sideration.

[8] There yet remains for consideration the question as to whether, without regard to the indefiniteness and uncertainties in the averments, any cause of action on any theory is stated. In South Carolina v. United States, supra, after discussing the question hereinbefore adverted to, the court said (page 459 [26 S. Ct. 115]): "It is also worthy of remark that the cases in which the invalidity of a federal tax has been affirmed were those in which the tax was attempted to be levied upon property belonging to the state, or one of its municipalities, or was a charge upon the means and instrumentalities employed by the state, in the discharge of its ordinary functions as a government."

Then, after a review of many cases in the Supreme Court and in various other courts, not including the state of Illinois, the court concludes (page 463 [26 S. Ct. 117]): “Now, if it be well established, as these authorities

say, that there is a clear distinction as respects responsibility for negligence between the powers granted to a corporation for governmental purposes and those in aid of private business, a like distinction may be recognized when we are asked to limit the full power of imposing excises granted to the national government by an implied inability to impede or embarrass a state in the discharge of its functions. It is reasonable to hold that while the former may do nothing by taxation in any form to prevent the full discharge by the latter of its governmental functions, yet whenever a state engages in a business which is of a private nature, that business is not withdrawn from the taxing power of the nation."

In City of Chicago v. Seben, 46 N. E. 244, 245, 165 Ill. 371, 377 (56 Am. St. Rep. 245) the court said: "It is well settled that municipal corporations have certain powers which are discretionary or judicial in character, and certain powers which are ministerial. The powers of such corporations have also been divided into those which embrace governmental duties, such as are delegated to the municipality by the Legislature, and in the exercise of which the municipality is an agent of the state, and those powers which embrace quasi private or corporate duties, exercised for the advantage of the municipal locality and its inhabitants. Municipal corporations will not be held liable in damages for the manner in which they exercise, in good faith, their discretionary powers of a public, or legislative, or quasi judicial character. But they are liable to actions for damages when their duties cease to be judicial in their nature, and become ministerial. 2 Dillon on Mun. Corp. §§ 949, 832; Tiedeman on Mun. Corp. § 324. A corporation acts judicially, or exercises discretion, when it selects and adopts a plan in the making of public improvements, such as constructing sewers or drains; but as soon as it begins to carry out that plan, it acts ministerially, and is bound to see that the work is done in reasonably safe and skillful manner. It has been said that the work of constructing gutters, drains and sewers is ministerial, and that the corporation is responsible in civil actions for damages caused by the careless or unskillful manner of performing the work. It is the duty of a municipal corporation, which exercises its power of building sewers, to keep such sewers in good repair, and such duty is not

a

•

discretionary, but purely ministerial. The adoption of a general plan of sewerage involves the performance of a duty of a quasi judicial character, but the construction and regulation of sewers and the keeping of them in repair, after the adoption of such general plan, are ministerial duties, and the municipality, which constructs and owns such sewers, is liable for the negligent performance of such duties. [See cases cited.]

It has always been the doctrine of this court that, while the legal obligation of the city to construct gutters and grade and pave streets is one voluntarily assumed, yet that, when the city constructs these improvements for the benefit of the public, it then becomes the duty of the city to see that they are kept in repair [citing cases]."

In Johnston v. City of Chicago, 101 N. E. 962, 258 Ill. 494, 45 L. R. A. (N. S.) 1167, Ann. Cas. 1914B, 339, the court said: "In considering the question of liability the authorities usually hold that it must be considered that a municipality acts in a dual capacity--first, in exercising its governmental functions; and, second, as a private corporation, enjoying powers and privileges conferred for its own benefit. When such municipal corporation is acting within its authority, in a ministerial character, in the management of its property, it is liable for the negligent acts of its employees although the work in which they are engaged will inure to the benefit of the municipality. On the other hand, whether the municipality is exercising judicial, discretionary or legislative authority conferred by its charter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers. 2 Cooley on Torts (3d Ed.) 1014; City of Chicago v. Seben [46 N. E. 244], 165 Ill. 371 [56 Am. St. Rep. 245]; 20 Am. & Eng. Ency. of Law (2d Ed.) 1197; Tiedeman on Mun. Corp. §§ 338, 349. The mere fact that a particular work may incidentally benefit the public does not necessarily exempt the city for torts committed by its employees. 20 Am. & Eng. Ency. of Law (2d Ed.) 1196. Official action is judicial where it is the result of judgment or discretion. It is ministerial when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. A municipal corporation acts judicially, or exercises discre

tion, when it selects and adopts a plan in the making of public improvements; but, as soon as it begins to carry out that plan, it acts ministerially, and is bound to see that the work is done in a reasonably safe and skillful manner. City of Chicago v. Seben, supra; 4 Dillon on Mun. Corp. (5th Ed.) §

1741.

The organization of this

public library is for the exclusive benefit of the territory of the city of Chicago and not for the state at large. It has been organized by the people of that city, through their proper representatives, voluntarily, and the duties to be performed have not been thrust upon the people of said city nolens volens. Even a municipality, usually considered a quasi corporation, when voluntarily organized, has been held by this court responsible for certain negligent acts of its employees. Bradbury v. Vandalia Drainage District [86 N. E. 163], 236 Ill. 36 [19 L. R. A. (N. S.) 991, 15 Ann. Cas. 904]; 20 Am. & Eng. Ency of Law (2d Ed.) 1196. When a city, under no obligation to light its streets, voluntarily undertakes to do so, it has been held liable for negligence in the management of its corporate property when used for such purpose. Dickinson v. Boston [75 N. E. 68], 188 Mass. 595 [1 L. R. A. (N. S.) 664]. The doctrine of this court has always been that, while the legal obligation to pave streets is one voluntarily assumed by the municipal authorities, yet when the city constructs these improvements for the benefit of the public it then becomes its duty to keep them in repair."

In Stedwell v. City of Chicago, 130 N. E. 727, 730, 297 Ill. 486, 488 (17 A. L. R. 829), the court said: "Plaintiff in error contends that in lighting its streets it was exercising its governmental function, and therefore not liable to any one injured by coming in contact with wires used for that purpose. The point is conclusively settled contrary to the contention of plaintiff in error. Johnston v. City of Chicago [101 N. E. 960], 258 Ill. 494 [45 L. R. A. (N. S.) 1167, Ann. Cas. 1914B, 339]; Dickinson v. Boston [75 N. E. 68], 188 Mass. 595 [1 L. R. A. (N. S.) 664]; Davoust v. City of Alameda [84 P. 760, 149 Cal. 69], 5 L. R. A. (N. S.) 536 [9 Ann. Cas. 847]; Fisher v. City of New Bern [53 S. E. 342, 140 N. C. 506], 5 L. R. A. (N. S.) 542 [111 Am. St. Rep. 857]; 19 R. C. L. 1132.". See, also, Hanrahan v. City of Chicago, 289 Ill. 400, 404, 124 N. E. 547.

The judgment of the court, in sustaining the demurrer to the declaration, is affirmed.

STURM v. ULRICH.

In re WALLACE.

(Circuit Court of Appeals, Eighth Circuit. December 31, 1925.)

No. 7017.

1. Words and phrases-"Analogy" does not mean identity but implies a difference.

"Analogy" does not mean identity, but implies a difference.

2. Mines and minerals 97-Nature of relationship between common owners and operators of mining property stated.

Relationship between common owners and operators of mining property is somewhat sui generis. Where there is merely common ownership and no joint development, relation is ordinarily tenancy in common; but where they join in development of property, they constitute a "mining partnership."

3. Mines and minerals 97-"Mining partnership" distinguished from ordinary partnership.

A "mining partnership" has many attributes and limitations of ordinary partnership; but death or bankruptcy of partner does not terminate partnership, and one partner may convey his interest, or part thereof, without consent of others, and without terminating partnership, and transferee becomes partner to extent of interest transferred from effective date thereof.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Mining Partnership.]

4. Mines and minerals

97-In Oklahoma,

mining partnership may exist in development of oil and gas properties.

In Oklahoma, mining partnership may exist in development of oil and gas properties.

5. Mines and minerals 99(2)-Each partner in mining partnership or creditor has lien on partner's interest for advances.

Each partner in mining partnership is liable to others for his share of expenses and losses, and there is lien on his interest in favor of creditors or other partners making advances. 6. Mines and minerals 97-Mining partner. ship may result from express contract or be implied from conduct.

Mining partnership may result from express in joining in mining operation on profit and contract, or be implied by conduct of parties loss sharing basis or in jointly acquiring mining property for joint development and thereafter prosecuting such development.

7. Mines and minerals 99(3)-Power of one mining partner to bind others limited to acts having direct connection with development of venture.

Power of one partner in mining partnership to bind others is strictly limited to acts having direct connection with development of mining

venture.

10. Mines and minerals 99 (2)-Lien for advances attaches to partner's interest in entire partnership property.

Lien for advances attaches to partner's interest in entire mining partnership property under development, and is not confined to par: ticular part in connection with development of which advances were made.

11. Bankruptcy 149-Bankruptcy of single partner in mining partnership held not to interfere with partnership business, nor with rights of partners inter se.

Bankruptcy of single partner in mining partnership does not interfere with ordinary business of partnership, nor rights of partners inter se as to partnership property and bankruptcy court is entitled only to demand profits due bankrupt, and cannot assume administration of business without consent of other partners, except to protect individual rights of bankrupt.

12. Bankruptcy 293(4)-Court held to have jurisdiction to administer property of solvent mining partnership in which single partner was bankrupt.

Where bankruptcy trustee of single partner in solvent mining partnership assumed control of partnership property, and other partners, by appearing and asking relief, consented thereto, bankruptcy court could act and protect rights of all parties, but such assumption of jurisdiction did not change rights of partners inter se, as to partnership property.

13. Bankruptcy 354-Mortgagee's receiver held entitled to marshaling of liens on mining partner's interest and assets covered thereby. Where bankrupt's debtor's interest in oil and gas lease on 20 acres was insufficient to pay mining partnership liens and other liens supérior to mortgage, and leave enough to satisfy mortgage, and partners' liens were adequately protected by remaining 40 acres of partnership land, mortgagee's receiver was entitled to

marshaling of liens and assets covered thereby,

and bankruptcy trustee's contention that such marshaling should not apply to advancements made after the mortgage was executed, or after bankruptcy petition was filed, was untenable. 14. Mines and minerals 99(2)—That partner in mining partnership incumbered his interest

by mortgage held not to affect rights of other

partners, nor of mortgagee.

That partner in mining partnership incumbered his interest by mortgage did not affect

rights of other partners to liens for advances, nor right of mortgagee to marshaling of assets which would not harm other partners.

United States for the Eastern District of Appeal from the District Court of the Oklahoma; Robert L. Williams and Franklin E. Kennamer, Judges.

Action by Bernard Ulrich, receiver for the State National Bank of Ardmore, and another, against Hugh L. Sturm, trustee of the estate of Harold Wallace, bankrupt, and others. Decree, for plaintiffs, and the named defendant appeals. Affirmed.

Earl Q. Gray, of Ardmore, Okl. (H. C. Potterf and J. M: Poindexter, both of Ardmore, Okl., on the brief), for appellant.

F. M. Adams, of Ardmore, Okl. (T. B. Orr, of Ardmore, Okl., and Villard Martin, of Tulsa, Okl., on the brief), for appellees Levant Oil Co. and A. M. Ketch.

William Johnson, of Ardmore, Okl. (Hugh W. McGill, of Ardmore, Okl., on the brief), for appellee receiver.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

STONE, Circuit Judge. Harold Wallace, who had been engaged in banking and in oil operations in Oklahoma, became a bankrupt. The State National Bank of Ardmore, to which he was indebted on various notes, became insolvent and was taken over by the Comptroller of the Currency. On March 2, 1922, the bank examiner, with the hope of reviving the bank, procured from Wallace a mortgage securing a portion of this indebtedness. The mortgage covered an undivded one-half in an oil lease on a described 20 acres of land. Less than 4 months later, an involuntary petition in bankruptcy was filed against Wallace, who was later adjudicated a bankrupt and appellant elected as trustee therein.

Some years prior to the above transactions, in 1917, Wallace had acquired an undivided half interest in an oil lease in 80 acres of land from F. L. Ketch. Twenty acres were disposed of and are not involved in this litigation. Of the remaining 60 acres, 20 acres formed the tract covered by the above mortgage. The 40-acre tract was developed through a contract with the Skelly Oil Comhalf interest in the lease on the 60 acres to pany. Ketch conveyed one-half of his oneThereafter the his wife, A. M. Ketch. Ketches and Wallace developed the 20-acre