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10 F.(20) 8 There is the further allegation “that the had been paid $322,369.93, "such employimprovement of said streets

in- ment was confirmed in a letter written by the volve a total expenditure of over $75,000,000; chairman of the board of local improvements that the work necessary to be done in and to plaintiff.” about the carrying out of said ordinance and The letter, as averred, recites: "In comthe making of said improvements under the pliance with this ordinance

I am provisions of the laws of said state of Il- now instructing you to report to this departlinois involved, among other things, the fol- ment for work at the compensation fixed by lowing:

The preparation of as- the council, with the understanding that you sessment rolls, accurately setting out a de- will remain in the employ of the city during scription of each piece of property involv- the years 1920, 1921, 1922, 1923, and 1924.” ed,” etc. If that allegation and the connected The order, averred in the declaration, did not allegations have any place in the declaration, authorize the employment of the plaintiff or they must have the purpose of leading read- anybody else for five years, but, preceding ers of the declaration to understand that a list of those to be employed, it said: "To those things were part of the work plaintiff employ the following for such periods of was employed to do, but the making of the time during 1920 as may be necessary.” Furassessment roll and the other matters out- ther, the letter, written a year and two months lined in that averment are things to be done after it is said the contract was made, and by the court commissioners under the direc- after the work had been done and the money tion of the court.

paid, said: “The commencement of your ac[5] All of the work preceding the filing of tivities in the city's employment will be deemthe petition for condemnation in the court ed as acceptance of the conditions named in of record was done and the ordinance passed this letter." prior to January 1, 1920, yet the declaration (6, 7] All pleadings are to be construed most shows that the first recommendation of the strongly against the pleader, and the burden finance committee, upon which the general was upon the plaintiff in this case, by clear order of the city council was later predicated and unequivocal averments, to set forth such for the employment of plaintiff, was not facts as would show that the money paid made until February 5, 1920, so that plain- him was not subject to the assessment made. tiff's employment could not have related to The declaration is so indefinite and uncertain work done before passage of the ordi- that it fails to show what work he was emnance. There is no allegation or other thing ployed to do, what work he did do for the

to show that either the report of the finance money received, or whether his employment , committee or the order of the council had was such as to bring him within or leave him

anything whatever to do with the improve- without the protection of the rule under conments on Ogden and other avenues, which, it sideration. is alleged, were covered by the ordinance. [8] There yet remains for consideration the

Directly following the alleged order, im- question as to whether, without regard to the posing the obligation upon the board of local indefiniteness and uncertainties in the averimprovements to secure the approval of the ments, any cause of action on any theory is committee on finance, is the following: “And stated. In South Carolina v. United States, be it further ordered that the employment supra, after discussing the question hereinby the board of local improvements of before adverted to, the court said (page 459

Ernest H. Lyons" (plaintiff], real (26 S. Ct. 115]): "It is also worthy of reestate experts, at $50 per day,

be mark that the cases in which the invalidity of and the same is hereby approved." There is a federal tax has been affirmed were those in nothing to show, by averment or otherwise, which the tax was attempted to be levied upthat that order was made in connection with on property belonging to the state, or one of the improvements in question. Despite the its municipalities, or was a charge upon the fact that those orders were made in February, means and instrumentalities employed by the plaintiff alleges, in the next paragraph, that state, in the discharge of its ordinary funcafter numerous conferences he was, at a final tions as a government.” conference prior to the 1st day of January, Then, after a review of many cases in the 1920, employed by the chairman of the board Supreme Court and in various other courts, of local improvements, and further says that not including the state of Illinois, the court on March 2, 1921, a year and two months concludes (page 463 [26 S. Ct. 117]): “Now, after he says he was employed, and after he if it be well established, as these authorities say, that there is a clear distinction as re- discretionary, but purely ministerial. spects responsibility for negligence between The adoption of a general plan of sewerage the powers granted to a corporation for gov- involves the performance of a duty of a ernmental purposes and those in aid of pri- quasi judicial character, but the construcvate business, a like distinction may be rec- tion and regulation of sewers and the keepognized when we are asked to limit the full ing of them in repair, after the adoption of power of imposing excises granted to the such general plan, are ministerial duties, national government by an implied inability and the municipality, which constructs and to impede or embarrass a state in the dis- owns such sewers, is liable for the negligent charge of its functions. It is reasonable to performance of such duties. [See cases cited.] hold that while the former may do nothing by

It has always been the doctrine taxation in any form to prevent the full dis- of this court that, while the legal obligation charge by the latter of its governmental func- of the city to construct gutters and grade tions, yet whenever a state engages in a busi- and pave streets is one voluntarily assumed, ness which is of a private nature, that busi- yet that, when the city constructs these imness is not withdrawn from the taxing power provements for the benefit of the public, it of the nation."

then becomes the duty of the city to see that In City of Chicago v. Seben, 46 N. E. 244, they are kept in repair (citing cases].” 245, 165 Ill. 371, 377 (56 Am. St. Rep. In Johnston v. City of Chicago, 101 N. 245) the court said: “It is well settled that E. 962, 258 III. 494, 45 L. R. A. (N. S.) 1167, municipal corporations have certain powers Ann. Cas. 1914B, 339, the court said: “In which are discretionary or judicial in char- considering the question of liability the auacter, and certain powers which are minis- thorities usually hold that it must be conterial. The powers of such corporations sidered that a municipality acts in a dual have also been divided into those which em- capacity--first, in exercising its governmenbrace governmental duties, such as are del- tal functions; and, second, as a private coregated to the municipality by the Legislature, poration, enjoying powers and privileges and in the exercise of which the municipality conferred for its own benefit. When such is an agent of the state, and those powers municipal corporation is acting within its which embrace quasi private or corporate authority, in a ministerial character, in the duties, exercised for the advantage of the management of its property, it is liable for municipal locality and its inhabitants. Mu- the negligent acts of its employees although nicipal corporations will not be held liable the work in which they are engaged will inure in damages for the manner in which they to the benefit of the municipality. On the exercise, in good faith, their discretionary other hand, whether the municipality is exerpowers of a public, or legislative, or quasi cising judicial, discretionary or legislative judicial character. But they are liable to authority conferred by its charter, or is disactions for damages when their duties cease charging a duty imposed solely for the beneto be judicial in their nature, and become fit of the public, it incurs 'no liability for ministerial. 2 Dillon on Mun. Corp. 88 949, the negligence of its officers. 2 Cooley on 832; Tiedeman Mun. Corp. § 324. Torts (3d Ed.) 1014; City of Chicago v. Se

A corporation acts judicially, or ben [46 N. E. 244), 165 Ill. 371 [56 Am. St. exercises discretion, when it selects and Rep. 245); 20 Am. & Eng. Ency. of Law (2d adopts a plan in the making of public im- Ed.) 1197; Tiedeman on Mun. Corp. $$ 338, provements, such as constructing sewers or 349. The mere fact that a particular work drains; but as soon as it begins to carry may incidentally benefit the public does not out that plan, it acts ministerially, and is necessarily exempt the city for torts commitbound to see that the work is done in a ted by its employees. 20 Am. & Eng. Ency. reasonably safe and skillful manner.

of Law (2d Ed.) 1196. Official action is It has been said that the work of construct- judicial where it is the result of judgment or ing gutters, drains and sewers is ministerial, discretion. It is ministerial when it is abso and that the corporation is responsible in lute, certain and imperative, involving merecivil actions for damages caused by the ly the execution of a set task, and when the careless or unskillful manner of performing law which imposes it prescribes and defines the work. . . It is the duty of a the time, mode, and occasion of its performmunicipal corporation, which exercises its ance with such certainty that nothing remains power of building sewers, to keep such for judgment or discretion. A municipal corsewers in good repair, and such duty is not poration acts judicially, or exercises discre


10 F.(20) 9 tion, when it selects and adopts a plan in

STURM v. ULRICH. the making of public improvements; but, as

in re WALLACE. soon as it begins to carry out that plan, it acts ministerially, and is bound to see that

(Circuit Court of Appeals, Eighth Circuit.

December 31, 1925.) the work is done in a reasonably safe and skillful manner. City of Chicago v. Seben,

No. 7017. supra; 4 Dillon on Mun. Corp. (5th Ed.)

1. Words and phrases—"Analogy" does not 1741. The organization of this

mean identity but implies a difference. public library is for the exclusive benefit of

"Analogy" does not mean identity, but imthe territory of the city of Chicago and not plies a difference. for the state at large. It has been organized 2. Mines and minerals 97—Nature of relaby the people of that city, through their

tionship between common owners and operaproper representatives, voluntarily, and the

tors of mining property stated. duties to be performed have not been thrust Relationship between common owners and upon the people of said city nolens volens. operators of mining property is somewhat sui

generis. Where there is merely common ownEven a municipality, usually considered a ership and no joint development, relation is orquasi corporation, when voluntarily organ- dinarily tenancy in common; but where they ized, has been held by this court responsible join in development of property, they constitute for certain negligent acts of its employees.

a "mining partnership." Bradbury v. Vandalia Drainage District [86 3. Mines and minerals Om97—“Mining partner. N. E. 163], 236 Ill. 36 (19 L. R. A. (N. S.) ship" distinguished from ordinary partnership. 991, 15 Ann. Cas. 904]; 20 Am. & Eng. Ency A “mining partnership” has many attributes of Law (20 Ed.) 1196. When a city, under and limitations of ordinary partnership; but

death or bankruptcy of partner does not terno obligation to light its streets, voluntarily minate partnership, and one partner may conundertakes to do so, it has been held liable for vey his interest, or part thereof, without connegligence in the management of its corpo- sent of others, and without terminating partrate property when used for such purpose. nership, and transferee becomes partner to ex

tent of interest transferred from effective date Dickinson v. Boston [75 N. E. 68], 188 Mass. thereof. 595 (1 L. R. A. (N. S.) 664]. The doctrine of

(Ed. Note. For other definitions, see Words this court has always been that, while the le- and Phrases, First and Second Series, Mining gal obligation to pave streets is one volun- Partnership.) tarily assumed by the municipal authorities, 4. Mines and minerals am 97—In Oklahoma, yet when the city constructs these improve- mining partnership may exist in development ments for the benefit of the public it then

of oil and gas properties. becomes its duty to keep them in repair."

In Oklahoma, mining partnership may exist

in development of oil and gas properties. In Stedwell v. City of Chicago, 130 N. E. 727, 730, 297 Ill. 486, 488 (17 A. L. R. 829), 5. Mines and minerals Oww99(2)-Each partner the court said: "Plaintiff in error contends in mining partnership or creditor has lien on that in lighting its streets it was exercising

partner's interest for advances. its governmental function, and therefore not to others for his share of expenses and losses,

Each partner in mining partnership is liable liable to any one injured by coming in con- and there is lien on his interest in favor of credtact with wires used for that purpose. The itors or other partners making advances. point is conclusively settled contrary to the 6. Mines and minerals Om97-Mining partner. contention of plaintiff in error. Johnston ship may result from express contract or be v. City of Chicago [101 N. E. 960), 258 Ill.

implied from conduct. 494 (45 L. R. A. (N.'S.) 1167, Ann. Cas.

Mining partnership may result from express 1914B, 339); Dickinson v. Boston [75 N. E. in joining in mining operation on profit and

contract, or be implied by conduct of parties 68], 188 Mass. 595 [1 L. R. A. (N. S.) 664]; loss sharing basis or in jointly acquiring mining Davoust v. City of Alameda (84 P. 760, 149 property for joint development and thereafter Cal. 69], 5 L. R. A. (N. S.) 536 [9 Ann. Cas. prosecuting such development. 847]; Fisher v. City of New Bern (53 S. E. 7. Mines and minerals On99(3)—Power of one 312, 140 N. C. 506], 5 L. R. A. (N. S.) 542 mining partner to bind others limited to acts [111 Am. St. Rep. 857); 19 R. C. L. 1132.", having direct connection with development of

venture. See, also, Hanrahan v. City of Chicago, 289 Ill. 400, 404, 124 N. E. 547.

Power of one partner in mining partnership

to bind others is strictly limited to acts having The judgment of the court, in sustaining direct connection with development of mining the demurrer to the declaration, is affirmed. venture.

8. Corporations Em379_Corporation may be rights of other partners to liens for advances,

member of mining partnership, in absence of nor right of mortgagee to marsbaling of assets statute.

which would not harm other partners. Corporation may be member of mining partdership or joint adventure of such character, in

Appeal from the District Court of the absence of prohibiting statute, and Oklahoma United States for the Eastern District of has no such statute.

Oklahoma; Robert L. Williams and Frank9. Mines and minerals am 97-Evidence held to lin E. Kennamer, Judges.

show existence of mining partnership in oil and gas lease.

Action by Bernard Ulrich, receiver for Evidence held to show existence of mining the State National Bank of Ardmore, and partnership in oil and gas lease between bankrupt, corporation's transferors, and corporation, another, against Hugh L. Sturm, trustee of entitling corporation and its transferors to lien the estate of Harold Wallace, bankrupt, and against bankrupt’s interest in partnership for others. Decree for plaintiffs, and the named advances.

defendant appeals. Affirmed. 10. Mines and minerals Om99(2)-Lien for ad. vances attaches to partner's interest in entire

Earl Q. Gray, of Ardmore, Okl. (H. C. partnership property.

Potterf and J. M: Poindexter, both of ArdLien for advances attaches to partner's in- more, Okl., on the brief), for appellant. terest in entire mining partnership property F. M. Adams, of Ardmore, Okl. (T. B. under development, and is not confined to parOrr, of Ardmore, Okl., and Villard Marticular part in connection with development of which advances were made.

tin, of Tulsa, Okl., on the brief), for appel11. Bankruptcy Om 149—Bankruptcy of single lees Levant Oil Co. and A. M. Ketch. partner in mining partnership held not to in

William Johnson, of Ardmore, Okl. terfere with partnership business, nor with (Hugh W. McGill, of Ardmore, Okl., on the rights of partners inter se.

brief), for appellee receiver. Bankruptcy of single partner in mining partnership does not interfere with ordinary busi- Before STONE and VAN VALKENness of partnership, nor rights of partners inter BURGH, Circuit Judges, and PHILLIPS, se as to partnership property and bankruptcy District Judge. court is entitled only to demand profits due bankrupt, and cannot assume administration of business without consent of other partners, except STONE, Circuit Judge. Harold Wallace, to protect individual rights of bankrupt.

who had been engaged in banking and in oil 12. Bankruptcy Om 293(4)-Court held to have operations in Oklahoma, became a bankrupt. jurisdiction to administer property of sol. The State National Bank of Ardmore, to vent mining partnership in which single part. which he was indebted on various notes, bener was bankrupt. Where bankruptcy trustee of single partner

came insolvent and was taken over by the in solvent mining partnership assumed control Comptroller of the Currency. On March 2, of partnership property, and other partners, 1922, the bank examiner, with the hope of by appearing and asking relief, consented there. reviving the bank, procured from Wallace a to, bankruptcy court could act and protect rights of all parties, but such assumption of mortgage securing a portion of this indebtedjurisdiction did not change rights of partners

The mortgage covered an undivded inter se, as to partnership property.

one-half in an oil lease on a described 20 13. Bankruptcy Om 354–Mortgagee's receiver

acres of land. Less than 4 months later, an held entitled to marshaling of liens on mining involuntary petition in bankruptcy was filed partner's interest and assets covered thereby. against Wallace, who was later adjudicated a

Where bankrupt's debtor's interest in oil bankrupt and appellant elected as trustee and gas lease on 20 acres was insufficient to pay therein. mining partnership liens and other liens supérior to mortgage, and leave enough to satisfy Some years prior to the above transacmortgage, and partners' liens were adequately tions, in 1917, Wallace had acquired an unprotected by remaining 40 acres of partnership divided half interest in an oil lease in 80 acres land, mortgagee's receiver was entitled to of land from F. L. Ketch. Twenty acres marshaling of liens and assets covered thereby, and bankruptcy trustee's contention that such were disposed of and are not involved in this marshaling should not apply to advancements litigation. Of the remaining 60 acres, 20 made after the mortgage was executed, or after

acres formed the tract covered by the above bankruptcy petition was filed, was untenable.

mortgage. The 40-acre tract was developed 14. Mines and minerals am 99(2)-That partner through a contract with the Skelly Oil Comin mining partnership incumbered his interest pany. Ketch conveyed one-half of his oneby mortgage held not to affect rights of other half interest in the lease on the 60 acres to i partners, nor of mortgagee.

That partner in mining partnership incum- his wife, A. M. Ketch. Thereafter the bered his interest by mortgage did not affect Ketches and Wallace developed the 20-acre


10 F.(20) 9 tract for several years during which time A. unquestioned. Also, that the bankrupt was, M. Ketch advanced therefor a large sum of in reality, insolvent at that time is estabmoney which should have been advanced by lished. It is hardly contended that the exWallace. Thereafter, the Ketches transfer- aminer had actual knowledge of such inred their interest in the entire lease to Levant solvency. The controversy narrows down to Oil Company which thereafter carried on the whether he was in possession of such infordevelopment of the 20-acre tract. In such de- mation as would have caused a prudent man velopment, the Levant advanced a large sum to doubt and, therefore, to have investigated of money which should have been advanced the solvency of the bankrupt. The master by Wallace. Mrs. Ketch and the Levant Oil found that the examiner "had reason to beCompany each claimed a mining partnership lieve and did believe” that Wallace was then lien superior to the mortgage.

solvent. The trial court approved the findings The receiver of the bank brought an of the master. We have painstakingly read action to foreclose the mortgage. That suit and considered all of the evidence upon this was begun before the bankruptcy petition matter. While there is a conflict in the eviwas filed. Thereafter, there was an amended dence and the answer is not entirely free from petition bringing in the trustee and a second doubt, yet we not only think the evidence amended petition bringing in the Ketches and lacks that certainty and clarity which would Levant Oil Company. By an amended re

authorize us to overturn a finding of the ply, the bank sought, in event the Ketch and master which has been approved by the trial Levant Oil Company advancements were held court but we approve that finding as being to be liens superior to the mortgage, to have supported by the weight of the evidence. the two tracts marshaled so that those two Therefore, we hold that the mortgage is valid

and not voidable. sums would be paid from the 40-acre tract. The decree established the mortgage and the

II. Mrs. Ketch and Levant Oil Company ad

Appellant does not deny the general legal vancements as liens and required Ketch and

proposition that if the relation between the the company to first resort to the 40-acre tract for satisfaction. From this determina- bankrupt and Mrs. Ketch and the Levant Oil

Company was that denominated in law as a tion only the trustee appeals.

"mining partnership," a lien for advanceAppellant urges here seven points which ments made by one for the benefit of another may be placed in three general groups: (I) in connection with the particular mining That the mortgage is voidable; (II) that the venture would exist as to the proceeds and liens allowed Mrs. Ketch and the Levant Oil mining property. His contentions are (a) Company must fail because no mining part- that no such “partnership” existed as a matnership between them and Wallace existed; ter of fact as to either tract; (b) that it could (III) that there was no right to marshal not legally exist as to the 20-acre tract durthese assets between these three liens.

ing the time the Levant Oil Company was

operating because a corporation cannot be I. The Mortgage.

a member of a partnership; (c) that the The appellees contend that the question Levant Oil Company was never, as a matter of the validity of the mortgage is not review- of fact, interested, as a mining partner in able because a final order affirming its validity the 40-acre tract, nor, as matter of law could was made more than 6 months before this ap- be a partner therein. peal was taken. As our view of the merits We think the three above propositions as to this matter favors appellees and as we can be settled by a statement of the law reprefer to place our determination upon that specting “mining partnerships," as here apground, we pass by this preliminary propo- plicable, and by a determination of the facts, sition without discussing or disposing of it in that respect, as shown by the evidence. otherwise.

[1] In working out the legal rights and liAppellant contends that the mortgage is abilities arising from novel legal relationvoidable because made less than 4 months ships, courts wisely strive to assimilate such before the petition in bankruptcy was filed, to other long established and defined relationat a time when the bankrupt was insolvent ships to which the one in question is most and when the bank examiner knew or had similar. But analogy does not mean identity. reasonable grounds to believe that such in- It implies difference. Also, the attendant solvency existed. That the mortgage was use of established terminology only adds to executed within the four months period is the danger of carrying an analogy too far.

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