secure the general health of the city, and to construct sewers, and to regulate their use. Under this authority, it was held that, when it became necessary for the city of N. to construct a sewer for the purpose of draining surplus water from its principal street, it had the power to provide the necessary money to pay for the same by the issuance of its bonds; such power being incident to and necessary for the carrying out of the authority expressly granted.

(Syllabus by the Court.)

Mandamus. This is a proceeding to determine the validity of certain bonds issued by the city of Norfolk for the purpose of constructing a sewer. The bonds were issued in due form, and presented to the state auditor, H. A. Babcock, for registration and certification. The auditor refused to register and certify them, on the ground that the city of Norfolk was a city of the second class, and unauthorized to issue such bonds under the statute. The city of Norfolk applies to the supreme court for a writ of mandamus to compel the auditor to register and certify the bonds.

F. P. Wigton, for relator. The Attorney General, for respondent.

REESE, J. This action is submitted under the provisions of section 567, Civil Code; the necessary affidavit that the proceeding is in good faith, to determine the rights of the parties, being filed. The controversy is in relation to certain bonds issued by the city of Norfolk for the purpose of constructing a sewer. The bonds were issued in due form, and presented to the auditor for registration and certification. That officer declined to register and certify the bonds, "solely on the ground that cities of the second class, having less than five thousand inhabitants, are not authorized to issue bonds to aid in the construction of sewers as works of internal improvement." The cause is submitted upon an agreed statement of facts, which is as follows: "The relator is, and for more than a year last past has been, a municipal corporation, duly organized under the laws of Nebraska; a city of the second class, of over one thousand and less than five thousand inhabitants. On the first day of April, 1887, the assessed valuation of the relator was not less than $285,000. The relator has no bonded indebtedness prior to the bonds herein sought to be registered. The annexed transcript, marked Exhibit A,' which is incorporated into and made a part of this stipulation, is a true and accurate history and transcript of all things connected with and pertaining to the voting of $8,000 of bonds of said relator on the second day of September, 1887, for the purpose of constructing sewers in said city. The bonds referred to in said transcript have been duly issued by the relator, and submitted to defendant, who is auditor of public accounts, for registration; but defendant refused, and still refuses, to register said bonds, solely on the ground that cities of the second class, having less than five thousand inhabitants, are not authorized to issue bonds to aid in the construction of sewers, as works of internal improvements." The application is for a mandamus to compel the auditor to register and certify the bonds. That officer, not being satisfied as to his duty, declined to act, and submits the question to this court for its decision.

·

As the city of Norfolk is a city containing more than 1,000 and less than 5,000 inhabitants, its authority must be decided under the provisions of the the first division of chapter 14, Comp. St. 1887, and by the provisions of subdivision 26 of section 39 of that act. It is under that section that cities of the second class, in their corporate capacities, are authorized and empowered to enact ordinances "to construct and keep in repair culverts, drains, sewers, and cesspools, and to regulate the use thereof." The question here presented is, does the conferring of this power upon the municipality authorize it to issue bonds for the purpose of aiding in the construction of sewers?

Upon the argument, it was contended on the part of the respondent that subdivision 3 of section 69 of the same chapter, which provides that the expenses of constructing bridges, culverts, and sewers shall be defrayed out of the general fund of the city or village, not to exceed two mills of the levy for

general purposes, governs. We think this provision must be held to apply to villages of the character named in section 40 of the same chapter, and containing not less than 200 nor more than 1,500 (1,000?) inhabitants, and not to section 39, now under consideration; therefore the question of the power to issue bonds must be decided upon subdivision 26 above named. The proposition submitted to and voted upon by the inhabitants of the city of Norfolk was that of issuing the bonds of the city, in the sum of $8,000, for the purpose of aiding in the construction of a sewer along and beneath Norfolk avenue, by said city, and the necessary grading therefor, and running east on the north side of said Norfolk avenue, to the north fork of the Elkhorn river. It will, therefore, be seen that the purpose of the issuance of the bonds was to raise money to construct the sewer under this principal street and for the purpose of grading the street. By the subdivision of section 39, above referred to, the city is authorized to construct and keep in repair culverts, drains, sewers, and cesspools. Considerable attention was given in the argument of the case to the proposition that the sewer alluded to was intended as and for the purpose of draining the avenue referred to, and carrying off the surplus water accumulating thereon. This subdivision confers upon the municipality, in express terms, the right to construct the sewer, and we think it may safely be said that, even without statutory authority, the right to improve the street in such a way as to make it passable at all seasons of the year would be an inherent right vested in the municipality without express statutory authority therefor. But without discussing this proposition, we will simply inquire whether the express authority to construct a sewer will carry with it an implied authority to issue bonds to aid in doing so.

The authorities upon this subject are substantially uniform, some of which will be briefly noticed. In City of Wyandotte v. Zeitz, 21 Kan. 649, which was an action to recover upon certain bonds issued by the city denominated "Sidewalk Bonds," it was held that the city had the power to issue the bonds in payment for the building of sidewalks, notwithstanding the fact that the money to be obtained with which to pay the bonds had to be collected as personal tax from the abutting lot-owners. The act under which the city government had issued the bonds was to the effect that the city, acting under its provisions, was authorized and empowered to enact ordinances for the purpose of opening and improving streets, avenues, alleys, and making sidewalks within the city. The right of the city to pay its moneys for the construction of sidewalks was not questioned; but it was contended that since the charter provided that for making and repairing sidewalks the assessments should be made on lots abutting on the improvement, therefore the city could not issue bonds in the first instance for the construction of the sidewalk. But it was held that the corporation being authorized in general terms to build the sidewalk, without specification of the manner or means, it necessarily followed that it could contract with some person to furnish the material, and provide the labor, to be paid for upon the completion of the work; and that the city had the power to agree upon the mode, terms, and time of payment, and to give suitable acknowledgment of indebtedness by bond, note, or other contract. In Desmond v. City of Jefferson, 19 Fed. Rep. 483, it was held that, where the charter of the city empowered it to organize a fire department, and regulate the same, and adopt such other measures as should conduce to the welfare of the city, the city was authorized to purchase a fire-engine, and issue its negotiable bonds therefor. In State v. City of Madison, 7 Wis. 582, where the charter of the city, in express terms, conferred upon it the power to establish and regulate boards of health, provide hospital and cemetery grounds, and regulate the burial of the dead, it was held that the city was authorized to purchase the ground, and, if necessary, the common council could issue the bonds of the city to pay for them, the right to issue such bonds being implied from the authority to purchase the ground.

In Mills v. Gleason, 11 Wis. 493, it was held that, where the charter of a municipal corporation confers power to purchase fire apparatus, cemetery grounds, establish markets, and many other things for the consummation of which money would be a necessary means, it would also, in the absence of any positive restriction, confer power to borrow money as an incident to the execution of these general powers. In Clarke v. School-Dist. No. 7, 3 R. I. 199, it was held that the corporation might bind itself by an evidence of debt in a negotiable form for any debt contracted in the course of its legitimate business, in the exercise of the authority conferred by law. Hubbard v. Saddler, (N. Y.) 10 N. E. Rep. 426, was a case where the county authorities were authorized by law to lay out and construct streets and avenues, and provide for the estimate and award of damages, and for the payment of them, and all other charges and expenses necessary to be incurred. By a limited or general assessment, the supervisors had the power to issue bonds running from two to six years, to raise money to pay for the awards and damages made in anticipation of the collection of revenues by the special or general assessment made. The statute conferred the right to issue bonds for the purpose of building bridges, purchasing turnpike roads or toll-bridges, buying lumber for town hall, and constructing the same, including cemeteries, but not including the payment of damages to real estate by the laying out and construction of streets and avenues thereon. But it is held that, practically, the town was authorized to incur the debt to the land-owners; it was made responsible for its payment, and authorized to provide the necessary means therefor; and therefore the supervisors had the authority to issue bonds to raise the money. In Kelley v. Mayor, etc., 4 Hill, 263, it was held that the municipal corporation might issue negotiable paper for a debt contracted in the course of its proper business, and no provision in its charter or elsewhere merely directing a certain form, in affirmative words, should be considered as taking away this power. And the same was held in Moss v. Oakley, 2 Hill, 265. See, also, upon this same subject, State v. Town of Chillicothe, 7 Ohio, 355.

In addition to the express powers conferred by the subdivision above quoted, the city had authority, under subdivision 6 of the same section, to make regulations to secure the general health of the city; and doubtless, for this purpose, the right to construct sewers is also given. If it becomes necessary for the health and convenience of the city to drain the principal streets by the use of under-ground drains or sewers, the power is given, in express terms, to do so. To say that this power existed, but that the means to make it effective had been withheld, would simply destroy the authority and nullify the legislative grant. We are fully aware of the necessity for great care in the exercise of the right to borrow money by municipal corporations, and that the power so to do should not be held to have been conferred except when expressly given, or when absolutely necessary to carry out and make effective the powers expressly conferred

We think the present case falls clearly within the latter class, and that the bonds were legally issued. The writ will therefore be allowed.

(The other judges concur.)

END OF VOLUME 35.

INDEX.

NOTE. A star (*) indicates that the case referred to is annotated.

Abandonment.

Of wife, see Husband and Wife, 3, 4.

ABATEMENT AND RE

VIVAL.

Objections to jurisdiction, see Appearance.

Other suit pending.

1. To maintain the defense of the pendency of another suit for the same cause of action, it must be affirmatively proved that the suit is still pending.-Phelps v. Winona & St. P. Ry. Co., (Minn.)273.

Death of party-Substitution.

Abstracts of Title.

Right to make, see Records, 1.

ACCORD AND SATISFAC-
TION.

See, also, Compromise; Payment; Release
and Discharge.

Consideration.

1. A debtor and creditor had an accounting, and the latter agreed to accept certain property of the former in full satisfaction of his debt; but the property was valued by them at eight dollars less than the amount of the debt, which difference was disregarded, and the agreement above en2. After the appraisement of damages tered into. Held, that the rule that accept suffered by an abutting property owner by | ance of part payment of a debt is no conreason of a change of grade had been re-sideration for the release of the whole debt, ported to and accepted by the city council, the owner died. Held, that his administratrix, and not his heirs, was the proper party to be substituted in his place in the further proceedings by appeal, etc., as it was then an interest in personal property which was in litigation.-Conklin v. City of Keo-solute, the parties made an arrangement in kuk, (Iowa,) 444.

ABDUCTION.

What constitutes.

1. In order to constitute a "taking," within the meaning of Pen. Code Minn. S 240, subd. 1, it is not necessary that it should appear that force or violence was used. It may be accomplished by persuasion, enticement, or device. But it must not only appear that the female was taken away or induced to leave through the active influence or persuasion of the accused, but it must also appear that it was done for the illicit purpose forbidden by the statute.-State v. Jameson, (Minn.) 712. Indictment.

2. In an indictment for abduction, under Pen. Code Minn. § 240, sudd. 1, it is not necessary to allege that the taking was without the consent of the parent or guardian, but it is proper to state from whose custody the female was taken.-Id. v.35N.W.-60

has no application to such a case where property is accepted in payment.-Hasted v. Dodge, (Iowa.) 462.

2. After the right to redeem certain property from tax sale had, as the parties supposed, expired, and the tax title become ab

accordance with which the former owner quitclaimed a part of the land to the taxsale purchaser, and the latter quitclaimed the remainder to the former. There was no fraud or mistake of facts. Held to be a compromise of their respective rights in the land, and that as such it will be upheld, although a subsequent judicial decision shows the rights of the parties to be different from what they supposed. Hall v. Wheeler, (Minn.) 377. Impeachment.

3. In an action on an insurance policy, plaintiff claimed that an alleged accord and satisfaction was effected by defendant's fraud. Held, that plaintiff cannot recover unless he shows repayment or tender of the money received before suit brought.Pangborn v. Continental Ins. Co., (Mich.) 814.

4. Where plaintiff, in a settlement with defendant, overpaid him, on account of the fraudulent statements of defendant, he can recover back such a sum as will reduce his payment to the amount he would have (945)

See, also, Abatement and Revival; Limita-V. EFFECT OF APPEAL.
tion of Actions; Parties; Pleading; Venue VI. DECISION.