7 Cal. 361 | Cal. | 1857
Lead Opinion
delivered the opinion of the Court—Terry, J., concurring.
This case was decided at the last October Term, and a rehearing had at the present term. The great importance of the question involved, the large interest to be affected, and the researches of the eminent counsel employed on both sides of the case, have thrown upon the Court a great amount of labor, and greater resposibility. I have given the case the most patient examination my other duties would permit.
The first question naturally presented by the record, and the briefs in the case, is, whether the city of San Francisco, under the provisions of her charter, can make a valid sale of her real estate, without the passage of an ordinance authorizing the sale ?
The thirteenth section of article forty-one, page three, of the charter of the city, passed April 15th, 1851, provides, among other things, that the common council “ shall have power within the city to pass all proper and necessary laws for the regulation, improvement, and sale, of the city property.”
The learned counsel for the city insists, that while the charter
But in reference to this particular point, the authorities, as well as the reason of the case, seem clearly against it. In the case of Head and Amory v. The Providence Insurance Co., (2 Crunch, 166,) it is laid down as a general rule “ that a corporation can only act in the manner prescribed by law.” So in the case of the Farmers’ Loan and Trust Company v. Carroll, (5 Barbour S. C. R., 615,) it is substantially held that “ when a corporation relies upon a grant of power from the Legislature for authority to do an act, it is as much restricted to the mode prescribed by the statute for its exercise as to the thing allowed to be done.” If the charter confers upon the corporation a given power, and at the same time prescribes the mode of its exercise, the provisions must be held as dependent, and must be construed accordingly. This view seems to be fully sustained by the former decisions of this Court. 4 Cal. R., 146; 5 Cal. R., 169.
If the position that the city could only sell her real estate by virtue of an ordinance passed for that purpose, be correct, the question then arises, what ordinances were passed by the common council authorizing the sale of property to plaintiff.
An ordinance designated as Ho. 481, “ to provide for the sale of certain city property,” passed the board of aldermen by the requisite majority, and upon the vote in the board of assistant aldermen, there were four votes in the affirmative and three in the negative. The latter board consisted of eight members, and there was, at the time, one vacancy. As the four votes in the affirmative did not constitute a majority of all the members elected, this Court decided, in the case of The City of San Francisco v. Hazen, 5 Cal. R., 169, that the ordinance was not passed. The ordinance was approved by the mayor on the fifth of December, 1853. This rejected ordinance provided, “ that the mayor and joint committee on land-claims should sell, at public auction, certain city property” described therein, among which was the property purchased by the plaintiff. The mayor and land committee proceeded to advertise a sale of the property at auction, as prescribed by the supposed ordinance. The sale was had on the twenty-sixth day of December, 1853. Some half an hour before the sale took place, the common council regularly passed an ordinance, which was properly approved by the mayor, and designated Ordinance Ho. 493, “ appropriating one hundred and eighty-five thousand dollars from the cash proceeds of the second payment for the city property, ordered sold by ordinance numbered four hundred and eighty-one.” By the second section, it was provided, “ that the comptroller be authorized to issue, on the
The first important inquiry regards the rules of construction justly applicable to this Ordinance No. 493.
In the case of Bailey v. -The Mayor and Corporation of Hew York, Helson, O. J., speaking of the distinction between the powers of a municipal corporation, as the owner of property, and as a subordinate government, says: “ But the distinction is quite clear and well settled, and the process of separation practicable. To this end, regard should be had, not so much to the nature and character of the various powers conferred, as to the object and purpose of the Legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political, or municipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation, quoad hoc, is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the special franchises had been conferred.” 3 Hill, 539, and authorities there cited.
So in the case of Lloyd v. The Mayor and Corporation of Hew York, 1 Selden, 374, it was held by the Court of Appeals, in 1851, that “the corporation of the city of Hew York possesses two kinds of powers—one governmental and public, and to the extent they are held and exercised, it is clothed with sovereignty; the other private, and to the extent they are held and exercised, is a legal individual. The former are given and used for public purposes, the latter for private purposes.” And in the case of Milhan v. Sharp, 15 Barbour, 210, Edwards, C. J., held that the city of Hew York, so “ far as it acts in the exercise of its public political powers, and within the limits of its charter, is vested with ■the largest discretion; and whether its laws are wise or unwise, whether they are passed from good or bad motives, it is not the province of this Court to inquire. But as regards the acts of the corporation in reference to its private property, it stands upon a very different footing. Such property is held for the common benefit of all the corporators.” “ The mere fact that the forms of legislation are used, will make -no difference in the character of the act. It will be, in no sense, the exercise of a political power delegated for public purposes.” It was also held, in that case, that when a municipal corporation acts in reference to its private property, its acts are equally of a private character, and equally subject to judicial control with the acts of a private corporation.
And this distinction is not affected by the fact that by the law of its creation a municipal corporation can only act through its common council in the form of an ordinance. Eor is it affected by the fact that ordinances “ for the regulation, improvement, and sale of city property/' are called “laws” by the-charter of the city of San Francisco. Whatever name the Legislature may give such ordinances, does not change the nature of the ordinances themselves. Acts of Congress respecting the property of the United States, are properly called by the Constitution “ rules and regulations.”
The legitimate result of this distinction between the governmental and private capacity of a municipal corporation regards : 1. The right ■ and extent of judicial control. 2. The power to pass retrospective ordinances, and to make binding admissions. 3. The rules of construction applicable to ordinances.
As no judicial control is invoked in this case, it will only be necessary to inquire how far this distinction will affect the decision of this case under the second and third aspects, as above stated. By the act of March 26th, 1851, the State granted to the city of San Francisco, for the term of ninety-nine years, the use and occupation of the beach and water-lots, the State reserving twenty-five per cent, of all moneys arising from the sale or other disposition of the property. The lot purchased by the plaintiff was a part of this property. ' As the owner or trustee of this property, the city could do any act that a private corporation could with respect to its own property, consistent with the rights of the State, and of individuals, after they attached; provided, the forms prescribed by the charter were properly pursued. From this it follows that the common council, in the form of an ordinance properly passed, could adopt any precedent act or acts of the city officers, not prejudicial to the existing
If these views be correct, the Ordinance 481 .was, in substance, a power of attorney, well drawn, but defectively executed. If it stood alone, any sale made under it would be void. It then becomes necessary to inquire how far Ordinance 493 adopted and sanctioned Ordinance 481; and to ascertain this, we must inquire as to what knowledge the council had in respect to the facts regarding the supposed passage and provisions of 481.
As to the provisions of 481, the council had full knowledge, as is shown by the provisions of 493 itself; and as to the facts regarding the passage of 481, the council had full means of information, and must be bound to know. The second section of the third article of the charter requires each board to keep a journal of its own proceedings, and upon the final passage of every ordinance the ayes and noes shall be taken and entered upon the journal. The council was bound to know the contents of its own journals, as it had the means of knowing, and it was its duty to know. As the organ of the city, in the disposition of city property, the council was bound to know whatever had been done, or not done, by it, in reference to that property. In the case of Alvarez v Brannan, we held that an individual was bound to remember his own acts. If he failed to do so, the misfortune or negligence was his own, as well as the consequences. So it is with a municipal corporation in its capacity as the owner of property. ■ If the act of the council be unjust in itself, then it will be controlled by the Courts, whether founded upon mistake or not. But if the act be beneficial, though predicated upon a mistake of facts (when knowledge is incumbent), it is still as binding as if actual knowledge existed. It would seem, however, that the only mistake, if any, which was made by the council, was one of law and not of fact. That the council, in passing 493, acted under the mistaken idea that a vote of four members in the board of assistant aldermen was sufficient to pass 481, may be true, and certainly is very probable. But will a municipal corporation, acting under a full knowledge of all the facts, and doing that which in itself is beneficial to its interests as the owner of property, and not at the time inconsistent with the rights of others, be allowed to plead ignorance of the law ? And if the corporation could not make this plea, then the party purchasing it could not make it. I cannot understand the practical reason
From these views, it follows that the common council had the power to adopt 481, and to give it a retrospective operation, thus recognizing and sanctioning all that had been done up to that time under it, and all that should hereafter be done in pursuance of its terms. Had the council, in the exercise of its governmental powers, passed a retrospective ordinance, it might have been a very different matter. But as the Ordinance 481 only related to the disposition of the city property, and 493 related to the same matter, there could properly be no objection to such action. Ho rights of individuals had then attached so as to be
affected, and this action was no injury to the State, or to the corporators of the city. Whatever an individual could do in the mode appropriate to him, the corporation could do in the mode appropriate to it. Suppose A to make a well drawn power of attorney to B, but there should be a defective execution of the power; and suppose, by another instrument of equal solemnity, duly executed, A should expressly admit the power of attorney to be his act, and predicate the second instrument upon the ground of the validity of the power; and suppose, after this, B should act under the power, would not that action be fully binding upon A, as well as upon the person with whom B dealt as A’s attorney ? I can see no principle of reason or law that would deny the validity of the act of the attorney.
If, then, the common council must be held to have acted with a full knowledge of all the facts and of the law, and with the right and power to adopt 481, and all the precedent acts done under it, was the Ordinance of 493 a sufficient recognition and adoption of 481, to render the subsequent sale of the city property valid and binding upon all parties ? I think it was. The language of 493 is as strong a recognition of 481 as could well be made, not to be in the form of a re-enactment. It expressly assumes the validity of 481, as an ordinance, refers to the sale to be made under it, sets apart a large portion of the proceeds, and makes the warrants issued receivable in payment of purchases made at the sale. In short, the practical vitality of 493 is made to depend upon the expressly recognized validity of 481. Without assuming the validity of 481, there was no basis for 493 to rest upon. The intention to recognize and act upon 481, as a power to sell the city property, is apparent upon the face of Ordinance 493. And the fact that 493 was passed before the sale, and in reference to it, as appears from its provisions, is, in my view, a very strong circumstance to show the intention of the
It may seem that this opinion is in conflict with the decision of this Court in the case of The City of San Francisco v. Hazen, 5 Cal. Rep., 169, but such is not the case. On the contrary, they are in no conflict whatever. That and the present case constitute a very apt illustration of a state of case not uncommon in Courts of last resort. We can only decide upon the case brought before us; and if parties neglect to bring up all the facts, we cannot supply them. In the case of Hazen, the ordinance of 493 was not before the Court, and is not alluded to either in the argument of counsel or in the opinion of the Court. The whole decision in that case turned upon the validity of 481, standing alone by itself.
It is unnecessary to decide the other important points made in the case, as those determined dispose of the whole matter.
For the reasons given, the judgment of the Court below should be reversed, and the case of plaintiff dismissed.
Dissenting Opinion
I am compelled to dissent from the opinion of a majority of the Court in this case, and shall state my views the questions involved as briefly as possible.
I shall assume in the outset, that every sale of lands made by the city of San Francisco, must be in conformity with an ordinance previously passed. This, I think, is evident from the language of the fourth and thirteenth sections of the third article of the charter.
Let us next inquire into the capacity in which a municipal corporation acts with reference to her private property, and how such acts should be evidenced.
It is contended, upon the authority of several American cases, that the acts of a municipal corporation are of a twofold character : the first political, where they relate to matters which are purely governmental; and the second private, where they relate to its private property. That in the former, its ordinances are to be regarded and construed as laws; in the latter, as mere con
At common law, a corporation could only act by deed under seal, and was not liable on an implied assumpsit. 1 Black. Com., 475, Viner’s Abridg.; and Kyd on Corporations. See, also, the case of Breckill v. Turnpike Company, 1 Dali.; and Gray v. The Portland Bank, 3 Mass. In the case of the Mayor of Ludlow v. Charlton, 6 Meeson & Welsby, which involves the legality of an executed contract not under seal, the Court say, that the rule of law on this subject, as laid down in all the old authorities is, that a corporation can only bind itself by deed. The exceptions pointed out rather confirm than impeach the rule. “ In modern times, a new class of exceptions has arisen. Corporations have of late been established, sometimes by royal charter, more frequently by act of Parliament, for .the purpose of carrying on trading speculations; and where the nature of their constitution has been such as to render the drawing of bills, or the constant making of any particular sort of contracts, necessary for the purposes of the corporation, there the Courts have held that they would imply in those who are, according to the provisions of the charter or act of Parliament, carrrying on the corporation concerns, an authority to do those acts, without which the corporation could not subsist. This principle will fully warrant the recent decision of the Court of Queen’s Bench, in Beverly v. Lincoln Gas-Light, and Coke Company, 6 Ad. & El., 829.
“ Before dismissing this case, we feel ourselves called upon to say, that the rule of law requiring contracts entered into by corporations to be generally entered into under seal, and not by parol,. appears to us to be one by no means of a merely technical nature, or which it would be at all safe to relax, except in cases warranted by the principles to which we have already adverted. The seal is required as authenticating the concurrence of the whole body corporate. If the Legislature, in erecting a body corporate, invest any member of it, either expressly or impliedly, with authority to bind the whole body, by his mere signature, or otherwise, then, undoubtedly, the adding a seal would be matter purely of form, and not of substance. Every one becoming a member of such corporation, knows that he is liable to be bound in his corporate character by such an act; and persons dealing with the corporation know that by such an act the body will be known. But in other cases, the seal is the only authentic evidence of what the corporation has done, or agreed to do. The resolution of a meeting, however numerously attended, is, after all, not the act of the whole body. Every member knows he is
In the subsequent case, of Arnold v. The Mayor of Poole, 4 Man. & Gran., the same question came before the Court of Common Pleas, and the case of Ludlow v. Charlton was cited with approbation—the Court holding that the old rule had not been relaxed, except as to trading corporations, and that it would be unwise to extend it to municipal corporations.
I have cited these authorities for the purpose of showing that whatever may be the rule in the United States, the Courts of England recognize a distinction between mere moneyed or trading corporations, and those of a municipal character; that with regard to the latter they have refused to relax the rule, holding, upon grounds of obvious policy, that they are not liable, except in cases where their intention to contract is authenticated in the modepointed out by the law. The wisdom of this rule is apparent. If a corporation could bind itself in any other way than the mode prescribed, of what use would be its charter Í It would be continually working outside of its charter, by invoking the doctrine of implied assumpsit, estoppel, ratification, and the like, and the singular anomaly presented of an inferior creature of legislative creation, accomplishing, indirectly, what it was expressly prohibited from doing.
In this State, where it is not necessary that the acts of a municipal incorporation should be done under seal, but where the body corporate acts through the medium of its agents, the mayor and aldermen, whose will is manifested by laws or ordinances, it would seem but reasonable, following the doctrine of the English Courts, that in all cases the intention of the corporation should be promulgated in the form of an ordinance, and without ■which it ought not. to be held legally liable.
Assuming, then, for the present, that an ordinance is necessary • in all cases to enable the city to act, and also, that it is expressly required by the charter, in the sale of lands by the city; let us first inquire if such an ordinance is a public act or law, or whether, on the other hand, it is a mere power of sale, to be construed like the acts of individuals. Admitting, for the purposes of this argument, that the functions of the corporation are, as a general rule, two-fold, still it will not be denied, that the Legislature, which is the creator, can give such color or charac
The thirteenth section of the third article of the charter provides, that “ the common council shall have power to pass all proper and necessary laws for the regulation, improvement, and sale of the city property, etc.” Mow, if the words of the charter mean anything, it is, that the property of the city can only be disposed of by law, and if an ordinance for this purpose is a law, then it must be governed by the same rules of construction as any other legislative act. In other words, the charter provides that the will of the common council shall be made manifest, by means of law or an ordinance. An ordinance is defined to be a law of an inferior jurisdiction or corporation, and the words law and ordinance are used in the charter as synonymous. If, then, a law must be first passed to enable the city to dispose of her property, by what mode of reasoning can it be maintained, that after its passage it shall not be construed as a law, but only as a contract; that though defective as an ordinance, it is good as a power. The virtue of the power must certainly depend on the legality of the ordinance.
What is the difference between a disposition of lands belonging to the State by an act of the Legislature, and the disposition of lands belonging to a corporation by the common council ? They both hold them alike in trust for their citizens. If the State should sell her property to A, who paid the price agreed upon, and the act was void for some reason or another, would any one contend that the receipt of the money estopped the State from denying the validity of A’s title ? Or if A, by fraud and collusion obtained a grant from the State through her Legislature, and the act was regular, would the fraud of A, or of the agents of the State vitiate the grant ? Certainly not. There is no reason in the nature of things, why there should be any difference in the two cases, or why an act, which is confessedly political when done by the Legislature, should not be so when performed by a municipal incorporation. The argument in some of the cases cited, seems to proceed on the supposition, that the officers of a city are less honest than those of a State, and therefore less to be trusted. This may be true in fact, but has not been so long recognized or accepted as to become a legal maxim or presumption.
If the act of the common council is to be considered as a law, then it would follow that Ordinance 481, not having passed by the requisite number of votes, and being void, as before declared, was not adopted, affirmed, or ratified, by Ordinance 493; as a law can never be passed or ratified by mere relation. And further,
It is assumed that 481 is a power of attorney, well drawn, but defectively executed; that the common council had full power to ratify or confirm it; that they were bound to know the law, as to how many votes were necessary to pass an ordinance, and, knowing the law, they were acquainted with the fact that 481 had not been passed, and, in view of the presumption that every one knows the law, it is assumed that the common council, knowing, when they passed 493, that 481 had not passed, must be supposed to have acted upon that knowledge, with the intention of affirming Ordinance 481. The law and the logic of this proposition are equally bad.
The error is two-fold : First, in assuming, as a matter of fact, that each member of both boards knew that 481 had not passed; and, Second, in supposing that a knowledge of the law, viz.: that 481 had not legally passed, is to be presumed, and that therefore the passage of 493 must be construed as intended to pass 481. The common council, or rather the members, were bound to know that a certain vote was, necessary to pass an ordinance, but the members of one board were not bound to know the vote by which the ordinance was passed in the other. If the ordinance is to be construed as a law, they would be charged with notice of the vote by which it jtassed, but if as a power of attorney, then they are only bound to know the general law- with regard to the execution of the power, and the power being regular on its face, all facts and' circumstances which may tend to vitiate, or render it null, must be brought home to the knowledge of the parties, by actual notice. To illustrate the proposition : if I should receive a power of attorney, executed and acknowledged in due form, I could not be charged with notice, as a legal consequence, following from the power, that it had been obtained by fraud or duress.
Again, 481 was not “ a power of attorney, well drawn but defectively executed.” It was, for all intents and purposes, a blank paper; its validity depended wholly on its execution, and not having been executed in the manner pointed out by law, it was void and worthless. It is perfectly clear that, in passing 493, the common council had no intention to ratify or adopt 481, but simply to dispose of the money arising from the sale,-which they supposed was properly ordered by that ordinance. If such had been their intention, how easily they could have expressed it. A single word would have been sufficient. But, says the appellant, the council knew that 481 had not passed; they must
Ordinance 493 does not, in terms, or by implication, adopt, or purport to adopt, 481. It refers to the latter ordinance as having passed, not with a view to ratify it, but to appropriate the proceeds of the sales arising under it, and treats it as an antecedent act, properly done; and the plain inference from the language itself, aside from any legal presumption, is, that the council supposed that the ordinance had passed by a legal vote, and that there was therefore no necessity for its adoption, as their minds were not drawn to the fact of its illegality. Under these circumstances, some of the very members who had voted against the sale, believing that it was valid, might have, and doubtless did, vote for the appropriation of the proceeds of such sale, without ever supposing that their acts were to be considered as confirmatory of an ordinance which they had opposed.
The error consists in supposing that a person or corporation acts with knowledge of the law, and is to be held as if so acting, when it is proved by the paper that he has acted in ignorance of the law.
We are not now construing a contract, for there was no contract at the time; but we are seeking for a power of sale, and to do this it is only necessary to ascertain the intention of the party making the alleged power. This can only be done by looking at the instrument itself and the surrounding circumstances ; these may* show an intention to give a power or not; and this intention necessarily refers itself to the state of the mind, the knowledge or ignorance of the party, as shown by the paper and the facts. But it is contended that we cannot examine the ordinance to prove that there was no intention to give the power, by showing that the counsel had, as they thought, already given it. In other words, that the fiction of the law which supposes any one knew it, is to be carried to the extent of supposing the party knew what he says on the paper; he did not know, indeed, more than this. It is carried to the extreme of holding, by inference, that the council knew the law had not passed, when the paper shows that they supposed it had passed. Row, as this is a question of construction, and construction follows intention, why cannot a mistake of law be shown in the ordinance to be construed as well as any fact, with the view of showing what was the intention of the parties ? If A made a deed to C, reciting that he had made a will in his favor, which was by law irrevocable, and vested an immediate estate in C,
In construing a power, it is true, you may look to the law bearing upon anything embraced within the power; and so in seeing whether a paper is a power, you look to the law, but you must look to the words and germain facts, too, to see what the maker intended to do. Admit that the council did act with knowledge of a certain legal principle, viz.: that 481 had not passed, does it follow that when a sale was about to be had, that the mere disposition of certain proceeds of sale, was meant to order a sale, or a mere recital that an ordinance had passed, shows a present intention to pass the ordinance ?
The whole question involved is one of intention, viz.: whether the council meant, in 493, to pass 481; and when we see, from the face of it,'that no such intention existed, it matters nothing whether the council were laboring under a mistake of fact, or law. The intention, whatever it was, is to prevail; and it makes no difference in this respect, whether the ordinance 493 is to be construed as a law or as a power. 9 B. Monroe, 416.
In this case it was held, that in a suit upon a note, not executed by the defendants, but which, it was contended, they had recognized and assumed, “ to render the note their note, the defendants must have recognized it with the intention of thereby making it their note, with the knowledge of the fact that without such recognition they would not be responsible. But if the recognition was made under a mistaken apprehension of their liability, either as to the factor to the law, then such recognition would not be obligatory upon them, and the note would not thereby become their note." In Cockerel v. Cholmely, 3 Eng. Oh. Rep., 1 Russell and Mylne, it was held in order to work a confirmation, that the party said to confirm must know the law and fact.
In discussing this point, the Court say : “ It has been argued that the defendant, being aware of the facts in the lifetime of Sir Edward Engeldfield, has, by his silence, and by being a party to the application of the party to Parliament, confirmed the title of the plaintiffs. In equity, it is considered, as good sense requires it should be, that no man can be held by an act of his to confirm a title, unless he be fully aware, at the time, not only of the fact on which the defect of title depends, but of the consequences in point of law. And here there is no proof that the defendant, at the time of the acts referred to, was aware of the law on the
If these cases are to be regarded as authority, they establish the conclusion, that in cases involving a question of confirmation, a party is not presumed necessarily to know the law; that this is a question of fact to be established, and that even admitting the presumption may arise, it is not conclusive as against the facts, which go to establish ignorance of the law.' If these conclusions are correct, and I am unable to see wherein they are erroneous, then the argument drawn from the supposed knowledge of the law, upon the part of the common council, must fall to the ground.
But, again, I am of opinion that, in the sale of this property, the city acted in the capacity of a trustee, or agent, of the State, under a delegated statutory power; that the law, having provided the mode in which the power shall be exercised, that mode, and none other, can be pursued.
In all the cases cited by the appellant, the corporation was the sole owner of the land or property, and in no case was she an agent, trustee, or tenant, in common with another. While I might be willing to admit, that as to her separate property, her acts were to be construed like those of ordinary individuals; in a case like the present, where the State has given to the city, lands to be disposed of for them mutual benefit, in a certain way, viz : ®by law, I think that the power must be strictly followed, and the ordinance construed as a law affecting the property of the State and city; otherwise the city, a mere co-tenant or trustee, might defeat the interest of the State in the property, by attempting to deal with it as a private proprietor.
There are several other points involved in this case, none of which are of serious importance, and I shall not therefore consider them at any length. It is contended that the plaintiff cannot recover, because the city is prohibited from contracting a debt of more than fifty thousand dollars, over and above her outstanding or aggregate indebtedness. This provision applies to the acts or contracts of the city, not to liabilities which the law may cast upon her. It was designed to prevent an extravagant expenditure of money, by limiting the common council in the matter of contracts and appropriations, not to authorize the city to commit torts, and to obtain the property of her corpora-tors, without being legally liable. According to the argument, if the city had obtained judgment for an hundred thousand dollars against A, and had sold his property and made the money, which was then in the treasury, and the judgment should afterwardsbefinallyreversed,neither A, nor the purchaser, would have any right to recover back the amount. Such never was the intention of the Legislature, and the proposition is not worthy of serious consideration.
It will hardly he necessary to adduce any argument to establish the proposition that the former opinion of this Court was erroneous. A mere reference to it is sufficient, and the point on which it was predicated seems to have been abandoned by the unanimous consent of the Court and counsel.
For the foregoing reasons, I am of opinion that the judgment should he affirmed.