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purposes of taxation. A classification made to Secure the direct production of a State revenue is presumed to be advantageous to the state, and the same reason which is held to require a strict construction in One case Would suggest a liberal construction in the Other. [3] The lease to the railroad company authorizes the use of the power for other than railroad purposes, and it is claimed that the defense fails because it does not appear but that the Company intends to put it to Other uses in the future. This claim apparently results from the plaintiff's theory that the property Subjected to the Special tax is only such as might have been taken under the right of eminent domain. But the law of eminent domain is not the criterion in matters of taxation. Stiles V. Newport, 76 Vt. 154, 56 Atl. 662. It was within the power of the Legislature to Withdraw this property from general taxation, whether acquired by condemnation or purchase, and even if incapable of acquirement by condemnation. It has in terms Withdrawn “all property acquired, constructed or used for railroad business or purposes.” It is not necessary for the defendants to negative an intention of the railroad company to use the property at some future time for the other purposes mentioned in its lease. It WaS in fact used exclusively in the operation and business of the road at the time of the appraisal by the state officials, and this is sufficient. See Deerfield River Co. v. Wilmington, etc., Co., 83 Vt. 548, 77 Atl. 862. As to the objection that the entire property is withdrawn from general taxation, when for aught that appears but a trifling part of it may be in use, it is enough to say that the Legislature has not made the COmplete utilization of the property for railroad purposes the test of the Classification. [4] The railroad served by this power is partly within the state and partly without; and in view of this fact the plaintiff seeks to bring the case within the rule, given in Swanton Village v. Highgate, 81 Vt. 152, 69 Atl. 667, 16 L. R. A. (N. S.) 867, that When property is put to a mixed use, part of Which affords a basis of taxation and part not, and there is no way of separating the parts, the Whole is taxable. But the CaSes are dissimilar in every feature, only one of which need be noticed. The statute imposing this special tax expressly provides a method for determining the value of the property upon the basis of its use in this state. The statement presenting the case Says it is agreed that all the proceedings in making up the grand list were regular, except that the defendants and the railway company claim that the action of the town officials in appraising and setting this property in the list was in violation of P. S. 797. This is the

section which provides that the property of corporations which are subject to this special tax shall not be set in the grand list nor Stated in the in Ventories returned to the listers. But the agreed Statement ShoWS that, although this property was not returned in the defendant's inventory, its valuation was determined, not by doubling its real value. but by reference to the quadrennial appraisal. Counsel argue this matter Without raising any question as to the construction of the agreed statement, and we treat the point regarding the method of determining the Valuation aS before uS. [5, 6] The statute directs how the list shall be made when an inventory is properly filled out and returned. P. S. 547, 555. It provides for doubling an ascertained value when a person willfully omits to make, Swear to, and deliver an inventory, Or to anSWer any interrogatory therein. P. S. 561. It does not specifically direct what shall be done when no inventory is returned, or an interrogatory is left unanswered, and the listers are satisfied that the failure to return Or to anSWer was not Willful. But inasmuch as the Statute gives no right to double unless the failure to return or to answer is willful, it is Clear that CaseS Where the failure iS Inot Willful are to be treated as within the first class; for, unless this is done, there will be no taxation of the property, and an intention to reach this result is certainly not to be presumed. In the absence of any finding on the Subject, it is to be presumed that the listers were mindful of their duty, and did not adopt the quadrennial valuation without finding that the failure to include this property in the proper answer was not willful. Judgment affirmed.

(85 Vt. 164) STORES V. MASON.

(Supreme Court of Vermont. Franklin. Oct. 10, 1911.) BREACH OF MARRIAGE PROMISE (§ 28*)—DAMAGES-AGGRAVATION. A woman, suing for breach of promise of marriage, may recover damages for her seduction by means of the promise.

[Ed. Note.—For other cases, see Breach of Marriage Promise, Cent. Dig. §§ 40–43; Dec. Dig. § 28.*]

Exceptions from Franklin County Court; Willard W. Miles, Judge.

Action by Minnie M. Stokes against Chandler L. Mason for breach of promise to marry. Demurrer to amended declaration over- . ruled, and declaration adjudged sufficient, and defendant brings exceptions. Affirmed, and CauSe relmanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, J.J.

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MUNSON, J. This case presents the single question whether a woman who has been Seduced by means of a promise of marriage Can recoVer, in a Suit for breach Of the promise, damages for the seduction by way of aggravation. The question is new in this State, but has been passed upon frequently in other jurisdictions. It is generally held that such a recovery may be had. Three or four states hold the contrary. Anderson v. Kirby, 125 Ga. 62, 54 S. E. 197, 114 Am. St. Rep. 185, 5 Am. & Eng. Ann. Cas. 103, and note; Wrynn v. Downey, 27 R. I. 454, 63 Atl. 401, 4 L. R. A. (N. S.) 615, 114 Am. St. Rep. 63. The arguments turn largely upon the ancient and settled rule of the common law that a woman cannot recover damages for her Seduction, because she is a Consenting party to the wrongful act. It is said, On the one hand, that to permit her to show the Seduction in aggravation Of the damages Sustained from the breach Of the promise is to permit her to recover indirectly what the law has emphatically and consistently forbidden her to recover. It is Said, On the other hand, that she cannot recover the full damage resulting from the breach of the promise unless permitted to Show all the Circumstances contributing to the distress of mind which is an acknowledged element of her damage. We do not deem it necessary to rehearse in detail the arguments which have been advanced on this question. They will be found fully presented in the Rhode ISland CaSe Cited above. In that case nothing appeared, except that there was a promise of marriage and that subsequently there WaS SeXual interCOurSe. The declaration in this case alleges that the intercourse Was induced by the promise.

It Seems clear that the plaintiff in a suit for a breach of promise of marriage, who has been seduced by means of the promise, does not recover the full damage caused by the breach unless permitted to show the fact of seduction. Does the rule which prevents her from maintaining a suit for the seduction prevent her from recovering this element of damage when suing for the breach of promise? It is true that the nature of the damage would be the same in both cases, and that if a recovery of it is allowed in an action for breach of promise the law will be permitting in one case what it denies in the other. But the relations of the parties and the inducement to the intercourse are not entirely the same when there is a promise of marriage as in other cases; and the difference may have a bearing on the right of recovery. The ground on which the law denies a recovery for the seduction is that the parties are equally in fault. It

BOARD OF EDUCATION V. STATE BOARD OF EDUCATION

163

probably cannot be said in strictness that the relative situation of the parties in this respect is changed by the woman's reliance on a promise of marriage; for she is nevertheless a responsible and consenting party to an immoral act. But, as bearing upOn the right to a complete remedy for the broken promise, it may properly be Said that the quality of her assent is modified by the promise. As a suitor seeking redress for a breach of promise of marriage, she is not a party to the wrong complained of, nor in any way disentitled to full compensatory damages from her promisor. He has obtained marital privileges on the faith of a promise which, if unfulfilled, operates as a fraud; and the fact that the law does not permit a remedy for the seduction is no reason why the law should deny her full compensation for the breach of promise, on his plea that she was equally responsible for the Sexual intercourse. The question may not be entirely free from technical difficulties, but there is an element of justice in this solution of it that cannot be gainsaid. Judgment affirmed, and cause remanded.

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2. SCHOOLS AND SCHOOL DISTRICTs (§ 41*)– CONTRACTs — ORGANIZATION OF NEW DISTRICT. The board of education of a township employed a teacher to teach in a certain named school “under the control of said board of education,” and he accepted the employment, and agreed to perform his duty thereunder, and to observe and enforce the rules prescribed for the government of the school by the board of education. Subsequently the portion of the township in which the school was situated became by law a separate school district. Held, that the new school district was not bound by the contract. [Ed. Note.—For other cases, see Schools and # Districts, Cent. Dig. §§ 71–80; Dec. Dig.

3. MUNICIPAL CoRPoRATIONs ($ 36*)—DIv1SION.—ADJUSTMENT OF PRE-EXISTING LIABILITIES. Where the Legislature creates a new municipal corporation, embracing part of the territory of an existing municipal corporation, it may impose on the former the obligation of existing contracts of the latter; but in the absence of legislation to that effect, the old corporation remains liable for pre-existing obligations. [Ed. Note.—For other cases, see Municipal #" Cent. Dig. §§ 105–111; Dec. Dig. 4. SCHOOLS AND SCHOOL DISTRICTs (§ 41*)ORGANIZATION OF NEW DISTRICT-EXISTING CONTRACTS. Section 34 of the school law (P. L. 1903 [2d Sp. Sess.] p. 15) does not impose upon a new school district erected out of a portion of the territory of an existing school district the obligation of a contract with a teacher.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[Ed. Note.—For other cases, see Schools and School Districts, Cent. Dig. §§ 71–80; Dec. Dig. $ 41.*] 5. ASSIGNMENTS (§ 19*)—CONTRACT ASSIGN

ABLE—EMPLOYMENT.

It is not consistent with the general prin

ciples of our law to hold that a contract for personal services is assignable, so that the assignee may command the labor of one who has never agreed to serve him.

[Ed. Note.—For other cases, see Assignments, Cent. Dig. §§ 28–31; Dec. Dig. § 19.*]

6. CONSTITUTIONAL LAW (§ 120*)—OBLIGATION OF CONTRACT-CONTRACT OF MUNICIPALITY. The creation of a new municipal corporation out of a portion of the territory of one already existing does not impair the obligation of existing contracts. The old municipality remains liable notwithstanding its dismemberment.

[Ed. Note.—For other cases, see Constitutional #;" Dig. §§ 279-285, 292; Dec. Dig. §

7. MUNICIPAL CORPORATIONS (§ 27*)—DIVISION-PowRRs oF LEGISLATURE. . . The Legislature possessed the power to divide counties and towns at its pleasure, and to apportion the common property and the common burdens in such manner as to it may seem reasonable and equitable.

[Ed. Note-For other, cases, see Municipal Corporations, Cent. Dig. § 64; Dec. Dig. § 27.*]

Certiorari, on the application of the Board of Education of the Borough of Flemington, to the State Board of Education and others. Judgment of the State Board of Education Set aside.

Argued February term, 1911, before SWAYZE, BERGEN, and MINTURN, J.J.

George H. Large, for prosecutor. Dungan & Reger, for Board of Education of Raritan Tp. William C. Gebhardt, for Glazer.

SWAYZE, J. On April 7, 1910, the board of education of the township of Raritan and Marcus L. Glazer entered into a written contract, by Which the board employed Glazer “to teach in the Flemington public school No. 1, under the control of said board of Education, for the term of one year from July 1, 1910,” and Glazer accepted the employment, and undertook to faithfully perform his duty thereunder, and to observe and enforce the rules prescribed for the government of the school by the board of education. The contract was made in pursuance of a resolution of the board of education adopted On April 4th. At that time a bill was pending in the Legislature and about to pass, Which became a law April 7th, by Which a portion of the township of Raritan was incorporated as the borough of Flemington, subject to the acceptance of the act by a Vote of

a majority of the legal voters of the territory to be included within the borough. The act was accepted at a special election on April 26th, and the certificate of the result of the election filed according to law on May 2d. By this action the borough of Flemington became a separate School district, under section 32 of the School law. Immediately thereafter, On May 5th, the board of education of Flemington submitted to the state superintendent of public instruction the question of its liability under the contract made with Glazer by Raritan. The state superintendent held that the Contract Was not binding upon Flemington. His decision was reversed by the state board of education. This action is noW before us for review. [1] We entertain no doubt of Our power to review the action of the state board. What was said by the court in Draper v. CommisSioners of Public Instruction, 66 N. J. LaW, 54, 48 Atl. 556, Was based upon the fact that the plaintiff in that case had accepted an appointment as a teacher under the School law, and Was bound by all of its proVisions, and had therefore barred himself from having the propriety of his dismissal by the local School board reViewed in any tribunal except those Specially Created by the Legislature for the purpose. That this case did not decide that the Supreme Court was deprived of its constitutional function to review the action of inferior tribunals by certiorari is sufficiently indicated by what was subsequently Said in Stockton V. Board of Education Of Burlington, 72 N. J. Law, 80, 59 Atl., 1061. The Only effect Of the decision in the Draper CaSe Was to hold that the Court WOuld not reView the action Of the local board of education until redress had first been sought in the special tribunals provided by the school laW. [2] It is important in considering the merits of the case to observe the exact language Of the Contract, and to interpret it in View Of the Situation that existed When it WaS made. At that time the board of education Of Raritan must have known that the creation of the new borough and the COnSequent severance of the school district under its charge was probable, if not imminent. UnleSS We are to attribute to them an intent to impose an Onerous Obligation upon the School district of Flemington by hasty action in anticipation of the change, We must assume that they intended to Safeguard the rightS of the new school district by the terms of the contract. This they have done. The contract is not a general contract by Which Glazer is employed to teach in the Flemington public school No. 1. It is expressly limited by the addition of the Words, “under the control of Said board of education.” Glazer on his part did not undertake generally to perform his duty as a teacher in Flemington public school No. 1, but undertook to perform his duty un

N.J.) BOARD OF EDUCATION V. STATE BOARD OF EDUCATION 165

- - like the present, where only der rules prescribed by the '' "' £ £ old corporation is taken tion, Which must have £ - away from the new, and the old Corporation bOard Of education, SII]CO O - istenc remains as a substantial legal entity. Such board of education was not : £ £ W: the case of McCully v. Board of EducaThe contract was, as it ought to e 5 i hich - 63 N. J. Law, 18, 42 Atl. 776, in W a contract where the personal element Was tion. - - - * ducation Still - - liability of the old board of educa considered, and Glazer could not be held un the • d judg- * • - ined and was enforced by Suit and judg der Such a contract to obey the Orders of an | remaine - Urt Sugother corporation. The words £ £ ":, ' £ £ t £ control of Said board of education” may have | gested t - • - - ds in the statute imposing an ither one of two meanings attributed to affirmative WOT . m. They may mean, as seems more nat- obligation upon the new board the creditor ' that Glazer was to be under the Con- might maintain an action against it, ' that, ural, - 3 - 1 - - - - dS ShOWing - - i he absence of negative WOr trol of the said board of education—that is, in t - his right and - - - ly a purpose to take a Way his rig the I'...' 'a £ : £, £ the old board, that remedy InOnlze - differS from - * - ... [4] The present case sonal services of Glazer with Glazer's con- remains. [ • th re no af- be the McCully Case, in that there a tract to obey its orders. It may, however, be imposing an 44 • We Words in the Statute imposing £ £ '' * £ upon the new district on a ConOà l'Oi Oi OCIU1C * - - • ly section of - - - - - - tract with a teacher. The only descriptive of the school, and in that view - hat is in an licable - - y way app11c the contract Would : : * : £ #": : ' enacts that in any new Flemington public School while it a | * : tion in its - • • • hool district the board of educatio that description. Whichever view is taken, sc - Sted With * | te capacity shall become veste the result is that Glazer's contract ended corpora 1 and per- - - - tle to all school property, real and p When the condition upon Which it depended the ti - - -- a--- if, for the erec- ime l, in such district, and if, for the ceased. In View of the fact that at the time sonal, f ch proper- within tion, repair, or purchase of any Such p this contract Was made Glazer came Wit | 3. btedness for Which - he ty, there shall be an indebtedne - - - - - - the description of persons protected by t - h hOOl district board Of education Of the SChoo so-called tenure of office act (P. L. 1909, p. the - - iginally belonged - i- to which said property originally 398), and became entitled under the provi - - dness Shall * p- liable, the said indebtedness sion of the pension act of 1907 (P. # '' - £ by and become the Obligation Of 286) to apply £ penS1On £ : the board of education of the School district further service, it was a W • ted With the ti* +1 Rari- which shall have become Veste the part of the board of education of gislature Was +--- * * * - - roperty. The Legislatu tan to limit his contract, £ *: £ # define the obligation Of of the obligation it imposed up - - - - - - - imited it to in- School district, and limi 1 tan board on the eve Of the dismemberment £ for the erection, repair, or purOf that school district. is in our judgment chase of property, the title to Which became [3] This £ £" ' Vested in the new school district. Counsel enough to dispose O e i.e. U * hat the COntract for the defendant argued tha however, argued the matter upon broader - l property, Which - - ient public with Glazer was personal prop * groundS, and the Case is of Suffic - Sed - d Of education. • - to the Flemington board 0 importance to justify an expression of Opin- passe - - ith th neral - - t not consistent with the gene ion in the more general aspect. The proposi [5] : 'o' Our law to hold that a Contract tion of the defendants is that a contract principles of - - -, - - d an for personal Services is aSSignable SO that made betWeen One public corporation and a h p ignee may command the labor Of One individual binds another public '' t . £ : to serve him. The assubsequently £ £ £ £ Of another man's labor was perthe same territory. The rig - - - iOr t - - - - arts of the country prior to ture to impose Such an £ £" '' the thirteenth amendment £ne: £ £ V. to the federal Constitution. This former £, £o's £ Glen Ridge, 54 505 37 Ati '63; McCully v. that have prevailed for nearly 50 years, and £ : #: 63 N J law 18, 42 Atl. with the decision of our Court of Errors and * . ... * ---> hlessinger V. 776. These cases are authority for the other Appeals in £ '' ". s: : 637 76 proposition that, in the absence of legislation Forest ' ''S R "A (N s.) 347 '13s Am. to the contrary, the old corporation remains | Atl. 10 627 If this legal d inculty howliable for pre-existing obligations. In ': £ the defendants argument Could be like £ W. £ # £, £ £ the Other language of the Section and Sprou W. SmlUn, iration was a' nec- makes it certain that the school property, obligation of the # eVV £ that the Leg- real and personal, in Such district cannot £ 'd COrporation but possibly refer to contracts With teachers. It - - - * - • • f l al to £: Of its Outstanding contracts. e reaSOn old - - - - the cases last cited is not applicable, how- the district, but it is quite impossible to hold

that such contracts create indebtedness for erection, repair, or purchase. Those words can refer only to tangible property—real estate or chattels.

[6] It is argued that, unless Flemington is to be held upon this contract, the act of 1910, creating the borough impaired the obligation of the contract with Glazer. This View Seems to have troubled the State Superintendent, and he escaped the difficulty by holding that the borough was created by the people themselves, and not by the Legislature. This answer is hardly Satisfactory. The real answer is that the effect of the creation of the borough was to leave the contract between Glazer and the Raritan board in full force and unimpaired. The obligation of neither party was affected. Raritan had the same right as before to Glazer's services, and Glazer had the Same right aS before to claim compensation from Raritan. It may have been this liability that induced the Raritan board to limit the contract aS We have already said. It is true that Glazer has lost such security for the performance of his contract as might be found in the liability of the inhabitants of Flemingtou to contribute to his pay. It does not necessarily follow that a claim against Raritan would be less easily collectible than before. It might well happen that the proportion of the debts of the old corporation that would fall upon Flemington under the provisions of section 34 would be large in proportion to the rateables, a result that would be very probable where a new and expensive Schoolhouse had recently been built within the territory of the new board out of the proceeds of bonds, for which, under section 34, the new board Would be liable. [7] There is another anSwer to this constitutional objection. The Supreme Court of the United States is the final authority, and it is there Settled that the Legislature of the state possesses the power to divide counties and towns at its pleasure, and to apportion the common property and the common burdens in such manner as to it may seem reasonable and equitable. Laramie County v. Albany County, 92 U. S. 307, 23 L. Ed. 552. This rule has quite recently been applied to legislation changing the boundaries of school districts (Ries v. Lowrey, 199 U. S. 23:3, 26 Sup. Ct. 27, 50 L. Ed. 167), and is approved with abundant citation of authorities in the still more recent case of Hunter v. Pittsburg, 207 U. S. 161, 28 Sup. Ct. 40, 52 L. Ed. 151. Mr. Justice Moody collected the authorities, and they appear on page 178 of 207 U. S., on page 46 of 28 Sup. Ct., 52 L. Ed. 151. It has the approval also of Our Court of Errors and Appeals. Bloomfield v. Glen Ridge, 54 N. J. Eq. 276, 33 Atl. 925; Id., 55 N. J. Eq. 505, 37 Atl. 63. The Severance of the school district did not impair the obligation of Glazer'S COntract,

For these reasons, the judgment of the State board of education is set aside, With COStS.

(108 Me. 377) FLAHERTY V. LIBBY. (Supreme Judicial Court of Maine. Oct. 5, 1911.)

1. CoNTRCTs (§ 117*)—RESTRAINT OF TRADEVALIDITY. An agreement by a seller of a business not to re-engage in a similar business in the same city for five years, if made on a sufficient consideration, is enforceable. [Ed. Note:-For_other cases, see Contracts, Cent. Dig. §§ 554–569; Dec. Dig. § 117.*]

2. INJUNCTION (§ 61*)—CoNTRACTS IN STRAINT OF TRADE.

The seller of a trucking business, under an incidental agreement not to re-engage in any similar business in the city or vicinity for five years, will be enjoined from violating the agreement directly, or as agent or employé of a competitor.

[Ed. Note.—For other cases, see Injunction, Cent. Dig., §§ 120–123; Dec. Dig. § 61.*]

Report from Supreme Judicial Court, Cumberland County.

Bill by Patrick J. Flaherty against Charles E. Libby. On report. Decree for plaintiff.

Bill in equity brought by the plaintiff, praying that the defendant be enjoined from engaging, either directly or indirectly, in the trucking business in the city of Portland for five years. The defendant had previously Sold his trucking busineSS in Said city to the plaintiff, and had agreed in Writing that he would not engage in “any similar business in Portland, or vicinity,” for the term of five years from the date of the agreement. An agreed statement of facts was filed, and the CauSe reported to the law COurt for determination.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and IIALEY, J.J.

Connellan & Connellan, for plaintiff. Percy M. AndrewS, for defendant.

RE

HALEY, J. This is a bill in equity, reported to this Court upon an agreed Statement of factS. *

On the 1st day of August, 1910, and for several years prior thereto, the defendant, Charles E. Libby, Was the owner of a trucking business in the city of Portland, and on that day Sold, transferred, and delivered to the plaintiff Said business; the bill of Sale being in the Ordinary form, with a full description of the property sold, and containing the following agreement:

“I also, in consideration of above, and other considerations named in the mortgage which is a part of this transaction, agree not to engage in any Similar business in Portland, or vicinity, for the term of five years from the day of the date hereof.”

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