Deming v. Grand Trunk Railway Company.

company. Nor do we think there was any error in the instructions as to plaintiffs' expenses in looking up the wool. Sedg. cr Dam. 359, in note and cases cited, 4th ed. The objection in fact is not urged by counsel.

The instructions in respect to the authority of Cummings were sufficiently favorable to the defendants. He was the station agent at the Northumberland depot, and he testified that he had full charge of receiving and forwarding freight at that station; and although he also testified that his duties in regard to freight were to receive, weigh, fill and get it off as soon as possible, and that he had no authority to make contracts, and no authority over the locomotive power of the road, and that he never agreed to send any freight except live stock at any particular time, we think the jury might legally find that defendants held him out as their agent authorized to contract for sending freight the next day.

This was the subject of the instructions on this point, and we think there was no error. If, for the convenience of the corporation, Cummings was voluntarily placed in a situation of apparent authority, and so held out to the public as competent to make the -contract in question, the defendants will be bound, although the agent had in fact exceeded his authority, and even if the defendants were entirely innocent of any purpose to mislead; for when one of two innocent persons is to suffer, he ought to suffer who misled the other into the contract by voluntarily placing the agent in a situation of apparent authority.

In this case the agent was apparently clothed with the sole charge of receiving and forwarding freight at that depot, and it might well be supposed to be within the ordinary scope of his duties to make agreements as to the time of forwarding such freight. If such power was possessed by any one at that depot, it must have been by him, and we think the jury were well warranted in finding as they did. In 2 Redfield on Railways, 113, it is laid down that station agents who receive and forward freight have power to bind the company that the goods shall be forwarded to a point beyond the terminus of that road before a particular hour, notwithstanding a general notice published that the company would not be liable beyond their own road; and so is Wilson v. York, New Castle and Berwick Railway, 18 Eng. Law and Eq. 557; Story on Agency, § 443, 127; Backman v. Charlestown, 42 N. H. 125, 131, 133; Burnside v. Grand Trunk Railroad, 47 id. 554.

Deming v. Grand Trunk Railway Company.

In respect to the first count, the evidence offered by defendants. as to the unexpected rush of freight was properly rejected; and the jury having found a binding contract to carry the wool by the next freight train, the verdict will not be disturbed, even if the evidence were admissible under the second count. When the carrier contracts to carry goods within a prescribed time, no temporary obstruction, or even an absolute impossibility of complying with the engagement, will be a defense to an action for failing to perform his engagement; for when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by his contract. It is otherwise, however, when the duty is created by law. Ang. on Car. § 294, and cases in note. So it is held in 2 Redf. on Rail. 162, in note and cases. The same doctrine is laid down in Hadley v. Clarke, 8 T. R. 267, per LAWRENCÉ, J.

With these views there must be

Judgment on the verdict.

CASES

IN THE

SUPREME COURT

OF

ILLINOIS.

PEOPLE ex rel., McCAGG et al. v. THE MAYOR, ETC., OF CHICAGO.

(51 Ill. 17.)

Municipal corporations — Power of legislature to compel them to incur debt An act of the legislature for establishing and improving a public park in the city of Chicago, after providing for the appointment of a board of commis sioners, with authority to purchase lands, provided further, that, for the purpose of paying for such lands, the bonds of the city of Chicago, to such an amount as should be necessary, should be issued by the mayor, comp troller and clerk of said city, from time to time as the same should be required by the board of park commissioners, and that they should be delivered to said board upon demand. In pursuance of this authority, the board of park commissioners determined that bonds of said city should be issued to the amount of $500,000, for the purpose specified, and applied tc the city officers named to issue such bonds, which they refused to do. On an application to the court for a writ of mandamus to compel such officers to issue and deliver said bonds, held, that the legislature had no power under the constitution to compel a municipal corporation to incur a debt for local improvements, without its consent, and that therefore a mandamus would not be granted.

THE questions presented by this record arise on a demurrer to an alternative writ of mandamus, issued on the relation of Ezra B. McCagg, John B. Turner, Joseph Stockton, Andrew Nelson and Jacob Rehm, styling themselves "Commissioners of Lincoln park," in the city of Chicago, and against the mayor, comptroller and clerk of that city, requiring them to show cause why a peremptory writ should not be awarded against them, to compel them, forthwith, to

People v. The Mayor, etc., of Chicago.

execute and deliver to the relators certain bonds of the city, to which they claim to be entitled, in virtue of an act of the general assembly of this state, entitled "An act to fix the boundaries of Lincoln park, and provide for its improvement," approved February 8, 1869.

The act in question is set out in the writ. It devotes certain iands within defined boundaries in the towns of North Chicago and Lake View to the purposes of a public park, to be known as "Lincoln park." All the land within the designated boundaries, belonging to the city, is appropriated without any compensation to the city, and the title to other lands for the same purpose is permitted to be acquired by purchase or condemnation.

A board of commissioners is created, with authority to purchase any of the lands within the designated boundaries, at fair and reasonable prices, to be determined by them, and to be paid for out of bonds or money coming to their hands for the purpose of acquiring title; such lands to be conveyed to and vest in the city, to be used as a part of the park. For the purpose of acquiring land by condemnation, appraisers were to be appointed by the circuit court of Cook county, on application of the board of commissioners.

It is then provided by section 12, as follows: "For the purpose of paying for the land taken for such park under the provisions of this act, the bonds of the city of Chicago, to such an amount as shall be necessary for that purpose, shall be issued by the mayor, comptroller and clerk of said city, from time to time, as the same shall be required by the board of park commissioners, for the purpose aforesaid, and shall be delivered to said board upon demand. And said bonds shall be payable in twenty years from the date thereof, and shall bear interest at the rate of seven per cent per annum, payable half-yearly, on the first days of January and July in each year; and the said bonds and the proceeds of the sale thereof shall constitute the fund for paying the cost of the lands taken for the park.”

By section 14, authority is given the board of commissioners to use these bonds at their par value, by paying any amount which the city shall have become liable to pay for the lands purchased or condemned, or they may sell the bonds at public or private sale, or by subscription, upon such terms as said commissioners shall determine; and power is given to pledge the bonds for money borrowed temporarily, at a rate of interest not exceeding ten per cent per annum, if deemed expedient by the commissioners so to do.

People v. The Mayor, etc., of Chicago.

Section 16 pledges the property of the city and the lands so authorized to be taken for the park, for the payment of the principal and interest of these bonds.

Section 19 places the park under the exclusive control and management of a board of commissioners, to consist of five persons, named and styled "The Commissioners of Lincoln park."

Section 20 appoints the relators the first board of commissioners, to hold office as such for five years, without any compensation for their services, and in case of a vacancy within the five years, the same to be filled by the remaining members of the board, and all vacancies occasioned by expirations of the terms of office, to be filled by the judge of the circuit court of Cook county.

Section 21 gives to this board the exclusive control and government of the park, with power to lay it out and regulate it, and to pass ordinances for its government; to appoint engineers, surveyors, clerks and other officers, except a police force; to prescribe and define their duties and authority; to fix the amount of their compensation, and require bonds for the faithful performance of their duties; and, generally, to possess all the power and authority by law conferred on, or possessed by, the common council of the city in respect to public squares and places în the city, and to vacate any public street or alley within the limits of the park.

By section 3 of an act amendatory of this act, approved March 30, 1869, it was provided, that the common council of the city should not issue, or cause to be issued, nor should any officer of the city execute or negotiate, the bonds of the city for the use of this park to an amount exceeding $500,000.

These are all the portions of the acts upon which the question arise. North Chicago, South Chicago and West Chicago are regu larly organized townships of Cook county, and which together com plete the city of Chicago. The town of Lake View is also an organized township, but forms no part of the city.

The alternative writ alleges that the relators accepted the place of commissioners, took the oath and gave the bonds as prescribed by the act; that they met and organized by the election of Ezra B. McCagg, president, and appointed Joseph Stockton secretary, and since their organization they had caused surveys to be made, and had applied for the appointment of appraisers, who were appointed by the circuit court of Cook county; that the appraisers have quali fied and entered upon the discharge of their duties, and that the