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The further grounds of demurrer are, in L. R. A. 126, 26 Atl. 510, where, having refsubstance, that the appellants have not, in erence to Acts 1890, p. 408, chap. 370, Judge their bill, stated a case for relief in equity Bryan delivering the opinion of the court, against the defendant; that they have no said: "It has been for a long time recstanding in a court of equity to ask relief ognized as the law that the mayor and city on the contract between the appellee and the council of Baltimore have full and commayor and city council of Baltimore; and plete control over the streets and highways that their bill is multifarious. As to the of the city. It had been considered, howrights of the appellants under ordinance cver, that certain uses could not be made 110, and their standing in court to enforce of them without the sanction of an act of the same, the nature of the ordinance must the general assembly. For this reason the determine. In the light of the preamble to legislature saw fit to enlarge the corporate the ordinance there can be but little doubt powers of the city.” And Chief Justice Alas to the intent with which it was enacted, vey, who delivered a separate opinion upon or the main object is was intended to accom- the motion for reargument of the case, said, plish. Its evident purpose was to minister | in relation to the provision in question, that to what it described as next to a public ne it was “but an application oí their (the cessity; to make it practicable for the citi- city's] general power over the right and zens of the niunicipality to more generally duty to regulate and maintain the streets arail themselves of telephone facilities, and and other highways of the city for the to that end to relieve them from the high use of the public.” Having thus recognized prices of a corporation, which was said to be and asserted the full and ample power of then having "a monopoly of the telephone the municipality over the subjects commitbusiness” in the city of Baltimore, whereby ted to its control under the provision of law these facilities were put "beyond the reach to which reference is now being made, the of persons of ordinary means," and were case distinctly held that the municipality "confined to a favored few;" to secure for in the exercise of such power, was acting persons of moderate means the “great boon” in a legislative capacity; that it was disand "to the business community at large” charging a trust committed to it for the the “great advantage” of a cheaper telephone public benefit; and that it could not relieve service. It is also evident that the ordi- itself of the duty it owed to the public,—it nance was passed upon the faith of the ap- could not devest itself of the power, and pellee having declared itself ready and will the corresponding duty, and could not ing to supply such service at rates very abridge it. In the course of his opinion much lower than those "then prevailing.” Judge Bryan refers several times to the The design of the ordinance therefore was power in question as a legislative power, and the public good, to secure a public benefit, makes this the foundation of the theory upand to promote the public welfare. It was on which the case was decided; and Chief to that extent legislation, and, if in this Justice Alvey, in his opinion, says: “The respect, it was within the powers of the power vested in them (the mayor and municipality to enact it, it was something city council] in respect to the streets is of more than a mere contract with the appel- | a legislative character; and they can neither lee for the purposes of the municipality as restrict themselves nor their successors, by a corporate entity. The power under which any irrepealable ordinance, in the exercise the municipality proceeded in enacting the of such power over the streets, except it be ordinance in question is found expressed in by express authority of the legislature of § 819a of article 4 of the Code of Public the state.” The character and nature of the Local Laws, as enacted by Acts 1890, p. 408, power to be exercised by the mayor and city chap. 370, and is in these words: “The council of Baltimore in making regulations mayor and city council of Baltimore shall and granting permission for the use of its have power to regulate the use of the streets, streets for any of the purposes named in lanes, and alleys in said city by railway or the provision of law by which such power other tracks, gas or other pipes, telegraph, is conferred having been thus defined, was telephone, electric light, or other wires and the municipality acting within the purview poles, in, under, over, or upon the same, and of such power in imposing upon the appelmay require all such wires to be placed un lee the condition expressed in § 4 of ordiderground, after such reasonable notice as nance 110 as respects the rates of charges they may prescribe.” The same power is therein specified for telephone service ? contained in the present charter of the city It is contended that the condition annexed 1$ 6), as enacted by Acts 1898, p. 244, chap. to the ordinance in this respect is an at123. This provision of the charter of the tempt on the part of th mayor and city city of Baltimore was before this court for council to exercise the function of the legis. construction in the case of Lake Roland lature which alone can prescribe or regulate Elev. R. Co. v. Baltimore, 77 Md. 352, 20'the compensation of a public service corpo

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ration. This does not result from any fair , pality, in having the control of the streets construction of the ordinance. It is for the as indicated, is invested with a trust for legislature to grant, or provide for granting, the benefit of the community, and has imcharters to corporations; and in making posed upon it a duty to the general public such grants to impose, at its pleasure, re in that connection. The law gives to the strictions and limitations upon the powers municipality the right to regulate the use to be exercised by them when created. It of its streets, and requires of a public-servcan, at pleasure, regulate, in the charters ice corporation that it shall obtain from of public-service corporations, the compensa- the municipality the requisite authority to tion which they may exact for services in use the streets and highways thereof where cident to the object of their creation. These such use is desired for its corporate purregulations, when imposed, are limitations poses. It cannot be the duty of the municiupon the powers of the corporation, and they pal authorities to grant such use for the must, in making contracts and carrying out mere advantage of the corporation, while their purposes, act within the limitations so it is their duty, in granting the same, to imposed; but, acting within these limita secure the largest measure of advantage to tions, the corporation has the right to make the general public with a just regard for the contracts at its pleasure and do any act for rights of the corporation. It would seem to carrying out its legitimate purposes. Now, be but a reasonable incident to and exercise when the ordinance in question was passed of the power to regulate the use of the by the mayor and city council of Baltimore streets and highways which has been conand accepted by the appellee corporation, the ferred by the provision of law we are here latter had its charter, and was subject, in considering, that, where a public-service cormaking its contracts, only to the limita- poration gets permission to use such streets tions which the law imposed. Within these and highways for its corporate purposes, limitations, it was free to contract. In and such purposes consist in making conpassing the ordinance the municipality made tracts with the citizens of the municipality no attempt to interfere with the chartered to which the power is intrusted and ex. rights of the appellee, or to abridge its char- acting from them compensation for a serrtered powers.

It did not attempt of its ice that for urgent reasons of convenience own authority and right to impose upon the or the necessities of business conditions they appellee, in invitum, the rates of charge for must avail of, the permission can be granttelephone service specified in the ordinance. ed under such regulations as to rates of The appellee had, at the time of the passage charges as will protect the community of the ordinance, the right to refuse to ac against extortionate exactions, and secure cept its terms. In accepting these it was fair and reasonable terms in availing of the acting within its chartered powers and in facilities which the corporation furnishes. the free exercise of its chartered rights. All It cannot be here objected by the appellee of the obligations imposed by the ordinance that the regulation contained in the orwere imposed by the appellee upon itselfdinance here in question as to rates of by its own voluntary action in accepting the charge was not a reasonable one. The time ordinance. As well might it be said, if the to have urged such a consideration was beordinance had omitted the condition as to fore it accepted the ordinance and availed rates of charge, that the appellee, in con- of the privileges it acquired thereunder. tracting with individuals at the rates men- Whatever may have been the description of tioned in the ordinance, which it would have service the appellee was to furnish under had the right to do, was being subjected to the ordinance 110, it would seem to be conan illegal imposition, as to say that the or- cluded as to the reasonableness of the rates dinance in question, under the circumstances of charge for that description of service by appearing here, is to be taken as having that its own voluntary action. It follows from effect. While there was no attempt on the the construction and the effect which we part of the mayor and city council of Bal- think it proper to give to the power contimore to usurp the function of the legisla- ferred by law upon the mayor and city ture by imposing the condition expressed in council of Baltimore in pursuance of § 4 of ordinance 110, in undertaking there which ordinance 110

enacted by by the regulation of the compensation of them, that the ordinance imposed upon a public-service corporation they would seem the appellee a duty to the general public to be, in incorporating the condition men- which the members thereof have a right to tioned in the ordinance, within their limited enforce against it in conditions which will or quasi legislative power in respect to the show that it is violating such duty. control of the streets and of their use or There are authorities which seem to be occupation by “telegraph, telephone, clec- directly in point, going to support the views tric light, or other wires and poles in, un- which have been expressed. In the case of der, over, or upon the same.” The munici- ' People ex rel. Jackson v. Suburban R. Co.

was

178 Ill. 594, 49 L. R. A. 650, 53 N. E. 349, | permit the use of its streets, alleys, and pubthe village of River Forest, a municipal lic places by the corporation.” In the case corporation organized under the general of Rice v. Detroit, Y. & A. A. R. Co. 122 statutes of the state of Illinois, granted by Mich. 677, 48 L. R. A. 84, 81 N. W. 927, a ordinance to a suburban railroad company similar franchise was granted to the railway perinission to use the streets of the munici- by the village of Dearborn, and, amor pality under regulations prescribed in the other regulations, rates of fare to be charged ordinance. Among these regulations a sec- by the railroad were prescribed in the ortion of the ordinance provided "that the dinance granting the franchise. The railrate of fare shall not exceed 10 cents for road failed to provide certain tickets to be one continuous ride of one trip from any sold to passengers at the prescribed rate, point on said railroad in River Forest to so that they could be had at a point where any station on the loop line or some point in the same were called for by a passenger, the city of Chicago," etc. “Provided that whereby the passenger was compelled to pay the fare between any point on said railroad fare in excess of the prescribed rate, and he in the village of River Forest and any of was permitted to recover the excess of fare the said points in the city of Chicago the paid in an action of assumpsit. In the case said point of connection of said railroad of Westfield Gas & Mill. Co. v. Mendenhall, with any elevated railroad as aforesaid, and 142 Ind. 538, 41 N. E. 1033, an act of the intermediate points, shall not exceed the legislature of Indiana of 1887 (Laws 1887, fare charged at any point in the town of p. 36, chap. 20) had provided that incorCicero west of the east line of Central ave- porated towns and cities could provide by nue, or in the village of Harlem, or in general ordinance to reasonably regulate the either of them, to the same points or return, supply, distribution, and consumption of nat. either for single trip or at commutation ural gas within their respective corporate rates or otherwise.” The railroad company, limits, and to require a fee for the use of in 1898, while maintaining the rate of 10 the streets, etc. The town of Westfield, a cents in the village of River Forest and the municipal corporation, passed such an orsame for return or intermediate points, that dinance, and provided a maximum schedule being the highest rate of fare, offered for of rates to be charged to consumers for the sale and sold 12 tickets for a dollar, good supply of gas, and fixed the price to be for one continuous ride over its road in the charged for kitchens and cook stoves at 80 town of Cicero only, and refused to sell tick- cents per month for twelve months,-$9.60 ets for 12 rides for a dollar from any point per year. Under said ordinance the Westin River Forest, but continued to charge 10 field Gas & Milling Company contracted cents, etc. A mandamus was sued out by with the municipality for furnishing gas to the relator to compel the company so long the inhabitants thereof, and agreed “that, and at such times as it sold tickets at the in consideration of the town waiving its rate of 12 for a dollar from the own of rights by law to require” the gas company Cicero, etc., to sell tickets at the same rate to pay a license fee for the use of the streets, from any point on its line in the village of to furnish gas to consumers in the town "in River Forest, etc. The supreme court or- accordance with a schedule of rates and dered the writ accordingly, and in the course prices fixed by said ordinance.” The gas of the opinion in the case said: "While it company afterwards gave notice that, when is true the charter of a street railway cor. contracts with

then current poration is granted under the general laws should expire, it would charge thereafter $1 of the state yet a charter so obtained gives per month for the use of gas for cook stoves, but the bare power to exist. In order to instead of 80 cents, the then rate of charge. enable such a corporation to carry out the Certain of the inhabitants of the town, who sole purpose for which it has existence it were consumers of gas and patrons of the must have a further exercise of sovereign gas company, applied for an injunction to power in its behalf. Some city or village restrain said company "from carrying out clothed by delegation with authority to ex- its purpose to deprive them of the use of ercise sovereign power possessed by the natural gas from the plant of the” company state must grant such corporation authority "upon the ground” that they "had refused to enter upon its streets and alleys, and to pay a price therefor in excess of the maxconstruct and operate its road there. The imum rate fixed” by the ordinance. There power possessed by the state to attach as was a demurrer to the bill of complaint, and conditions to such a grant the performance the same was overruled by the lower court, of duties owing by a quasi public corpora- whose action was affirmed on appeal. The tion to the public, and directly beneficial appellate court in its opinion said: “The to the public, may be exercised by a munici. town had the right, in granting the use of pality in the exercise of the power by it its streets, to impose such reasonable, repossessed by delegation from the state, to'quirements, terms, regulations, and condi. tions therein upon those accepting the priv-| the facts alleged in connection with these ileges and benefits of the grant, as its own contracts are to some extent variant, yet prudence and discretion night dictate, so as this, under the circumstances of the case, not to restrict, however, the town in its le can create no difficulty or embarrassment in gitimate exercise of legislative powers. The decreeing the relief which the bill seeks. The authority to prescribe such terms and con- appellants all have a common interest in enditions, if not expressly conferred by the act forcing the duty imposed upon the appellee of 1887, may at least be reasonably inferred under the ordinance No. 110, and this is, therefrom, in order that the full force and in substance and effect, what the bill asks effect may be given to the power expressly to have done. The ordinance is the source granted.” Upon both reason and authority and foundation of the rights asserted by all which commends itself to our approval we the appellants, and, in effect, the relief think the appellants have rights under the prayed is that the ordinance may be deordinance No. 110 which they are entitled to creed effective. The decree will be against enforce in this proceeding against the ap- the same defendant, and in substance will pellee.

consumers

give the same relief to each and all of the The remaining ground of demurrer to be appellants. The case bears an analogy, in considered is that the bill of the appellants the aspect we are now considering, to the is multifarious because the appellants have case of Baltimore v. Gill, 31 Md. 375, where contracts with the appellee each of which is the complainants had distinct and separate distinct and separate from the other. We interests affected by the causes of complaint, do not think the bill is open to this objec- and yet had a common interest in having tion. “As to the doctrine of multifarious- the source and foundation of these causes ness, all the authorities agree that there is removed. As a consequence of the views no rule of universal application, and all con- herein expressed, the decree of the court becede that much must be left to the discre- low sustaining the demurrer to the bill of tion of the court in particular cases.” See the appellants and dismissing the bill must Brian v. Thomas, 63 Md. 476-480; Neal v. be reversed. Rathell, 70 Md. 592–598, 17 Atl. 566. While Decree below reversed, and cause remand. it is true that the appellants have distinct ed, with costs to the appellants. and separate contracts with the appellee, and

MASSACHUSETTS SUPREME JUDICIAL COURT.

session

Charles T. TATMAN, Trustee in Bankrupt. cover the value of property belonging to a cy of Nelson H. Davis, Appt., bankrupt's estate which was alleged to have

been wrongiully converted by defendant. John B. HUMPHREY.

Reversed.

The facts are stated in the opinion. (184 Mass. 361.)

Mr. Charles T. Tatman, in propria

persona: Permitting a mortgagee to take pos

The transaction is shown to have been a of mortgaged chattels after fraud worked in concert by the debtor and the mortgagor has become insolvent, under an

the defendant. unrecorded mortgage which had been in existence a long time, is an act of bankruptcy

Smith v. Boward, 173 Mass. 89, 53 N. E. under the act of Congress of 1898, and the 143; Blanchard v. Cooke, 144 Mass. 226, 11 preference thereby secured will be defeated N. E. 83; Bingham v. Jordan, 1 Allen, 373, by the institution of bankruptcy proceedings 79 Am. Dec. 748; Lowell, Bankruptcy, $ 12. within four months after that time.

This taking of the debtor's stock was (November 25, 1903.)

guilty preference, and, being voidable by the

trustee, its value may be recovered for the A PPEAL by plaintiff from a judgment of creditors, the Superior Court

The preference must be deemed to have ty in defendant’s favor in an action to re- taken place when the defendant took posses

Note.-As to what constitutes an unlawful sion of the goods. preference within the meaning of the bank

Wilson Bros. v. Nelson, 183 U. S. 191, 46 ruptcy act, see, in this series, Berger v. Var. L. ed. 147, 22 Sup. Ct. Rep. 74; Re Klingarelmann, 12 L. R. A. 808 ; Akers v. Rowan, 10 man, 101 Fed. 691; Mathews v. Hardt, 79 L. R. A. 705 ; Manning v. Beck, 14 L. R. A. 198 ; Cutter v. Pollock, 25 L. R. "A. 377; Sand: App. Div. 570, 80 N. Y. Supp. 462; Fletcher wich Mfg. Co. v. Max, 24 L. R. A. 524 ; and Re

V. Powers, 131 Mass. 333; Blanchard y. Fixen & Co. 50 L, R. A. 605.

Cooke, 144 Mass. 207, 11 N. E. 83.

a

A inortgage to secure future advances is more than two years before the bankruptcy valid.

of the inortgagor, which covered the stock Commercial Bank v. Cunningham, 24 of goods and fixtures then owned by the Pick. 270, 35 Am. Dec. 322; Codman v. Free- mortgagor and such future additions as he man, 3 Cush. 306; Barnard v. Moore, 8 Al should make thereto, and which was made len, 273.

to secure payment of certain notes and of A mortgage which covers after-acquired future indebtedness, is good against the trusproperty is valid.

tee in bankruptcy of the mortgagor. Under Bennett v. Bailey, 150 Mass. 257, 22 N. E. Rev. Laws, chap. 198, § 1, because of the 916; Bliss v. Crosier, 159 Mass. 498, 34 N. failure to record the mortgage within fifteen E. 1075; Chase v. Denny, 130 Mass. 566. days of the date written therein, and be

The fact that the mortgage is not record-cause the property had not been delivered cd does not make it invalid.

to and retained by the mortgagee, the mort. Folsom v. Clemence, 111 Mass. 273. gage was not valid against any person other

The act of taking possession relates back than the parties thereto. Haskell v. Merrill, to the time of the execution of the mortgage. 179 Mass. 120, 60 N. E. 485. About three

Mr. William H. Brown, for appellee: weeks before the commencement of the pro

There is no provision in the bankruptcy ceedings in bankruptcy, the mortgagor then statute of the United States which requires being insolvent, and the defendant having mortgages of personal property to be record- reasonable cause to believe him insolvent, ed. We must examine the Massachusetts the defendant took possession of the propstatute and cases to see whether there is erty covered by the mortgage, by removing any illegality, because of the failure to re- it from the mortgagor's store, and aftercord the mortgage and in the defendant's wards retained it. After taking possession act of taking possession of the property he served a notice of his intention to sorecovered by the mortgage.

close the nortgage under the provisions of Haskell v. Merrill, 179 Mass. 120, 60 N. Pub. Stat. chap. 192, $8 7–9. The defendE. 485.

ant's acquisition of possession of the mortPrevious to the statute it was not neces- gaged property before the commencement of sary to record a inortgage, or to take pos- the proceedings in bankruptcy, and before session of the property to be protected third persons had acquired liens or rights against third persons.

by attachment or otherwise, gave him a Homes v. Crane, 2 Pick. 607; Wright v. title which was good at common law against Tetlow, 99 Mass. 397.

creditors, and which would have been good A mortgage is valid which gives the power against an assignee in insolvency under the to sell in the ordinary course of business. statutes of this commonwealth, or against

Mitchell v. Black, 6 Gray, 100; Chase v. assignee in bankruptcy under the Denny, 130 Mass. 566.

United States bankruptcy act of 1867 (14 The bankrupt must himself have done Stat. at L. 517, chap. 176). Folsom v. something within the four months in order Clemence, 111 Mass. 273; Chase v. Denny, to make a preference or an invalid lien, oth- 130 Mass. 586; Blanchard v. Cooke, 144 erwise it would be invalid for a mortgagee Mass. 207, 11 N. E. 83; Bennett v. Bailey, under any mortgage to take possession of 150 Mass. 257. 22 N. E. 916; Bliss v. Cro. property within the four months.

sier, 159 Mass. 498, 34 N. E. 1075; Haskell Pirie v. Chicago Title & T. Co. 182 U. S. v. Jerrill, 179 Mass. 120, 60 N. E. 485; 438, 45 L. ed. 1171, 21 Sup. Ct. Rep. 906 ; Gibson v. Wurden, 14 Wall. 244, 20 L. ed. Wilson v. Nelson, 183 U. S. 191, 46 L. ed. | 797; Sawyer v. Turpin, 91 U. S. 114, 23 L. 147, 22 Sup. Ct. Rep. 74; Metcalf v. Bar- | ed. 235. ker, 187 U. S. 165, 47 L. ed. 122, 23 Sup. Ct. The question of difficulty in the case Rep. 67.

arises under the United States bankruptcy Under the old act this mortgage, where act of 1898 (Act July 1, 1898, chap. 541 possession actually taken, although [30 Stat. at L. 544, U. S. Comp. Stat. 1901, within the four months, would have passed p. 3418]), whose provisions in regard to without question.

preferences and acts of bankruptcy disfer Clark v. Iselin, 21 Wall. 360, 22 L. ed. materially from those of the bankrupt act 568; Stewart v. Platt, 101 U. S. 731, 25 L. of 1867. In Wilson Bros. v. Nelson, 183 U. ed. 816; Hauselt v. Harrison, 105 U. S. 401, S. 191, 46 L. ed. 147, 22 Sup. Ct. Rep. 74, 26 L. ed. 1075.

the Supreine Court of the United States, in

an elaborate opinion, discussed this differKnowlton, Ch. J., delivered the opinion ence, and pointed out its effect in cases of the court:

sinilar to the present. In that case the The question in this case is whether the bankrupt, when solvent, nearly thirteen defendant's title under an unrecorded mort- years before his bankruptcy, gave an irrevgage of personal property, made to him'ocable power of attorney to confess judg.

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