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 ever, 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 of their [the cessity; to make it practicable for the citi- city's] general power over the right and zens of the municipality to more generally duty to regulate and maintain the streets avail 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 underground, after such reasonable notice as they may prescribe." The same power is contained in the present charter of the city It is contended that the condition annexed (§ 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 the mayor and city city of Baltimore was before this court for council to exercise the function of the legisconstruction 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

lee the condition expressed in § 4 of ordinance 110 as respects the rates of charges therein specified for telephone service?

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 limitations, it was free to contract. In passing the ordinance the municipality made no attempt to interfere with the chartered rights of the appellee, or to abridge its chartered powers. It did not attempt of its own authority and right to impose upon the appellee, in invitum, the rates of charge for telephone service specified in the ordinance. The appellee had, at the time of the passage of the ordinance, the right to refuse to accept its terms. In accepting these it was acting within its chartered powers and in the free exercise of its chartered rights. All of the obligations imposed by the ordinance were imposed by the appellee upon itself by its own voluntary action in accepting the ordinance. As well might it be said, if the ordinance had omitted the condition as to rates of charge, that the appellee, in contracting with individuals at the rates mentioned in the ordinance, which it would have had the right to do, was being subjected to an illegal imposition, as to say that the ordinance in question, under the circumstances appearing here, is to be taken as having that effect. While there was no attempt on the part of the mayor and city council of Baltimore to usurp the function of the legislature by imposing the condition expressed in §4 of ordinance 110, in undertaking thereby the regulation of the compensation of a public-service corporation they would seem to be, in incorporating the condition mentioned in the ordinance, within their limited or quasi legislative power in respect to the control of the streets and of their use or occupation by "telegraph, telephone, clectric light, or other wires and poles in, under, over, or upon the same." The munici

and highways for its corporate purposes, and such purposes consist in making contracts with the citizens of the municipality to which the power is intrusted and exacting from them compensation for a service that for urgent reasons of convenience or the necessities of business conditions they must avail of, the permission can be granted under such regulations as to rates of charges as will protect the community against extortionate exactions, and secure fair and reasonable terms in availing of the facilities which the corporation furnishes. It cannot be here objected by the appellee that the regulation contained in the ordinance here in question as to rates of charge was not a reasonable one. The time to have urged such a consideration was before it accepted the ordinance and availed of the privileges it acquired thereunder. Whatever may have been the description of service the appellee was to furnish under the ordinance 110, it would seem to be concluded as to the reasonableness of the rates of charge for that description of service by its own voluntary action. It follows from the construction and the effect which we think it proper to give to the power conferred by law upon the mayor and city council of Baltimore in pursuance of which ordinance 110 was enacted by them, that the ordinance imposed upon the appellee a duty to the general public which the members thereof have a right to enforce against it in conditions which will show that it is violating such duty.

There are authorities which seem to be directly in point, going to support the views which have been expressed. In the case of People ex rel. Jackson v. Suburban R. Co.

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 permission to use the streets of the munici- by the village of Dearborn, and, among 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 or 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 nateither 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 town 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 consumers 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 prudence and discretion might dictate, so as not to restrict, however, the town in its legitimate exercise of legislative powers. The authority to prescribe such terms and conditions, if not expressly conferred by the act of 1887, may at least be reasonably inferred therefrom, in order that the full force and effect may be given to the power expressly granted." Upon both reason and authority which commends itself to our approval we think the appellants have rights under the ordinance No. 110 which they are entitled to enforce in this proceeding against the appellee.

The remaining ground of demurrer to be considered is that the bill of the appellants is multifarious because the appellants have contracts with the appellee each of which is distinct and separate from the other. We do not think the bill is open to this objection. "As to the doctrine of multifariousness, all the authorities agree that there is no rule of universal application, and all concede that much must be left to the discretion of the court in particular cases." See Brian v. Thomas, 63 Md. 476-480; Neal v. Rathell, 70 Md. 592-598, 17 Atl. 566. While it is true that the appellants have distinct and separate contracts with the appellee, and

contracts are to some extent variant, yet this, under the circumstances of the case, can create no difficulty or embarrassment in decreeing the relief which the bill seeks. The appellants all have a common interest in enforcing the duty imposed upon the appellee under the ordinance No. 110, and this is, in substance and effect, what the bill asks to have done. The ordinance is the source and foundation of the rights asserted by all the appellants, and, in effect, the relief prayed is that the ordinance may be decreed effective. The decree will be against the same defendant, and in substance will give the same relief to each and all of the appellants. The case bears an analogy, in the aspect we are now considering, to the case of Baltimore v. Gill, 31 Md. 375, where the complainants had distinct and separate interests affected by the causes of complaint, and yet had a common interest in having the source and foundation of these causes

removed. As a consequence of the views herein expressed, the decree of the court below sustaining the demurrer to the bill of the appellants and dismissing the bill must be reversed.

Decree below reversed, and cause remanded, with costs to the appellants.

MASSACHUSETTS SUPREME JUDICIAL COURT.

Charles T. TATMAN, Trustee in Bankrupt- | cover the value of property belonging to a cy of Nelson H. Davis, Appt.,

v.

John B. HUMPHREY.

(184 Mass. 361.)

Permitting a mortgagee to take possession

of mortgaged chattels after the mortgagor has become insolvent, under an unrecorded mortgage which had been in existence a long time, is an act of bankruptcy under the act of Congress of 1898, and the preference thereby secured will be defeated by the institution of bankruptcy proceedings

within four months after that time.

(November 25, 1903.)

bankrupt's estate which was alleged to have been wrongfully converted by defendant. Reversed.

The facts are stated in the opinion.

Mr. Charles T. Tatman, in propria persona:

The transaction is shown to have been a fraud worked in concert by the debtor and the defendant.

Smith v. Howard, 173 Mass. 89, 53 N. E. 143; Blanchard v. Cooke, 144 Mass. 226, 11 N. E. 83; Bingham v. Jordan, 1 Allen, 373, 79 Am. Dec. 748; Lowell, Bankruptcy, § 12.

This taking of the debtor's stock was a guilty preference, and, being voidable by the trustee, its value may be recovered for the

APPEAL by plaintiff from a judgment of creditors.

the Superior Court for Worcester County in defendant's favor in an action to reNOTE. As to what constitutes an unlawful preference within the meaning of the bankruptcy act, see, in this series, Berger v. Varrelmann, 12 L. R. A. 808; Akers v. Rowan, 10 L. R. A. 705; Manning v. Beck, 14 L. R. A.

198; Cutter v. Pollock, 25 L. R. A. 377; Sand.

wich Mfg. Co. v. Max, 24 L. R. A. 524; and Re Fixen & Co. 50 L. R. A. 605.

The preference must be deemed to have taken place when the defendant took possession of the goods.

Wilson Bros. v. Nelson, 183 U. S. 191, 46 L. ed. 147, 22 Sup. Ct. Rep. 74; Re Klingaman, 101 Fed. 691; Mathews v. Hardt, 79 App. Div. 570, 80 N. Y. Supp. 462; Fletcher v. Powers, 131 Mass. 333; Blanchard v. Cooke, 144 Mass. 207, 11 N. E. 83.

A mortgage to secure future advances is valid.

more than two years before the bankruptcy of the mortgagor, which covered the stock of goods and fixtures then owned by the mortgagor and such future additions as he should make thereto, and which was made to secure payment of certain notes and of

Commercial Bank v. Cunningham, 24 Pick. 270, 35 Am. Dec. 322; Codman v. Freeman, 3 Cush. 306; Barnard v. Moore, 8 Allen, 273. A mortgage which covers after-acquired future indebtedness, is good against the trusproperty is valid.

tee in bankruptcy of the mortgagor. Under Rev. Laws, chap. 198, § 1, because of the failure to record the mortgage within fifteen days of the date written therein, and be

Bennett v. Bailey, 150 Mass. 257, 22 N. E. 916; Bliss v. Crosier, 159 Mass. 498, 34 N. E. 1075; Chase v. Denny, 130 Mass. 566. 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 mortgage was not valid against any person other than the parties thereto. Haskell v. Merrill, 179 Mass. 120, 60 N. E. 485. About three weeks before the commencement of the proceedings in bankruptcy, the mortgagor then being insolvent, and the defendant having reasonable cause to believe him insolvent,

Folsom v. Clemence, 111 Mass. 273. The act of taking possession relates back to the time of the execution of the mortgage. Mr. William H. Brown, for appellee: There is no provision in the bankruptcy statute of the United States which requires mortgages of personal property to be recorded. 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 forecovered by the mortgage. close the mortgage under the provisions of Haskell v. Merrill, 179 Mass. 120, 60 N. Pub. Stat. chap. 192, §§ 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 mortgage, or to take possession of the property to be protected against third persons.

the proceedings in bankruptcy, and before third persons had acquired liens or rights 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.

A mortgage is valid which gives the power to sell in the ordinary course of business. Mitchell v. Black, 6 Gray, 100; Chase v. Denny, 130 Mass. 566.

creditors, and which would have been good against an assignee in insolvency under the statutes of this commonwealth, or against an

assignee in bankruptcy under the United States bankruptcy act of 1867 (14 Stat. at L. 517, chap. 176). Folsom v. Clemence, 111 Mass. 273; Chase v. Denny,

The bankrupt must himself have done something within the four months in order to make a preference or an invalid lien, oth-130 Mass. 586; Blanchard v. Cooke, 144 erwise it would be invalid for a mortgagee under any mortgage to take possession of property within the four months.

Pirie v. Chicago Title & T. Co. 182 U. S. 438, 45 L. ed. 1171, 21 Sup. Ct. Rep. 906; Wilson v. Nelson, 183 U. S. 191, 46 L. ed. 147, 22 Sup. Ct. Rep. 74; Metcalf v. Barker, 187 U. S. 165, 47 L. ed. 122, 23 Sup. Ct. Rep. 67.

Under the old act this mortgage, where possession was actually taken, although within the four months, would have passed without question.

Mass. 207, 11 N. E. 83; Bennett v. Bailey, 150 Mass. 257. 22 N. E. 916; Bliss v. Crosier, 159 Mass. 498, 34 N. E. 1075; Haskell v. Merrill, 179 Mass. 120, 60 N. E. 485; Gibson v. Warden, 14 Wall. 244, 20 L. ed. 797; Sawyer v. Turpin, 91 U. S. 114, 23 L. ed. 235.

The question of difficulty in the case arises under the United States bankruptcy act of 1898 (Act July 1, 1898, chap. 541 [30 Stat. at L. 544, U. S. Comp. Stat. 1901, p. 3418]), whose provisions in regard to preferences and acts of bankruptcy differ materially from those of the bankrupt act of 1867. In Wilson Bros. v. Nelson, 183 U. S. 191, 46 L. ed. 147, 22 Sup. Ct. Rep. 74, the Supreme 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:

Clark v. Iselin, 21 Wall. 360, 22 L. ed. 568; Stewart v. Platt, 101 U. S. 731, 25 L. ed. 816; Hauselt v. Harrison, 105 U. S. 401, 26 L. ed. 1075.

similar 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