They are his agents in performing a function which the law imposes upon him. The very reason which the courts give as the foundation of the rule regulating the mutual liabilities of master and servant under the second class of repairs, as above stated, show that the duty of master to repair is an absolute one. "Both parties to the contract must be presumed to have contemplated that such work would be done by fellow-servants of the employee." Certainly an obligation which requires a contract to be relieved of, is an absolute one. The law then requires the master to repair. He delegates the duty of repair to servants whom he employs for that purpose. The department in which those servants labor is an accidental incident to the general business, and not a necessary part of it, in many instances. The master may or he may not have such repairs made on his premises. Whether he does or not depends entirely on his own convenience in many instances. In other words, then he may delegate this duty, at his option, to those for whose neglects he is not responsible, or to those for whose neglects he is responsible. What becomes of the servant's right to have safe appliances to work with if it lies so much in the option of the master to escape liability for supplying unsafe appliances? By a mere judicial fiction, by mere juggling with words, he is held to surrender this right to hold the master liable, in each contract of employment, when he has knowledge or may reasonably apprehend that there is a repair-shop or a corps of repairers in the business in which he is employed. This, it seems to me, is piling fiction on fiction, adding jugglery to jugglery, for the whole doctrine of "risks of employment" is based upon the judicial interpolation into a contract of a meaning never dreamed of by the parties thereto. See Furwell's Case, 4 Metc. 60. It must not be forgotten that I am considering the tendency of judicial decision, and not denying the authority of the cases noted above. Fair play however is always justice. It does not seem fair play to permit the master to delegate as imperative a duty as that of keeping his machinery reasonably safe to others, and escape liability for their neglects on any grounds. The distinction between repairs of the first class and those of the second, lies in the fact that the servant undertakes in his contract of employment to make those of the first, while those of the second are not a part of his undertaking. It is true he does not expressly, in so many words, undertake to make repairs of the first class, but the implication is immediate and necessary, because they are one of the details of his employment. Such holding is a legitimate construction of his contract. To hold, in repairs of the second class, that he releases the master from his obligation to supply him with safe appliances, because he knows that they must be made by others employed by the master upon the same premises, is, in effect, it seems to me, to make a contract for him. Once however start with the reasoning of Farwell's Case as a premise, and I admit that the conclusions that repairers of the second class are co-servants would follow. Of course doubts whether the term common employment" includes such repairers suggest themselves, but they are rather metaphysical than substantial. But upon the balancing of equities between master and servant (out of this process the whole law of master and servant was evolved), it does not seem justice to require the servant to assume the risk of the careful action of repairers of the second class. This consideration was one of the reasons for the enactment of the English Employers' Liability Act. Perhaps also it was the occasion of the introduction of the "equity of the jury-box" into the rule by the Massachusetts and New York courts. To require active supervision by the master over such repairers and repairs does, I have no doubt, enable many a jury to prevent his escaping the performance of his

obligation to furnish safe appliances, and his consequent liability for its non-performance.

2. I notice now an instance of "judge-made" law under the topic Carriers. The case is this: A passenger upon a train has, through the neglect or default of an agent of the carrier, provided himself with an irregular token of his right to travel upon that particular train. He refuses to pay the fare or leave the train on demand of conductor, and is ejected by force. Some courts hold that he has no cause of action for the tort, but is remitted to a suit for damages for breach of contract of carriage. McKay v. Railroad Co., 42 Alb. L. J. 183; Peabody v. Navigation Co., 44 id. 127. The logical difficulties in the way of such conclusion, however wise and just it may be, are these: 1st. Though it may be admitted that a rule of the carrier requiring a proper ticket or payment of fare before a right to travel upon its train can exist, is a reasonable rule (Townshend v. Railroad Co., 56 N. Y. 295), yet if plaintiff is prevented from complying with the rules by the carrier itself, it is estopped to deny his compliance with it. When he presents himself with an irregular ticket under such circumstances it is the same in effect as coming with a proper one. That a principal is estopped by the acts of his agent and bound by his defaults in the scope of his agency, is elementary. If then the passenger has a right to travel on the irregular ticket, to deprive him of this right by force is an actionable tort. The Mississippi court has held, but with an evident leaning toward the views of the Georgia and Indiana courts, that where the irregular ticket supports and confirms the weight of the passenger's statement, and no possible injury can result to the carrier by the conductor's accepting and acting thereon, he must so act, or refuse at the peril of inviting an action for damages against his principal, if the statement be true. The court cites as analogous the principle that a passenger must be given an opportunity to purchase a ticket before he can be made to pay more than the regular fare by the conductor, though the rules of the company require him to collect more than the regular fare in the absence of a ticket. It seems entirely analogous. 24. No inference in favor of the requirement that a passenger repay the fare can be drawn from the rule of damage in actions for breach of contract, that plaintiff must not "lie by" to create damage. The rule does not require the active aid of plaintiff to prevent damage. It does forbid his passive "lying by" for damages to accumulate. To repay his fare under such circumstances would be the surrender of a right-would be lending his active aid to defendant to prevent its perpetrating a wrong.

Yet the business of common carrier is a public one, conducted generally by huge corporations, requiring numerous servants and agents, many rules for their government, and the most watchful scrutiny into their conduct. Certainly a rule which requires a regular ticket to be the only evidence of a right to travel upon its trains, in the absence of payment of fare, is entirely reasonable in this light. The decisions which require the public to conform to this rule simply make that which before was a rule of the company, a universal rule, binding upon the public in its dealings with the carriers. The rule can work no injustice to the individual, for he can pay his fare again, if he has money, with a saving of his right of action against the company for breach of contract. If he has no money, his damages, it seems, would indemnify him for the consequential inconvenience of being put off the train, though not for the force used in putting him off. Of course, if he has money, the rule of damages above ailuded to would prevent his "lying by" in permitting himself to be put off the train. He must pay his fare if he has the money. So considering the public character of carriers “imperii in imperio," it seems that

the conclusion of the courts which hold in accordance with McKay v. Railroad Co., supra, is more consonant with a wise public policy than the opposing cases. But it is "judge-made " law, pure and simple. The common law contains no rule that I am aware of which can through even inference or analogy lead to such result. The length of this article forbids more than a passing reference to others of the numerous instances of "judge-made" law.

3. The inference which has been drawn from the doctrine of "privileged communications" to protect mercantile agencies from the consequences of their libellous communications, to even interested parties, is a strained one. The doctrine of King v. Patterson, 36 Alb. L. J. 226, has since been adopted by those courts which have been called upon to pass upon similar cases. I do not attempt to controvert its wisdom, but desire simply to call attention to the condition which made it necessary for the courts, in order to do complete justice, to stretch the law of privileged communications beyond its legitimate limits. To say that these informers, generally by profession and for pay, are impelled by a "social, moral or legal duty" in the information they impart, to even an interested party, is decidedly, it seems to me, a strained inference. The policy which shielded the imparters of such information to an interested party from a suit for libel, without proof of express malice, can have no application to a company or individual who advertises his willingness and makes a business of imparting such information. It is his "stock in trade." Public policy does not require that he should be offered inducements to deal in it.

4. In Schultz v. Byers, 44 Alb. L. J. 290, the court introduces a new principle into the law, one which is eminently wise and just, but it has no foundation in the principles of the common law, as the dissenting opinion shows. It may be stated thus: Though one may be doing a lawful act in the exercise of his dominion and control over his own, and in an otherwise careful way, yet if the act may be done in such way as to prevent injury to one's neighbor without any infringment of one's own property rights, to do it otherwise is evidence of negligence in case of injury to a neighbor, whatever one's motive in doing it may be.

5. In Dempsey v. Chalmers, 44 Alb. L. J. 333, the court pursued the logic of ratihabitio to its legitimate consequences, though it made the defendant responsible for the damages occasioned by the negligence of one who at the time was neither his servant nor agent. That ratification is equivalent to previous command, but extends no further, is well illustrated by Pickle v. Bank, 41 Alb. L. J., at page 248. The question in that case, or rather one of the questions in it, was whether a check payable to plaintiff or order had ever been delivered to him. The fact was that it had been received by an unauthorized person, who, presumptively, had collected it. It was held that plaintiff, in bringing suit as he did upon the check, ratified its reception by the unauthorized person, but that such ratification extended no further than authority to receive, and that authority to receive did not comprehend authority to either indorse or collect such check. But in the principal case, a ratification of delivery of coal, would under the circumstances amount to original authority to take the coal from the place in which it was stored to the plaintiff Dempsey's cellar. So the defaults and neglects of deliverer, in the act of removal, would be the Ratifidefaults and neglects of defendant Chalmers. cation is assumed in the opinion of the court. seems that mere reception of the market value or purchase-price of an article of personal property already in the possession of the purchaser by the unauthorized delivery of a third person, would not necessarily be a ratification of such unauthorized delivery. Mere man

It

ual delivery is not a necessary element in a sale. It is sufficient if the dominion and control passes from seller to purchaser. So a mere acceptance of purchasemoney would amount to no more than a waiving of the wrongfulness of purchaser's possession. It does not ratify any thing.

Where A. has converted B.'s personal property, sold it and received the proceeds of such sale, B. may, at his option, waive the tort, ratify the sale, and recover the proceeds of such sale. So, here, the owner may at his option retake his coal, or receive its value. If he does the latter, it seems that he does no more than waive the wrongfulness of purchaser's possession. At any rate, the case serves as an illustration of the fact that the "highest practical wisdom" is not always attained by following the principles of the common law to their logical corollaries.

In the development of our law, as indicated by the course of judicial decision, there seem to be two schools of thought among the judges.

1st. Those whose decisions are distinguished for their logical adherence to the principles of the common law. The courts of Mississippi and Massachusetts are notable examples of this class. See Sullivan v. State, 41 Alb. L. J. 304; Tel. Co. v. Rogers, 44 id. 329 (a most excellent review of the doctrine of the Texas courts on Mental Suffering as an Element of Damage), and Fairbanks v. Snow, 36 id. 449.

2d. Those who are influenced by modern progress, business expediency, public policy and the necessities arising from new conditions and circumstances more than by the doctrine of stare decisis.

The courts of New York are notable examples of this class. See Bank of Batavia v. Railroad Co., 36 Alb. L. J. 97.

So in reality, after all, the case as constituted and set down for a hearing at the bar of public opinion, must be entitled, A Code v. Judge-Made Law. November 25, 1891.

W. 2 of S. E. N. 2 N. W.

58

-Held, that said attempted description of the lands is insufficient as a basis of taxation, and that no valid assessment was made or could be made on such pretended description. The description is not expressed in common language, nor are the characters and abbreviations employed such as are used by conveyancers in describing real estate, nor do the people generally use such a combination of words, letters and figures in referring to or describing land. A description of real estate is essential to its assessment, and there being no sufficient description in this case, there is no assessment, and consequently no tax.

* Rehearing denied August 29, 1891.

on condition that plaintiff should advance and pay defendant's costs of suit, also the sums paid by defendant at the tax sale for the lands, and the sums paid subsequently by defendant as taxes for 1887 and 1888. At the trial defendant abandoned all claim of title to the land which he had alleged in his answer and based upon the tax sale of 1887 and the deed delivered him by the county treasurer in pursuance of such sale, and hence the trial court could not well do otherwise than find as it did, as a conclusion of law, "that the sale of said land and deed under which defendant claims title is void." The court below does not anywhere state on what particular grounds it bases its conclusion that the tax sale and deed are void, but an examination of the findings of fact, as above set out, furnishes abundant vindication of the conclusion of law as one proper to be made in the case. We find no difficulty in reaching the conclusion from the record that none of the alleged taxes had any legal validity or inception whatever, and that consequently the tax sale and deed were wholly inoperative as a means of transferring title to the land from the plaintiff to the defeudant, and this on account of fundamental defects which go to the groundwork of the alleged taxes. While it is true that the trial court in one of its additional findings states "said lands were assessed for taxes by the proper officer in the year 1886," yet this general conclusion of the court is practically annulled by another specific finding of fact in which the court declares in substance that said lands were only described in the assessment-roll and tax list of said county in the years 1886, 1887 and 1888, in the manner and form as detailed in the finding, which finding we have already quoted. We hold that the alleged description is wholly insufficient as a description of the lands in question, or of any lands, and that it cannot be sustained as a means of identifying the lands for purposes of assessment for taxation, or for the ulterior purpose of transferring the title of the realty from the general owner to the tax title holder and his successors in interest. The alleged description is neither written out in words nor is the same expressed by characters or abbreviations commonly used by conveyancers or generally understood and used by the people at large in describing land. The description of realty placed in an assessment-roll is the means of identifying or describing the land for all the subsequent steps in the process of taxation and sale, if a sale is made. The official who makes the tax list and duplicate, and the official who collects the tax, or sells and conveys the land, or certifies to its redemption from sale, are governed by the original description in the roll, and are not authorized by law to change the same. It follows that the description of realty in the assessment-roll, in order to be legally sufficient, must be reasonably full and accurate, though it need not be technically nice and scientifically exact. This view has the support of much authority, and we shall adopt it as the safer rule, and be governed by it in this case. Subjected to this test, it is unnecessary to say that the pretended description in the assessment-rolls and lists in question were wholly insufficient. Keith v. Hayden, 26 Minn. 212; Williams v. Land Co. (Minn.), 21 N. W. Rep. 550; Black Tax Titles, § 38; Cooley Tax'n, 404. The description in the tax deed is governed by that in the assessment-list. Turney v. Yeoman, 16 Ohio, 26; Kipp | v. Fernhold, 37 Minn. 132; Bower 7. O'Donnall, 29 id. 135; People v. Cone, 48 Cal. 437, also 431; People v. Mahoney, 55 id. 286. The lands referred to in the complaint never having been described in the assessmentroll or tax list for the years 1886, 1887 and 1888, it follows necessarily and legally that no tax whatever was assessed against said lands in those years, and also follows that the treasurer of Barnes county had no authority or jurisdiction to sell the lands on account of

the alleged tax of 1886. It is axiomatic that no tax can be laid, under a statute which requires a tax to be laid upon the value, until the value is officially ascertained and declared substantially in the manner the law points out. In other words, under our general revenue system there can be no tax upon any piece of land until it is assessed and valued officially, and in substantial compliance with the requirements of the statute which regulates assessments. The process of assessment, as it relates to realty, is pointed out by statute, and is briefly as follows: First, the land must be described by separate tracts in lists furnished for the use of the assessor; second, the assessor must view the land, and reach a conclusion in his own mind as to its value; third, the assessor is required to write out opposite each tract in the roll the value as he ascertained it to be; and finally the assessor is required to swear to the assessment thus made, and annex the proper affidavit to the roll, and then return it to the county clerk or auditor. It is obvious that the whole of this process depends vitally upon the primary act of describing the land. Without a description in writing, followed by a valuation stated in writing, there can be no assessment of land under the law, and as before stated there can be no tax without a valid assessment. There can be no such thing as a parol assessment of land. The law requires a definite record, and no other evidence of the assessment is competent. Sections 4, 5, chap. 28, Pol. Code (Comp. Laws, § 1544, et seq.); Welty Assessm., § 4; Black Tax Titles, § 27. The city tax was held void by this court on the ground of an invalid assessment in Farrington v. Investment Co. (N. D.), 45 N. W. Rep. 191. See also Cooley Tax'n, 339; Burroughs Tax'n, 211.

The record also discloses another irregularity in the tax proceedings in question, which in our opinion is jurisdictional and fatal to all of the alleged taxes. It appears that the board of equalization for Barnes county did not, as the law requires, in either of said years assemble on the first Monday in July, nor upon the following day. Whether it assumed to assemble at all in those years is wholly immaterial. Failing to meet at the time designated or upon the following day-a two-day session being prescribed by statutethe county board were without power to assemble and hold a pretended session as a board of equalization in the same years. The law names the date of the meeting, and the public is chargeable with notice of a meeting on the day named in the law, but there is no notice to the public of any session of the board which meets neither at the time stated nor at an adjourned day named as a lawful meeting. Under the system which obtained at the time in question, our revenue laws did not afford an opportunity to the tax payer to be heard by any officer or board touching the assessment to be made against his property, except at a public session of the county board sitting as a board of review and equalization, at the time and place named by the statute. But if no such session is had in any given year, then no opportunity is given that year to the tax payer to be heard, and hence any so-called "taxes" which may be exacted by the officers under color of law are mere arbitrary burdens upon the tax payer. This is not "due process of law" within the meaning of any system of taxation which expressly authorizes and provides that the tax payer may have a hearing upon the question of the valuation to be placed upon his property for taxation purposes. It is no answer to this to state that it does not appear that the plaintiff was injured by the non-assembly of the board at the time designated. From grave considerations of public policy the law will presume an injury. Sections 28, 29, Pol. Code (Comp. Laws, §§ 1584, 1585); Black Tax Titles, § 42; Maxwell v. Paine, 53 Mich. 30; Welty Assessm., § 154a; San Mateo Co. v. Southern