RECENT CASES. 38 1 CoNSTlTUnOXAL LaW — TAXATION FOR LoCAL IMPROVEMENTS — IRRIGATION DisiRiCTS. —A Statute authorized the formation of irrigation districts in California upon the application of fifty or a majority of the landowners in a district susceptible of one mode of irrigation from a common source. The cost was to be met by an ad valorem assessment on all the lands which could derive any benefit from the work. Held^ the statute is not unconstitutional. Fuller, C. J., and Field, J., dissenting. Irri- gation Dist. V. Bradley, 17 Sup. Ct. Rep. 56. It is worthy of remark that the court nowhere in the decision speak of the police power. The ground taken is that in view of the condition of the country in the *' arid belt," the use for which the water is to be procured is a public one, and the assessment therefore justified on the general principles of taxation. How far the purpose served is a public one is of course a matter of fact depending on the surrounding circum- stances. And it is a delicate question whether the improvement is sufficiently public in its nature to justify the imposition of the tax upon one who does not care to avail himself of its benefits. The question seems to be no different from that involved in cases where a district is drained at the expense of the landowners, Wiirtsv. Hoagland, 114 U. S. 606, except that in the principal case the absence of any possible menace to the public health, and the fact that it is possible to perfect the work without giving any of its advantages to an owner who does not care to avail himself of them, serve to bring out the grounds of the decision more sharply. An incidental objection urged by the appellee was, that, as the assessment was ad valorem, it might not be in proportion to the benefits conferred, but it was held that the apportionment of the tax was a matter of detail within the discretion of the legislature, which would not be disturbed unless manifestly unjust. Contracts — Exemption for Negligence under Foreign Law. — A bill of lading contained exemptions of damage from stowage and negligence, and provided that the contract should be governed by the law of the flag (English). The contract was not made, nor was any part of it intended to be performed, within British juris- diction. Held, that such exemptions not being allowed by our law, the provisions of the bill of lading were void, notwithstanding such provisions would be valid by British law. Brotmy Worsted Mills v. Knott, 76 Fed. Rep. 582. The decision is eminently sound. As it is not permitted by the laws of their country to exempt for negligence, no contract made on such a basis can be valid. It may be objected that it was the expressed intention of the parties to be governed by the law of England. It is true that, where the place of making and the place of performance are different, many courts hold that the intention of the parties as to what law should govern, is of paramount importance. This, though a wide spread, is thought to be an incorrect doctrine. Akers . Demoud, 103 Mass. 323 ; 10 Harvard Law Review, 170. And in any event, no court would be h'kely to go so far as to say that where the making and performance of a contract are within the same jurisdiction, the parties may elect to be governed by the law of a different jurisdiction. Contracts — Wilful Breach — Damages. — //eld, that a contractor, though wilfully abandoning and refusing to complete a building contract, may recover on a quantum meruit a sum not exceeding the contract price, less the cost of completing the work and less any damage and added expense incurred by the defendant by reason of the breach of contract by plaintiff. Sheldon v. Leahy, 69 N. V. Rep. 76 (Mich). This decision, in accord W. Britton v. Turner, 6 N. H. 481, is sound in principle, and notes a tendency to follow that leading casein other jurisdictions. Under the rule as laid down there can be no possibility of loss to the defendant, and there is no valid reason why he should be unjustly enriched. But the great weight of authority is contra to the principal case. See Keener on Quasi Contracts, 215, and cases cited, and on grounds of public policy these latter cases are supported, as it is easily seen that if a recovery is allowed on a quantum meruit there will be an increasing tendency to break existing contracts. Corporations — Invalid Appointment — Recovery of Salary. — A decision that one of the members of a municipal board had not been properly elected invali- dated the appointments of that board. I/eld, that an attorney whom they had ap- pointed could not recover for services already performed. lilayor of Jersey City v. Erwin, 35 At). Rep. 948 (N. J.). It is generally stated in the text-books that a de facto officer of a municipal corpora- tion cannot recover for his services. A distinction is thus made between municipal and private corporations. In the cases cited to support this jiroposition, it appears that there were de jure officers also claiming the appointment; consequently those usurping the position were rightly not allowed to recover what belonged to others. Here this is not the case, and no grounds of public policy seem to demand an excep- tional doctrine.
