under and by virtue of this article of the constitution and the statutes of Nebraska upon the subject, was not estopped to show by the assessed valuation on the books of public record of the county that the bonds were in excess of the constitutional limit; and Mr. Justice Matthews, delivering the unanimous judgment of the court, fully stated the grounds of the decision, which sufficiently appear by the following extracts:

"If the fact necessary to the existence of the authority was by law to be ascertained, not officially by the officer charged with the execution of the power, but by reference to some express and definite record of a public character, then the true meaning of the law would be that the authority to act at all depended upon the actnal objective existence of the requisite fact, as shown by the record; and not upon its ascertainment and determination by any one; and the consequence would necessarily follow that all persons claiming under the exercise of such a power might be put to the proof of the fact made a condition of its lawfulness, notwithstanding any recitals in the instrument." 111 U. S. 93, 4 Sup. Ct. Rep. 320.

"In the present case there was no power at all conferred to issue bonds in excess of an amount equal to ten per cent. upon the assessed valuation of the .taxable property in the county. In determining the limit of power, there were necessarily two factors,— the amount of the bonds to be issued, and the amount of the assessed value of the property for purposes of taxation. The amount of the bonds issued was known. It is stated in the recital itself. It was $87,000. The holder of each bond was apprised of that fact. The amount of the assessed value of the taxable property in the county is not stated; but, ex vi termini, it was ascertainable in one way only, and that was by reference to the assessment itself, a public record equally accessible to all intending purchasers of bonds, as well as to the county officers. This being known, the ratio between the two amounts was fixed by an arithmetical calculation. No recital involving the amount of the assessed taxable valuation of the property to be taxed for the payment of the bonds can take the place of the assessment itself; for it is the amount, as fixed by reference to that record, . that is made by the constitution the standard for measuring the limit of the municipal power. Nothing in the way of inquiry,

ascertainment, or determination as to that fact is submitted to the county officers. They are bound, it is true, to learn from the assessment what the limit upon their authority is, as a necessary preliminary in the exercise of their functions, and the performance of their duty; but the information is for themselves alone. All the world besides must have it from the same source, and for themselves. The fact, as it is recorded in the assessment itself, is intrinsic, and proves itself by inspection, and concludes all determinations that contradict it." 111 U. S. 95, 4 Sup. Ct. Rep. 320.

That decision and the grounds upon which it rests were approved and affirmed in Lake Co. v. Graham and Chaffee Co. v. Porter, above cited, each of which arose under the article of the constitution of Colorado now in question, but under a different statute, which did not require the amount of indebtedness of the county to be stated on its records. In Lake Co. v. Graham, each bond showed on its face the whole amount of bonds issued, and the recorded valuation of property showed that amount to be in excess of the constitutional limit; and for this reason, as well as because the bonds contained no recital upon that point, the county was held not to be estopped to plead that limit. 130 U. S. 682, 683, 9 Sup. Ct. Rep. 654. In Chaffee Co. v. Potter, on the other hand, the bonds contained an express recital that the total amount of the issue did not exceed the constitutional limit, and did not show on their face the amount of the issue, and the county. records showed only the valuation of property, so that, as observed by Mr. Justice Lamar, in delivering judgment: "The purchaser might even know-indeed it may be admitted that he would be required to know-the assessed valuation of the taxable property of the county; and yet he could not ascertain by refer ence to one of the bonds and the assessment roll whether the county had exceeded its power under the constitution, in the premises." 142 U. S. 363, 12 Sup. Ct. Rep. 216.

The case at bar does not fall within Chaffee Co. v. Potter, and cannot be distinguished in principle from Dixon Co. v. Field or from Lake Co. v. Graham. The only difference worthy of notice is that in each of these cases the single fact required to be shown by the public record was the valuation of the property of the county, whereas here two facts are to be so shown,-the valuation

of the property, and the amount of the county debt. But, as both these facts are equally required by the statute to be entered on the public records of the county, they are both facts of which all the world is bound to take notice, and as to which, therefore, the county cannot be concluded by any recitals in the bonds.

It follows that the first question certified must be answered in the affirmative, and the second in the negative. Ordered accordingly.*

1. Municipal bonds-issue in excess of limit-estoppel.-Const. Iowa, 1857, art. 11, § 3, restricts the indebtedness of political and municipal corporations to five per cent of the taxable value of the property within their limits, and the purchaser of bonds issued by a school district, no matter what recitals appear on their face, is bound to take notice of this limitation, and of the official assessment of the taxable property within the district. Nesbit v. Riverside Independent District, 144 U. S. 610; 12 Sup. Ct. Rep. 746.

One who buys municipal bonds at one time in such number as to exceed in amount the limit of the issue authorized by law (being an amount capable of liquidation in a certain time, at a given rate of taxation, based on the assess ment rolls) is chargeable with notice, and the municipality is not estopped to plead an overissue. Francis v. Howard County, 54 Fed. Rep. 487 (Circuit Court of Appeals, Fifth Circuit, affirming 50 Fed. Rep. 44). See also Sutro v. Rhodes, 92 Cal. 117; 28 Pac. Rep. 98.

Purchasers of bonds issued by a county must take notice of the official assessment for taxes in order to ascertain the county's authority to create the indebtedness. Nolan County v. State, 83 Tex. 182; 17 S. W. Rep. 823.

2. Apportionment of valid debt in case of overissue.-If bonds issued by a county in excess of the amount of the bonded debt which it could legally create were issued at the same time, the amount of the valid debt should be distributed between them pro rata. Nolan County v. State, 83 Tex. 182; 17 S. W. Rep. 823.

SAVAGE V. CITY OF SALEM.

(Supreme Court of Oregon, January 9, 1893.)

1. MUNICIPAL CORPORATIONS. TANKS FOR SPRINKLING PURPOSES.

CONTROL OF STREETS. POWER TO LICENSE Tanks erected on the streets of a city to supply water for street sprinkling are for a public purpose, and, therefore, it is within the power of the city council to license their erection.

2. POWER TO REVOKE LICENSE AND REMOVE TANKS. Where a person has erected tanks for that purpose under license from a city, the city cannot revoke the license and remove the tanks without compensating him, unless the same have by subsequent use or neglect become a nuisance in fact.

A

CTION by John D. Savage against the city of Salem to recover damages for the alleged wrongful removal by defendant of two water tanks erected in defendant's streets by plaintiff with defendant's permission. There was a judgment for plaintiff in the court below.

D'Arcy & Bingham, for appellant; Bonham & Holmes, for respondent.

BEAN, J. This is an action to recover damages for the removal by defendant of two water tanks which had been erected by plaintiff on State and Court streets, in the city of Salem, by permission of defendant, for the purpose of supplying his sprinkling wagons with water for street sprinkling, and comes here on appeal from a judgment in favor of the plaintiff. On the 16th of February, 1887, the city of Salem, through its common council, authorized and empowered the plaintiff, under the supervision of its street supervisor, to erect and maintain water tanks for the purpose of supplying his street-sprinkling wagons with water with which to sprinkle and allay the dust on certain of the principal streets of the city for a compensation by him received from the adjoining property owners. Under this authority the two tanks in question were erected by plaintiff, at the places designated, and under the supervision of the street supervisor, and were maintained and used by him for the purposes for which they were authorized until July 7, 1891, when the council ordered and directed the street commissioner to remove the tanks, which was accordingly done, after a refusal by plaintiff to remove them himself, when this action was commenced to recover damages for such removal.

The contention for appellant is: First, that the city had no power or authority to authorize the erection of these water tanks in the streets, because they were to be used for private purposes, and were, therefore, nuisances per se, which could be abated at any time; and, second, if this is not so, the permission to so erect them was but a mere license, revocable at the pleasure of the city. At the outset it is well to note that this case is unembarrassed by any question as to the right or remedy of an abutting property owner, or of a private individual, who has suffered some injury

special to himself, and not in common with the public, from the erection or obstruction in question, but is solely a question between the municipality, which authorized the alleged obstruction, and the licensee; and hence many of the authorities cited and relied on by the defendant are not applicable to the facts of this case, or in point, and the language of the opinions in these, as in all cases, must be interpreted in the light of the particular facts as presented to the court.

As a general rule, it has been said that "public highways belong, from side to side, and end to end, to the public " (State v. Berdetta, 73 Ind. 185; Elliott, Roads & S. 478), and hence any unauthorized permanent erection or structure which materially encroaches upon a public street or highway, and impedes or interferes with travel, is a nuisance per se, and may be abated as such, notwithstanding ample space is left for passage by the public. But it now seems settled that municipal authorities, which possess, under their charter, general control over the streets, have the power and may authorize and render lawful obstructions and erections therein for a public purpose, which otherwise would be deemed nuisances, on the ground that such erections or structures are merely putting the street to a new and improved use, as demanded and required by the necessities of the times and the modern conveniences and appliances. It is upon this principle that the right to grant franchises authorizing the use of the streets for water and gas pipes, for the construction and operation of street railways, the erection of water hydrants and lamp-posts, of telegraph, telephone, electric light and railway poles, and similar structures, is maintained and now generally recognized and upheld by the courts. 2 Dill. Mun. Corp. §§ 657-697; Keasby Elect. Wires, 86, 89; Thomp. Elect. §§ 26, 28. Since a municipal corporation holds its control and power over the streets in trust for the public, it has no authority to authorize or permit private persons or corporations to erect or maintain permanent obstructions therein. for purely private purposes (Pettis v. Johnson, 56 Ind. 139; Emerson v. Babcock, 66 Iowa, 257; 23 N. W. Rep. 656; Farrell v. Mayor, 5 N. Y. Supp. 672); but it may authorize such erections or structures by private persons or corporations for the purpose of serving the public, for private gain; and in such case, although such struc