Judge v. Braswell.

individual partner constitutes the others his agents for the purpose of entering into all contracts for him within the scope of the partnership concern, and, consequently, that he is liable to the performance of all such contracts in the same manner as if entered into personally by himself." Collyer on Partnership, 103.

But the power of one partner thus to bind his copartners rests alone upon the usage of merchants, and does not amount to a rule of law in any other than commercial partnerships. Story on Partnership, § 126.

In non-commercial partnerships, one who seeks to hold the firm bound upon a contract made by a single member must be able to show either express authority, or that such is the custom and usage of that particular branch of business in which the firm is engaged, or such facts as will warrant the conclusion that the partner had been invested by his copartners with the requisite authority, the distinction being that in commercial partnerships the extent of a partner's power to bind the firm is a question of law, while the power of a partner in a non-commercial firm to bind his copartners is a question of fact.

Thus, the business of a commercial partnership being ascertained, and the nature of the contract made by a single member, and the circumstances attending it being known, the court may generally determine, as matter of law, whether the contract was within the scope of the implied powers of a partner. Not so, however, in reference to a contract made by a member of a non-commercial partnership.

A partner in such a partnership does not generally possess power to bind the firm, and, consequently, the extent of his powers is not fixed by the rules of law, but each case is left to be decided upon its particular facts; and in all such cases, in order to make out the liability of the firm, it ought to be made out affirmatively by the plaintiff that the partner had power to make the contract in question. Dickinson v. Valpy, 10 B. & C. 128; Levy v. Pyne & Richards, 41 E. C. L. 249; Smith v. Sloan, 37 Wis. 289; s. c., 19 Am. Rep. 757.

In the cases at bar, the authority of the partner making the contract is not shown. The partnership articles show that no such authority was thereby conferred; no evidence was offered to prove that such authority had been otherwise delegated, or that it was usual in such partnerships for one partner to buy land in the name

Commonwealth v. Bacon.

of the firm, or that the existence of such authority was necessary in order to carry on the business for which the partnership was created, and we have seen that no such power can be implied from the mere existence of the partnership.

We are, therefore, of the opinion that the court erred in rendering judgment against the appellants, and the judgment, as to them, is reversed, and the cause is remanded with directions to dismiss the petition.

Judgment reversed.

A statute forbidding any person to carry on the stabling business within a given distance of the grounds of a specified agricultural society, during the continuance of its fairs, and imposing a penalty for any breach of the law, is an unconstitutional interference with the right of enjoyment of private property.

P

ROCEEDING to recover a penalty. The opinion states the facts.

Cunningham & Turney, for appellants.

G. C. Lockhart, for appellee. The act of January 22, 1874 (Session Acts, 1873-4, p. 142), deprives the appellee of his right to possess, use, enjoy, and dispose of that which he owns, and is therefore unconstitutional. 1 Blackstone, 138; 2 id. 34; 3 Kern. 433; 18 Wall. 133; 18 How. 272; 4 Wheat. 235; Cooley's Const. Lim. 355; Broom's Legal Maxims, 394.

The Bourbon County Agricultural Society is a private corporation, entitled to no other protection from the law than the individual citizen. Acts 1836-7, p. 289.

COFER, J. The Bourbon County Agricultural Society is a corporation created by an act of the general assembly. By an amendment to the charter of the society, approved January 22, 1874 (Acts

Commonwealth v. Bacon.

1873-4, p. 142), it is provided, "that it shall be unlawful for any person or persons, within three hundred yards of the ground of said society, without the consent of the board of directors, to open lot, stable, shed, or other place during the continuance of said society's fairs for the purpose of receiving, for pay, horses or vehicles of any kind, or for any person or persons to permit the use of said lot, stable, shed, or place for any such purposes.

"Any person violating the provisions of this act shall be fined $50 for each day so violating, to be recovered by a warrant from and to be tried before any justice of the peace of Bourbon county, and such fine shall be for the benefit of said society."

The appellee, in violation of the act, opened and used, and permitted to be opened and used, a lot of ground of which he was the owner, within three hundred yards of the grounds of the society during the time of holding its fair in 1874, for the purpose of receiving, for pay, horses and vehicles, and the society instituted this proceeding for the recovery of the penalty denounced by the statute.

The Circuit Court held the act unconstitutional, and dismissed the proceeding, and whether that decision was correct is the only question in the case.

The complainant alleges that the appellee is the owner of the land used in violation of the act. It is not claimed that the use made of it is in and of itself injurious to the society or that it damaged its property in any way whatever. The sole complaint is that the appellee used and allowed his property to be used to carry on a business in competition with the society; that, in violation of the act, he has prevented the society from enjoying a monopoly of the business of receiving and taking care of the vehicles and feeding and caring for the animals of those visiting its fairs, and thereby lessened its receipts. Counsel intimate that the enforcement of the act is necessary to sustain the society, and that, as it is an institution of interest and benefit to the general public, this attempt to give it a monopoly may be sustained upon the principle upon which the grant of ferry privileges, the interdiction of lateral roads near to incorporated turnpikes, etc., and the sale of articles of marketing in cities and towns at places other than those designated by law are upheld.

It is the duty of government to establish and maintain highways. Ferries are parts of highways, and the government may

Commonwealth v. Bacon.

perform its duty in establishing and maintaining them through the agency of private individuals or corporations, and such agencies are representatives of government, and perform for it a part of its functions. And in consideration of the service thus performed for the public, the government may prohibit altogether persons from keeping ferries and competing with those it has licensed. The establishment of public highways being a function of government, no person has a right to establish such a highway without the consent of government; and hence in prohibiting unlicensed persons from keeping a ferry the government does not invade the right of even those who own the soil on both sides of the stream. The owner of the soil may, unless his land be regularly condemned for the purpose, prohibit any other person from using it as a landing for a ferry. This he may do, because he is the owner of the soil. So the government, being charged with the duty of establishing and maintaining ferries, has the exclusive right to establish them, and may prohibit any one it chooses from doing so, because the establishment of a ferry without the consent of government is an invasion of its right, just as the use of the soil for a ferry-landing, without the consent of the owner, would be an invasion of his right of property.

The statute relating to lateral roads (§ 13, ch. 110, G. S.) does not apply to individuals, but to the county courts, and does not prohibit an individual from opening a road over his own land.

Laws and ordinances prohibiting the sale of certain articles of marketing in cities and towns, except at designated places, are mere police regulations, enacted in the interest of the public. If they were enacted merely for the purpose of compelling dealers in such articles to rent stalls in market-houses in order to swell the rent-roll of the owners, they would be analogous to the act under discussion. The Bourbon County Agricultural Society is a strictly private corporation. It owes no legal duty to the public. It may hold fairs or not as its managers may decide, and is as free from the interference or control of government as a private individual, and cannot, therefore, enjoy any privileges which may not be enjoyed by an individual. The effect of the act then is to restrict the right of one person to use and enjoy his property in a particular manner that another may use his in that manner to greater profit than he could if each was left free to use his own as he pleased. In this country, where the right of the citizen to acquire, hold, and enjoy

Commonwealth v. Grady.

property is guaranteed by the fundamental law, it would seem that the statement of the proposition is enough to refute it.

The maxim, that one must so use his property as not to injure another, is invoked by appellant's counsel, but the argument to be drawn from thence is against them. The use made by the appellee of his property does not injure the society or its property. It has no right to a monopoly of the business of keeping and caring for vehicles and animals during the continuance of its fairs. The act we are considering does not attempt to give them any such exclusive privilege. Persons outside of the limits fixed by the act may come into competition with the society, but those within it may not do so without violating the act.

Another rather remarkable feature of the act, that makes the purpose of its enactment still more manifest, is the provision permitting the society to license persons within the territory covered by the inhibition, thus empowering it to determine who may do acts forbidden to all others, and in effect delegating to a private corporation the most arbitrary control over the property of individuals. That such an act violates the constitutional right of the citizen to acquire, hold, and enjoy property does not, in our opinion, admit of the least doubt.

Judgment affirmed.

COMMONWEALTH V. GRADY.

(13 Bush, 285.)

Criminal law-false pretense — means of detection.

A false pretense is not criminal unless calculated to deceive persons of ordinary prudence and discretion.

Where one fraudulently represented that he owned a house and lot free from incumbrance, and procured money on the faith of such representation, when in fact there was a mortgage executed by him on record against the property; held, not indictable, because the party had the means of detection at hand.

NDICTMENT for false pretenses. The opinion states the facts.

INDIC

Thos. E. Moss, attorney-general, for appellant.

Carroll & Barbour, for appellee.