dictate, were authorized to make the contract in question, unless there is something in the law or the public policy of this state forbidding this form of agreement, or prescribing some other.

2. We come, therefore, to the determination of whether this contract violates any law or public policy. We are cited to no statute containing any such limitation. It may be mentioned that the question of letting the contract for the actual performance of the work, which under the law must be done by public bidding, is not involved. The Supreme Court, in County of Tattnall v. Newton, 112 Ga. 780, 38 S. E. 47, in discussing the method by which public bridges may be erected, quotes the section of the Political Code of 1895 (section 602) conferring upon the county authorities the power to make suitable provision for their erection and repair, "by letting them out to the lowest bidder, by hiring hands, or in any other way that may be for the public good and agreeable to law," and says: "What broader authority for obtaining and keeping in repair public or county bridges could be afforded?" The court then proceeds to approve the method known as the "Tattnall Plan," by which individual citizens contribute a portion of the work or material and the county authorities the remainder. We think that the question before us (to translate it into the words of the statute) may be stated thus: Is it in accordance with the public good that the county authorities who desire to erect or repair a bridge located near a mill site should make a contract with the owner of the fee and the mill privileges whereby the work is to be done at joint expense and the resulting structure is to be devoted to joint use? We shall not discuss the unquestioned authority of that line of cases holding that a public corporation cannot, under the guise of making public improvements, give aid to purely private enterprises; for that is not involved. It is conceded that in the present case the county authorities have no such ulterior object in view. As viewed from this aspect, the question is whether a public corporation is forbidden to make a contract whereby the public good may be effected and public expenses economized, merely because some private individual may also thereby obtain a benefit not shared by the public.

When we consider the large number of actual instances wherein the public and individuals are making joint and common use of property, and especially since so many public roads and bridges are maintained over milldams and races, we are surprised that the books do not contain more adjudications on this subject. In our investigation we have come across two milldam cases. In the first (Windsor v. Field, 1 Conn. 279) a committee appointed by the county court to lay out a highway had reported that the road should run across the milldam of Haskell & Dexter, but that there should be reserved to them

the right of maintaining the dam and of altering and repairing it and the flue when necessary; and, the point being made that such a report was contrary to law, the Supreme Court of Connecticut said: "The committee were bound by their oath to perform the service assigned them 'according to their best skill and judgment, with most convenience to the public and least damage to private property.' If consistent with the public easement or right of way, therefore, and nothing appears to the contrary, the leaving Haskell & Dexter to enjoy the right of repairing their milldam and flue when necessary, without being chargeable in such case with erecting a nuisance, was not only warrantable but a duty." In the other case (Tatnall v. Shallcross, 4 Del. Ch. 634) it was decided that where a public road crossed a milldam which had been kept at the joint expense of the county and of the proprietor, and the dam broke, an injunction should be granted to prevent the county authorities from proceeding to reconstruct the road upon piles, so that it would be available for the purposes of the road, but not of a dam. These are the only two milldam cases we have been able to find touching this question. In other cases, however, we find the right of the public authorities to make mutually beneficial contracts with private persons sustained. In upholding the right of a public corporation to make a contract with a private individual, wherein the corporation received a financial benefit and the individual obtained the use of a public instrumentality such as was not shared by other citizens, Justice Brewer, in the case of City of St. Louis v. The Maggie P. (C. C.) 25 Fed. 204, gives this view of the question: "When it [the public corporation] has in its possession instrumentalities and hires employés for the purposes of discharging some public duty, I see no reason why, when the exigencies of public duties do not require the use of those instrumentalities and employés, it may not make a valid contract to use them in some private service. Thus, take the fire department. The city, having its engines and firemen, might make a valid contract with me to pump water out of a cellar, and compel me to pay for this service. The contract is binding on the one side as well as on the other, and there would be a liability on its part for the nonperformance -except so far as performance was interfered with by the exigencies of public duty, as by the sudden occurrence of a fire. Take the public school system. The city builds its public school buildings and employs its teachers, paying therefor by means of taxation. Now, I see no reason why the city might not say to one living outside the city: 'You may send your children to one of the schools for a stipulated sum.' In respect to such a matter the city would be keeping a private school, as it were rendering private services-entitled to all the benefits and sub

ject to all liabilities of a private contract. And, generally speaking, when public duty does not interfere with private service, a city may make a valid contract for the use of its instrumentalities in the latter." The Supreme Court of Massachusetts, in the case of Worden v. New Bedford, 131 Mass. 24, 41 Am. Rep. 185, in holding that a public corporation might let out such portions of its public buildings as were not needed in the public service, used this language: "But the defendant contends that a city or town has no power to let its public buildings for private uses, that the letting to the poultry association, if made by the city, was ultra vires, and therefore it is not liable. The ground is untenable. The city could not erect buildings for business or speculative purposes; but, having a city hall, built in good faith and used for municipal purposes, it has the right to allow it to be used incidentally for other purposes." It is true that in State v. Hart, 144 Ind. 107, 43 N. E. 7, 33 L. R. A. 118, there is a ruling to the contrary. The decision in Hunnicutt v. Atlanta, 104 Ga. 2, 30 S. E. 500 (which we see cited also as an authority to the contrary), was merely that where the county courthouse was already concededly too small for the accommodation of the county officials, the city could not contract to rent or buy an interest therein; and that decision is, therefore, not in point.

A case very closely cognate to the one at bar, is that of City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601, wherein the court held: "The general doctrine is clear that a municipal corporation cannot usually exercise its powers beyond its own limits; and, if it has in any case authority to do so, the authority must be derived from some statute which expressly or impliedly permits it. The query is suggested whether, even by contract, a city can build or possess public works beyond its limits without plain permission of the Legislature. The authority of a city to provide sewerage beyond the city limits may be implied from the existence of a state of facts which renders it actually necessary or manifestly desirable, as where a city, though bounded by a stream, is required by its charter to preserve the stream from pollution and prevent the depositing of filth therein, and no other outlet is reasonably available, except through means of ditches extending beyond the limits. And where the drainage requires an outlet beyond the city limits, and the surroundings are such as to raise the implication of authority in the city to conduct the work beyond its limits, the city must be permitted to retain some discretion as to the arrangements by which it shall accomplish the purpose; and there is no legal obstacle to its undertaking to do this work by its own servants or contractors, instead of employing the owner of the premises to do it. A city thus situated, having led its sewer to the city limits, where it emptied into a county

ditch, which was found to be inadequate, made a contract with the adjoining proprietor to enlarge and straighten the ditch through his premises, so as to provide for carrying off all the water without overflowing or saturating his land, agreeing to keep the ditch in repair, not to injure or obstruct the crossditches, and to maintain a good bridge across it on his premises. * The work un

dertaken by the city could not be regarded as repugnant or foreign to the purposes of its charter, and the contract was not beyond the corporate powers." A contract between a city and a county providing for joint use of a jail, the city contributing the land on which it was to be built, was sustained in Bacon v. Walker, 77 Ga. 336, 339; but we concede that this case is not necessarily in point, since it may be distinguished on the ground that both contracting parties were public corporations.

We have somewhat repressed the view of this case, that the contract taken in its entirety merely amounts to a conditional dedication or sale by Wright, the landowner, to the county of the easement or right to erect the bridge, because there was some slight question made in the record as to whether the county did not already have the easement by prescription. If it is permissible to view the contract as a dedication on condition, it will be easy to cite authority to sustain it. In this respect the New York case of Hughes v. Bingham, 17 L. R. A. 454, 135 N. Y. 347, 32 N. E. 78, is in point. The landowner in that case dedicated a highway on condition that it should be used for seven months in each year, and closed for five. In sustaining the dedication and the condition the court says: "The capacity to take a grant in fee for highway purposes must, upon every just principle of construction, as well as upon reason, growing out of the necessity of the case, be deemed to include the power and capacity to take an interest less than the fee, or upon such conditions as are inserted in the deed." We may also cite the Iowa case of Agne v. Slitsinger, 36 L. R. A. 701, 96 Iowa, 181, 64 N. W. 836, in which it was held that when a landowner granted the easement for a highway on condition that he might have the right to join his fences to a bridge, which it would be necessary to build over a creek, so that his cattle might pass under, the road authorities could not disregard this right. There is also the case of Hunsicker v. Briscoe, 12 La. Ann. 169, in which it was held that the parochial authorities may, in order to avoid expense in the appropriation of property, authorize the owners of the soil over which a road passes to keep up gates, whereby the right of way may be secured to the public with least injury to the owners. See, also, B. & W. R. Co. v. Waycross, 91 Ga. 573, 17 S. E. 674. If the contract in question required the county authorities to perpetually maintain the bridge, a more serious question

might be presented; but, as we construe it merely to give Wright the privilege to join his dam to the piers so long as the bridge is maintained, no such proposition is before us. We cannot, in light of the record, hold that the contract is contrary to public policy, for that the erection of the dam would tend to injure and impair the usefulness and safety of the bridge for public travel, because evidence was submitted on this issue, and the trial court found to the contrary. While we do not think that public policy would allow the county authorities to barter away the safety of the highway, still, in the nature of things, much must be left to the discretion of the local authorities in determining what will or what will not be safe. We hardly think that the mere fact that the public convenience might be slightly discommoded in times of freshets and unduly high water would be sufficient ground for declaring the contract void. The inconvenience must be substantial. Nor is the fact that the dam may cause it to be more expensive to maintain the bridge a reason for declaring the contract invalid. This feature relates to interest of the county in the bridge, as distinguished from that of the public; and as to such interest the county commissioners have the power to contract. This distinction is brought out in the case of Justices v. Plank Road Co., 9 Ga. 486, as follows: "The easement in a public road is a property, in equity, belonging to the county at whose expense it is constructed. It is subject to use by the public at large; hence, as I before have said, it appertains to the public. Yet this is not inconsistent with the idea of an equitable interest or property in the county. The public use may be considered as a limitation upon the property. The interest which a county has in a public highway springs equitably out of the fact that that county, and not the whole public, have paid the costs of construction. The right to lay out and open the road is derived from the inferior court, acting under the Legislature. The easement is a legislative grant. The people of the county make the grant available by the outlay which is necessary to open the road; and, so long as the grant is unrevoked, the road-that is, the easement is an interest or property in the county. The inferior courts are the depositories of this property, as well as any other. It is their duty to protect it, as much so as to protect the courthouse, and, if it is violated, they have the right, as the agents or trustees of the county, to go into a court of equity for redress."

On this particular phase of the question the case of Hanbury v. Woodward Lumber Co., 98 Ga. 60, 26 S. E. 477, is squarely in point. Certain citizens residing in West End, Atlanta, attempted to enjoin the Woodward Lumber Company from laying, with the permission of the municipal authorities, a private railway track across a public street in

which the lumber company owned the fee: the contention being made that the track and the moving of cars thereon rendered the public use of the highway inconvenient and unsafe. The Supreme Court said: "To what extent the owner of the fee may appropriate to his own use those other incidental rights not conflicting with the public use is necessarily a matter resting primarily with the city authorities, and is referable to the broad discretionary powers conferred upon them in the conduct and management of the public ways. He may be permitted to lay gas and water pipes or drains under the roadway, and do many other acts for his own advantage, provided the use of the public is not impaired. Whether or not such uses could be enjoyed without prejudice to the public right is, as we have said, primarily a matter for the consideration of the city authorities, and, if they conceive that the proposed right of the abutting lot owner may be safely exercised without exposing to inconvenience or jeopardy the easement of the public, an injunction against the exercise of such right, at the suit of private citizens not owners of property abutting upon the portion of the street sought to be devoted to the particular private use, will not be granted. In respect to this matter the authorities represent the public, and their consent is a sufficient warrant for upholding the judgment that the entry of the owner of the fee was not per se wrongful. In the present case the parties sought to be enjoined were, the one a railroad company, the other a manufacturing company. They owned lots opposite each other and abutting on the street in question. The latter desired the construction of a spur track, so as to connect the two lots and thus give it connection with the other company's railroad. They each agreed to this, and the municipal authorities consented, by resolution declaring that the public would suffer no inconvenience from the construction of the proposed track. We think, inasmuch as the city authorities held only an easement to the extent of a right of way, that there was no abuse by them of their discretion in allowing the owners of the fee the uses of the street for the purposes above mentioned. It was a valuable right to the owner of the lot. Proper precautions were taken to protect the interests of the public, and there is no reason why he should have been deprived of that right. Of course, we cannot undertake to say that the proposed track may not hereafter, either because of the manner of its construction or the manner of its use, become a nuisance and subject to abatement as such. An increase in population or travel may bring about such a result. But under the present record we hold that in favor of the owner of the fee in the street the city authorities had the power to authorize a joint enjoyment of the property, and that their discretion was not abused when it was determined that the proposed

use by the owner of the fee was not inconsistent with the exercise by the public of its dominant right of way."

We have been led into this lengthy discussion of this case, not only by the able and earnest arguments which were presented pro and con, but also on account of the public character of the interesting questions involved; and, after considering the matter in its various phases, we hold that the contract is legal, and that the judgment rendered is correct.

Judgment, on the main bill of exceptions, affirmed; cross-bill dismissed.

MUTUAL LIFE INS. CO. v. STEGALL. (No. 136.)

(Court of Appeals of Georgia. April 20, 1907.) 1. INSURANCE-TERM AND DURATION OF RISK -LIFE POLICY.

A petition brought to recover on a policy of life insurance, which shows, on its face and by its exhibits, that the policy was issued and bore date August 30, 1904, that the first premium was paid, that the condition of liability to pay the amount named in the policy was that annual premiums of a named amount should be paid in advance on August 30th in each year thereafter, that the insured did not accept the policy nor pay the first premium thereon until November 19, 1904, that no premium was thereafter paid, and that the insured died October 29, 1905, as against a general demurrer on that ground, sets out no cause of action. 2. SAME.

The contention that, under a policy such as above described, payment of the first premium and acceptance of the policy November 19, 1904, had the effect of continuing the policy in force for one year from that date, is unsound as a matter of law. 3. SAME.

A stipulation in a written application for a policy of life insurance to the effect that the contract to be issued thereunder shall not take effect until the first premium is paid is one for the benefit of the insurer; and when in response to such application the insurer accepts the same, and in due course issues a policy of which such application becomes a part, with conditions as above set out, and the insured afterwards accepts the policy and pays the first premium thereon, he must, in order to keep the policy in force, comply with its terms as to future payments of premiums.

(Syllabus by the Court.)

Error from City Court of Bainbridge; Harrell, Judge.

Action by Mrs. Claude Stegall against Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.

James H. Gilbert and Pottle & Glessner, for plaintiff in error. A. E. Thornton and Russell & Hawes, for defendant in error.

LITTLEJOHN, J. The issues submitted for our consideration were raised by the refusal of the trial judge to sustain certain demurrers filed by the Mutual Life Insurance Company to a petition which Mrs. Claude Stegall filed in the city court of Bainbridge, seeking a recovery, in the aggregate

of $5,000, on two policies of life insurance which the insurance company had theretofore issued on the life of her deceased husband, M. J. C. Stegall, and in each of which she was named as the sole beneficiary. There was a general demurrer that no cause of action was set out, and there were special demurrers to the alleged infirmities in particular paragraphs of the petition. As, however, we dispose of the case made by the petition on its merits, under the general demurrer, adversely to the contention of the plaintiff in the court below, it is not necessary that the grounds of special demurrer shall be considered or passed on. So far as it is necessary to determine the legal questions involved, the case made by the petition will appear in the following statement, which is compiled from the petition and the exhibits which were made a part thereof: On August 1, 1904, Martin J. Crawford Stegall made application to the Mutual Life Insurance Company of New York for the issuance of two policies on his life, one for $3,000 and the other for $2,000, containing, among other things, the clause: "Which [contract] I hereby agree to and accept, and which shall not take effect until the first premium shall have been paid during my continuance in good health and the policy shall have been signed by the secretary of the company and issued." On this application the policies were issued, duly executed, and bore date August 30, 1904. The body of each of the policies contains a promise to pay the plaintiff below, if living, etc., $3,000 under one of said policies, $2,000 under the other, upon acceptance of satisfactory proofs of the death of Martin J. Crawford Stegall "during the continuance of this policy, upon the following condition, and subject to the provisions, requirements, and benefits stated on the back of this policy, which are hereby referred to and made a part hereof: The annual premium [stating the amount] shall be paid in advance on the delivery of this policy, and thereafter to the company at its head office in the city of New York on the 30th day of August in every year during the continuance of this contract. The receipt of the first payment of premium hereon is acknowledged." Among the provisions on the back of each policy is the following: "Notice. No person, except 'an executive officer of the company or its secretary at the head office in New York, has the power on behalf of the company to make, modify, or alter this contract, to extend the time for paying a premium, to bind the company "by making any promise or by accepting any representation or information not contained in the application for this contract." Touching the payment of premiums on these policies, the petition alleges that "on November 19, 1904, petitioner's husband [M. J. C. Stegall, the insured] paid the premium on said policies to T. E. Morgan, defendant's agent, who received said application, by executing and delivering to said agent his two promis

sory notes, both dated November 19, 1904 [for the stipulated yearly premiums], said Martin J. Crawford Stegall being at the time in good health, said notes paying the premiums on said policies for one year from the date of their execution and delivery," and that, "upon the execution and delivery of the said two notes, said policies of insurance were delivered to the said Martin J. Crawford Stegall, and from that date were effective." The petition alleges, further, that on October 29, 1905, "during the continuance of said policies," the plaintiff's husband, Martin J. Crawford Stegall, was shot and killed. The further allegations are made that proofs of death were duly made and that the insurance company denied its liability and refused to pay.

In support of the judgment rendered in the court below, counsel for the defendant in error insist, as a matter of law, that notwithstanding the policies of insurance bear date August 30, 1904, and provide that the annual premium to continue the policies in force shall be paid on August 30th in each year, yet, as the policies provide that they shall not become effective until the payment of the first premium and the delivery of the policies thereunder, it follows that, inasmuch as the premiums were not paid on the policies nor those writings delivered until November 19, 1904, the policies became effective on that day; that the date in the policies, by consent of parties, was changed to the day of payment and delivery of the policies, and, the premiums paying for insurance by the year, such payment held the policies in force until November 19, 1905, and, the insured having died on October 29, 1905, the beneficiary, by her petition, shows a right of recovery. We find one fatal defect in this line of reasoning. It is not in accord with the letter or the spirit of the policies. To maintain the right of recovery under the allegations of the petition, life insurance must primarily be treated as a subject of bargain and sale. As such it is frequently referred to. Yet it is not a chattel. It is not merchandise. Its object bears no relation to ordinary instances of bargain and sale, where the purchaser parts with his money for its equivalent in a material thing of intrinsic value to him; and, if it be a subject of bargain and sale at all, it is only so in a qualified and limited sense. For ourselves we prefer to treat life insurance from the standpoint of our Civil Code of 1895 (section 2114), as a contract by which the insurer, for a stipulated sum, engages to pay a certain amount of money if another dies within the time limited by the policy. As a contract, all of its material terms and conditions must be observed and complied with, either to create a right or a liability. Not only is it a contract, but, to be a valid one, it must be in writing. Civ. Code 1895, §§ 2117, 2089. Hence the terms and conditions of it are fixed and easily ascertainable. A policy of life insur

ance (in this case at least) is not the whole contract. The insured made an application in writing for the two policies, which were issued. That and the policies issued constituted the contract. The contract on which the plaintiff sues, and only on the terms of which she, in any event, can recover, contains a broad stipulation in the shape of a notice that only an executive officer or its secretary at its head office in New York has the power to modify or alter the contract, or to extend the time of paying the premium, or to bind the company by making any promises. No allegation is made that any change of the kind indicated was had. Consequently the rights of the parties are to be fixed by the original written contract. This (and both parties to the suit are equally bound by it) makes a condition precedent to the liability to pay on the death of the insured that the annual premiums shall be paid in advance on delivery of the policy, and thereafter on the 30th day of August in every year during the continuance of the contract. Certainly the contemplation of the parties was that the policies for which the insured applied should have a date from which the insurance should commence. None was fixed in the application, except that the company was asked to issue the policies and the insured agreed to accept them when issued. The application was made on August 1st. Thirty days afterwards the policies were issued in New York, and bore date August 30, 1904, and carried insurance on the life of Stegall from that date, thus making the year of insurance end on August 30, 1905. It is true that the insured did not receive the policies until November 19, 1904, and it is equally true that the company was not bound, under the terms of the contract, until he had paid the premium and received the policies. He asked for the insurance on August 1st, and agreed to accept the policies and pay the premiums when issued. The company accepted his application and furnished the contracts on August 30th. He did not then receive them, but let them lie dormant until November 19th. He then paid for them, and accepted the policies as they stood, carrying insurance back from August 30th, and stipulating that, to keep the policies in force, the next annual premium must be paid August 30, 1905. He asked for no change. None was made. He knew what he received. His beneficiary stands to-day on the contracts containing these stipulations. Nothing can be clearer to our minds than that, on failure to pay the annual premiums provided for on August 30, 1905, the policies lapsed, and were not in force at the time of the death of the insured, October 29, 1905. Under our positive law in relation to life insurance, a policy runs from midday of the date of the policy, and the time must be estimated accordingly if a policy is limited to a specified number of years. Civ. Code 1895, § 2119.

We were referred to a decision in the case