author: Birchard, J.

text:
    John B. Bayless vs. The Trustees of the Belmont Bank of St. Clairsville.
    A bond filed, in a case in error, must be filed before the Supreme Court obtains complete jurisdiction of the writ of error, or it is too late to operate as a supersedeas, and is invalid, either as a common law or statutory bond.
    This is a Writ of Error directed to the Court of Common Pleas of Belmont County.
    The questions presented for the consideration of the Court appear from the following statement:
    On the 15th of March, 1342, the Bank sued out a summons against Redick McKee, John F. Clarke, William B. Tyson, George Dulty, Charles D. Knox, John Richie, Alfred W. Woods and John B. Bayless.
    This summons was returned served only as to Bayless and Woods, against whom, at the March term, 1842, the Bank filed its declaration.

      In Bank.
    Dec. Term, 1846.
    The declaration counts on a penal bond for the sum of $24,000, dated the 22d March, 1841.
    In October, 1840, the Bank had recovered a judgment against McKee for near $12,000, and on the 31st October, 1840, McKee sued out a writ of error on that judgment; the citation and notice, required by the statute, were waived by the Bank, and the case was reserved to the Court in Bank. Pending this, in March, 1841, the Bank arrested McKee on a ca. sa. and put him into the county jail. While matters thus stood, the bond, on which the judgment which is sought to be reversed in this suit, was made. It is, in form, a supersedeas bond.
    At the December term of the Court in Bank, for 1841, the Court affirmed the judgment against McKee, on division. This suit, was then brought on the supersedeas bond, and judgment was recovered in favor of the Bank; a writ of error was sued out, and the judgment reversed ; the case was sent back again to the Court of Common Pleas. In the mean time, Woods had become a certified bankrupt, and pleaded this matter, and was discharged.
    Bayless craved oyer of the bond and the condition, and pleaded that the same had been obtained of him without consideration. To this plea, a general replication was filed, with an agreement of the parties, that every thing which could be given in evidence, under any special plea and replication proper in the case, should be received and given in evidence under that state of pleading, and the agreement should be made a part of the record. This was on the 20th March, 1844.
    At the March term, 1844, the case was submitted to a jury, and, during the progress of the trial, Bayless, the then defendant, tendered two bills of exceptions, which were sealed by the Court, and which fully show all the evidence in the case.
    The first bill shows, that the Bank read the bond, the record in the case of the Bank against McKee, and the suit in error in that case, the reservation of the same to the Court in Bank, the judgment of affirmance, and the mandates, and then rested.

      Bayless then read, in evidence, the writ of error dated and issued on the 31st October, 1840, and an indorsement on the back thereof in the handwriting of John C. Tallman, the clerk of the Supreme Court, except the signature of Mr. Cowen, which he put to it himself:
    “ I agree to appear, and do hereby appear for the President, £ Directors and Company of the Belmont Bank of St. Clairs- £ ville, the defendants in error, and waive their issuing and ser- ‘ vice of notice and citation.
    f£ 31st October, 1840.
    ££ B. S. Cowen, Attorney for Plaintiffs below.”
    The defendant then rested.
    The Bank then offered, in evidence, the original papers of an application of the said McKee to Hugh Rogers, an associate judge, for a habeas corpus, dated 13th of August, 1841, the writ and the return of Isaac Vail, the sheriff, and the execution under which he claimed to hold McKee in custody. The return is, that he held McKee in custody by virtue of a ca. sa. issued in the case of the said Bank against him, and another ca. sa. in the case of Robert Thompson against him, both dated and issued on the 2d of March, 1841, and the return of the sheriff on the ca. sá. This last return was, that he ££ served ‘ this writ by taking the body of the said McKee and commit- £ ting him to the jail of the within named county, on the 2d of £ March, 1841, and by reason of the insufficiency of said jail ‘ he made his escape therefrom some time in the night of the £ 7th April, 1841, and I have used the utmost vigilance in my £ power to take him, but, as his lurking place is in Virginia, I £ I have not as yet been able to accomplish that object.
    ££ Isaac Vail, Sheriff.”
    And, also, the discharge of the said McKee by the said Rogers, who decided the same bond to be a supersedeas to the execution, to all of which the said Bayless objected, as being incompetent; which objection was overruled and the papers were read in evidence, to which the said Bayless excepted. It was also proved, that the Bank had no agency in the habeas corpus proceedings, as a consideration for the bond or otherwise.
    A witness was suffered to prove, that Bayless was present at the time McKee was discharged, and that he did not object; to all of which evidence Bayless objected.
    This was all of the testimony that was given in the case.
    The said Bayless then moved the Court to instruct the jury:
    First: That the penal bond so declared on was not a good bond at the common law, for the reason that the plaintiff had no right, by its charter, to take a bond for any other purpose than for money lent, or for the security of a debt, or for property sold, and for the reason that the bank did not accept the bond for any other purpose than as a statutory bond.
    Second: That the obligation accrued against Bayless by the sealing and delivery of the said bond to the said clerk, and by his approval thereof, and not by any subsequent act to be performed by Bayless or any one else, and that if he was bound by, and liable for, on the same when it was to be delivered and approved by the clerk, he was not liable at any other time and is not now liable.
    Third : That after Bayless had delivered the bond to the clerk, that he had no control over it, nor had he any control over McKee on the habeas corpus proceedings, for no one could deprive McKee of that right; and that the said McKee or Rogers had no power to contract or enlarge the liability of Bayless on the bond, by any proceeding to which he was not a party.
    Fourth: That the Bank had no right to prosecute the writ, by and for the reason that its charter had expired.
    The Court refused to give those instructions, so prayed for by the said Bayless, in charge to the jury, and each part thereof; but, on the motion of the plaintiff in that suit, instructed the jury that the discharge of McKee on the habeas corpus proceedings having been obtained by McKee on the day of the execution of the bond, was a sufficient consideration for the bond, so far as McKee was concerned, and inasmuch as Bay-less was his surety, he ought to be bound in the same manner, and that the discharge was a sufficient consideration for Bay-less; and, it appearing by the bond, that it was intended to operate as a supersedeas bond, that is evidence that the discharge of McKee was the consideration of the bond; to which refusal to instruct as above requested, and for instructing in the manner above stated, the defendant, Bayless, excepted.
    The judgment was rendered for $24,000 in debt, and the further sum of $14,474.53 in damages, for which execution was ordered to issue.
    On this record, the errors assigned are these:
    First: It was erroneous to permit the plaintiff to give in evidence the habeas corpus proceedings, and the matters connected therewith, to prove the issue.
    Second: It was erroneous to refuse to instruct the jury as prayed for by the defendant.
    Third: It was erroneous to instruct the jury as prayed for by the plaintiff, and as instructed by the Court.
    Fourth: It was erroneous to permit the plaintiff to prosecute this suit after it had ceased to exist.

      Daniel Peck, for Plaintiff in Error.
    There are several questions arising on this case, the principal of which are,—
    First: Was the bond, according to and by the statute, a good and valid instrument? If not,
    Second: Was it a good and binding instrument, by the common law ?
    If both these questions should be decided in the negative, the case is at an end, for it cannot be in any way amended.
    It will be observed that the Court of Common Pleas held this void as a statutory bond, but good by the common law.
    I maintain that it is not a binding instrument, either under the statute or by the common law.

      At the common law, a writ of error, of itself, operated as a supersedeas to all further proceedings, in the suit in the Court below, if sued out before execution began. In fact, it removed the record to the court of error.
    This rule of the common law did not suit the taste of our Legislature, for such writs would have been resorted to for mere delay in many instances. To prevent the abuse, perhaps, of this writ, the following act was passed:

      “ That no writ of error shall operate as a supersedeas to any ‘ execution issued on any final judgment of the Court of Com- ‘ mon Pleas, unless the clerk, before signing such citation, shall ‘ take a bond from the applicant to the adverse party, with one ‘ or more good securities, in double the amount of the judgment c obtained, conditioned for the payment of the condemnation ‘ money and costs, in case the judgment of the Common Pleas ‘ shall be affirmed, in the whole or in part.” Swan’s Stat. 679, ‘ sec. 120.
    The whole object and consideration of such bond is, that it shall operate as a supersedeas as to the execution. If it did not, or could not so operate, it could not operate as a statutory bond in any way, and was of no validity whatever.
    Did this bond operate to supersede the ca. sa., on which McKee was held in custody ?
    It will be useful to inquire what effect the suing out a writ of error would have, in a case like this, without reference to the statute. At the common law, the writ operated as a supersedeas, if sued out before the judgment had been executed in part or in whole; and an execution was considered as an entire thing, and if begun to be executed, it went on to the end, and the writ of error in such case did not operate as' a supersedeas. The case of Kinnie, qui tarn, v. Whitford, 17 Johns. Rep. 34, was a motion, on the part of the defendant, that the writ of error filed in this case be a supersedeas to the execution issued on the judgment, &c., The execution had been levied before the writ was filed. The Court says:
    “ In a qui tam action, the statute does not require that the c bail to a writ of error should be put in, in order to make it a £ supersedeas: ' But in this case the execution, had issued, and ‘ was áctually levied on the property of the defendant, before £ the writ of error was filed ; and .this writ of .error wa.s, there- ‘ fore, no supersedeas. .This is so decided in Blanchard y. £ Meyers, 9 Johns. Rep. 66.” • ' .
    This last case was a like motion. The Court says,: ££ A ■£ certiorari, allowed after execution began to be executed by the £ constable, is no. supersedeas to’the execution. The same rule £ applies to cases arising under justices’ judgments and execu- £ tions which exists, as to other courts,/When a regular writ of £ error is allowed / and- it is well settled, that the allowance of £ a writ of error, after the sheriff has levied under a fi. fa.¿ .is no £ supersedeas to it.” Meriton v. Stevens, Wills’Rep. 271.
    The case of Brisban v. Baines, 11 Johns. Rep. 197, was a motion to sét aside,a fi. fa: The Court says: ,“In the présc ent case the writ of error was allowed the fourth of January, £ and no bail in error was put in within four days after the ‘ judgment was signed, nor before the execution was delivered £ t'o the sheriff, nor does it appear that it has ever been' put in ‘ to this day.” The motion was denied. ,'
    So, in Blunt vi Greenwood, 1 Cowen’s Rep. 15, the Court decided that an execution could not be superseded, after it had been-executed. ■ '.' / ■
    ■ In the case of The People ex rel. Gould et al. V. The Judges of thet Common Pleas, in "the city of New York, 1 Wendell, 81, the Court' holds that, .when the writ'of error is sued out in time, and the bail given in foür days, the execution' will b,e.-superseded, but'not otherwise. Four.days is given during which the person ■ suing out the writ of error may give the bail, and the execution will be superseded and restitution Be Ordered, if necessary, if issued, in. those four' days; but if the bail is not so given, the same will not- operate as a supersedeas.
    In Meriton vi Stevens,■'Wills’, Rep. 271,'dhé Chief Justice, reviews all' the cases upon this subject.from the earliest'period, and comes to the conclusion that, if a levy is made on-an execution-before the suing out of the Writ of error, .'the sheriff must proceed to the sale of the goods, and bring the money into Court, to abide the event of the writ of error; in which conclusion he is supported by the whole Court, except Mr. J. Fortescue. It is however well worth observation, that in page 280, the Chief Justice expresses his doubts as to the reasonableness of the rule, when applied to a ca. sa. instead of a fi. fa. “ If it were a capias, (he continues,) that being a complete £ execution, it has been holden that a writ of error comes too late ‘ afterwards, for that the judgment is completely executed, and £ therefore the party shall remain in prison, notwithstanding the £ writ of error. But, quere, how far this is reasonable, since £ the statutes, 3 Jac. 1, ch. 8, 16, and 17 Car. 2, ch. 8, in such £ cases, when bail is actually put in to answer the debt, or dam-' c ages and costs, pursuant to the directions of the statutes.”
    This writ was issued in October, 1840; the statute prevented it from operating as a supersedeas. On the 2d March, 1841, by means of the operation of the statute, the bank was entitled to an execution, and of course it could not be at any loss for some one to swear out this ca. sa. on which McKee was that day arrested. When he was so arrested, and in custody, the judgment was fully executed; there was in fact nothing left for either party to do. We have seen that, at the common law, such an execution would not be superseded, but that the party would have to be in jail until the judgment should be reversed.
    The statute does not say that a writ of error, even with the bond, if given in time, shall supersede an execution partly executed, or luholly executed, as in this case, but only that no writ of error shall operate as a supersedeas, unless the bond be given before the issuing the citation, whether there has been an execution or not.
    The statute requiring this bond is in restriction of the common law, and is to be strictly construed. The case of Craig ads. Scott and others, 1 Wend. Rep. 35, was a motion to quash the writ of error. The Court says: the Court will not inquire in an ordinary case whether the writ of error is prosecuted for delay; it is a writ of right to which the party is entitled, and the court ate averse tó impose restrictions upon its prosecution.”
    B ’s chimed that inasmuch as there never was-in fact any citation issued in the case of McKee, by the Belmont Bank, that the bond was well executed as a statutory bond. . ■
    The issuing of the citation and notice, and the service of them, was waived by the party against which the same was 'to be issued and served. . This .'appearance and waiver Was done by the' party and ' the clerk of the' Court; and^ McKee could not-have prevented this,, nor could he have a citation issued after süch waiver: The party 'had the right to waive the • issuing and service of those 'papers, as ■ well as of any other - writ. It was intended by the parties, that this act should place it in .the same situation-.as if would have been in by the issuing and service of the papérs waived, and such is-the legal effect of' that act. ' '
    :it was so considered by the'Cdmmón- Pleas, and in accordance, with that view the Court ruled the bond to be void as a statutory bon'd. ' . . / - '
    The statute is-positive' that no writ of error shall-operate as a supersedeas, unless the bond shall be-given before the signing of. the citation.- This must be taken to, mean what the words--themselves import.There is nothing to explain by; the words ■ are as plain as words can be. '. Neither does the spirit-of'the law require anything'but a literal construction. I conclude,therefore, that this bond1 was not a binding instrument un.der' the statute'.. If not good under the statute, is it binding as a common law bond ? The requisites to a good common law bond are, parties competent to contract, and actual contract by the parties upon sufficient consideration. None.'of -these' here are found. - The parties never did contract. The Bank,1' the,party now seeking to enforce it, had no agency in bringing . it into existence. .
    And it was exe'cuted without consideration. It was designed to operate as a supersedeas; failing in that, it failed to accom-' p'lish what was intended by the, makér, and remained a nudum, pactum. It was so void and lifeless .that vitality could not be' imparted to it by the judicial decision of Judge Rogers, discharging McKee on the habeas corpus.

      R. J. Alexander, for Defendant.
    The principal questions arising in this case are —
    First: Is the bond in question a valid statutory bond?
    Second: If not, is it a valid common law bond ?
    The language of the statute is, “ that no writ of error shall ‘ operate as a supersedeas to any execution issued ón any final ‘ judgment of the Court of Common Pleas, unless the clerk, ‘ before signing such citation, shall take a bond from the appli- ‘ cant to the adverse party,” &c. Swan’s Stat. 679, sec. 120.
    The object of the Legislature was, certainly, to so far- alter the common law as to prevent the issuing of a writ of error from operating as a stay of execution, unless a bond should be given to the adverse party.
    It would seem that, by the common law, the allowance of a writ of error is itself a supersedeas. 1 Term Rep. 279.
    And the allowance operates as a supersedeas, though the plaintiff is ignorant of it. 5 Taun. 203; 1 Chit. Rep. 238.
    A writ of error is a supersedeas, without bond being given, either before or after the issuing of an execution, and even after a levy is made. 1 Wend. 81, note (a.)
    Statutes requiring a bond to make a writ of error operate as a supersedeas, are against common right, and must be construed strictly. 22 Wend. 587.
    By the express provisions of our statute, the writ of error in this case could not have operated as a supersedeas without a bond being given; and there can be no doubt that the writ of error did operate as a supersedeas, if the bond was given before the clerk signed the citation.
    The statute, then, must be construed strictly, and Bayless himself claims that it shall be so construed; and, by this construction of the statute, strictly as against the bank and liberally in favor of McKee, the question of fact arises, was the bond given before the clerk signed the citation ? The clerk' certainly never did sign the citation, either in effect or «in fact. The issup'and service, of. a citation was waived by the bank, and a citation never-did issue, and consequently could not have been signed'By the.clerk. In this.view of the case, if .appears plain that the bond did operate as a supersedeas, and that’ Judge Rogers was right in. so finding and ordering the discharge of McKee. .' /" ’
    But we go., further, and insist that, if the clerk had signed the citation before the bond was-given, it, being, a.'ministerial act, and only directory to the clerk, yet thé bond would be valid upon a fair construction of the statute, and the decisions made by courts of high áuthority in analagous cases.'
    By the statute of Massachusetts, .a writ- of replevin was only effectual upon, the giving of a bond by the plaintiff in the suit, with sureties; and, in an action on such bond, executed by'the surety before the- service of the Writ, but not' by the principal until after its return and the entry of the action, it was holden good as against both. 11 Mass.- Rep. 282.
    Such a replevin bond is valid, although given the day after the service of the writ. 14 Mass.-Rep. 313.
    The same statute requires a replevin bond to be conditioned to appear at the next term of the Court of Common Pleas, &c.; and; in an'action on such .bond, conditioned tó appear at the next county court, it whs held, in effect, good by the statute, •and, if not, it was Valid «by the common-law.. <8 Mass. Rep. 149.
    'A bond given by a cotmty treasurer, not conditioned as required‘by law, in part, was'held a good statutory bond as far as it went, and .if not good by the statute 'it was by the common law.. 10 Ohio Rep. 51. , \ ,
    But, independent of other matters, it is confidently claimed on the part of the bank, that Bayless and McKee aré both precluded from saying,now that the bond .did not opérate as a supersedeas,- and that McKee was improperly discharged from custody, and that the bond is not valid, by the statute, for that reason.

      “ If a representation be made of any fact with a view to in- ‘ fluence the conduct of another, or to derive an advantage to £ the party, and which cannot afterwards be denied without a ‘ breach of good- faith, such representation will preclude the £ party who made it from insisting- upon the contrary.” “For ‘ in these and other such cases the party, by taking the benefit ‘ of the act, has conclusively adopted it.” 2 Starkie on Ev. 28, 24.
    An estoppel in pais cannot be pleaded, but is given in evidence to the court and jury, and may operate as effectually as a technical estoppel. 8 Wend. 480, and cases there cited.
    If the bond had recited that a writ of error and supersedeas had been obtained, it would have been a technical estoppel. 5 Ohio Rep. 169; 5 Mass. Rep. 317; 6 Mass. Rep. 33 ; 11 Mass. Rep. 282.
    If the bond is valid as against McKee, it is equally so as against Bayless.
    The sureties are liable on the bond for all that the principal is. 5 Watts & Serg. Rep. 21.
    If Linn (principal) received a sufficient consideration to uphold the promise on his part, it was sufficient to bind the sureties. There was no necessity for any consideration passing directly between the plaintiffs and the sureties. 15 Peters’ Rep. 314.
    “ If Neal (the principal) is answerable on his bond, so must £ his surety be, who voluntarily executed it, that Neal might £ get his goods6 Mass. Rep. 33. And, in this case, the principal was not permitted to show that he sued out the writ against law, to avoid the bond, and the surety was held bound in like manner with his principal.
    Second: If the bond is not. good by the statute, is it a good common law bond ?
    A contract entered into between competent parties'and for a lawful purpose, not prohibited by law, and founded upon a sufficient consideration, is a valid contract at common law. 15 Peters’ Rep. 311.

      There ought to be some very strong grounds to authorize a Court to declare an instrument absolutely void, which has been voluntarily made upon a good consideration. 15 Peters’ Rep. 315.
    Has the bond all the requisites of a valid contract, at common law ? Let it be tested —
    First: Was it entered into between competent parties ?
    Without any legislative act, it is competent for the United States and its subordinate agents and corporations to enter into contracts, if not prohibited by law, and appropriate to the just exercise of granted powers. 5 Peters’ Rep. 115, and cases referred to.
    Second: Was the bond taken for a lawful purpose, not prohibited by law ?
    No objection is made to the bond on this ground.
    Third: Was the bond founded upon a sufficient consideration ?
    To support a contract of guaranty, it is a sufficient consideration, if the person for whom the guarantor becomes surety receives a benefit, or the person to whom it is given suffers inconvenience. Chitty on Contracts, 398; 4 Greenl. Rep. 521; 2 Har. & Gill. Rep. 13.
    Waiver of a legal right, at the request of another, is a good consideration for a promise by him. 2 New Hamp. Rep. 97 ; Wright’s Rep. 660; 4 Pick. Rep. 9; 14 Johns. Rep. 466.
    A benefit resulting to the party, or, at his instance, to a third person, is, by all courts, held to be a sufficient consideration.
   Birchard, J.

A determination of two questions will dispose of this case —

First: Was the bond good under the statute ?

This question will be solved when we ascertain whether it operated to supersede the ca. sa. By the record, we learn that the judgment sought to be superseded had been removed, by writ of error, in October, 1840, to the Supreme Court of the county; that the parties had entered an appearance voluntan1y; that the cause was submitted to the Court upon the circuit, and, by the judges, reserved for decision in Bank. The bond was delivered to the clerk and approved on the 13th day of August, 1841, about ten months after the jurisdiction of the Supreme Court, by consent of defendant and the assent of plaintiff, became complete. It took effect, if ever, as a valid bond, on the day of its delivery to the clerk, and from the moment he indorsed his approval upon it. By the statute, (Swan’s Stat. 679,) “No writ of error shall operate as a su- * persedeas to any execution issued on any final judgment of ‘ the Court of Common Pleas, unless the clerk, before signing { the citation, shall take a bond from the applicant to the adverse ‘ party,” &c. This statute is imperative. There is not much room left for construction, because its meaning is obvious and cannot be mistake^. It changes the rule of the common law, and introduces a new principle. Before the statute changed the law, the writ of error removed the entire proceeding from the inferior to the superior court, and left nothing remaining for the former to act upon. It took from the former the judgment and vacated it, with all its incidents. The force and effect of the statute requires the bond to be filéd before the Supreme Court obtains jurisdiction of the parties to the writ of error. This is of the essence of the act. In the case under consideration, the Supreme Court had full jurisdiction near ten months before the delivery of the bond, by the acts and consent of both parties, or it never had jurisdiction. The defendants must take one or the other of these positions. If the first, and they treat the entry of an appearance by Mr. Cowen as the equivalent of a citation, and as substituted by the consent of both parties for a citation' — and we think they must so treat it — it then follows that the bond came too late, and is.not good, as a statutory bond. The object of such a bond is to affect the writ of error and cause it to supersede the execution. That was its consideration. It failed in that object, and, therefore, under the statute, failed altogether, unless there is some rule of the common law which will [give it support. Against this view it has been urged, that the bond was filed in time; that, inasmuch as no citation has yet been signed and none ever issued, it was literally filed before “ citation signedthat the statute being derogatory to the" rules of common law, must be strictly construed, and the words must be literally taken. This argument is like a two-edged sword, for it cuts more ways than one. If no citation has been issued, and nothing equivalent can supply its place, it inevitably follows, that no action whatsoever could be maintained upon the bond. Upon that hypothesis, the condition could not be forfeited. The Bank could have no right under it. Without a writ of error, a citation or its equivalent, a judgment or affirmance by the Supreme Court, a mandate and execution returned no goods, there could be no proceeding upon a valid bond.'

We proceed to consider, secondly, whether the bond is good at common law.

To be good at common law, there must have been parties able to contract, their minds must have united in making the contract, and upon a good consideration, which consideration must have been the one agreed to, and existing as executory or executed, at the delivery of the bond.

Now, to strip the question of all embarrassment, in order that we may have a clear conception of the law, let us for a moment lay out of view the entire proceedings before Judge Rogers, and then see if there was any, and if so, what consideration for the bond at the time it was delivered and took effect. We may well do this, for it is not to be supposed that any lawyer will seriously contend that his subsequent opinion or decision upon the habeas corpus, be it right or wrong, can in any way affect the obligation of the parties to a prior executed bond. Whatever may have been the rights of the parties, either at common law or under the statute, they were in no sense dependent upon Judge Rogers. He could neither enlarge or dimin.ish their obligation. The bond was good without his aid, or good for nothing in spite of him. As a common law bond, then, there must have been a consideration. In this case, sole consideration was that it should operate to supersede the ca. sa. on which McKee was held in custody. It was executed upon this supposed consideration, and so delivered to the clerk. But we have already seen that it had legally no such effect — already seen that third parties could not add any vigor to it beyond what had been imparted to it by its makers. Suppose Judge Rogers had not erred, but had held, as he should, that the writ of error did not supersede the execution, where, then, would have been the consideration which would have sustained the bond at common law ? It is very clear that there would be none. The faet that he did not so decide can make no difference. A judicial error of an Associate Judge of the Common Pleas was not the thing contracted for, or if so, was not a valid consideration. The discharge of McKee by him was not what was stipulated for. If it were so, another serious objection would exist: it would be void as a bond given for ease and favor. The common law would not sustain a bond having no other consideration than the violation of duty by a public officer. We therefore are constrained to say that the Court of Common Pleas erred in refusing to give the second and third instructions, as prayed for by plaintiff’s counsel, and in charging that the discharge of McKee was the consideration, and sufficient.

This disposes of the case, and renders it unnecessary to pass upon any of the other points made. But thus far I have proceeded without noticing one of the cases cited by counsel. This has been done solely with a view of enabling me to make the decision as clear as possible. The questions are intricate and interesting in themselves. The case in which questions of this kind have been considered with most ability, is Zinn’s case, 15 Pet. Rep. That sustains the cases in replevin cited for defendant from the Massachusetts Reports, and 10 Ohio Reports. O-ur decision, upon the closest scrutiny, will be found to contain nothing in conflict with the sound principles established in those cases. In each one of those cases the obligors received the precise consideration contracted for, and that consideration existed as executory or executed, at the delivery of the bond.

Another position has been taken for the defendant in error which deserves notice.

It is said that McKee and his surety, Bayless, are estopped from denying that the bond superseded the ca. sa. That the main object of filing the bond was to procure the release of McKee, which object was attained, under circumstances amounting to an estoppel in pais. Let it be always borne in mind that Bayless is a surety, that his only act in the whole matter was the affixing his signature as surety of McKee, at the date of the bond, and his happening to be in Court and remaining silent during the proceedings upon the habeas corpus. What had been done prior to that trial by him was altogether beyond his control. He then had no right to interfere with that proceeding, and his silence in no sense operated as a fraud upon the bank. There is no ground to say he is estopped from averring the truth.

Judgment Reversed,


source: Caselaw Access Project

author: Wood, C. J.

license: Public Domain

text:
    In Bank.
    Dec. Term, 1846.
    George G. Gillett vs. Smith Webster and others.
    A judgment creditor having a lien upon land, when sold for taxes cannot file a Bill in Chancery to avoid the sale as invalid, without first refunding the amount of the tax, penalty and interest, or an offer to do so.
    This is a Bill in Chancery, reserved in the County of Ash tabula.
    The facts of the case will be found stated in the opinion of the Court.

      Ferkins fy Osborn, for Complainant.

      R. P. Ranney, contra.
    No arguments were furnished to the Reporter.
   Wood, C. J.

The bill in this case states that Smith Web ster was seized of certain lands in fee, in lots No. 20 and 21, in Kingsville, in the county of Ashtabula, on the 25th of June, 1839, and, on that day, conveyed by deed in fee, absolute on its face, to Horace Luce, one of the defendants; that this conveyance was in fact a mortgage, in security to Luce for indorsing Webster’s note. Webster afterwards paid the note, and, at his request, in order to keep the land beyond the reach of creditors of Webster, Luce conveyed in fee to Webster’s vyife, without consideration, on the 13th of April, 1840. On the fifth of the succeeding May, the complainant recovered judgment, in the Court of Common Pleas of Ashtabula county, against Webster, for $140.45, and on the second day of March, 1841, execution issued and was levied on the land in controversy.

The bill also states, that Jonathan Warner claims to have purchased the land, at a tax sale, in December, 1840, and received the county auditor’s deed, but that the sale was void for the want of a pertinent description, being only described as “twelve acres, in range two, township 13, inlots 20 and 21.” That Mrs. Webster died without will, leaving minor heirs; that Webster has no other property, and that the debt on which the judgment was recovered was contracted before the conveyance to Mrs. Webster, and that the judgment remains unsatisfied and in full force.

It is also stated in the bill, that before Warner obtained the deed upon tax sale, the complainant called upon him and offered to pay him the tax, interest, and penalty, which was a very small sum, but which Warner refused. The prayer of the bill is, that the deeds to Mrs. Webster and Warner be declared void, and that Luce and Warner release to Webster; that an account be taken of the judgment, taxes, interest, &c., and that the land be sold, and the judgment and taxes paid from the avails ; and for further relief.

Smith Webster has not answered. The minor heirs of Mrs. Webster answer by their guardian, and call for proof. Warner answers, admitting his purchase at the sale for taxes, but insists that he acquired a good title, and denies that the complainant ever tendered him the amount of tax, interest, and penalty, as stated in the bill, but says he was once called upon by the complainant, who was desirous of purchasing the tax certificate, but they could not agree upon the terms, and the complainant went away. A replication was filed and testimony taken.

The depositions of Horace and Artemas Luce prove the complainant’s case, against all the defendants, except Warner, and, against them, there is no reason perceived by us why the complainant may not take his decree. Warner, however, occupies different ground. By the act, entitled “ an act for the protection of purchasers at judicial and tax sales,” Ohio Laws, vol. xliv., 114-15, it is provided that, whenever a sale for taxes shall be invalid, the purchaser shall have a lien upon the land for the amount paid, &c. Of this lien, therefore, if his tax title be defective, he cannot be divested, without, at least, an offer to refund to him the money advanced. The complainant’s solicitor was aware of this, and the bill contains the necessary allegations; but has he not failed entirely in his proof?

There is no evidence, but the answer of Warner, and that, in our opinion, falls very far short of furnishing the necessary proof. “ The complainant called upon the respondent to purchase his codifícate of sale, but they could not agree,” and not a lip is heard of any tender or offer to pay. Upon familiar principles, the complainant is not rightly in equity, until he has done that justice, or offered to do it, which he exacts from others. It is a condition, precedent to any right to institute his suit, and, for that reason alone, the complainant’s bill must, as to Warner, be dismissed.

This view of the case renders it unnecessary to examine the tax title; and sufficient for the day is the evil thereof.

jBill as to Warner dismissed.


author: Birchard, J. Read, J.,

text:
    City of Cincinnati vs. Peter Bryson.
    The City Council of Cincinnati has power to license and regulate draymen, and may require a reasonable sum, by way of excise, on the special employment.
    The right to license and regulate, confers no taxing power over the draymen.
    This is a Writ or Error to the Court of Common Pleas of Hamilton County.
    The writ is prosecuted to procure the reversal of the judgment of the Court of Common Pleas, reversing the judgment of the Mayor of Cincinnati, rendered by that officer in a complaint pending before him, prosecuted by the city against the defendant, for a violation of the city ordinance.
    The original complaint before the Mayor of Cincinnati, was “ for neglecting or refusing to take out license for a dray, in the city of Cincinnati, according to ordinance of said city.”' The defendant admitted the fact of refusal to take out a license, but objected to the validity of the ordinances. The Mayor overruled the objection, and the defendant was fined five dollars and costs, $ 1.05.
    In Bank.
    Dec. Term, 1846.
    The Court of Common Pleas, on certiorari, reversed the judgment of the Mayor, and this writ is prosecuted by the city to review the reversal by the Court of Common Pleas.
    The ordinance, passed the 30th of January, 1835, provided, “ that every owner of hackney coaches, wagons, carts, drays, ‘ and other four or two wheeled vehicles, who shall cause en- ‘ tries to be made, as specified in the fourth section of the £ ordinance to which this is an amendment, and acknowledge £ the same by his, her, or their signature, shall receive from the £ City Clerk a certificate, stating the number of each coach, £ wagon, cart, dray or other vehicle, as aforesaid, so entered, £ and the place of residence of the owner thereof; and such £ certificate shall be presented to the City Treasurer, who shall £ demand and receive, for the use of the city, of such owner or £ owners the following sums, to wit: For each hackney coach, £ for two or more horses, five dollars; for each barouche, dear- £ borne, or other four wheeled vehicle, three dollars; for each £ gig or other two wheeled vehicle, two dollars; for each wagon, £ drawn by six or more horses or oxen, six dollars; by four or £ five horses or oxen, five dollars; by a less number than four £ horses or oxen, four dollars; for each cart, drawn by two ‘ horses or oxen, four dollars; for each cart or dray, drawn by £ one horse, three dollars; and for every pair of timber wheels, ‘ five dollars. And on receiving the amount due as aforesaid, £ agreeably to the certificate of the City Clerk, the Treasurer £ shall make a particular entry of the same, in a book to be £ kept for that purpose, and acknowledge the receipt thereof on £ the back of such certificate; which receipt, on presentation to £ the Mayor, shall entitle the owner or owners thereof to receive £ a license for one year from the date of the same.”

      An amendment to this ordinance, passed July 3, 1844, provided, that “ all vehicles named in this ordinance that shall use ‘ a tire of less width than is herein described, after the first day 1 of November, A. D., eighteen hundred and forty-five, shall be c required to pay fifty per cent, more than is provided for in the ‘ ordinance to which this is amendatory.”
    An ordinance, supplementary to all former ordinances on the subject, passed January 8, 1846, provided, “that every owner ‘‘of hackney coaches, wagons, carts, drays, and other four and ‘ two wheeled vehicles, who shall neglect or refuse to take out ‘ license, or comply with the provisions of the ordinance now e in force, for licensing and regulating hackney coaches, wagons,' ‘ carts, drays, and other four and two wheeled vehicles, shall, ‘ upon conviction before the Mayor, or such other officer as ‘ may have jurisdiction, be subject to a fine of not more than ‘ ten dollars, and costs, for every vehicle for which he may re- ‘ fuse or neglect to take out such license; and every day such 1 owner shall continue to run said vehicle, without such license, ‘ shall be deemed a new offence.
    “ This ordinance to be in force from and after its passage.”

      S. M. Hart, for Plaintiff in Error.
    We claim that the power to “regulate” drays and carts, accompanied by the power to “ license ” them, confers the power to assess a reasonable tax. We do not mean a tax in its literal sense, but a charge for the use of the streets paved, repaired and cleaned at the expense of the corporation.
    In this view, there is a perfect analogy to the case of The City of Cincinnati v. Buckingham, 10 Ohio Rep. 257. The power conferred as'to markets was, “to erect, establish and regulate” them. “The due regulation of a market,” said Judge Lane, “'demands the expenditure of money, and the c levying of the tolls upon the sellers in market for the purpose ‘ of meeting these expenses, incurred mostly for their benefit, is c practiced by all municipal corporations. * * * * The e sum exacted for the purpose by this ordinance is called, by ‘ the defendant’s counsel, a tax upon the sale of commodities £ brought to market; it is, rather, the price demanded for ae- £ commodations provided to the frequenters, of the market by £ the city authorities.” This very principle, mutatis verbis, ought to decide the present case. To regulate the drays of the city, and the streets, demands an expenditure of money; and. a toll levied upon the owners of drays used in transportation for hire, is as universal as tolls levied upon market people are. The draymen, and cartmen, and hackney coachmen, are those who wear out the pavements of Cincinnati, and cause the heaviest expense to the corporation and its citizens. The sum exacted upon a license is the sum charged by the corporation for the accommodation of streets thus provided them, and justice requires that they should pay it.
    But the defendant was fined for using his dray to transport goods and receiving hire, without a license. Now, unquestionably, the city may demand, by this section of the charter, that no one shall so use his dray without a license, else improper persons might engage in the business, which it is the very object of this section of the charter to prohibit.
    And we take it to be equally so, that the corporation may require draymen to pay the expense of the licenses, if only to compensate the city for the cost of printed or written forms, and the time of the city officers employed, and for nothing else. ■
    Now, if the sum charged for a license be more than necessary to defray those expenses, a certiorari to review the conviction of a man who never took out a license at all, is not the method to reach that question. The error complained of, upon a writ of certiorari, must affirmatively appear of record — not be made out by extrinsic proof, much less by suggestions of counsel or the court; Clements v. Benjamin, 12 Johns. Rep. 299. There is nothing here to show that more than a sum necessary for the very purpose mentioned, was ever exacted.
    The defendant might have taken out his license, and, after-wards, in an action to recover the sum charged above the necessary expenses, the question might arise, but, surely, not in a proceeding of this kind.
    And so, if the city has no right to demand a single cent, the defendant cannot here contest the question ; for, as much of the ordinance as requires him to take out a license, is clearly authorized • by the charter, and for violating that provision he was fined.
    An ordinance may be good in part, though void as to the residue. Rogers v. Jones, 1 Wend. Rep. 226.
    This is not the method properly to inquire into the power of the corporation to exact tolls.

      Storer &f Gwynne, for Defendant in Error.
    Can the City of Cincinnati demand the sum of five dollars for issuing a license to run a dray within its corporate limits ? We hold, as did the Court of Common Pleas, that an ordinance making such a demand is void.
    In every question on any corporate right, the right should be manifest; 1 Bay Rep. 389. The powers of a corporation are to be strictly construed; 7 Ohio Rep. 35, part II. The act of incorporation is the law of the city. By the original charter, the city was called into being. By the amended acts, its vitality has been continued, and to them must we look for a a definition of the powers possessed by the city council. An ordinance of the city must be founded upon some power expressly granted therein, or its provisions must be necessary, and proper to cafry into effect the powers granted. This is a general rule of law, corresponding with section 38 of the act of March 1, 1834, incorporating the city. The ordinance under consideration is neither justified by the words, nor is it necessary and proper to carry into effect any clause of the act. It cannot be sustained under the powers conferred upon the city council by section 8. Those are general in their terms, such as are possessed by all cities, and not intended to reach an occupation like draying, which is neither pernicious nor immoral. Where specific reference is made to the subject in a subsequent portion of the charter, language so undefined will not confer more authority than the subsequent specific grant, nor, in fact, could this section be construed to embrace any other right than that which is contained in the clause upon the subject of drays.
    We must turn, we suppose, to the 13th section, and upon this the council for the city has rested his claim. That section empowers the city council “to license and regulate all carts, wagons, drays,” &c. What is the meaning of these terms? The power to regulate drays is the power to prescribe the rules or laws by which drays are to be governed. Such is the common acceptation of the term, and such the definition given in Gibbons v. Ogden, 9 Wheat. Rep. 190; and Buffalo and Niagara Falls Railroad Company v. Buffalo, 5 Hill’s Rep. 211. The power to license drays is the power to permit or authorize drays to run. “The word ‘license’ means permis- ‘ sion or authority, and a license to do any particular thing is a ‘ permission or authority to do that thing; and, if granted by ‘ a person having power to grant it, transfers to that grantee ‘ the right- to do whatever it purports to authorizeGibbon v. Ogden, 9 Wheat. Rep. 213. The city council, therefore, can authorize drays to run and prescribe the rules by which they are to be governed when running. No power is given to exact money for their permission. If it is discretionary with them to withhold that permission, that discretion must be a sound one. They must act.from convictions of right; should neither be quickened nor influenced by a payment of money, either to themselves or to the city.
    We do not deny that incident to the power of license may be the right to charge reasonable fees for the labor of the different officers in issuing the certificate and license, as in 14 Wend. 89; but the ordinance does not purport to provide for this; the money does not go to the officers, and it is far more than they would have any right to demand. It passes into the city treasury, is received by the terms of the ordinance for the use of the city, and the sum charged for licenses, under the section we are considering, is more than sufficient to pay the salaries of all the officers of the city. ■ It is, in fact, not a demand of a compensation for services rendered, not a police regulation, but a plan devised with the sole intent of swelling the revenues of the city.
    The form in which this money is exacted does not change its character as a tax. Says Archer, J., in State v. Roberts, 11 Gill and Johns. 506, “ Congress possessing power to lay taxes, £ under that power impose taxes by licenses. That a license is ‘ a tax is too palpable for discussion, unless there is something £ in the idea that it is a political or police regulation, intended to £ preserve, maintain, and regulate the .lottery system. If it ‘ were purely so, there might be some weight in the argument, ‘ but if not, it still has the brand of tax. It must be conceded ‘ it is in part a tax, and if so, still it is a tax.” And again he says, Ibid., “ A license, required to be obtained by payment of ‘ money, is a tax.”
    These ordinances, with the “ brand of tax ” upon them, can in no way be upheld. “ Where a charter of incorporation con- £ fers no right to tax, the right may follow as an incident, but £ where it confers the right, that right is limited, either by ex-c pressly denying it in some cases, or by specifying where and £ upon what it is to be exercised1 Martin’s La. Rep. The power to tax is one of the highest attributes of sovereignty; a right to interfere with the property of the subject, and appropriate it, to be returned to the community with no new value imparted to it in the meanwhile, or created from or through it. A municipal corporation, with defined powers in this respect, has none other, either in regard to the purposes for which or the objects upon which it shall operate. The ordinance, and every part of it, raising a fund for a purpose unwarranted by the statute law, was held void in 3 Greenl. Rep. 191; 13 Mass. Rep. 278; and the want of power to derive revenue from the subject of the tax was held fatal in 4 Peters’ Rep. 168, and 13 Mass. Rep. 278. The right to tax, its extent, the purposes for which, and the objects on which it shall be exercised, are so clearly specified in the acts incorporating the city of Cincinnati, and its amendments, that no room can be left to imply that right in a nonenumerated case. The present provisions of the law are grouped together, for more easy reference, in Appendix A. This very section thirteen, is explicit in all cases of. power granted, to which was intended to be annexed a right to tax. It contains a clause raising money from a road tax, and its provisions in regard to the streets are followed, in section thirteen, by a grant of power to raise a tax for opening, &c., streets, &c.
    The case of the Mayor of Columbia y. Beasly, 1 Humphrey’s Rep. 240, was for selling liquor in 1839 without license from the town authorities. The Court said, “ The power to ‘ tax tippling houses must be derived from the direct taxing ‘ power conferred in the charter. It cannot be derived from e the power to regulate and restrain them. That must be done c- by ordinances preventing those houses from becoming disor- { derly and imposing penalties for infraction of such'laws.”
    In Collins v. The City of Louisville, 3 Ben. Monroe’s Rep. 133, an ordinance of the city of Louisville, by which the seller of coal was charged a certain amount'per bushel for measuring, it was held void. By the act of incorporation, the Mayor and Council of that city were authorized to appoint measurers of coal and to affix a reasonable allowance to such measurer. But the Court, throwing out of view all other questions, said that this was a tax upon coal, not to defray the charges of measuring, but to raise revenue, and that, as the charter conferred no power to tax coal or its sale, the ordinance was void. We ask for the application of similar reasoning.
    In Commonwealth v. Bean, Thatcher’s Crim. Cases, 87, the complaint was under an ordinance of the city of Boston “ for regulating the keeping of dogs in the city of Boston,” to recover of the defendant a penalty of $10 for permitting his dog to go at large. The ordinance required a payment of $5 to the city clerk before a dog was permitted to go at large. The defendant not having paid this sum, the jury found him guilty. The case came by appeal before the Municipal Court. Thatcher, J. said, “ I do not see why, if the city is competent ‘ to impose a tax on owners of dogs, it may not.do so also on ‘ owners of trucks and carts, ^c. It is said this is a nuisance; £if so, what right has the city to license it and derive revenue ‘ from it. This is the first time where a town has undertaken £ to require from persons a. sum of money for enjoying a p’rivi- ‘ lege which they would otherwise - be entitled to enjoy freely,. ‘ The case of Player v. Fere, Sir T. Ráym. R,ep. 288, 324, c applies here. . A bylaw ' may be good in part and void in ‘ part. ■ But as the city cannot1 require from owneis of dogs f going at large a sum of money fóra license, it is„substantially ‘ defective and invalid for this cause. The verdict must be^ set £ aside and the’complaint dismissed.”
    In Mayor and. Aldermen of Mobile v. Yuile, 3 Ala. Rep; (N. S.), decided in 18411, the authorities of Mobile had- power “to license bakers and regulate the weight and price of bread, £-and' prohibit the baking .for sale except by those licensed;” The defendant, a baker, had been fined $20 under an ordinance of the city, which provided that nci‘one shall carry on baking unless he obtain a license, for which he shall pky $20, anti $1 to the clerk —r- that for carrying on baking without license, a fine not exceeding $50 shall be imposed, .and that all bread shall be of a prescribed weight, marked and inspected, and the bad bread, seized and forfeited.. The Court on error held the ordinance could not be supported, because the penalty must be reasonable; it must be a sum certain, and cannot be left to the arbitrary assessment of the corporation court, to be determined1 according to the nature of the offence. They say further, ■“ We £ also incliné to doubt the propriety of that portion .which for- £ feits bread,-ks also that portion which requires $20 to bé paid £ by the baker for a license, unless the-latter can be supported £ under the taxing,-power of the corporation. Though doubt- ‘ less it might require, a fee for the issuing and-registration of the license.” . -
    The case of Player v. Vere, Sir T. -Raym. Rep.' 288, 324, above cited,,in Thatcher’s Cfim. Cases,'.and commented upon and approved', 6 Pick. 191.,-was upon an ordinance of the city -Of-London, passed in 1677, that'the president and directors of Christ’s 'Hospital, should have the.rules of cars and carts — that ño mdre than 420 shall be allowed to work for'hire, and that a certain sum shall be paid, for each car-room,, and that, if any shall work one not so allowed,' he shall forfeit 13s. 4d, In Hilary term, 31 and 32 Car. 2, after extended argument, if was “ ad- ■ ‘ judged by. the .whole Court, nemine contradicente — that the ‘ bylaw was not good by reason of thé fine and rent, but in all ‘.things’else very good, and.so a procedendo was denied.”
    '' .These ordinances are void, because they are in restraint of trade. ,■ .
    The common law prohibits nó man to exercise any trade or more'trades than one. , Hob. 211; 11 Co. 54. - All bylaws in restraint of trade are bad, unless there be a custom to support .them.; 3 B.urt. ,1847; Com, D.ig. Bylaw c, 3; Willes 388; 11 Co. 54; Tl Co. -86; 1‘P.'Wms. 184. These customs are against common-right. They are allowed only from their antiquity, “in consideration of the .plenitude of the regal power ‘ at the timé the places in which they prevail were incorporated; • *. and the necessity of yielding encouragement to commerce, at ‘ that timé almost exclusively confined to'corporate towns,’’ and have not experienced much favor in Westminster Hall. Wilcock on Municipal Corporations, 74, 75, . The bylaws made accordingly are good.by way of custom, but not by grant,' and .therefore no corporation made within time of memory, can have suoh privilege, unless1 it be by act of parliament. '8 Co. 248.
    • ■ -Whether we examine the English or the American- cases, we will alike be unable to discover any, where ordinances, like the present have been supported, unless .authority to pass them is clearly shown. We propose to refer briefly to all the-American cases we have found.
    • Here, as in England, certain police regulations, not repugnant to the charter, and framed'for the protection of the inhabitants- from nuisances or other evils. A bylaw of Boston, prohibiting "rapid driving in the streets, is valid; 3 Pick. 462.
      Alsoj .a bylaw of Boston, out of. iegftrd to the' security of -.the ' people, requiring . owners and occupants of land bordering on streets; to dear the'snow away from the adjoining'sidewalks.; 16 Pick: 504. And, the city of Boston may fill up a creek which is a, nuisance to those of'the inhabitants dwelling near it; 12 Pick: 1S4. Cities may make rules for the occupation óf .the property óf the city, as. that none may stand' in -the market place without permission of the clerk of the market; -11 Pick. •168. In 6 Pick. 187, a bylaw of the city of-Boston, prohibiting any person not duly licensed therefor, by the Mayor ¿nd Aldermen, from removing the house, dirt and. offal from-the city, was held'valid, because it wa's-the duty of. the city to preserve the health of 'the inhabitant's; and'this they could best do by employing risen, over whom they lia,ve entire control! Here, it will bp seen, the subject'matter was a nuisance, and no charge’ was made for a license.. In 'Boston v. Schaffer, 9 Pick. 418, the Mayor arid Aldermen were’authorized to license theatrical exhibitions,'“on such.terms and conditions as to-them' may seem just- and reasonable.” Under this general' power,' ■the. Court felt. authorized,', by a legislative construction of-the act, such as the city of Cincinnati does- not exhibit,'to say a sum of money might be exacted- for a license. The Court then examine whether.it-is competent to the Legislature to grant to a town, or city power to-assess a tax which is nót general. The Court say, that if the sum- were a ’tax, the', objection wo.uld- be valid, but 'that it was in .the' nature of an excise, whose constitutionality was not doubted, and was peculiarly proper in employments of. that Kind,-which required to be watched. It will be noted, however, that we deny that the Legislature here gave the power., as also that the constitution of Massachusetts contains a clause not to- be found in that of Ohio, expressly providing pow.er to-lay. an excise .on.occupations, &.c., and that the : peculiar .nature of- the occupation was dwelt upon. In Massachusetts, as in England and New Y.ork, it is held that a bylaw must be legi, fidei, fationi, consona, and that, an unreasonable bylaw.is void; 1 Me'tcf! 130; 6-Pick. 187; 16 Pick. 121; 7 Paige 263; and whether it is void for unreasonableness, is always a question for the Court; 3 Pick. 462. In 16 Pick. 121, a bylaw of the town of Charlestown, that no one should, without leave of the Selectmen, bring into the town, or bury there, any dead body, was held unreasonable and void. It was declared that the right of property shall not be invaded, under the guise of a police regulation, and that a bylaw being entire, if void in part, is void for the whole.
    In New York, an ordinance that no person shall sell meat except in the public market place, has been sustained, (8 Johns. Rep. 327; 10 Wend. 99,) as being within a power to make bylaws relating to the public markets, and manifestly contemplated by it. In 10 Wend. 99, if is said “a bylaw, that no ‘ meat should be sold in the village, would be bad, being a ‘ general restraint, but that meat shall not be sold, except in a c particular place, is good, not being a restraint of the right to ‘ sell meat, but a regulation of that right.” In 7 Cowen, 349, and 9 Wend. 571, the power of a city to make ordinances for the removal of nuisances from harbors, and to authorize harbor masters to regulate and station vessels, for the purpose of avoiding disorder and confusion, was recognized. Under an express power to prevent the interment of the dead within the city, a bylaw to that effect was sustained, inasmuch as the city had “ power so to order the use of private property in the city as to prevent its proving pernicious to the citizens generally;” 7 Cowen, 604. The case in 14 Wend. Rep. 89, does not seem to have been well considered; it was of weighers of anthracite coal. In 5 Hill’s Rep. 209, an ordinance entirely prohibiting the propelling of railroad cars, by steam, through any part of the city of Buffalo, was held good, under a power to regulate the running of cars, for it was said, “ unless conducted with ‘ more than human watchfulness, the running of the cars by ‘ steam may well be regarded as a public nuisance.”
    The only case in New York similar to the present, is Dun-ham v. Trustees of Rochester, 5 Cowen Rep. 462. There it was ordained that none should keep a huckster’s shop without a license from the trustees of the village, and hucksters were taxed, for a license, from $5 to $30. The suit was brought for a fine imposed for keeping a huckster’s shop without license. The question was presented in the very same form as in this case. The act gave the power to make prudential bylaws, rules and regulations, relative to taverns, gin shops and huckster shops, in said village. The Court said that it was not shown how huckster shops could be an evil, if conducted under proper regulations, nor could they see, judicially, that any restriction was necessary; that the corporation must show their power, else their proceedings were void; that their bylaws must be reasonable; that bylaws such as these, against trade, were not allowed, except by particular custom; that it was not intended that any man should depend, for the exercise of his business, on the will of the corporation, or that they may prohibit it altogether, or cripple it by heavy charges and grievous penalties; that the right was not derivable from the taxing power, which was given in definite and specific terms. The Court were of opinion that the ordinances were void, both for want of jurisdiction and conformity to the general law. The Court, in 10 Wend. 99, intimate that the right to carry on this business was guarantied by taking a license from the commissioners of excise of the town. But this was not the ground of the decision, in 5 Cowen. The license, under the State law, was for the sale of gin and other spirituous liquors; the offence that of being a huckster, for which no license had been taken from the commissioners of excise. The case in 5 Cowen stands unreversed, as an authority applicable to this case. In 10 Wend. 99, it is admitted to be law, and the ordinance is condemned as “ imposing a charge without any corresponding benefit.” The present ordinance is of the same character. Upon a like jealousy of these restraints, in 8 Conn. Rep. 391, the power of a town to make bylaws, to regulate the fishery of clams and oysters within its limits, is admitted; but that of prohibiting all persons, except its own inhabitants, from taking them, is denied. In 1 Wend. 260, the latter was upheld only in a case of several .'-fisberi'es. See, also, 3-Ycates’ Rep. 54,. that'Borders of wood cannot be .appointed without special authority.-. ;
    In Ohio, but few decisions upon the validity of. bylaws have been made. . It is said .that, upon the circuit, this clause of the city charter .was under-investigation in the case, of The. City;of Cincinnati v. Goodman. That, decision is • not binding upon this Court as an authority. It has never been reported, and we cannot judge what were the grounds upon which it .Was decided, whether from reference to the nature of the occupa-. tion,. which is very lucrative and not in high,repute, or' for other ■ causes. The case is said. not, to have: been very fully argued. We. are referred' to Cincinnati v. Buckingham, 10 Ohio Rep. 261. The. Legislature differed from the-Court iff their'view of that, ordinance, and passed a special"act preventing, such, in future. That was- the case-.of an- ordinance affecting what is peculiarly the property of the city — the market-spaces; .and the ground taken by the ■ Court is, that the sum charged was “ the price demanded- for accommodations provided to the frequenters of market, by the-city authorities].” .There was. a quid pro quo. -Here the drayman obtains no “ accommodation ” —• no standing-place -r- no room for locomotion, which is not enjoyed by every other citizen. Moreover, he' does not carry on a business, such as is in 6 Pick. 187, “ removing the house-dirt and offal,” over which, as to titne', &c.‘, the council need-exclusive control in order to preserve the health of the city. The ordinance is a géneral restraint,. amounting to this, that no one shall, in any part of the -city, or at ariy time,' drive a dray for hire, unless upon terms-to which, as we contend, he ought not to be compelled to‘submit.

      Hart, in reply.
    The citation ■ of the City of - Cincinnati ,v. Buckingham, 10 Ohio Rep. .261, is disposed of by counsel very briefly. “The Legislature,”,we are told, “differed from the Court in < their view of that ordinance, and passed a special act pre- ‘ venting such in future.” We should hardly admit the author■ity of the Legislature.-to overturn;, the decision of this Court,; but the remark is. not pertinent; for the Legislature-acquiesced in the construction of the charter, and “ passed’ a! special act;”' to alter that construction in future cases'. , Th'e-'pbwer of ..the-city to 'tax the owners of market wagons .was affirmed, byithq'; Court, and admitted by the very' actionr;-of-the Legislature',We care not about “their view” of-the ordinance, for that..-jsnot ,the question:;ib be"discussed,.' '■ Underpower to regulate' markets,-the-city-has power to, tax the-'.owners of...marked wag-: ans; by perfect parity, of construction, a power-to';^regulate,” drays confers the power to tax .the owners of them;- :Atid' this entirely answers the argument, that in the 11th section of the' charter a special power to demand money, upon-a license to. keep a tavern or coffee-house -is conferred. The 'powerfto' “regulate’! carries the power of taxation-;- else,■ this-Court' erred, grossly in the cáse of Buckingham.'- ’■ -‘ff v."-.
    There is.no distinction between the cases ';'an.ffithis- Court.; must either reverse'its Own decision or reverse the decision', of, the Court of Common Pleas. ; ' '
    We cannot perceive, in most of the cases cited by the dé-, fendant’s oounsel, any'application to this question.

      Gibbons v. Ogden, 9 Wheat. -Rep..190, 213, céftainlydoés not, even by the statement of our-.opponents,' decide 'aught, 'against us. It does; in fact, decide,- that -iindé'r the power to-. “ regulate ” commence, Congress, m'ay levy a duty oh tonnage."

      The Buffalo and Niagara Railroad, Company V. The City of Buffalo, 5'Hill’s fLep;-2ll, upon the other hand," decides, that a power,tb-'regulate, in some, connections, is aq absolute. power to suppress. And this answers the argument'of the-defendant’s counsel, that here the amount of tax is unlimited, and the city council may, if it’choOse, suppress th.e draymen, and more to the sanie -effect;- ' An - árgumept against the use of a thing,'drawn from the.abuse of-it, is altogether, frivolous. If the city council unreasonably exercise the.power'-conferred by the charter, the ordinance will.be void. Nothing here shows this ordinance to be unreasonable, for there is,' ho proof at all. upon the point. 1 '■

      The Mayor of Columbia v. Beasley, 1 Humphrey’s Term. Hep- 240, is really opposed to our proposition, as we admit, but neither its own force nor the authority of the Court entitles it to much regard — far less, to overthrow the case of Buckingham.

      Collins v. The City of Louisville, 3 B. Monroe, 333, has no sort of application. The opposing counsel shall themselves report it: ££ An ordinance of the city of Louisville, by which £ the seller of coal was charged a certain amount per bushel for £ measuring it, was held void. By the act of incorporation, the £ mayor and council of that city were authorized to appoint £ measurers of coal, and to affix a reasonable allowance to such £ measurers.” Why this case should be cited upon the question whether a power to regulate includes a power to tax or not, we are entirely at a loss to imagine. ■ There was not a word about the regulation of the sales of coal in the Louisville charter, and nothing seems to have been decided by the Court upon the question here presented.

      The Commonwealth v. Bean, Thatcher’s Crim. Cases, 87, is a decision of the Boston municipal court, and certainly cannot be compared in authority with the decision of this Court on circuit. Besides, it is founded upon the case of Player v. Vere, T. Raym. 288, 324, which we shall by and by notice.

      The Mayor and Aldermen of Mobile v. Yuile, next cited, from the new series of Alabama Reports, does not support our opponents. The decision was, that the corporation had enacted an unreasonable ordinance — which was, of course, void. To be sure, the Court expressed a doubt whether twenty dollars could be demanded for a license; but it was only a doubt, and no reason was given for it.

      Player v. Vere, T. Raym. 288, 324, is the last case. It was ££ upon an ordinance of the city of London, passed in ‘ 1677, that the President and Directors of Christ’s Hospital 1 should have the rules of cars and carts; that no more than ‘ four hundred and twenty shall be allowed to work for hire, •£ -and that a certain sum shall be paid for each car-room, and
      ‘ that if any shall work one not so allowed, he shall forfeit 13s. ‘ 4d.” And in Hilary Term, 31 and 32 Charles II, we are told, that it was adjudged by the whole Court: “ That the bylaw £ was not good by reason of the fine and rent, but in all things £ else very good; and so a procedendo was denied.” Now, it is wonderful that the dust should be so industriously cleared away from this page of Sir Thomas Raymond, when, within a few years, the validity of this very ordinance has been before the Court of King’s Bench. And it was adjudged, by the whole Court, a good ordinance. Shaw v. Pope, L. B. & Ad. 465.
    With this case, falls the high authority of the municipal court of Boston.
    We have thus far argued only upon the force of the power to regulate, and omitted to notice the power to license, with which it is coupled. And in regard to the extent of a power to license, we beg leave to borrow the case of The State v. Roberts, 11 Gill & Johns. 506, from our opponents.- ££ That £ a license is a tax,” said Judge Archer, “is too palpable for £ discussion, unless there is something in the idea that it is a .£ political or police regulation.” Now, the defendant’s counsel have stoutly asserted, upon the seventh page of their argument, that our ordinance is not “ a police regulation;” to which we entirely agree. It is indisputable, therefore, that the grant of a power to license drays, in the charter, is a power to tax them by means of licenses. “ Congress,” said Judge Archer, “ possessing power to lay taxes, under that power impose taxes by means of licenses.” And the delegation of a power to tax, in the terms of a power to license, is clear, in the present instance.
    This proposition established, it is entirely unnecessary to argue the question whether this ordinance be or be not in restraint of trade. That might be well objected to the legislation of the city council, but no such objection can be interposed to the legislation of the State government,

      To.be sure, if, in the execution of this- power, the city, coun^as enacte^ an ordinance, which. improperly restrains trade, it would be void; but there is no pretence of that character set up.. The only restraint pretended, is the tax itself, and the Legislature has not regarded" that a sufficient reason for refusing the power of taxation, in this particular, to the city council. "It did not regard'the objection as forcible, in the case of markets, and, thereupon, took" away the power by an amendment of the. charter. And -it may be observed, that in the English cases cited by our opponents,- the municipal bylaws have no sanction from the Legislature at all, and altogether stand or fall upon their-own reasonableness or unreasonableness.
    When we turn from these .to American cases, we find' that bylaws depend .'for their, validity solely upon the language of the charter. Dunham v. The Trustees of- Rochester, 5 Cow. Rep.. 462, has been repeatedly evaded by the same Court which decided it, if not, in effect,- overruled. Village of Buffalo v. Webster, 10 Wend. Rep. 99. -And it'was ..presented to this Court as a leading authority,- in the case of Buckingham, and entirely disregarded.

      The City of Boston v. Schaffer, 9 Pick. Rep. 418, however, presents-authority to .strengthen, every part of our argument.' The councilmen of -Boston-were'empowered, by the' charter, to license theatrical exhibitions “on.such terms and conditions as to them- may seem' just and reasonable,” and it' was ' decided that théy could exact money for a license. A "power so e'x- ' pressed js" jüst the power to license and regulate, conferred upon the city of Cincinnati,' and nothing else.
    The defendant’s counsel, however,-criticise this case to-the effect, th?it the constitution of -Massachusetts allows a tax upon occupations, which the constitution of " Ohio does not. Now, we have to correct "this by the remark, that thé constitution of Ohio has no power of taxation at all expressed; the only word in it upon the subject is, that poll taxes shall not be levied. Our government, therefore, has no power to tax any thing, or else every power except that of poll taxation. We prefer the latter doctrine, and insist that taxes upon trades, or excises, are constitutional in Ohio. And, in fact, we have an act taxing lawyers and physicians, and this Court has affirmed its validity. Why not tax the privilege of a drayman, as well as the privilege of the counsel who represents him ? We trow, the profession of the law, at least in the estimation of our opponents, is not one “ the subject matter ” of which is a “ nuisance.” Yet they assert, that only such species of trades and professions can be taxed.

       In the case of 'The Village of Buffalo v. Webster, the former case of Dunham, v. The Trustees Of Rochester was, distinguished from it,-and declaréd to be a decision solely to the. effect, that1 when a huckster had taken .a license from the State commissioners, no municipal corporation could take away his privileges under that license.

   Birchard, J.

Our inquiry is directed to the validity of the ordinances adopted by the city council. Their powers are those expressly conferred by the act of incorporation, and such as are necessary to carry them into effect. By the 8th section of the act passed March 1, 1834, the council has “power to ‘ make and publish all such laws and ordinances, as to them ‘ shall seem necessary, to provide for the safety, preserve the f health, and improve the morals, order, comfort, and conveni- * ence of said city.”

By the 13th section, it is enacted thus: “ They shall have ‘ power to license and regulate all carts, wagons, and drays, and ‘ every description of two and four wheeled carriages which { may be kept in said city for hire.”

The objection to the ordinance rests solely on that provision which authorizes the demand of a fee, as a prerequisite to the licensing of a drayman. In general, the authority to license carries with it the power to impose the terms and conditions upon which it shall be granted. It would seem that the right to license and regulate, and to provide by ordinance for the carrying into effect the powers expressly conferred upon them, are sufficient to justify all reasonable acts incident to the business.

As usually received by mankind, particularly when applied to a municipal corporation, “ to license and regulate ” draymen, &c., implies the right of fixing the terms upon which they shall be permitted to exercise their calling, and of forbidding the exercise upon any other than upon the terms and in the manner prescribed. Such appears to have been the view of this Court in Buckingham’s case, (10 Ohio Rep. 261,) wherein it was held that, under the grant of a power to regulate the markets, the council had the right to exact a tax from the owners of the market wagon using the market. That case appears, in principle, not to be distinguishable from this.

In Boston v. Schaffer, 9 Pick. Rep. 419, suit was brought to recover one thousand dollars, exacted for granting a license to theatrical exhibitions. The Court said, £t if the one thou- £ sand dollars were to be regarded as a tax, it was not compe- £ tent for the Legislature to grant to the city of Boston the £ power to collect it.” ££ That it was not a tax; it was in the £ nature of an excise on a particular employment.” ££ The £ levying of an excise has been practiced in regard to other oc- £ cupations, and the constitutionality had never been doubted.”

The Court in that case held, that it was proper that towns, when put to expense by the exercise of particular employments, should be compensated., So in this case, the employment of drays, hacks, omnibuses, and other heavy vehicles, upon their pavements, cause no inconsiderable amount of expenditure to the city in the way of repairing the streets and alley's. It is manifest to every one, that, in a large city, vehicles of this description cause great destruction to the public ways; far greater than the usual ordinary travel of citizens otherwise employed. There is, therefore, no injustice in exacting a reasonable portion of the expenses which such special occupations cause to the community; and those who enjoy the special privilege, can refuse to bear a reasonable portion of the burden but with an ill grace. But aside from all this, it is unquestionble that the power to license and regulate drays, &c., authorized the assessment and collection of a fine from any one running such vehicle without a license. It was for this offence that the fine was assessed by the mayor.

The case made by defendant shows that he did not even ask a license. The city council had a clear right to exact all reasonable expenses; and if the ordinance provides for any thing beyond what was reasonable under the circumstances, the fact should have so appeared affirmatively. It should not be left to be made out upon the inference of the Court, as a matter of ingenious speculation, or upon the statements of counsel. It matters little by what name the sum to be paid for license is called, if it be but a reasonable charge; and if it were unreasonable, the appropriate and - reasonable sum should have been tendered and the license demanded. Instead of doing this, the whole ordinance and city authority were set at defiance.

Bryson had no right to disregard those parts of the ordinance which were strictly legal, and which a court would enforce, even if some parts of it were illegal, and such as a court might not enforce. His rule of construction is one that no court would adopt; for in construing statutes, the rule is to enforce them so far as they are constitutionally made, rejecting only those provisions which show an excess of authority by the enacting power. The same rule of construction must govern in passing upon the validity of the ordinance duly enacted by the city council. Bryson might have paid the fee required of him, under protest, and have taken his license, and then contested the question, whether it was reasonable or unreasonable, in an action to recover back the three dollars thus paid. He chose to take the construction into his own hands, and assume, in the. first instance, that the city council had exceeded its authority, and that the entire ordinance was void ; and he must abide the consequence of running his dray without any license in defiance of the city.

But it is again urged that the whole ordinances are void, because they are in restraint of trade and levy a tax. If this were the true character of the ordinances, they could not be sustained.

We, however, do not- view them .in any sil’ch light. . The gives, the drayman .or hackman special: privileges, which he enjoys. to. the prejudice of the. city, in' the. injury necessarily dope to her streets and pavements, th an amount far. greater, .than -'any benefit to be derived: from- the price of thé license; excluding the necessary burden of supervision. Nor does'the .case show that, three'dollars is too. much, to' pay'as'a reasonable fee for issuing.the .license, and the keeping the.' necessary registers. 1

Judgment reversed, and the judgment rendered which should have been rendered by-the Court of Common Pleas.

Read, J.,

dissenting. I cannot concur’ in the opinion of the Court-just pronounced.

The charter itselif fully establishes the distinction between the power to “ license and regulate,” and the power to tax. Sec. 11 provides, that the city council shall have-power to license theatres, taverns, auctions and ferries, on the Ohio river ; and, .in granting the license; the city council:may “exact, demand and c receive such sum or sums of money as they shall think fit and c expedient.” Sec. 14 provides, that to defray the current expenses of. the city, the', city council shall have power to levy and collect taxes on the real and personal property therein, as ihe same has been, or shall be appraised and returned on the grand levy of the State. Sec. IB provides simply, that the city council shall have power to license and regulate all carts, wagons and drays, and- every description of two and four wheeled carriages, which may be kept in said city fo.r-hire. No power is given- in this section; a.s is given by the eleventh section, to exact “ such sum of money as they may deem fit and expedient.” The insertion of that power in section eleven, and the omission of it in section thirteen, is of itself sufficient to give ■ a construction to .the charter adverse to that claimed by the city council. I am of opinion that this construction is conclusive.

But. there are two'other objections to the decision of the Court, viz:

First ':. That, independent of the aid derived from' a corn-; parison of the-'different sections of - the charter above quoted,- •' the power to “license and regulate” does'not embrace -a power-V ’to raise a'tax;- and, ' . . /

Second: If even the charter did propose to confer' that, power,• it would be unconstitutional and void, as an infringe-, ment of the right Of every citizen-to earn a livelihood'by honest; industry.' . . - :

I hold that the words to “ license and regulate,” in the city charter, do not confer the.power to impose a tax upon the owners of drays and other wheeled vehicles, or to raise a fund from such owners for general city purposes: . These words. barely confer a police power, and may authorize the city council. to-require such owners to register their names, and number -t-hjejf dray or other carriage, and to charge a reasonable fee for-such entry or registration, but nothing more.

The charge of three dollars upon draymen, imposed by the ordinance, is not in the nature of fees, but of revenue, to go into the treasury of the city for- general purposes.

It is a tax- upon émployment, and not upon property. ■ -The property — the dray and horse r--is assessed according :to its value, as other property, apart- from the three dollars imposed by this ordinance. But it is said that Bryson, in - this case;- is not resisting the payment of the three dollar tax, but the penalty adjudged for not complying with the- ordinance, requiring him-to take out his license as a drayman. That will not help the. case -; because, if thé city council had the-power to compel every drayman to take but a license, and to impose a penalty for violation of the ordinance requiring such license,- yet, if the city impose a condition precedent, to the grant of such license, which is illegal and void, and refuse, under the ordinance, to issue the license unless -such condition'be complied- with, the whole ordinance is void, and no penalty can be enforced -for its nonperformance. If the city ha.ve no authority :to require three dollars to be paid to obtain a license' to exercise-the 'employment of a.drayman or cartman, and refuse to' grant a licehse unless such three dollars be paid, it would be absurd to say that a penalty could be imposed for the nonpayment of the three dollars and the not procuring a license. The city refuse to grant the license unless the sum of three dollars be first paid; and, if there be no authority to require the payment of three dollars, for a license, the coupling a power which they have, to wit, to license, with a power Which they have not, to wit, to charge three dollars as a condition precedent to such license, renders the whole ordinance a nullity, and also all other ordinances, or parts of the same ordinances, which impose a penalty for its violation.

This leaves the naked question, have' the city the power, under their charter, to impose a tax upon the employment of draymen, cartmen, &c. ?

If the city have the power, it must be derived under the charter. Did the Legislature intend, by the words to “ license and regulate,” to confer upon the city council the general power to tax the employment of draymen and cartmen ? Because, if the city have the power at all, it is a general power; for the amount of the tax is not limited by the charter, but left to the discretion of the city authorities. Hence, if they may impose a tax of three dollars, they may impose a tax of three hundred. But it is said that it is a power to impose a reasonable sum. Who shall judge of the reasonableness or unreasonableness of the sum imposed ? If the power exists at all,, it exists to be exercised at the discretion of the city council. If they exercise a discretion which they possess, who shall control it ? What is the limit? — what is the rule? Even could the exercise of this discretion be brought in review before the courts of the country, what would be the mode to determine whether the amount charged was too large ? Nothing but the discretion of the Court. So, at last, the matter, in some shape, would be left to discretion. And if three dollars might be charged, so might a larger or an indefinite sum. But the truth is, if the city council have the power to tax at discretion, the exercise of that discretion, on their part, is the end of the matter, and it is not subject to review. The council, in such view, are the judges of their own discretion. It has been said, by high authority, that the power to tax implies the power to destroy'; and where the generál power to tax exists, as in the State, I know of no limit to its exercise, except the discretion and judgment of those who are to exercise it, and that it must be equal and operate upon all alike.

Did the Legislature intend, then, to confer any such power upon the city council ? We find that in all cases where the city is authorized to raise revenue, the charter imposes a limit to its exercise. The words to “ license and regulate,” do not expressly confer the power to tax, but such power, if it exist, is implied. Now the power to tax is not necessary to the exercise of the power to “ license and regulate,” and hence, upon the well settled doctrine of construing charters, should be denied. Nor can it be presumed that the Legislature have conferred a power not expressly conferred, or absolutely necessary to the exercise of such power so conferred. In certain cases the Courts of Common Pleas are authorized to grant licenses; suppose such power to license was conferred upon the Courts of Common Pleas, and the statute conferring such power fixed no sum to be paid for the grant of such license, would any man in his senses contend that the Court would have the right to fix such amount as it saw proper, to be paid as a condition precedent to the grant of such license ? The word license,” then, does not confer the power to tax, nor 'is the power to tax necessary to the exercise of the power to license. We must infer, then, that the Legislature intended merely to confer the power of police regulation, and not the power to tax or raise revenue.

But it is said, it is reasonable to impose this tax upon dray-men, cartmen, &c., because they wear out the streets. The suggestion is without force. The streets are not constructed or repaired out of the general funds of the city, but are a charge upon the owners of lots abutting upon such streets. Their property is only valuable in proportion as the streets are worn by use. Besides, the money raised by the tax imposed upon the draymen, is not applied to the repair and preservation of the streets, but is paid into the city treasury to swell the general fund. It is made a source of general revenne.

It is suggested that the sum thus charged under this ordinance is to pay the expense of registration, &c., as fees. This is not only not true, but it is not even pretended by the city.

The truth is, it is a naked and barefaced effort to shift the burdens of the city expenses from property upon labor, and to levy a tax, not in proportion to the value of property owned, or' the moneyed ability to pay, but Upon employment. In this there is not a shadow of equity, because, if the streets are never cut by drays, it is this very business that gives value to property, and increases rents. Besides, it should not be the poor drayman who should be taxed for the wear of streets, but the wealth and commerce which he is the humble instrument of transporting.

I cannot believe that the Legislature intended to confer any such power, nor can it be inferred from any known rule of construction, but is in direct opposition to the well established rules applicable to the construction of charters, and, beyond all this, in the direct face of the constitution.

Hence, the Legislature would have no authority to confer the power claimed. If there is a power to license, in the sense ■claimed, there is a power to prohibit. The Legislature has no power to prohibit a man from exercising an honest employment. The right to labor is an inherent and natural, as well as constitutional right. The law has assigned an ownership to all that can aid man to live — to all that constitutes food or clothing. The only mode by which those born naked into the world can obtain support, by acquiring that which will preserve life, is by the consent of the legal holder, or through the provisions furnished to the destitute under the poor laws. Property seldom comes by gift; the poor obtain it by labor. The right to labor is coupled with the right of life, and is a necessary principle of self-preservation. Without labor, man would perish. It is the only mode in which shelter, and raiment, and food can be obtained. Good v. Zerche, 12 Ohio Rep. 368.

The constitution has declared, that the right to acquire property is a natural, inherent and unalienable right.

Labor is the exercise of the right of acquisition. Hence, the Legislature has no right to tax or interrupt such right. To talk of granting a license to a man for the privilege of pursuing honest labor, is an insult to the age, and belongs to a period of despotic barbarism, and is fit only to be addressed to vassals and slaves. Every person, by natural right and under our constitution, has the right to .pursue honest labor without permission or license to do so from any source, except from that great and good God who gives him health and strength.

But the monstrous assumption has not only been asserted, claimed and exercised by the city to license the honest occupation of a drayman and cartman, and of the man who drives two and four wheeled vehicles, as a means of obtaining a subsistence, and to charge them a sum of money for the grant of such license, but the city is maintained in this constitutional outrage by the decision of this Court. It is not pretended that the man of wealth, who uses the streets for his pleasure, in his carriage, can be taxed for that privilege because he wears out the streets; but the- man whose necessities, for the support of himself, force him to pursue the occupations of a drayman or cartman, must buy the privilege, and pay a sum of money to be permitted to pursue such employment.

But, it is said, that in Boston excise laws have been supported. If such be the case there, no such laws exist or can exist in Ohio. There is no power in the Legislature to tax any honest. occupation, trade or industrial pursuit. If this were the case, any particular class of men could be utterly ruined by the majority imposing upon them the whole burdens of the State. Our constitutional mode of taxation is, to assess each man according to the property he owns. This is the only protection to each class. In this all find security, as a whole community will not be likely to ruin itself by taxation. But, if one class of men may be taxed, it will be the interest of the majority to impose such tax, to escape themselves. If you may tax dray-men and cartmen, you may blacksmiths and carpenters, and so on until property shall be relieved from taxation, and the whole burden fall upon industry. The lawyers were the first to fall victims to this violation of principle. Now draymen, cartmen, &c.; and who next, is to be seen. We are yet a young State, and unless these outrages upon the constitution and natural right be resisted and checked, they will grow into precedent, which, in the end, will sap the foundations of our liberties and overthrow our free institutions.

It will be endeavored to withdraw this case from a tax upon employment. It cannot be done. It is nothing else. It is a charge upon the occupations of draymen, not as fees, but as revenue.

I hold, therefore, that the ordinance is a nullity, unconstitutional and void.