text:
Flagg v. Walker

William F. Flagg, one of the appellants, was the owner, in February, 1875, of real estate in and near the city of Bloomington, Illinois, which may be generally described as follows: (1) A large manufacturing establishment, known as the Empire Machine Works, and about three acres of land upon which it stood. (2) A tract of land containing about 69 acres, known as 'the pasture,' situate in the northeastern part of the city. (3) Block No. 1, in Flagg's third addition to the city of Bloomington, containing about five acres, on which stood his residence. This property is designated in the record as the 'homestead.' (4) A large number of lots in the city, most of them vacant, but on about 10 of which were tenement houses. (5) A tract in Fayette county, Illinois, and lands in Pettis county, Missouri. He also owned a large amount of personal property, consisting mainly of the machinery and tools in the Empire Machine Works. At the date mentioned he was embarrassed in business and owed over $50,000. The larger part of this indebtedness bore interest at the rate of 10 per cent. per annum. Much of the real estate was covered by mortgages; his tenement houses were out of repair; he was largely in arrears for taxes and for interest on his indebtedness, and was in broken health. In this condition of his affairs he sent for the appellee, Samuel Walker, who resided in Massachusetts, and who was the brother of his first wife, and made a statement to him of his financial condition and embarrassments.

On February 22, 1875, after a conference between Flagg, Maggie R. Flagg, his wife, Walker, and J. H. Rowell, who, up to that time, had been the counsel of Flagg, but who, on that occasion, with the knowledge of Flagg, acted as attorney for Walker, Flagg agreed to convey all his real estate to Walker by deed, his personal property by bill of sale, and his choses in action by assignment. Although there is some conflict in the testimony on this point, it plainly appears that these transfers were to be made to enable Walker to eontrol and dispose of the property as he saw fit. Its management and disposition of the proceeds were left entirely to his judgment and discretion, both Mr. and Mrs. Flagg having full confidence in his business ability and integrity; but their understanding was that the proceeds of the property were to be applied to the payment of Flagg's debts, and Walker was to advance money temporarily for that purpose. The effect of the proposed transfer was explained to Mr. and Mrs. Flagg by Rowell. On the next day, February 23d, Flagg and wife executed to Walker deeds of conveyance, absolute on their face, of all the real estate above mentioned, and Flagg gave him a bill of sale of all his personal property, and an assignment of his choses in action. Walker at once took possession of all the property, except the 'homestead,' which by agreement was to be left in the occupancy of Mr. and Mrs. Flagg.

In the following April, Walker stated to Mrs. Flagg that he would allow her $1,500 per year for four years; that, at the end of that time, he thought he would be able to dispose of the property, and would give a bond that whatever was left, after paying all the indebtedness and the expenses of disposing of the property, he would divide equally between himself and Mr. and Mrs. Flagg. This proposition was accpted. Afterwards Walker executed and delivered to Mrs. Flagg (Mr. Flagg being absent from home) a writing, which opened with the following recital: 'This agreement, made this twelfth day of April, 1875, between Samuel alker, of the first part, and William F. Flagg, of the second part, witnesseth, that the said Flagg and wife have heretofore conveyed to the said Walker all the real and personal property of the said Flagg.' The writing then declared that in consideration of such conveyance Walker agreed, in addition to the moneys already advanced by him for Flagg, to pay him $1,500 per year for four years, and pay off all the ascertained indebtedness of Flagg which had at that time been made known to him, and that Flagg should occupy his residence for one year free from any interference by sale of the same, or otherwise. But Walker, by the same instrument, limited his liability to pay the sum of $25,000 due to Hiram Sibley, secured by trust deed to Corydon Weed, 'to the amount realized out of the lands mortgaged to secure the same.' He further agreed that, after 'a disposition' of the property conveyed to him by Flagg, if anything should remain of the proceeds after reimbursing Walker for payments for Flagg, and paying the expenses of the management and sale of the trust property, he would pay to Flagg, or his legal representatives, the one-half of such excess. The writing then stated, and was signed and witnessed, as follows:

'It being the express understanding that the conveyance     heretofore made to said Walker is absolute for all purposes;      that said property; that he will free and unobstructed      ownership purposes; that said Walker is to have the dispose      of such property at pleasure, and according to his best      judgment; and in all things be the sole judge of time and      manner of using and disposing of said property, both real and      personal; and this agreement is to include the property known      as the Empire Machine Works, as well as the other property of      said Flagg. The said Flagg, by his acceptance of this     contract, agrees to its terms, and consents to all its parts. Witness our hands the day and year first above written.

SAM'L WALKER.

'Witness: J. H. ROWELL and JOHN M. HAMILTON.' There is no doubt that the agreement of Walker embodied in this paper was accepted by Mr. and Mrs. Flagg, and was for a time acted on by both them and Walker.

Walker, upon the transfer above mentioned by Flagg of the property of the latter, paid off all, or nearly all, of the unsecured debts of Flagg, and furnished Mrs. Flagg with money to pay the taxes which were due and interest due and unpaid on the residue of Flagg's debts, and supplied Flagg with money to take a journey for the improvement of his health. The money so advanced amounted on August 27, 1875, to over $11,000.

Among the other indebtedness of Flagg there was due from him to one Soper about $5,000 in notes and on open account. Walker, acting upon the advice of Flagg, sold to Soper the tools and machinery in the Empire Machine Works, and as part consideration therefor, Soper acknowledged payment of the debt due to him from Flagg, and gave his notes for the residue. Walker also leased to Soper, by the advice and with the consent of Flagg, one-half of the Empire Machine Works buildings for $1,500 per year. Walker began repairing the tenement houses so as to put them in good condition for renting. Having appointed one Du Bois as his agent to look after the property, superintend the repairs which he had begun, and collect the rents, he returned to his home in Massachusetts. When the transfer of his property was made by Flagg to Walker in February, 1875, there was a deed of trust of the 69-acre tract, known as 'the pasture,' to Corydon Weed, trustee, to secure $25,000 due to Hiram Sibley, bearing interest at the rate of 10 per cent. per annum, payable semi-annually, and there was a mortgage on the 'homestead' for $9,000, bearing like interest. In November, 1876, the interest on the debt due to Sibley being in arrear, Weed, the trustee, by virtue of a power contained in the deed of trust, advertised 'the pasture' for sale, and on the day mentioned in the notice sold it at public sale to Hiram Sibley for $10,500. The mortgage for $9,000 on the h mestead was purchased by Walker on July 1, 1876, the amount paid, principal and interest, being $9,976.77.

After these events, on September 25, 1878, the original bill in this case was filed by Mrs. Flagg against Walker, Sibley, Weed, the trustee, and her husband, William F. Flagg. It alleged that since the conveyances made by her husband to Walker, in February, 1875, the former had by mesne conveyances transferred and conveyed to her 'all his interest, right, and title in and to said real estate above mentioned,' referring to the real estate conveyed by Flagg to Walker, 'and all personal property appertaining thereto, or that went into the hands of Samuel Walker.' The bill set out the transfer to Walker by Flagg and his wife of the real and personal estate of Flagg, and in reference thereto made the following averments: 'That the said deeds were intended by said William F. Flagg and oratrix to secure the said Samuel Walker for his advances to be made by him, as above set forth, and as a further security for a reasonable compensation to be paid to him for the rendition of such services, and that he might out of the sale of a portion of said property be reimbursed for such advances and compensation. It was also agreed * * * that when the purpose for which such conveyance had been made was fully completed, the said Samuel Walker was to reconvey to William F. Flagg, or to oratrix, as they might elect, at least one-half of the property remaining unsold and undisposed of, and should keep for himself and for his compensation a portion of said lands, not exceeding one-half of the residue, after payment of all debts.' The bill also averred 'that shortly after receiving the said deeds of conveyance the said Samuel Walker executed a statement in writing, in which he set forth and stated to your oratrix the use and purpose, both set forth, upon which the said Samuel Walker had received the said property in trust.' The bill charged 'that said deeds of conveyance made to Samuel Walker, while, in fact, warranty deeds,' were, 'in equity, no more or less than mortgages, made to secure said Samuel Walker for his advances to be made by him, and said advances were to be sufficient in amount to pay all indebtedness of said William F. Flagg to other persons than said Samuel Walker; and that said Samuel Walker was to reimburse himself out of the sales to be made by him.' The bill alleged that Walker neglected and refused to furnish money to pay the interest on the debt to Sibley, secured by the trust deed to Weed on 'the pasture,' which was well worth $80,000, and that had it not been for the conveyance thereof by Flagg to Walker, Flagg would have been able to raise money to pay the interest on the debt as it accrued, or could have made a new loan and paid off Sibley's claim in full; but by reason of the conveyance to Walker he was unable to do so; and that Walker knowingly and willfully permitted Sibley, by Weed, his trustee, to sell the premises at a forced sale for about $10,000, when its real value, at the time of the sale, was $80,000.

The bill further charged as follows: 'That Walker, as to the real estate conveyed to him by Flagg, is to be taken and deemed as mortgagee thereof; * * * and that, by reason of the execution of said instrument in writing by Walker, as the purpose for which he received said conveyance,' said conveyance 'is to be taken and deemed in equity as a trust deed on said lands;' and that Walker should 'be charged with the value of all the real estate which, in fault of his said trust, he has permitted to be sold, and thereby alienated from said William F. Flagg or the plaintiff, and is likewise to be charged with a reasonable rental value of all said premises.'

The prayer of the bill was as follows: That Walker might be charged with all the waste committed or permitted by him on the property conveyed to him by Flagg, and with 'the value of property allowed by him to be alienated;' the amount of taxes and interest paid by Flagg or the pl intiff, with interest thereon; and that he might be credited with what he had paid out for Flagg or the plaintiff, with interest, 'and that the difference between the said 'items' should be charged to said Samuel Walker by reason of his failure to act as trustee as aforesaid; that said mortgage by him now held upon the homestead of your oratrix should be canceled; that if there be any outstanding claims against the said William F. Flagg, which were liens' (or) 'incumbrances at the time of the conveyance to him, that they should be satisfied and paid out of the decree so awarded against the said Samuel Walker, and the property above mentioned now remaining in the name of said Samuel Walker be thereby free, clear, and released from all incumbrances and liens, and that said Samuel Walker should be decreed by this court to reconvey the residue, or such portion thereof as the court shall decree your oratrix is entitled to, by proper deeds of conveyance.'

Walker filed his answer alleging that he came to Illinois at the request of Flagg and his wife, and upon examination of Flagg's affairs found that he was deeply in debt; that his real estate was heavily incumbered, and that he owed a large floating debt and was out of founds, and that all of his property was likely to be taken from him if it should be forced to sale; but that, after a full in vestigation, he became satisfied that Flagg's property, with good management, was worth more than his indebtedness, and that he proposed that Flagg should convey all his property to him, and let him manage his business for him; that Walker agreed that he would take the property without any future right of control, management, or ownership remaining in Flagg, and would pay off the debts of Flagg specified in a list furnished to him by Flagg. This list did not include the debt due to Sibley, and he refused to assume that debt and would not agree to pay it, but promised that he would use the rents and profits of the land towards keeping down the interest on the Sibley debt and the taxes, and if he could sell the property so as to pay the debt, he would do so, or he would convey the same to any parties to whom Flagg might sell. He denied waste or mismanagement, and averred that the conveyance to him was absolute and not a mortgage. He alleged that he had paid out of his own means on the indebtedness of Flagg $10,000 more than he had realized out of the personal property transferred to him by Flagg, in addition to the money paid for the trust deed or mortgage on the 'homestead' property. He further alleged that the whole property now held by him would not bring the money paid out by him and the accumulated interest, and that the amount was growing larger because he was deprived of the rents and profits of the property.

On June 28, 1878, Walker filed a cross-bill, to which he made William F. Flagg, Maggie R. Flagg, and Hiram Sibley defendants, and in which he set up substantially the same facts as in his answer, and prayed for a decree that his title to the premises be confirmed, and that the claim of the defendants to any title thereto be declared null and void; and that if, upon the final hearing, his title should be held to be a mortgage, an account might be taken of the amount of money paid out by him in consideration of said conveyances, and that the amount of the same, together with the interest, should be declared a lien upon said real and personal property, and that in default of payment thereof a strict foreclosure might be granted. To this cross-bill, by leave of court, the original bill of Maggie R. Flagg was made to stand as an answer.

A large mass of evidence having been taken, the court, on August 5, 1879, made an interlocutory decree, in which it was found that Walker held said real and personal property, conveyed and transferred to him by Flagg in trust for the purposes expressed in the declaration of trust made by Walker on April 12, 1875, and for the purpose of security to himself for all moneys pa d out by him for Flagg, or for or on behalf of the property of Flagg; that Walker had expended large sums of money in paying off the indebtedness of Flagg, and in taking care of and repairing the property, and in necessary expenses in the execution of the trust, in paying off and discharging liens and incumbrances upon the property, for all of which he was entitled to a first lien upon said real estate and upon all the personal property conveyed to him; that Walker assumed no portion of the debt due and owing by Flagg to Sibley, beyond what the land covered by the mortgage to secure it might be sold for; and that Walker was not liable for any damages growing out of said indebtedness on said mortgage. The decree declared that the acts of Walker were approved, and referred the case to a master, to state an account between Walker and William F. Flagg and Maggie R. Flagg; and directed that the master, in stating the account, should not charge anyting for any failure on the part of Walker to sell any of the real estate, or on account of any depreciation of the value thereof. On the fifth of September, 1879, the master filed his report, in which he credited Walker with the sum of $28,996.63, and charged him with the sum of $3,789.50, leaving a balance due to Walker of $25,207.13. On the fourth of October, 1880, the court entered a final decree in the cause, in which it was found that there was due to Walker the sum of $25,207.13, and that said sum was a first lien upon the property conveyed by Flagg to Walker and remaining unsold; that said property was scant security for said indebtedness; that said William F. Flagg was insolvent; and that a large part of said property was unoccupied and deteriorating in value. It was therefore decreed that Flagg should pay to Walker the sum of $25,207.13, with 6 per cent. interest, and also the costs of suit, on or before the first day of April, 1881; that such payment being made, Walker should reconvey all said real estate and personal property by quitclaim deed, and cancel and discharge the indebtness of record; and that in default of such payment on or before the first of April, 1881, the title of Walker to all of the real estate and personal property conveyed to him by Flagg, and not already disposed of, should become absolute, and the title of William F. Flagg and Maggie R. Flagg be forever barred and foreclosed. From this decree Maggie R. Flagg and William F. Flagg have brought this appeal.

Leonard Sweet and P. S. Grosscup, for appellants.

[Argument of Counsel from pages 668-670 intentionally omitted]

A. E. Stevenson and J. H. Rowell, for appellee.

Mr. Justice Woods delivered the opinion of the court. He recited the facts as above stated, and continued:

title: Flagg v. Walker


text: Talk:Flagg v. Walker

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Flagg v. Walker


text:
Flagg v. Walker/Opinion of the Court

The appellants make no objection to that part of the decree which finds the balance due to Walker. It must, therefore, be accepted as a fact in the case, that the sum so due, over and above all moneys received by Walker from the property conveyed to him by Flagg, was, on October 4, 1880, $25,207.13. Non upon this appeal is there any charge of waste or other mismanagement by Walker of Flagg's property, except in his failure to furnish money to pay the accruing interest on the Sibley debt, and in allowing the property mortgaged to secure it, to be sold at a sacrifice, as is alleged, under the trust deed. It is, therefore, virtually conceded by the appellants that, in all other respects, Walker's administration of the trust was honest and faithful.

But the appellants complain of the decree upon the following grounds. First. Because it does not hold Walker liable for his breach of trust in not providing for the payment of the interest on the Sibley debt, secured by trust deed upon the 'pasture,' and in allowing it to be brought to sale without competition or any personal attention from himself, and to be sold for $10,500, when it ought to have brought from $60,000 to $100,000. Second. Because it orders a strict foreclosure, as the appellants call it, of the premises to Walker. Third. Because it consolidates the advances made and expenses incurred by Walker in the management of the estate with the amount of the mortgage or trust deed upon the homestead, and decrees a strict foreclosure for the w ole sum upon all the property.

We do not think either of these grounds for reversal well founded. The evidence makes it perfectly clear that the terms upon which Walker took the conveyance, as set out in the writing executed by him on April 12, 1875, were assented to by Flagg and his wife. Neither of them ever objected to the writing, or after its execution expressed the slightest dissent from its provisions. On the contrary, although both Mr. and Mrs. Flagg were examined as withesses, neither of them says that the writing was not satisfactory to them, or that they did not accept it as showing the terms upon which the transfer of Flagg's property was made to Walker. In fact, the execution of this paper is referred to in the original bill, and made, in part, the basis of the relief therein prayed for by Mrs. Flagg; and her counsel, in their brief, quote it at length, and insist that it shows the trust character in which Walker accepted the conveyance, and the consideration thereof. Of course, Walker is bound by his written admission of the terms upon which the property was transferred to him. By this writing Walker agreed to pay off all the ascertained indebtedness of Flagg, except the Sibley debt; and as to that, he was only to pay so much of it as could be made out of a sale of the lands mortgaged to secure it. Walker did in fact pay off all the other indebtedness of Flagg. The complaint made against him is that he did not furnish money to pay the Sibley debt, or sufficient to keep down the interest, but made default in the payment of interest, and thus allowed the property to be sacrificed at a forced sale.

It must be conceded that in accepting the conveyance of the property Walker became a trustee to manage the property and pay off the debts of Flagg according to the terms of the trust, and should be held liable for a faithful discharge of his trust. But this liability was imposed upon him on the condition, and with the understanding, that he was to be allowed the undisturbed possession and management of the property transferred to him, and reception of the rents and profits, which, the testimony shows, exceeded $3,000 per annum. It was to give him this undisturbed possession and control that the transfer of the property was made to him.

The evidence shows that Walker, after the conveyance to him, did furnish money sufficient to pay off the interest for six months due on the Sibley debt. It also shows that Flagg, having been absent from home for five or six weeks in the spring of 1875, returned with greatly improved health, in the latter part of April. He at once claimed as his own all the property which he had conveyed or transferred to Walker. He stopped the repairs which Walker had begun on the tenement houses, drove off the workmen, refused to recognize Du Bois, the agent appointed by Walker to take care of the property and collect the rents, and before the first of August he had resumed possession of all the property he had conveyed and delivered to Walker, both real and personal, and from that time on until the filing of the original bill, on September 25, 1878, had collected and enjoyed all the rents and profits of the real estate except of such part as Flagg and wife had undertaken to sell and dispose of, or such as had been sold under mortgage or other incumbrances. In short, within less than five months after Flagg had transferred his property to Walker and put him in possession thereof, and after Walker had paid a large sum upon Flagg's indebtedness, the latter repudiated, as far as he could, the transfer of the property, and resumed possession of it as if no conveyance thereof had been made. Since that time he had, with Walker's consent, sold and disposed of a large part of the property conveyed to Walker and appropriated the proceeds, and, until the date of the final decree, he had enjoyed and managed the residue without interference from Walker or his agents. By the tacit consent of Walker the management of the property was re ommitted to Flagg; he was allowed the undisturbed control of it; he was permitted to contract for the sale of a large part of the trust property, and Walker made deeds therefor whenever requested by Flagg, until only sufficient was left to afford what the circuit court found to be but a scant security for Walker's advances. It was after Flagg had himself in this manner interfered with the execution of his trust by Walker, and, in effect, had released Walker from all duty as trustee, that he called upon the latter to provide money to pay another installment of interest on the Sibley debt. This Walker declined to do; but, at Flagg's request, he executed a conveyance of a lot, part of the property transferred to him, and out of the proceeds Flagg paid one installment of the interest due on the Sibley debt.

It was in November, 1876, about 16 months after Flagg had resumed possession of his property and undertaken its management, and was in receipt of its rents and profits, that the 'pasture' was sold by Weed, the trustee, at public sale, for default in the payment of interest due on the Sibley debt. It is clear that under the declaration of trust of April 12, 1875, Walker was not bound to advance, out of his own means, money to pay the principal or interest on the Sibley debt. He was only bound to apply the rents and profits to the satisfaction of interest. Upon what ground, therefore, any just complaint can be made against him for not keeping down the interest, or paying the principal of the debt, after Flagg had resumed the possession and management of his property, and was receiving its rents and profits, it is not easy to see. But if Walker had agreed to advance money out of his own means to keep down the interest, the conduct of Flagg in disregarding his conveyance to Walker, and in resuming possession of the property, would have released Walker from his engagement. We do not, therefore, find it necessary to examine the question whether the property was sold at a sacrifice or not. There is great conflict in the testimony on this subject; but as Walker, under the circumstances which we have stated, was under no obligation to carry out an agreement which Flagg had repudiated and made impossible of performance, that question is immaterial. Walker was not liable for any loss, if there was a loss, resulting from the sale of the property covered by the trust deed to secure the Sibley debt. The proceeds of the property by which the debt was secured have been applied to its payment, and that is all that Walker agreed, in any event, should be done.

The next ground upon which the decree of the circuit court is complained of, is that the court decreed 'a strict foreclosure of the property to Walker, thus cutting off the statutory right of redemption, and also cutting off the benefits of a public sale.' The contention of appellants' counsel is that if Walker is to be considered as a mortgagee, and entitled to the rights of a mortgagee, the court should have decreed a sale, and not a strict foreclosure. The provisions of the statute law of Illinois, on which this assignment of error is based, are as follows: Rev. St. c. 77, § 16: 'When any real estate is sold by virtue of an execution, judgment, or decree of foreclosure of mortgage, or enforcement of mechanic's lien, or vendor's lien, or for the payment of money, it shall be the duty of the sheriff, master in chancery, or other officer, instead of executing a deed for the premises sold, to give the purchaser a certificate describing the premises purchased by him, showing the amount paid therefor, or, if purchased by the person in whose favor the execution or decree is, the amount of his bid, the time when the purchaser will be entitled to a deed, unless the premises shall be redeemed, as provided in this act.' Section 18 provides, in substance, that any defendant, his heirs, administrators, or assigns, or any person interested in the premises under the defendant, may redeem the property so sold by paying to he purchaser, or the officer who sold the same, for the benefit of the purchaser, the sum of money for which the premises were bid off, with interest from the time of sale; and upon such payment the sale and certificate shall be void. It will be observed that it is only in the case where the court orders a sale that there is any right of redemption. So that this assignment of error is resolved into the contention that it was the duty of the court to order a sale, so as to give the plaintiff a chance to redeem.

But it has been repeatedly held by the supreme court of Illinois that the courts of that state may under certain circumstances decree a strict foreclosure. Johnson v. Dunnell, 15 Ill. 97; Wilson v. Geisler, 19 Ill. 49; Weiner v. Heintz, 17 Ill. 259; Stephens v. Bichnell, 27 Ill. 444; Farrell v. Parlier, 50 Ill. 274; Boyer v. Boyer, 89 Ill. 447. A mortgagor, or other creditor, has not, therefore, in every case the right to insist that the court shall order a sale. It is settled by the decisions of that court that when the property is of less value than the debt for which it is mortgaged, and the mortgagor is insolvent, and the mortgagee is willing to take the property in discharge of the debt, the court is justified in decreeing a strict foreclosure, unless there are other incumbrancers, purchasers of the equity of redemption, or creditors, to object. The evidence satisfies us that a public sale for cash of the trust property now remaining undisposed of would fall short of paying the advances of Walker, which now amount to near $30,000, and that Flagg is insolvent. He does not appear to be the owner of any assets, and Sibley has an unsatisfied judgment against him for $18,685.22, with interest from February 8, 1875. Flagg is under no personal liability to Walker for the advances made by the latter, and if Walker gets title to the property in question under the decree of the circuit court, he is entitled to no other relief against Flagg. The property satisfies his demand. There are no other incumbrancers, and no purchasers of the equity of redemption, and Sibley is the only creditor, and he, although a party to the decree of the circuit court, has not appealed. This is, therefore, a case where, if the suit was for the foreclosure of a mortgage, the court might, according to the local law, decree a strict foreclosure.

But there is no mortgage in this case, and this suit is not brought for the foreclosure of a mortgage, or other lien, or to enforce the payment of money by sale. The original bill filed by Mrs. Flagg was for the settlement of a trust and the redemption of real estate in the hands of the trustee from liens alleged to be in the nature of a mortgage for money advanced by him for the purpose of the trust. The claim of the bill was that although the defendant Walker had advanced money to pay the debt of Flagg, which was a lien upon the property held by him in trust, yet he had neglected his trust and wasted the trust estate, and that the money lost to the trust property by his neglect and waste should be charged against the moneys advanced by him, and that upon a just and fair settlement there would be nothing due the trustee for his advances, and the prayer was for a reconveyance by the trustee.

The cross-bill of Walker averred that the conveyance by Flagg to him was absolute, and prayed that it might be confirmed, and his right to the peaceable and quiet enjoyment established; but if the court should be of opinion that his title to the property was to be considered a mortgage, that the amount due him from Flagg might be declared a lien thereon, and if the sum so due was not paid within a day to be fixed by the court, the conveyance already made to him of the property should be declared absolute.

In view of the declaration of trust made by Walker on April 12, 1875, it is clear that the transaction between Flagg and Walker was not a mortgage. A mortgage is a deed whereby one grants to another lands, upon condition that if the mortgagor shall pay a certain sum of money, or do some other act therein specified, at a day certain, the grant shall be void. Conard v. ''Atlantic Ins. Co.'' 1 Pet. 386; Montgomery v. Bruere, 4 N. J. Law, 268; Erskine v. Townsend, 2 Mass. 495; Lund v. Lund, 1 N. H. 41. In this case there was a conveyance by Flagg to Walker of certain property, to be administered and sold by the latter, and in consideration of the conveyance Walker agreed to pay certain specified debts owing by Flagg, and if, after the payment of the debts, there was any residue resulting from the sale of the property, to pay Flagg one-half of such residue. The conveyance was made to secure neither the payment of any money nor the performance of any act by Flagg. All the money to be paid was to be paid by Walker; all the acts to be done were to be done by him. There was no agreement by Flagg to pay Walker any money in any event. Flagg never owed Walker any money by reason of the matters shown by the record in this case, and never came under any obligation to him. Walker was to reimburse himself out of the property conveyed to him by Flagg, and the parties never contemplated a reconveyance by Walker to Flagg of the property in question. We are not required to apply to such a transaction the rules prescribed by the statute of Illinois for the foreclosure of a mortgage. It is the case of a trust. The bill was filed for settlement of the trust, and the question we are to decide is whether, under the circumstances shown by the testimony, the appellants are entitled, as matter of equity and right, to have a sale of the premises.

The only interest which remained to Flagg in the property conveyed by him to Walker was his right to receive one-half the net proceeds of its sale, after repayment to Walker of all the moneys advanced by him for Flagg, and the expenses incurred in the administration of the trust. But the decree of the circuit court has, in effect, given the appellants the entire net proceeds of the property after the payment of Walker's advances; for, on the payment by Flagg within six months of the sum found due to Walker, it directs a reconveyance of all the trust property remaining unsold. Upon the averments of their bill they have no right to demand a sale. The property was conveyed to Walker to dispose of 'at pleasure, and according to his best judgment,' and he was 'in all things to be the sole judge of the time and manner of using and disposing of said property.' The right thus to dispose of it he had bought and paid for, and he could not be deprived of it unless he was wrongfully using it to the damage of the Flaggs. There is no charge in the bill that he has abused that discretion, or that the neglect to sell at the present time would result in loss to the appellants.

The prayer of the original bill was not for a sale, but for a reconveyance by Walker to the appellants of the trust property still remaining in his name. The decree of the circuit court is in accordance with their prayer, first, however, requiring a repayment to Walker of his advances. It does not, therefore, lie in the mouths of the appellants to object that the decree does not order a sale which they did not pray for, and which they have not shown themselves to be entitled to demand as a matter of right.

The last objection to the decree of the circuit court is that it included the amount paid by Walker for the mortgage or trust deed upon the 'homestead,' with the advances made by him and the expenses incurred in the management of the trust, and decreed a strict foreclosure for the whole sum upon all the property. The contention of appellants is, that for the sum paid by Walker for the purchase of this mortgage he should be limited for his security to the property covered by the mortgage. But there is no warrant for this claim in the declaration of trust of April 12, 1875. The mortgage on the homestead was one of the debts which Walker had expressly agreed to pay, and it was the understanding that he was to be reimbursed for his advances, not merely out of the mortgaged premises, but out of the proceeds of all the property conveyed to him by Flagg, so far as they might be necessary. For the purpose of securing Walker, the whole property was regarded and treated by the parties as an entirety. The fact that Walker's payment of the mortgage debt took the form of a purchase of the mortgage lien does not deprive him of that security.

We find no error in the proceedings and decree of the circuit court. But as the time limited by the decree, to-wit, April 1, 1881, for the payment to Walker by W. F. Flagg, or some one of the defendants to the cross-bill, of the said sum of $25,207.18, with interest, has passed, we think the time for such payment should be extended. The appellants, while they were litigating their rights with Walker in this court, having given an appeal bond, which superseded the decree of the circuit court, were not required to make the payment.

We therefore direct that the decree of the circuit court be so modified as to extend the time for the payment of the sum coming to Walker for the period of six months from the filing of the mandate of this court in the circuit court; and, as so modified, the decree of the circuit is affirmed.

title: Flagg v. Walker/Opinion of the Court


text: Talk:Flagg v. Walker/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Bower, Walter


text:
Blake v. City and County of San Francisco

''Geo. W. Dyer'', for appellant.

''Wm. Craig'', for appellees.

Woods, J.


text: Talk:Blake v. City and County of San Francisco


text:
Blake v. City and County of San Francisco/Opinion of the Court

This is an appeal from a decree dismissing a bill filed by the appellant to restrain the infringement by the appellees of reissued letters patent granted to the appellant as the assignee of original letters patent issued to Thomas H. Bailey. The original patent was dated February 9, 1864, and the reissue, September 18, 1877. They were for 'a new and improved valve for water cylinders of steam fire-engines and other pump cylinders.' The specification, which was substantially the same in both patents, stated that, previous to the invention therein described, the only valve used to relieve the pressure upon fire-hose to prevent them from bursting was one operated by hand. To obviate the defects of such a valve the inventor applied, at some point between the engine or pump and the hose nozzle, a valve which opened automatically by the pressure in the hose or the pump cylinder, so as to discharge an additional stream, and thereby relieve the pressure. The specification then minutely described an automatic relief or safety-valve, and added: 'To enable the valve to be screwed down to bring all practical pressure upon the pump and hose in the trial of an engine, there is a hole, d', drilled through the upper part of the screw-cap, D, and valve-stem, d. When the valve is down in its seat, for the reception of a pin, by the insertion of which the valve-stem and cap can be connected rigidly, so that by slightly turning the cap the valve may be screwed down close to its seat.

The reissued patent contains two claims, the second of which only is found in the original. They were as follows: (1) The combination, with a pump cylinder and hose of a fire-engine, of an automatic relief-valve, arranged relatively thereto, substantially as specified. (2) The combination of the value, C, stem, d', spring, E, adjustable cap, D, and pin-hole, d, whereby the valve may be either held upon its seat with a variable yielding pressure, or may be elevated therefrom, or held immovably thereon, as an ordinary screw-plug.

The answer of the defendants denied infringement, denied that Bailey was the original inventor of the devices described in his patent, and averred that his alleged invention had been in notorious public use many years before the application of a patent therefor by Bailey. The appellant does not contend that the appellees infringe the first claim of the reissued patent. He bases his demand for relief on the alleged infringement of the second claim only. We think that the proper construction of this claim is that it covers an automatic valve in combination with a contrivance consisting of a pin-hole and pin, by which the valve may be raised from its seat, so as to leave the valve-hole permanently open, or by which the valve may be rigidly closed upon its seat, making a closed or plug valve.

The evidence shows that Bailey was not the first to conceive the idea of a device for opening or closing rigidly an automatic valve. The same thing had been done by means of wedges and screws, and other devices. He cannot, therefore, cover by his patent all the devices for producing this result, no matter what their form or mode of operation. The claim must be confined to the specific device described in the specification and claim, namely, a pinhole and pin. If this construction of the claim be adopted, it is clear that no infringement is shown, for the appellees do not use a pin-hole and pin for holding their valve open or closed, but a screw, sleeve, or cap; and therefore one of the elements of the combination, covered by the second claim of appellant's patent, is wanting in the device used by the appellees. Prouty v. Ruggles, 16 Pet. 336. See, also, Rowell v. Lindsay, ante, 507, and cases there cited.

But, if it be contended that the device covered by the second claim of the appellant's patent is infringed, simply by the use of an automatic relief-valve, which can be converted at will into an open or closed valve, the evidence in the record is abundant to show that long before the application of Bailey for the original patent, automatic safety-valves, which could be thus rigidly opened or closed, were in common use for the purpose of relieving pipes and cylinders from the pressure of steam or water, and that the valve of the appellant did not materially differ from those which were in common use. This was virtually conceded by the appellant, when, being under examination as a witness in his own behalf, he was asked by counsel for the appellees in what respect the valve described in his patent differed from any other automatic relief-valve, he replied: 'It is about the same as others.' 'It is similar to other automatic steam-pump valves.'

Upon this state of facts it was plain that the mere employment by the defendants of the old and well-known automatic safety-valve afforded no ground upon which to base the relief prayed for in the appellant's bill. Appellant's counsel, therefore, disclaimed any right to the exclusive use of an automatic safety-valve, and said: 'We do not claim the valve any further than in this combination with a steam fire-engine.' If it be conceded, therefore, that the second claim of appellant's patent covered the use of an automatic relief-valve applied to a steam fire-engine and hose, the question is presented whether the appellant's patent thus construed is valid.

'It is settled,' says Mr. Justice GRAY, speaking for the court, 'by many decisions of this court, * *  * that the application of an old process or machine to a similar or analogous subject, with no change in the manner of application, and no result substantially distinct in its nature, will not sustain a patent, even if the new form of result has not before been contemplated.' Pennsylvania R. Co. v. Locomotive Engine S. T. Co. 110 U.S. 490, S.C.. 4 SUP. CT. REP. 220, and cases there cited. It follows from this principle that, where the public has acquired in any way the right to use a machine or device for a particular purpose, it has the right to use it for all the like purposes to which it can be applied, and no one can take out a patent to cover the application of the device to a similar purpose.

If there is any qualification of this rule, it is that if a new and different result is obtained by a new application of an invention, such new application may be patented as an improvement on the original invention; but if the result claimed as new is the same in character as the original result, it will not be deemed a new result for this purpose. For instance, an automatic relief-valve, used to relieve the pressure of steam, of steam, produces no new result in character when used to relieve the pressure of water, unless some further effect besides the mere relief of pressure is obtained. This qualification, therefore, will not affect the present case, because no new result in character is accomplished by the supposed invention of the plaintiff. Besides, it appears from the evidence that before Bailey's patent was applied for, relief-valves were in common use, both on land and at sea. They were commonly used on the steam feed-pumps of steam-ships. These pumps were usually fitted with nozzles for the attachment of hose, so that the feed-pump could, in case of need, be used as a steam fire-engine. It is therefore plain that in this state of the art Bailey could not obtain a valid patent for applyin a similar valve to a portable steam fire-engine. He could not do this for two reasons: First, because the public had the right to use the valve for all similar purposes for which it was adapted; and, second, because the application of a valve, which had been used on a stationary steam fire-engine on ships, to a portable steam fire-engine on land, did not require any ingenuity, or involve invention. It is no answer to this to assert that the application of a relief-valve to a portable steam fire-engine is the invention of a new combination. There was no invention. The combination was already in public use on steam-ships. The application of the valve to a similar use on land was not a new combination or a new invention.

We are of opinion, therefore, that, construing his patent as the appellant has been compelled by the testimony to do, Bailey invented nothing but the pin-hole and pin mentioned in his specification, and this is not used by the appellees.

The decree of the circuit court is affirmed.


text: Talk:Blake v. City and County of San Francisco/Opinion of the Court


text:
Fourth National Bank of St. Louis v. Stout

This was a suit in equity, begun by Stout, Mills & Co., judgment creditors of the Yeager Milling Company, to recover from the Fourth National Bank their pro rata share of certain property of the debtor company which was in the hands of the bank. The bank claimed a superior right to the property, and denied its liability to account to creditors therefor. The only questions in the case, as made by the bill, were (1) whether the bank held the property, or the proceeds thereof, in trust for the creditors of the company; and, if so, (2) what was the pro rata share of the complainants? No decree was asked for any more than this share. The bank in its answer did not seek affirmative relief. Upon the hearing, the court found that the bank did hold certain property in trust for the creditors, and sent the case to a master to ascertain the share of the complainants therein. In the interlocutory decree to this effect leave was given other creditors to intervene pro interesse suo for the recovery of their respective pro rata shares of the trust property. Upon the coming in of the master's report a final decree was entered, 'that the said complainants and the several intervenors, severally, have and recover of defendant, the Fourth National Bank of St. Louis, the several sums hereinafter stated, being the several pro rata shares, as ascertained by the said report of the special master pro hac vice, in the assets of the Yeager Milling Company, heretofore found by the interlocutory decree herein of October 30, 1882, to have been wrongfully appropriated by said Fourth National Bank, as follows:

Stout, Mills & Temple,............ $3,591 32

Kidder, Peabody & Co.,............. 2,658 72

R. Hunter, Craig & Co.............. 1,072 26

Anton Kufike,........................ 749 66

Merchant's Bank of Canada,........... 391 23

The First National Bank of Chicago,.. 527 41

$8,990 60

And to have each his several execution therefor, with his costs.' The bill was also dismissed as to all the defendants except the bank, and as to the bank except to the extent of the decree, in favor of the several creditors as above, such dismissal being 'without prejudice to any claims or rights and claims of any defendant, as against each other, connected with the matters set forth in the master's report.' From this decree the bank appealed, and the appellees, the several creditors in whose favor the decree was rendered, now move to dismiss, because the value of the matter in dispute between the bank and the several appellees does not exceed $5,000.

Mr. B. D. Lee for appllent. - The complainant admits an indebtedness

from the company to the bank of $120,000, and the proof shows one still greater. The accounting on which the decree is based undertakes to settle this question forever, and the decree from which the appeal is taken confirms that report and settles and adjusts the right of all the parties.

The cases cases by respondents in their brief, in support of their motion to dismiss, are not applicable to this case. In the case of Schwed v. Smith, 106 U.S. 188, complainants claimed tha the whole fund arising from the sale of the attached property had been obtained, by the defendent, by fraud, and that the defendant had no legal or equitable right to hold the same as against the complainants; whereas in the case at bar, the bill of complaint proceeds upon the theory that the fund appropriated by appellant, was one in which all the creditors, including the appellant, had a common right, and renders an issue which made it absolutely neccessay that the affirmative rights of appellant, as against the milling company and the other defendants, should be determined. And appellant cannot be denied its right of appeal because the court below saw fit, after the adjustment of these rights,to dismiss the suit as to all of the other defendants. The appellant's rights having been raised by the bill, cannot be taken away from it by a dismissal as to the other defendants in a case where the decree in its entirety reaches beyond the mere adjustment of complainants' demand.

 F. N. Judson and John H. Overall, for the motion.

Mr. Chief Justice Waite delivered the opinion of the court. He recited the facts in the foregoing language, and continued:

The motion is granted on the authority of Seaver v. Bigelows, 5 Wall. 208, and Schwed v. Smith, 106 U.S. 188; S.C.. 1 SUP. T. REP. 221. The appellees have separate and distinct decrees in their favor, depending on separate and distinct claims. If none of the other creditors had intervened, and the decree had been rendered in favor of Stout, Mills & Temple alone, upon their bill as filed, in which they sought to recover only their pro rata share of the assets of their debtor in the hands of the bank, it certainly could not be claimed that an appeal would lie if their recovery was for less than $5,000. The suit was instituted, not for the whole property in the hands of the bank, but only for the complainants' pro rata share. After the suit was begun the intervening creditors were allowed to come in, each for his separate share of the assets. On their intervention the case stood precisely as it would if each creditor had brought a separate suit for his separate share of the fund. The decree in favor of the several creditors has precisely the same effect, for the purposes of an appeal, that it would have if rendered in such separate suits.

Since the bill was dismissed as to the other parts of the case without prejudice to the rights of the defendants among themselves, the report of the master is binding on the parties only so far as it fixes the amounts due the several appellees. In its effect the decree binds no one except the parties to the appeal in respect to the right of the several appellees to their recovery. Dismissed.


text: Talk:Fourth National Bank of St. Louis v. Stout


text:
Page:Travels with a Donkey In The Cevennes.djvu/111

Rh ways, had decided to remain as a novice. Already the new life was beginning to modify his appearance; already he had acquired somewhat of the quiet and smiling air of the brethren; and he was as yet neither an officer nor a Trappist, but partook of the character of each. And certainly here was a man in an interesting nick of life. Out of the noise of cannon and trumpets, he was in the act of passing into this still country bordering on the grave, where men sleep nightly in their grave-clothes, and, like phantoms, communicate by signs. At supper we talked politics. I make it my business, when I am in France, to preach political good-will and moderation, and to dwell on the example of Poland, much as some alarmists in England dwell on the example of Carthage. The priest and the Commandant assured me of their sympathy with all I said, and made a heavy sighing over the bitterness of contemporary feeling. "Why, you cannot say anything to a man with which he does not absolutely agree," said I, "but he flies up at you in a temper."


text: Fourth National Bank of St. Louis v. Stout/Opinion of the Court


text: Talk:Fourth National Bank of St. Louis v. Stout/Opinion of the Court


text:
Boyer v. Boyer

''Chas. W. Wells'', for plaintiff in error.

W. J. Whitehouse, for defendant in error.

HARLAN, J.

title: Boyer v. Boyer


text: Talk:Boyer v. Boyer

title: Talk:Boyer v. Boyer


text:
Boyer v. Boyer/Opinion of the Court

The plaintiff in error brought this suit in a state court of Pennsylvania for an injunction restraining the commissioners of Schuylkill county from levying a county tax for the year 1883 upon certain shares in the Pennsylvania National Bank-an association organized under the national banking act. The suit proceeds upon the ground that such levy violates the act of congress prescribing conditions upon state taxation of national bank shares, in this: that 'other moneyed capital in the hands of individual citizens' of that county is exempted, by the laws of Pennsylvania, from such taxation. A demurrer to the bill was sustained, and the suit was dismissed. Upon appeal to the supreme court of Pennsylvania that judgment was affirmed, on the ground that the laws of the state, under which the defendants sought to justify the taxation, were not repugnant to the act of congress.

State taxation of national bank shares was permitted by the forty-first section of the act of congress of June 3, 1864, subject to the restriction that it should not be at a greater rate than that imposed upon other moneyed capital in the hands of individual citizens of the same state. 13 St. c. 106, § 41. But that section contained a proviso to the effect 'that the tax so imposed, under the laws of any state, upon shares of any of the associations authorized by this act, shall not exceed the rate imposed upon the shares in any of the banks organized under the authority of the state where such association is located.' The case of Lionberger v. Rouse, 9 Wall. 469, arose under that act. The question there was whether shares in a national bank were exempt from state taxation merely because two state banks of issue, organized before the national banking act was passed, and which held a very inconsiderable portion of the banking capital of the state, had by their charter the right to pay a certain per cent. on the amount of their capital stock in full of all state bonus and taxes,-an amount less than that imposed upon national bank shares. The shares of other associations in the state, having the privileges of banking, except the power to emit bills, were taxed like the shares in national banks. It was held that congress meant, by reference in the act of 1864 to taxation of state bank shares, to require, as a condition to taxation by the state of shares in national banks, that she should, unless restra ned by valid contract, tax in like manner the shares of banks of issue of her own creation. There was no question in that case of discrimination against capital invested in national bank shares in favor of moneyed capital, which was invested otherwise than in bank stock.

But the act of 1864 was so far modified by that of February 10, 1868, (15 St. c. 7,) that the validity of suth state taxation was thereafter to be determined by the inquiry, whether it was a greater rate than was assessed upon other moneyed capital in the hands of individual citizens, and not necessarily by a comparison with the particular rate imposed upon shares in state banks. The effect, if not the object, of the latter act was to preclude the possibility of any such interpretation of the act of congress as would justify states, while imposing the same taxation upon national bank shares as upon shares in state banks, from discriminating against national bank shares, in favor of moneyed capital not invested in state bank stock. At any rate, the acts of congress do not now permit any such discrimination. Section 5219 of the Revised Statutes is as follows:

'Nothing herein [the national banking act] shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the state within which such association is located, but the legislature of each state may determine and direct the manner and place of taxing all the shares of national banking associations located within the state, subject only to two restrictions: that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state, and that the shares of any national banking association, owned by nonresidents of any state, shall be taxed in the city or county where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either state, county, or municipal taxes to the same extent, according to its value, as other real property is taxed.' Rev. St. § 5219.

Whether the proposed taxation for county purposes of the plaintiff's shares of national bank stock is at a greater rate than is assessed, for like purposes, on other moneyed capital in the hands of individual citizens, is the single question upon which depends the affirmance or reversal of the judgment.

Before examining the statutes of Pennsylvania upon the subject of taxation, it will be well to ascertain how far the decisions of this court have fixed the true meaning of the words 'at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state.' The supreme court of Pennsylvania is of opinion that the commissioners are fully sustained by the decision in Hepburn v. School Directors, 23 Wall. 480. In that case the question was whether the owner of national bank shares residing in Cumberland county, Pennsylvania, was exempt from a local tax by reason of a statutory exemption from all taxation in that county, except for state purposes of 'mortgages, judgments, recognizances, and money owing upon articles of agreement for the sale of real estate,' except mortgages, judgments, and articles of agreement given by corporations. Laws Pa. 1868, p. 61. The value of such securities, (if they could all be properly so described,) as compared with other moneyed capital in the hands of individual citizens in that locality, did not appear in that case. What the court had to decide, and all that it did decide, was whether the exemption from local taxation of mortgages, judgments, recognizances, and money due upon agreements for the sale of real estate, in the hands of individuals, was a partial exemption only; that is, whether it was so substantial in its nature and operation as to affect the integrity of the general assessment for local purposes. The court, after observ ng that money at interest was not the only moneyed capital to which the national banking act had reference, and that the words 'other moneyed capital' included investments in bank shares and other stocks and securities, said: 'This is a partial exemption only. It was evidently intended to prevent a double burden by the taxation both of property and debts secured upon it. Necessarily, there may be other moneyed capital in the locality than such as is not exempt. Some part of it only is. It could not have been the intention of congress to exempt bank shares from taxation because some moneyed capital was exempt.' That case is authority for the proposition that a partial exemption by a state, for local purposes, of moneyed capital in the hands of individual citizens, does not, of itself and without reference to the aggregate amount of moneyed capital not so exempted, establish the right to a similar exemption in favor of national bank shares held by persons within the same jurisdiction. But it is by no means an authority for the broad proposition that national bank shares may be subjected to local taxation where a very material part, relatively, of other moneyed capital in the hands of individual citizens within the same jurisdiction or taxing district is exempted from such taxation. Indeed, such an interpretation of the statutes might entirely defeat the purpose that induced congress to confine state taxation of national bank shares within the limit of equality with other moneyed capital; for it would enable the states to impose upon capital invested in such shares materially greater burdens than those to which other moneyed capital in individual hands is subjected.

The case of Adams v. Nashville, 95 U.S. 19, is also relied upon to support the judgment below. The question there raised was whether an alleged exemption from municipal taxation, under an ordinance of a city, of its interest-bearing bonds, operated to exempt from like taxation the shares in a national bank located in the same city. The court held that as the ordinance had been abrogated by subsequent legislation of the state, no such exemption existed. However, considering the question on its merits, it was said that the act of congress did not intend 'to cut off the power to exempt particular kinds of property, if the legislature chose to do so.' In illustration of this view reference was made to exemptions of homesteads, household furniture, school-houses, academies, and libraries,-regulations sustained, as a general rule, upon grounds of policy and humanity, or because the property exempted is employed for objects more or less connected with the public welfare. And it was observed that the discretionary power of the legislature over such subjects remained as before the act of 1868; the intention of that statute being to protect corporations formed under its authority from unfriendly discrimination by the states in the exercise of their taxing power. 'That particular persons or particular articles are relieved from taxation, is not a matter to which either class can object.' It is scarcely necessary to say that this language leaves untouched the question as to the power of the state to subject the shares of national banks to taxation, when a very material portion of other moneyed capital in the hands of individual citizens and corporations is exempted from like taxation.

The court has had occasion to examine the provisions of the national banking act in several other cases recently determined. People v. Weaver, 100 U.S. 539; Pelton v. National Bank, 101 U.S. 143; Cummings v. Same, Id. 153; Supervisors v. Stanley, 105 U.S. 305; Evansville Bank v. Britton, Id. 323. From these cases may be deduced certain rules for the construction of that act: (1) That the words 'at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens' refer to the entire process of assessment, which, in the case of ational bank shares, includes both their valuation and the rate of percentage on such valuation; consequently, that the act of congress is violated if, in connection with a fixed percentage applicable to the valuation alike of national bank shares and of other moneyed investments or capital, the state law establishes or permits a mode of assessment by which such shares are valued higher in proportion to their real value than is other moneyed capital. (2) That a state law which permits individual citizens to deduct their just debts from the valuation of their personal property of every kind, other than national bank shares, or which permits the tax-payer to deduct from the sum of his credits, money at interest or other demands to the extent of his bona fide indebtedness, leaving the remainder to be taxed, while it denies the same right of deduction from the cash value of bank shares, operates to tax the latter at a greater rate than other moneyed capital.

These decisions show that, in whatever form the question has arisen, this court has steadily kept in view the intention of congress not to permit any substantial discrimination in favor of moneyed capital, in the hands of individual citizens, as against capital invested in the shares of national banks. In People v. Weaver the court said: 'As congress was conferring a power on the states which they would not otherwise have had, to tax these shares, it undertook to impose a restriction on the exercise of that power, manifestly designed to prevent taxation which should discriminate against that class of property as compared with other moneyed capital. In permitting the states to tax these shares it was foreseen that the states might be disposed to tax the capital invested in these banks oppressively. This might have been prevented by fixing limit on the amount. But congress, with due regard to the dignity of the states, and with a desire to interfere only so far as was necessary to protect the banks from anything beyond their equal share of the public burdens, said: You may tax the real estate of the banks as other real estate is bank as the personal property of the taxed, and you may tax the shares of the bank as the personal property of the owner, to the same extent you tax other moneyed capital invested in your state. It was conceived that by this qualification of the power of taxation equality would be secured and injustice prevented.'

We come now to consider whether the laws of Pennsylvania, under which defendants propose to levy a tax, for county purposes, upon the plaintiff's shares of stock, are open to the objection that they violate the principle of equality, which the act of congress intended to establish between capital invested in such shares, and other moneyed capital. By a law of that state, passed March 31, 1870,-upon which the defense mainly rests,-it is provided 'that all the shares of national banks, located within this state, and of banks and savings institutions incorporated by this state, shall be taxable for state purposes at the rate of three mills [subsequently four] per annum upon the assessed value thereof; and for county, school, municipal, and local purposes at the same rate as now is or may hereafter be assessed and imposed upon other moneyed capital in the hands of individual citizens of this state.' Laws Pa. 1870, p. 42. This act suggests, upon its face, the inquiry as to what moneyed capital, in the hands of individual citizens, is subject to taxation for county and other local purposes; for such capital, if exempted from local taxation at the date of the passage of that act, remains exempt, unless the legislature of the state has since subjected it to taxation. Evidently, in respect of taxation for local purposes, the legislature did not intend, by the act of 1870, to remove the then existing exemptions, and subject all moneyed capital, of whatever description, to such taxation; but only to establish a uniform rate of local taxation as between capital invested in national bank shares, and such, and only such, moneyed capital as was then, or might thereafter be, subjected to taxation.

To ascertain what moneyed capital was, at the passage of the act of 1870, or has since become, exempted in Pennsylvania from taxation for county purposes, requires an examination of several statutes, commencing with the one passed in 1844. The latter subjected to taxation, 'for all state and county purposes whatsoever,' the following personal property: Mortgages; money owing by solvent debtors, whether by promissory note, penal or single bill, bond, or judgment; articles of agreement and accounts bearing interest, except notes or bills for work and labor done, and bank notes; shares or stock in any bank, institution, or company then or thereafter incorporated by or in pursuance of any law of the state, or of any other state or government; shares of stock or weekly deposits in unincorporated saving fund institutions; public loans or stocks, except those issued by the state; money loaned or invested on interest in any other state. 2 Brightly's Purd. Dig. 1380; Laws Pa. 1844, p. 497.

In 1850 shares of stock in state banks, created after the state banking act of 1850, were relieved from taxation for county purposes. Laws Pa. 1852, p. 442; Allegheny Co. v. Shoenberger, 1 Grant, 35. And in 1854 all bonds or certificates of loan of any railroad company incorporated in the state were declared liable to taxation 'for state purposes only.' 2 Brightly's Purd. Dig. 1369, § 81.

By an act approved April 12, 1859, it was provided that thereafter the capital stock of all banks, savings institutions, and companies whatever, of the state, 'shall be subject to and pay a tax into the treasury of the commonwealth annually, at the rate of one-half mill for each 1 per cent. of dividend made or declared by such bank, savings institution, or company;' and in case of no such dividend being declared, then three mills upon a valuation of the capital stock, agreeably to the above act of 1844. The same act exempted from tax upon dividends any institution or company (except banks of issue) then liable for tax on capital stock. It was further declared that that act should not be so construed as to make building associations, plank-road or turnpike companies liable for any tax to the commonwealth, when such companies make or declare no dividends. Laws Pa. 1859, p. 529. And by an act passed January 3, 1868, it was declared that from and after its passage the shares of stock held by any stockholder in any institution or company incorporated under the laws of the state, which in its corporate capacity is liable to, and pays into the state treasury, the tax imposed by the act of April 12, 1859, 'shall not be taxable in the hands of said stockholder, personally, for state, county, or local purposes;' so much of the act of 1844 as imposed a tax for state or county purposes upon any stockholder in his individual capacity being repealed in terms, without relieving such corporations from any tax then imposed by law, or their real estate from any state, county, or local tax to which it then was or might thereafter be subjected. Laws Pa. 1868, p. 1318.

Then followed the act of 1879, by the third section of which every incorporated company or association doing business in Pennsylvania, or having capital employed there in the name of any other company or corporation,-except foreign insurance companies, banks, and savings institutions,-was required to pay a certain annual tax on its capital stock into the state treasury. Laws Pa. 1879, p. 112.

This brings us to the act of June 10, 1881, whereby mortgages; moneys owing by solvent debtors, whether by promissory note, penal or single bill, bond or judgment; articles of agreement and accounts bearing interest, except notes or bills for work and labor done; obligations to banks for money loaned; bank notes; shares of stock in banks, banking or saving institutions or companies, then or thereafter incorporated under any law o Pennsylvania; public loans or stocks, except those issued by that state or the United States; money loaned or invested in any other state, and all other moneyed capital in the hands of individual citizens of that state,-are declared 'to be, and are hereby, taxable for state purposes, at the rate of four mills on the dollar of the value thereof annually: provided, that all mortgages, judgments, and recognizances whatsoever, and all moneys due or owing upon articles of agreement for the sale of real estate, shall, after the passage of this act, be exempt from all taxation except for state purposes: provided, the provisions of this act shall not apply to building and loan associations,' the money loaned by them being subjected to the same tax as money loaned by individuals. By the second section of the same act, all corporations paying interest on a loan or loans, taxable for state purposes, whether secured by bond, mortgage, recognizance, or otherwise, are required to report to the auditor general annually the amount of such indebtedness owned by residents of Pennsylvania, and to pay into the state treasury four mills upon every dollar of such indebtedness, such tax to be deducted by the corporation paying it from the interest on such indebtedness; whereupon 'such indebtedness, whether secured by bond, mortgage, judgment, or otherwise, shall be exempt from other taxation in the hands of the holders thereof.' Laws Pa. 1881, p. 99.

Unless we greatly misapprehend the effect of this legislation, a very large amount of property, made subject by the act of 1844 to taxation for both state and county purposes, has since been relieved from the burdens of county taxation; while the imposition by the act of 1870 upon national bank shares of local taxation at the same rate as was at the latter date, or has been since, imposed upon other moneyed capital in the hands of individual citizens of the state, leaves such shares subject to taxation as provided in the act of 1844. The burden of county taxation, imposed by the latter act, has, at all events, been removed from all bonds or certificates of loan issued by any railroad company incorporated by the state; from shares of stock in the hands of stockholders of any institution or company of the state which, in its corporate capacity, is liable to pay a tax into the state treasury under the act of 1859; from mortgages, judgments, and recognizances of every kind; from moneys due or owing upon articles of agreement for the sale of real estate; from all loans, however made, by corporations, which are taxable for state purposes, when such corporations pay into the state treasury the required tax on such indebtedness.

As the present case comes before us moneys due or owing upon articles of excepting the allegations of the latter, no means of determining the value of the capital thus exempted from the county taxation which is imposed upon capital invested in national bank shares. After referring to the acts of 1870 and 1881, the bill charges: 'That for the year 1881, as is shown by the public report and by the books of the auditor general of Pennsylvania, the sum of $1,692,938.66 was paid into the state treasury as tax upon the capital stock of such corporations by them in their corporate capacity, which sum of money was paid upon a gross capital stock, of the corporations paying the same, of the value, approximately stated, of 564 millions of dollars. That it appears, as is shown by the books and published report of the secretary of internal affairs for the year 1881, that the total valuation throughout the state for that year of 'all mortgages, money owing by solvent debtors, whether by promissory note, penal or single bill, bond, or judgment; also all articles of agreement and accounts bearing interest, owned or possessed by any person or persons whatsoever, (except notes or bills for work or labor done, and all obligations given to banks for money loaned and bank notes,) and all public loans or stocks whatsoever, except those issued by t is state or the United States, and all moneys loaned or invested on interest in any other state, and all other moneyed capital in the hands of individual citizens of the state,'-amounts to $74,931,765. That for the same year, as is shown by the books and published reports of the auditor general, a tax was paid into the state treasury upon corporation and municipal loans, not probably included in the foregoing sum, upon an aggregate valuation of $51,404,162.50. That by the provisions of section 1 of the act of June 10, 1881, (P. L. 99,) all mortgages, judgments, and recognizances whatsoever, and all moneys due or owing upon articles of agreement for the sale of real estate, were exempt from all taxation except for state purposes. That section 2 of said act of 1881 exempts from local taxation, in the hands of the holders thereof, all loans issued by corporations paying interest thereon, where such corporations pay into the state treasury the state tax of four mills on each dollar thereof; and by act of May 1, 1854, (P. L. 535,) 'all bonds or certificates of indebtedness of any railroad company incorporated by this commonwealth be, and the same shall be, liable to taxation for state purposes only.' That the total paid-in capital of all the state banks and savings institutions in said commonwealth, other than national banks, as appears by the books and published reports of the auditor general for the year 1881, is $7,161,740.68, while the total paid-in capital of the national banks located within said state, in said year, amounted to $57,452,051.'

The demurrer, of course, admits these allegations of fact to be true. Their materiality is not affected by the circumstance that they are stated to appear, also, upon the books and published reports of the auditor general and the secretary of internal affairs of Pennsylvania. Upon such facts, and in view of the revenue laws of the state, it seems difficult to avoid the conclusion that, in respect of county taxation of national bank shares, there has been and is such a discrimination, in favor of other moneyed capital against capital invested in such shares, as is not consistent with the legislation of congress. The exemptions in favor of other moneyed capital appear to be of such a substantial character in amount as to take the present case out of the operation of the rule that it is not absolute equality that is contemplated by the act of congress; a rule which rests upon the ground that exact uniformity or equality of taxation cannot, in the nature of things, be expected or attained under any system. But as substantial equality is attainable, and is required by the supreme law of the land, in respect of state taxation of national bank shares, when the inequality is so palpable as to show that the discrimination against capital invested in such shares is serious, the courts have no discretion but to interfere.

The supreme court of Pennsylvania, after referring to Hepburn v. School Directors, as having involved the same question that is now presented, and observing that the exemption is here as there only partial, says: 'Not only is some other moneyed capital of a miscellaneous character taxable for local purposes, but all such capital of the same character as that which you desire to exempt; that is to say, the shares of state banks and savings institutions.' Again: 'The general assembly has authorized the taxation of the shares of these banks in no other manner and at no higher rate than other capital of a similar character.' If by this language it is meant that an illegal discrimination against capital invested in national bank shares cannot exist where no higher rate or heavier burden of taxation is imposed upon them than upon capital invested in state bank shares, or in state savings institutions, we have to say that such is not a proper construction of the act of congress. Capital invested in national bank shares was intended to be placed upon the same footing of substantial equality in respe t of taxation by state authority as the state establishes for other moneyed capital in the hands of individual citizens, however invested, whether in state bank shares or otherwise. As the act of congress does not fix a definite limit as to percentage of value, beyond which the states may not tax national bank shares, cases will arise in which it will be difficult to determine whether the exemption of a particular part of moneyed capital in individual hands is so serious or material as to infringe the rule of substantial equality. But unless we have failed to comprehend the scope and effect of the taxing laws of Pennsylvania, and unless the allegations of the bill be untrue, the present case is not of that class.

Our attention is called by counsel for the defendants to the fact that Pennsylvania derives, probably, her principal revenues from railroads, and therefore has good reasons to look to her interests as a commonwealth in respect to such improvements. To this fact he refers the legislation which makes railroad securities liable to taxation for state purposes only, and exempts them from local taxation. Upon like grounds he defends the exemptions made, in respect of local taxation, in favor of the bonds and shares of other corporations that pay an annual tax into the state treasury. It is quite sufficient, in respect of such matters, to say that this court has no function to deal with the considerations of public policy which control that commonwealth in the assessment of property for purposes of revenue. We have no duty beyond that of ascertaining the intention of congress in its legislation, permitting the several states to tax the shares of institutions organized under national authority for the purpose of providing a national currency, secured by United States bonds. If the principle of substantial equality of taxation under state authority, as between capital so invested and other moneyed capital in the hands of individual citizens, however invested, operates to disturb the peculiar policy of some of the states, in respect of revenue derived from taxation, the remedy therefor is with another department of the government, and does not belong to this court.

We are of opinion that upon the allegations of the bill the defendants should have been put to their answer. The facts may then disclose a case quite different from that made by the bill. What we have said relates to the case as now presented.

The judgment must therefore be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

title: Boyer v. Boyer/Opinion of the Court


text: Talk:Boyer v. Boyer/Opinion of the Court


text:
Soon Hing v. Crowley

The petitioner in the court below, the plaintiff in error here, was arrested by the defendant, who is chief of police of the city and county of San Francisco, for an alleged violation of an ordinance of the board of supervisors of that municipality, approved on the eighteenth of June, 1883; and while in custody of the officer applied to the circuit court of the United States for a writ of habeas corpus, in order to obtain his discharge. The circuit court refused to issue the writ; the judges of the court being divided in opinion, and that of the presiding judge controlling.

The ordinance was adopted to regulate the establishment and maintenance of public laundries and wash-houses within certain limits of the city and county of San Francisco. It recited that the indiscriminate establishment of such laundries and wash-houses, where clothes and other articles were cleansed for hire, endangered the public health and public safety, prejudiced the wellbeing and comfort of the community, and depreciated the value of property in their neighborhood. It then ordained, pursuant to the authority vested in the board, that after its passage it should be unlawful for any person to establish, maintain, or carry on the business of a public laundry or a public wash-house within certain designated limits of the city and county, without having first obtained a certificate of the health officer of the municipality that the premises were properly and sufficiently drained, and that all proper arrangements were made to carry on the business without injury to the sanitary condition of the neighborhood; and also a certificate of the board of firewardens of the municipality that the stoves, washing and drying apparatus, and the appliances for heating smoothing-irons were in good condition, and that their use was not dangerous to surrounding property from fire, and that all proper precautions were taken to comply with the provisions of the ordinance defining the fire limits of the city and county, and making regulations concerning the erection and use of buildings therein. The ordinance requires the health officer and the board of wardens, upon the application of any one desirous to open or conduct the business of a public laundry, to inspect the premises in which it is proposed to carry on the business, in order to ascertain whether they are provided with proper drainage and sanitary appliances, and whether the provisions of the fire ordinance have been complied with; and if found satisfactory in all respects, to issue to the applicant the required certificates, without charge for the services rendered. Its fourth section declares that no person owning or employed in a public laundry or a public wash-house within the prescribed limits shall wash or iron clothes between the hours of 10 in the evening and 6 in the morning, or upon any portion of Sunday; and its fifth section declares that no person engaged in the laundry business within those limits shall permit any one suffering from an infectious or contagious disease to lodge, sleep, or remain upon the premises. The violation of any of these provisions is declared to be a misdemeanor, and penalties are prescribed according to the nature of the offense. The establishing, maintaining, or carrying on the business without obtaining the certificate is punishable by a fine of not more than $1,000, or by imprisonment of not more than six months, or by both. Carrying on the business outside of the hours prescribed, or permitting persons with contagious diseases on the premises, is punishable by a fine of not less than $5 or more than $50, or by imprisonment of not more than one month, or by both such fine and imprisonment.

The petitioner was arrested by the chief of police upon a warrant to a police judge of the municipality, issued upon a complaint under oath, that the petitioner had washed and ironed clothes in a public laundry within the prescribed limits between the hours of 10 o'clock in the evening of the twenty-fifth of February, 1884, and 6 o'clock in the morning of the following day, thereby violating the provisions of section 4 of the ordinance. The petition for the writ of habeas corpus presented to the judges of the circuit court sets forth the arrest and detention of the petitioner by the chief of police, the ordinance under which the arrest was made, the complaint before the police judge, and the issue of the warrant under which he was taken into custody. It then proceeds to state that the petitioner has for several years been engaged in working for hire in a public laundry in the city and county of San Francisco, and has, in all respects, complied with the laws of the United States and of California, and the ordinances of the city and county, except in washing at the hours mentioned; that the business of carrying on a laundry is a lawful one, in which a large number of the subjects of the emperor of China have been and are engaged in the said city and county within the limits prescribed by the ordinance; that there have been for several years great antipathy and hatred on the part of the residents of that city and county against the subjects of China residing and doing business there; that such antipathy and hatred have manifested themselves in various ways and under various forms for the purpose of compelling the subjects of China to quit and abandon their business and residence in the city and county and state; that owing to that feeling, and not otherwise, and not for any sanitary, police, or other legitimate purpose, but in order to force those subjects engaged in carrying on the business of a laundry in the city and county of San Francisco to abandon the exercise of their lawful vocation, and their only means of livelihood, the supervisors passed the ordinance in question; that the petitioner has been and is earning his living exclusively by working at washing and ironing for hire, and in order to gain a livelihood is obliged to work late in the night, and has no other lawful vocation; that on the first of January, 1884, his employer paid the license collector of the city and county six dollars, the amount required by the ordinance to obtain a license to carry on the business of a laundry, and obtained from him a license to carry on the business at a designated place within the prescribed limits. The petition also avers that section 4 of the ordinance is in contravention of the provisions of the Burlingame treaty, and of the fourteenth amendment to the constitution of the United States, in that it deprives them of the equal protection of the laws.

On the hearing of the application for the writ certain questions arose upon which the judges of the circuit court were divided in opinion. They are as follows: (1) Whether section 4 of the ordinance mentioned is void on the ground that it is not within the police power of the board of supervisors of the city and county of San Francisco. (2) Whether said section is void on the ground that it discriminates between those engaged in the laundry business and those engaged in other classes of business. (3) Whether said section is void on the ground that it discriminates between the different classes of persons engaged in the laundry business. (4) Whether said section is void on the ground that it deprives a man of the right to labor at all times. (5) Whether said section is void on the ground that it is unreasonable in its requirements, in restraint of trade, or upon any other ground apparent upon the face of the ordinance, or appearing in the petition. The opinion of the presiding judge being that the said section was valid and constitutional, the application for the writ was denied; and the judgment entered upon the denial is brought to this court for review.

David McClure and ''Thos. D. Riordan'', for plaintiff in error.

H. G. Sieberts, for defendant in error.

FIELD, J.

title: Soon Hing v. Crowley


text: Talk:Soon Hing v. Crowley

title: Talk:Soon Hing v. Crowley


text:
Soon Hing v. Crowley/Opinion of the Court

The ordinance of the board of supervisors of the city and county of San Francisco, the legislative authority of that municipality, approved on the twenty-fifth of June, 1883, is similar in its main features to the ordinance under consideration at this term in Barbier v. Connolly, 113 U.S. 27; S.C.. ante, 357. It differs in the designation of the limits of the district of the city and county within which its provisions are to be enforced, but not otherwise in any essential particular. The fourth section is identical in both. The prohibition against labor on Sunday in this section is not involved here, as it was not in that case; and the provision for the cessation of labor in the laundries within certain prescribed limits of the city and county during certain hours of the night is purely a police regulation, which is, as we there said, within the competency of any municipality possessed of the ordinary powers belonging to such bodies. Besides, the constitution of California declares that 'any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.' Article 11, § 11. And it is of the utmost consequence in a city subject, as San Francisco is, the greater part of the year to high winds, and composed principally within the limits designated of wooden buildings, that regulations of a strict character should be adopted to prevent the possibility of fires. That occupations in which continuous fires are necessary should cease at certain hours of the night would seem to be under such circumstances a reasonable regulation as a measure of precaution. At any rate, of its necessity for the purpose designated the municipal authorities are the appropriate judges. Their regulations in this matter are not subject to any interference by the federal tribunals unless they are made the occasion for invading the substantial rights of persons, and no such invasion is caused by the regulation in question. As we said in Barbier v Connolly, 'the same municipal authority which directs the cessation of labor must necessarily prescribe the limits within which it shall be enforced, as it does the limits in a city within which wooden buildings cannot be constructed.' No invidious discrimination is made against any one by the measures adopted. All persons engaged in the same business within the prescribed limits are treated alike and subjected to similar restrictions.

There is no force in the objection that an unwarrantable discrimination is made against persons engaged in the laundry business, because persons in other kinds of business are not required to cease from their labors during the same hours at night. There may be no risks attending the business of others; certainly not as great as where fires are constantly required to carry them on. The specific regulations for one kind of business, which may be necessary for the protection of the public, can never be the just ground of complaint because like restrictions are not imposed upon other business of a different kind. The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws.

But counsel in the court below not only objected to the fourth section of the ordinance as discriminating between those engaged in the laundry business and those engaged in other business, but also as discriminating between different classes engaged in the laundry business itself. This latter ground of objection becomes intelligible only by reference to his brief, in which we are informed that the laundry business, besides the washing and ironing of clothes, involves the fluting, polishing, bluing, and wringing of them; and that these are all different branches, requiring separate and skilled workmen, who are not prohibited from working during the hours of night. This fluting, polishing, bluing, and wringing of clothes, it seems to us, are incidents of the general business, and are embraced within its prohibition. But if no incidents, and they are outside of the prohibition, it is because there is not the danger from them that would arise from the continuous fires required in washing; and it is not discriminating legislation in any invidious sense that branches of the same business from which danger is apprehended are prohibited during certain hours of the night, while other branches involving no such danger are permitted.

The objection that the fourth section is void on the ground that it deprives a man of the right to work at all times is equally without force. However broad the right of every one to follow such calling and employ his time as he may judge most conducive to his interests, it must be exercised subject to such general rules as are adopted by society for the common welfare. All sorts of restrictions are imposed upon the actions of men, notwithstanding the liberty which is guarantied to each. It is liberty regulated by just and impartial laws. Parties, for example, are free to make any contracts they choose for a lawful purpose, but society says what contracts shall be in writing and what may be verbally made, and on what days they may be executed, and how long they may be enforced if their terms are not complied with. So, too, with the hours of labor. On few subjects has there been more regulation. How many hours shall constitute a day's work in the absence of contract, at what time shops in our cities shall close at night, are constant subjects of legislation. Laws setting aside Sunday as a day of rest are upheld, not from any right of the government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops, and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the states.

The principal objection, however, of the petitioner to the ordinance in question is founded upon the supposed hostile motives of the supervisors in passing it. The petition alleges that it was adopted owing to a feeling of antipathy and hatred prevailing in the city and county of San Francisco against the subjects of the emperor of China resident therein, and for the purpose of compelling those engaged in the laundry business to abandon their lawful vocation and residence there, and not for any sanitary, police, or other legitimate purpose. There is nothing, however, in the language of the ordinance, or in the record of its enactment, which in any respect tends to sustain this allegation. And the rule is general, with reference to the enactments of all legislative bodies, that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as to the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile. And in the present case, even if the motives of the supervisors were as alleged, the ordinance would not be thereby changed from a legitimate police regulation, unless in its enforcement it is made to operate only against the class mentioned; and of this there is no pretense.

It follows that the several questions certified must be answered in the negative and the judgment be affirmed; and it is so ordered.