and county in which the same is located, without further proceedings; but nothing in this act shall be taken or held to apply to any tract or tracts of land used for agricultural purposes when the same is not owned by any railroad or other corporation.

The following is the ordinance:

Ordinance No. 2163.

[116] An Ordinance Adding Certain Lands Therein Described, Known as the Union Pacific Lands, to and Making the Same a Part of the City of Kansas City, Kansas. Whereas, A certain unplatted territory belonging to the Union Pacific Railroad Company lies upon and mainly within the city of local burdens in return for specific benefits. As to the former, all men participate more or less in the general advantages of government; but there can be no such postulate for the latter where it is palpably clear the local burden is imposed without just cause and is plainly for the benefit of others. And a court must regard a substantial return not a merely speculative or shadowy benefit which amounts to no more than a pretext. .. If the rights of property can be taken or taxed away, without a justinable cause to bring the legislative act within the just powers of government, it is confiscation, not legal contribution."

Where the municipality acts under delegated power, the rule as laid down in Vestal v. Little Rock, 54 Ark. 321, 11 L. R. A. 778, 15 S. W. 891, 16 S. W. 291, has been cited with approval by the courts of other states. The court says: "City limits may reasonably and properly be extended so as to take in contiguous lands: (1) When they are platted and held for sale or use as town lots; (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owner; (3) when they furnish the abode for a densely settled community. or represent the actual growth of the town beyond its legal boundary; (4) when they are needed for any proper town purpose, as for the extension of its streets, or sewer, gas, or water system, or to supply places for the abode or business of its residents, or for the extension of needed police regulation and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation would not give ground for their annexation, if it did not appear that such value was enhanced on account of their adaptability to town use."

In this case the court annulled the action of the city in annexing territory consisting of farm and garden property which was not needed for city use, and the annexation of which would subject the owner to the burdens, without the benefits, of local government.

But agricultural lands adjacent to a town or village may be annexed thereto, provided they are in such close proximity to the platted portions as to have some unity of interest in the maintenance of municipal government. Wahoo ▼. Tharp, 45 Neb. 563, 63 N. W. 840.

Kansas City, Kansas, and is so situated as to be bounded on three fourths (4) of its boundary line by platted territory of and adjoining to said city; which said railroad land, by virtue of its location, enjoys the benefits of said city without sharing its burdens, now therefore,

Be it ordained by the mayor and councilmen of the city of Kansas City, Kansas: Sec. 1. That the following described terri Said tracts being tory, to wit:

contiguous and containing in the aggregate one hundred and seventy-two (172) acres, be and hereby is added to and made a part of the city of Kansas City, Kansas.

Sec. 2. This ordinance shall take effect and Copeland v. St. Joseph, 126 Mo. 417, 29 S. W. 281.

So, an extension of city limits is not inequitable, unjust, or unreasonable because it takes in agricultural lands, the greater part of which is available for building purposes and much of it well located for residence property. Parker v. Zeisler, 73 Mo. App. 537.

Land occupied for horticultural ard agricul tural purposes may be annexed to a city, where the growth of the city is largely started in that direction, and it is necessary for its further development to open and include streets through such property. Chandler v. Kokomo, 137 Ind 295, 36 N. E. 847.

And the annexation by a city of land used for agriculture is not improper, where its value is derived from its prospective town use, and not from its present country use. Vogel v. Little Rock, 55 Ark. 609, 19 S. W. 13.

A change of status of a tract of land from a farm to city lots by the exercise of a power granted to cities to extend their limits is not a taking of property without due process of law. Callen v. Junction City, 43 Kan. 627, 7 L. R. A. 736, 23 Pac. 652.

The right to extend city boundaries is not affected by the fact that the territory attempted to be annexed is occupied and used exclusively for agricultural and grazing purposes, where the statute under which the proceedings are conducted makes no discrimination with regard to the form or extent of new territory to be added, other than a limitation upon its width. State v. Waxahachie, 81 Tex. 626, 17 S. W. 348.

There is no law in Pennsylvania which pro hibits the annexation of farm land to a city. The question of expediency is not for the court, but is exclusively for the determination, first of the inhabitants of the district, and afterwards of the city councils whose decision is final. Susquehanna Twp. Appeal, 17 Pa. Co. Ct. 398.

Where property is platted into lots, and marked in such a way as to impress upon it the character of urban as distinguished from rural use, the subdivisions are regarded as "lots" within the meaning of a statute authorizing the annexation of territory platted into lots. Evansville v. Page, 23 Ind. 525; Glover v. Terre Haute, 129 Ind. 593, 29 N. E. 412.

Owners of farming land adjacent to a city, who voluntarily subdivide their lands into blocks and lots, and thus create the conditions upon which the city is authorized to make their subdivisions a part of the municipality, cannot defeat such annexation by a claim that the extent of their homestead is thereby reduced to

And land used for farming and gardening purposes may be included by a municipal corporation in an annexation ordinance where the territory annexed was either already platted and largely occupied, or had the prospect of becom-1 acre without their consent. Emporia v. Smith. ng. In the near future, desirable city property. 42 Kan. 433, 22 Pac. 616.

The rights of the Union Pacific Railway Company are affected by the act complained of. Its lands are sought to be taken within "Nor shall any state deprive any person the limits of a city and subjected to its of life, liberty, or property without due proc-burdens under the provisions of the very statess of law, nor deny to any person within ute which is claimed to be unconstitutional. its jurisdiction equal protection of the laws. The receivers have therefore the right to "And plaintiffs are advised and so charge avail themselves of the discrimination made the fact to be that in so far as said statute in favor of agricultural lands owned by inattempts to authorize the taking of said dividuals, and against all other classes of lands within the limits of Kansas City, Kan-property. sas, as attempted in said ordinance, 'Exhibit A,' it is unconstitutional, null, and void. in this, to wit:

"That by reason of that portion of the act which excepts from its operation any tract or tracts of land used for agricultural pur- Plaintiffs in error are not in a position to poses, when the same is not owned by any question the constitutionality of the law unrailroad or other corporation, it is in viola-der consideration. tion of that part of the Fourteenth Amend- Castillo v. McConnico, 168 U. S. 674, 42 ment to the Constitution of the United L. ed. 622, 18 Sup. Ct. Rep. 229; Cooley, [117]*States, which reads as follows: Nor shall Const. Lim. 6th ed. 196; Lowndes County v. any state deprive any person of life, liberty, Hunter, 49 Ala. 507; Smith v. Inge, 80 Ala. or property without due process of law, nor 283; People v. Rensselaer & S. R. Co. 15 deny to any person within its jurisdiction Wend. 113, 30 Am. Dec. 33; State v. Clarke, equal protection of the laws.' 54 Mo. 17, 14 Am. Rep. 471; Pittsburgh, C. C. & St. L. R. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582.

justify, if not require, their inclusion within | cents ($65.56) each, payable on the first day
the municipal jurisdiction.
of each calendar month during the said term
of ten years.

We think, therefore, that within the lati-
tude which local government must be al-
lowed the distinction is not arbitrary, and
infringes no provision of the Constitution of
the United States.
Judgment affirmed.

The bill alleged default in the payment of certain monthly instalments, and that, in pursuance of the terms of the bond and trust deed, the company had declared the entire amount of the loan due and payable, and prayed "that upon the hearing hereof the court will ascertain upon an accounting how much is due to the complainant under the

ROBERT RAE, Jr., and Elizabeth Rae, terms of the said bond and trust deed, and

His Wife, Plffs. in Err.,

υ.

will decree the payment of any amount so found due, by a short day, in gold coin of the

HOMESTEAD LOAN & GUARANTY COM- United States of the present standard

PANY.

(See S. C. Reporter's ed. 121-126.)
Writ of error to state court-Federal ques-
tion-other question controlling.

The contention in a state court, that a con-
tract for the payment of gold coin is invalid,
will not be ground for writ of error from the
Supreme Court of the United States, when
the decree of the state court is for payment
of a certain amount in dollars and cents,
without specifying any particular kind of
money, and this is affirmed by the supreme
court of the state on the ground that the de-
fendants have not been prejudiced by merely

weight and fineness;" and for sale and fore-
closure, if the amounts decreed were not
paid.

Defendants demurred to the bill, and set
forth the following causes of demurrer:

"(1) The matters and things set out in the complainants' bill are contrary to public policy and void. (2) Because it is not lawful for the complainants and the defendants to make any money but gold and silver money a money tender in payment of any debt contracted in the United States to be paid in the United States. (3) That so much of the act of Congress of February 28, 1878. entitled 'An Act to Authorize the Coinage of the Standard Silver Dollar, and to Restore Its Legal Tender Character,' which provides that gold and silver money of the United States shall be a legal tender for payment and discharge of debts and obligations, is valid, but the proviso permitting *parties to[123} make such special contracts as they please as to the payment of debts and obligations N ERROR to the Supreme Court of the (4) That the contract or mortgage set forth in money other than gold and silver is void. I State of Illinois' to review a judgment af-in said bill and the relief prayed therein is firming a decree on foreclosure of a mort gage payable in gold coin. Affirmed.

requiring them to respond in lawful money.

[No. 261.]

Submitted December 18, 1899. Decided
January 22, 1900.

Same case below, 178 Ill. 369, 53 N. E.

220.

Statement by Mr. Chief Justice Fuller: The Homestead Loan & Guaranty Company filed its bill in chancery in the circuit [122]court of Cook county, Illinois, against Robert Rae, Jr., and his wife, for the foreclosure of a certain mortgage or trust deed on real estate in that county, given by them to secure a bond whereby Rae acknowledged that he was bound to the company "in the sum of ninety-eight hundred dollars ($9,800) in gold coin of the United States of America, of the present standard weight and fineness." and which recited that the company had advanced to him "the principal sum of forty: nine hundred dollars ($4,900), which said sum, together with interest thereon, costs, charges, and expenses, amounting in the ag; gregate to the sum of seventy-eight hundred sixty-seven dollars and twenty cents ($7,867.20) is to be repaid within ten years from date in gold coin as aforesaid, in monthly instalments of sixty-five dollars and fifty-six

NOTE-A to Federal jurisdiction over state courts; necessity of Federal question,-see notes to Hamblin v. Western Land Co. 37 L. ed. U. S.

267. and Kipley v. Illinois ex rel. Akin, 42 L.

ed. U. S. 998.

void, as against publie policy. (5) That by virtue of article 1, section 8. paragraph 5. of the Constitution of the United States, Congress alone has 'power to coin money and regulate the value thereof,' and that by article 1, section 10, paragraph 1, of said Constitution it is provided that 'no state shall coin money, emit bills of credit, or make anything but gold and silver coin a tender' in payment of debts, in contracts made in the United States to be performed in the United States. Said defendants claim, jointly and severally, the benefit of said constitutional provisions. (6) That said bill should be dismissed for want of equity."

The demurrer was overruled, defendants excepted, elected to abide by it, and refused to answer over. The bill was thereupon taken as confessed, and the circuit court on the evidence entered a decree of foreclosure, finding that the defendant Rae, Jr., "being indebted to the complainant in the sum of $4,900 for a loan made by the complainant to said defendant, executed and delivered to the complainant his bond, bearing date the 1st day of August, 1895, which bond is correctly set out at length in complainant's bill;" that to secure the bond said trust deed was duly given and recorded, and was a valid and first lien on the premises therein described; that default had been made in the

ment without reference to any Federal ques-
tion supposed to be involved.

According to the terms of § 709 of the Re

payment of instalments as alleged, and that
the whole amount had been declared due;
and that there was due from defendant to
complainant, for principal and accrued in-vised Statutes, we exercise jurisdiction over
terest, the sum of $5,350.76, together with
some other items; and decreed that if the
sums due were not paid within five days the
real estate mortgaged should be sold in sat-
isfaction.

Defendants appealed to the appellate court of the state of Illinois for the first district, and assigned for error the action of the circuit court in overruling the demurrer, etc., and in not dismissing the bill because it claimed there was due the sum found to be due in gold coin of the United States of the [124]*present standard in weight and fineness. The decree was affirmed by the appellate court. Rae v. Homestead Loan & Guaranty Co. 76 Ill. App. 548.

the final judgments and decrees of state courts, where the validity of a treaty or statute of, or authority exercised under, the United States, is drawn in question, and the decision is against their validity; or where the validity of a statute of, or an authority exercised under, any state, is drawn in question on the ground of repugnancy to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party, under such Constitution, treaty, statute, commission, or authority.

The decision of the supreme court of Illinois was not against the validity of a treaty or statute of, or authority exercised under, the United States; nor was it in favor of the validity of any statute of, or authority exercised under, the state of Illinois, asserted to be repugnant to the Constitution or laws of the United States; nor was it against any title, right, privilege, or immunity specially set up or claimed by plaintiffs in error.

From that decree, defendants appealed to the supreme court of Illinois, by which it was affirmed. Rae v. Homestead Loan & Guaranty Co. 178 Ill. 369, 53 N. E. 220. The opinion of the supreme court was as follows: "The elaborate and able argument for appellants cannot be considered on what appears from this record, as the decree does not find or require judgment in any particular kind of money, but finds the sum due in dollars and cents. Even if it were assumed that contracts of this character could not be sustained, still, by the final decree the appellants are not prejudiced,-they cannot be The validity of part of the act of Congress heard to complain in an appellate tribunal. of February 28, 1878 (20 Stat. at L. 25, If the character of money in which payment chap. 20), was questioned, but plaintiffs in is contracted to be made be rejected from the error cannot bring the case here on the obcontract, still the liability for payment injection that that contention was not sussome kind of legal tender would exist, hence tained. by the decree no prejudice resulted to appellants in overruling their demurrer."

The present writ of error was then brought, and defendants in error moved to dismiss or affirm.

Mr. Robert Rae submitted the cause for plaintiff in error.

Messrs. John P. Wilson and William B. McIlvaine submitted the cause for defendant in error.

[124] *Mr. Chief Justice Fuller delivered the opinion of the court:

The benefit of clause 5, section 8, article 1, of the Constitution, empowering Congress to coin money and regulate the value thereof, and of clause 1, section 10, of article 1, providing that no state shall coin money, emit bills of credit, or make anything but gold and silver coin a tender for the payment of debts, was claimed; but the state courts did not deny to Congress any power granted, nor assert in respect of the state any power pro-[126] hibited, and it did not appear that plaintiff's in error were deprived of any benefit secured by either of those provisions.

Plaintiff's in error pointed out no provision The circuit court of Cook county did not of the Constitution, or of any law of the find the sums due as due, nor decree their United States, forbidding the making of conpayment, in gold coin of the United States. tracts payable in gold coin of the United The record does not show that when the in- States, but contended that contracts so made stalments matured any demand was made payable were void because opposed to public for their payment in gold, nor that a tender policy. The state circuit court, however, of money other than gold was made, or, if simply held plaintiffs in error to respond in made, that such tender would not have been lawful money, and entered its decree accordaccepted. The presumptions are entirely to ingly, and the supreme court decided that the contrary. The circuit court decreed that plaintiffs in error could not complain of the liability be discharged in any lawful that decree, because not prejudiced thereby. money of the United States, and the supreme This was not a decision against any right se1125 court held that defendants below could cured by the Constitution or laws of the not be heard to complain of a decree by which | United States specially set up or claimed by they were not prejudiced. This was aplaintiffs in error in those courts. ground broad enough to sustain the judg- Writ of error dismissed.