페이지 이미지

the principal in the bond to commit the defalcation sale be brought into court and distributed according for which the sureties are sought to be charged. Bonta to law. To this petition Dodge answered, admitting v. Mercer County Court, 7 Bush (Ky.), 576; Board of the recovery of the judgment as alleged. Supervisors v. Otis, 62 N. Y. 88; Jones v. United States, On May 25, 1880, the trustee appointed for that pur18 Wall. 662; People's Building Association v. Wroth, pose under the decree of June 11, 1879, reported a sale 43 N. J. L. 70;

of the premises for $5,525, and the same on June 25, The principle on which the rule is founded is clearly 1880, was confirmed. The cause was then referred to stated in Board of Supervisors v. Otis, supra, at page an auditor to stato the account of the trustees to sell, 95. “There is no good reason why the public, having whose report showed an appropriation of the proceeds exacted security from one official for the faithful dis- of the sale, after payment of costs, in payment to that charge of his duties, should be held by implication to extent of the appellee's judgment. On exceptions to have guaranteed to those sureties the faithful dis- this report a final decree confirming the same was made charge by other public agents and officials of other September 14, 1880, which decree on appeal to the Genduties having an incidental or collateral relation to eral Term was affirmed on December 10, 1880. From that the duties of the principal.”

deoree this appeal is prosecuted, and as ground of reGUY C. H. CORLISS.

versal it is assigned by the appellant that the proceeds ST. PAUL, MINN.

of the sale of the equitable interest of Dodge, the

judgment debtor, should have been distributed pro DISTINCTION BETWEEN LEGAL AND EQUI. rata between the appellees and the appellants, instead TABLE ASSETS-CREDITOR ENTITLED TO BENE. of having been awarded exclusively to the appellee. It FIT OF DILIGENCE.

is contended on behalf of the appellants that the inter

est of the judgment debtor in the land being an equity SUPREME COURT OF THE UNITED STATES,

merely, is not subject to execution at law; and as it MARCH 10, 1884.

can be reached by judgment creditors only through

the intervention and by the aid of a court of equity, it COMMRS. OF FREEDMAN'S ETC., V. EARLE.

becomes of the nature of equitable assets, and when

sold the proceeds will be applied, according to the Where real estate of a decedent is chargeable with the pay. maxim that equality is equity, ratably among the cred

ment of debts, and in case of a deficiency of personal itors. property for that purpose may be subjected to sale and

In the case of Morsell v. First Nat. Bk., 91 U. 8. 357, distribution as assets by the personal representative in the ordinary course of administration, the distinction between

it was decided that under the laws of Maryland in legal and equitable assets has ceased to be important.

force in this district, judgments at law were not liens An execution creditor Aling a bill to subject the equity of the upon the interest of judgment debtors who had pre

debtor in his life-time, thereby acquires, and having pur. viously conveyed lands to a trustee in trust for the sued the property into court, is entitled to a preference as payment of a debt secured thereby. Mr. Justice the reward of his diligence.

Swayne said (p. 361): "The judgment in nowise afThe lien is given by the court in the exercise of its jurisdiction fected the trust premises until the bill was filed. That to entertain the bill, and to grant the relief prayed for.

created a lien in favor of the judgment creditors. MATTHEWS, J. The appellee recovered a judgment There was none before.” And it was accordingly held against Robert P. Dodge in the Supreme Court of the that in the distribution of the proceeds of sale the District of Columbia on January 4, 1878, for $7,700, judgments must be postponed to debts secured by with interest and costs, which was revived April 2, other deeds of trust made before the filing of the bill, but 1879, and on which a fi. fa. was issued April 9, 1879, and subsequent to the rendition of the judgments. But returned nulla bona.

that decision leaves open the question arising here beOn June 1, 1877, Dodge, the judgment debtor, being tween judgment creditors seeking satisfaction in equity then seised in fee simple of certain real estate in the out of the debtor's equitable estate. It becomes peccity of Georgetown, in this district, couveyed the essary therefore to determine the nature of the right same by deed duly recorded to Charles H. Cragin, Jr., and the principle of distribution which arises from it. in trust, to secure to Nannie B. Blackford payment of At common law executions upon judgments could the sum of $2,000, with interest, according to certain not be levied upon estates merely equitable, because promissory notes given therefor, and which were in courts of law did not recognize any such titles and dorsed to Charles H. Cragiu.

could not deal with them. They could not be levied On April 10, 1879, the appellee filed his bill in equity, upon the estate of the trustee when the judgment was to which Dodge, Charles H. Cragin, Jr., Charles H. against the cestui que trust, for the same reason; and Cragin and Nannie B.Blackford were made defendants, when the judgment was against the trustee, if his lethe object and prayer of which were to take an account gal estate should be levied on, the execution creditor of the debt secured by the trust deed, and subject could acquire no beneficial interest, and if the levy thereto, to have the premises sold and the proceeds of tended injuriously to affect the interest of the cestui the sale applied to the satisfaction of the appellee's que trust the latter would be entitled to relief, by injudgment.

junction or otherwise, in equity. Lewin on Trusts, The defendant's having appeared and answered, a 171, 186; 2 Spence Eq. Jur. 39. decree according to the prayer of the bill was rendered But as courts of equity regarded the cestui que Jome 11, 1879.

trust as the true and beneficial owner of the estate, to On December 27, 1879, leave therefor having been whose uses, according to the terms of the trust, the leobtained, the appellants filed a petition in the cause gal title was made subservient, so in its eyes the estate setting forth the recovery of a judgment in their favor of the cestui que trust came to be invested with the against the defendant Dodge in the sum of $7,386.47, same incidents and qualities which in a court of law with interest and costs, on February 11, 1879, in the belonged to a legal estate, so far as consistent with the Supreme Court of the District of Columbia, and that preservation and administration of the trust. This on Debember 2 a fi. fa. had been issued thereon and re- was by virtue of a principle of analogy,adopted because turned nulla bona December 19, 1879; and praying that courts of equity were unwilling to interfere with the they may be made parties complainant in the cause; strict course of the law, except so far as was necessary that the equitable interest of Dodge in the real estate to execute the just intentions of parties, and to pre. described be subjected to the satisfaction of their vent the forms of the law from being made the means judgment; that the same be sold, and the proceeds of and instruments of wrong, injustice and oppressiou.

Thus equitable estates were held to be assignable, the aid of the court in subjecting the equitable interand could be conveyed or devised; were subject to the est of the debtor, not being a lien at law or a specific rules of descent applicable to legal estates; to the ten- charge in equity, nevertheless constitutes such an inanoy by the curtesy, though not to dower, by an terest and creates such a privity as entitles the judganomalous exception afterward corrected by statute, meut creditors to redeem a prior mortgage, and suc3 and 4 Will. IV, c. 105; and were ordinarily governed ceeding thus to the rights of the mortgagee in Engby the rules of law which measure the duration of the land, where the doctrine of tacking prevailed, he was enjoyment or regulate the devolution or transmission permitted to hold the whole estate as security for his of estates; so that in general whatever would be the judgment also, even when, by virtue of an elegit at law, rule of law, if it were a legal estate, was applied by the he would be entitled only to a moiety of the debtor's Court of Chancery by analogy to a trust estate. 1 land. And he could file his bill to redeem without Spence Eq. Jur. 502.

previously issuing an execution. Neate v. Duke of As judgmeut creditors, after the statute of West- Marlborough, 3 M. & C. 407. The reason for this, asminster, 13 Ed. 1, ch. 18, were entitled by the writ of signed by Lord Cottenham in the case just cited, is, elegit to be put in possession of a moiety of the lands that inasmuch as the court finds the creditor in a conof the debtor until satisfaction of the judgment; and dition to acquire a power orer the estate by suing out as it would be contrary to equity to permit a debtor to the writ, it does what it does in all similar cases; it withdraw his lands from liability to his judgment gives to the party the right to come in and redeem creditors, this analogy was at an early date extended so other incumbranoes upon the property. as to give to judgment creditors similar benefits in re- But in other cases, when the object of the bill is too spect to the equitable estate of their debtors; and as obtain satisfaction of the judgment by sale of the the remedies in favor of judgment creditors by way of equitable estate it must be alleged that execution has execution upon the legal estate of their debtors have been issued. This is not supposed to be necessary beeu enlarged, they have been imitated by a corre- wholly on the ground of showing that the judgment sponding analogy as to equitable estates by courts of creditor has exhausted his remedy at law; for if so, it equity. This is in pursuance of the principle stated in would be necessary to show a return of the execution, a pregnant sentence by Lord Northington in Burgess unsatisfied, which however is not essential. Lewin on v. Wheate, 1 Ed. 224-250, where he said: “For my Trusts, 513. But the execution must be sued out; for own part, I know no instance where this court has if the estate sought to be subjected is a legal estate and permitted the creation of a trust to affect the right of subject to be taken in execution, the ground of the a third person.' It is embodied in the maxim, æquitas jurisdiction in equity is merely to aid the legal right sequitur legem.

by removing obstacles in the way of its enforcement at It was acoordingly held by Lord Nottingham in the law (Jones v. Green, 1 Wall. 330); and if the estate is anonymous case cited in Balch v. Wastall, 1 P. Wms.

equitable merely, and therefore not subject to be lef445, “ that one who had a judgment, and had lodged a ied on by an execution at law, the judgment creditor fieri facias in the sheriff's hands, to which nulla bona is bound nevertheless to put himself in the same posiwas returned, might afterward bring a bill against the tion as if the estate were legal, because the action of defendant, or any other, to discover any of the goods the court converts the estate so as to make it subject or personal estate of the defendant, and by that means to an execution, as if it were legal. The ground of the to affect the same;" and although Lord Keeper Bridg- jurisdiction therefore is not that of a lieu or charge man, in Pratt v. Cole, Freem.Cas. in Ch. by Hovenden, arising by virtue of the judgment itself, but of an 139, refused to permit a trust estate which had de- equity to enforce satisfaction of the judgment by scended to the heir, to be extended upon an elegit on a means of an equitable execution. And this it effects judgment against his ancestor, the reporter adds, “but by a sale of the debtor's interest subject to prior innote that this hath not been taken to be a good de. cumbrances, or according to circumstances, of the murrer by the old and best practicers, as little accord- whole estate, for distribution of the proceeds of sale ing with good reason, for the heir-at-law is as much among all the incumbrancers according to the order in chargeable with the ancestor's judgment as the execu- which they may be entitled to participate. Sharpe v. tor with ́the testator's debts, and so equity ought to Earl of Scarborough, 4 Ves. 538. follow the law."

It is to be noted therefore that the proceeding is one Three years subsequently to this decision the statute instituted by the judgment creditor for his own interof frauds, 29 Car. II, ch. 3, was enacted, the 10th sec- est alone, unless he elects to file the bill also for others tion of which made trust estates in fee simple assets in a like situation, with whom he chooses to make for the payment of debts, and subject to an elegit upon common cause; and as no specifio lien arises by virtue judgment against the stui que trust. But this statute of the judgment and execution alone, the right to obdid not extend to chattels real, to trusts under which tain satisfaction out of the specific property sought to the debtor had not the whole interest, to equities of be subjected to sale for that purpose dates from the redemption, or to any equitable interest which had filing of the bill. “The creditor," says Chancellor beeu parted with before execution sued out. Forth v. Walworth, in Edmeston v. Lyde, 1 Paige Ch. 637-640, Duke of Norfolk, 4 Mad. 503. The statute of 5 Geo. 2, “whose legal diligence has pursued the property into ch. 7, which made lands within the English colonies this court, is entitled to a preference as the reward of chargeable with debts, and subject to the like process his vigilance:” and it would "seem unjust that the of execution as personal estate, was in force in Mary- creditor, who has sustained all the risk and expense of land; but as it did not interfere with the estab- bringing his suit to a successful termination, should in lished distinction between law and equity, it did not the end be obliged to divide the avails thereof wish permit an equitable interest to be seized under a fieri those who have slept upon their rights or who have infacias. Lessee of Smith v. McCann, 24 How. 398. But tentionally kept back that they might profit by his esas the effect of these statutes was to enlarge the opera- ertions when there could no longer be any risk in betion of executions upon legal estates, so the corre- coming parties to the suit.” As his lien begins with sponding equitable remedy as to equitable estates was the filing of the bill, it is subject to all existing incumalso enlarged, and as to them equitable executions brances, but is superior to all of subsequent date. As were enforced to the same extent to which executions was said by this court iu Day v. Washburn, 24 How. at law were enforceable upon estates subject to seizure 252, “It is only when be bas obtained a judgment and under them.

execution in seeking to subject the property of his This mero equity, consisting in the right to obtain debtor in the hands of third persons, or to reach prop

erty not accessible to an execution, that a legal prefer- could obtain a specific or general lien on at law they ence is acquired, which a court of chancery will en- are entitled to the fruits of their superior vigilanco so force."

far as they have succeeded in getting such lien. But This is in strict accordance with the analogy of the if the property was in such a situation that it could not law, as it was recognized that the judgment creditor be reached by a judgment at Jaw, and the fund is who first extends the land by elegit is thereby entitled raised by a decree of this court, and the creditors are to be first satisfied out of it. It is the execution first obliged to come here to avail themselves of it, they will begun to be executed, unless otherwise regulated by be paid on the footing of equity only." statute, which is entitled to priority. Rockhill v. But a specific lien, whether legal or equitable, on Hanna, 15 How. 189-195; Payne v. Drew, 4 East, 523. property liable as equitable assets, was always respected The filing of the bill in cases of equitable execution is by courts of equity. Freemoult v. Dedire, 1 P. W. 429; the beginning of executing it.

Finch v. Earl of Winchelsea, id. 277; Ram on Assets, The passage cited from the opinion in Day v. Wash- 318. And Lord Chancellor Parker, in Wilson v. Field. burn, supra, speaks of the preference thus acquired by ing, 2 Ver. 763, 10 Mod. 426, drow the distinction bethe execution creditor as a legal preference. It was tween property which is assets in a court of equity distinctly held so to be by Chancellor Kent in McDer- only and certain property which a creditor cannot mott v. Strong, 4 Johns. Ch. 687. He there said: “ But come at without the aid of a court of equity. In that this case stands on stronger ground than if it rested case the mortgage debt had been paid out of the permerely on the general jurisdiction of this court, upon soual estate by the executor, thus exonerating the residuary trust interests in chattels, for the plaintiff's mortgaged premises which had descended to the heir. come in the character of execution creditors, and have The unsatisfied creditors filed a bill to require the thereby acquired by means of their executions at law, heir-at-law to refund, which was "a matter purely in what this court regards as a legal preference or lien on equity, and a raising of assets where there were none the property so placed in trust;" and "admitting that at law." the plaintiffs had acquired by their executions at law a And see Atlas Bank v. Nahunt Bank, 3 Meto. (Mass.) legal preference to the assistance of this court(and none 589; Codwise v. Gelston, 10 Johns. 522; Tenant v. but execution creditors at law are entitled to that as- Strong, 1 Rich. Eq. 221; 1 Story Eq.Jur., $ 553; 2 White sistance), that preference ought not in justice to be & Tud. Lead. Cas. in Eq., pt.1, 390. taken away. Though it be the favorite policy of this We have already seen that the filing of a bill by an court to distribute assets equally among creditors, pari execution creditor to subject the equity of the debtor passu, yet whenever a judicial preference has been es- in his life time created a lien and gave him a legal tablished by the superior legal diligence of any creditor preference. And in the English chancery, although that preference is always preserved in the distribution equities of redemption after the death of the mortgaof assets by this court." The decision in that case was gor are classed as equitable assets, the rule of distribumade giving the priority to the execution creditors tion, pari passu, is modified in its application to them who filed the bill, when otherwise, by virtue of an as- in respect to judgment creditors by permitting them signment by the debtor, who was insolvent, the pro- to retain their priority over other claims, because if ceeds of the equitable interest sought to be subjected such priority were not allowed the judgment creditor would have been distributed ratably among all credit- might acquire it by redeeming the mortgage. Adams ors.

Eq. 256. Legal assets, according to the definition of This case, often cited and never questioned, shows Mr.Justice Story,'Eqwur., 551, "are such as come into that the doctrine of equitable assets, to which we are the hands and power of an executor or administrator referred by the appellant as the ground of his claim, or such as he is intrusted with by law virtute officii to has no application to the case. Ordinarily and strictly dispose of in the course of his administration. the term equitable assets applies only to property and other words, whatever an executor or administrator funds belonging to the estate of a decedent, which by takes qua executor or administrator, or in respect to law are not subject to the payment of debts, in his office, is to be considered legal assets." And this the course of administration, by the personal rep- is the modern doctrine in England. In Lovegrove v. resentatives, but which the testator has voluntarily Cooper, 2 Sm. & Giff. 271, it was held for that reason charged with the payment of debts generally, or which that the proceeds of real estate directed to be sold for being non-existent at law, have been created in equity the payment of debts, and paid by the purchaser into uuder circumstances which fasten upon them such a court, were legal and not equitable assets. trust. Adams on Equity, 254. But as was said by It follows from this that in this country generally, Chancellor Kent in Williams v. Brown, 4 Johns. Ch. where the real estate of a decedent is chargeable with 682, the doctrine "does not apply to the case of a the payment of debts, and in case of a deficiency of debtor in full life, for there is no equitable trust cre- personal property for that purpose may be subjected ated and attached to the distribution of the effects in to sale and distribution as assets by the personal repthe latter case.

resentative in the ordinary course of administration, Property held by a trustee for the testator is legal the distinction between legal and equitable assets has assets, for although the benefit of the trust, if resisted, ceased to be important. In every such case the equity cannot be enforced without equitable aid, yet the an- of redemption could only be applied after sale by the alogy of the law will regulate the application of the executor or administrator in the ordinary course of adfund. To constitute equitable assets the trust im- ministration, subject to whatever liens may have been posed by the party or by the court must be for the imposed upon it in the life-time of the mortgagor, and benefit of creditors generally.

among them, as we have seen, is that of an execution It is true that in Moses v. Murgatroyd, 1 Johns. Ch. creditor who has filed his bill to subject it to the pay119; 7 Am. Dec. 478, Chancellor Kent held surplus ment of his judgment. So in other cases where the money arising from the sale of mortgaged premises to rule of equality in distribution as to equitable assets apbe equitable assets, but that was in a case where the plies, as in cases of assignments by the debtor himself mortgagor was deceased and the fund was in a court for the payment of debts generally, and in cases of of equity for distribution, and when the judgment to bankruptoy and insolvency, except as otherwise exwhich priority was refused was confessed by the ad- pressly provided by statute, the estate passes, subject ministrator. Iu Purdy v. Doyle, 1 Paige, 558, the rule to existing lieus, including that of an execution credwas stated by Chancellor Walworth in these words: itor who had previously filed a bill to subject the "If it is such property as the judgment creditors equitable interest of the debtor, and his priority is re

[ocr errors]

spected and preserved. The lien is given by the court village, by ordinance or resolution, to derote this fund in the exercise of its jurisdiction to entertain the bill to other purposes than the support of the poor of the and to grant the relief prayed for; and to distribute county in which the county system of supporting the the proceeds of the sale for the benefit of others, poor had been adopted, and legalizes any such diverequally with the execution creditor first filing the bill, sion of said fund wbich had already been made. The would be to contradict the very principle of the juris- portion of this fund collected by the defendant town diction itself, and defeat the very remedy it promised, in 1882 had been retained and expended for common for the fruits of the litigation, according to the rule of village purposes, by resolution of its trustees, and was equality, would have to be divided, not only with other as clearly within the power of disposition by the Legjudgment and execution creditors, but as well with all islature as any fund that might thereafter be derived creditors, whether their claims had been reduced to from the same source. So far as the plaintiff county judgment or not.

is concerned with it, it was a fund already collected, For these reasons the decree appealed from is af- and liable to be paid over to the county semi-annu. Armed.

ally, and still is in the town treasury, the payment of

which could be enforced by action at law; so that the SALE OF LIQUOR SUBJECT TO LEGISLATIVE

act of 1883 was not really, though in force, a legalizing

act. It was rather an act providing that all of such CONTROL--LICENSE NOT A TAX.

fund now in the hands of the village treasurer, and

that may hereafter come into his hands, from licenses WISCONSIN SUPREME COURT, FEBRUARY 19, 1884. of the sale of liquors, may be devoted to any purpose

which the village trustees, by resolution, may deter. RICHLAND Co. v. VILLAGE OF RICHLAND CENTER. mine. It is not in substance a retroactive act, but an The legislative appropriation to the county of all the funds act applying as well to the fund already collected as to collected from the sale of licenses, to be used for the sup

that to be hereafter colleoted from the same source. port of the county poor, is a mere gratuity, which can be The element of retroaction is not, in the act, in any taken away at the pleasure of the Legislature, and the proper sense, though the language is of a legalizing county has no vested right in such fund; otherwise the significance. Legislature could not repeal the license laws or diminish

The resolution of the trustees diverting this fund the amount of the fund therefrom. The licensing of intoxicating liquors is not the exercise of the

already collected from the purpose prescribed by the taxing power of the State to raise revenue, but of the

then existing law, and its actual evpenditure for some police power.

other purpose, would not place the village in default The sale of intoxicating liquors and the fund therefrom so as to give the county a right of action for it, if any

is under the control of the Legislature in every re- such right they may bave; there must have been a spect.

demand of the moueys for that year and a refusal to Municipal corporations have no private powers or rights as pay by the village treasurer before any action could

against the State; their contracts with third parties will have been brought for them, and before the act of 1883 be protected, but beyond that their powers have been

took effect, in order to raise the questiou of a vested given by the State, and may be taken away at pleasure.

right of action. The question of a vested right of action for, depended upou a vested right of property

in this fund after the act of 1883. There is no reason Michael Murphy, for respondent.

for the distinction between the fund already in the

bands of the village treasurer and that which might be J. H. Berryman, for appellant.

thereafter collected from such source, so far as the ORTON, J. Section 32, ch. 34, Rev. Stat. 1858, pro- operation and effect of the act of 1883 is concerned. vided that the majority of the board of supervisors of The vested right of the county is iu the fund and in any county may determine to abolish all distinction that not collected as much as in that already collected. between county poor and town poor in such county, It is only the fund paid into the village treasury that and have the expense of maintaining all the poor that act attempts to dispose of for general village purtherein as a county charge, and the board shall have poses, whether already paid iu or to be paid in thereauthority to levy and collect on the taxable property after. Such moneys are not available for any purpose in such county such expense in the same manner as until they are collected from licenses. The right of other county charges. Section 16, ch. 35 of the same the county does not attach to them until they are colrevision, provided that in counties where the county lected. The act of 1883 is no more unconstitutional as system of supporting the poor has been adopted, all violating the vested right of property of the county in moneys derived from licenses for the sale of intoxicat- this fund paid to the village treasurer than in that not ing liquors shall be paid by the treasurers of the towns, colleoted, for it is by the law existing previously that cities, and villages, into the treasury of the county, the whole of such fund is given to the county to aid in semi-annually, and they shall be applied solely for the the support of the poor. So we say that this act is in purpose of defraying the pauper expenses of said no sense retroactive, so far as this plaintiff county is county. In 1877, the plaintiff, Richland county, by concerned. This act lays its hand upon the whole of force of the first above statute, adopted the county this fund, present and future, and passes it over to the system of supporting the poor. In 1882 the village of village to be expended as it may deem expedient for Richland Center, in said county, collected for licenses the general benefit, in violation of the right of the for the sale of liquors, the sum of $560, and failed to county to it by a former law, as claimed by the plaintpay the same over to the county treasurer, and the iff. We shall say no more of the vested right of action trustees of said village, by resolution, determined to for this fund, than that if the Legislature can take retain said fund to be expended for general village away from the county its vested right of property in purposes. Section 1, ch. 156, of the Laws of 1883, pro- this fund on hand and to be collected in the future. vided that “the action of any village trustees in coun- then of course the right of action for the same is ties where the county system of supporting the poor gone. We shall therefore confine ourselves to considshall have been adopted, providing for a different way ering whether the county, plaintiff, had such a vested of disposing of the license moneys than their payment right of property in this fund that the Legislature into the county treasury for the support of the poor of could not take away. the county, is hereby in all respeots legalized.” Tbis It may be argued that this right is in the nature of a last statute makes it optional with any town, city or contract, because it formed the consid eration, in part

APPEAL from Circuit Court, Richland county.

at least, for the action of the board of supervisors of at the pleasure of the Legislature, by giving the authe county iu adopting the county system of support- thorities power to grant or refuse such license at pleasing the poor, relyiug upon this fund to aid the county ure. Statę v. Downer, 21 Wis. 274. If these license in so doing.

moneys of the village belong to the county, they can(1) It may be answered that the law authorizing the not be diminished by the village board fixing a lower adoption of such system also authorized the county to rate of licenses. If they can be diminished, they may assess a tax upon the property of the county to defray be taken away. such expenses, without any reference to this fund; 3d. The right of property in goods or money implies and indeed this fund was not then devoted by a complete dominion over them, to have and possess, law to such purpose, and not unthi 1855; and and to sell or give them away at the pleasure of the since it has been, the same provision for taxa. owner. This is elementary law. This fund approtion to support the county poor remains in force. priated to aid in support of the poor of the county, in We need to trace that law only to the revision of 1849, the hands of the county treasurer, is a mere trust in and the revision of 1858 retains the authority to collect the county for such purpose. And may not the State, such a tax, and also provides that this fuud derived the creator of such a trust, change its trustee, as well from licenses shall be paid into the county treasury, as the objects of the trust, at pleasure? The county to be used in support of the poor.

does not own the money. If it did, then it could dis(2) The plaintiff, county, adopted the county poor pose of it for any purpose in the interest of the county. system in 1877, before these moneys were collected, But it may be said even a trustee may sue for such and they, at least, could not have been an inducement trust moneys. Not after the creator or principal in to such action by the county board. It follows that the trust has taken such right away by appropriating the appropriation of this fund to the county for the trust moneys to another purpose, and appointing the support of the county poor was a mere gratuity, another trustee. which could be taken away at the pleasure of the Leg.

4th. Such a fund consists of public moneys belongislature.

ing to the State, as the result of the exercise of the Very many reasons suggest themselves for not treat-police power of the State, to control and regulate the ing this fund as the property of the county, or this sale of noxious liquors. It is in the nature of a penright as a vested one.

alty, and in all such cases the legislative will is su1st. The licensing of intoxicating liquors is not the preme as to its disposition. Maryland v. Baltimore, exercise of the taxing power of the State to raise rev- etc., R. Co., 12 Gill & J. 399; Coles v. Madison Co., enue, which must be governed by constitutional pro- Breese (Ill.), 154; Purmalee v. Lawrence, 48 Ill. 331; visions of grant and prohibition, but of the police Halliday v. People, 10 id. 214; Conner v. Bent, 1 Mo. power of the State. Knowlton v. Supervisors, 9 Wis. 235; East Hartford v. Hartford Bridge Co., 10 How. 410; Fire Department of Milwaukee v. Helfenstein, 16 (U. S.) 511; People v. Morris, 13 Wend. 325; Sloan v. id. 136; Carter v. Dow, id. 266; Tenney v. Leuz, id, 566; State, 8 Blackf. 361; Indianapolis v. Indianapolis Home, Cooley Const. Lim. 706.

etc., 50 Ind. 215; Dill. Mun. Corp., $ 63. As said by Chief Justice Shaw, in Com. v. Alger, 7 5th. Suppose the law of 1855 had provided that this Cush. 53: "All property in the Commonwealth is held fund should be paid into the State treasury on account subject to those general regulations which are neces- of its general fund, and this same law of 1883 had ausary to the common good and general welfare." Judgethorized the retention of the fund for the general use Cooley says: "All contracts and all rights, it is de of the towns, cities, and villages, would any one quesclared, are subject to this power, and not only may tion the legislative power to do so? And yet there regulations which affect them be established by the would be just as much vested right of the State, in State, but all such regulations must be subject to such a case, as in the present case of the county, which change from time to time, as the general well-being of is a merely subordinate political and municipal the community may require," etc. Cooley Const.body. Lim. 710. Under this power the Legislature imposes 6th. Even if this fund became the corporato propthe necessity of obtaining a license for a given sum, to erty of the county, absolutely by grant of the Legisbe paid into the treasury of the municipality granting lature, the Legislature could take it away. the same; and as a matter of course, the subordinate unsound and absurd proposition, that political power power of disposition of all such moneys must, under conferrred by the Legislature can become a vested the same power, be vested in the Legislature without right as against the government, in any individual or constitutional restraint. This police power of the body of men. It is repugnant to the genius of our inState not within constitutional provisions rests upon stitutions, avd the spirit and meaning of the Constithe maxim, sic utere tuo ut alienum non lædas, and it tution, for by that fundamental law all political rights must, of course, be within the range of legislative not then defined and taken out of the exercise of legaction to define the mode and manner in which islative discretion were intended to be left subject to every one may SO use his own as not to injure its regulation. If corporations can set up a vested others, and to control the product of such legis right against the government to the exercise of this lation. If under such an unlimited power, it would species of power, because it has been conferred upon be proper to consider expediency, then the municipal. them by the bounty of the Legislature, so may any ity which may derive some compensation by a license and every officer under the government do the same. fee from a questionable and nearly contraband trade, It is competent for the Legislature to transfer the confraught with many local evils, ought to have the bene-trol of the streets, even to a body foreign to the corporafit of such a fund. But this question is one of power, tion, and the moneys to repair the same. Dill. Mun. and not of expediency or policy; and the police power Corp. 292; Bristol v. New Chester, 3 N. H. 524; Benson is most ample to justify any legislation that is deemed v. Muyor, etc., 10 Barb. 223; People v. Walch, 96 Iii. best, not only in respect to the licensing of the sale of 232. Whenever a grant is made by the State, of propliquors, but in respect to the product of such licens- erty to a public corporation, which it cannot take ing.

away, it is regarded as a private company, with the 2d. If the county, under the existing law, had a members of the corporation invested personally with vested right to the moneys from this source, then the the right, and that is the only exception. Mount PleasLegislature could not repeal the license laws, or di- ant v. Beckwith, 100 U. S. 514; Meriweather v. Garrett, miuish the amount of license moneys, without an in- 102 id. 472. fringement of such right; and this may now be done 7th. By the law of 1855, the State employed the

“ It is an

« 이전계속 »