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the principal in the bond to commit the defalcation for which the sureties are sought to be charged. Bonta v. Mercer County Court, 7 Bush (Ky.), 576; Board of Supervisors v. Otis, 62 N. Y. 88; Jones v. United States, 18 Wall. 662; People's Building Association v. Wroth, 43 N. J. L. 70;

The principle on which the rule is founded is clearly stated in Board of Supervisors v. Otis, supra, at page 95. "There is no good reason why the public, having exacted security from one official for the faithful discharge of his duties, should be held by implication to have guaranteed to those sureties the faithful discharge by other public agents and officials of other duties having an incidental or collateral relation to the duties of the principal." GUY C. H. CORLISS.

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COMMRS. OF FREEDMAN'S ETC., V. EARLE. Where real estate of a decedent is chargeable with the payment of debts, and in case of a deficiency of personal property for that purpose may be subjected to sale and distribution as assets by the personal representative in the ordinary course of administration, the distinction between legal and equitable assets has ceased to be important. An execution creditor filing a bill to subject the equity of the debtor in his life-time, thereby acquires, and having pursued the property into court, is entitled to a preference as the reward of his diligence.

The lien is given by the court in the exercise of its jurisdiction to entertain the bill, and to grant the relief prayed for. MATTHEWS, J. The appellee recovered a judgment against Robert P. Dodge in the Supreme Court of the District of Columbia on January 4, 1878, for $7,700, with interest and costs, which was revived April 2, 1879, and on which a fi. fa. was issued April 9, 1879, and returned nulla bona.

On June 1, 1877, Dodge, the judgment debtor, being then seised in fee simple of certain real estate in the city of Georgetown, in this district, conveyed the same by deed duly recorded to Charles H. Cragin, Jr., in trust, to secure to Nannie B. Blackford payment of the sum of $2,000, with interest, according to certain promissory notes given therefor, and which were indorsed to Charles H. Cragin.

On April 10, 1879, the appellee filed his bill in equity, to which Dodge, Charles H. Cragin, Jr., Charles H. Cragin and Nannie B. Blackford were made defendants, the object and prayer of which were to take an account of the debt secured by the trust deed, and subject thereto, to have the premises sold and the proceeds of the sale applied to the satisfaction of the appellee's judgment.

The defendant's having appeared and answered, a decree according to the prayer of the bill was rendered June 11, 1879.

On December 27, 1879, leave therefor having been obtained, the appellants filed a petition in the cause setting forth the recovery of a judgment in their favor against the defendant Dodge in the sum of $7,386.47, with interest and costs, on February 11, 1879, in the Supreme Court of the District of Columbia, and that on Debember 2 a fi. fa. had been issued thereon and returned nulla bona December 19, 1879; and praying that they may be made parties complainant in the cause; that the equitable interest of Dodge in the real estate described be subjected to the satisfaction of their judgment; that the same be sold, and the proceeds of

sale be brought into court and distributed according to law. To this petition Dodge answered, admitting the recovery of the judgment as alleged.

On May 25, 1880, the trustee appointed for that purpose under the decree of June 11, 1879, reported a sale of the premises for $5,525, and the same on June 25, 1880, was confirmed. The cause was then referred to an auditor to stato the account of the trustees to sell, whose report showed an appropriation of the proceeds of the sale, after payment of costs, in payment to that extent of the appellee's judgment. On exceptions to this report a final decree confirming the same was made September 14, 1880, which decree on appeal to the General Term was affirmed on December 10, 1880. From that decree this appeal is prosecuted, and as ground of reversal it is assigned by the appellant that the proceeds of the sale of the equitable interest of Dodge, the judgment debtor, should have been distributed pro rata between the appellees and the appellants, instead of having been awarded exclusively to the appellee. It is contended on behalf of the appellants that the interest of the judgment debtor in the land being an equity merely, is not subject to execution at law; and as it can be reached by judgment creditors only through the intervention and by the aid of a court of equity, it becomes of the nature of equitable assets, and when sold the proceeds will be applied, according to the maxim that equality is equity, ratably among the creditors.

In the case of Morsell v. First Nat. Bk., 91 U. S. 357, it was decided that under the laws of Maryland in force in this district, judgments at law were not liens upon the interest of judgment debtors who had previously conveyed lands to a trustee in trust for the payment of a debt secured thereby. Mr. Justice Swayne said (p. 361): "The judgment in nowise affected the trust premises until the bill was filed. That created a lien in favor of the judgment creditors. There was none before." And it was accordingly held that in the distribution of the proceeds of sale the judgments must be postponed to debts secured by other deeds of trust made before the filing of the bill, but subsequent to the rendition of the judgments. But that decision leaves open the question arising here between judgment creditors seeking satisfaction in equity out of the debtor's equitable estate. It becomes necessary therefore to determine the nature of the right and the principle of distribution which arises from it.

At common law executions upon judgments could not be levied upon estates merely equitable, because courts of law did not recognize any such titles and could not deal with them. They could not be levied upon the estate of the trustee when the judgment was against the cestui que trust, for the same reason; and when the judgment was against the trustee, if his legal estate should be levied on, the execution creditor could acquire no beneficial interest, and if the levy tended injuriously to affect the interest of the cestui que trust the latter would be entitled to relief, by injunction or otherwise, in equity. Lewin on Trusts, 171, 186; 2 Spence Eq. Jur. 39.

But as courts of equity regarded the cestui que trust as the true and beneficial owner of the estate, to whose uses, according to the terms of the trust, the legal title was made subservient, so in its eyes the estate of the cestui que trust came to be invested with the same incidents and qualities which in a court of law belonged to a legal estate, so far as consistent with the preservation and administration of the trust. This was by virtue of a principle of analogy, adopted because courts of equity were unwilling to interfere with the strict course of the law, except so far as was necessary to execute the just intentions of parties, and to prevent the forms of the law from being made the means and instruments of wrong, injustice and oppressiou.

Thus equitable estates were held to be assignable, and could be conveyed or devised; were subject to the rules of descent applicable to legal estates; to the tenancy by the curtesy, though not to dower, by an anomalous exception afterward corrected by statute, 3 and 4 Will. IV, c. 105; and were ordinarily governed❘ by the rules of law which measure the duration of the enjoyment or regulate the devolution or transmission of estates; so that in general whatever would be the rule of law, if it were a legal estate, was applied by the Court of Chancery by analogy to a trust estate. 1 Spence Eq. Jur. 502.

As judgment creditors, after the statute of Westminster, 13 Ed. 1, ch. 18, were entitled by the writ of elegit to be put in possession of a moiety of the lands of the debtor until satisfaction of the judgment; and as it would be contrary to equity to permit a debtor to withdraw his lands from liability to his judgment creditors, this analogy was at an early date extended so as to give to judgment creditors similar benefits in respect to the equitable estate of their debtors; and as the remedies in favor of judgment creditors by way of execution upon the legal estate of their debtors have been enlarged, they have been imitated by a corresponding analogy as to equitable estates by courts of equity. This is in pursuance of the principle stated in a pregnant sentence by Lord Northington in Burgess v. Wheate, 1 Ed. 224-250, where he said: "For my own part, I know no instance where this court has permitted the creation of a trust to affect the right of a third person." It is embodied in the maxim, æquitas sequitur legem.

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It was accordingly held by Lord Nottingham in the anonymous case cited in Balch v. Wastall, 1 P. Wms. 445, that one who had a judgment, and had lodged a fieri facias in the sheriff's hands, to which nulla bona was returned, might afterward bring a bill against the defendant, or any other, to discover any of the goods or personal estate of the defendant, and by that means to affect the same;" and although Lord Keeper Bridgman, in Pratt v. Cole, Freem. Cas. in Ch. by Hovenden, 139, refused to permit a trust estate which had descended to the heir, to be extended upon an elegit on a judgment against his ancestor, the reporter adds, "but note that this hath not been taken to be a good de. murrer by the old and best practicers, as little according with good reason, for the heir-at-law is as much chargeable with the ancestor's judgment as the executor with the testator's debts, and so equity ought to follow the law."

Three years subsequently to this decision the statute of frauds, 29 Car. II, ch. 3, was enacted, the 10th section of which made trust estates in fee simple assets for the payment of debts, and subject to an elegit upon judgment against the cestui que trust. But this statute did not extend to chattels real, to trusts under which the debtor had not the whole interest, to equities of redemption, or to any equitable interest which had been parted with before execution sued out. Forth v. Duke of Norfolk, 4 Mad. 503. The statute of 5 Geo. 2, ch. 7, which made lands within the English colonies chargeable with debts, and subject to the like process of execution as personal estate, was in force in Maryland; but as it did not interfere with the established distinction between law and equity, it did not permit an equitable interest to be seized under a fieri facias. Lessee of Smith v. McCann, 24 How. 398. But as the effect of these statutes was to enlarge the operation of executions upon legal estates, so the corresponding equitable remedy as to equitable estates was also enlarged, and as to them equitable executions were enforced to the same extent to which executions at law were enforceable upon estates subject to seizure under them.

This mere equity, consisting in the right to obtain

the aid of the court in subjecting the equitable interest of the debtor, not being a lien at law or a specific charge in equity, nevertheless constitutes such an interest and creates such a privity as entitles the judgment creditors to redeem a prior mortgage, and succeeding thus to the rights of the mortgagee in England, where the doctrine of tacking prevailed, he was permitted to hold the whole estate as security for his judgment also, even when, by virtue of an elegit at law, he would be entitled only to a moiety of the debtor's land. And he could file his bill to redeem without previously issuing an execution. Neate v. Duke of Marlborough, 3 M. & C. 407. The reason for this, assigned by Lord Cottenham in the case just cited, is, that inasmuch as the court finds the creditor in a condition to acquire a power over the estate by suing out the writ, it does what it does in all similar cases; it gives to the party the right to come in and redeem other incumbrances upon the property.

But in other cases, when the object of the bill is to obtain satisfaction of the judgment by sale of the equitable estate it must be alleged that execution has been issued. This is not supposed to be necessary wholly on the ground of showing that the judgment creditor has exhausted his remedy at law; for if so, it would be necessary to show a return of the execution, unsatisfied, which however is not essential. Lewin on Trusts, 513. But the execution must be sued out; for if the estate sought to be subjected is a legal estate and subject to be taken in execution, the ground of the jurisdiction in equity is merely to aid the legal right by removing obstacles in the way of its enforcement at law (Jones v. Green, 1 Wall. 330); and if the estate is equitable merely, and therefore not subject to be levied on by an execution at law, the judgment creditor is bound nevertheless to put himself in the same position as if the estate were legal, because the action of the court converts the estate so as to make it subject to an execution, as if it were legal. The ground of the jurisdiction therefore is not that of a lien or charge arising by virtue of the judgment itself, but of an equity to enforce satisfaction of the judgment by means of an equitable execution. And this it effects by a sale of the debtor's interest subject to prior incumbrances, or according to circumstances, of the whole estate, for distribution of the proceeds of sale among all the incumbrancers according to the order in which they may be entitled to participate. Sharpe v. Earl of Scarborough, 4 Ves. 538.

It is to be noted therefore that the proceeding is one instituted by the judgment creditor for his own interest alone, unless he elects to file the bill also for others in a like situation, with whom he chooses to make common cause; and as no specific lien arises by virtue of the judgment and execution alone, the right to obtain satisfaction out of the specific property sought to be subjected to sale for that purpose dates from the filing of the bill. "The creditor," says Chancellor Walworth, in Edmeston v. Lyde, 1 Paige Ch. 637-640, "whose legal diligence has pursued the property into this court, is entitled to a preference as the reward of his vigilance:" and it would "seem unjust that the creditor, who has sustained all the risk and expense of bringing his suit to a successful termination, should in the end be obliged to divide the avails thereof with those who have slept upon their rights or who have intentionally kept back that they might profit by his exertions when there could no longer be any risk in becoming parties to the suit." As his lien begins with the filing of the bill, it is subject to all existing incumbrances, but is superior to all of subsequent date. As was said by this court in Day v. Washburn, 24 How. 252, "It is only when he has obtained a judgment and execution in seeking to subject the property of his debtor in the hands of third persons, or to reach prop

erty not accessible to an execution, that a legal preference is acquired, which a court of chancery will enforce."

This is in strict accordance with the analogy of the law, as it was recognized that the judgment creditor who first extends the land by elegit is thereby entitled to be first satisfied out of it. It is the execution first begun to be executed, unless otherwise regulated by statute, which is entitled to priority. Rockhill v. Hanna, 15 How. 189-195; Payne v. Drew, 4 East, 523. The filing of the bill in cases of equitable execution is the beginning of executing it.

The passage cited from the opinion in Day v. Washburn, supra, speaks of the preference thus acquired by the execution creditor as a legal preference. It was distinctly held so to be by Chancellor Kent in McDermott v. Strong, 4 Johns. Ch. 687. He there said: "But this case stands on stronger ground than if it rested merely on the general jurisdiction of this court, upon residuary trust interests in chattels, for the plaintiffs come in the character of execution creditors, and have thereby acquired by means of their executions at law, what this court regards as a legal preference or lien on the property so placed in trust;" and "admitting that the plaintiffs had acquired by their executions at law a legal preference to the assistance of this court(and none but execution creditors at law are entitled to that assistance), that preference ought not in justice to be taken away. Though it be the favorite policy of this court to distribute assets equally among creditors, pari passu, yet whenever a judicial preference has been established by the superior legal diligence of any creditor that preference is always preserved in the distribution of assets by this court." The decision in that case was made giving the priority to the execution creditors who filed the bill, when otherwise, by virtue of an assignment by the debtor, who was insolvent, the proceeds of the equitable interest sought to be subjected would have been distributed ratably among all credit

ors.

This case, often cited and never questioned, shows that the doctrine of equitable assets, to which we are referred by the appellant as the ground of his claim, has no application to the case. Ordinarily and strictly the term equitable assets applies only to property and funds belonging to the estate of a decedent, which by law are not subject to the payment of debts, in the course of administration, by the personal representatives, but which the testator has voluntarily charged with the payment of debts generally, or which being non-existent at law, have been created in equity under circumstances which fasten upon them such a trust. Adams on Equity, 254. But as was said by Chancellor Kent in Williams v. Brown, 4 Johns. Ch. 682, the doctrine "does not apply to the case of a debtor in full life, for there is no equitable trust created and attached to the distribution of the effects in the latter case."

Property held by a trustee for the testator is legal assets, for although the benefit of the trust, if resisted, cannot be enforced without equitable aid, yet the analogy of the law will regulate the application of the fund.

To constitute equitable assets the trust imposed by the party or by the court must be for the benefit of creditors generally.

It is true that in Moses v. Murgatroyd, 1 Johns. Ch. 119; 7 Am. Dec. 478, Chancellor Kent held surplus money arising from the sale of mortgaged premises to be equitable assets, but that was in a case where the mortgagor was deceased and the fund was in a court of equity for distribution, and when the judgment to which priority was refused was confessed by the administrator. In Purdy v. Doyle, 1 Paige, 558, the rule was stated by Chaucellor Walworth in these words: "If it is such property as the judgment creditors

could obtain a specific or general lien on at law they are entitled to the fruits of their superior vigilance so far as they have succeeded in getting such lien. But if the property was in such a situation that it could not be reached by a judgment at law, and the fund is raised by a decree of this court, and the creditors are obliged to come here to avail themselves of it, they will be paid on the footing of equity only."

But a specific lien, whether legal or equitable, on property liable as equitable assets, was always respected by courts of equity. Freemoult v. Dedire, 1 P. W. 429; Finch v. Earl of Winchelsea, id. 277; Ram on Assets, 318. And Lord Chancellor Parker, in Wilson v. Fielding, 2 Ver. 763, 10 Mod. 426, drew the distinction between property which is assets in a court of equity only and certain property which a creditor cannot come at without the aid of a court of equity. In that case the mortgage debt had been paid out of the persoual estate by the executor, thus exonerating the mortgaged premises which had descended to the heir. The unsatisfied creditors filed a bill to require the heir-at-law to refund, which was "a matter purely in equity, and a raising of assets where there were none at law."

And see Atlas Bank v. Nahant Bank, 3 Metc. (Mass.) 589; Codwise v. Gelston, 10 Johns. 522; Tenant v. Strong, 1 Rich. Eq. 221; 1 Story Eq.Jur., § 553; 2 White & Tud. Lead. Cas. in Eq., pt.1, 390.

We have already seen that the filing of a bill by an execution creditor to subject the equity of the debtor in his life time created a lien and gave him a legal preference. And in the English chancery, although equities of redemption after the death of the mortgagor are classed as equitable assets, the rule of distribution, pari passu, is modified in its application to them in respect to judgment creditors by permitting them to retain their priority over other claims, because if such priority were not allowed the judgment creditor might acquire it by redeeming the mortgage. Adams Eq. 256. Legal assets, according to the definition of Mr.Justice Story, 'Eq.Jur., § 551, "are such as come into the hands and power of an executor or administrator or such as he is intrusted with by law virtute officii to dispose of in the course of his administration. In other words, whatever an executor or administrator takes qua executor or administrator, or in respect to his office, is to be considered legal assets." And this is the modern doctrine in England. In Lovegrove v. Cooper, 2 Sm. & Giff. 271, it was held for that reason that the proceeds of real estate directed to be sold for the payment of debts, and paid by the purchaser into court, were legal and not equitable assets.

It follows from this that in this country generally, where the real estate of a decedent is chargeable with the payment of debts, and in case of a deficiency of personal property for that purpose may be subjected to sale and distribution as assets by the personal representative in the ordinary course of administration, the distinction between legal and equitable assets has ceased to be important. In every such case the equity of redemption could only be applied after sale by the executor or administrator in the ordinary course of administration, subject to whatever liens may have been imposed upon it in the life-time of the mortgagor, and among them, as we have seen, is that of an execution creditor who has filed his bill to subject it to the payment of his judgment. So in other cases where the rule of equality in distribution as to equitable assets applies, as in cases of assignments by the debtor himself for the payment of debts generally, and in cases of bankruptcy and insolvency, except as otherwise expressly provided by statute, the estate passes, subject to existing lieus, including that of an execution creditor who had previously filed a bill to subject the equitable interest of the debtor, and his priority is re

spected and preserved. The lien is given by the court in the exercise of its jurisdiction to entertain the bill and to grant the relief prayed for; and to distribute the proceeds of the sale for the benefit of others, equally with the execution creditor first filing the bill, would be to contradict the very principle of the jurisdiction itself, and defeat the very remedy it promised, for the fruits of the litigation, according to the rule of equality, would have to be divided, not only with other judgment and execution creditors, but as well with all creditors, whether their claims had been reduced to judgment or not.

For these reasons the decree appealed from is affirmed.

SALE OF LIQUOR SUBJECT TO LEGISLATIVE CONTROL--LICENSE NOT A TAX.

WISCONSIN SUPREME COURT, FEBRUARY 19, 1884.

RICHLAND Co. v. VILLAGE OF RICHLAND CENTER. The legislative appropriation to the county of all the funds collected from the sale of licenses, to be used for the support of the county poor, is a mere gratuity, which can be taken away at the pleasure of the Legislature, and the county has no vested right in such fund; otherwise the Legislature could not repeal the license laws or diminish the amount of the fund therefrom.

The licensing of intoxicating liquors is not the exercise of the taxing power of the State to raise revenue, but of the police power.

The sale of intoxicating liquors and the fund therefrom is under the control of the Legislature in every respect. Municipal corporations have no private powers or rights as against the State; their contracts with third parties will be protected, but beyond that their powers have been given by the State, and may be taken away at pleasure. PPEAL from Circuit Court, Richland county.

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Michael Murphy, for respondent.

J. H. Berryman, for appellant.

ORTON, J. Section 32, ch. 34, Rev. Stat. 1858, provided that the majority of the board of supervisors of any county may determine to abolish all distinction between county poor and town poor in such county, and have the expense of maintaining all the poor therein as a county charge, and the board shall have authority to levy and collect on the taxable property in such county such expense in the same manner as other county charges. Section 16, ch. 35 of the same revision, provided that in counties where the county system of supporting the poor has been adopted, all moneys derived from licenses for the sale of intoxicating liquors shall be paid by the treasurers of the towns, cities, and villages, into the treasury of the county, semi-annually, and they shall be applied solely for the purpose of defraying the pauper expenses of said county. In 1877, the plaintiff, Richland county, by force of the first above statute, adopted the county system of supporting the poor. In 1882 the village of Richland Center, in said county, collected for licenses for the sale of liquors, the sum of $560, and failed to pay the same over to the county treasurer, and the trustees of said village, by resolution, determined to retain said fund to be expended for general village purposes. Section 1, ch. 156, of the Laws of 1883, provided that "the action of any village trustees in counties where the county system of supporting the poor shall have been adopted, providing for a different way of disposing of the license moneys than their payment into the county treasury for the support of the poor of the county, is hereby in all respects legalized." This last statute makes it optional with any town, city or

village, by ordinance or resolution, to devote this fund to other purposes than the support of the poor of the county in which the county system of supporting the poor had been adopted, and legalizes any such diversion of said fund which had already been made. The portion of this fund collected by the defendant town in 1882 had been retained and expended for common village purposes, by resolution of its trustees, and was as clearly within the power of disposition by the Legislature as any fund that might thereafter be derived from the same source. So far as the plaintiff county is concerned with it, it was a fund already collected. and liable to be paid over to the county semi-annually, and still is in the town treasury, the payment of which could be enforced by action at law; so that the act of 1883 was not really, though in force, a legalizing act. It was rather an act providing that all of such fund now in the hands of the village treasurer, and that may hereafter come into his hands, from licenses of the sale of liquors, may be devoted to any purpose which the village trustees, by resolution, may determine. It is not in substance a retroactive act, but an act applying as well to the fund already collected as to that to be hereafter collected from the same source. The element of retroaction is not, in the act, in any proper sense, though the language is of a legalizing significance.

The resolution of the trustees diverting this fund already collected from the purpose prescribed by the then existing law, and its actual evpenditure for some other purpose, would not place the village in default so as to give the county a right of action for it, if any such right they may have; there must have been a demand of the moneys for that year and a refusal to pay by the village treasurer before any action could have been brought for them, and before the act of 1883 took effect, in order to raise the question of a vested right of action. The question of a vested right of action for, depended upon a vested right of property in this fund after the act of 1883. There is no reason for the distinction between the fund already in the hands of the village treasurer and that which might be thereafter collected from such source, so far as the operation and effect of the act of 1883 is concerned. The vested right of the county is in the fund and in that not collected as much as in that already collected. It is only the fund paid into the village treasury that that act attempts to dispose of for general village purposes, whether already paid in or to be paid in thereafter. Such moneys are not available for any purpose until they are collected from licenses. The right of the county does not attach to them until they are collected. The act of 1883 is no more unconstitutional as violating the vested right of property of the county in this fund paid to the village treasurer than in that not collected, for it is by the law existing previously that the whole of such fund is given to the county to aid in the support of the poor. So we say that this act is in no sense retroactive, so far as this plaintiff county is concerned. This act lays its hand upon the whole of this fund, present and future, and passes it over to the village to be expended as it may deem expedient for the general benefit, in violation of the right of the county to it by a former law, as claimed by the plaintiff. We shall say no more of the vested right of action for this fund, than that if the Legislature can take away from the county its vested right of property in this fund on hand and to be collected in the future, then of course the right of action for the same is gone. We shall therefore confine ourselves to considering whether the county, plaintiff, had such a vested right of property in this fund that the Legislature could not take away.

It may be argued that this right is in the nature of a contract, because it formed the consideration, in part

at least, for the action of the board of supervisors of the county in adopting the county system of supporting the poor, relying upon this fund to aid the county in so doing.

at the pleasure of the Legislature, by giving the authorities power to grant or refuse such license at pleasure. State v. Downer, 21 Wis. 274. If these license moneys of the village belong to the county, they cannot be diminished by the village board fixing a lower rate of licenses. If they can be diminished, they may be taken away.

3d. The right of property in goods or money implies a complete dominion over them, to have and possess, and to sell or give them away at the pleasure of the owner. This is elementary law. This fund appro

(1) It may be answered that the law authorizing the adoption of such system also authorized the county to assess a tax upon the property of the county to defray such expenses, without any reference to this fuud; and indeed this fund was not then devoted by law to such purpose, and not until 1855; and since it has been, the same provision for taxation 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, and the revision of 1858 retains the authority to collect such a tax, and also provides that this fund derived from licenses shall be paid into the county treasury, to be used in support of the poor.

(2) The plaintiff, county, adopted the county poor system in 1877, before these moneys were collected, and they, at least, could not have been an inducement to such action by the county board. It follows that the appropriation of this fund to the county for the support of the county poor was a mere gratuity, which could be taken away at the pleasure of the Legislature.

Very many reasons suggest themselves for not treating this fund as the property of the county, or this right as a vested one.

1st. The licensing of intoxicating liquors is not the exercise of the taxing power of the State to raise revenue, which must be governed by constitutional provisions of grant and prohibition, but of the police | power of the State. Knowlton v. Supervisors, 9 Wis. 410; Fire Department of Milwaukee v. Helfenstein, 16 id. 136; Carter v. Dow, id. 266; Tenney v. Leuz, id. 566; Cooley Const. Lim. 706.

As said by Chief Justice Shaw, in Com. v. Alger, 7 Cush. 53: "All property in the Commonwealth is held subject to those general regulations which are necessary to the common good and general welfare." Judge Cooley says: "All contracts and all rights, it is declared, are subject to this power, and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require," etc. Cooley Const. Lim. 710. Under this power the Legislature imposes the necessity of obtaining a license for a given sum, to be paid into the treasury of the municipality granting the same; and as a matter of course, the subordinate power of disposition of all such moneys must, under the same power, be vested in the Legislature without constitutional restraint. This police power of the State not within constitutional provisions rests upon the maxim, sic utere tuo ut alienum non lædas, and it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others, and to control the product of such legislation. If under such an unlimited power, it would be proper to consider expediency, then the municipality which may derive some compensation by a license fee from a questionable and nearly contraband trade, fraught with many local evils, ought to have the benefit of such a fund. But this question is one of power, and not of expediency or policy; and the police power is most ample to justify any legislation that is deemed best, not only in respect to the licensing of the sale of liquors, but in respect to the product of such licensing.

2d. If the county, under the existing law, had a vested right to the moneys from this source, then the Legislature could not repeal the license laws, or diminish the amount of license moneys, without an infringement of such right; and this may now be done

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the hands of the county treasurer, is a mere trust in the county for such purpose. And may not the State, the creator of such a trust, change its trustee, as well as the objects of the trust, at pleasure? The county does not own the money. If it did, then it could dispose of it for any purpose in the interest of the county. But it may be said even a trustee may sue for such trust moneys. Not after the creator or principal in the trust has taken such right away by appropriating the trust moneys to another purpose, and appointing another trustee.

4th. Such a fund consists of public moneys belonging to the State, as the result of the exercise of the police power of the State, to control and regulate the sale of noxious liquors. It is in the nature of a penalty, and in all such cases the legislative will is supreme as to its disposition. Maryland v. Baltimore, etc., R. Co., 12 Gill & J. 399; Coles v. Madison Co., Breese (Ill.), 154; Parmalee v. Lawrence, 48 Ill. 331; Halliday v. People, 10 id. 214; Conner v. Bent, 1 Mo. 235; East Hartford v. Hartford Bridge Co., 10 How. (U. S.) 511; People v. Morris, 13 Wend. 325; Sloan v. State, 8 Blackf. 361; Indianapolis v. Indianapolis Home, etc., 50 Ind. 215; Dill. Mun. Corp., § 63.

5th. Suppose the law of 1855 had provided that this fund should be paid into the State treasury on account of its general fund, and this same law of 1883 had authorized the retention of the fund for the general use of the towns, cities, and villages, would any one question the legislative power to do so? And yet there would be just as much vested right of the State, in such a case, as in the present case of the county, which is a merely subordinate political and municipal body.

6th. Even if this fund became the corporate property of the county, absolutely by grant of the Legislature, the Legislature could take it away. "It is an unsound and absurd proposition, that political power conferrred by the Legislature can become a vested right as against the government, in any individual or body of men. It is repugnaut to the genius of our institutions, and the spirit and meaning of the Constitution, for by that fundamental law all political rights not then defined and taken out of the exercise of legislative discretion were intended to be left subject to its regulation. If corporations can set up a vested right against the government to the exercise of this species of power, because it has been conferred upon them by the bounty of the Legislature, so may any and every officer under the government do the same. It is competent for the Legislature to transfer the control of the streets, even to a body foreign to the corporation, and the moneys to repair the same. Dill. Mun. Corp. 292; Bristol v. New Chester, 3 N. H. 524; Benson v. Muyor, etc., 10 Barb. 223; People v. Walch, 96 Ill. 232. Whenever a grant is made by the State, of property to a public corporation, which it cannot take away, it is regarded as a private company, with the members of the corporation invested personally with the right, and that is the only exception. Mount Pleasant v. Beckwith, 100 U. S. 514; Meriweather v. Garrett, 102 id. 472.

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7th. By the law of 1855, the State employed the

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