Citizens' National Bank v. Brown. that this rule should apply to notes and bills generally, where lost. In Lamson v. Pfaff, 1 Handy, 449 (which was upon a lost bill of exchange), he suggests, that in every case upon a lost bill or note, whether lost before or after maturity, it is but fair to require the plaintiff to indemnify the maker, as well against charges and expenses of possible litigation, as against a liability to pay a second time; that the liability to pay where the paper is not produced should be placed on equitable instead of legal ground, and that the indemnity required "might be suited to and measured by the exigencies of the particular case," the party being required to add sureties to the undertaking or not, as the circumstances indicated to be proper, in the exercise of a just discretion. Judge Story, in his work on Equity Jurisprudence, secs. 85 and 86, lays down the same principle as the true rule. The case here does not require so extreme a rule, but if it be a proper rule as to all lost instruments, a fortiori is it a proper one in a case like the present. In England recovery cannot be had at law on a note. lost before maturity, whatever the proof may be as to indorsement. Ramuz v. Crowe, 1 Exch. 167. In California, in Massachusetts, and in New York (by statute), security is required. Welton v. Adams, 4 Cal. 37, is in point. The action was like the one at bar, except that in one particular it was stronger for the plaintiff. Instead of a lost certificate, it was proven to have been destroyed. The judge, in the opinion, says: “It is undeniable that, upon payment of a note or bill, the maker or acceptor has a right to its possession, as a voucher of its payment. Can this right be taken away without an equivalent? It is said that proof of its destruction is a sufficient assurance that it can never afterwards appear. But, when we reflect upon the uncertainty and fallibility of all human testimony, it looks unjust to force the risk of its reappearance upon a party totally innocent of fault, and who has not bargained with a view to any mischance which may, in the future, result to his injury. I think there never can be, to him, that assurance of the loss or destruction of the paper, as should force him, against his will, to take the peril, either of defending an action thereafter, or of repaying the amount. The Citizens' National Bank v. Brown. negligence or misfortune of the holder ought not to give him the right of casting such a burthen upon the maker." This doctrine was approved in Price v. Dunlap, 5 Cal. 483, and in Randolph v. Harris, 28 Cal. 561. It is insisted that the question is disposed of in favor of defendant in error by Thayer v. King, 15 Ohio, 242. With due respect, I think this is not so, but that, on the contrary, this court is at liberty to apply to the case at bar a reasonable rule, and in doing so would not conflict with that decision. The authoritative law of that case is the judgment rendered upon the facts. The action was upon notes due the day of their date, indorsed from one to four years afterward, and soon thereafter lost. Manifestly, the court was dealing with a case essentially different from the one at bar. And yet the rule we contend for is fully recognized. The syllabus is: “An action will lie, at the suit of the owner of negotiable paper, which has been lost after it fell due, at law; but if lost before due, the remedy is in chancery, where the owner can be required to indemnify the maker." Suggesting that it is the judgment on the facts, which controls, rather than the language of the judge who delivers the opinion, yet I direct attention to the following, taken from the opinion of Judge Read, which seems to have been omitted from the majority opinion in this case : "Now, it is a well recognized principle, that negotiable paper received after it is due, is charged with all the equities existing between the original parties. So, if payment be made to the original holder, and a recovery be had by him, it would constitute a complete bar to another action brought by any person who should receive it after due. But, if it be lost before due, and the original holder commence suit, there is a possibility that the paper may be outstanding in the hands of an innocent holder-upon which recovery could be had; and hence, the law will not permit, in such case, a recovery to be had until complete indemnity is furnished against such possibility. Now, a court of law has not the power to compel this indemnity; and, hence, is forbidden to give judgment or to entertain jurisdiction of the case. A court of law proceeds upon fixed principles, and if the party Citizens' National Bank v. Brown. is entitled to judgment, he is entitled to execution without limit or restraint. But, a court of equity, being called upon to give its aid, will guard the rights of all parties, and will not permit a recovery until the party seeking it will guard the opposite party from a danger which exists by the misfortune of the very person seeking its aid." It will be noted that the learned judge gives controlling importance to the consideration that "there is a possibility that the paper may be outstanding in the hands of an innocent holder." So, I contend here, that there is a possibility that this certificate may be in the hands of an innocent holder, and the court should not permit a recovery by the plaintiff until he shall guard the defendant from a danger which exists by the misfortune of the plaintiff himself. The instance of a note payable to bearer and lost after due, is adduced, and it is suggested that such a note requires a physical presentation as much as a certificate of deposit "payable on its return." The suggestion hardly aids the argument. The case put does not differ, in principle, from Thayer v. King. We are dealing in this case with an instrument lost before due, and one which required presentation and demand to cause it to become due. In conclusion, I must express regret that the court did not embrace the present opportunity to adopt a just and equitable rule as applicable to this class of cases. A rule of law which, in a case like the one at bar, relieves a party guilty of culpable negligence of all risk of the paper reappearing and serving as the basis of a claim against the maker in such form as to require him to defend an action and possibly repay the amount, and results in a record which screens such negligent party from liability in case such repayment is enforced, and places all that risk upon a party totally innocent of fault, and who not only has not agreed to assume it, but has distinctly and in terms bargained against it, is, I submit, unjust and inequitable. MINSHALL, J., concurs in the dissenting opinion. Marmet v. The State. Guire tax not prop MARMET . THE STATE. HILL v. CITY OF CINCINNATI. HAMMERLY v. CITY OF CINCINNATI. Constitutional law-License of occupations-Municipal corporations. 1. The general assembly has power (except as limited by section 18 of the 2. The provisions of sections 1, 2, 22, 26 and 35 of the act of April 16, 1883 (Decided March 22, 1887.) ERROR to the District Court of Hamilton County. The plaintiff in error, Marmet, was convicted and fined in the police court of the city of Cincinnati, upon a charge founded on provisions of the act of April 16, 1883 (80 Ohio L. 129), amended March 25, 1884 (81 Ohio L. 78), entitled "an act to provide a license on trades, business and professions carried on in cities of the first grade of the first class, and providing for the enforcement and collection of fines and penalties for carrying on business without license, and for other purposes," the charge being that he had used vehicles upon the streets of the city of Cincinnati without first obtaining a license therefor. A petition in error was filed in Marmet v. The State. the court of common pleas of Hamilton county to reverse the judgment of conviction. The last named court affirmed the judgment below, and petition is filed here to reverse both judgments. Each of the other plaintiffs in error brought suit to collect money claimed to have been illegally exacted by the officers of the city in compelling the taking out of license. The trial court below sustained demurrers to the several petitions, and dismissed the actions, and the district court affirmed those judgments. Hill is owner of a large number of drays and sprinkling carts used upon the streets of the city of Cincinnati. Hayman is keeper of a livery stable, and runs vehicles. Hammerly is the proprietor of a concert hall. Baker & Goodhue, E. G. Hewitt and L. H. Swormstedt, for plaintiffs in error. Coppock, Cox & Gallagher, city solicitors, and Wulsin & Perkins, for defendants in error. SPEAR, J. The ground urged for reversal of the judgments is that the law referred to is invalid because in violation of the constitution. If the law, as to the provisions involved in this inquiry, is shown to be clearly, palpably in conflict with the constitution, so that there is no doubt or hesitancy in the mind of the court, it should be so held. But if there be any doubt upon the subject, that should be solved in favor of the law, and the court should decline to interfere; for if a law has been enacted which is simply unwise and does not infringe upon any constitutional limitation, the only remedy is by resort to the law-making power to procure its repeal. The first section of the act provides, "that in cities of the first grade of the first class, no person shall be engaged in any trade, business or profession hereinafter mentioned, until he or she shall have obtained a license therefor, as hereinafter provided." The second section provides that "any person who shall violate any of the provisions of this act, shall be |