rated street cars for the conveyance of passengers upon any lines of horse or city railway within the city of Chicago, to obtain a license in the month of April, of each year, and pay for the same the sum of fifty dollars for each car operated or run. A penalty was imposed for failing or refusing to take out a license. The company obtaining the license was required to place conspicuously in every car so operated and run in the city, a certificate signed by the city clerk, and giving the number of the car, and stating that a license had been obtained, and that the necessary fee had been paid; and a penalty was also imposed for a failure to post or keep such certificate in the car.

The plaintiff, a stockholder in the Chicago City Railway Company, filed this bill to enjoin the payment of the license fee required by the ordinance. The defendants demurred.

DRUMMOND, J.

The only question in the case is, whether the crdinance in question is valid. Several corporations operating street cars in the city of Chicago, have been authorized to construct their railways and operate them, by various ordinances which have been from time to time passed; and these ordinances have been recognized and affirmed, many of them by the legislature of the state. By virtue of these ordinances and acts of the legislature, the companies have the right to run their cars for the transit of passengers through the city. It cannot be said, therefore, that the effect of the ordinance which has been specially referred to, although it is called a license, would be to give the companies the privilege of running their cars. That, they have by virtue of the ordinance and the acts of the legislature. There can be no doubt that the legislature would have the right, under the Constitution of 1848, which was in force when the franchise was granted, to tax the corporations for the use of their franchise. That is a tax which is entirely independent of the value of the cars, tracks and other tangible property of the corporations, and so treated by the Constitutions of 1848 and 1870. But there are many difficulties with this branch of the subject. There are certain conditions required by the Constitution of 1870 as pre-requisites to the imposition of a tax of this kind, even conceding that the legislature has authorized the city to impose the tax, and I, therefore, without giving any decided opinion upon that part of the case, prefer to place my decision upon another ground, and to sustain the ordinance as a regulation of the police power of the city. This is always a subsisting power which it is generally held cannot be transferred by the city, but is inherent in its municipal organization. There can be no controversy about the power of the city over many things connected with the operation of the city railways. Admitting that because of the price of fare agreed upon there can be no change in that, yet by virtue of its police power, the city can, to a great extent, regulate the running of the cars, prescribe rules and laws as to speed, stoppage and other things connected with

the operation of the railway. This has not been questioned by the counsel of the plaintiff; but it is claimed this cannot be considered a police regulation, because it is manifestly the exercise of the taxing power of the city. It is argued that the price of the license is so large that the intent is manifest. It is very difficult to lay down any absolute rule upon this subject, and to hold that a particular sum may be within the police power of the city, and another sum beyond the power, and a mere tax.

By the general law of 1872, for the incorporation of cities and villages in this state, it is provided that the city council in cities shall have authority to license hackmen, draymen, omnibus drivers, cabmen, expressmen, and all others pursuing like occupations, and to prescribe their compensation. This was obviously intended as conferring a police power upon the city council in relation to the various classes named in the statute. This is a power that has been uniformly exercised, and construing the statute literally, cannot well be questioned. But it is claimed that it does not include the street railway, because it is not pursuing an occupation like any of those named.

Omnibuses may be licensed. They may pass over even the same streets as those occupied by the horse railways, and they may carry passengers in the same manner. The only distinction which can be called substantial between the two classes of occupation, is that one carriage goes upon iron rails, in a regular track, with wheels, and the other carriage goes with wheels upon the ordinary street way.

The Supreme Court of Pennsylvania has held that these street railway carriages are of a like nature as omnibuses, and there can be no doubt, I think, of the right of the city to demand a license from all omnibus drivers, and to include every omnibus which may belong to a particular company or corporation, and to require the payment of a license for such omnibus that may be so owned and used.

The Court of Appeals of New York, in the case of Mayor v. Second Avenue Railroad, 32 N. Y. 261, held that an ordinance of the city of New York, in many respects like this, was invalid, as an attempt, through color of a license, to impose a tax upon the railroad company, refusing to treat it as an exercise of the police power of the city. The price charged in that case for the license was the same as in this.

In the case of Frankford & Philadelphia Passenger Co. v. City of Philadelphia, 58 Penn. St. 119, where the license fee was the same, and Johnson v. Philadelphia, 60 Penn. St. 445, the Supreme Court of Pennsylvania took a different view. of such an ordinance, and treated it as a police regulation merely; and such seems to be the view of the Supreme Court of this state, in the case of the Chicago Packing & Provision Co. v. City of Chicago, 88 Ill. 221.

In the case of Frankford & Philadelphia Passenger Co. v. City of Philadelphia, the city obtained its power to impose the license from a

statute substantially similar to that under which the city of Chicago claims the power in this case. In that case the Act of the legislature declared that the City Council of Philadelphia should have authority to provide for the proper regulation of omnibuses, or vehicles in the nature thereof, and to this end "it shall be lawful for the council to provide for the issuing of licenses to such and so many persons as may apply to keep and use omnibuses, or vehicles in the nature thereof, and to charge a reasonable annual or other sum therefor." In that statute, the words "vehicles in the nature thereof;" in this, the words "pursuing a like occupation" are used. I cannot see that there is any substantial distinction in that respect between the two statutes.

In the case in 88 Illinois, already referred to, the corporation was organized and doing business under the laws of this state. A question arose in that case as to the power of the city to issue a license. It was denied, in the argument of the case, that the power existed, but the Supreme Court held that under the power "to regulate the management" of the business, the city had the right to issue a license, and to prescribe the compensation. That was also under the same law, the Act of 1872, which conferred power upon cities to grant licenses, and regulate omnibus drivers, and all others pursuing a like occupation. and to prescribe their compensation. The Supreme Court of this state decides in that case that the power to require a license is one of the means of regulating the exercise of a pursuit or business; that there are other means that might be adopted to accomplish the purpose, but that these municipal authorities are not restricted as to the means that they shall employ to regulate the business; and various authorities are cited by the court in support of the view which they take; and they repeat the ruling which had been previously made that a license was not, in the constitutional sense of the term, a tax.

The Supreme Court must also have considered. and passed upon a question which has been discussed in this case, namely: whether or not the act which gave the authority to the city to license, was a general law under the constitution of this state; and they held that it was, and that it was intended to apply to all cities which might adopt it.

It is true that was a case of licensing a business which was generally admitted to be injurious in its character to those near the place where it was carried on; but it was a question of power, and the point in controversy was whether the city of Chicago had the right to exercise the power of licensing. The license fee demanded in that case was one hundred dollars. It seems to me that the question involved in this case arose substantially in that, and it was decided by the Supreme Court of the state that it was a valid exercise of the power to regulate a particular business. That is also the view taken by the Supreme Court of Pennsylvania in the cases referred to.

In view of these decisions and of several de

cisions of the Supreme Court of the United States within the last few years (Munn v. Illinois, 94 U. S. 113, and others), I think the weight of authority is in favor of regarding this as a police regulation.

One of the difficulties I have had with the case, has been whether it ought not to be regarded as a tax for revenue under the form of a license. It may be conceded that the argument is strong. for treating it as a revenue measure; but as I before stated, there are some objections which I consider very weighty, and which would prevent me at this time from placing the decision on that ground. It may be admitted that, viewing it as a police regulation requiring the payment of a fee for the license, in amount it goes to the very verge of the exercise of police power; but as other courts have held that such a tax did not exceed that limit, I cannot hold that it does in this case; and, therefore, I shall, as at present advised, sustain the ordinance in question as a valid exercise of the police power of the city council.

There have been some arguments used by counsel which, I think do not properly apply to the pleadings. It is insisted that the court must construe this as a tax, and not a mere police regulation. It is admitted that the Court of Appeals of New York did construe a similar license fee as a tax. The Supreme Court of Pennsylvania has given a different construction, and held it to be a police regulation. There is nothing in the bill by which the court can regard it absolutely as the exercise of the taxing power of the city. There is nothing in the bill which would authorize the court to hold, if it were a tax, that it was in violation of the Constitution of 1870, as not being uniform upon the particular class on which it operates. It is urged that it cannot be treated as a tax, because, if so, it would not be within this requisition of the Constitution of 1870, because the street railways come in direct competition with some of the steam railways; as that of the Illinois Central and the North-Western to Hyde Park and Evanston. There is nothing in the pleadings which would warrant the court in considering these facts, unless the court should take judicial notice that they do thus come in competition, without any allegation in the pleadings. Under the authorities, and upon the statements contained in the pleadings, the court cannot necessarily construe this as a tax. The court is at liberty, I think, to construe it as a police regulation.

These views have been given for the purpose of enabling the parties, if they desire, to take the case to the Supreme Court of the United States. The District Judge who heard the application for an injunction in the first instance, and granted it, is inclined to hold, as I understand, that this was not the proper exercise of the police power. I hold, for the purpose of deciding the case, that it is; and if the case is to be determined by the pleadings as they at present stand, it can be certified up to the Supreme Court as upon a division of opinion between the judges. If, however, the counsel desire to raise some of

the questions which have been discussed in the argument, I think it would be advisable for them to amend the bill, and if they wish, leave will be granted for that purpose.

SUPREME COURT OF PENNSYLVANIA.

MIZNER v. SPIER.

January 3d, 1881.

An endorsement made upon a note at its date, as follows: "I guarantee the payment of the within note for value received," is a guaranty, and not an original undertaking.

Error to the Court of Common Pleas of Mercer County.

GORDON, J.

The learned judge who tried this case, whilst admitting that his ruling on the facts was wrong, yet refused a new trial, because, as he thought, the writing under consideration being in fact an original undertaking, and not as upon its face what it purported to be, a guaranty, a retrial would but result in a verdict the same as that already rendered. Whilst we grant that the arguments leading to this conclusion are not without plausibility, yet upon a careful review of the authorities, we have been led to a different opinion. The undertaking in controversy was appended to three several judgment notes, drawn by M. R. Kerney, H. Montgomery, and Wm. Corll, to Seth Spier, plaintiff, and reads as follows: "I guarantee the payment of the within note, for value received. L. H. Mizner." Without doubt this is technically a guaranty, and unless there is in the case something which we have failed to discover, by which its legal meaning is altered, it must be so treated. In Isett v. Hoge, 2 Watts, 128, an undertaking of a like character was held to he a guaranty. The similarity of this case with the one in hand, will be apparent when the two agreements are compared. The one is, "I do hereby guarantee the payment of the above note to said Henry Isett;" rother, "I guarantee the payment of the within note for value received." Thus, though there is between these two contracts a slight verbal difference, their legal effect and meaning are precisely the same: To attempt to distinguish these two cases would be idle, and unless we overrule Isett v. Hoge, it must govern. But, as we would, for its overruling, be supported neither by authority or reason, we must permit it to stand, and under its authority, hold that Mizner's undertaking was an agreement to pay only in case of the insolvency of the makers, or after due diligence had been used to collect the notes from them.

Campbell v. Baker, 10 Wright, 243, though the word guaranty was used, yet as the guaranty was to pay "when due," the undertaking obviously had reference to the liquidation of the note at the time specified, and not to the solvency of the maker. A like case is Roberts v. Riddle, 29 P. F. S. 468, where the guaranty was to pay the bond "according to its term," and as one of its terms of course was its payment when due, the undertaking was, in effect, not different from that in Campbell v. Baker. Some stress seems to be laid on the fact that the guaranty in the case in hand, was made at the time of the execution of the note, this, however, affects not the character of the contract, but only the consideration by which it is supported. As was said in Snively v. Johnson, 1 W. & S. 309, where the guaranty is made at the same time with the principal contract, it becomes an essential ground of the credit given to the debtor, and supports both the promise of the debtor and of the guarantor. On this point this case is authority, but not so when used to support the main proposition of the plaintiff. The words of the contract expressed a warranty, and by all parties the case was treated as one of warranty; the insolvency of the maker was proved by the plaintiff as a prerequisite to his recovery, and the only question was that of consideration, which was settled as above stated.

The disposition of this point leaves nothing further for us to say, except that the defendant's fourth and fifth points should have been affirmed without qualification. If it was true that the principal debtors, or any of them, residing within the county of Mercer, or, for that matter, within the State of Pennsylvania, were solvent when the notes fell due, it was the duty of the plaintiff to have used proper diligence in the collection of these claims, and, failing in this, the guarantor was discharged. Mizner's assent to the stay of the executions of 1874, was of no force, if at that time Montgomery was insolvent, for in such case, the attempt to make the money on them would be fruitless, and if he was already released from his undertaking, there would be in this no such new consideration as would serve to re-bind him. But if at that time Montgomery was solvent, able to pay the notes, in whole or in part, the stay, if given at Mizner's instance, would be consideration enough to re-bind him to his original contract, or, what comes to the same thing, to estop him from setting up the previous negligence of the plaintiff, by way of defense.

The judgment is reversed and a new venire ordered.

LAW

two parties to the transaction;" whence he claims that it cannot be properly termed a legal one. Here, again, appears the confusion between the two ideas attached to the word "State." The judge is, to be sure, a part of the organized power of society, but is by no means the same as the person or persons in whom is the supreme power of enacting laws, and who are most directly interested in the result of the lawsuit. He frequently belongs to a political party which is in the minority, and his interests may lie in deciding against, rather than for, those who are represented by the name in the title of the cause; and, if he have a permanent tenure of office, is independent of them.

most

If, then, the above reasoning be correct, no fault can be found with the recent statement of the Supreme Court of the United States, that the maxim "the king can do no wrong" has no place in American jurisprudence (Langford v. United States, 101 U. S. 341); and there is therefore no reason why it should not eventually be abolished from that of all countries. An excessive respect for the writings of John Austin, upon whose great talents, in obedience to the law of reaction, almost as much too high an estimate is probably now placed as they were too meanly rated during his lifetime; an insularity of thought which seems to prevent Englishmen from seeking for truth beyond the limits of Great Britain; and possibly the reflex of the teachings of an anthropomorphic theory of religion,-have hitherto prevented those who have analyzed public law from separating the accidents attached to personal from the essential elements which continue in selfgovernment, its highest form. Otherwise, it would have been observed ere now, that, in this country at least, the regulation of the mutual rights and duties between individuals and the State, like those between individuals themselves, has passed through the stages of evolution from disorder, through custom and morality, to positive law. And the perception of this truth would help men to realize that the establishment of a true international law is not only not impossible, but less distant than is usually supposed. Nor is this discussion without practical value. The great failing of the common law, due to its growth by and encouragement of indirect judicial instead of direct statutory legislation, is the resulting tendency in men bred under it to loose modes of thought and want of precision in expression. If we are to avoid much trouble in the age of codification, which is clearly at hand, there must be a great advance in our capacity for the drawing and the interpretation of statutes. For those, and even the constitutions, of the present day abound in commands of imperfect obligation and phrases, which, before, and sometimes even after, they have been passed on by the courts, are hopelessly obscure. Nothing will help us more in this than accurate definitions and clear ideas of the leading terms of

law; and these it will be hard to obtain until the scope of law itself is understood: ROGER FOSTER. -American Law Review.

MAINE.

(Supreme Judicial Court.)

Strout v. Proctor.

Attorney and Client.-Disbarring Attorney.-P., an attorney at law, was charged with violating his official oath in not conducting himself in his office with all good fidelity to his clients; and it was set out that by false pretences and representations he obtained the signature of Mrs. H. to a bill of sale of her household goods and other chattels to his wife; that, after obtaining the the bill of sale, he advised and induced her to leave the State, falsely alleging that she was about to be arrested by an officer and put in prison, and that it was necessary for her to leave the State immediately to avoid arrest; that, after her departure he took possession of the property and refused to deliver them up to Mrs. H., who was compelled to bring replevin to recover the goods, in which action she recovered judgment. Held, that, by assuming to advise and act for Mrs. H. under the circumstances of this case, he subjected himself in his relations with her to the obligations of an attorney to his client. The case presented is one which not only warrants, but requires the removal of P. from the office of attorney and counsellor of this court.

SUPREME COURT RECORD.

[New cases filed since our last report, up to Aug. 17, 1881.] No. 1135. Samuel Hoffmire v. A. H. Cunard. Error to the District Court of Morrow County. Andrews & Allison and G. W. Geddes for plaintiff.

1136. James G. Miles, assignee v. B. W. Simington et al. Error to the District Court of Morrow County. A. K. & J. C. Dunn for plaintiff; Dalrymple & Powell and J. J. Gurley for defendants.

1137. Julius L. Lamprecht et al. v. John G. Kehrwicker. Error to the District Court of Morrow County. A. K. & J. C. Dunn for plaintiffs; Thomas E. Duncan and Olds & Dickey for Defendant.

1138. Enoch Higgins v. Joseph Grove. Error to the District Court of Morrow County. A. K. & J. C. Dunn for plaintiff; Dalrymple & Powell for defendant.

1139. Enoch Higgins v. Milton Grove. Error to the District Court of Morrow County. A. K. & J. C. Dunn for plaintiff; Dalrymple & Powell for defendant.

1140. First National Bank of Mount Gilead v. Jason J.

Cover, assignee. Error-Reserved in the District Court of Morrow County. Dalrymple & Powell for plaintiff; A. K. & J. C. Dunn for defendant.

1141. Adam F. Mike v. John C. Youngblood. Error to the District Court of Stark County. Lynch, Day & Lynch for plaintiff; J. Amerman and J. J. Parker for de

fendant.

1142. Joseph Socie v. Village of Nelsonville. Error to the District Court of Athens County. De Steigner & Jewett for plaintiff; Grosvenor & Jones for defendant.

1143. Mary E. Bierce et al. v. Elizabeth Bierce et al. Error to the District Court of Pickaway County. Ramsey, Matthews & Ramsey for plaintiffs.

1144. Alexander Starbuck et al. v. Leo A. Brigel. Error to the District Court of Hamilton County. Ramsey, Matthews & Ramsey for plaintiffs; Long Kramer & Kramer for defendant.