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rated street cars for the conveyance of passengers th the operation of the railway. This has not been upon any lines of horse or city railway within questioned by the counsel of the plaintiff; but it the city of Chicago, to obtain a license in the is claimed this cannot be considered a police month of April, of each year, and pay for the regulation, because it is manifestly the exercise same the sum of fifty dollars for each car operated of the taxing power of the city. It is argued that

A penalty was imposed for failing or the price of the license is so large that the inrefusing to take out a license. The company tent is manifest. It is very difficult to lay down obtaining the license was required to place con- any absolute rule upon this subject, and to hold spicuously iņ every car so operated and run in that a particular sum may be within the police the city, a certificate signed by the city clerk, power of the city, and another sum beyond the and giving the number of the car, and stating power, and a mere tax. that a license had been obtained, and that the By the general law of 1872, for the incorporanecessary fee had been paid; and a penalty was tion of cities and villages in this state, it is pro also imposed for a failure to post or keep such vided that the city council in cities shall have certificate in the car.

authority to license hackmen, draymen, omnibus The plaintiff, a stockholder in the Chicago City drivers, cabmen, expressmen, and all others purRailway Company, filed this bill to enjoin the suing like occupations, and to prescribe their payment of the license fee required by the ordi- compensation. This was obviously intended as nance. The defendants demurred.

conferring a police power upon the city council DRUMMOND, J.

in relation to the various classes named in the The only question in the case is, whether the statute. This is a power that has been uniformly crdinance in question is valid. Several corpora- exercised, and construing the statute literally, tions operating street cars in the city of Chicago, cannot well be questioned. But it is claimed have been authorized to construct their railways that it does not include the street railway, beand operate them, by various ordinances which cause it is not pursuing an occupation like any have been from time to time passed; and these of those named. ordinances have been recognized and affirmed, Omnibuses may be licensed. They may pass many of them by the legislature of the state. over even the same streets as those occupied by By virtue of these ordinances and acts of the the horse railways, and they may carry passenlegislature, the companies have the right to run gers in the same manner. The only distinction their cars for the transit of passengers through which can be called substantial between the two the city. It cannot be said, therefore, that the classes of occupation, is that one carriage goes effect of the ordinance which has been specially upon iron rails, in a regular track, with wheels,

a referred to, although it is called a license, would and the other carriage goes with wheels upon be to give the companies the privilege of run- the ordinary street way. ning their cars. That, they have by virtue of The Supreme Court of Pennsylvania has held the ordinance and the acts of the legislature. that these street railway carriages are of a like There can be no doubt that the legislature would nature as omnibuses, and there can be no doubt, have the right, under the Constitution of 1848, I think, of the right of the city to demand a which was in force when the franchise was grant- | license from all omnibus drivers, and to include ed, to tax the corporations for the use of their every omnibus which may belong to a partieular franchise. That is a tax which is entirely in- company or corporation, and to require the paydependent of the value of the cars, tracks and ment of a license for such omnibus that


be other tangible property of the corporations, and so owned and used. so treated by the Constitutions of 1848 and 1870. The Court of Appeals of New York, in the case But there are many difficulties with this branch of Mayor v. Second Avenue Railroad, 32 N. Y. of the subject. There are certain conditions re- 261, held that an ordinance of the city of New quired by the Constitution of 1870 as pre-requi-York, in many respects like this, was invalid, as sites to the imposition of a tax of this kind, even an attempt, through color of a license, to impose conceding that the legislature has authorized the a tax upon the railroad company, refusing to city to impose the tax, and I, therefore, without treat it as an exercise of the police power of the giving any decided opinion upon that part of the city. The price charged in that case for the case, prefer to place my decision upon another license was the same as in this. ground, and to sustain the ordinance as a regula- In the case of Frankford & Philadelphia Pastion of the police power of the city. This is al- senger Co. v. City of Philadelphia, 58 Penn. St. ways a subsisting power which it is generally 119, where the license fee was the same, and held cannot be transferred by the city, but is in- Johnson v. Philadelphia, 60 Penn. St. 445, the herent in its municipal organization. There can Supreme Court of Pennsylvania took a different be no controversy about the power of the city viev of such an ordinance, and treated it as a over many things connected with the operation police regulation merely; and such seems to be of the city railways. Admitting that because of the view of the Supreme Court of this state, in the price of fare agreed upon there can be no the case of the Chicago Packing & Provision Co. change in that, yet by virtue of its police power, v. City of Chicago, 88 Ill. 221. the city can, to a great extent, regulate the run- In the case of Frankford & Philadelphia Pasning of the cars, prescribe rules and laws as to senger Co. v. City of Philadelphia, the city ob speed, stoppage and other things connected with tained its power to impose the license from a

statute substantially similar to that under which cisions of the Supreme Court of the United States the city of Chicago claims the power in this case. within the last few years (Munn v. Illinois, 94 In that case the Act of the legislature declared U.S. 113, and others), I think the weight of authat the City Council of Philadelphia should have thority is in favor of regarding this as a police authority to provide for the proper regulation of regulation. omnibuses, or vehicles in the nature thereof, and One of the difficulties I have had with the case, to this end it shall be lawful for the council to has been whether it ought not to be regarded as provide for the issuing of licenses to such and so a tax for revenue under the form of a license. many persons as may apply to keep and use om- It may be conceded that the argument is strong nibuses, or vehicles in the nature thereof, and to for treating it as a revenue measure; but as I charge a reasonable annual or other sum therefor." before stated, there are some objections which I In that statute, the words “vehicles in the na- consider very weighty, and which would prevent ture thereof;" in this, the words "pursuing a me at this time from placing the decision on that like occupation” are used. I cannot see that ground. It may be admitted that, viewing it as there is any substantial distinction in that re- a police regulation requiring the payment of a spect between the two statutes.

fee for the license, in amount it goes to the very In the case in 88 Illinois, already referred to, verge of the exercise of police power; but as other the corporation was organized and doing business courts have held that such a tax did not exceed under the laws of this state.' A question arose that limit, I cannot hold that it does in this case; in that case as to the power of the city to issue and, therefore, I shall, as at present advised, suslicense. It was denied, in the argument of the tain the ordinance in question as a valid exercase, that the power existed, but the Supreme cise of the police power of the city council. Court held that under the power to regulate the There have been some arguments used by management” of the business, the city had the counsel which, I think do not properly apply to right to issue a license, and to prescribe the com- the pleadings. It is insisted that the court must pensation. That was also under the same law, construe this as a tax, and not a mere police reg. the Act of 1872, which conferred power upon ulation. It is admitted that the Court of Apcities to grant licenses, and regulate omnibus peals of New York did construe a similar license drivers, and all others pursuing a like occupation. fee as a tax. The Supreme Court of Pennsyland to prescribe their compensation. The Su- vania has given a different construction, and preme Court of this state decides in that case held it to be a police regulation. There is noththat the power to require a license is one of the ing in the bill by which the court can regard it means of regulating the exercise of a pursuit or absolutely as the exercise of the taxing power of business; that there are other means that might the city. There is nothing in the bill which be adopted to accomplish the purpose, but that would authorize the court to hold, if it were a these municipal authorities are not restricted as tax, that it was in violation of the Constitution to the means that they shall employ to regulate of 1870, a. not being uniform upon the particular the business; and various authorities are cited class on which it operates. It is urged that it by the court in support of the view which they cannot be treated as a tax, because, if so, it would take; and they repeat the ruling which had been not be within this requisition of the Constitution previously made that a license was not, in the of 1870, because the street railways come in diconstitutional sense of the term, a tax.

rect competition with some of the steam railThe Supreme Court must also have considered ways; as that of the Illinois Central and the and passed upon a question which has been dis- North-Western to Hyde Park and Evanston. cussed in this case, namely: whether or not the There is nothing in the pleadings which would act which gave the authority to the city to license, warrant the court in considering these facts, unwas a general law under the constitution of this less the court should take judicial notice that state; and they held that it was, and that it was they do thus come in competition, without any intended to apply to all cities which might allegation in the pleadings. Under the authoriadopt it.

ties, and upon the statements contained in the It is true that was a case ci licensing a busi- pleadings, the court cannot necessarily construe ness which was generally admitted to be inju- | this as a tax. The court is at liberty, I think, rious in its character to those near the place to construe it as a police regulation. where it was carried on; but it was a question of

These views have been given for the purpose power, and the point in controversy was whether of enabling the parties, if they desire, to take The city of Chicago had the right to exercise the the case to the Supreme Court of the United power of licensing. The license fee demanded States. The District Judge who heard the apin that case was one hundred dollars. It seems plication for an injunction in the first instance, to me that the question involved in this case and granted it, is inclined to hold, as I underarose substantially in that, and it was decided stand, that this was not the proper exercise of the by the Supreme Court of the state that it was a police power. I hold, for the purpose of decidvalid exercise of the power to regulate a particu- ing the case, that it is; and if the case is to be lar business. That is also the view taken by the determined by the pleadings as they at present Supreme Court of Pennsylvania in the cases stand, it can be certified up to the Supreme Court referred to.

as upon a division of opinion between the judges. In view of these decisions and of several de- | If, however, the counsel desire to raise some of


the questions which have been discussed in the Campbell v. Baker, 10 Wright, 243, though the argument, I think it would be advisable for them word guaranty was used, yet as the guaranty to amend the bill, and if they wish, leave will be was to pay when due," the undertaking obvigranted for that purpose.

ously had reference to the liquidation of the

note at the time specified, and not to the solSUPREME COURT OF PENNSYLVANIA.

vency of the maker. A like case is Roberts v.

Riddle, 29 P. F. S. 468, where the guaranty was MIZNER V. SPIER.


pay the bond “according to its term," and as one

of its terms of course was its payment when January 30, 1881.

due, the undertaking was, in eftect, not differAn endorsernent made upon a note at its date, as fol

ent from that in Campbell v. Baker. Some stress lows: “I guarantee the payment of the within note for value received," is a guaranty, and not an original un

seems to be laid on the fact that the guaranty in dertaking.

the case in hand, was made at the time of the Error to the Court of Common Pleas of Mercer execution of the note, this, however, affects not County.

the character of the contract, but only the conGORDON, J.

sideration by which it is supported. As was The learned judge who tried this case, whilst said in Snively v. Johnson, 1 W. & S. 309, where admitting that his ruling on the facts was the guaranty is made at the same time with the wrong, yet refused a new trial, because, as he principal contract, it becomes essential thought, the writing under consideration being ground of the credit given to the debtor, and in fact an original undertaking, and not as upon supports both the promise of the debtor and of its face what it purported to be, a guaranty, a re- the guarantor. On this point this case is autrial would but result in a verdict the same as that thority, but not so when used to support the already rendered. Whilst we grant that the ar- main proposition of the plaintiff. The words of guments leading to this conclusion are not with- the contract expressed a warranty, and by all out plausibility, yet upon a careful review of the parties the case was treated as one of warranty; authorities, we have been led to a different the insolvency of the maker was proved by the opinion. The undertaking in controversy was plaintiff as a prerequisite to his recovery, and appended to three several judgment notes, drawn the only question was that of consideration, by M. R. Kerney, H. Montgomery, and Wm. which was settled as above stated. Corll, to Seth Spier, plaintiff, and reads as fol- The disposition of this point leaves nothing lows: "I guarantee the payment of the within further for us to say, except that the defendant's note, for value received. L. H. Mizner.” With- fourth and fifth points should have been affirmed out doubt this is technically a guaranty, and without qualification. If it was true that the unless there is in the case something which we principal debtors, or any of them, residing have failed to discover, by which its legal mean- within the county of Mercer, or, for that matter, ing is altered, it must be so treated. In Isett v. within the State of Pennsylvania, were solvent Hoge, 2 Watts, 128, an undertaking of a like when the notes fell due, it was the duty of the character was held to he a guaranty. The sim- plaintiff to have used proper diligence in the ilarity of this case with the one in hand, will collection of these claims, and, failing in this, be apparent when the two agreements are com- the guarantor was discharged.' Mizner's assent pared. The one is, “I do hereby guarantee the to the stay of the executions of 1874, was of no payment of the above note to said Henry Isett;" force, if at that time Montgomery was insolvent, ut other, “I guarantee the payment of the for in such case, the attempt to make the money within note for value received." Thus, though on them would be fruitless, and if he was althere is between these two contracts a slight ready released from his undertaking, there verbal difference, their legal effect and meaning

would be in this no such new consideration as are precisely the same: To attempt to distin- would serve to re-bind him. But if at that time guish these two cases would be idle, and unless Montgomery was solvent, able to pay the notes, we overrule Isett v. Hoge, it must govern. But, in whole or in part, the stay, if given at Mizas we would, for its overruling, be supported ner's instance, would be consideration enough to neither by authority or reason, we must permit re-bind him to his original contract, or, what it to stand, and under its authority, hold that comes to the same thing, to estop him from setMizner's undertaking was an agreement to pay ting up the previous negligence of the plaintiff, only in case of the insolvency of the makers, or by way of defense. after due diligence had been used to collect the The judgmnent is reversed and a new venire ornotes from them.

dered. Nor do we discover anything in the authorities cited for the plaintiff , which, in any degree, THE SUBJECTION OF THE STATE TO

, impugns the doctrine of Isett v. Hoge. In Arms

LAW baugh v. Gearhart, 1 Jo. 482, the agreement was, "I will see the within paid." There is in this The statement that the State is not subject to nothing more or less than an unconditional the law, seems to most American lawyers an promise to pay the obligation when due, if for absurdity. They, who are accustomed to see alany reason the payer is in default. It is a con- most every obnoxious statute assailed as uncon. tract of suretyship and not of guaranty. So in stitutional, and therefore void; who derive so

large a proportion of their incomes from success- rule, and through the medium of judicial proceedful resistania to attempts by the government to ure, it is legally free to accomplish its end by an collect its revenues; and who know few greater arbitrary or irregular exercise of its legally unintellectual pleasures than the perusal of an limited power.” (Austin's Jurisprudence, 4th ed, opinion on the construction of our fundamental | London, 1873, vol. i. p. 296). law by one of the jurists who have been, or still The fallacy, as is usually the case, will be are, upon the bench of our highest tribunal, found to lurk in a confusion of two ideas, repreare surprised at hearing that the State can still sented by a single term. The word "State” may say, like the Roman emperors, “Legibus soluti lege mean either the concrete collection of individvivimus." Yet in the writings of the great pio- uals who form the governing body of a society, neer in, if not the creator of, the science of juris- or an abstraction otherwise expressed by the term, prudence, John Austin; in the best text-book “its organized power.” That the latter is not on the subject, that of Professor Holland; and subject to municipal. law, which only occupies in an acute criticism of the latter by so skilled a itself with tangible objects, is self-evident; but master of the art of analysis as Mr. Albert Dicey, this rule does not apply to the former. -we find it laid down as axiomatical, that the The organized power of society cannot be propsovereign power is free from any legal duties, erly said to be suhject to the law of which it is a and can lawfully do what it will, while the first part; but the men who wield the power are, coland last criticise such a doctrine as is asserted lectively as well as individually, restrained from by the other, and maintain that it is also with passing its limits until they have been enlarged. out particular legal rights, and is necessarily The ultimate seat of the sovereign power of the beyond the sphere of positive law.

United States is in three-fourths of the sovereign That the latter, admitting the former theory, powers of the States. But even they, without is logically correct, it seems not difficult to estab- the consent of their separate governments, could lish. For as rights and duties, whether legal or not lawfully destroy the individual existence of moral, are correlative, one's right to do a thing the rest, as Louis Napoleon did that of the French merely consisting in his capacity of, with the Provinces, unless, indeed, they should, by imaid of public officers, preventing others from or peachment and appointment, place a set of men punishing them for stopping him; and as in upon the bench who would declare a nullity the every developed system of law which accom- constitutional provision, “that no State, withplishes its main purpose, the prevention of blood- out its consent, shall be deprived of its equal shed, he has a right to every act from which he right of suffrage in the Senate." But, until one

” is under no legal duty to forbear,-the State, if of these things had been accomplished, the govit can be considered as standing in any other erning body would be powerless in the matter relation to law than as its creator, and is subject unless it subverted the law by force, which can to no duties, must have a right to everything, be accomplished by a minority, as has been reand it is absurd to speak of its having more to cently proved in the Southern States. And as one than to another.

in the science of pure mechanics, so in that of A theory so much at variance with our com- jurisprudence, friction, which here results from mon modes of thought, however, in spite of our the conflict of law with morality, or, if the reader respect for those who dcfend it, should be exam- prefer the term, public opinion, must be elimiined carefully before it is allowed general accep- nated from our calculations. A revolution, no tance. The argument in its support may be matter how peaceably conducted, is still illegal. briefly stated. Law, it is said, is a rule of con- Moreover, the fact that a law may be repealed duct prescribed and enforced by the State. If is no more inconsistent with its existence than the State be subject to it, then it is in subordi- that it may be overturned by force. Austin's nation to itself, which is an absurdity. An increasoning, that, because the government may redividual is only subject to a duty when he is peal the law by which it has bound itself, it is compelled to act or forbear by the State ; which, under no legal duty to obey it, would equally as it is impossible for it to be both master and prove that John Doe is under no obligation to servant, cannot properly be said to compel itself, pay his debt to Richard Styles, because Congress and hence must be free from duty. Therefore, may at any time pass a bankrupt law dischargwhen the seat of the sovereign power of a com- ing him. Nor is the argument of Mr. Dicey of munity is ascertained, the limits of law are much more weight; when speaking of Professor reached, for the creator cannot be subject to his Holland's statement, that in public law (Holcreature. “Besides,” says Austin, "where the land's Elements of Jurisprudence, p. 79), “ the sovereign government appears in the character State is present as arbiter, but is at the same of defendant, it appeals to a claim founded on a time one of the parties interested,” and that "law so-called law which it has set to itself. It there- without an arbiter is a contradiction in terms," fore may defeat the claim by abolishing the law he says (2 Law Magazine and Review, 4th seentirely, or by abolishing the law in the partic-ries, p. 395): "Surely an arbiter who arbitrates ular or specific case. Where it appears in the between himself and another is in strictness no character of demandant, it apparently founds its arbiter at all. * ** The very term implies the claim on a positive law of its own, and it pursues existence of at least three persons.

Where the its claim judicially. But although it reaches State arbitrates between itself and another perits purpose through a general and prospective son, there are, turn it which way you will, only

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two parties to the transaction;" whence he law; and these it will be hard to obtain until claims that it cannot be properly termed a legal the scope of law itself is understood:

ROGER FOSTER. one. Here, again, af pears the confusion be

-American Law Review. tween the two ideas attached to the word “State.” The judge is, to be sure, a part of the organized

MAINE. power of society, but is by no means the same as

(Supreme Judicial Court.) the person or persons in whom is the supreme

Strout v. Proctor. power of enacting laws, and who are most di

Attorney and Client.--Disharring Attorney.--P., rectly interested in the result of the lawsuit. He frequently belongs to a political party which

an attorney at law, was charged with violating

his official oath in not conducting himself in his is in the minority, and his interests may lie in deciding against, rather than for, those who are

office with all good fidelity to his clients; and it

was set out that by false pretences and reprerepresented by the name in the title of the cause;

sentations he obtained the signature of Mrs. H. and, if he have a permanent tenure of office, is

to a bill of sale of her household goods and other independent of them.

chattels to his wife; that, after obtaining the If, then, the above reasoning be correct, no

the bill of sale, he advised and induced her to fault can be found with the recent statement of leave the State, falsely alleging that she was the Supreme Court of the United States, that

about to be arrested by an officer and put in the maxim “the king can do no wrong” has no

prison, and that it was necessary for her to leave place in American jurisprudence (Langford v.

the State immediately to avoid arrest; that, after United States, 101 U. S. 341); and there is there- her departure he took possession of the property fore no reason why it should not eventually be and refused to deliver them up to Mrs. H., who abolished from that of all countries. An exces- was compelled to bring replevin to recover the sive respect for the writings of John Austin, goods, in which action she recovered judgment. upon whose great talents, in obedience to the Held, that, by assuming to advise and act for law of reaction, almost as much too high an es

Mrs. H. under the circumstances of this case, he timate is probably now placed as they were too subjected himself in his relations with her to meanly rated during his lifetime; an insularity the obligations of an attorney to his client. The of thought which seems to prevent most case presented is one which not only warrants, Englishmen from seeking for truth beyond

but requires the removal of P. from the office of the limits of Great Britain; and possibly the re- attorney and counsellor of this court. flex of the teachings of an anthropomorphic theory of religion, -have hitherto prevented

SUPREME COURT RECORD. those who have analyzed public law from separating the accidents attached to personal from

[New cases filed since our last report, up to Aug. 17, 1881.) the essential elements which continue in self

No. 1135. Samuel Hoffmire v. A. H. Cunard. Error to government, its highest form. Otherwise, it

the District Court of Morrow County. Andrews & Alliwould have been observed ere now, that, in this son and G. W. Geddes for plaintiff. country at least, the regulation of the mutual 1136. James G. Miles, assignee v. B. W. Simington et rights and duties between individuals and the

al. Error to the District Court of Morrow County. A. State, like those between individuals themselves,

K. & J. C. Dunn for plaintiff; Dalrymple & Powell and

J.J. Gurley for defendants. has passed through the stages of evolution from

1137. Julius L. Lamprecht et al. v. John G. Kebrdisorder, through custom and morality, to posi- wicker. Error to the District Court of Morrow County, tive law. And the perception of this truth

A. K. & J.C. Dunn for plaintiffs ; Thomas E, Duncan and

Olds & Dickey for Defendant. would help men to realize that the establish

1138. Enoch Higgins v. Joseph Grove. Error to the ment of a true international law is not only not

District Court of Morrow County. A. K. & J. C. Dunn impossible, but less distant than is usually sup- for plaintiff; Dalrymple & Powell for defendant, posed. Nor is this discussion without practical 1139. Enoch Higgins v. Milton Grove. Error to the value. The great failing of the common law,

District Court of Morrow County. A. K. & J. C. Dunn

for plaintiff; Dalrymple & Powell for defendant. due to its growth by and encouragement of in

1140. First National Bank of Mount Gilead v. Jason J. direct judicial instead of direct statutory legisla- Cover, assignee. Error-Reserved in the District Court tion, is the resulting tendency in men bred un- of Morrow County. Dalrymple & Powell for plaintiff; der it to loose modes of thought and want of pre

A. K. & J. C. Dunn for defendant. cision in expression. If we are to avoid much

1141. Adam F. Mike v. John C. Youngblood. Error to

the District Court of Stark County. Lyuch, Day & trouble in the age of codification, which is clearly Lynch for plaintiff; J. Amerman and J. J. Parker for deat hand, there must be a great advance in our fendant. capacity for the drawing and the interpretation 1142. Joseph Socie v. Village of Nelson ville. Error to

the District Court of Athens County. De Steigner & of statutes. For those, and even the constitu

Jewett for plaintiff; Grosvenor & Jones for defendant. tions, of the present day abound in commands of

1143. Mary E. Bierce et al. v. Elizabeth Bierce et al. imperfect obligation and phrases, which, before, Error to the District Court of Pickaway County.. Ramand sometimes even after, they have been passed sey, Matthews & Ramsey for plaintiffs. on by the courts, are hopelessly obscure. Noth- 1144. Alexander Starbuck et al. v. Leo A. Brigel. Er. ing will help us more in this than accurate defi

ror to the District Court of Hamilton County. Ramsey,

Matthews & Ramsey for plaintiffs; Long Kramer & Kranitions and clear ideas of the leading terms of mer for defendant,

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