tion which came under consideration in purposes townships, villages and cities these cases, was designed to eventuate in cannot be permitted to act independenttaxation of the people of Detroit against ly, but are and must be subject to comtheir opposition. This law favors the pulsion by the State Taxes for general localities instead of enforcing burdens purposes cannot be left to municipalities upon them. to collect, or to refuse to collect at their 4th. It is objected that the sheriff is own volition. They must collect them, made the collector of township, village, and they must sustain local government, and city taxes, when by right that duty, whether willing to do so or not. To that and the fees for its performance, belong extent every part of the State is conto the township, village or city collector cerned in the action of every other part, or treasurer. This objection, like the last, because disorder in one locality would decomes from the wrong source. Those in range more or less the whole system. whose behalf it is made are not here as The police of the State, and the preзervaparties, and we are not aware that they tion in every locality, is matter of State complain. If the objection were a valid concern, and not of mere local interest. one, it is not clear that it could invali- Now the law under consideration, having date the tax; it might raise the question revenue for one object, has the police of of the particular officer to collect it. the State for another. It was deemed But we think the objection is without important to adopt it as a matter of force either at law or in equity. Admit-police regulation, and the Legislature did ting all that these complainants insist upon, that the township and city collector have a constitutional right to perform the duties that belonged to these offices when the constitution was adopted, it does not follow that they are entitled to collect the tax. A constitutional right to perform the old duties cannot extend to cover new duties merely because they happen to be of a similar character. The complaint is, that in providing for a new duty it confers it upon another officer instead of the township and city officers. In this there is nothing unusual. Sheriffs in many States are collectors of taxes, and in this State they have always in some contingencies been collectors. True, in collecting the tax, the sheriff acts on behalf of the municipalities; but he does, so in any case where the warrant is delivered to him. The whole tax system is something in which the State at large is concerned, and the rules by which it may be made to operate harmoniously can not be rules so inflexible as not to yield to circumstances when the legislature deems it essential. But there is another circumstance that is conclusive on this point. For some not see fit to leave it to the localities to enforce it or not at their option. If, to preclude the possibility of the law being nullified in any locality, it was deemed essential to commit the execution of the law to county instead of municipal officers, we know of nothing to preclude or forbid it. 5th. But the objection which appears to be principally relied on is, that the tax on the traffic in liquor under the law is equivalent to a license on the traffic, and therefore comes directly in conflict with that provision in the constitution which declares "that the legislature shall not pass any law authorizing the granting of license for the sale of ardent spirits or intoxicating liquors." The proceedings of the convention, and the arguments of the members of that body, have been thoroughly sifted in the argument in order to arrive at the exact meaning of the provision granted. But the views and purposes of the different members were so diverse and conflicting, that the proceedings of that body are as near as possible worthless for any purpose of giving aid in the proper construction of these provisions, and we can only take it as its stands, and seek the meaning in the words employed to express it. Does, then, a tax upon the traffic of liquors come within the condemnation of this provision of the constitution as being equivalent to a license of the traffic? Is it the same in legal effect, or is it the same according to the popular understanding of the term license? This is the question which presents itself for decision on this branch of the case. The popular understanding of the term license is undoubtedly a permission to do something which, without license, would not be allowable. edly recognized when the prohibitory law was repealed. The illegality of the traffic depended upon that law-its lawfulness now results from its repeal. The tax has nothing to do with it whatever. The idea that the State lends its countenance to any particular traffic by taxing it, seems to rest upon a very transparent fallacy. Taxes are not favors, they are burdens. It is conceded by all authorities that these burdens may be carried to such an extent as to be ruinous to individuals. It would be a remarkable proposition to assume that such burdens are evidence of the favor and sanction of the Government. It may be supposed that some idea of siness is taxed-taxation and protection being reciprocal. If the tax upon any particular thing was the consideration for the protection given to the owner in repect to it, this might be so; but the maxim of reciprocity in taxation has no such meaning. No government ever undertakes to tax all it protects. In Great Britain real estate pays a relatively insignificant portion of the taxes, although in the social and political state it is more important than all other property. This we are to suppose was the sense in which it was made use of in the Constitution; but this is also its legal mean-special protection is involved when a buing. The object of a license, says Mr. Justice Manning, is to confer a right that does not exist without it. Chevers v. People, 11 Mich. 43-49. Within this definition a mere tax upon the traffic can not be a license of the traffic unless the tax confers some right to carry on the traffic which otherwise would not have existed. We do not understand that such is the case here. The very act that imposed this tax repealed the previous laws which forbade the traffic and declared it illegal. The trade, then, be- As a general rule the United States has came legal, whether taxed or not, and not taxed real property. During the Rethis law in imposing the tax did not de- bellion it taxed most kinds of business clare the traffic illegal in case the tax was for war purposes. But the business taxnot paid. If the tax is paid the traffic is ed was no more protected than the busilawful; but if it is not paid it is equally ness not taxed. The fisheries which we lawful. There is, consequently, nothing favor with bounties are as much protectin the case that appears to be in the na-ed as any business that is taxed. Indeed, ture of a license. But it is urged that by taxing the business, the State recognizes its lawful character, sanctions its existence, and participates in its profits, all of which is within the real intent and meaning of the prohibition of the license. the taxation of a thing may be, and often is where police purposes are had in view, a means of expressing disapprobation of the thing taxed. There has undoubtedly been expressed a strong sentimental objection to the doing of anything by the State that even The lawfulness of the business, if by seemed to be lending its countenance to that we understand that it is no longer a business which the objectors regarded punishable, and is capable of constitut- as evil in itself, especially to the State ing the basis of contracts, was undoubt-participating in the profits of a perni cious trade. But the objection never See Durach's Appeal, 62 Penn. St., 491. found expression in laws forbidding the 494; Fletcher v. Oliver, 25 Ark, 289; taxation of liquors, or of the business of State v. Parker, 32 N. J., 426–431. dealing in them. Indeed, liquors have The State has never snown any disinin this State always been taxed as prop-clination to make things morally and leerty, and as well the implements, by gally wrong, contribute to the public revmeans of which forbidden games of enue when justice and good morals seemchance are carried on. When the keeper ed to require it. If it were to act upon of billiard-tables is compelled to pay a the idea of refusing to derive revenue tax it can be no defence to him, either in from such sources, it ought to decline to law or in morals, that he is compelled to receive fines for criminal offences with do so from the profits of an illegal busi- the same emphasis that it would refuse to collect a tax from an obnoxious busi ness. The idea that a thing is favored be-ness. The Constitution expressly procause it is taxed may be examined in the light of the practice of the State in some other particulars. vides for a library fund to be derived from fines for the violations of the public law. Const, Art. 13, Sec. 12. A provision that may legitimately be said to be a lilicense of crime, as a tax on a traffic may The general belief has been that the interest and welfare of the whole community would be best subserved by ex-be called a license of the traffic. exempting educational and charitable in- Taxes on business are usually collected stitutions from the burden of taxation, in the form of license fees, and this may and legislatures in apportioning taxes possibly have led to the idea that seems have accepted and acted upon this prin- to have prevailed in some quarters that a ciple. tax implied a license. But there is no It has been done as a matter of favor necessary connection between them. A and may be of encouragement, and business may be licensed and yet not yet if the argument against this tax is sound, an entirely different policy in regard to such institutions would be proper, at least admissable. Other illustrations would show the error of such reasoning. The whole question is as much one of policy as of necessity, and the legislator would be unfit for his office if he was incapable of looking at the subject in all its bearings. taxed, or it may be taxed and yet not licensed. Such is the case where cities under proper legislature authority, tax occupations which are carried on under licenses from the State. Ould v. Richmond, 22 Grat. 464; Napier v. Hodges, 31 Texas, 287; Cuthbert v. Cooley, 32; Geo., 211; Wendova v. Lexington, 15 B. Maur, 258. The Federal laws give us illustrations This is especially true where the tax of the taxation of illegal traffic. A case has reference to police as well as revenue. in point was that of the taxation of the A particular business may then be tax- liquor traffic in this State previous to the ed while others are spared, not only be- repeal of the prohibitory laws. The cause for any reason it can best bear the Federal law found a business in existburden, but also because such surround- ence, and it taxed it without undertakings attach themselves to the business ing to give it any protection whatever. taxed as to render the discouragement McGuire v. Com., 3 Wall, 387; Purvear and discipline of heavy taxation wise and v. Com., 5 Wall, 475. politic. In the few cases in which the If protection because of the tax was right to do this, has been contested on the ground of inequality, the courts have affirmed it as being beyond question. due to the very thing upon which the tax was imposed, there would be an inconsistency in taxing a prohibited trade; but treating taxation, however taxation, however and in plaintiff's possession, and that they wherever it may fall, as the return for were not present when the goods were taken or sold. The court held on the trial that defendants were liable for the acts of the Marshal. Held, Error: that the authority from the defendants to the officers, put in motion by them, which the law would conferred by the warrant, and was only to do lawful acts pursuant to the process. the general benefits of government-for protection to life, liberty, the social and family relations, as well as to business and property-which is the only legal and proper idea of taxation, there is no inconsistency in making a thing which is not protected one of the measures or imply, was only co-extensive with that standards by which to determine how much the party owning or supporting it ought to pay to the government. If one If a party, in whose name and for puts the government to special incon- whose benefit a trespass is committed, venience and costs by keeping up a pro- with full knowledge of the facts, sanchibited traffic, or maintaining a nuisance, tions the act and appropriates the prothat fact is a reason for discriminating in cedes of the trespass, it is evidence for taxation against him; and if the tax is the jury, from which they may infer preimposed on the thing which is prohibit- vious command or authority. (2 N, Y. ed, or which constitutes the nuisance, 479; 8 Barb. 355; 30 N, Y. 211). the tax law instead of being inconsistent It appeared that the defendant's attorney with the law declaring the illegality, is was present at the time of the seizure and in entire harmony with its general pur-sale, and that he gave certain directions pose, and may sometimes be more ef- to the officers. fectual. Held, That this did not make defendants liable for the tortious act in the absence of proof of special authority. 4 Den. 295. Neither did the directions of defendant's general agent, without other evidence, connect defendants with the trespass. 2 Comst. 479. There was some evidence that after the seizure defendants gave a bond to the Marshal. The bond was not produced, and it did not appear for what it had Welsh et al. respts. v. Cochran et al. been given. applts. Decided November 16, 1875. Where a party to a suit directs the officer to do that which his warrant requires him to do, he is not a trespasser. Held, That if the bond had been produced it would have been for the court to interpret it, and if it had proved to be merely an indemnity for serving the warrant as against the bankrupts, it This action was for the alleged unlaw- would not have tended to convict the ful taking and carrying away of the plain-parties to it of a tortious taking of the tiff's chattels. The property in question plaintiff's goods. 7 H. and N. 91. Not was seized by the United States Marshal being produced, the circumstance of as the property of K. & Co., against whom giving any bond was but slight evidence a petition in bankruptcy had been filed to connect the defendants with the tresunder a warrant issued at the instance of pass. the defendants, who were creditors of H. & Co. It appeared that the defendants did not direct the seizure of any property Judgment of General Term reversed and new trial granted. Opinion by Allen, J. still in dispute; the executor claimed allowances which should be determined. Before the executor can be lawfully attached, what he can be properly required to do, must be distinctly ascertained N. Y. SUPREME COURT-GENL. TERM, and settled. Sutton, applt. v. Davis exr. etc., respt. Decided December 6, 1875. Before an executor can be attached, what he is required to do must have been definitely ascertained and settled. Appeal from order denying motion for an attachment against the defendant Davis, exr. etc., and ordering a reference to determine the amount due from him, etc. The plaintiff had previously recovered judgment against defendant, as executor, and others in an action to settle his account and determine other matters. By the judgment the executor was directed to pay the plaintiff $1,255,50 for the funeral expenses of the testatrix; one fourth of the estate bequeathed by her to Edward C D. Kittredge, and one half part of the estate bequeathed by her to the trustees and faculty of Williams College, besides delivering certain articles specifically mentioned. Order affirmed. Opinion by Daniels, J.; Davis, P. J. and Brady, J., concurring. BONA FIDE PURCHASERS. N. Y. COURT OF APPEALS. Brownson, et al. extr. etc. applts. v. Chapman et al. respts. Decided. Nov. 30 1875. When a promise is made to send a margin on stock ordered to be bought, the purchase is made on the credit of the customer and his promise, not on the marWhen a broker, being a member of the gin itself. Board of Brokers, makes a contract, which, being by parol, would be void, it will be presumed that he will fulfill it. This was an action for the conversion of eight U. S. Coupon Bonds, stolen from a bank where they had been deposit The application, as near as it can ed by plaintiff's testator for safe keepbe gathered from the imperfect conditioning, and sent to defendants by the cashier, of the case, was for an attachment to as a margin upon certain stock speculapunish the executor for not complying tions. The case upon a former appeal is with some or one of these directions. No order or other adjudication seems to have been at any time made by which the several amounts to be paid over have ever been specifically ascertained. reported under the name of Taft v. Chapman 50 N. Y. 445. The only question was as to whether defendants were bona fide purchasers for value. On the 21st day of February, V. A., the Held, That the order was a proper cashier, telegraphed defendants to purone to make under the circumstances. chase for him 2,100 shares Erie, stating If an attachment had been issued, it he would send margin. Defendants purwould have been impracticable for the chased to fill order on that day the Court to have definitely declared on stocks to be delivered and paid for on what terms the executor could have dis- the 24th. The stolen bonds were on the charged himself from arrest or imprison- same day sent by express. The bonds ment. That a reference was necessary reached defendants on before an attachment should issue in of the order to afford the case a reasonably definite shape. There were certain matters the morning 24th. The court directed a verdict for defendants. Held. Error: that the purchases were |