1899. FORSYTH V. VEHMEYER. 1117, 5 Sup. Ct. Rep. 724, the statute of the | The validity of this statute has been affirmed by the supreme court of New Jersey in McGovern v. Hope, 42 Atl. 830, to appear in 63 N. J. L. The opinion of the court was delivered by Mr. Justice Depue, and the court held that the act was within the power of the legislature, and was not an infringement upon the constitutional rights of the party. OLIVER O. FORSYTH, Administrator c v. HENRY F. T. VEHMEYER. (See S. C. Reporter's ed. 177-182.) Federal question-allegation and proof of 1. 2. The decision by a state court that an allegation of false and fraudulent representations implies a knowledge of their falsity, and that if an express allegation of the scienter were necessary, the omission would be cured by the verdict, does not involve any Federal question. for review by the Supreme Court of the United States. Obtaining advances of money by false and fraudulent representations that the borrower has a certain quantity of wood cut, piled, and ready for shipment, and a sale of which has already been contracted at a certain price, creates a debt by means of fraud involv ing moral turpitude and intentional wrong, that is exempt from the effect of a discharge in bankruptcy under the bankrupt act of 1867. [No. 180.] The validity of a statute of this nature has also been upheld in Lyon v. Manhattan R. Co. 142 N. Y. 298, 25 L. R. A. 402, 37 N. E. 113, although the particular form of that Submitted March 13, 1900. Decided April statute would probably be regarded as conflicting with the law of Congress in relation to the examination of a party as a witness before trial, and hence might not be enforced in courts of the United States sitting within the state of New York, but the validity of a statute providing for the examination of the person of a plaintiff in an action to recover for injuries is upheld and declared not to be in violation of the constitutional rights of the party. The citizenship of the plaintiff at the time of the injury is not material so long as the court below has jurisdiction of the case and the parties at the time of the commencement of the action. 9, 1900. ERROR to the Supreme Court of the firming a decision to the effect that a certain 55. See same case below, 176 Ill. 359, 52 N. E. The facts are stated in the opinion. Mr. M. W. Robinson submitted the *Mr. Justice Peckham delivered the opin-{177 ion of the court: In those states in which it has been held that the court has inherent power to order the examination of a plaintiff in this class The defendant in error brought this acof action without the aid of a statute, all tion against one Jacob Forsyth, in the superhas been said that could be urged in favor of such power on grounds connected with pub-ior court of Cook county, in the state of III-{178} lie policy and the due and proper adminis-inois, in April term, 1891, upon a judgment [177]tration of justice by the courts. This court in his favor which he had theretofore recorhas taken another view of the subject, in the decision of Botsford's Case, above cited. But by reason of the statute of New Jersey, in which state this action was brought, there being no law of Congress in conflict therewith, we hold that the courts of the United States therein sitting have the power, under the statute and by virtue of § 721 of the Revised Statutes of the United States, to order the examination of the person of the plaintiff, and we therefore answer the third question of the court below in the affirmative and it will be so certified. Mr. Justice Harlan dissented. ered against the said Jacob Forsyth. The NOTE.-A8 to jurisdiction of Federal over state courts; necessity of Federal questione notes to Hamblin v. Western Land Co. 37 L ed. U. S. 267; Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998. As to what is a Federal question; when con sidered-see note to Re Buchanan, 39 L. ed. U. S. 884. 723 was destroyed by the great fire in that city 2 Betober 9, 1871. To the declaration in the action upon this judgment the defendant pleaded (1) nil debet; (2) nul tiel record; (3) a discharge in bankruptcy (meaning under the bankrupt act of 1867). Plaintiff replied to the third plea, that the debt mentioned in the judgment was created by fraud, and therefore was not discharged under the bankrupt act. Unless the judgment sued upon was recov. ered on a debt created by fraud, the defendant's discharge in bankruptcy was a bar to the maintenance of this action. The bankrupt act of 1867, § 33 (14 Stat. at L. 517, 533, chap. 176; also Rev. Stat. § 5117), provided "that no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act," etc. Upon the trial the plaintiff, in order to prove the original judgment and its character, called as a witness the attorney who procured it, who testified that the declaration was in substance as follows: The plaintiff complains of the defendant in an action in trespass on the case, for that on the 10th day of August, 1868, in order to induce the plaintiff to advance to the defendant a large amount of money, to wit, the sum of $1,200, the defendant falsely and fraudulently represented unto the plaintiff that the defendant had a large amount of birch cordwood, to wit, the amount of 200 cords, cut and piled up near the Pittsburgh & Fort Wayne railroad in the county of Lake, state of Indiana, ready to be shipped to Chicago; that one Eldridge had contracted to purchase the wood at $6 per cord in the city of Chicago, when shipped, and that if the plaintiff would advance to the defendant at the rate of $5 per cord, for the 200 cords of wood, the defendant would immediately ship the cordwood to the city of Chicago; that the plaintiff, relying upon those representations as being true, advauced to the defendant the sum of $1,200; The opinion of the appellate court, in this that the defendant shipped only the sum of case, which was adopted by the supreme 40 cords of wood to Eldridge, upon which the court of the state, held that "the decplaintiff received the sum of $6 per cord; laration testified to is too plainly in tort that the representations of the defendant for false and fraudulent representations to were false and fraudulent; that he did not require argument. The allegation that the have and never did have in the county of representations were false and fraudulent Lake and state of Indiana 200 cords of birch implies that appellant knew of their falsity. [179]* wood piled up ready for shipment to the city... But even though an express allegation of Chicago to sell to Eldridge, but that he only had in the county of Lake, or anywhere else, the sum of 40 cords of birch wood, which was shipped by the defendant to Eldridge; that the plaintiff was damaged to the extent of the amount that was alleged in the declaration, and therefore he brings this action for fraud and deceit against the defendant. The plaintiff in error contends that the original judgment was not recovered in an action for fraud and deceit, and, even if it were, the fraud proved is not that kind of fraud which is debarred from a discharge in bankruptcy. He gave some evidence tending to show that the action was in the nature of one in assumpsit, but the finding of the court in plaintiff's favor must be held to be a finding that the action was for fraud. The declaration proved alleges a false and fraudulent representation *by means of which[180] the plaintiff below was induced to advance money to the defendant to his damage in a named amount. The defendant pleaded not guilty, and if the cause of action had been one in assumpsit, the plea at common law would have been nonassumpsit, instead of not guilty. 3 Ch. Pl. 10th Am. 3d Lond. ed. pp. 908, 1030. The declaration did not, it is true, contain the allegation that the representations of the defendant were false to his knowledge. It simply said that the representations of the defendant were false and fraudulent. of the scienter were necessary, its omission would be cured by the verdict.' [75 Ill. App. 322.] We understand by this opinion that the court held the first action was for fraud and deceit, and that the plaintiff was bound to have proved the fraud as alleged in the declaration in order to maintain the action. This decision involves no Federal question. Where the state court has decided that the action was for fraud and deceit, and has held that in order to have maintained such action the fraud must have been proved as laid in the declaration, it must be assumed that the verdict and judgment in that action were ob To this declaration the undisputed evidence shows that the defendant pleaded not guilty, and there was no other issue in the case, The verdict was "that the jury found the defendant guilty and assessed the plaintiff's damages at $833.35." Judgment was duly entered upon the verdict, and it is this judg-tained only upon proof and a finding by the ment which is sued upon in this action. The present action was tried before the court, and upon the trial the defendant read in evidence a duly certified copy of his discharge in bankruptcy on December 30, 1880. The court found the issues in favor of the plaintiff, and ordered judgment in his favor, which was duly entered. Upon appeal to the appellate court the judgment was affirmed, and upon a further appeal to the supreme court that court also affirmed it, and the case is now here on writ of error to the supreme court of Illinois. jury of the fact of fraud. Judgment being entered after a trial upon such pleadings and upon a verdict of guilty, the question of fraud was not open for a second litigation upon the trial of this action. The defendant below in this action had full opportunity given him to prove what in fact was the declaration in and the character of the first action, and the findings of the court below in favor of the plaintiff must be regarded as a finding against the defendant upon the issue as to the character of that action. The evidence offered by him and rejected by the court was not admissible on the issue because | bankrupt act, and the innocent members of it was not pertinent. The existence of the the firm were liable upon the debt created by [181]fraud must therefore be assumed in the *fur- the fraudulent misrepresentations of another ther progress of the case. The only matter member of the firm. left for this court to decide is whether a debt created by means of a fraud, such as is set forth in the declaration, is exempt from the effect of a discharge in bankruptcy. The proper construction of the section of the act relating to such a discharge has been frequently before this court, and we regard the law upon the subject as quite well settled. There are many cases where it has been claimed that the discharge was not operative, if the fraud proved was only constructive, and involved no moral turpitude or intentional wrong. Such cases are illustrated by that of Hennequin v. Clews, 111 U. S. 676, 28 L. ed. 565, 4 Sup. Ct. Rep. 576. In that case the pledgee of stocks held as security for a liability incurred by him for the pledgeor had thereafter hypothecated the stocks to secure a debt due from himself to another, and having failed to return to his pledgeor such stocks when his liability for the pledgeor had ceased, it was held that he was not thereby guilty of a fraudulent creation of his debt to the pledgeor, and that it had not been incurred in a fiduciary capacity, so as to bar his discharge under the 33d section of the bankrupt act. Many of the cases bearing upon the subject are cited by Mr. Justice Bradley, who delivered the opinion of the court, and it is unnecessary to comment upon them here. He referred to the case of Neal v. Clark, 95 U. S. 704, 24 L. ed. 586, where Mr. Justice Harlan, in delivering the opinion of the court, said: "Such association justifies, if it does not imperatively require, the conclusion that the 'fraud' referred to in that section [33] means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, as does embezzlement; and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality. Such a construction of the statute is consonant with equity, and consistent with the object and intention of Congress in enacting a general law by which the honest citizen may be relieved from the burden of hopeless insolvency. A different construction would be inconsistent with the liberal spirit which pervades the entire bankrupt system." The Hennequin Case was held to be governed by the principle announced in the case of Neal v. Clark, and the discharge was held effective. [182] In Strang v. Bradner, 114 U. S. 555, 29 L. ed. 248, 5 Sup. Ct. Rep. 1038, the rule as to the kind of fraud intended to be exempted from discharge by the bankrupt act was again adverted to, and it was again said that it was positive fraud or fraud in fact, involving moral turpitude or intentional wrong; not implied fraud which may exist without bad faith. In that case certain false and fraudulent misrepresentations of fact were made by one member of a partnership firm, by reason of which the debt was created, and it was held that it was a debt of that character which was not discharged under the 177 U. S. U. S., Book 44. Also in Ames v. Moir, 138 U. S. 306, 312, 34 L. ed. 951, 954, 11 Sup. Ct. Rep. 311, 313, it was said: "If Ames made his call with the knowledge that he was insolvent, and with the purpose of getting possession of the wines and shipping them out of the state without paying for them according to the terms of the executory agreement of June 9, and received them with that preconceived intent, and there was evidence that justified the jury in so finding, he was guilty of fraud in fact, involving moral turpitude or intentional wrong, and is not protected against the claim of the plaintiffs by his discharge in bankruptcy." Within this rule, as maintained by the court, there can be no doubt that the defendant below was not discharged under the bankrupt act. A representation as to a fact, made knowingly, falsely, and fraudulently, for the purpose of obtaining money from another, and by means of which such money is obtained, creates a debt by means of a fraud involving moral turpitude and intentional wrong. It is not necessary to enlarge upon the subject. It is so plainly a fraud of that description that its mere statement obtains our ready assent. The courts below were, therefore, right in denying to the defendant any benefit by reason of his discharge in bankruptcy. The judgment of the Supreme Court of the state of Illinois is right, and must therefore be affirmed. 46 *HARRY GUNDLING, Piff, in Err., v. CITY OF CHICAGO. (See S. C. Reporter's ed. 183-189.) Constitutional law-due process-ordinanoe as to license for sale of cigarettes-dis cretion of mayor. 1. 2. An ordinance giving the mayor power to determine whether a person applying for license to sell cigarettes has good character and reputation and is a suitable person to be intrusted with their sale, but requiring him to grant a license to every person fulfilling these conditions, does not vest in him any arbitrary power to grant or refuse a license, in violation of the provisions of U. S. Const. 14th Amend., either in regard to the clause requiring due process of law, or in that requiring equal protection of the laws. Regulations respecting the pursuit of a law ful trade or business, being an exercise of the NOTE. As to what constitutes due process of law-see notes to Pearson v. Yewdall, 24 L ed. U. S. 436; Wilson v. North Carolina ex rel. Caldwell, 42 L. ed. U. S. 865; People v. O'Brien, (N. Y.) 2 L. R. A. 258; Kuntz v. Sumption (Ind.) 2 L. R. A. 655; Re Gannon (R. I.) 5 L. R. A. 359; Ulman v. Baltimore (Md.) 11 L. R. A. 224; Gilman v. Tucker (N. Y.) 13 L. R. A. 304. As to limit of amount of license fees-see State e rel. Tol v. French (Mont.) 30 L. R. A. 415, and note. 725 INS 1900. N ERROR to the Supreme Court of the State of Illinois to review a decision affirming a judgment of conviction for violating an ordinance forbidding the sale of cigarettes without a license. Affirmed. See same case below, 176 Ill. 340, 52 N. E. 44. The facts are stated in the opinion. Mr. Lee D. Mathias argued the cause, and, with Mr. Charles H. Aldrich, filed a brief for plaintiff in error: The ordinance vests arbitrary and discretionary authority in the mayor, and is therefore void. Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064. The ordinance is void because its provi sions are beyond any reasonable necessity of police regulations. Tiedeman, Limitations of Police Power, 274; Cooley, Const. Lim. 744; Vansant v. Harlem Stage Co. 59 Md. 330; State North Hudson County R. Co. Prosecutor, v. Hoboken, 41 N. J. L. 71; St. Louis v. Boatmen's Ins. & T. Co. 47 Mo. 150. It is neither necessary to the protection or, nor conducive to, the public health or Welfare to restrain the business of selling cigarettes. The selling of cigarettes creates no disagreeable odors in the neighborhood in which they are sold, and in no way detracts from the happiness or comfort of the persons residing in the neighborhood. Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636. While it is true that the excessive use of cigarettes may be injurious, yet it is not dinance as the one in question. enough to justify such an unreasonable or Tiedeman, Limitations of Police Power, The case is not within the rule declared by this court in Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064, but is governed by Crowley v. Christensen, 137 U. S. 86, 34 L. ed. 620, 11 Sup. Ct. Rep. 13. See also Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, Sup. Ct. Rep. 730; Dent v. West Vir East St. Louis v. Wehrung, 50 Ill. 28;ginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Kinmundy v. Mahan, 72 Ill. 462; Chicago Ct. Rep. 231; Powell v. Pennsylvania, 127 v. Trotter, 136 Ill. 430, 26 N. E. 359; Cass U. S. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992, v. People ex rel. Kochersperger, 166 Ill. 126, 1257. 46 N. E. 729; Bradford v. Pontiac, 165 Ill. 612, 46 N. E. 794; Cairo v. Coleman, 53 Ill. App. 680; Re Elliott, 11 Manitoba Rep. 358, The practice of delegating to a common council much of the legislative power which the legislature might itself exercise is an exception to the general rule of nondelega tion. Cooley, Const. Lim. 189, 190; Houghton v. Austin, 47 Cal. 646. To hear evidence and adjudge a penalty or forfeiture is purely a judicial power. Poppen v. Holmes, 44 Ill. 360, 92 Am. Dec. 186; Darst v. People, 51 Ill. 286, 2 Am. Rep. 301; Flint & F. Pl. Road Co. v. Woodhull, 25 Mich. 100, 12 Am. Rep. 233. A ministerial act is one performed in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of judgment as to the propriety of the act, on the part of the party performing. Waldo v. Wallace, 12 Ind. 572. In the present case, under no condition prescribed is the mayor obliged to issue the license. Under no condition pointed out in the ordinance would a mandamus lie, that writ being appropriate only to compel the performance of ministerial acts. It is not an unlawful restraint upon the fundamental right of a man to pursue a lawful calling, to require a person desirous of pursuing the calling of selling cigarettes in the city of Chicago to be possessed of such a character or reputation as has some natural relation to such calling. Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Crowley v. Christensen, 137 U. S. 86, 34 L. ed. 620, 11 Sup. Ct. Rep. 13; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Brooklyn v. Breslin, 57 N. Ÿ. 591; People ex rel. Larrabee v. Mulholland, 82 N. Y. 324, 37 Am. Rep. 568; St. Louis v. Knox, 6 Mo. App. 247, Affirmed in 74 Mo. 79; Grand Rapids v. Braudy, 105 Mich. 670, 32 L. R. A. 116, 64 N. W. 29; Com. v. Hubley, 172 Mass. 58, 42 L. R. A. 403, 51 N. E. 448; Re Flaherty, 105 Cal. 558, 27 L. R. A. 529, 38 Pac. 981; State ex rel. Minces v. Schoenig, 72 Minn. 528, 75 N. W. 711; Re Bickerstaff, 70 Cal. 35, 11 Pac. 393; People ex rel. Nechamous v. Warden of City Prison, 144 N. Y. 529, 27 L. R. A. 718, 39 N. E. 686; State v. Gardner, 58 Ohio St. 599, 41 L. R. A. 689, 51 N. E. 136; Singer v. | and obey all laws of the state of Illinois and State, 72 Md. 464, 8 L. R. A. 551, 19 Atl. ordinances of the city of Chicago now in 1044; State ex rel. Winkler, v. Benzenberg, force or which may hereafter be passed, with 101 Wis. 172, 76 N. W. 345; Player v. Vere, reference to cigarettes; provided, however, T. Raym. 288; Shaw v. Pope, 2 Barn. & Ad. that nothing herein contained shall be held to authorize the sale of cigarettes containing opium, morphine, jimson weed, belladonna, glycerine, or sugar. 465. Whether a person desirous of pursuing the calling of selling cigarettes in the city of Chicago is, in point of fact, a fit person to be allowed to engage in such calling, may be left to the judgment of another person, or body of persons, other than a judge and jury, without invading any fundamental right of such person. Ibid. So far as appears in this record, the sum of $100 is not an unreasonable fee to exact for a license to sell cigarettes in the city of Chicago. St. Louis v. Western U. Teleg. Co. 148 U. S. 92, 37 L. ed. 380, 13 Sup. Ct. Rep. 485; Van Hook v. Selma, 70 Ala. 361, 45 Am. Rep. 85; Tiedeman, Limitations of Police Power, p. 274; Cooley, Const. Lim. 5th ed. pp. 245, 614, notes; Burlington v. Putnam Ins. Co. 31 Iowa, 102. [183] *Mr. Justice Peckham delivered the opinion of the court: The plaintiff in error was convicted in a police court of the city of Chicago of a violation of an ordinance of that city forbidding the sale of cigarettes by any person without a license, and was fined $50. From the judgment of conviction he appealed to the criminal court of Cook county, where it was aflirmed, and thence to the supreme court of the state, where it was again affirmed, and he now brings the case here on writ of error. "Sec. 2. Every person, on compliance with the aforesaid requirements and the payment in advance to the city collector, at the rate of $100 per annum, shall receive a license under the corporate seal, signed by the mayor and countersigned by the clerk, which shall authorize the person, firm, or corporation therein named to expose for sale, sell, or offer for sale cigarettes at the place designated in the license; provided, that no license shall be granted to sell within 200 feet of a schoolhouse. "Sec. 8. Any person who shall hereafter have or keep for sale or expose for sale or offer to sell any cigarettes at any place within the city of Chicago, without having first procured the license provided, shall be fined not less than $50 and not exceeding $200 for every violation of this ordinance, and a further penalty of $25 for each and every day the person, firm, or corporation persists in such violation after a conviction for the first offense." *The other sections are not material to[185] this inquiry. The plaintiff in error made no application to the health commissioner to obtain a license from the mayor in accordance with the above-mentioned ordinance. He specially set up in the courts below that the ordinance was invalid, because in violation of the Fourteenth Amendment, as depriving Sections 1, 2, and 8 of the ordinance re-him of his property without due process of ferred to read as follows: "Any person, firm, or corporation desiring a license to sell cigarettes shall make writ[184]ten application for that purpose to the commissioner of health, in which shall be de scribed the location at which such sales are proposed to be made. Said application shall be accompanied by evidence that the applicant, if a single individual, all the members of the firm, if a copartnership, and person or persons in charge of the business, if a corporation, is or are persons of good character and reputation. The commissioner of health shall thereupon submit to the mayor the said application with the evidence aforesaid, with his opinion as to the propriety of granting such license, and if the mayor shall be satisfied that the persons before mentioned are of good character and reputation, and are suitable persons to be intrusted with the sale of cigarettes, he shall issue a license in accordance with such application, upon such applicant filing a bond payable to the city of Chicago, with at least two sureties, to be approved by the mayor, in the sum of $500, conditioned that the licensed person, firm, or corporation shall faithfully observe law. He contended in the state courts that the common council of the city of Chicago had no right to pass the ordinance in question, because no such power was given to it under the general act of the state of Illinois which incorporated the city of Chicago. The supreme court of the state, however, in construing that act, decided that it did authorize the city to pass the ordinance, and the plaintiff in error admits that this deci ion is conclusive upon us as the decision of a question of local law by the highest court of the state. He makes two claims here upon which he bases the statement that the ordinance violates his rights under the Fourteenth Amendment of the Federal Constitution. Quoting from counsel's brief, these claims are: First, that the state itself, acting through the common council of the city of Chicago, is inhibited by the Federal Constitution from making those provisions in the ordinance which delegate to the mayor the entire subject of granting and revoking li censes to persons engaged in the business of selling cigarettes; second, that the ordinance is unconstitutional and void as being an unreasonable exercise of the police power by imposing a license fee of $100, a sum manifestly greater than the expense of issuing the license and providing for the regula 727 |