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Cited on this point in Illinois, etc., Ry. Co. v. Decatur, 147 U. S. 198, 37 L. 134, 13 S. Ct. 294, Central Pacific R. R. v. Board of Equali zation, 60 Cal. 59, State v. Foley, 30 Minn. 357, 15 N. W. 379, and State v. Yellow Jacket Mining Co., 14 Nev. 250, all holding tax not a debt; State v. Express Co., 60 N. H. 255, holding special tax on railway expressmen invalid; Redmond v. Commissioners, 106 N. C. 136, 10 S. E. 849, 7 L. R. A. 543, construing State Constitution as to taxation; State v. Sinks, 42 Ohio St. 359, holding liquor license law unconstitutional; Crawford v. Linn Co., 11 Or. 491, 5 Fac. 742, holding power of legislature over taxation limited only by condi tion that it be equal and uniform; State v. Tomahawk Council, 96 Wis. 82, 71 N. W. 89, passing upon validity of railroad aid bonds. See note in 59 Am. Dec. 789, 8 Am. St. Rep. 510, extensive note, collecting definitions.

Taxation. There can be no lawful tax which is not laid for a public purpose; therefore, power of taxation cannot be exercised in ald of enterprises strictly private, though, remotely or collaterally, the local public may be benefited thereby, p. 664.

Following are the citing cases approving and relying upon this holding: Missouri, etc., Ry. Co. v. Nebraska, 164 U. S. 417, 41 L. 495, 17 S. Ct. 135, in holding State cannot take property of one person, without owner's consent, for use of another person; Garland v. Board of Revenue, 87 Ala. 227, 6 So. 403, holding act authorizing building of railroad bridge by county and issuance of bonds to pay for same, invalid; McClelland v. State, 138 Ind. 332, 37 N. E. 1092, holding statute for relief of school trustee invalid, taxation being necessary to accomplishment object thereof; State v. Osawakee Township, 14 Kan. 420, 428, 19 Am. Rep. 100, 105, holding act providing for bond issue to aid destitute farmers invalid; Blain v. Riley Co. Agricutural Society, 21 Kan. 560, refusing mandamus to treasurer, upon authority of last citation; Atchison, etc., R. R. v. Atchison, 47 Kan. 714, 28 Pac. 1001, holding tax levied in aid of private sectarian colleges, void; Geneseo v. Geneseo Gas Co., 55 Kan. 362, 40 Pac. 656, holding law authorizing cities to encourage development of coal, etc., by subscribing to stock of companies developing same, invalid; Lancaster v. Clayton, 86 Ky. 380, 5 S. W. 867, holding agreement by city to exempt hotel, when built, from taxation, invalid, though hotel was built on faith therein; Baltimore, etc., R. R. v. Spring, 80 Md. 517, 31 Atl. 210, 27 L. R. A. 74, holding unconstitutional, an act levying tax to pay certain persons' debts due them from insolvent railroad; Kingman v. Brockton, 153 Mass. 259, 26 N. E. 999, 11 L. R. A. 125, and n., holding unconstitutional act authorizing city to appropriate money for erection of Grand Army building; Opinion of Justices, 155 Mass. 601, 603, 30 N. E. 1144, 15 L. R. A. 810, 811, holding legislature powerless to authorize towns to buy fuel for purpose of sale to inhabitants;

State v. Foley, 30 Minn. 356, 15 N. W. 378, holding legislature cannot compel taxation to refund money paid on tax sale; Deal v. Mississippi Co., 107 Mo. 469, 18 S. W. 25, 14 L. R. A. 623, holding provision for bounty for planting trees, invalid; State v. Switzler, 143 Mo. 314, 316, 317, 318, 65 Am. St. Rep. 658, 660, 661, 45 S. W. 248, 249, 40 L. R. A. 285, 286, holding act directing proceeds of inheritance tax to be devoted to establishment of free scholarship at State University, void; Manning v. Klippel, 9 Or. 370, holding law establishing special fees for officers in certain counties, only local tax law and invalid; Feldman v. City Council, 23 S. C. 63, 64, 67, 55 Am. Rep. 9, 10, 12, holding bonds issued and loaned to sufferers from Charleston fire, to enable them to rebuild, invalid; Maudlin v. City Council, 53 S. C. 293, 69 Am. St. Rep. 860, 31 S. E. 254, 43 L. R. A. 104, holding act authorizing taxation of owners of lots on certain street for improvement thereof, unconstitutional; Williams v. Davidson, 43 Tex. 37, holding city cannot contract with individual to erect bridge, to be paid for by unequal tolls; Brooke Academy v. George, 14 W. Va. 420, 422, 424, 35 Am. Rep. 762, 764, 765, holding act appropriating money bequeathed to State to private academy, void; Pittsburgh, etc., R. R. v. Iron Works, 31 W. Va. 734, 8 S. E. 466, 2 L. R. A. 690, and n., holding property cannot be condemned for branch railroad to private factory; Wisconsin Keeley Institute v. Milwaukee County, 95 Wis. 161, 60 Am. St. Rep. 110, 70 N. W. 71, 36 L. R. A. 59, holding act providing for maintenance of drunkards at private institution, invalid; dissenting opinion in Hope v. Board of Liquidation, 43 La. Ann. 780, 9 So. 769, holding bonds in effect issued in aid of bank, and, therefore, void, majority contra; State v. Sargent, 12 Mo. App. 241, holding tax sale under judgment against several lots, must be stopped when sheriff has received amount due, majority holding entire tract may be sold.

Cited also, arguendo, in Nashville, etc., Ry. Co. v. Taylor, 86 Fed. 186, and Fallbrook Irrigation District v. Bradley, 164 U. S. 155, 41 L. 387, 17 S. Ct. 62, both reversing S. C., 68 Fed. 958, explaining rule, but not applying same; Wyckofe v. Southern Hotel Co., 24 Mo. App. 390, arguendo, innkeeper's lien cannot be legally extended to include property of third persons brought to inn by guest. See 98 Am. Dec. 666, note, on defenses to municipal bonds; 16 Am. St. Rep. 365. 366, extended note, on purposes justifying taxation.

Distinguished in Briggs v. Johnson County, 4 Dill. 153, F. C. 1,872, where it was held that taxation for support of a State normal school was in aid of a public institution, and valid; Phoenix Assurance Co. v. Fire Department, 117 Ala. 647, 23 So. 847, 42 L. R. A. 472, upholding tax on insurance companies doing business in city, for benefit of fire department thereof; Elmore v. Drainage Commrs., 135 Ill. 275, 25 Am. St. Rep. 366, 25 N. E. 1011, holding drainage district a public corporation; Attorney-General v. Boston, 123 Mass.

470, holding use of words "purpose of improving private property," in preamble of otherwise valid act, does not invalidate same; State v. Seibert, 123 Mo. 429, 24 S. W. 750, holding appropriation for support of indigent insane from without city, in asylum of latter, valid; Wood v. Oxford, 97 N. C. 235, 2 S. E. 657, holding law authorizing municipal aid to railroads, valid, they being quasi-publie corporations; North Dakota v. Nelson County, 1 N. Dak. 95, 26 Am. St. Rep. 615, 45 N. W. 35, 8 L. R. A. 287, and n., upholding act anthorizing issuance of bonds to procure seed for destitute farmers; State v. Toledo, 48 Ohio St. 139, 26 N. E. 1068, 11 L. R. A. 738, and n., holding supplying city with natural gas a public purpose, for which taxing power may lawfully be exercised. Modified in Santa Ana v. Harlin, 99 Cal. 542, 34 Pac. 226, holding legislative determination of what constitutes public use, unreviewable, except in extreme cases. Qualified in In re Madera Irrigation District, 92 Cal. 309, 27 Am. St. Rep. 113, 28 Pac. 274, 14 L. R. A. 761, and n., holding doubt as to whether purpose of tax is public or private, must be resolved in favor of publicity; State v. Cornell, 53 Neb. 559, 68 Am. St. Rep. 631, 74 N. W. 60, 39 L. R. A. 515, holding absence of public interest in purpose for which money is to be raised, must be clear and palpable to fustify court declaring it invalid. Questioned in Perry v. Keene, 56 N. H. 532, holding judiciary has no power to review decision of legislature, that tax purpose is public.

Municipal corporations.- Fact that a municipality paid installment of interest on invalid bonds, does not prevent it from denying validity of such bonds, p. 667.

Reaffirmed in Parkersburg v. Brown, 106 U. S. 501, 27 L. 244, 1 S. Ct. 453, and Doon Township v. Cummins, 142 U. S. 376, 35 L. 1048, 12 S. Ct. 223, both cases passing on same question; Lewis v. Shreve port, 3 Woods, 214, F. C. 8,331, holding, where municipality issued bonds not authorized by its charter, it is not estopped from denying validity of its act, even if it has retained consideration for which bonds were issued; Brown v. Ingalls, 81 Fed. 489, and Eufaula v. McNab, 67 Ala. 593, 42 Am. Rep. 122, both holding payment of interest on debt created by ultra vires contract, does not estop city from denying validity thereof; McPherson v. Foster, 43 Iowa, 69, 22 Am. Rep. 232, holding payment of interest thereon does not estop school district from denying validity of bonds; Commissioners v. Payne, 123 N. C. 489, 31 S. E. 712, holding payment of interest on bonds from year to year, not an estoppel, and does not validate same; Feldman v. City Council, 23 S. C. 70. 55 Am. Rep. 15, holding payment of interest on bonds in aid of fire sufferers, no estoppel to denial of validity. Cited, arguendo, in Green v. Dyersburg. 2 Flipp. 500, F. C. 5,756, and dissenting opinion in Moore v. New Orleans. 32 La. Ann. 752, no special application. Cited generally In Plumb v. Grand Rapids, 81 Mich. 394, 45 N. W. 1029, holding city

not estopped from asserting claim to land, by reason of its illegal assessment of claimant; Hawkins v. Carroll Co., 50 Miss. 766, holding county not estopped to deny validity of bonds prior to negotiation; Municipal Security Co. v. Baker County, 33 Or. 353, 54 Pac. 178, in discussion as to effect of ratification of unauthorized acts. See extended note in 98 Am. Dec. 689, on estoppel by payment of interest.

Distinguished in Neely v. Yorkville, 10 S. C. 151, holding payment of interest on bonds, estopped city from denying proper execution thereof, where city had authority to issue.

Municipal corporations.— A statute authorizing town to issue its bonds in aid of manufacturing enterprises of individuals, is void, and bonds issued thereunder are invalid, p. 667.

Reaffirmed in Parkersburg v. Brown, 106 U. S. 500, 27 L. 244, 1 S. Ct. 452, where West Virginia statute was under consideration; Cole v. La Grange, 113 U. S. 6, 9, 28 L. 898, 5 S. Ct. 418, 420, affirming S. C., 19 Fed. 873, in construing Missouri statute; Com. mercial Bank v. Iola, 154 U. S. 617, 22 L. 463, 14 S. Ct. 1199, where court passed on same statute as was under consideration in principal case; Pollock v. Farmers, etc., Trust Co., 157 U. S. 595, 39 L 824, 15 S. Ct. 695, holding private enterprises cannot be aided by exempting them from taxation; Brown v. Ingalls, 81 Fed. 486, but holding refunding bonds legally issued are valid in hands of bona fide purchaser, though original bonds were void; Mayor v. Moog, 53 Ala. 565, holding city cannot enter contract requiring levy of tax in favor of private business; Consolidated Channel Co. v. Central Pacific R. R., 51 Cal. 272, denying right of legislature to take private property to enable one to build flume on another's land; Mather v. Ottawa, 114 Ill. 665, 3 N. E. 219, holding bonds issued to aid manufacturing enterprises, void; C. B. U. P. Bldg. Co. v. Smith, 23 Kan. 752, holding bonds issued to aid manufacturing company in establishment of mills, void; Lord Cecil v. Board of Liquidation, 30 La. Ann. 39, 40, holding bonds issued in favor of navigation company, vold; Ohio Valley Works v. Moundsville, 11 W. Va. 13, holding bonds issued to aid manufacturing enterprise void. Cited, arguendo, in Laird v. De Soto, 32 Fed. 653; incidentally in Otis v. Cullum, 92 U. S. 448, 23 L. 496, a suit growing out of decision in principal case; Irvine v. Board, 75 Fed. 768, in discussion as to circumstances which will give holders of illegal municipal bonds equitable right to recover from municipality. See 98 Am. Dec. 668, and 16 Am. St. Rep. 370, notes, collecting instances of purposes de clared private. See also citations under ninth syllabus.

Miscellaneous.- Cited incidentally in Davidson v. New Orleans, 96 U. S. 105, 24 L. 620, and Vincent v. County of Lincoln, 30 Fed. 750, where court holds Nevada counties may be sued as natural persons; Tunstall v. Parish of Madison, 30 La. Ann. 475.

20 Wall. 670-686, 22 L. 452, BASEY v. GALLAGHER.

Appeal and error.- Where record does not disclose disposition of demurrer, and parties proceeded on subsequently filed answer, demurrer is presumed to have been abandoned, p. 679.

Followed in Southern Ry. v. Rhodes, 86 Fed. 424, presuming demurrer overruled, where trial proceeded on merits without objection. Actions.- In States abolishing distinctions between legal and equitable forms of actions, essential distinctions are not likewise abolished; legal relief must be administered through jury, unless waived, and equitable, by court itself, jury's verdict being merely advisory, p. 680.

Cited and followed in Van Norden v. Morton, 99 U. S. 381, 25 L 455, holding jurisdiction as between law and equity sides of Federal courts, determinable by essential character of case; Watt v. Starke, 101 U. S. 252, 25 L. 827, Quinby v. Conlan, 104 U. S. 424, 26 L. 801, Larrabee v. Grant, 70 Me. 84, and Smith v. Richardson, 2 Utah, 427, 428, and Wasatch Mining Co. v. Jennings, 14 Utah, 227, 46 Pac. 1108, all holding verdict of chancery jury not conclusive on court; United States v. Wilson, 118 U. S. 90, 30 L. 112, 6 S. Ct. 993, and Thomas v. American Mortgage Co., 47 Fed. 553, 554, 12 L. R. A. 686, and n., both holding State statute abolishing said distinctions cannot confer jurisdiction on Federal equity court, to try law case; Hammer v. Garfield Mining Co., 130 U. S. 295, 32 L. 966, 9 S. Ct. 550, holding jury's findings in equity case will be treated on appeal as court's findings; The Empire, 19 Fed. 560, holding court may disregard jury's verdict in admiralty case; In re Thomas, 45 Fed. 787, holding report of referee in bankruptcy, merely advisory, reference being ordered on motion of one party; Shoshone Mining Co. v. Rutter, 87 Fed. 805, 59 U. S. App. 546, holding suit to determine rights to mining ground, must be brought on equity side of Federal court; Davis v. Holbrook, 25 Colo. 495, 496, 55 Pac. 731, holding equitable relief in legal action discretionary with chancellor; Houser v. Austin, 2 Idaho, 194, holding submission to jury of both legal and equitable issues in equity case discretionary; Evans v. Nealis, 87 Ind. 268, and Platter v. Board of Commissioners, 103 Ind. 383, 2 N. E. 558, both holding equity court may make its own findings, disregarding verdict; Robertson v. McPherson, 4 Ind. App. 597, 31 N. E. 478, holding action for damages for fraudulent conveyance properly submitted to jury; Fabian v. Collins, 3 Mont. 227, holding defendant in action for diversion of water, not entitled to jury trial; Mantle v. Noyes, 5 Mont. 286, 5 Pac. 859, holding jury's findings not binding in equitable sult to quiet title; Clark v. Baker, 6 Mont. 158, 9 Pac. 914, holding question of mortgagee's right to possession, raised in foreclosure, triable by jury; Sanford v. Gates, 21 Mont. 286, 287, 53 Pac. 752, holding where equitable de fense is interposed, court has power of chancellor: Power v. Lenoir.

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