The complainant is the owner of a large amount of real estate in the City of Sheboygan, which is described in the bill. On the 17th of January, 1854, the Legislature passed an Act entitled "An Act to authorize the City of Sheboygan to aid in the construction of a railroad." This Act authorized the Commissioners named in it to borrow $100,000 upon the credit of the City, to be invested in the cap ital stock of a Railroad Company, authorized to construct a railroad from the City of Sheboygan westwardly by way of Fon-du-lac to the Missis sippi River, and to issue therefor the bonds of the City according to the provisions of the Act. The Act further provided that the City should annually levy a tax upon all the taxable property of the City sufficient, in addition to the dividends upon the shares of its stocks in the Company, to pay the interest upon the bonds. The Act also authorized the City Council to submit to the qualified voters of the City, the question whether the further sum of $100,000 should be raised and invested in. the same manner as the first $100,000. By an Act of the Legislature of the 28th of March, 1856, entitled, "An Act to authorize the City of Sheboygan to aid in the construction of the Sheboygan and Mississippi Railroad," the City Council was authorized to subscribe $50,000 to the capital stock of the Company, and to increase the amount of subscription from time to time until the aggregate should reach the sum of $100,000. The installments upon the stock subscribed were to be paid by the levy of an annual tax upon all the real estate in the City-not exceeding $25,000 in any one yearuntil the whole amount of the subscriptions should be paid. Under these Acts the City has made loans and issued its bonds therefor to the amount of $200,000. The Legislature passed a subsequent Act, which is as follows: "Section 1. All taxes hereafter levied by the Common Council of the City of Sheboygan for 512*] the (payment) of principal or interest of any bonds issued or to be issued by said City, to aid in the construction of any railroad, plank road, or for any improvement of the harbor at the mouth of the Sheboygan River, shall be levied by said Council on the real estate of said City, exclusively. "Sec. 2. All Acts or parts of Acts that conflict with the provisions of this Act, are hereby repealed. "Sec. 3. This Act shall take effect and be in force from and after its passage. "Approved March 7, 1857." In the year 1857, the City Council, under the last named Act, levied a tax upon all the real estate within the limits of the City, of six cents upon each dollar of the valuation thereof, "for its harbor loans, railroad and plank road bonds," "and did not levy said sum or any part thereof upon any other kind of property within said City of Sheboygan, for the said harbor loans, railroad and plank road bonds, but levied the tax for the payment of the interest upon those specific objects entirely and solely out of the real estate within said city limits; and that the real estate above stated and set forth in this complaint was included in and was taxed at the rate aforesaid, and for the purpose aforesaid." At the time this tax was levied, there was personal property in the City of Sheboygan to the amount of three or four hundred thousand dollars, liable to taxation, and upon which no tax was levied for either of said purposes for the year 1857. The Act of March 7, 1857, and the tax levied under it, are alleged to be void. Defendant, Geele, is the Treasurer of said City, and as such authorized to execute deeds for land sold for taxes when the time for redemption expires. The defendants' property in the City has been sold for said tax and bought in by the City. Geele threatens to execute deeds to the City for the same. The time for redemption is about to expire. The deeds, it is alleged, will cast a cloud upon complainant's title, embarrass him in disposing of the property, and render it less valuable to him. The prayer of the bill is, that the Treasurer be perpetually enjoined from executing, and the City from receiving, such deeds, and for general relief. The complainant subsequently filed an amended bill, in which it was [*513 claimed that the Act of 1857, and the tax levied under it, were void, because the Act of 1854 provided that a tax should be levied upon all the taxable property of the City for the payment of said bonds, that the bonds were issued and taken upon the faith of that Act, and that its provisions constitute a contract with the bondholders, which the Act of 1857 seeks to violate. The defendants demurred, and the court sus-1 tained the demurrer. Was there such a contract as is averred in the amended bill? The Act of 1854 authorized the borrowing of money, the issuing of bonds, and the levying of a tax upon all the property in the City, for the purposes specified. The imposition, modification, and removal of taxes, and the exemption of property from such burdens, is an ordinary exercise of the power of State sovereignty. There is no pledge, express or implied, that this power should not thereafter be exercised. Admitting that the State could enter into such an engagement, there is no evidence that it did. This fact should never be assumed unless the language used be too clear to admit of doubt. If the agreement existed, the complainant is not in a position to make the question. There is no allegation that the tax levied is insufficient. We hear of no complaint from the bondholders. They are not before us. It does not belong to the complainant, vicariously, to enforce their contract and protect their rights. The objection, that these acts take private property for public purposes without compensation, and hence are within the prohibition of the State Constitution upon that subject, is also without foundation. That clause of the Constitution refers solely to the exercise, by the State, of the right of eminent domain. The People v. The Mayor of Brooklyn, 4 N. Y., 419. Is the Act of 1857 invalid, because it requires the tax in question to be levied exclusively upon the real estate of the City? The provisions of the State Constitution, to which our attention has been called, as bearing upon the subject, are the following: *Art. VIII. "Sec. 1. The rule of tax- [*514 ation shall be uniform, and taxes shall be levied upon such property as the Legislature shall prescribe." Art. XI. "Sec. 3. It shall be the duty of the | Legislature, and they are hereby required, to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts, by such municipal corpo rations." The Revised Statutes of Wisconsin, title 5, chap. 18, page 200, provide as follows: "Sec. 1. All property, real and personal, within this State, not expressly exempted therefrom, shall be subject to taxation in the manner provided by law." "Sec. 4. The following property shall be exempt from taxation: All property, real and personal, of the United States and of this State. All public or corporate property of the several counties, cities, villages, towns and school districts in this State." * * "All property exempt by laws from execution, not exceeding in value $200." their acts in levying taxes are as much the act of the State as if the State acted by its own officers. "The Constitution of the State requires, as a rule in levying taxes, that the valuation must be uniform, and in all cases alike or equal, operating alike upon all the taxable property throughout the territorial limits of the State or municipality within which the tax is to be raised. And where the Legislature prescribed a different rule, the Act is a departure from the constitution and, therefore, void. "The Constitution has fixed one unbending uniform rule of taxation for the State, and property cannot be classified and taxed as classed by different rules. *"The provision of the Constitution, [*516 that taxes shall be levied upon such property as the Legislature shall prescribe, does not sanction 'a discrimination which provides for taxing a particular kind of property for the support of government by a different rule from that by which other property taxed; for when the kind of property is prescribed, the rule of taxation must be uniform. All kinds of property must "The personal property of all literary, benev-be taxed uniformly, or be absolutely exempt."" olent, charitable and scientific institutions within this State, and such real estate as shall be actually occupied by them for the purposes for which they have been or shall be organized." "All houses of public worship, and the lots on which they are situate," &c. "All public libraries, and the real and personal property belonging to or connected with the same." "The property of all Indians, who are not citizens, except the lands held by them by purchase." "The personal property of persons, who, by reason of infirmity, age and poverty, may, in the opinion of the assessors, be unable to contribute towards the public charges." 515*] "All property, real and personal, belonging to any agricultural society in this State." * * * No other property is exempted. In Weeks v. The City of Milwaukee et al., 10 Wis., 242, Mr. Justice Payne, referring to "the provision of Article II., Sec. 3, requiring the Legislature, in establishing municipal corporations, 'to restrict their powers of taxation so as to prevent abuses,' &c.," says: "Restrictions may be and, undoubtedly, are necessary to prevent abuses which may not amount to a violation of the rule of uniformity. There may be uniform abuse of the taxing power by reckless and improvident management on the part of these local authorities, and I think the provision last mentioned was designed to give further protection-in addition to that furnished by the rule of uniformity." Such was the unanimous judgment of the court. Concurring in that opinion, we lay this section of the constitution out of view. In Knowlton v. The Supervisors of Rock County, 9 Wis., 410, the section requiring uni formity of taxation underwent an able and exhaustive examination. The court affirmed the following propositions: "The levying of taxes by the authorities of a county, city, or town, for their support, is as much an exercise of the taxing power as when levied directly by the State for its support. The State acts by the municipal governments, and In this case, under the provisions of the charter of the City of Janesville, lands within the City limits, laid out into City lots, and other lands not so laid out, had been taxed at different rates, and the property of the plaintiff had been sold for the non-payment of the taxes. The court held the tax void, and enjoined the treasurer from executing deeds to the tax purchasers. In the case of Weeks v. The City of Milwaukee et al., 10 Wis., 242, the preceding case was considered and approved by the court. The propositions that the constitutional provision requiring the "rule of taxation be uniform," extends to municipal corporations, and that the constitutional provision requiring the Legislature to restrict their powers of taxation, was only intended to furnish a further protection, were expressly and unanimously reaffirmed. They held further, that where the assessors of the City of Milwaukee, in obedience to an ordinance of that City, omitted to assess property to the value of $150,000, which ought to have been assessed, and that property was thereby exempted from taxation, the omission was fatal to the entire tax, and that the complainant's taxes being increased by the omission, he was entitled to an injunction to restrain the sale of his lands for such illegal taxes. In Lumsden v. Cross, 10 Wis., 282, the doctrines of Knowlton v. The Supervisors of Rock County, were again unanimously approved. In their opinion the court adopt the following language, from the City of Zanesville v. Richards, 5 Ohio State, 589: "The General Assembly is no longer invested with the discretion to apportion the tax, and to determine upon what property, and in what proportion the burden shall be laid. A uniform rate *per [*517 cent. must be levied upon all property subject to taxation according to its true valuation money, so that all may bear an equal burden." The Ohio case was decided under provisions in the Constitution of that State similar to those in the Constitution of Wisconsin, to which we have referred. In the Attorney-General v. The Winnebago Lake and Fox River Plank Road Company, 11 Wis., 42, the court says: "It cannot be denied that under the power of exemption, unjust enactments in respect of the power of taxation might be made. But those who framed the Constitution did not see fit to prevent such evils by depriving the Legislature of the power. But they did provide that whatever property was made taxable at all, should be taxed by a uniform rule, which was designed to secure equal ity in the burdens as between the different kinds of taxable property, but of course not between property taxable and that not taxable." as been shown, in the City of Janesville. The tax The same result must follow here. A case illustrating more strongly than the case before us, the wisdom of the rule of the Constitution, as thus interpreted, and the injustice which may be done in departing from it, can hardly be imagined. The court below erred in sustaining the demurrer and dismissing the bill. The decree is reversed, and the cause remanded for further proceedings, in conformity ANDREW ROTHWELL, John A. Smith, Henry The court refer with approbation to the Ex-with this opinion. change Bank of Columbus v. Hines, 3 O. St., 1. In that case the Supreme Court of Ohio, say: "Taxing is required to be by a uniform rule'that is, by one and the same unvarying standard. Taxing by a uniform rule requires uniformity not only in the rate of taxation, but also uniformity in the mode of assessment upon the taxable valuation. Uniformity in taxing implies equality in the burden of taxation, and this equality of burden cannot exist without uniformity in the mode of assessment, as well as the rate of taxation. But this is not all. The uniformity must be co-extensive with the territory to which it applies. If a State tax. If a it must be uniform all over the State. We forbear to examine the soundness of the conclusions of the Supreme Court of Wisconsin. They need no support at our hands. We could add nothing to what they have so well and ably 518 ] *said in vindication of their own views. Such a discussion would incumber this opinion without throwing any new light upon the subject. Acting upon a principle, recognized in its administration from the earliest period of its history, this court considers itself bound in cases like this, to follow the settled adjudications of the highest state court, giving constructions to the Constitution and laws of the State. Leffingwell v. Warren, decided at this term (2 Black, 599, ante, 261). v. GEORGE W. DEWEES, Mary Smith, Archer (See S. C. 2 Black, 613-619.) Dismissal of suit, when proper· - purchase by agent, inures to benefit of principal — purchase by tenant in common inures to benefit of co-tenants equality of interest, not necessary. ceived, on which one could assert his title against Where no ground of equitable jurisdiction is perthe defendants in a court of chancery, his petition to be admitted party plaintiff was properly overruled. The dismissal of the bill, as to two complainants who had no title, or who failed to produce any evidence of their title, was correct. A purchase of an outstanding title or interest in property, by a person sustaining the relation of agent to others interested in the same property, will, at the option of the latter, inure to their bene fit. His purchase must be held to be in trust for the benefit of his principal, on repayment of the sum advanced by him. The defendants, who are his heirs, can stand in no better condition that he would if he were alive. Where two devisees or tenants in common, hold under an imperfect title, and one of them buys in the outstanding title, such purchase will inure to their common benefit upon contribution made to repay the purchase money. Equality of interest is not necessary; the rule ap plies as forcibly to the husband of a tenant in com mon, as to one of the immediate co-tenants. Argued Jan. 8, 1863. Decided Jan. 19, 1863. A States for the District of Columbia. PPEAL from the Circuit Court of the United The bill avers that at the time the tax complained of was levied, there was personal property in the city, of the value of from $300,000 to $400,000, liable to taxation. The demurrer admits this fact. The statute prescribing the property to be taxed, and that to be wholly exempted from taxation, shows that this personal property must have been taxed for other purposes. This tax was levied exclusively upon the real estate of the City. That was a discrimination in favor of the personal property. It was beyond the constitutional power of the Legislature to Lake any discrimination. Property must be wholly exempted or not exempted at all. No partial exemption or discrimination is permitted. To impose certain taxes exclusively upon one class of taxable prop-lor and Smith. erty is as much a discrimination as to vary the rates of the same or other taxes upon different classes of property. The latter was attempted to be done, as has This action was commenced in the court below, cn the equity side, by Rothwell, Naylor and Smith, to obtain a decree permitting them to redeem certain land which had been sold for taxes. Robert S. Ford afterwards petitioned for leave to come in as complainant, which was refused. The court below dismissed the bill as to Nay The decree as to Rothwell, and the facts in Mr. Justice Miller delivered the opinion of the court: The appellees in this case, who were the defendants in the Circuit Court, hold the real estate, which is the subject of this controversy, by inheritance from their father, William Dewees. The title of Dewees was a deed from the Corporation of Washington City, made August 29th, 1836, on a sale for taxes. It seems to be admitted on all sides that this deed vested the legal title in Dewees, and that it is valid in his heirs, unless the plaintiffs shall be permitted to redeem from said sale, and have the deed set aside for reasons set forth by them in their bill. The property in question was conveyed by Robert Morris, in 1796, to Joseph Ball and Standish Forde. Forde was then doing business in Philadelphia as a merchant, in partnership with one John Reed, and died about the year 1806 or 1807, leaving the mercantile firm insolvent. Shortly after Forde's death, Reed, the surviving partner, conveyed all the partnership property to William Paige, of Philadelphia, by deed of assignment for the benefit of creditors; and in the schedule attached to the instrument of assignment is included the property thus conveyed by Morris to Ball & Forde. This instrument is dated December 12th, 1807. On the 18th of September, 1833, William Paige, as assignee of Reed, surviving partner of Reed & Forde, entered into a written agreement with William Dewees, the defendants' ancestor, in reference to this property; the substance of which is, briefly, this: 615*] *Dewees was to take charge of the property, and redeem it from any tax sales which had already been made, and for which the time of redemption had not expired. He was to pay all future taxes, and all the expenses incident to sales of lots to be made by himself, for which he was furnished, with a power of attorney by Paige. The money for all these taxes and expenses he was to advance, except a sum of about $200 or $300, which was supposed to be in the hands of the Treasurer of Washington City, belonging to Reed & Forde, arising in some way out of sales for taxes already made. His compensation for all this was, that, after deducting his advances and interest from the proceeds of sales made by him, he was to have one third of the remainder of such proceeds. the right, title and interest which he had as such assignee in the property now in dispute. The claimant, Rothwell, also procured deeds of conveyance to himself and his co-plaintiffs, Naylor and Smith, from several persons, describing themselves as heirs of Standish Forde, of their interest in the same property. Rothwell, Smith and Naylor then filed their bill in chancery against the defendants, one of whom is Rothwell's wife, praying to be permitted to pay the sum with interest which William *Dewees had paid for his tax deed, and [*616 to have said deed set aside. After the suit had progressed for some time, the other appellant, Robert S. Forde, filed a petition to be admitted as a party plaintiff, on the ground that he was a grandson and an heir at law of Standish Forde, and entitled to redeem for his share. The court dismissed or overruled the petition of Robert S. Forde to be made a party, and, on final hearing, it dismissed the bill as to complainants, Naylor and Smith, and decreed that Rothwell, in his purchase from Robert H. Smith, the assignee of John Reed, should be held to be trustee for himself and wife, and the other defendants, heirs of Dewees; and that the defendants should make contribution to him, in payment of the sum so paid by him to Smith, and for taxes afterwards paid by him on the property. From this decree Robert S. Forde and the original complainants appeal. The first question to be considered arises from the action of the court in dismissing Forde's petition. It is clear that if Forde had any title or interest in the property, it was a legal title, and no obstruction is seen in the assertion of that legal title against the defendants, in a court of law. That court is the appropriate one to settle the conflict growing out of the legal title derived by Robert S. Forde from his ancestor, and the title claimed by defendants under the tax deed from the City of Washington. If he has any right to redeem from the sale for taxes it must be a legal right, which he can exercise without the aid of a court of chancery. In his petition asking to be made a party, he claims that Dewees must be considered as the agent of Forde's heirs, as well as the agent for Reed's assignee, under his agreement with Paige. This claim, however, It appears that Dewees acted fairly under cannot be sustained. The partnership of Reed this arrangement for about three years; making & Forde was insolvent. The assignment was advances to redeem the property where it had made for the benefit of creditors, and the claim been sold for taxes, and paying the accruing of the assignee to the lots in question was adtaxes. until he had advanced about $900. He verse to the claim of Forde's heirs. The assignee then, not having sold any of the property, nor had thus claimed them for nearly thirty years, realized anything from it in any other way, per- when Dewees became the agent of Paige. mitted it to be sold for taxes and bought it in *There can be no pretense then that [*617 himself, and took the corporation deed, already Dewees was agent for Forde's heirs, or occupied mentioned, of the 29th of August, 1836. He towards them any relation of trust or confidied on the 3d of September following. On the dence. No ground of equitable jurisdiction is 10th of April, 1837, Paige, the assignee, by reg-perceived, on which Robert S. Forde could assert ular power of attorney, appointed Andrew Roth- his title in a court of chancery against the dewell, one of the complainants, his agent, with fendants, and his petition was properly overauthority to sell lots, to procure partition, and to make settlement with the heirs and representatives of Dewees. In 1841, Robert Smith was, by a decree of court, appointed assignee in place of Paige, who had died; and in 1846 said Smith quitclaimed and released to Rothwell all ruled. The next objection to the decree, namely: the dismissal of the bill as to complainants, Naylor and Smith, is based upon almost the same ground as that just considered. These parties have conveyances from individuals, who describe themselves in the deeds as heirs of Standish Forde, and in addition to this the bill alleges that they were partners in the purchase made by Rothwell from the assignee of Reed. If it be admitted that the parties who made the conveyance to Naylor and Smith were the heirs of Standish Forde, it would not place those complainants in any other or better position than that of Robert S. Forde. But Naylor and Smith being original plaintiffs, had an opportunity to prove their case at the final hearing, and failed to produce any evidence that their grantors were the heirs of Forde. It cannot be pretended that the recital of that fact in their deeds can be evidence against parties not claiming under them, and we have failed to discover any other evidence of it in the record. Nor is there any evidence that these parties were interested in the purchase made by Rothwell from Smith, the assignee. If that fact, however, were established, we do not see that they could claim to occupy any better position than Rothwell, since they permitted him to take the conveyance to himself, without any mention of their rights in the purchase. We come now to consider that portion of the decree which concerns Rothwell and the defendants. This must be supported, if at all, upon the twofold operation of the principle that a purchase of an outstanding title or interest in property, by a person sustaining certain relations to others interested in the same property, should, at the option of the latter, inure to their benefit; the application being in this case made, first, to the purchase of the tax title by Dewees, agent for Paige, the assignee; 618*] and second, to the purchase made by Rothwell from the assignee, he being the husband of one of the tenants in common who held the property as heirs of Dewees. So far as the tax title acquired by Dewees is concerned, there can be no doubt that the principle is correctly applied. As the agent of Paige, it was his duty to pay these taxes, and to prevent the sale of these lots. In violation of this duty he permitted these lots to be sold, and himself became the purchaser. Besides his general duty as agent, he had expressly covenanted, in writing, that he would, out of his own funds, advance the money and pay these taxes. There is nothing in law or morality plainer than that his purchase must be held to be in trust for the benefit of his principal, on repayment of the sum advanced by him. 1 Story, Eq., sections 315, 1211, 1211a; Story, Agency, sections 210, 211; Ex parte James, 8 Ves., 337. The defendants, who are his heirs, can stand in no better position than he would if he were alive. In regard to the application of the principle to the purchase of Rothwell from Smith, the successor of Paige in the assignment, it is claimed by defendants, that Rothwell is to be treated as having a common interest with them in the title derived from Dewees, and that his purchase of the outstanding equity of Reed's assignee, must inure to the common benefit of the co-tenants of that title. In the case of Van Horne v. Fonda, 5 Johns, Ch., 407, the rule is very fully laid down by Chancellor Kent, that where two devisees or tenants in common hold under an imperfect title, and one of them buys in the outstanding title, such purchase will inure to their common benefit upon contribution made to repay the purchase money. The same point is also decided in Farmer and Arnold v. Samuel, 4 Litt., 187. The soundness of the principle is not denied by counsel for plaintiff, as applicable to persons strictly tenants in common, or joint tenants, or others having an equality of interest or estate; but it is said that the complainant in this case is not tenant in common, but that his interest is at most only tenant by the courtesy of his wife's interest, and that even that is doubtful; and that there is no *equality of interest [*619 as between him and the defendants. In this connection much stress is laid by counsel upon the language of the court in Van Horne v. Fonda, to the effect that in that case there was an equality of estate between the co-devisees. It does not appear to us, however, that any particular force was given to that fact by the learned judge, but rather that the rule was based on a community of interest in a common title, which created such a relation of trust and confidence between the parties, that it would be inequitable to permit one of them to anything to the prejudice of the other, in reference to the property so situated. It seems to us that the true reason of the rule applies as forcibly to the husband of a tenant in common, as to one of the immediate cotenants. This seems also to have been the opinion of the Court of Appeals of Kentucky in the case of Lee and Graham v. Fox, 6 Dana, 176. It was decided in that case that the husband of a co-heiress, who had purchased an outstanding incumbrance on the lands of the heirs, should be held to have purchased for the benefit of all the tenants, upon condition only that they should contribute their respective proportion of the consideration actually paid for the incumbrance. We are quite satisfied with this as a rule of equity, sustained as it is by authority and sound principles of morality, and as the decree of the Circuit Court was in conformity to it, it must be affirmed. When injunction against nuisance will be granted -see note to Irwin v. Dixion, 13 L. ed. U. 8. 25. |