It appears that when the paper was presented to the appellees, or when the appellees asked George Frank & Son, or the member representing the firm at the time, for the payment of their debt, that Frank replied he had been making efforts to raise the money, and had failed to get it; saying, further, that he had a bill drawn for his accommodation, payable at the Breckenridge Bank, and that bank had declined to discount it. Then it was the appellees said to Frank that it could be discounted in the city, to which Frank readily assented, and, delivering the bill to the appellees, they had it discounted in the manner and for the purposes already stated. The paper had not matured when discounted, and there is no evidence conducing to show bad faith on the part of the appellees in discounting the paper, or that they had any notice of the agreement between the parties to the bill that it should be negotiated at the Breckenridge Bank and nowhere else. The appellees had no reason to suspect the honesty of their debtors, and took the paper as innocent holders for value. This defense is based on the idea that the party for whose benefit it was made was the agent of the drawers, and that, the agent having no more power than that given him by the principal, his acts beyond that authority are void. If Frank had notice of the restrictions, or was placed on inquiry in regard to the manner in which this paper was to be disposed of by the acceptors, there might be some plausibility in the defense. The fact that the proceeds of the bill were applied to the payment of a pre-existing debt was not evidence of notice, nor did it destroy the bona fides of the transaction. In fact the very purpose of the drawers and acceptors in making the paper was to enable these debtors to pay their debts, the drawers knowing that they were hard pressed for money; and being assured by Frank & Son that, as soon as they sold their tobacco, the money would be replaced, they drew the bill. Frank & Son had the right to transfer the paper. It was indorsed by the appellants, (the drawers,) and delivered to Frank that he might transfer it and obtain the money. It may have been that the money raised was intended to be applied to the payment of these Louisville debts, and, the appellees being bona fide holders of the paper, the court will not inquire into the question of agency for the purpose of relieving parties who have placed it in the power of others to discount such paper. There was no defect in the title, and the right to transfer the paper was unrestricted by any of its stipulations. The paper was made for the accommodation and use of Frank & Son, and no restriction as to the application to be made by them of the money. Mr. Daniel, in his work on Negotiable Instruments, says: "It is immaterial that paper executed or indorsed for accommodation is not used in precise conformity with agreement, when it does not appear that the accommodation party had any interest in the manner in which the paper was to be applied. No change in the men, mode, or plan of raising the money, though not applied to the purpose intended by the accommodation party, will constitute a misappropriation." Volume 1, p. 742. Again; "The accommodation party must have some interest in the application of the money, otherwise he is in no condition to contend there has been a misapplication of it, or of the security on which it was to be raised." This doctrine was applied to a case where the party had applied the proceeds to a pre-existing debt. "It is now well settled that where a note is indorsed for the accommodation of the maker to be discounted at a particular bank, it is no fraudulent misappropriation of the note, if it is discounted at another bank, or used in the payment of a debt or otherwise for the credit of the maker." Daniel, Neg. Inst. 742. Here the drawers and indorsers gave to Frank & Son the use of their names to raise money in any way beneficial to that firm without restriction or condition, except as they say the money was to be obtained from a particular bank. Such a condition, unknown to a bona fide holder, cannot affect the validity of the bill in his hands; and from the facts before us we perceive no merit in the defense. Judgment affirmed.

SMITH et al. v. CITY OF LOUISVILLE et al.

(Court of Appeals of Kentucky. February 9, 1888.)

1. MUNICIPAL CORPORATIONS-POWER TO LICENSE VEHICLES.

Act Ky. May 8, 1886, entitled "An act concerning license taxes in the city of Louisville," and among other things, providing a license tax "for each vehicle running in said city of not more than $2, nor less than $30, confers upon the city council the right by ordinance to classify and grade the privilege according to character of use made of the vehicle.1

2. Same-OrdINANCE-UNIFORMITY OF TAX.

An ordinance of a municipal corporation, passed in pursuance of act Ky. May 8, 1886, authorizing the city to levy a tax on each vehicle running in said city, not less than two nor more than thirty dollars, which provides that for each one-horse vehicle the tax shall be a certain sum, and for each two-horse vehicle a certain sum, etc., is uniform, inasmuch as it operates uniformly on each subject of a given class.

Appeal from Louisville chancery court.

This was an action in chancery on petition of Gran. W. Smith and others, plaintiffs, to enjoin the city of Louisville et. al., defendants, from collecting a certain license tax on vehicles running in that city. Defendants demurred to the petition. The demurrer was sustained, and petition dismissed. Plaintiffs appeal.

Lane & Burnett and Brown, Humphrey & Davie, for appellants. T. L. Burnett and H. S. Barker, for appellees.

HOLT, J. The "act concerning license taxes in the city of Louisville," passed by the legislature May 8, 1886, (2 Acts 1885–86, p. 511,) in enumerating the various subjects of license, and the tax therefor, provides: "For each vehicle running in said city, not less than two nor more than thirty dollars; and vehicles thus licensed shall not be subject to an ad valorem tax." Subsequently the city council adopted this ordinance: "Section 1. Be it ordained by the general council of the city of Louisville that no vehicle shall be run within the city of Louisville without a license therefor being first granted as hereinafter graded and classed. The price of license for one year to be paid into the treasury of the sinking fund of said city shall be as follows, to-wit: For each and every wagon, cart, dray, omnibus, or other vehicle not specially designated herein, drawn by a single animal, three dollars; drawn by two animals, five dollars; drawn by three animals, ten dollars; drawn by four animals, fifteen dollars; drawn by five animals, twenty dollars; and drawn by six animals, twenty-five dollars. For each and every hack, coupé, or coach, five dollars; for each and every hearse, ten dollars; for each and every buggy, sulky, gig, phaeton, or like vehicle, two dollars; for each and every family carriage drawn by one animal, two dollars; drawn by two animals, five dollars." The remaining two sections provide, respectively, as to fines for violations of the ordinance, and the repeal of prior ordinances relating to the same subject.

The appellants seek, by injunction, to resist the enforcement of this ordinance-First, upon the ground that it is ultra vires; and, second, that the tax thereby imposed is not uniform, and therefore illegal. They contend that, under the provisions of the legislative act supra, the council had no power to classify vehicles, and could only fix one certain sum between two dollars as

A law which taxes a class of property separately is not unconstitutional if it embraces all property of that class, and applies to it uniform rules, and taxes it according to its value. Board of Assessors v. State, (N. J.) 4 Atl. Rep. 578, 8 Atl. Rep. 724. A law taxing all of a class alike, as liquor dealers within five miles of a town at one price, and liquor dealers at wayside inns at a less price, is not invalid on the ground of uniformity. Territory v. Connell, (Ariz.) 16 Pac. Rep. 209. The fact that one class of business is taxed, and another is not, or that different classes are taxed unequally, does not affect the validity and uniformity of the tax. Manufacturing Co. v. Wright, 33 Fed. Rep. 121.

the minimum and thirty dollars as the maximum, and impose it as a license tax upon each vehicle, and that when this was done the vehicle was exempt from all further tax for the year; but that under the ordinance in question, if the owner uses one animal in his vehicle one day, and pays the tax therefor, and then upon another day uses two animals therein, he is doubly taxed by being liable to another and a different license tax. The tax is one upon the privilege or use, rather than the specific article. It is for "each vehicle running in said city." The law evidently looked to a classification as to this use or privilege. Its language already quoted points strongly in this direction. It gives the power to the municipal legislature to fix the tax at not less than two nor more than thirty dollars. This wide margin, when considered in connection with a subsequent provision of it, leaves no room for doubt as to the legislative intention. This latter clause reads thus: "The secretary and treasurer of the sinking fund shall, from the oath of the applicant or other evidence, recommend to the general council the grade in which the applicant shall be classed under the ordinance of said city, when the application is to license a tavern, coffee-house, or other place where spirituous, vinous, or malt liquors are sold. In granting all other licenses, the secretary and treasurer of the sinking fund shall, from the oath of the applicant or other evidence, ascertain the grade in which such applicant shall be licensed; but such applicant shall have the right, within ten days, to appeal to the commissioners of the sinking fund from the action of said secretary and treasurer, and the commissioners shall have power to determine in which grade the applicant shall be placed." This provision applies to licenses to run vehicles. Granting that it confers no power upon the council not theretofore given in the act, yet it plainly shows that the legislature, in saying that the tax should not be less than two nor more than thirty dollars, intended to confer upon the council the right to classify and grade the privilege according to the character of the use made of the vehicle. In fact, it in substance says so.

Moreover, it is reasonable to suppose that this was the intention. It would be grossly unjust to require all vehicles running in the city to pay the same license tax. If the legislature had so intended, it would have said so. Ꭺ four-horse wagon, loaded with iron or other heavy material, of course wears out the street much faster than the one-horse wagon of the poor market-man. Perhaps the entire outfit of the latter is not worth over $30, or the highest sum authorized by the law as a license tax. While as to the one this sum might be a reasonable tax, it would be spoliation as to the other. Plainly, the grading of this tax according to the character of the use comes nearer to equal taxation than would the imposition of a fixed sum upon each vehicle. Absolute equality of taxation is impossible; it can only be approximated. No double tax can of course be imposed. This is a fundamental maxim in the law of taxation. But in this instance the vehicle in use pays a license tax, and is exempted from an ad valorem tax. The owner certainly knows the character of use to be made of his vehicle; and there is no discrimination, because all of the same class are subjected to the same tax. It operates upon all alike. There is no distinction of persons. Every one using one horse to his vehicle is taxed alike, and so of each class. The tax is uniform as to each subject of the given class. Such a license or occupation tax, wisely guarded, serves to equalize taxation; and the power of the legislature to authorize it is so well settled by judicial opinion that the citation of authority is unnecessary. Judg

ment affirmed.

END OF VOLUME 6.

INDEX.

NOTE. A star (*) indicates that the case referred to is annotated.

Destruction of quick child, see Homicide, 2. Particular forms of action, see Assumpsit;

(913)

missioners having filed their report, written
exceptions may be filed by either party, such
exceptions not affecting the construction of
the road, but only the amount of damages.
Held, that an order overruling a motion for
rehearing in the appointment of commission-
ers was not such a final order as to allow au
appeal.-St. Joseph Terminal R. Co. v. Han-
nibal & St. J. R. Co., (Mo.) 691.*

4. By Rev. St. Mo. 1879, § 3710, appeals may
be taken from any final judgment or decision
of a circuit court in any civil cause. By sec-
tion 2184 an allowance of the appeal by the
In a
trial court is requisite to give it effect.
suit for divorce by a wife, a decree in her
favor was entered, including a gross sum for
alimony, and in the order allowing the hus-
band an appeal was incorporated a further or-
der allowing alimony pending the appeal

See Execution, 2, 3; Indictment and Infor- Held, that the latter order was a final judg-
mation, 5.

Animals.

ment.-State v. Seddon, (Mo.) 342.*

5. Where a demurrer to plaintiff's petition
was sustained, but the record does not show a

Lease of infectious animals, see Contracts, 1, 2. final judgment in the trial court, the appeal

When lies.

1. Plaintiff recovered judgment against de-
fendant and, on an amended petition, setting
up a distinct cause of action, recovered an-
other judgment against him, from which judg-
ment defendant appealed. Held, that plain-
tiff could not cross-appeal from the former
judgment, as it was distinct from that from
which defendant appealed.-Brown v. Van
Cleave, (Ky.) 25.

2. Plaintiff recovered judgment against de-
fendant for a portion of his claim, which de- |
fendant satisfied by payment into court, and
the plaintiff withdrew and appropriated the
money so paid. Held, that he could not after-
wards appeal from the judgment.-Id.
Appealable orders.

3. Rev. St. Mo. 1879, c. 21, art. 6, providing
for the condemnation of property for a right
of way, requires that plaintiff present a peti-
tion, and the court, being satisfied that due
notice has been given, shall appoint three
commissioners to assess damages. The com-

must be dismissed. — Dixon v. Sanderson,
(Tex.) 831.

From inferior courts.

6. Rev. St. Tex. art. 2717, providing for a
means of reviewing the orders or judgments
of probate courts in the county courts, does
not make a bill of review a condition preced-
ent to the exercise of the jurisdiction of the
district court over such matters.-Linch v.

Broad, (Tex.) 751.