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street from such bar or room shall, on Sun- | traffic, but essential safeguards against its days, be provided with blinds, shutters, or evils, and governmental instrumentalities curtains, so as to obstruct the view from of state and of city, as authorized by the such street into such room. No applica- state, to insure the public welfare in the tion for a license shall be considered until conduct of the business, although the busisuch bond shall have been filed." 1 Rev. ness itself was not governmental. They Code 1897, p. 253, chap. 39, art. 1. were not mere individual undertakings to secure a personal privilege as suggested by the court below, but means for the preservation of the peace, the health, and the safety of the community in compelling strict observance of the law, and remedying injurious results.

The ordinance contained many other specific regulations of the traffic, and provided that licenses might be revoked by the mayor for violation of "any provision of any ordinance of the city council relating to intoxicating liquors, or any condition of the bond aforesaid."

The conditions of the bond in the sum of $3,000 to the people of the state of Illinois were substantially in the words of the statute. The conditions of the bond in the sum of $500 to the city of Chicago were somewhat more stringent than the language of the municipal Code.

Messrs. T. A. Moran and Levy Mayer for plaintiff in error.

Assistant Attorney General Beck for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

By the dramshop act the general assembly of Illinois legislated, as was stated in the title of the act, "against the evils arising from the sale of intoxicating liquors," not by prohibiting the traffic altogether, but by regulating it in protection of the public. The act concerning cities authorized municipal action subject to the general law.

The general principle is that, as the means and instrumentalities employed by the general government to carry into operation the powers granted to it are exempt from taxation by the states, so are those of the states exempt from taxation by the general government. It rests on the law of self-preservation, for any government whose means employed in conducting its strictly governmental operations are subject to the control of another and distinct government exists only at the mercy of the latter. Nelson, J., The Collector v. Day, 11 Wall. 113, sub nom. Buffington v. Day, 20 L. ed. 122.

Viewed in the light of that general principle, we think it clear that Congress, lest the broad language of schedule A, “and all other bonds of any description," might lit erally cover bonds such as those in question, and in avoidance of controversy in that regard, exempted them by § 17, wherein it was declared that it was intended "to exempt from the stamp taxes imposed by this act, such state, county, town, or other muThe legislation was enacted in the exer- nicipal corporations in the exercise only of cise of the police power for the safety, wel- functions strictly belonging to them in their fare, and health of the community, and it ordinary governmental, taxing, or munici is conceded that that power is a power re- pal capacity." True, this language was served by the states, free from Federal re-used in a proviso, and the enacting clause striction in any particular material here. exempted bonds "issued by the officers of

The act and the ordinance required these bonds to be given as prerequisites to the issue of licenses permitting the sale. The licenses could not be issued without compliance with this condition precedent. The statute expressly provided that no license should be granted "unless he shall first give bond in the penal sum of $3,000," and the ordinance, that "no application for a license shall be considered until such bond shall

have been filed."

The bonds were obviously intended to secure the proper enforcement of the laws in respect of the sale of intoxicating liquors; the prompt payment of fines and penalties; a remedy for injuries in person, property, or means of support; and the protection of the public in divers other enumerated particulars. The granting of the licenses was the exercise of a strictly governmental function, and the giving of the bonds was part of the same transaction. To tax the license would be to impair the efficiency of state and municipal action on the subject and assumes the power to suppress such action. And considering license and bond together, taxation of the bond involves the same consequences. In themselves the bonds were not mere incidents of the regulation of the

any state, county, town, municipal corporation, or other corporation exercising the taxing power;" but as the bonds were required by the state and the city, and were issued for the benefit of the public, and not for the benefit of the individuals who executed them, it appears to us that they came fairly within the meaning of the clause, as suming that they were covered by schedule A. The question is whether the bonds were taken in the exercise of a function strictly belonging to the state and city in their or dinary governmental capacity, and we are of opinion that they were, and that they were exempted as no more taxable than the licenses. Either they were exempt, apart from the proviso, because, in the sense of the statute, issued by the state and city, or the proviso so far qualified the language of the enacting clause as to exempt them in exempting the state and city in respect of the exercise of strictly governmental func

tions.

We conclude, therefore, that they were not taxable within the statute. United States v. Owens, 100 Fed. 70; Stirneman v. Smith, 40 C. C. A. 581, 100 Fed. 600; Warwick v. Bettman, 102 Fed. 127, 47 C. C. A.

8

185, 108 Fed. 46; People v. City, 31 Chicago Legal News, 247.

Judgment reversed and cause remanded, with a direction to quash the indictment.

Mr. Justice Harlan did not hear the argument, and took no part in the decision.

(187 U. S. 8)

Statement by Mr. Justice McKenna: This suit was brought for the distribu tion of the property and assets of the Harmony Society, which the bill alleged had ceased to exist. The bill also prayed for an injunction against John S. Duss to restrain him from in anywise dealing with the property of the society, and also for a receiver. The bill was exceedingly voluminous. stated the origin and principles and plan of government of the society; that many in

It

CHRISTIAN SCHWARTZ et al., Petition-dustries were started and conducted by it,

ers, v.

JOHN S. DUSS et al.

-- com

Presumptions from lapse of time munistic society-resulting trust-con current findings of fact.

1. Any claim which, as a matter of right, could

have been made on a

communistic society under a provision of its plan that members who contributed no property to the society should, on withdrawing, receive such sum as the leaders of the society should determine, will from long lapse of time be pre

including a savings bank; the town of Economy, Pennsylvania, founded by it; and that its acquisitions, including 3,000 acres of land in the city of Pittsburg, amounted in 1890 to upwards of $4,000,000; and "all of said possessions, up to and until the grievances hereafter complained of, were scrupulously used for the benefit of all its members, and for the advancement, benefit, and continuation of the society;" that until those grievances the society, "from the period of its inception until a recent date, adhered rigidly to its plan of government, and became illustrious and highly respected by reason of its sincere advocacy of the equal

sumed to have been demanded and the deity of man, its espousal of the highest prin

mand satisfied.

1 A communistic society will be presumed so
to have discharged its obligation to deceased
members who contributed no property to the
society, but in consideration of support dedi-
cated their labor and services, as to leave
no undischarged obligations or rights for
distant relatives of such deceased members
to assert or claim against the community
or its property.

8. The adoption by the members of a commu-
nistic society of a plan by which all property
contributed to the use and benefit of the
community was to be "Joint and Indivisible
stock," and all contributions were to be Ir
revocable, was not the creation by the mem-
bers of a trust in the property for the bene-
at of the society, as such, which, on the doc-
trine of resulting trusts, conferred on the
descendants of members who contributed no
property to the society any such proprietary
right or interest as entitled them on the dis-
solution of the soclety to share in its prop-
erty or assets, or to have an accounting.
4. The disputed facts Involved In concurrent
findings of a master and both the circuit
court and the circuit court of appeals that
a society had not been dissolved, elther by
the consent of its members or by the aban-

donment of the purpose for which it was
founded, will not be reviewed by the Supreme

Court of the United States.

ciples of Christianity, and its honesty and benevolent administration of all public functions, whether in the management of its internal affairs, or in its many transactions with the citizens of western Pennsylvania."

The bill also averred that the society "but➡ once in a period of ninety years suffered from serious internal disorder," which arose from the induction into the society of one Count De Leon, his artifices and subsequent secession. That in 1890 there "began a second conspiracy, the results of which overturned and destroyed the entire government of the society, wasted nearly its entire wealth, depleted its membership to a few aged and infirm women, and placed the management of the society and the control of its remaining assets in the hands of one man, and certain associates and confederates within and without the ranks of the society."

That the acting and directing mind of the conspiracy was John S. Duss, and he obtained his power as follows: In 1847 a plan of regulation and government of the society was adopted, by which its internal affairs were managed by a "board of elders," composed of nine members, and its external affairs were managed by a "board of trus tees," composed of two members. Romulus L. Baker and Jacob Henrici were chosen the first board of trustees. Baker died in 1868, Decided and Henrici and Jonathan Lenz became the board of trustees; the latter was succeeded, upon his death in 1890, by Ernest Woelful; N WRIT of certiorari to the United Woelful also died in 1890, and Duss became

[No. 38.]

Argued April 22 and 23, 1902.
October 27, 1902.

O`States Circuit Court of Appeals for the his successor.

Third Circuit to review a judgment which affirmed a decree of a Circuit Court dismissing a bill in a suit for the distribution of the property and assets of a society alleged to have ceased to exist. Affirmed.

See same case below, 43 C. C. A. 323, 103 Fed. 561.

Henrici died in 1892, and one Samuel Sieber was appointed, and, on his retirement from the society, Gottlieb Riethmueller, a relative of Duss, was elected trustee. At the time of the filing of the bill, Duss and Riethmueller were trustees.

The bill detailed the acts and purposes of Duss at great length. It is, however,

enough to say that the bill alleged that he | aware of the actions of Duss, or were conbecame senior trustee and a member of the sulted by him. board of elders, and conceived the purpose of wrecking and dismembering the society, and attempted to execute such purpose. That the condition of the society gave him opportunity; that he caused the expulsion of at least one member, and induced or paid others to withdraw. That the increase in the society could only be through the admission of new members, and he directed that no new members be elected under any circumstances whatever, and as a result thereof the said Duss and Susie, his wife, were the last members admitted in the four years preceding the filing of the bill.

That he entered into certain arrangements with one Henry Hice and John Reeves, of the town of Beaver, Pennsylvania, by which he used $1,000,000 of the society's money, without the knowledge or consent of its members, "to pay off the alleged indebtedness of the Economy Savings Bank, of which said Hice and Reeves were the principal officers," though at the time he knew that the bank was wholly insolvent by reason of the overdrafts made by said Hice and Reeves, and although he knew that they had caused a loss to the society of over $2,000,000, "as officers and stockholders in said bank, and officers and stockholders in the Beaver Falls Cutlery Works and File Works, the debtors of said bank;" that he had not sued to recover back the money, but, on the contrary, had abetted them in obtaining further assets of the society.

That in pursuance of his scheme to defraud the society, and to pay the indebtedness of the Economy Savings Bank, and for paying off claims upon which the society was only partly liable, if at all, he and his cotrustee, Henrici, executed a mortgage for the sum of $400,000 upon the real estate of the society, but that Henrici, at the time of its execution, "was in articulo mortis, and wholly beyond any power of compre bension of his act." And on the day of June, 1893, he caused to be executed another mortgage, without the knowledge or consent of the members, for $100,000, bearing interest at 6 per cent, upon the land described in the former mortgage, to raise a fund "wherewith to secretly secure and induce removal of those members most likely to inquire into the validity or propriety of his conduct as trustee."

It was averred that the society had certain dividend-paying stocks which Duss, in pursuance of his scheme, disposed of without the knowledge of any member of the society, except possibly his wife and Gottlieb Riethmueller. The names of ten persons were stated, who, it was alleged, Duss, "by representation, coercion, and the payment of large sums of money," induced, within two years preceding the commencement of the suit, to withdraw from the society, and that he was endeavoring to compel remaining members "to depart, by means of intimidation and oppression."

That the membership of the society was reduced to eight persons, none of whom were

"That on the 12th day of April, 1894, the said Duss, without any authority from the members of the Harmony Society, and in the utmost disregard to his trust, secretly entered into an agreement with said Hice, Reeves, and one James Dickson, whereby he, the said Duss, agreed to convey the town of Economy, the surrounding properties, and certain other lands of the Harmony Society, situate in Allegheny county, to the Union Company, an alleged corporation created under the laws of the state of Pennsylvania. And your orators allege that a conveyance has been made by said Duss for the lands as aforesaid, and that the same was made without the knowledge of your orators, or any members of the said society, excepting, possibly, Susie C., wife of said Duss, and Gottlieb Riethmueller. That by the said pretended conveyance and sale of the home of the Harmony Society and its other properties, the said Duss has attempted to wholly terminate the existence of said society, not only as to the government thereof by the board of elders and by the members, but also as to the ownership of any property. That the said Union Company, in addition to said Duss and Riethmueller, is composed of said Hice and Reeves, debtors of the said Harmony Society, as hereinbe fore stated, and one James Dickson, the private bookkeeper and confidential agent of said Duss, whose interest in said corporation was acquired by gift from said Duss.

"That your orators are advised that it was not competent for the said trustees to convey said properties to the said Union Company, but such transfer was a breach of trust, and wholly invalid."

It was further averred that the principle of equality had been departed from. That Duss and his family enjoyed every luxury, while the aged and infirm members were obliged "to be content with the bare necessaries of life, awarded with grudging, stinting hands."

And it was finally averred

"That recently said Harmony Society has become dissolved as aforesaid; that all of its purposes and practices, established as aforesaid by the founder of said society and by the ancestors of your orators, have been abandoned; that the pursuit of agriculture no longer exists in said society; that its chief assets, consisting of bonds, stocks, and other securities, and the town of Economy, with its buildings, and the adjacent lands of said society, consisting of some 3,000 acres, and which constituted the basis of organization and business of said society, have been sold and conveyed away by the said Duss as aforesaid, in fraud, however, of the rights of your orators and their cotenants; and that, by reason of the facts hereinbefore set forth, your orators and the said last members, except the said Duss and wife, are now tenants in common of all said lands and tenements, and entitled to partition thereof in proportion to their respective interests.

15

"That for some time past the members of said Harmony Society have been retiring therefrom, and have received the amount of their interest in said association in the land or money, or both, the land being set apart in severalty to them, and have released all of their rights and interests in said association in consideration for such payment or conveyance to them; and that, by said retirement and withdrawal, the membership of said association has been reduced to the persons hereinbefore named members; that by common consent this association has ceased to exist as an association; and that, if the property thereof has ever been impressed with a trust (which your orators deny, as being contrary to public policy, and void in law or equity), such trust has wholly ceased, and the assets of such dissolved association have reverted to the donors thereof, among whom were the ancestors and intestates of your orators, as hereinbefore fully set forth."

master: (1) Have the plaintiffs such a proprietary right or interest as would entitle them, upon the dissolution of the society, to share all its property or assets, or which entitles them to an accounting? (2) Has the society been dissolved by consent or by an abandonment of the purposes for which it was formed? A negative answer to ei ther of the propositions determines the controversy against petitioners, and both were so answered by the master and by the circuit court and the circuit court of appeals. The case, therefore, seems not to be as broad or as complex as presented in the argument of counsel. The case is certainly clear from any disputes of fact, and we may dismiss from consideration the accusations against Duss, not only as to his motives in joining the society, but also as to his motives and acts as a member and officer of it. We are concerned alone with the legal aspect and consequences of his acts, and those of his associates. They, however, pertain more particularly to the second proposition.

Its history has been recited, and its principles characterized and defined, not only by the supreme court of Pennsylvania, but by this court. Schriber v. Rapp, 5 Watts, 351, 30 Am. Dec. 327; Baker v. Nachtrieb, 19 How. 126, 15 L. ed. 528; Speidel v. Henrici, 120 U. S. 377, 30 L. ed. 718, 7 Sup. Ct. Rep. 610.

Duss, Hice, Reeves, and the Union Company answered separately. The other de- This is not the first time that the Harfendants joined in an answer. By agree-mony Society has been before the courts. ment of the parties the case was referred to a master, with "authority to hear and take all the testimony, and to find all the issues of law and facts, and to report the testimony and such findings to the court; and if the report of such master shall suggest a decree that the plaintiffs, or any of them, are entitled to an account against the defendants, or any of them, and the same be confirmed by the court, then the case shall be referred again to the master to state such an account, and report thereon to the court."

Under the orders of the court the master considered the following questions:

The society was formed by one George Rapp, who, with his son and others, came from the Kingdom of Wurtemberg to the United States in 1803 or 1804, and settled at Harmony, in Butler county, Pennsylvania. In 1814 the society moved to Posey county, Indiana, and later removed to Econ"1st. Have the plaintiffs, or any of them, omy, Pennsylvania, its present abode, in such a proprietary right or interest in the 1825. Its members "were associated and property and assets of the Harmony So- combined by the common belief that the ciety as entitled them, upon the dissolu- government of the patriarchal age, united tion of the society, to any part of, or share to the community of property adopted in in, such property or assets, or as entitles the days of the apostles, would conduce to them to the account prayed for in the bill? promote their temporal and eternal happi"2d. Has the Harmony Society been dis-ness.' 19 How. 126, 15 L. ed. 528. solved by the common consent of the members or by an abandonment of the purposes for which it was formed?"

On both propositions the master reported adversely to the claim of the petitioners, and recommended a decree dismissing the bill. His conclusions of fact and law were approved and accepted by the circuit court, and a decree entered dismissing the bill. The decree was affirmed by the circuit court of appeals. The case was then brought here by certiorari on petition of the plaintiffs in the circuit court. Other facts will be stated in the opinion.

Messrs. George Shiras, 3d, and S. Schoyer, Jr., for petitioners.

Messrs. D. T. Watson and Johns McCleave for respondents.

Mr. Justice McKenna delivered the opinion of the court:

Two questions were submitted to the

Their relations, principles of government, personal and property rights, were provided for by written contracts, executed respect. ively in 1805, 1821, 1827, 1836, 1847, 1890, and 1892. The present discussion is concerned with the first four.

By article 1 of the contract of 1805, each subscriber to that contract delivered up, renounced, and remitted all of his or her property of every kind, "as a free gift or donation, for the benefit and use of the community," and bound themselves, their heirs and descendants, "to make free renunciation thereof, and to leave the same at the disposal of the superintendents of the community," as if the subscribers "never had nor possessed it."

*In article 2 they pledged obedience and submission to the society, and promised "to promote the good and interest of the community," and to that they pledged their children and families. But, recognizing a possible weakness and inability to "stand

to it in the community," they promised object sought is to approximate, so far as (article 3) never to demand any reward for human imperfection will allow, to the fulthemselves or children for "labor or serv-filment of the will of God, by the exercise of ices," and declared whatever they should do those affections and the practice of those would be "as a voluntary service for our virtues which are essential to the happibrethren." In consideration of this renun- ness of man in time and throughout eterciation of property and dedication of labor nity. and services, George Rapp and his associates promised to supply the subscribers to the contract with all the necessaries of life, not only in their "healthful days, but when they should become sick or unfit for labor." And if, after a "short or long period," a member chould die or otherwise depart from the community, "being the father or mother of a family," such family should "not be left widows and orphans, but partakers of the same rights and maintenance."

Article 5 was as follows:

"And if the case should happen, as above stated, that one or more of the subscribers, after a short or long period, should break their promise, and could or would not submit to the laws and regulations of the church or community, and for that or any other cause would leave Harmony, George Rapp and his associates promise to refund him or them the value of his or their property brought in, without interest, in one, two, or three annual instalments, as the sum may be large or small; and if one or more of them were poor, and brought nothing into the community, they shall, provided they depart openly and orderly, receive a donation of money, according to his or their conduct while a member, or as he or their circumstances and necessities may require, which George Rapp and associates shall determine at his or their departure." The society became the owner of about 7,000 acres of land at Harmony, which, on May 6, 1815, was conveyed by Frederick Rapp, as attorney in fact, to Abraham Ziegler for $100,000. That year, or in 1814, the society removed to Indiana. There a second agreement was entered into January 20, 1821. This agreement expressed, as that of 1805, the submission of the subscribers to the society, the dedication of their service and labor, and contained the same promises of support.

"And whereas, it is necessary to the good order and well being of said associations that the condition of membership should be clearly understood, and that the rights and privileges and duties of every individual therein should be so defined as to prevent mistake or disappointment on the one hand, and contention or disagreement on the other."

This agreement was an amplification of that of 1805. Article 5 of the latter became article 6. This agreement was signed by 522 members of the association, and afterwards, and until February 14, 1836, was signed by 144 additional members. In 1832, dissensions having arisen, a large number of the members withdrew, under the leadership of one Count De Leon. They received $110,000, and granted a release unto George Rapp and his associates of all of their right and title in any of the property "belonging to the society of George Rapp and his associates."

In 1836 another agreement was entered into revoking and annulling the 6th article of the agreement of 1827,-5th article of the agreement of 1805. The agreement recited the 6th article

"And whereas, the provisions of the said 6th article, though assented to at the time, manifestly depart from the great principle of a community of goods, and may tend to foster and perpetuate a feeling of inequality, at variance with the true spirit and objects of the association;

"And whereas, the principle of restora tion of property, besides its pernicious tendency, is one which cannot now be enforced with uniformity and fairness, inasmuch as the members of the association, in the year 1816, under a solemn conviction of the truth of what is above recited, did destroy all record and memorial of the respective contributions up to that time;

"And whereas, continued happiness and prosperity of the association, a more intimate knowledge of each other, have removed from the minds of all members the least apprehension of injustice and bad faith:

union, and in consideration of the benefits to be derived therefrom, do hereby solemnly enter into covenants, and agree with each other as follows:

The master found that "in 1825 the society removed from Indiana to Beaver county, Pennsylvania, where they purchased and settled upon a tract of land containing about 3,000 acres, now known as 'Economy,' where they have since remained, and which "Now, therefore, be it known by these has since become very valuable, and on which presents, that the undersigned, with a view they have erected many buildings, includ-to carry out fully the great principles of our ing dwellings and factories of various kinds, and made many valuable improvements." In 1827 another agreement was entered into, the preamble of which was as follows: "Whereas, by the favor of Divine Providence an association or community has beeu formed by George Rapp and many others, upon the basis of Christian fellowship, the principles of which, being faithfully derived from the sacred Scriptures, include the government of the patriarchal age, united to the community of property adopted in the days of the apostles, and wherein the single

"1st. The said 6th article is entirely annulled and made void, as if it had never existed; all others remain in full force as heretofore.

"2d. All the property of the society, real, personal and mixed, in law or equity, and howsoever contributed or acquired, shall be deemed, now and forever, joint and indivisible stock. Each individual is to be con

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