Stat. 281, authorizing the Oregon and California Railway Company to bridge the river at this place; and therefore it was a material as well as needless obstruction to the navigation of the river, causing danger and delay to the passage of vessels thereon.

Neither did the court hold that such a bridge was even authorized by the act of the legislature of October 18, 1878. That act requires not only that the bridge shall have a draw of not less than one hundred feet in width, but that it shall be "so constructed and maintained as not to injuriously impede and obstruct the free navigation of said river, but so as to allow the easy and reasonable passage of said vessels through said bridge."

Upon this point the conclusion of the court was that the legislature did not intend to declare that a draw of only one hundred feet in width is sufficient, or to authorize the construction of a bridge otherwise than with a draw sufficient for the easy and safe passage of vessels, whether that must be one or two hundred feet in width; but that if it did, the act was invalid, because contrary to the act of congress, which on this point is the supreme law of the land: Hatch v. Wallamet I. B. Co., 7 Saw. 137.

And in this connection the court is reminded by counsel for the plaintiff herein "that it is a delicate duty for a court to declare an act of the legislature invalid." Of course, the court will not do so unless the conflict between it and the act of congress is plain. And for this reason the act of the legislature is to be construed, if it reasonably can, so as to prevent such conflict, and make it harmonize with supreme law.

But really it is well to remember, in a case like this, that the interested parties who prepare and procure the passage of an act granting themselves some special privilége or franchise like this, are more responsible for it than the members of the legislature. The average member, having no special interest in the matter, and knowing little if anything about it, but seeing that the act contains a plain provision that the bridge shall be built with a good and sufficient draw anyhow, with that understanding gives his consent to its passage; and I think it ought to be so construed by the court.

Considered in this its true light, the act is only a license to the corporation named therein, or its assigns, to build a draw-bridge at this point, subject to the act of congress of 1859; or in other words, so as not needlessly to impede or obstruct the navigation of the river, considered as a "common highway." Beyond this the legislature could not go, and it is not to be presumed that it so intended.

The decision in Escanaba Co. v. Chicago, 107 U. S. 678, so much relied on by the plaintiff herein, is not in conflict with these views. In a legal point of view the case is not new, though it contains some wholesome suggestions upon the application of the law to the facts and circumstances of that case, which are peculiar and altogether different from this.

A small bayou, called a river, with a current less than a mile an hour, not a mile in length below its two branches, not exceeding two miles in length each, not naturally over one hundred and fifty feet in width, and lying in the heart of a great city, was deepened and widened so as to serve as a canal or convenient water-way whereon to move the lake boats from the harbor in the lake outside, into which it drained, to the docks and warehouses along its banks. Over it there are a number of draw-bridges,

erected by public authority, on which pass daily great numbers of people -particularly in going to and returning from their business and employment in the morning and evening: Am. Cyclo., Chicago.

The city, by the authority of the state, and with a view of preventing the inconvience resulting from the unregulated and conflicting use of the bridges and the water-way, passed an ordinance requiring the draws to be closed for the benefit of the land travel for one hour in the morning and evening, and limiting the period during which a draw might be kept open for the passage of vessels to ten minutes at any one time.

The suit did not involve the right to build the bridges, nor the sufficiency of the draws. The right of the city on both these points was taken for granted, and the only question made and decided was whether, under the circumstances, this was a reasonable regulation, one that did not needlessly obstruct the use of the water-way, and the court, if I may be allowed to say so, very properly and wisely held that it was.

The case was brought in the circuit court of the United States upon the assumption that the provision of the fourth article of compact of the ordinance of 1787, whereby the navigable waters of the north-west territory were declared "common highways," was still in force in Illinois, and therefore the reasonableness of the city ordinance, when judged by this United States law, was a federal question, and the national courts had jurisdiction of the case, and the decision was actually made upon this hypothesis. But the learned justice who delivered the opinion of the court went further, and said that by the admission of Illinois into the Union," on an equal footing with the original states in all respects whatever," the ordinance ceased to have any effect within her limits, and therefore there was no law of the United States regulating the use of the navigable waters of the United States within the state of Illinois, and therefore the latter was the judge of what was reasonable in the premises.

The cases cited in support of this latter conclusion are Pollard v. Hagan, 3 How. 212; Permoli v. New Orleans, Id. 589; and Strader v. Graham, 10 Id. 82.

By the first one, as we have seen, it was simply held that congress can not, by any compact or condition made with or laid upon a state on her admission into the Union, restrain or limit her municipal power, as such state; but that if the subject of the compact or condition is within the power of congress to enact or regulate, without the consent of the state -as to declare that the navigable waters therein shall be common highways"-it is good as a law.

In Permoli's case the court only held that so much of the articles of compact as secured religious freedom to the inhabitants of the territory of Orleans-the same having been specially extended there by congress -ceased to have any force or effect therein upon the admission of the territory into the Union as the state of Louisiana, because the subject of religious freedom in a state was beyond the power of congress and exclusively within that of the state.

In Strader's case, it was decided on a writ of error to the supreme court of Kentucky, that the condition of a negro held as a slave in that state, and who had been allowed to visit Ohio, but afterwards returned, was, after such return and in said state, a question arising solely under the laws of Kentucky, and therefore not within the jurisdiction of the supreme court.

But in delivering the opinion of the court, Mr. Chief Justice Taney, referring to some sort of claim that had been made in the argument, that the provision in the articles of compact of the ordinance of 1787, prohibiting slavery in the north-west territory, of which Ohio was a part, had some bearing on the question of the status of the negro, denied that it could have any effect outside of such territory, and then took occasion further to say that the ordinance was no longer in force, even in Ohio, where it had been superseded by the organization and admission of the territory into the Union as a state, and added that it had been so decided in the cases of Permoli v. New Orleans and Pollard v. Hagan, supra. But this statement, though true generally, and in the light in which the chief justice was considering the articles, that is, so far as they trenched upon the municipal power of the state or were inconsistent with its control over its domestic affairs, was not otherwise accurate or correct. And for this reason both Justices McLean and Catron, while assenting to the decision that the ordinance had no application to the case in any view of the matter, and that the court had no jurisdiction to review the judgment of the Kentucky court, protested against this dictum of the chief justice the latter putting his dissent especially on the navigation clause of the fourth article of the compact, and saying: "For thirty years the state courts within the territory ceded by Virginia have held this part of the fourth article to be in force and binding on them respectively; and I feel unwilling to disturb this wholesome course of decision, which is so conservative of the rights of others, in a case where the fourth article is nowise involved, and when our opinion might be disregarded by the state courts, as obiter and a dictum uncalled for."

And as we have seen, the only question decided in Permoli's, was that the clause in the compact securing religious freedom to the inhabitants of the territory was necessarily superseded upon its admission into the Union as a state; while it is admitted that the principle of this ruling would include all similar provisions in the compact. In Pollard v. Hagan, while it was held that a state could not be hampered or bound, in its admission into the Union, with conditions or compacts that would limit or restrain its municipal power and right, as compared with the other states therein, it was distinctly decided, that the clause in the ordinance as applied to Alabama by the act of congress of March 2, 1819, 3 Stat. 489, authorizing the people of that territory to form a constitution-declaring the navigable waters of the future state "common highways," was not such a condition, but a valid law which congress had the power to enact, whether the waters were within a state or territory.

I therefore respectfully submit that the clause in the fourth article of the compact in the ordinance of 1787, relating to the navigable waters in the north-west territory, having been enacted by congress, 1 Stat. 50, was a valid commercial regulation as to the navigable waters in said territory or the states afterward formed therein until repealed by it; and therefore it is still in force in Illinois. But be this as it may, the decision does not touch the question of the validity or force and effect of the act of 1859. For on what possible ground can it be claimed that the admission of Oregon into the Union set aside or superseded an otherwise valid clause in the very act of admission, declaring the navigable waters of the future state "common highways"?

This case having been heard before the circuit judge and the decree under review having been made by him, I thought I ought not to decide

the matter without consulting him. Accordingly I submitted this opinion to Judge Sawyer, with copies of the briefs of counsel, and he has authorized me to say that he concurs in it.

There being, then, no error in the original decree, as it appears to this court, the demurrrer to the bill of review must be sustained and the bill dismissed, and it is so ordered.

DUNDEE MORTGAGE TRUST INVESTMENT COMPANY V. SCHOOL DISTRICT No. 1 OF MULTNOMAH CO. ET ALS.

Filed March 6, 1884.

MULTIPLICITY OF SUITS.-Equity has jurisdiction to enjoin the collection of a tax levied under an invalid law, when necessary to prevent a multiplicity of suits.

STATE STATUTE INVOLVING FEDERAL QUESTION.-In construing or determining the validity of a state statute involving a federal question, the national courts are not bound by the decision of the state court.

IMPAIRING THE OBLIGATION OF A CONTRACT.-At the date of the execution of a note and mortgage, the law of the state required the mortgaged premises to be assessed at their full cash value for taxation; and afterwards an act was passed requiring the note and mortgage to be assessed at its par value for taxation, and exempting so much of the land from taxation: held, that the latter act did not impair the obligation of the contract between the creditor and the debtor.

STATE POWER OF TAXATION.-The state has power, so long as it does not trench upon the constitution of the United States, to tax all persons, property, and business within its jurisdiction or reach; and whether any person, property, or business is so within its jurisdiction is not a federal question, and must be determined by the state for itself. UNIFORM AND EQUAL TAXATION.-An act of the legislature providing for the taxation of mortgages as land, which in effect exempts all such mortgages from such taxation upon land in more than one county, violates section 1 of article 9 of the constitution of the state, which requires that taxation shall be uniform and imposed according to its value upon "all property" not specially exempt therefrom, and is therefore void and of no effect; and semble, that such act is also a 'special" one for "the assessment and collection of taxes," and therefore in violation of subdivision 10 of section 23 of article 4 of the constitution of the state.

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DUE PROCESS OF LAW.-The enforcement by the state of a tax levied under a void law is a deprivation of property without due process of law, contrary to section 1 of the fourteenth amendment to the constitution of the United States.

SUIT to enjoin the collection of a tax. The opinion states the facts. William H. Effinger, Charles B. Bellinger, and W. D. Fenton, for the plaintiff.

William B. Gilbert, H. Hurley, and Walter W. Thayer, for the defendants. DEADY, J. This is an application for a provisional injunction on the bill filed herein, on December 31, 1883, to restrain the defendants hereinafter named, and others, from selling and disposing of sundry notes and mortgages belonging to the plaintiff, for the non-payment of taxes levied thereon, in the district and counties where the mortgaged premises are situate, under the provisions and by the authority of the act of the legislature of Oregon, entitled "An act to define the terms 'land' and 'real property' for the purposes of taxations, and to provide when the same shall be assessed and taxed," etc., approved October 26, 1882. The defendants, the school district No. 1, and George C. Sears, the sheriff of Multnomah county, were duly served with a subpoena to answer, and an order to show cause why the provisional injunction should not issue; and the defendant, E. B. Collard, the sheriff of Yamhill county, appeared and showed cause against the application without service. None of the other defendants were served with the subpoena or order, or appeared.

From the bill it may be gathered that the plaintiff is a foreign corporation, duly incorporated under the laws of Great Britain, with its "principal office at the burg of Dundee, Scotland;" that for some years it has been and now is carrying on in this state, and by the permission thereof, the business of loaning money upon promissory notes secured by mortgage on real property therein, and payable in a certain period of years, with lawful interest, at Dundee each of such notes containing, in addition to the ordinary promise to pay, these words: "This note is given on an actual loan secured by a mortgage, by the terms and conditions of which this note is to be governed;" that the money thus loaned is obtained from residents of Great Britain "on bonds or mortgage debentures," that entitle the holders thereof to be paid out of the assets of the plaintiff, including these notes and mortgages; that the plaintiff, as the successor and assignee of sundry similar corporations heretofore organized in Dundee, and engaged in the like business in Oregon, is the "owner and holder" of certain notes and mortgages made and executed to said corporations for money loaned in Oregon, and is also the "owner and holder" of certain other notes and mortgages made and executed to itself for money loaned therein, amounting in the aggregate to two and a half millions of dollars, upon all of which said "bond and debenture holders" have a lien for the money advanced by them to the plaintiff and its said assignors; that the said loans were all made before October 26, 1882, except one in Marion county for the sum of nineteen thousand dollars, and that they will become due and payable at periods varying from one to five years hence; that the notes and mortgages aforesaid were made and executed within this state, and afterwards transmitted to the "home office, Dundee," where they are kept until the borrower desires to pay the same, when they are returned here for that purpose; that the defendants, the school districts No. 1 and No. 18, and the several counties of which the other defendants are the sheriffs, respectively, have assessed said notes and mortgages, under the act of 1882, aforesaid, for taxation, within the respective districts and counties, so far as the mortgaged premises are therein situate-said district No. 1 having assessed the same within its limits at one hundred and sixty-five thousand five hundred and ten dollars, and levied a tax thereon of eight hundred and twenty-seven dollars and fifty-five cents; the county of Multnomah at two hundred and nine thousand six hundred dollars, and levied a tax thereon of three thousand two hundred and sixty-nine dollars and seventy-six cents; and the county of Yamhill, at dollars, and levied a tax thereon of eight hundred and thirty-four dollars and forty-six cents; and said defendants have demanded payment of the same, and are about "to coerce the payment" thereof, by the sale of the notes and mortgages so assessed; and that said assessment and levy are unlawful, because the act under which they were made and the defendants are proceeding is void and of no effect, for the reason that it is contrary to the constitution of the United States and the state; and that such debts and mortgages are beyond the jurisdiction of the state.

From the affidavit of the defendant George C. Sears, filed at the hearing, it appears that "several" of the notes and mortgages assigned to the plaintiff and assessed for taxation in school district No. 1 and the county of Multnomah, ". were made to William Reid, manager," and payable in the state of Oregon; that the corporations of whose notes and mortgages the plaintiff has become the owner by assignment, as afore