The defendant further answering says: "That the plaintiff during the time mentioned in plaintiff's complaint regularly reported and paid to the collector of internal revenue of the United States the gallon tax due upon a quantity of spirits distilled and produced by plaintiff, but neglected to report all of the spirits it actually produced and distilled and for and upon which the said gallon tax was due and owing to the United States, and that the tax so assessed as aforesaid is the tax upon the spirits produced and distilled in excess of the amount so reported by plaintiff and upon which no tax was ever assessed or collected to the time of the payment mentioned in plaintiff's complaint and answer;" admits that defendant did threaten to seize and sell the property of plaintiff to pay said tax, and that the plaintiff paid the defendant the amount of said tax with interest, but avers that he had no knowledge, information or belief for what reason plaintiff paid the same.

To this answer plaintiff demurred, alleging as ground of demurrer "that said answer does not state facts sufficient to constitute a defense to said action. The demurrer was overruled by the district court and the plaintiff electing to stand upon the demurrer, judgment was rendered for the defendant, from which judgment the plaintiff appeals to this court.

Counsel for plaintiff claims that a municipal corporation is incapable of acting except within its corporate powers and by its authorized agents or officers. Wherefore, the averment that a city has done a certain act involves the assertion of two things: First, that it had the power under its charter to do it; and, second, that it has exercised such power. Unless the former of these be true, the latter is impossible. That the business of distilling or manufacturing spirits has ever been wholly foreign to the objects of the plaintiff's corporation and entirely outside of the scope of its corporate power as defined in its charter; that taking money from the city treasury and with it setting up and operating a distillery in behalf of the city, falsely reporting the city as a distiller, taking the money of the city to pay the illegal tax upon distilled spirits, selling spirits thus distilled and paying the money received therefor into the city treasury, are all acts of persons without authority, and the money used for the purpose of distilling spirits is a misappropriation of the city funds; that the charter of the city shields its inhabitants from the consequences of such acts.

As a general rule it may be said that a municipal corporation cannot by its agents, officers or city council bind itself by any contract outside of the scope of its power, or entirely foreign to the purposes of the corporation; that unauthorized contracts are void, and in action thereon the corporation may successfully interpose the plea of ultru vires: Dillon on Mun. Corp., 3d ed., sec. 457.

The pleadings in this case show neither a contract between the plaintiff and the defendant, nor between the city and any party under whom the defendant claims. But they do allege that from March 2, 1867, to August 26, 1878, the city was engaged in the

business of distilling spirits; that for a part of the spirits thus distilled she made regular reports to, and paid to the collector of internal revenue the gallon duties or tax due thereon; that the balance was not reported nor deposited in the bonded warehouse of the United States, nor the duties nor taxes thereon paid; that in the month of August, 1878, there was due to the United States the sum of $12,057.75 as the unpaid duties and taxes and interest thereon upon the spirits so distilled and not deposited in the bonded warehouse of the United States, the proceeds of the sale of which had been paid into the city treasury and appropriated by the city, and for the taxes upon that part of the spirits upon which no taxes had been paid, the defendant was about to distrain the goods of the plaintiff, when it paid the amount of duties or taxes claimed, for the return and recovery of which from the defendant this action is brought. There is no claim or pretense that all the acts pertaining to the production or distillation of the spirits, the sale or disposal of the same without depositing them in bonded warehouse, paying the proceeds of the sales thereof into the city treasury, and all business relating in any way to the same, were not done or directed by the agents, officers, servants or employees of the city, with her funds and in her name and interests.

Upon the admission made by demurrer, the questions before us

are:

1. Was the city liable to the United States for the amount of the duties upon the spirits thus produced with her funds, by the officers and legally constituted agents acting for and in her name, and by them sold and disposed of without paying the duties thereon, and the proceeds thereof paid to, received and appropriated by the city; although all of such acts were unauthorized by her charter, and a part of them in violation of acts of congress?

2. Can she recover the money or any part thereof paid by her to the defendant under the protest and circumstances set forth in the complaint and answer?

Legal principles other than ultra vires of the plaintiff corporation are involved and form an important element in this action. When these spirits came into existence the law created a lien upon them which attached and became an incumbrance thereon; and the United States had an interest in them to the extent of the lien, which was a valid and existing legal claim: 13 U. S. Stats. pp. 243, 272; Burrough on Taxation, 620. It was the duty of the assessor or his assistant, upon obtaining knowledge that the duties upon these spirits had not been paid, and that they had been removed from the place where they were distilled, and not deposited in warehouse, to assess a gallon tax upon them against the distillers thereof, equal in amount to the duties and lien attaching thereto at time of distillation, and certify the same to the collector, who was required immediately to demand payment of such tax, and upon refusal or neglect of payment of such tax, by the distiller, to collect the same by distraint: 14 U. S. Stats. pp. 480, 481. The sale and transfer of these

spirits so long before knowledge thereof was had by the assessor or his assistant, make it morally certain that they were beyond the recognition or discovery of the revenue officers, and therefore the lien upon them became (if they could be presumed to be in existence) inoperative and of no effect as a means of revenue. By receiving the proceeds of the sales of these spirits into her treasury, the city became possessed with a large sum of money-the amount of the lien, which was justly due to the United States, and to which she had no legal or moral right; and money so received and appropriated by a municipal corporation is subject to the demand of its legal or equitable owner, by suit to recover it, to the same extent as if held by a private corporation, or a natural person. This liability arises not from any contract entered into or express promise made by the city, but from the general obligation to do justice, which is equally upon all persons, whether natural or artificial, for the fulfilling of which the law implies a promise which may be enforced by a suit at law. The fact that the provisions of the city charter do not authorize the acts by means of which she received the money does not enable her to successfully plead ultra vires, nor to withhold from the United States the proceeds of their unauthorized and, in part, fraudulent transactions: East St. Louis v. East St. Louis Gaslight and Coke Company, 98 Ill. 415; Grogan v. San Francisco, 16 Cal. 255; Thomas v. Port Huron, 27 Mich. (opinion of Cooley, J.), 323; Louisiana v. Wood, 102 U. S. 294; United States v. State Bank, 96 U. S. 30.

The liability of a city as a distiller is a question we need not necessarily discuss, as the foregoing reasons and authorities are in our opinion conclusive. But it may not be inappropriate to add that the power of taxation is a part of the government, incident to and co-extensive with its sovereignty; and every kind of property is subject to this power: Cooley on Taxation, 1, 2, 3. Because these distilled spirits were produced by means not authorized by law, they were none the less property subject to the duties and lien imposed by acts of congress. Although they were certainly not property of a municipal character necessary for conducting the public affairs of the municipality, yet they belong to the city; they were, so to speak, private property owned by the city in a commercial sense, for the sole purpose of gain or profit, and it is by no means clear that the city was not liable to the tax set down and assessed against her, when it was discovered that the original duties were withheld, and the spirits removed from the place of distillation, to a place other than a bonded warehouse of the United States: United States v. Railroad Company, 17 Wall. 322, 332-3.

If, upon refusing to pay the original duties and lien, and the removal of the spirits from the place of distillation, to a place other than a bonded warehouse, the city did not become liable for the amount of the gallon tax when assessed, she was, and did become so, from the time the proceeds thereof were received and appropriated by her.

We are all, therefore, of the opinion that the payment into the city treasury, and the subsequent appropriation of the money that was due to the United States as duties upon these distilled spirits, upon which the United States had a lien, was a wrongful act, as against the United States, and the appropriation by the city of such money was a wrongful use thereof, and that the amount having been paid by her to the plaintiff, although under protest, cannot be recovered back in this action.

The judgment of the district court is affirmed.
HUNTER, C. J., and EMERSON, J., concurred.

WESCOAT v. ECCLES.

Filed February 24, 1883.

APPEAL FROM JUSTICE'S COURT, DISMISSAL OF.-An appeal from a justice's court to the district court is perfected by the appellant's filing and serving his notice of appeal, filing the necessary undertaking, and making payment of the costs in the justice's court, and the cost of the transcript on appeal. The payment of a deposit for costs in the district court is not required by statute, and cannot be required by a rule of the district court. The dismissal of such an appeal for failure to make such deposit is error.

A PAPER IS FILED WHEN IT IS DELIVERED TO THE PROPER OFFICER, and by him received for filing, whether the same is indorsed as filed or not.

A COURT CANNOT BY RULE DEPRIVE A PARTY OF A RIGHT given him by statute.

THIS action was commenced in a justice court. On the trial in that court the plaintiff recovered a judgment for $275 damages and $7 costs, which was rendered by the justice October 28, 1881, and the defendant appealed to the district court on the seventh day of November, 1881. The appeal bond having been filed, notice of appeal served and filed, and the cost of the justice, including transcript, paid, the appeal was perfected.

The justice deposited, on the twelfth day of November, 1881, the files of the case in his court, with a transcript of the proceedings from his docket, with the clerk of said district court at his office in Salt Lake City, Utah. On the twenty-fifth day of September, 1882, the plaintiff filed in that court a notice of a motion, of which the following is a copy:

"Defendant and Messrs. Sutherland and McBride, his attorneys, will please take notice that plaintiff will, upon the records and files of said case, upon the twenty-eighth day of September, 1882, at 10 o'clock A. M., or as soon thereafter as counsel can be heard, move this honorable court, at the court-room thereof, for an order dismissing defendant's appeal herein, and affirming the judgment of the court below, on the grounds that the defendant has not perfected his appeal and caused his case to be filed and placed upon the docket of the court, as required by law and the rules of the court."

The following is a standing order of the district court, made by that court in 1880: "In all cases coming up to this court by appeal, from any judgment or order of the justice of the peace rendered thirty days before the commencement of a term of this court, it shall be the duty of the appellant to file the transcript from the justice's docket, and all papers accompanying the appeal, with the clerk of this court, and perfect the appeal within the first two days of the term, and it shall be the duty of the appellee to file with the clerk within twenty days thereafter, the answer or other pleadings in the case, and if the appeal shall be brought from any judgment or other order of a justice of the peace, rendered less than thirty days before the commencement of a term of this court, it shall be the duty of the appellant to file the transcript of the justice's docket and all papers accompanying the appeal, with the clerk of this court and perfect the appeal within the first thirty days of the term; and it shall be the duty of the appellee to file with the clerk within thirty days thereafter, the answer or other pleadings to the case. In default of compliance with this rule on the part of the appellant, upon application of appellee the appeal shall be dismissed, and in default of compliance with this rule on the part of the appellee, the judgment of the court below will be affirmed."

On the twenty-seventh day of September, 1882, the defendant filed a certified copy of all the files in this case from the justice's court, and also annexed thereto a certified transcript of the docket of said justice and paid the clerk five dollars as fees for filing the same and placing it on the calendar of this court. On the hearing of the plaintiff's motion in this court it was agreed by the parties that there was but one case and that the only difference between the two cases bearing the same title was that the case filed by the plaintiff contained the original files of the justice's court, with a certified transcript from the justice's docket, while the case filed by the defendant contained copies of the original files in the justice's court, and a certified transcript of the proceedings therein as shown by his docket, and that there was but one case pending between the parties. At the opening of the court at the September term, 1882, the defendant's counsel, in open court, in the presence of the plaintiff's counsel, on the call of the calendar for the setting of cases for trial, announced that the defendant was ready to try said case and desired it to be set for trial. The court set the case for trial subject to the plaintiff's motion to dismiss the same.

On the fourth day of December, 1882, the motion of plaintiff to dismiss the appeal on the ground of a want of diligence on the part of defendant in perfecting the appeal was heard, and the court having heard the argument of counsel orders: That the appeal herein be and is hereby dismissed, and, further, that the justice of the peace for the second precinct of Salt Lake City and county, Utah, be and he is hereby authorized to enforce the judgment hertofore rendered by his said court in said case, together with said plaintiff's costs in the appeal herein incurred and taxed at $15.