court was not admissible on the issue because | bankrupt act, and the innocent members of it was not pertinent. The existence of the the firm were liable upon the debt created by 181]fraud must therefore be assumed in the *fur- the fraudulent misrepresentations of another ther progress of the case. The only matter member of the firm. left for this court to decide is whether a debt created by means of a fraud, such as is set forth in the declaration, is exempt from the effect of a discharge in bankruptcy. The proper construction of the section of the act relating to such a discharge has been frequently before this court, and we regard the law upon the subject as quite well settled. There are many cases where it has been claimed that the discharge was not operative, if the fraud proved was only constructive, and involved no moral turpitude or intentional wrong. Such cases are illustrated by that of Hennequin v. Clews, 111 U. S. 676, 28 L. ed. 565, 4 Sup. Ct. Rep. 576. In that case the pledgee of stocks held as security for a liability incurred by him for the pledgeor had thereafter hypothecated the stocks to secure a debt due from himself to another, and having failed to return to his pledgeor such stocks when his liability for the pledgeor had ceased, it was held that he was not thereby guilty of a fraudulent creation of his debt to the pledgeor, and that it had not been incurred in a fiduciary capacity, so as to bar his discharge under the 33d section of the bankrupt act. Many of the cases bearing upon the subject are cited by Mr. Justice Bradley, who delivered the opinion of the court, and it is unnecessary to comment upon them here. Hie referred to the case of Neal v. Clark, 95 U. S. 704, 24 L. ed. 586, where Mr. Justice Harlan, in delivering the opinion of the court, said: "Such association justifies, if it does not imperatively require, the conclusion that the 'fraud' referred to in that section [33] means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, as does embezzlement; and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality. Such a construction of the statute is consonant with equity, and consistent with the object and intention of Congress in enacting a general law by which the honest citizen may be relieved from the burden of hopeless insolvency. A different construction would be inconsistent with the liberal spirit which pervades the entire bankrupt system." The Hennequin Case was held to be governed by the principle announced in the case of Neal v. Clark, and the discharge was held effective. Also in Ames v. Moir, 138 U. S. 306, 312, 34 L. ed. 951, 954, 11 Sup. Ct. Rep. 311, 313, it was said: "If Ames made his call with the knowledge that he was insolvent, and with the purpose of getting possession of the wines and shipping them out of the state without paying for them according to the terms of the executory agreement of June 9, and received them with that preconceived intent, and there was evidence that justi fied the jury in so finding, he was guilty of fraud in fact, involving moral turpitude or intentional wrong, and is not protected against the claim of the plaintiffs by his discharge in bankruptcy." Within this rule, as maintained by the court, there can be no doubt that the defendant below was not discharged under the bankrupt act. A representation as to a fact, made knowingly, falsely, and fraudulently, for the purpose of obtaining money from another, and by means of which such money is obtained, creates a debt by means of a fraud involving moral turpitude and intentional wrong. It is not necessary to enlarge upon the subject. It is so plainly a fraud of that description that its mere statement obtains our ready assent. The courts below were, therefore, right in denying to the defendant any benefit by reason of his discharge in bankruptcy. The judgment of the Supreme Court of the state of Illinois is right, and must therefore be affirmed. *HARRY GUNDLING, Plff, in Err., [1 v. CITY OF CHICAGO. (See S. C. Reporter's ed. 183-189.) Constitutional law-due process—ordinance as to license for sale of cigarettes-discretion of mayor. 1. 2. An ordinance giving the mayor power to determine whether a person applying for a license to sell cigarettes has good character and reputation and is a suitable person to be intrusted with their sale, but requiring him to grant a license to every person fulfilling these conditions, does not vest in him any arbitrary power to grant or refuse a license, in violation of the provisions of U. S. Const. 14th Amend., either in regard to the clause requiring due process of law, or in that requiring equal protection of the laws. Regulations respecting the pursuit of a law. ful trade or business, being an exercise of the NOTE. As to what constitutes due process of law-see notes to Pearson v. Yewdall, 24 L ed. U. S. 436; Wilson v. North Carolina ex rel. Caldwell, 42 L. ed. U. S. 865; People v. O'Brien, (N. Y.) 2 L. R. A. 258; Kuntz v. Sumption (Ind.) 2 L. R. A. 655; Re Gannon (R. I.) 5 L. R. A. 359; Ulman v. Baltimore (Md.) 11 L. R. A. 224; Gilman v. Tucker (N. Y.) 13 L. R. A. 304. 182] *In Strang v. Bradner, 114 U. S. 555, 29 L. ed. 248, 5 Sup. Ct. Rep. 1038, the rule as to the kind of fraud intended to be exempted from discharge by the bankrupt act was again adverted to, and it was again said that it was positive fraud or fraud in fact, involving moral turpitude or intentional wrong; not implied fraud which may exist without bad faith. In that case certain false and fraudulent misrepresentations of fact were made by one member of a partnership firm, by reason of which the debt was created, and As to limit of amount of license fees-seo it was held that it was a debt of that charac-State ea rel. Tol v. French (Mont.) 30 L. R. A. ter which was not discharged under the 415, and note. 177 U. S. U. S., Book 44. 46 725 police power, are within the authority of the state, and form no subject for Federal interference unless they are so utterly unrea sonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily and in a manner, wholly arbitrary interfered with or destroyed without due process of law. 8. The question whether or not a delegation of power has been made to the mayor of a city by the common council is not a Federal question for review on writ of error by the Supreme Court of the United States to a state court. 4. An ordinance fixing the amount of a llcense fee for the privilege of doing business high enough to make it partake of the character of an excise or privilege tax, as well as to provide a means for the regulation of the business, is not for that reason in violation of any provision of the Federal Consti tution as an improper and illegal interference with the rights of the citizen. [No. 209.] Argued March 22, 1900. Decided April 9, 1900. I state of tin tint Court of th 'N ERROR to the Supreme Court of the firming a judgment of conviction for violating an ordinance forbidding the sale of cigarettes without a license. Affirmed. See same case below, 176 Ill. 340, 52 N. E. 44. The facts are stated in the opinion. Mr. Lee D. Mathias argued the cause, and, with Mr. Charles H. Aldrich, filed a brief for plaintiff in error: The ordinance vests arbitrary and discretionary authority in the mayor, and is therefore void. East St. Louis v. Wehrung, 50 Ill. 28; Kinmundy v. Mahan, 72 Ill. 462; Chicago v. Trotter, 136 Ill. 430, 26 N. E. 359; Cass v. People ex rel. Kochersperger, 166 Ill. 126, 46 N. E. 729; Bradford v. Pontiac, 165 Ill. 612, 46 N. E. 794; Cairo v. Coleman, 53 Ill. App. 680; Re Elliott, 11 Manitoba Rep. 358, The practice of delegating to a common council much of the legislative power which the legislature might itself exercise is an exception to the general rule of nondelega tion. Cooley, Const. Lim. 189, 190; Houghton v. Austin, 47 Cal. 646. To hear evidence and adjudge a penalty or forfeiture is purely a judicial power. Poppen v. Holmes, 44 Ill. 360, 92 Am. Dec. 186; Darst v. People, 51 Ill. 286, 2 Am. Rep. 301; Flint & F. Pl. Road Co. v. Woodhull, 25 Mich. 100, 12 Am. Rep. 233. A ministerial act is one performed in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of judgment as to the propriety of the act, on the part of the party performing. Waldo v. Wallace, 12 Ind. 572. In the present case, under no condition prescribed is the mayor obliged to issue the license. Under no condition pointed out in the ordinance would a mandamus lie, that writ being appropriate only to compel the performance of ministerial acts. Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064. sions are beyond any reasonable necessity of The ordinance is void because its provi police regulations. Tiedeman, Limitations of Police Power, 274; Cooley, Const. Lim. 744; Vansant v. Harlem Stage Co. 59 Md. 330; State North Hudson County R. Co. Prosecutor, v. Hoboken, 41 N. J. L. 71; St. Louis v. Boatmen's Ins. & T. Co. 47 Mo. 150. It is neither necessary to the protection or, nor conducive to, the public health or welfare to restrain the business of selling cigarettes. The selling of cigarettes creates no disagreeable odors in the neighborhood in which they are sold, and in no way detracts from the happiness or comfort of the persons residing in the neighborhood. Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636. While it is true that the excessive use of cigarettes may be injurious, yet it is not dinance as the one in question. enough to justify such an unreasonable or Tiedeman, Limitations of Police Power, The case is not within the rule declared by this court in Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064, but is governed by Crowley v. Christensen, 137 U. S. 86, 34 L. ed. 620, 11 Sup. Ct. Rep. 13. See also Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992, 1257. It is not an unlawful restraint upon the fundamental right of a man to pursue a lawful calling, to require a person desirous of pursuing the calling of selling cigarettes in the city of Chicago to be possessed of such a character or reputation as has some natural relation to such calling. Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Crowley v. Christensen, 137 U. S. 86, 34 L. ed. 620, 11 Sup. Ct. Rep. 13; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Brooklyn v. Breslin, 57 N. Ŷ. 591; People ex rel. Larrabee v. Mulholland, 82 N. Y. 324, 37 Am. Rep. 568; St. Louis v. Knox, 6 Mo. App. 247, Affirmed in 74 Mo. 79; Grand Rapids v. Braudy, 105 Mich. 670, 32 L. R. A. 116, 64 N. W. 29; Com. v. Hubley, 172 Mass. 58, 42 L. R. A. 403, 51 N. E. 448; Re Flaherty, 105 Cal. 558, 27 L. R. A. 529, 38 Pac. 981; State ex rel. Minces v. Schoenig, 72 Minn. 528, 75 N. W. 711; Re Bickerstaff, 70 Cal. 35, 11 Pac. 393; People ex rel. Nechamous v. Warden of City Prison, 144 N. Y. 529, 27 L. R. A. 718, 39 N. E. 686; State v. Gardner, 58 Ohio St. 599, 41 L. R. A. 689, 51 N. E. 136; Singer v. | and obey all laws of the state of Illinois and Whether a person desirous of pursuing the calling of selling cigarettes in the city of Chicago is, in point of fact, a fit person to be allowed to engage in such calling, may be left to the judgment of another person, or body of persons, other than a judge and jury, without invading any fundamental right of such person. Ibid. So far as appears in this record, the sum St. Louis v. Western U. Teleg. Co. 148 U. [183] *Mr. Justice Peckham delivered the opin- The plaintiff in error was convicted in a police court of the city of Chicago of a violation of an ordinance of that city forbidding the sale of cigarettes by any person without a license, and was fined $50. From the judgment of conviction he appealed to the criminal court of Cook county, where it was affirmed, and thence to the supreme court of the state, where it was again affirmed, and he now brings the case here on writ of error. Sections 1, 2, and 8 of the ordinance referred to read as follows: "Sec. 1. The mayor of the city of Chicago shall from time to time grant licenses authorizing the sale of cigarettes within the city of Chicago, in the manner following, and not otherwise: "Sec. 8. Any person who shall hereafter have or keep for sale or expose for sale or offer to sell any cigarettes at any place within the city of Chicago, without having first procured the license provided, shall be fined not less than $50 and not exceeding $200 for every violation of this ordinance, and a further penalty of $25 for each and every day the person, firm, or corporation persists in such violation after a conviction for the first offense." *The other sections are not material to[185] this inquiry. sion is conclusive upon us as the decision of a question of local law by the highest court of the state. The plaintiff in error made no application to the health commissioner to obtain a license from the mayor in accordance with the above-mentioned ordinance. He specially set up in the courts below that the ordinance was invalid, because in violation of the Fourteenth Amendment, as depriving him of his property without due process of law. He contended in the state courts that the common council of the city of Chicago had no right to pass the ordinance in question, because no such power was given to it under the general act of the state of Illinois which incorporated the city of Chicago. "Any person, firm, or corporation desiring The supreme court of the state, however, in a license to sell cigarettes shall make writ- construing that act, decided that it did au[184]ten application for that purpose to the com- thorize the city to pass the ordinance, and missioner of health, in which shall be dethe plaintiff in error admits that this deciscribed the location at which such sales are proposed to be made. Said application shall be accompanied by evidence that the applicant, if a single individual, all the members of the firm, if a copartnership, and person or persons in charge of the business, if a corporation, is or are persons of good character and reputation. The commissioner health shall thereupon submit to the mayor the said application with the evidence aforesaid, with his opinion as to the propriety of granting such license, and if the mayor shall be satisfied that the persons before mentioned are of good character and reputation, and are suitable persons to be intrusted with the sale of cigarettes, he shall issue a license in accordance with such application, upon such applicant filing a bond payable to the city of Chicago, with at least two sureties, to be approved by the mayor, in the sum of $500, conditioned that the licensed person, firm, or corporation shall faithfully observe of He makes two claims here upon which he bases the statement that the ordinance violates his rights under the Fourteenth Amendment of the Federal Constitution. Quoting from counsel's brief, these claims are: "First, that the state itself, acting through the common council of the city of Chicago, is inhibited by the Federal Constitution from making those provisions in the ordinance which delegate to the mayor the entire subject of granting and revoking licenses to persons engaged in the business of selling cigarettes; second, that the ordinance is unconstitutional and void as being an unreasonable exercise of the police power by imposing a license fee of $100, a sum manifestly greater than the expense of issuing the license and providing for the regula 727 tion, thereby depriving persons of their lib- He claims also that he has been denied the equal protection of the laws, because in other kinds of business, where licenses are granted to persons engaged in any trade or [186]occupation, no *member thereof is "singled out and subjected to the absolute supervision of an irresponsible magistrate while his neighbor is protected in his right by the customary safeguards of the law." It seems somewhat doubtful whether the plaintiff in error is in a position to raise the question of the invalidity of the ordinance because of the alleged arbitrary power of the mayor to grant or refuse it. He made no application for a license, and of course the mayor has not refused it. Non constat that | he would have refused it if application had been made by the plaintiff in error. Whether the discretion of the mayor is arbitrary or not would seem to be unimportant to the plaintiff in error so long as he made no application for the exercise of that discretion in his favor and was not refused a license. son other than discrimination against the Chinese, refused to grant the licenses to the petitioners and to some 200 other Chinese subjects, while granting them to eighty people who were not such subjects and were tions. Such an ordinance, so executed, was held void by this court. Speaking in that case of the general right to grant licenses in regard to occupations or trades, Mr. Justice Matthews, in delivering the opinion of the court, said: "The ordinance, therefore, also differs from the not unusual case, where discretion is lodged by law in public officers or bodies to grant or withhold licenses to keep taverns or places for the sale of spirituous liquors, and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of the privilege, because in such cases the fact of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature." The ordinance in question here does not grant to the mayor arbitrary power such as is described in the above-mentioned laundry case, but the provision is similar to that mentioned in the foregoing extract from the opinion in that case. In the case at bar, the license is to be issued if the mayor is satisfied that the person applying is of good character and reputation and a suitable person to be intrusted with the sale of cigarettes, provided such applicant will file a bond as stated in the ordinance, as a security that he will faithfully observe and obey the laws of the state and the ordinances of the city with reference to cigarettes. The mayor is bound to grant a license to every person ful But, assuming that the question may be raised by him, we think the ordinance in question does not violate the Fourteenth Amendment, either in regard to the clause requiring due process of law, or in that providing for the equal protection of the laws. The case principally relied upon by the plaintiff in error is that of Yick Wo v. Hop-filling these conditions, and thus the fact of kins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. fitness is submitted to the judgment of the Rep. 1064, relating to the regulation of laundries in the city of San Francisco. The officer, and it calls for the exercise of a disordinance in question in that case was held cretion of a judicial nature by him. There to be illegal and in violation of the Four- is no proof nor charge in the record that teenth Amendment, because, with reference there has been any discrimination against to the subject upon which it touched, it con- individuals applying for a license or any ferred upon the municipal authorities arbi- abuse of discretion on the part of the mayor. trary power, at their will and without re- Whether dealing in and selling cigarettes is gard to discretion in the legal sense of the that kind of a business which ought to be literm, to give or withhold consent as to per-censed is, we think, considering the characsons or places for carrying on a laundry, with reference to the competency of the persons applying or the propriety of the place selected. It was also held that there was a clear and intentional discrimination made against the Chinese in the operation of the ordinance, which discrimination was founded upon the difference of race, and was wholly Regulations respecting the pursuit of a arbitrary and unjust. It appeared that lawful trade or business are of very frequent both petitioners, who were engaged in the occurrence in the various cities of the counlaundry business, were Chinese, and had try, and what such regulations shall be and complied with every requisite deemed by the to what particular trade, business, or occulaw, or by the public officers charged with pation they shall apply are questions for the its administration, necessary for the protec- state to determine, and their determination tion of neighboring property from fire or as comes within the proper exercise of the po[187]a protection against injury to the public lice power by the state, and unless the reguhealth, and yet the supervisors, for no relations are so utterly unreasonable and ex728 ter of the article to be sold, a question for 177 U. S. travagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the state to pass, and they form no subject for Federal interference. As stated in Crowley v. Christensen, 137 U. S. 86, 34 L. ed. 620, 11 Sup. Ct. Rep. 13, "the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community." Whether there is or is not a delegation of power by the common council to the mayor is not in this case a Federal question. We have no doubt that the ordinance, s0 far as the objection above considered is concerned, was clearly within the power of the state to authorize, and must be obeyed accordingly. |jected to the operation of the power to regu. late where a license is imposed for following the same, while the revenue obtained on ac count of the license is none the less legal be cause the ordinance which authorized it fulfils the two functions, one a regulating and the other a revenue function. So long as the state law authorizes both regulation and taxation, it is enough, and the enforcement of the ordinance violates no provision of the Federal Constitution. There is no error in the record, and the judgment of the Supreme Court of Illinois is affirmed. *OHIO OIL COMPANY Plff. in Err., [190] v. STATE OF INDIANA. (See S. C. Reporter's ed. 190-212.) Constitutional law-taking private property The other objection made to the validity of the ordinance is that the amount of the license fee ($100) is an improper and illegal interference with the rights of the citizen, and is therefore a violation of the Four-1. teenth Amendment. The amount of the fee is fixed by the common council for the privilege of doing business, and the text of the ordinance and the amount of the fee therein named would seem to indicate that it is both a means adopted for the easier regulation of the business and a tax in the nature of an excise imposed upon the privilege of doing it. In either case the state has power to make the exaction, and its exercise by the city under state authority violates no provision of the Federal Constitution. 189] *The supreme court of Illinois has held that the city was authorized by the state law to impose the license fee. In speaking of a license to do business, it was said in Royall v. Virginia, 116 U. S. 572, 579, 29 L. ed. 735, 737, 6 Sup. Ct. Rep. 510, 513: "The payment required as a preliminary to the license is in the nature and form of a tax, and is a due to the state which it may demand and exact from every one of its citizens who either will or must follow some business avocation within its limits, to the pursuit of which the assessment is made a condition precedent. It is an occupation tax, for which the license is merely a receipt, and not an authority, except in that sense, because it is laid and collected as revenue, and not merely as incident to the general police power of the state, which, under certain circumstances and conditions, regulates certain employments with a view to the public health, comfort, and convenience." It is not a valid objection to the ordinance that it partakes of both the character of a regulation and also that of an excise or privilege tax. The business is more easily sub177 U. S. The restriction on the waste of gas and oll by owners of land, made by Ind. Acts 1893, p. 300, which provides that it shall be unlawful to permit the flow of gas or oil from a well to escape into the open air, without being confined within the well or proper pipes or other safe receptacle, for more than two days NOTE.-Property in petroleum oil or gas. The nature of property in mineral oil or gas, including the question of the right to drill through coal of another owner and the nature of the interest in oil and gas leases, has been exhaustively discussed in a note to Williamson v. Jones (W. Va.) 25 L. R. A. 222. From the general rule that the property of the owner of cases there cited it may be laid down as the lands, in gas and oil, is not absolute until actually within his grasp and brought to the surface, but that, subject to the limitation not to make such use or waste of the product as will be injurious to the health of others, his power as owner to reduce to possession all or every part of the deposits without violating the rights of other surface owners is absolute until the legislature shall, in the interest of the public as consumers, restrict or regulate it by statute. These principles have been upheld in the more recent cases in which the rights of the owners of land to oil and gas under the surface have been considered. Petroleum oil is a mineral, and while it is in the earth it forms a part of the realty; but when it reaches a well and is produced on the surface it becomes personal property, and belongs to the owner of the well. Kelley v. Ohio Oil Co. 57 Ohio St. 317, 39 L. R. A. 765, 49 N. E. 399. Petroleum oil is a mineral within a reservation by deed of "all mines, minerals and metals in and under the land." Murray v. Allred, 100 Tenn. 100, 39 L. R. A. 249, 43 S. W. 355. Petroleum oil in its place in the land is a part of the land itself. Williamson v. Jones, 43 W. Va. 562, 38 L. R. A. 694, 27 S. E. 411. Petroleum oil as it is found in the cavities of 729 |