Bowen et al. v. Sullivan, Guardian.

o have the money by the right of prior possession. But the the plaintiff never had any possession of the money, except, unwittingly, by having possession of the safe which contained it. Such possession, if possession it can be called, does not of itself confer a right. The case at bar is in this view like Bridges v. Hawkesworth, * * 7 Eng. L. & Eq. 424. In that case, the plaintiff, while in the defendant's, shop on business, picked from the floor a parcel containing bank-notes. He gave them to the defendant for the owner if he could be found. The owner could not be found, and it was held that the plaintiff as finder was entitled to them, as against the defendant as owner of the shop in which they were found. The notes,' said the court, ‘never were in the custody of the defendant nor within the protection of his house, before they were found, as they would have been if they had been intentionally deposited there." The same in effect may be said of the notes in the case at bar; for though they were originally deposited in the safe by design, they were not so deposited in the safe, after it became the plaintiff's safe, so as to be in the protection of the safe as his safe, or so as to affect him with any responsibility for them. The case at bar is also in this respect like Tatum v. Sharpless, 6 Phila. 18. There it was held, that a conductor who had found money which had been lost in

a railroad car was entitled to it as against the railroad company."

It is also claimed in this case, that the finding of the money was a wrongful act,. and that, therefore, the defendants (appellants) have a right to hold the money. We do not concur in this view. The defendants insist that Ellen Quinn, the finder, was in their employ as a rag-resorter, and that, therefore, what she found while so in their enploy belonged to them.

The evidence would have sustained such a finding; and, support of the verdict, perhaps we should presume in

Kent v. The Town of Kentland et al.

favor of it. If she was so in the defendants employ, the finding of the money was not wrongful, In the elaborate case of Brandon v. Planters and Merchants' Bank of Huntsville, 1 Stewart, 320, it was held that lost property found by a slave belonged to his master, but we have found no case to which this doctrine has been applied as between employer and employee. See Tatum v. Sharpless, and Durfee v. Jones, supra.

See, on this general subject, note to Bailey v. The State, 21 Am. Rep. 187; Bailey v. The State, 52 Ind. 462; The N. Y. & Harlem R. R. Co. v. Haws, 56 N. Y. 175.

An objection was made to the admission of certain testimony, but it is not noticed in the brief of counsel in this court, and is therefore treated as waived.

The defendants, by.counsel, object to some part of an instruction. But the instructions are not numbered; and we cannot find one that is subject to the objection made. No instruction was asked by the defendants to supply any deficiency; and, as applicable to the evidence, we think the instructions were not liable to the defendants' objection.

It is claimed that the appellants, in purchasing the envelope containing the bills by weight, purchased the bankbills in question. Their existence was unknown when the envelope was purchased, and their weight was so infinitesimally small, compared with their value, that we do not concur in this proposition. It is unreasonable. The judgment is affirmed, with costs.

KENT V. THE TOWN OF KENTLAND ET AL.

COMMON SCHOOLS.-Constitutional Law.-Act of March 8th, 1873.-Tax by City or Town on Property of Non-Resident. -The act of March 8th, 1873 Acts 1873, p. 60, authorizing a city or incorporated town to assess

Kent v. The Town of Kentland et al.

and collect a tax for the payment of a debt contracted by the city or town in constructing or completing a school building, upon the property of persons, who, residing and having their property outside of the city or corporate limits, have, whether transferred or not, sent their children to a school taught within the city or corporate limits in such school building, is constitutional.

From the Newton Circuit Court.

R. S. Dwiggins, Z. Dwiggins and J. T. Saunderson, for appellant.

BIDDLE, J.-Complaint by the appellant, against the appellees, to enjoin the collection of a special, additional tax, levied under the authority of section 3 of the act of March 8th, 1873, Acts 1873, p. 60, upon certain lands owned by the appellant and situated outside of the corporate limits, for the purpose of paying the interest and principal on certain bonds issued by said town of Kentland to aid in the erection of school buildings.

Some interlocutory orders were had in the premises, which we need not notice, as no question arises upon them. Answer, general denial; trial by the court on an agreed statement of facts, as follows:

"1. The plaintiff resides in Jefferson township, in said Newton county, Indiana, and outside of the corporate limits of the town of Kentland, which said town is situated in said Jefferson township.

"2. The real estate described in plaintiff's complaint is situated in said township, and outside of the corporate limits of the town of Kentland.

"3. The lands described in the complaint were of the assessed value of one hundred and fifteen thousand two hundred and twenty dollars ($115,220), for the year 1874, as appears by the duplicate of said town.

"5. The plaintiff' sent his children to the school in the school building in said town during the year 1874, for the payment of the erection and furnishing of which the bonds of said town had been issued, as alleged in the complaint ;

Kent v. The Town of Kentland et al.

but said plaintiff was not transferred to said town for educational purposes; neither did said plaintiff make any request to be so transferred.

"5. That the defendants, Charles Frankenberger, John G. Perry and Greenberry W. McCray, as the board of trustees of said town, on the 12th day of May, 1874, levied a tax of fifty cents on each one hundred dollars of the valuation of said lands, as the taxes thereon, for the purpose of paying the principal and interest of said bonds so issued, amounting to the sum of $576.10 for said year 1874, and for no other purpose whatever.

"6. That the defendant Daniel Graves, as the then marshal of said town, advertised said land for sale, as alleged in the complaint, to pay the above sum of $576.10, delinquent taxes thereon for the year 1874, and the further sum of $92.17, interest and penalty thereon, being the total sum of $668.27, which remains due and unpaid.”

Upon this agreed statement of facts, the court found for the appellees, and denied the injunction. Judgment accordingly.

The plaintiff below prepared the case and appealed from the judgment to this court.

The main question presented-indeed the only one discussed in the appellant's brief-is the constitutionality of the law under which the tax is sought to be collected. The constitution requires, that "The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation." Art. 10, sec. 1.

It is contended by the appellant, that the law in question does not provide a "uniform and equal rate of assessment and taxation."

The law under which the tax is assessed, cited above, provides, that " persons residing outside of any such city or town and electing to be transferred to such town or city for educational purposes, or who shall send their

Kent v: The Town of Kentland et al.

children to the school taught in any such building, shall, with their property, be liable to such tax as if they resided in such city or town, on all property owned by said person in the township where such city or town is located." The 16th section of the common school act provides, that, when persons can be better accommodated at the school of an adjoining township, incorporated town or city, they may, upon request, be transferred for educational purposes to such adjoining school.

Section 17 provides, that each person so transferred may be taxed for the benefit of the school they so enjoy, points out the method by which he may be so taxed, and declares that the payment of such tax "shall release his property from special school tax, in the township in which he resides." 1 R. S. 1876, p. 785.

The later law, above quoted, under which the tax in question was levied, provides, that those who send their children to such adjoining school shall be so taxed, as well as those who are transferred for educational purposes.

We can see nothing unconstitutional in any of these acts. They are "uniform and equal" in the rate of assessment and taxation, operate throughout the State, and upon all persons in the same circumstances, alike. Of course, the facts upon which these laws act are not equal and uniform, but continually vary; and a municipal law can no more act without facts, than the law of gravitation can act without matter. The laws, by which counties and townships levy and collect taxes for their own use, are uniform and equal, yet the rates of assessment and taxation in one county or township, as compared with another county or township, are not uniform and equal, and may vary from year to year. Those changes in fact do not affect the uniformity and equality of the law.

Whether the payment of the tax sought to be enjoined in this case will release the property of the appellant from