it.

tendered a deed to Eells, and offered to agree | pens to be an officer of the state and asserts that the plaintiff might retain so much of that he is lawfully in possession on its be the price for the property as would protect half. Whether the one or the other it against any taxes that had accrued upon party is entitled in law to possession is a judicial, not an executive or legislative, The relief asked was a decree that the de- question. It does not cease to be a judicial fendant should accept the deed tendered to question because the defendant claims that him and pay the purchase price of the prop- the right of possession is in the government erty, less any sum to meet the taxes as- of which he is an officer or agent." These sessed upon it. extracts indicate the scope of the decision in Tindal v. Wesley, and make it clear that that decision does not determine any question now presented.

The defendant admitted in his answer that there were no liens or encumbrances upon the property except the mortgage described in the bill and such taxes as were due thereon to the state and to the city of Columbia. But he alleged that the statute authorizing revenue bond scrip to be received in payment of dues to the state had been repealed, and county auditors and county treasurers forbidden to collect any taxes for the redemption of such scrip; that the act under which the scrip was issued was in violation of the Constitution of the United States, forbidding the states from emitting bills of credit, and also in violation of the Constitution of South Carolina, and such scrip was null and

void.

The defendant stated in his answer that he had always been, and was then, willing to perform his contract, provided he received a full and perfect title to the premises, free from any valid lien, and was protected in the quiet and peaceable possession thereof.

The plaintiff filed a general replication, and the cause was submitted on the pleadings and certain documentary evidence showing the history of the revenue bond scrip, the legislation of South Carolina, and certain decisions of the supreme court of that state.

The vital question in the present case is whether the plaintiff was entitled to a decree for specific performance. The plaintiff bases his right to such a decree upon the ground that Alexander's tender of revenue bond scrip to the treasurer of South Carolina had the effect to extinguish the lien of the mortgage executed by him, and consequently that plaintiff's deed conveying the fee would give to Eells a good title. This view assumes that the revenue bond scrip tendered by Alexander to the state treasurer were legally receivable in payment of the amount on the Alexander bond and mortgage. But as will be seen from an examination of the cases of State ex rel. Shiver v. Comptroller General, 4 S. C. N. S. 185, and Auditor v. Treasurer, 4 S. C. N. S. 311, the supreme court of South Carolina has held that the revenue bond scrip issued under the act of March 2d, 1872, were bills of credit which the Constitution of the United States forbade the states to emit, and therefore were null and void. And in that view the court below concurred. What then, will be the effect of a decree in the circuit court of the United States sitting in Ohio, requiring the defendant to pay the amount he agreed to pay and to take the deed tendered him by the plaintiff? What would the defendant get under such a decree in consideration of the amount paid by him for the property? He would get a deed from Wesley for premises covered by a mortgage of record which the highest court of the state in which the property is situated will presumably hold not to have been discharged by the tender of revenue bond scrip. And we do not perceive that Eells could by any In the memorandum of evidence used by affirmative action on his part bring the quesstipulation of the parties, reference was tion of the validity of that tender before any made to the case of Tindal v. Wesley, 167 U. court in South Carolina for adjudication. S. 204, 221, 42 L. ed. 137, 143, 17 Sup. Ct. He could not sue the state against its conRep. 770, 777. But the decision there has no sent, and no suit except one to which the bearing upon the present case. That was state was a party would effectively reach an action by Wesley to recover the posses- such a question and release the property sion of the property here in dispute,-the from the encumbrance created by the Alexdefendants being in possession only in their ander mortgage. So that, if compelled to capacities as officers or agents of South take Wesley's deed, Eells would be powerless Carolina, and insisting that the suit against to have his title made clear of record, unthem was, in legal effect, one against the less the state brought suit to foreclose the state within the meaning of the Eleventh mortgage and thereby enabled him in defense Amendment of the Constitution of the to relitigate the question already concluded United States. "The settled doctrine of in the courts of that state by judicial dethis court," it was said in that case, "wholly cision. It is thus manifest that a decree for precludes the idea that a suit against in-specific performance would put upon him a dividuals to recover possession of real prop- title that was not at all marketable and erty is a suit against the state, simply be- could not become such except by successful cause the defendant holding possession hap- litigation.

The circuit court of the United States held that the bond scrip issued under the act of March 2d, 1872, were bills of credit and void; that the tender of scrip by Alexander to the state treasurer was therefore not a valid tender, and did not operate to extinguish the mortgage given by Alexander to the state; and that the Agricultural Hall property was still encumbered by the mortgage, and plaintiff could not give defendant a clear title to it. The bill was dismissed at the plaintiff's cost.

In Hennessey v. Woolworth, 128 U. S. 438, | drow, 8 Rich. Eq. 241, 247, the court said 442, 32 L. ed. 500, 501, 9 Sup. Ct. Rep. 109, that on bills for specific performance of con111, this court said: "Specific performance tracts concerning lands, "courts of equity is not of absolute right. It rests entirely in do not force the purchasers to take anything judicial discretion, exercised, it is true, ac- but a good title, and do not compel them to cording to the settled principles of equity, buy lawsuits." Numerous other American and not arbitrarily or capriciously, yet al-cases announce the same rule. ways with reference to the facts of the particular case,"-citing Willard v. Tayloe, 8 Wall. 557, 567, 19 L. ed. 501, 504; Rutland Marble Co. v. Ripley, 10 Wall. 339, 357, 19 L. ed. 955, 961; 1 Story's Eq. Jur. § 742; Seymour v. Delancey, 6 Johns. Ch. 222, 224. To the same effect are McCabe v. Matthews, 155 U. S. 550, 553, 39 L. ed. 256, 257, 15 Sup. Ct. Rep. 190; Rust v. Conrad, 47 Mich. 449, 454, 41 Am. Rep. 720, 11 N. W. 265; Petty v. Roberts, 7 Bush, 411, 419; Huntington v. Rogers, 9 Ohio St. 511, 516. A court of equity will not compel specific performance if under all the circumstances it would be inequitable to do so. Starnes v. Newsom, 1 Tenn. Ch. 239, 244; Parish v. Oldham, 3 J. J. Marsh. 544, 546; Clowes v. Higginson, 1 Ves. & B. 524, 527.

Again, it is a settled rule of equity that the defendant in a suit brought for the specific performance of an executory contract will not be compelled to take a title about which doubt may reasonably exist or which may expose him to litigation. Morgan v. Morgan, 2 Wheat. 290, 299, 301, 4 L. ed. 242, 244, 245; Tiffin v. Shawhan, 43 Ohio St. 178, 183, 1 N. E. 581. And, speaking generally, a title is to be deemed doubtful where a court of co-ordinate jurisdiction has decided adversely to it or to the principles on which it rests. Fry, Spec. Perf. 3d ed. § 870, and authorities there cited. One of the grounds upon which a decree for specific performance was denied in Hepburn v. Auld, 5 Cranch, 262, 278, 3 L. ed. 96, 100, was that it would impose upon the defendant the necessity of bringing a suit to perfect his

title.

The principle is also illustrated in many English cases. In Parker v. Tootal, 11 H. L. Cas. 143, 158, it was said to be an established rule of equity not to compel a purchaser to take a doubtful title. In Rose v. Calland, 5 Ves. Jr. 186, 188, which was a suit by devisees in trust to obtain the specific performance of an agreement entered into by the defendant for the purchase of an estate, certain reasons were given why the plaintiff could not make a sufficient title, one of which was that the court of exchequer, in Nagle v. Edwards, 3 Anstr. 702, had announced principles which, if followed, would prevent the defendant from obtaining such a title as he ought to have. The lord chancellor said: "If I was to send this case to the master, I should create a needless expense; for upon the case in the court of exchequer, Nagle v. Edwards, which I have looked into, my difficulty is this: Can I make a person take a title in the face of that decision? If I do, I decree him to enter into a lawsuit.

. I desire to be understood as not entirely agreeing with the determination of the court of exchequer. But I should be in a strange situation in desiring a purchaser to take this title, because I think the point a pretty good one, though the court of exchequer have determined against it. It is telling him to try my opinion at his expense." So in Price v. Strange, 6 Madd. & G. 159, 165, in which the vice chancellor said: "In attempting to lay down a rule upon this subject, I should say that a purchaser is not to take a property which he can only acquire in possession by litigation and judicial decision." In Pyrke v. Waddingham, 10 Hare, 1, 8, it was held that the court will not compel a purchaser to take a title that "will expose him to litigation or hazard."

We are of opinion that the plaintiff's title is not such as a court of equity should compel the defendant to accept. He should not have been compelled to accept it, even if the court below had been of opinion that the revenue bond scrip tendered by Alexander were not bills of credit.

Upon the grounds stated, and without expressing any opinion upon the question whether the revenue bond scrip referred to were or were not bills of credit within the meaning of the Constitution of the United States, the decree below is affirmed.

The principle is well illustrated in Jeffries v. Jeffries, 117 Mass. 184, 187, which was a suit for the specific performance of a written agreement for the purchase of certain real estate. One of the objections to the title was that it was encumbered by conditions that would interfere with the enjoy ment of the property. The supreme judicial court of Massachusetts there said: "Hence the propriety and the necessity of the rule in equity that a defendant in proceedings for specific performance shall not be compelled to accept a title in the least degree doubtful. It is not necessary that he should satisfy the court that the title is defective so that he ought to prevail at law; it is enough if it appear to be subject to adverse claims which are of such a nature as may reasonably be expected to expose the purchaser to controversy to maintain his title or rights incident to it. Richmond v. Gray, 3 Allen, 25; Sturtevant v. Jaques, 14 Allen, 523; Hayes v. Harmony Grove Cemetery, 108 Mass. 400. He ought not to be subjected, against his agreement or consent, to the necessity of litigation to remove even that which is only a cloud upon his title." So, in Lowry v. Mul- Appeal from territorial court-amount in

(177 U. S. 346).

RICHARD F. CAFFREY, as County Clerk of Oklahoma County, Oklahoma Territory, Plff. in Err. and Appt.,

v.

TERRITORY OF OKLAHOMA on the relation of Harper S. Cunningham, Attorney General.

controversy-decision as to duty of county clerk in respect to taxes.

A decision requiring a county clerk to comply with an order of a territorial board of equalization increasing the assessed valuation of the property in the county does not involve any pecuniary rights of the clerk, where it does not appear that he is a property owner or taxpayer of the county, but bases his resistance to the order upon his duty as an officer; and therefore such decision is not within the jurisdiction of the United States Supreme Court on appeal from or writ of error to the supreme court of the territory.

[No. 182.]

He also alleged that he was prevented from complying by an order of the board of county commissioners.

He prayed "that he be granted a hearing in behalf of the taxpayers of his county, in order that he may establish by competent proof the allegations of fact herein before set out, and that upon a final hearing he have judgment against the relator for his costs in this behalf laid out and expended."

A motion was made by relator to quash the answer and return, which was granted, and on the 21st of September, 1898, judg ment was entered granting a peremptory writ of mandamus against the plaintiff in error and appellant.

Declining to obey the writ, he was cited

Argued March 13, 14, 1900. Decided April for contempt, and such proceedings were had

9, 1900.

N ERROR to and on APPEAL from the Supreme Court of the Territory of Oklahoma to review the judgment of that court granting a writ of mandamus and committing the defendant to jail for refusing to obey the writ. Dismissed.

IN and

The facts are stated in the opinion. Messrs. John S. Flannery, James R. Keaton, and Francis J. Kearful for plaintiff in error and appellant.

Messrs. Frederick C. Bryan, Harper S. Cunningham, and Charles Dick for defendant in error and appellee.

on the citation that he was adjudged guilty, and committed to jail until he should comply with the writ, and the case was then brought here.

A motion is made to dismiss for want of jurisdiction in this court, which we think should be granted.

It is provided by the act of March 3, 1885, that no appeal or writ of error shall hereafter be allowed from any judgment or decree in the supreme court of any of the territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of $5,000, or unless the validity of a patent or a copyright is involved, or a treaty or statute of, or an authority exer

Mr. Justice McKenna delivered the opin- cised under, the United States, is drawn in

ion of the court:

This is an action of mandamus brought by the territory of Oklahoma on the relation of Harper S. Cunningham, attorney general of the territory, against Richard F. Caffrey, county clerk of Oklahoma county. The territorial board of equalization, composed of the governor, the territorial secretary, and the auditor, increased the assessed valuation of the property of Oklahoma county 24 per cent, and notified the plaintiff in error and appellant thereof, as county clerk.

He refused to comply with the order, and this action was brought in the supreme court of the territory to compel compliance

therewith.

question. 23 Stat. at L. 443, chap. 355.

There is controversy between the parties, respectively supported by affidavits, whether the effect of the order of the territorial board of equalization is to increase the taxes of the county $3,179.27 or $28,751.87. But whether it is one sum or the other, the plaintiff in error and appellant does not show that he has any interest in it. He does not allege that he is a property owner or a taxpayer of the county. He alleges he is its county clerk, and bases his resistance to the order of the territorial board of equalization upon his duty as such officer.

However this may have justified his action, of which we express no opinion, or may have caused a dispute which the territorial court had jurisdiction to pass on and determine, it does not give us jurisdiction. To justify our taking jurisdiction there must be a controversy which involves pecuniary value exceeding $5,000 to the party appealing. In other words, there must be a dispute which involves a sum in excess of $5,000, and such sum, or property of its value, must be taken from him by the judgment which he seeks to review.

An alternative writ of mandamus was issued, to which he made return and answer. In his return and answer he admitted that he had been duly notified of the order of the board of equalization, and had failed to comply with it, and alleged that it was illegal and void, because, first, the board had no jurisdiction or legal authority to make it; second, that it was not made for the purpose of equalizing the valuation of property, but for other and illegal purposes; Colvin v. Jacksonville, 158 U. S. 456, 39 that it was made arbitrarily, and without L. ed. 1053, 15 Sup. Ct. Rep. 866, is in point. evidence other than the assessment roll; It was a suit in equity to restrain the issue that the valuation of the property of Okla- of bonds by the city of Jacksonville, and was homa county, as shown by the assessment brought in the circuit court of the United roll, was fair and as high as the property of Pottawatomie county, which the board took as the basis of equalization; that a large part of the property whose valuation was increased consisted of money.

States for the northern district of Florida. Colvin alleged that he was a taxpayer, and that the amount of taxes that would be assessed upon the property owned by him in the city would exceed $2,000. This was de

nied, and the complainant then contended that not the amount of his taxes, but the amount of the bonds proposed to be issued ($1,000,000), was the amount in controversy. The circuit court dismissed the case for want of jurisdiction, and this court sustained the ruling, saying by the Chief Justice that "the amount of the interest of complainant, and not the entire issue of bonds, was the amount in controversy, and, in respect of that, we have no doubt the ruling of the circuit court was correct." El Paso Water Co. v. El Paso, 152 U. S. 157, 38 L. ed. 396, 14 Sup. Ct. Rep. 494, was cited and approved.

In the pending action the plaintiff in error and appellant has neither gained nor lost any money or money's worth by the judgment of the supreme court of the territory.

The writ of error and appeal are dismissed.

(177 U. S. 349)

Messrs. W. B. Douglas and C. W. Som erby for defendant in error.

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

Petit was tried and convicted of keeping open a barber shop on Sunday, for the purpose of cutting hair and shaving beards, contrary to § 6513 of the General Statutes of Minnesota for 1894, and the judgment was affirmed by the supreme court of Minnesota. 74 Minn. 376, 77 N. W. 225. This writ of error was then allowed.

Section 6513 read as follows: "All labor on Sunday is prohibited, excepting the works of necessity or charity. In works of necessity or charity is included whatever is needful during the day for good order, health, or comfort of the community: vided, however, That keeping open a barber shop on Sunday for the purpose of cutting hair and shaving beards shall not be deemed a work of necessity or charity."

Pro

We have uniformly recognized state laws

RICHARD F. CAFFREY, County Clerk, etc., relating to the observance of Sunday as en

Plff. in Err. and Appt.,

v.

TERRITORY OF OKLAHOMA ex rel. W. R.
lor, County Attorney.
[No. 274.]

acted in the legitimate exercise of the police power of the state. The subject was fully Tay-considered in Hennington v. Georgia, 163 U. S. 299, 41 L. ed. 166, 16 Sup. Ct. Rep. 1086, and it is unnecessary to go over the ground again. It was there said: "The legislature IN `N ERROR to and APPEAL from the Su- having, as will not be disputed, power to Su-enact laws to promote the order and to se preme Court of the Territory of Okla-enact laws to promote the order and to se

homa. Dismissed.

cure the comfort, happiness, and health of Counsel in this cause having stipulated fix the day when all labor within the limits the people, it was within its discretion to that the same judgment shall be entered in of the state, works of necessity and charity this case as in No. 182 (177 U. S. 346, 44 L. excepted, should cease." And these observaed., 20 Sup. Ct. Rep. 664), the writ of er-tions of Mr. Justice Field, then a member of ror and appeal are dismissed.

(177 U. S. 164)

PAUL J. PETIT, Piff. in Err.,

v.

the supreme court of California, in Ex parte Newman, 9 Cal. 502, whose opinion was approved in Ex parte Andrews, 18 Cal. 678, in reference to a statute of California relating to that day, were quoted: "Its requirement is a cessation from labor. In its enactment the legislature has given the sanction of law Constitutional law-as to Sunday labor-to a rule of conduct which the entire civclass legislation as to barbers.

STATE OF MINNESOTA.

ilized world recognizes as essential to the physical and moral well-being of society. Upon no subject is there such a concurrence of opinion, among philosophers, moralists, and statesmen of all nations, as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience, and sustained by science. The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted." Well-nigh innuArgued March 16, 1900. Decided April 9, merable decisions of the state courts have

The proviso that keeping a barber shop open on Sunday for the purpose of cutting hair and shaving beards shall not be deemed a work of necessity or charity, which follows the exception as to works of necessity or charity, in Minn. Gen. Stat. 1894, § 6513, prohibiting Sunday labor, does not make a purely arbitrary classification in conflict with the Federal Constitution, but is within the limits of the legislative police power.

[No. 194.]

1900.

N ERROR to the Supreme Court of the

sustained the validity of such laws.

But it is contended that by reason of the proviso this act must be held unconstitu

I State Minnesota a judgment restricted

affirming a decision in favor of a Sunday law. Affirmed.

See same case below, 74 Minn. 376, 77 N. W. 225.

operation on the particular class of craftsmen to which Petit belonged, as contradistinguished from other classes of labor. The proviso was added in 1887 to § 225 of the Penal Code of Minnesota of 1885 (Laws

The facts are stated in the opinion. Messrs. Joseph W. Molyneaux and Al- Minn. 1887, chap. 54). bert E. Clarke for plaintiff in error.

By the original statute all labor was pro