of trustee. We are of the opinion that the res- | homa to review a judgment which affirmed ervation of Hall evidenced his intention to a judgment of the District Court of Noble hold on to whatever rights he had in his County, in that territory, denying a writ of shares of stock, and there is nothing in his mandamus to compel the levy of taxes by conduct which should preclude him, after municipal officers to satisfy judgments he had discovered that the shares had been against the municipality. Reversed and rereturned to the assignee in bankruptcy, from manded for further proceedings. reclaiming them as his own property.

Error to territorial supreme courtamount in controversy.

See same case below, 17 Okla. 162, 87 Pac. 292.

The facts are stated in the opinion. Messrs. A. G. C. Bierer, S. H. Harris, and Frank Dale for plaintiff in error and appellant.

No appearance for defendants in error and appellees.

Mr. Justice Day delivered the opinion of the court:

This is a proceeding to review the judg ment of the supreme court of the territory of Oklahoma, affirming the judgment of the district court of Noble county, in that territory, denying a peremptory writ of mandamus to the plaintiff in error, alз0 plaintiff below, seeking to compel the recognition of certain judgments and the levy of taxes by the city officers of the city of Perry, a city of the first class, in Noble county. The action was begun March 12, 1906, in the district court, upon a petition which set forth the ownership in the plaintiff of judg

1. The amount of all the judgments against a municipality concerning which relief was sought, and which were directly adjudicated to be barred by the statute of limitations, and not simply the judgment fund in the hands of the treasurer, is the amount in controversy, for the purpose of a writ of error from the Federal Supreme Court to a territorial supreme court, to review a judgment denying relief by mandamus, where the prayer was for a continu-ments against the city of Perry, rendered, ous levy of taxes by the municipal officers for the amount permitted by law annually to be applied in payment of the judgments. Estoppel- of municipal corporation.

2. A municipality cannot assert the dormancy, under 2 Wilson's Okla. Stat. 1903, § 4635, of certain judgments against it for failure to issue execution thereon within five years, where, during most of that period, the municipality was carrying out its contract arrangement with its judgment creditors to pay such judgments in the order of their rendition, out of the judgment fund, the effect of which was to prevent the judgment creditors from taking such steps as the law permitted to collect their judgments by execution or mandamus.

Municipal corporations - powers -arrangement with judgment creditors. 3. A municipality authorized by 1 Wilson's Okla. Stat. 1903, § 466, to levy an annual tax to create a judgment fund, may make a valid agreement with its judgment creditors to pay the judgments against it out of such fund, in the order of their rendition.

[No. 150.]

Argued March 4, 1908.

I'

1908.

with two exceptions, in the year 1898; the other two rendered in January and March, 1899, and aggregating the sum of $16,304.51, including interest and costs.

The petition avers that these judgments were rendered on warrants issued by the city of Perry upon the general fund of the city; that, no funds having been provided for the payment of plaintiff's and certain other judgments, on December 3, 1901, the judg ment creditors of the city entered into an agreement with the city treasurer of the city by signing a certain paper writing, to wit:

"I, the undersigned, judgment creditor, holding judgment against the city of Perry, Noble county, Oklahoma territory. hereby ask that the city treasurer pay all judgments against the city of Perry in order of rendition, hereby waiving right to payment pro rata, if such right exists, and this waiver shall apply to all grantees and assigns. Said judgments are in amounts and dates as follows:" [Here follows a list of the judgments.]

*396

At that time the outstanding unpaid judgDecided April 6, ment indebtedness of the city of Perry amounted to $22,000, all of the owners of which, excepting the sum of $4,000, signed the agreement; that the waivers thus signed were presented to the city council of the

N ERROR to and APPEAL from the Supreme Court of the Territory of Okla

Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, §§ 890, 891.

*398

city, which adopted the following resolu- | any liability thereon, solely on the ground tion:

401

*400

and alternate writ of mandamus had become | statutes of limitations, and the question was dormant and were barred by the statute of limitations. This judgment was affirmed by the supreme court of Oklahoma.

whether the relator had slept upon his rights for such an unreasonable time as to prejudice the rights of the defendant and preclude relief by mandamus. In this case the underlying question is not as to whether a writ of mandamus is the proper remedy, but is whether the judgment is dormant by reason of the statute of limitations, and incapable of being enforced against the municipality.

The supreme court of Oklahoma held that the statute made no exception, and that notwithstanding the averment of the petition that the city of Perry had no property lia

We think the judgment in this case involves the validity of all the plaintiff's judgments, and that the amount in controversy is not simply the fund in the hands of the treasurer, but the amount of all the judg-ble to be reached on execution, that unless ments concerning which relief was sought and which were directly adjudicated to be barred by the statute of limitations.

The question made in the case is, Are the judgments dormant by the statute of limitations of the territory of Oklahoma for failure to issue execution thereon for the period of five years, and because the same were not revived within one year after they became dormant? The statutes of Oklahoma in 4635, 2 Wilson's Revised & Annotated Statutes of 1903, provide as follows:

"If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered, in any court of record in this territory, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor."

Section 4623 is as follows:

execution were issued within the five years, or the judgment revived within one year, it had become dormant for failure to comply with the law.

There is some difference of view in the opinion of the courts upon the subject of executions against municipalities, and in some of them it is held that property of a municipality may be reached on execution which is held for profit, and not charged with any public trust or use. It was held in this court that the public property of a municipal corporation cannot be seized upon execution. Klein v. New Orleans, 99 U. S. 149, 25 L. ed. 430.

Judge Dillon, in his work on Municipal Corporations, 4th ed. vol. 2, § 576, notices the differences of ruling on the subject, and states as his own conclusion:

"On principle, in the absence of statutable provision, or legislative policy in the particular state, it would seem to be a sound view to hold that the right to contract and the power to be sued give to the creditor a right to recover judgment; that judgment should be enforceable by execution against the strictly private property of the corporation, but not against any roperty owned or used by the corporation for public purposes, such as public buildings, hospitals, and cemeteries, fire engines and apparatus, "If a judgment become dormant it may waterworks, and the like; and that judg be revived in the same manner as is pre-ments should not be deemed liens upon real scribed for reviving actions before judg

"An order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor unless in one year from the time it could have been first made."

And § 4630 provides:

property except when it may be taken in execution."

Accepting the decision of the supreme court of Oklahoma, rendered in 15 Okla., supra, construing the statute so as to permit the issuance of execution against the municipality, with the right to levy upon the private property of the corporation if it has any,-could the city take advantage of the failure to issue execution under the circumstances shown in this case? This subject was briefly disposed of in the opinion in that court, and of it the learned court said (15 Okla. 436, 2 L.R.A. (N.S.) 858, 82 Pao. 1041):

⚫403

"It is alleged that this agreement and res- in question would have equally prevented olution of the city council prevented the the plaintiff from availing himself of that running of the statutes. This resolution writ. was passed at a time when the plaintiff's judgments were in full force and effect. The city council did not attempt to renew its liability on these judgments. Without expressing our views as to whether such judgments should be paid pro rata, or in order | of priority as to date, we are of the opinion that the council could not change the law, and, if the resolution purported to change it, it would be void; and if it was in conformity with the law it would not change the relation of the parties."

That the principles of right and justice, upon which the doctrine of estoppel in pais rests, are applicable to municipal corporations, is recognized by text-writers and in well-considered cases. In 1 Dillon on Municipal Corporations, 4th ed., in a note to § 417, that learned author says:

"Any positive acts (infra vires) by municipal officers which may have induced the action of the adverse party, and where it would be inequitable to permit the corporation to stultify itself by retracting what its officers had done, will work an estoppel."

In this case the agreement made by the parties in December, 1901, was being continuously carried out until 1905. And during that time the city of Perry was doing all it could be compelled by mandamus to do in levying taxes to the full amount required by law for the payment of judgments against the city. The court would have no power by mandamus to compel the levy of taxes which the law did not authorize. United States v. County Court, 99 U. S. 592, 25 L. ed. 333.)

As we have said, the principles of natural justice and fair*dealing are alike applicable to municipal corporations as to individuals, and to permit the city to escape the payment of judgments whose validity is not otherwise questioned, for failure to issue execution or sue out a writ of mandamus during the time when the action of the city officers was such as to prevent the exercise of the right, would be to permit the action of the representatives of the city, who have had the benefit of the contract during the time both parties were observing its obligations, to work a gross injustice upon the creditors holding valid judgments against the municipality.

We have been referred to no case precisely in point. Analogous cases are not altogether wanting. In Mercantile Trust Co. v. St. Louis & S. F. R. Co. 69 Fed. 193, it was held that a stay of execution in the record prevented the judgment becoming dormant. In Marshall v. Minter, 43 Miss. 678, it was held that the statute did not run during the time an injunction was in force, sued out by the adverse party and afterwards dissolved.

And this case does not rest on the ground of equitable estoppel alone. The manner of liquidation of these judgments was the subject of express contract between the parties. In the present case, by the action of the city council, the judgment creditors were so placed that during the time, at least, while the city council were carrying out the arrangement of December 3, 1901, in good faith, they could not, consistently with fair dealing and the terms of the contract on their part, issue an execution to seize the property of the municipality; had they undertaken to do so a court of equity would It is not argued at the bar in this case have promptly restrained such proceedings. that the arrangement with judgment credIt is averred, and not denied, that up itors was void for want of power in the muuntil the year 1905 the city council made nicipality to make the arrangement of Dea levy each year for the largest amount cember, 1901, and we fail to see any valid which the statute permitted, to create reason why the municipality might not enter judgment fund out of which to pay, and out into this arrangement. It was permitted of which was regularly paid, the outstand-by law to make an annual levy of 5 mills on ing judgments against the city, and that these payments continued until the plaintiff's judgments were reached, which were next in order. While thus acting to the limit to which the law permitted, and in good faith carrying out the arrangement between the parties, it is perfectly apparent that the plaintiff was not in a position to seize by execution any property of the municipality. | If it could be held, as the authorities indicate (2 Dill. Mun. Corp. 4th ed. § 850, note 1), that, when execution cannot be issued on a judgment against a municipality, mandamus may take its place. the action of the city council in making the arrangement

the dollar. 1 Wilson's Rev. & Anno. Stat. 1903, § 466. If the judgment creditors and the municipality saw fit to make an arrangement by which the amount of this annual levy might be distributed by the consent of the creditors among them in accordance with the priority of their judgments, we perceive no reason why this may not be legally done. The effect of this arrangement was to prevent the judgment creditor from taking such steps as the law permitted to collect his judgment, and, upon principles of common right and justice, it would not do to permit the city to carry out such an arrangement during nearly all the five

405

cover a license tax on the business of buy
Affirmed.
ing and selling futures.

See same case below, 146 Ala. 163, 41
So. 153.

The facts are stated in the opinion. Mr. Burwell B. Boone for plaintiffs in error.

years' period, and then meet its obligation by a plea of the statute of limitations upon the ground that the judgments had become dormant, while both parties were recognizing their binding obligation and doing all that the law permitted to effect their satisfaction, and had entered into a contract which prevented the judgment creditors from taking steps to avail themselves of their right Mr. Justice Day delivered the opinion to collect their judgments by execution or by writ of mandamus.

For these reasons the judgment of the Supreme Court of Oklahoma Territory is reversed, and the cause remanded to the Supreme Court of the State of Oklahoma for further proceedings in accordance with this opinion.

(209 U. S. 405)

WARE & LELAND, a Copartnership, and J. H. Ware, E. F. Leland, Charles W. Lee, and F. J. Fahey, Plffs. in Err.,

V.

MOBILE COUNTY. (No. 173.)

No appearance for defendants in error.

of the court:

These cases were submitted together, and are in all respects similar, and involve the constitutional validity of subd. 40 of an act of the legislature of Alabama imposing license taxes, "to better provide for the revenue of the state," General Acts 1903, p. 207, which reads as follows:

"For each person engaged in the business of buying and selling futures for speculation or on commission, either for themselves or for other persons, and each place of business commonly known as cotton exchanges, or stock exchanges, and sometimes called 'bucket shops,' in towns and cities of 20,000 inhabitants or more, $500; in all other towns and cities, $250; but this shall not

WARE & LELAND, a Copartnership, and J. H. Ware, E. F. Leland, Charles W. Lee, be held to legalize any contract which would and F. J. Fahey, Plffs. in Err.,

V.

STATE OF ALABAMA. (No. 174.)

Commerce-state

taxation of buying

and selling futures. The business of taking orders on commission for the purchase and sale of grain and cotton for future delivery, and transmitting them to other states, is not interstate commerce, so as to be exempt from state taxation, where, in those cases in which contracts for purchases for future delivery result in an actual delivery, the property is bought in the state to which the orders are transmitted, and there held for the purchaser, and in those cases in which there is a delivery upon a contract of sale made by the broker, the seller is at liberty to acquire the property in the market where delivery is required or elsewhere. *

[Nos. 173, 174.] Submitted March 10, 1908. 6, 1908.

otherwise be invalid."

In case No. 173 the action was brought by Mobile county for the recovery of the defendants' license tax for the year 1903, for engaging in the business of buying and selling futures on commission for other persons in the city of Mobile. The other case (174) was an action by the state. Plaintiffs recovered in the circuit court and both judgments were affirmed by the supreme court. 146 Ala. 163, 41 So. 153.

The cases were submitted upon an agreed statement of the facts as follows:

"During the whole of the year 1903 defendants had an office in the city of Mobile, in the county of Mobile and state of AlaNew York in the state of New York, and bama; they also had offices in the city of

in the city of New Orleans in the state of Louisiana, and in the city of Chicago in the state of Illinois, each of which offices Decided April was connected by private telegraph wires

N ERROR to the Supreme Court of the

which affirmed a judgment of the Mobile Circuit Court, in that state, in favor of plaintiff in an action by Mobile county to recover a license tax on the business of buying and selling futures. Affirmed. Also,

IN

N ERROR to the Supreme Court of the State of Alabama to review a judgment which affirmed a judgment of the Mobile Circuit Court, in that state, in favor of plaintiff in an action by the state to re

with said Mobile office. Said Mobile, Alabama, office was in the charge of their agent, one Robbins, and was engaged in the busi

mess and selling cotton for future

delivery, on commission, for the public generally and for special customers, said business being conducted in the following way and in no other way: They would undertake, through their agent, to buy or sell a cotton future contract for a customer in the cotton exchange in New York or in New Orleans, as he might select, he making at the time a deposit of money with them as a margin to protect them against loss in mak

*Ed. Note.-For other definitions, see Words and Phrases, vol. 4, pp. 3724-3731.

406