for consideration, and which were waived,, by the executors of said will for the benefit either expressly or by implication, will not of the two minor children surviving the be regarded as before this court. Montana said daughter, namely, Alexander RichardR. Co. v. Warren, 137 U. S. 348, 351, 34 son Magruder, of the age of sixteen years, L. ed. 681, 682, 11 Sup. Ct. Rep. 96; Gila and Isabel Richardson Magruder, of the age Valley, G. & N. R. Co. v. Hall, 232 U. S. of about thirteen years; that these children, 94, 98, 58 L. ed. 521, 523, 34 Sup. Ct. who were interested as beneficiaries in the Rep. 229; Grant Bros. Constr. Co. v. United trusts created by the will, at the time of States, 232 U. S. 647, 660, 58 L. ed. 776, 784, the probate thereof and ever since had re34 Sup. Ct. Rep. 452. We shall, then, con- sided at Washington, in the District of sider the assignments of error which were Columbia; that Samuel Maddox and Samuel brought to the attention of the district A. Drury had been appointed by the sucourt of appeals. preme court of the District of Columbia trustees for said minors, to carry out the provisions of said will in behalf of the said minors, and that Alexander F. Magruder had been appointed guardian of said minors; and they further represented to the court that William A. Richardson was not, at the time of his decease, a resident of Massachusetts, but of the District of Columbia, and that all the parties in interest under the will, at the time of the probate thereof, lived in Washington, as they had since and did then. They represented that the will should have been probated [115] at Washington, in the District of Columbia, but either by accident or mistake, probate in the probate court of Middlesex county, Massachusetts, was had, and they asked an order that they be authorized to pay over the trust funds to the trustees appointed by the supreme court of the District of Columbia, and that, upon the payment of such funds to such trustees, they be discharged from further liability.

First, as to the allowance to the trustees of 5 per cent commission on the principal, and 10 per cent on the income. As to this allowance, the auditor made a lengthy finding of fact, setting forth in detail the services rendered by the trustees over a period of ten years, finding, as to the character of the estate, that the great bulk thereof was second trust notes of small amounts, as to which the auditor says that the transactions were almost innumerable, the total number of notes approximating three thousand, and he sets forth in detail other services involving care of the real estate, looking after the repairs of the property, acquiring parcels of real estate, and the sale thereof, and saying in conclusion that he had no hesitancy in finding that the trustees were well entitled to the commissions allowed. This allowance met with the approval of both the District supreme court and the court of appeals, and seems to have the sanction of an earlier decision of this court, where it was said that such allowances were customary in Maryland and the District of Columbia. Barney v. Saunders, 16 How. 535, 542, 14 L. ed. 1047, 1050. We are not, therefore, prepared to disturb the decree of the courts below in this respect.

A decree was entered in the probate court of Massachusetts on April 11th, 1899, wherein it was found that by the decree of the supreme court of the District of Columbia, dated April 1st, 1899, Samuel Maddox and Samuel A. Drury had been duly ap [114] The next exception involves the al- pointed trustees to perform the trusts of lowance of the item of $18,800 in the probate the will, and that the beneficiaries were court of Massachusetts, and charging the residents of Washington, and that the trustees with the balance of the estate after guardian of the minors had signified his that allowance had been made. It appears consent to the granting of the petition, and that the executors Richardson and Drury ap- that the laws of the District of Columbia peared on April 4, 1899, in the Massachu- secured the performance of the trusts, and setts probate court, and by petition set Richardson and Drury, as executors, were forth that they had been appointed and had authorized to pay over the trust funds to given bond and due notice of their appoint- Maddox and Drury, as trustees. On April ment as executors of the will of William A. 25th, 1899, in the same probate court, RichRichardson; that there was not at the time ardson and Drury, as executors, filed their of the grants of the letters testamentary, first and final account, in which they and had not been since, property belonging charged themselves with property in the to the testator in the commonwealth of aggregate of $415,458.37, and asked to be Massachusetts; that since the granting of allowed sundry payments and charges. letters testamentary Isabel Magruder, the This account was indorsed with a request only surviving child and heir at law of the for its allowance, signed by Alexander R. said testator, had deceased, and that under Magruder and Isabel R. Magruder, by their and by the terms and provisions of said guardian, Alexander F. Magruder, and by will it was provided that upon her decease | Maddox and Drury, as trustees. On the the property of the testator should be held 25th of April, the probate court made the

determine its jurisdiction to receive and probate the same, and upon ordering the property turned over to the trustees appointed in the District of Columbia, to settle the account and fix the compensation of the executors, and order the balance turned over to the trustees. True, the Massachu setts court held, in the case of Dallinger v. Richardson, 176 Mass. 77, supra, that Richardson was not a resident of Massa

that case, the court points out that, for the purpose of the tax question, the matter of residence was not foreclosed by the adjudication of the probate court, whether in accordance with the truth or not.

following order: "The foregoing account having been presented for allowance, and verified by the oath of the accountant, and all persons interested having consented thereto in writing, and no objection being made thereto, and the same having been examined and considered by the court, it is decreed that said account be allowed." The schedules attached show the property and the payments, charges, losses, and [116] distributions, among others the item of $18-chusetts. In the course of the opinion in 800, to which exception is made. This item states: "Expense of administration, including care of property, the payment of debts, the making of final account, the collection of notes amounting to $226,607.54, the investment in trust notes of $166,958.21, It is well settled that the decree of the the collection from interest and other court which has acquired jurisdiction of an sources of $58,168.94, the payment of about estate and settled an account cannot be $50,000 for repairs on real estate, the tak collaterally attacked (Jennison v. Hap ing up of prior mortgages, taxes, etc., in- good, 7 Pick. 1, 7, 19 Am. Dec. 258). In cluding also the payments of moneys to that case it was held that what assets came Isabel Magruder and to Alexander F. Mag-into the executor's hands, what debts he ruder, the guardian of their minor children, had paid, and so of every matter properly counsel fees incurred in the defense of suits done or cognizable in the probate court, the for taxes in Massachusetts and for counsel | judgment of that court is conclusive. See fees in Washington, etc., . . . $18,800." The auditor held that he had no authority to disregard or change this item of credit; that the same had been included in the reports of his predecessors and confirmed by the court; and that the allowance, having been made in the probate court of Massachusetts, was not open to review.

also Abbott v. Bradstreet, 3 Allen, 587. There was no attempt to probate the will in the District of Columbia, in which event the finding of the fact of domicil in the proceedings in Massachusetts would not have been conclusive here. Overby v. Gordon, 177 U. S. 214, 44 L. ed. 741, 20 Sup. Ct. Rep. 603. The trustees were authorized to receive the assets from the executors. The probate court in Massachusetts, and no other court, had authority to settle the executors' accounts and determine their compensation. Vaughan v. Northup, 15 Pet. 1, 10 L. ed. 639. We cannot agree with counsel for the appellant that the order of the probate court was based upon consent only, and that this is a case for the application of the rule that the trustees' consent to such a decree [118] cannot work to the prejudice of the beneficiaries of the trust. Whether the guardian might give such consent, we do not find it necessary to decide, for the decree shows that the account was presented, verified by the oath of the accountants, and that it was examined and considered by the court.

The court of appeals of the District of Columbia, in the course of its opinion in this case, states that the appellants contended that there was no jurisdiction in the probate court of Massachusetts to probate the will,-a position which counsel for the appellant in this case disclaims in his brief filed herein, and says that the contention is that the order and decree in Massachusetts was not intended to be operative to diminish the accountability of the executors and trustees to the District of Columbia court. But we do not so interpret the proceedings. The account was filed in the Massachusetts court; and, the record recites, was examined and considered by the court and duly allowed. This order, reads in connection with the rules of the Massachusetts court set out at the head The next exception involves the allowance of the account, stating the authority of the of commissions on the notes purchased from court to allow reasonable expenses and com- Mr. Drury's firm. The contention before pensation, shows that it was the intention of the auditor was that one trustee had rethe probate court to make an [117] allow-ceived compensation in connection with the ance including such expenses and compensa- handling of these investments, and that that tion. Apart from the concession of the should be taken into account. As to this jurisdiction here made, we have no doubt exception, the auditor finds that "the fact that the Massachusetts court, on the pre-clearly appears from the testimony that sentation of the will, had the right to Arms & Drury, as real estate brokers, made

a like view was taken by the court of appeals of the District of Columbia (37 App. D. C. 505, supra).

It is a well-settled rule that a trustee can make no profit out of his trust. The rule in such cases springs from his duty to protect the interests of the estate, and not to permit his personal interest to in any wise conflict with his duty in that respect. The intention is to provide against any possible selfish interest exercising an influence which can interfere with the faithful discharge of the duty which is owing in a fiduciary capacity. "It therefore prohibits a party from purchasing on his own account that which his duty or trust required him to sell on account of another, [120] and from purchasing on account of

count. In effect, he is not allowed to unite the two opposite characters of buyer and seller, because his interests, when he is the seller or buyer on his own account, are directly conflicting with those of the person on whose account he buys or sells." Michoud v. Girod, 4 How. 503, 555, 11 L. ed. 1076, 1099.

loans on trust notes, upon which loans they were paid by the borrowers a commission ranging from 1 to 2 per cent, according to the circumstances of the case, many being building loans; that subsequently, as notes of the trust estate were paid off, Mr. Drury would reinvest the moneys of the estate in trust notes held by Arms & Drury, paying the face value and accrued interest on the notes so purchased." As a matter of law, the auditor concluded: "No profit was made by the firm of Arms & Drury on sales of the notes to the trustees. The transactions of Arms & Drury with the trustees were in the regular course of their business, in which they had their own moneys invested. They cost the estate not a penny more than if the transactions had been with some other firm or individual. | another that which he sells on his own acIf the firm of Arms & Drury, out of their own moneys, made loans on promissory notes, upon which loans were paid by the borrower the customary brokerages, those were profits on their own funds, in which this estate could have no interest, and in which it could acquire no interest by reason of the subsequent purchase of those notes by the trustees for their real value, any more than could any of the purchasers of such notes from Arms & Drury claim such an [119] interest. No charge of malfeasance or misfeasance is made against the trustees or that, by reason of these transactions, the trustees benefited in any manner out of the money of this estate. On the contrary, the relation of the firm of Arms & Drury to Drury and Maddox, trustees, benefited the estate, by enabling the trustees at all times to make immediate reinvestment of its funds, without loss of income, and by enabling the trustees to at all times readily procure reinvestments without payment of brokerage, a brokerage not uncommonly charged the lender for placing his money, as well as the borrower for procuring his loan in times of stringency. The application of the well-known rule in equity should rather, therefore, be in favor of the trustees than against them with respect to these transactions. The objection narrows itself to a claim that Drury, by reason of his position as trustee, should, in addition to the benefit of his valuable services, commercial knowledge, and business acumen, make the estate a gift of profits on his individual moneys, to which the estate is in no wise entitled, and to which it could not make a semblance of reasonable claim had the trustees been other than Drury, or the agents of the estate been other than Arms and Drury." This view seems to have met with the approval of the supreme court, and

It makes no difference that the estate was not a loser in the transaction, or that the commission was no more than the services were reasonably worth. It is the relation of the trustee to the estate which prevents his dealing in such way as to make a personal profit for himself. The findings show that the firm of which Mr. Drury was a member, in making the loans evidenced by these notes, was allowed a commission of 1 to 2 per cent. This profit was in fact realized when the notes were turned over to the estate at face value and accrued interest. The value of the notes when they were turned over depended on the responsibility and security back of them. When the notes were sold to the estate it took the risk of payment without loss. While no wrong was intended, and none was in fact done to the estate, we think nevertheless that upon the principles governing the duty of a trustee, the contention that this profit could not be taken by Mr. Drury, owing to his relation to the estate, should have been sustained.

We find no other error in the proceedings of the Court of Appeals, but for the reason last stated, its decision must be reversed, and the cause remanded to that court with directions to remand the cause to the Supreme Court of the District of Columbia for further proceedings in accordance with this opinion.

Reversed.

due process of law, be imposed upon the A Court of Appeals for the Eighth Cirrailway company by a duly authorized mu-cuit to review a decree which affirmed a denicipality acting under state authority, although the structure ordered by the city, being designed to carry the tracks of a street railway company operating in such street, will cost considerably more than a viaduct sufficient to carry the ordinary street traffic.

city has power to compel appellant to con- | 37 L.R.A. 175, 62 Am. St. Rep. 418, 46 N. E. struct a viaduct of greater width and 579; Smiley v. MacDonald, 42 Neb. 5, 27 strength than is necessary to provide for ordinary street traffic, for the purpose of providing for the traffic of the street railway company over said viaduct.

33 Cyc. 276, 289, 290; Chicago v. Rogers Park Water Co. 214 Ill. 212, 73 N. E. 375; Detroit, Ft. W. & B. I. R. Co. v. Osborn, 189 U. S. 383, 47 L. ed. 860, 23 Sup. Ct. Rep. 540; Briden v. New York, N. H. & H. R. Co. | 27 R. I. 569, 65 Atl. 315; People ex rel. Western New York & P. R. Co. v. Adams, 88 Hun, 122, 34 N. Y. Supp. 579, affirmed in 147 N. Y. 722, 42 N. E. 725; Carolina C. R. Co. v. Wilmington Street R. Co. 120 N. C. 520, 26 S. E. 913; Conshohocken R. Co. v. Pennsylvania R. Co. 15 Pa. Co. Ct. 445.

Notwithstanding the rights which a street railway company may acquire in the streets by a franchise voted to it by the people, it acquires no contract rights thereby, but is merely authorized and permitted to enter upon the streets, under the statute, and is subject to valid regulations imposed upon it by law and ordinance passed pursuant thereto.

Lincoln Street R. Co. v. Lincoln, 61 Neb. 109, 84 N. W. 802; State ex rel. Lincoln Traction Co. v. Frost, 78 Neb. 325, 110 N. W. 986.

Even the police power of the state, however broadly it be considered or construed, may not be used to authorize the taking of the property of one party for the use and benefit of another. Such action is contrary to the very foundation principles of organized society and government.

Calder v. Bull, 3 Dall. 386, 1 L. ed. 648; 1 Tiedeman, State & Federal Control of Persons & Property, p. 13.

That the police power of the state is subject to all the limitations of state and Federal Constitutions is now so well settled that it is no longer questioned.

Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Dobbins v. Los Angeles, 195 U. S. 223, 49 L. ed. 169, 25 Sup. Ct. Rep. 18; Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130; Belleville v. St. Clair County Turnp. Co. 234 Ill. 428, 17 L.R.A. (N.S.) 1071, 84 N. E. 1049; Schnaier v. Navarre Hotel & Importation Co. 182 N. Y. 83, 70 L.R.A. 722, 108 Am. St. Rep. 790, 74 N. E. 561; State v. Walker, 48 Wash. 8, 92 Pac. 775, 15 Ann. Cas. 257; Bonnett v. Vallier, 136 Wis. 193, 17 L.R.A. (N.S.) 486, 128 Am. St. Rep. 1061, 116 N. W. 885; Pittsburgh, C. C. & St. L. R. Co. v. Crown Point, 146 Ind. 421, 35 L.R.A. 684, 45 N. E. 587; Cleveland, C. C. & St. L. R. Co. v. Connersville, 147 Ind. 277,

L.R.A. 540, 47 Am. St. Rep. 684, 60 N. W. 355; Wenham v. State, 65 Neb. 394, 58 L.R.A. 825, 91 N. W. 421; Re Anderson, 69 Neb. 689, 96 N. W. 149, 5 Ann. Cas. 421; Halter v. State, 74 Neb. 757, 7 L.R.A. (N.S.) | 1079, 121 Am. St. Rep. 754, 105 N. W. 298. When the legislature confers upon the government of a municipality the general power of passing ordinances for the safety and protection of the inhabitants, municipal legislation passed pursuant to such general grant of power will be held void by the courts, unless found to be a reasonable exercise of such power.

Iler v. Ross, 64 Neb. 710, 57 L.R.A. 895, 97 Am. St. Rep. 676, 90 N. W. 869; State, Pennsylvania R. Co. Prosecutor, v. Jersey City, 47 N. J. L. 286; Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611; Wice v. Chicago & N. W. R. Co. 193 Ill. 351, 56 L.R.A. 268, 61 N. E. 1084; Curran Bill Posting & Distributing Co. v. Denver, 47 Colo. 221, 27 L.R.A. (N.S.) 544, 107 Pac. 261; Landberg v. Chicago, 237 Ill. 112, 21 L.R.A. (N.S.) 830, 127 Am. St. Rep. 319, 86 N. E. 638; Chicago v. Gunning System, 214 Ill. 628, 70 L.R.A. 230, 73 N. E. 1035, 2 Ann. Cas. 892; Champer v. Greencastle, 138 Ind. 339, 24 L.R.A. 768, 46 Am. St. Rep. 390, 35 N. E. 14.

It is true that where the legislature authorized the city to enact ordinances in the exercise of the police power, and there is no judgment or discretion required on the part of the city in carrying the permission into effect, except in so far as it decides to enact or not to enact the ordinance, then the question of reasonableness in the regulation can only be inquired into in so far as it goes to the constitutionality of the statute itself. For illustration, if the statute authorized the council to forbid by ordinance peddlers and hucksters upon the streets of the city, an ordinance of the city forbidding in general terms such traffic will be sustained unless there is ground for holding the legislation itself invalid.

Re Anderson, 69 Neb. 686, 96 N. W. 149, 5 Ann. Cas. 421.

But it is equally well settled that when the power to legislate on a given subject is conferred by statute, but the details of the legislation and the manner of adapting the provisions of the ordinance to the requirements of each particular case are not prescribed by statute, then the ordinance may be held invalid if it is found by the courts to be an unreasonable exercise of the power.

1 Dill. Mun. Corp. 4th ed. § 328; Peterson v. State, 79 Neb. 132, 14 L.R.A.(N.S.) 292, 126 Am. St. Rep. 651, 112 N. W. 306; Union P. R. Co. v. State, 88 Neb. 247, 129 N. W.