court was influenced largely by the long continued acquiescence of the people in the statute under which the tax in question was imposed; but, while the long acquiescence of the people in the custom of levying such taxes was alluded to, yet a much more satisfactory reason for the decision can be found in the following extract from the opinion: "While the latter clause of this section can only apply to taxes upon property, the former clause is broad enough in its terms to include any possible form of taxation, whether of persons or property, and to prohibit all exemptions whatsoever. Upon a strict construction of its language, a poll tax upon qualified voters alone is as objectionable as a poll tax on all qualified voters except firemen, for it is undoubtedly possible to levy and assess a poll tax upon every inhabitant of the city, of whatsoever sex, age, or occupation. The effect of such a construction, however, would be to prohibit taxation by the poll altogether; for there can be no doubt but that a poll tax thus levied and assessed would justify the declaration of the bill of rights of the state of Ohio: "That the levying taxes by the poll is grievous and oppressive; therefore the Legislature shall never levy a poll tax for county or state purposes.' No such prohibition as this is contained in the Constitution of this state. The Legislature has, therefore, the power to impose a poll tax. The very language of the Constitution implies that absolute equality is not to be expected. Taxes are to be 'as nearly equal as may be,' not as nearly equal as a mathematical calculation can make them, but as nearly equal as is consistent with the general welfare of the people, and an equitable distribution of the public burdens. The Constitution does not require a theoretical equality at the expense of substantial equity. ** And in view of the grievous and oppressive results which would follow a levy and assessment upon the whole population of a certain sum per capita, a mode of taxation which, under the guise of equality, might, and probably would, be productive of intolerable hardship, it is clear that in the exercise of its right to levy poll taxes the Legislature must deviate to some extent from any such Procrustean standard of equality as this." It must be apparent that a street poll tax imposed on minors or females without regard to property or ability to pay would be unjust and oppressive in the extreme. The burden of paying the tax for the entire household would ordinarily fall on the head of the family. Such a tax would lack both equality and uniformity, and was never contemplated by the framers of the Constitution. In Thurston County v. Tenino Stone Quarries, Inc., 87 Pac. 634, we held that the act of 1905 (Laws 1905, p. 297, c. 156), imposing an annual road poll tax of $2 on every male inhabitant of the state between the ages of 21 and 50 years, outside the limits of any incorperated city or town, did not violate any provision of our Constitution. While the provision now invoked applies only to municipalities, yet a court should not readily presume that the Constitution authorized or sanctioned one system of taxation within and another without the corporate limits of cities and towns. After a full consideration of the question presented, we are satisfied that the uniformity rule of taxation does not forbid a proper classification of the subjects of the tax, that the classification complained of is reasonable and proper, is sanctioned by usage, and violates no provision of the state Constitution. The judgment of the court below is therefore affirmed, and the case of the State v. Ide, in so far as it conflicts with the views herein expressed, is overruled. CROW, FULLERTON, and DUNBAR, JJ., concur. MOUNT, J., dissents. (47 Wash. 220) ANDREWS v. HOESLICH. (Supreme Court of Washington. Sept. 28, 1907.) 1. REPLEVIN-POSSESSION OF THE PROPERTY. The rule that replevin will not lie against one not in possession when the demand was made or the action commenced does not apply where the property has actually been in defendant's possession, and has been wrongfully transferred by him, without plaintiff's knowledge, before commencement of the action. [Ed. Note. For cases in point, see Cent. Dig. vol. 42, Replevin, § 81.] 2. TENDER-KEEPING TENDER GOOD. Even if plaintiff in replevin for an article he pawned to defendant is obliged to keep his tender good, it is enough that he deposited it in court, where it remained, before service of the summons, though not till after the filing of the complaint. Appeal from Superior Court, King County; George E. Morris, Judge. Action by Jacob Andrews against Joseph Hoeslich and another. Judgment for plaintiff. Defendant Hoeslich appeals. Affirmed. John E. Humphries and George B. Cole, for appellant. Jay C. Allen, for respondent. CROW J. This action, which was brought by Jacob Andrews against Joseph Hoeslich and the Uncle Joe Diamond Broker, a corporation, to recover possession of a diamond ring, has heretofore been before this court on an appeal prosecuted by the defendant corporation, and a statement of the pleadings and the facts involved may be found in the opinion then filed. 87 Pac. 947. At the former trial the defendant Joseph Hoeslich was not in court. He was served afterwards, and on July 28, 1906, served his answer, in which, after denying allegations of the complaint, he affirmatively pleaded that on August 27, 1904, the plaintiff left the ring with him as a pawn to secure a loan of $50; that he issued a pawn ticket to the plaintiff; that thereafter the plaintiff sold and delivered the pawn ticket to him for the sum of $5, in addition to the $50 loan; and that the plaintiff then ceased to have any further interest in the ring. This affirmative answer being denied, the cause was tried on the issues thus joined between the plaintiff and the defendant Joseph Hoeslich. The trial court made substantially the same findings as those made on the former trial, sustaining all the allegations of the complaint, and further found that, within a week or so after the ring had been pawned, the defendant Joseph Hoeslich sold it without the knowledge or consent of the plaintiff; that in this action the plaintiff tendered to the defendant, and paid into court for his use and benefit, the sum of $75, which has ever since remained in the registry of the court; and that the ring was of the reasonable value of $216. Upon these findings a final judgment was entered in favor of the plaintiff for the return of the. ring, or in case a return could not be had, for the sum of $141, being its value less the $75 in the registry of the court. The judgment further provided that, if the ring should be returned, the $75 in the registry of the court should be paid to the défendant; but that otherwise the plaintiff was not only to have judgment for $141, but the $75 should also be returned to him. The defendant has appealed. The appellant's first assignment of error is based upon his exceptions to the findings of fact. We have carefully examined the evidence, and conclude that the findings are supported by its preponderance. The appellant raises the same question based upon the statute of frauds that was urged by the defendant corporation on the former appeal, but we now adhere to our views then expressed. The appellant further contends that, as he was not in possession of the ring at the time of the commencement of this action of replevin, the respondent cannot recover. The common-law rule undoubtedly is that an action of replevin cannot be maintained against a defendant who is not in possession at the time the demand is made or the suit is commenced. This doctrine was announced in Dow v. Dempsey, 21 Wash. 86, 57 Pac. 355. In that case, however, it affirmatively appeared that the plaintiff instituted her action after she had learned and positively knew that the defendant, as sheriff of Spokane county, had parted with the goods by delivering them to a receiver, in obedience to an order of court. Here the court did not find. nor is it suggested by the evidence, that the respondent knew at any time prior to the commencement of the action that the appellant had sold the ring or parted with its possession. Under such circumstances, an exception must be recognized to the rule in Dow v. Dempsey, supra. Where, as in this case, property has actually been in appellant's possession and has been wrongfully transferred by him without respondent's knowledge, before the commencement of an action for the recovery of its possession, the rule that replevin will not lie against one not in possession at the time. of the commencement of the action will not obtain. The evidence and findings show that the appellant's disposition or sale of the ring was wrongful. In an action for the recovery of the possession of personal property, when it appears for the first time during the progress of the trial that the defendant theretofore in possession had, prior to the commencement of the action, without the knowledge or consent of the plaintiff, wrongfully disposed of the property, it would be a rank injustice for any court to hold that the plaintiff cannot for that reason recover Many well-considered cases hold that the action does not fail under such circumstan wrongful acts from the respondent at all times prior to the trial, is now in no position to contend that judgment shall be entered against the respondent, because the evidence fails to show that he, the appellant, had possession of the ring at the commencement of the action. The appellant further contends that the respondent did not keep his tender good. The complaint was filed on January 27, 1906, but the respondent did not deposit the $75 in the registry of the court until March 21, 1906, and the appellant now insists that the tender was not kept good, as the money was not deposited when the complaint was filed. Under the facts before us, there is no merit in this contention. Although the respondent made a tender prior to the commencement of this action, he has proceeded upon the theory that it was necessary for him to thereafter keep such tender good. In his complaint he not only alleged the tender made when he demanded possession of the ring, but further alleged "that the plaintiff has offered, as herein before alleged, does now offer and tender to pay, the sum of seventy-five dollars ($75) in discharge of said pledge aforesaid, and does now tender and pay into court the sum of seventy-five dollars ($75) the amount thereof." This allegation was denied by the answer, and in our opinion on the appeal of the defendant corporation we found that it was not sustained by the evidence. Pro ces. Wells on Replevin (2d Ed.) § 145; McBrian v. Morrison, 55 Mich. 351, 21 N. W. 368: Gildas v. Crosly, 61 Mich. 413, 28 N. W. 153; Helman v. Withers, 3 Ind. App. 532, 30 N. E. 5, 50 Am. St. Rep. 295; Holliday v. Poston, 60 S. C. 103, 38 S. E. 449; Latimer V. Wheeler, 3 Abb. Dec. (N. Y.) 35; Ellis v. Lersuer, 48 Barb. (N. Y.) 539; Ross v. Cassidy, 27 How. Prac. (N. Y.) 416; Brockway v. Burnap, 16 Barb. (N. Y.) 309; Nichols v. Michael, 23 N. Y. 264, 80 Am. Dec. 259; Harkey v. Tielman, 40 Ark. 551. In the lastmentioned case the Supreme Court of Arkansas said: "Actual possession of the property by defendant is not always essential at the time of the writ. That would be a very inconvenient rule, which would enable one who had wrongfully taken or detained property from the owner to refuse to deliver, and hold to the last moment before the writ, and then evade a suit by a transfer of possession. His successor might do the same and his after him, and so on toties quoties, until the costs of writs to the owner would consume the property. When one is wrongfully detaining property and refuses it on demand, he is liable to the action, although it may not remain in his possession when suit is brought." In Sinnott v. Feiock, 165 N. Y. 444, 59 N. E. 265, 53 L. R. A. 565, 80 Am. St. Rep. 736, the Court of Appeals, in a well-considered case, held that a defendant is not liable in an action of replevin for the recovery of chattels, after they had been.ceeding upon the theory of the respondent, taken from him by process legal as to him, and not by any voluntary act on his part: but, in its opinion, in which many of the earlier cases are considered and reviewed, it clearly recognizes the doctrine announced in Nichols v. Michael, 23 N. Y. 264, 80 Am. Dec. 259, and other cases above cited. In this state an action to recover the possession of personal property may be prosecuted without claiming delivery until after final judgment on the merits. In such a case the reason for the common-law rule forbidding the prosetion of an action of replevin against one not in possession fails, and we see no reason why an alternative judgment for the possession of the property or the recovery of its value may not be obtained, although the evidence establishes the fact that the defendant was not in possession at the commencement of the action or at any time thereafter, provided it further appears that the defendant had theretofore been in possession, had voluntarily, wrongfully, and fraudulently parted with such possession, and that the plaintiff did not know betore commencing action that the defendant had so parted with possession. The appellant. who wrongfully disposed of the ring without the knowledge or consent of the respondent, who failed to advise the respondent of such disposition prior to the commencement of this action, and who concealed his we then said: "Respondent's right to maintain the suit and obtain the judgment depended upon whether he had tendered the $75, and had at all times kept the tender good. Appellant argues with apparent seriousness that the judgment is against it for the return of the ring or its value, and that respondent retains the $75. Such a result would be manifestly wrong, and the condition of the record is such that we cannot tell whether the tender has been kept good so that it has at all times been available to appellant or not." Notwithstanding this language, we do not wish to be understood as holding that, under the facts of this case, the respondent was under any legal obligation to bring the tender into court with the filing of his complaint, and keep it there at all times until final judgment. It may be seriously questioned whether appellant's lien on the ring was not discharged by the tender made prior to the suit. Jones on Pledges and Collateral Securities (2d Ed.) § 542; Helphrey v. Strobach, 13 Wash. 128, 42 Pac. 537. If his lien was then discharged, it might be further questioned whether it would have been necessary for the respondent to keep his tender good at the time of filing his complaint and at all times thereafter. Weeks v. Baker, 152 Mass. 20, 24 N. E. 905; Ilyams v. Bamberger, 10 Utah, 3, 36 Pac. 202. The respondent, however, assum ed by the allegations of his complaint that he should keep the tender good. In other words, he did not plead or rely upon any claim that the lien had been discharged, but prosecuted this action upon the theory that to discharge the lien he must continue his offer to keep the tender good as a condition precedent to the recovery of the possession of the ring. On the former appeal a reversal was granted because it neither appeared that the $75 remained in the registry of the court at the time of final judgment, nor that the final judgment protected the appellant corporation in all of its rights. The record here shows beyond question that before service of summons was made upon the present appellant Joseph Hoeslich the $75 tender was deposited in the registry of the court, that it has since remained there, and that the trial court has in the final judgment fully protected the appellant. This being true, he is now in no position to complain of the respondent's failure to deposit the $75 at the time he filed his complaint. The evidence now before us establishes the fact that the respondent has fully complied with every reasonable requirement that could be made of him in the matter of tender. The judgment is affirmed. HADLEY. C. J., and ROOT, FULLER TON, MOUNT, DUNBAR, and RUDKIN, JJ., concur. (47 Wash. 182) LIBERTY UNFRIED et ux. (Supreme Court of Washington. Sept. 18, 1907.) 1. CHATTEL MORTGAGES-RECEIVERS-PERSONS APPOINTED TO TAKE CHARGE OF MORTGAGED CHATTELS. Under Ballinger's Ann. Codes & St. § 5455, defining a receiver as a person appointed by a court to take charge of property pending a civil action or proceeding, and to manage and dispose of it as the court may direct, a person appointed by the court to take charge of mortgaged chattels and retain the same pending foreclosure proceedings, is a receiver, whether appointed under section 5456, providing generally when receivers may be appointed, or under sections 5877, 5878, relating to the case of a chattel mortgagee having reasonable cause to believe the debt is insecure. 2. RECEIVERS - APPOINTMENT BONDS. REQUIRING An order appointing a receiver on an ex parte application, which in substance directs the receiver to seize and retain property without giving a bond, is void. 3. APPEAL-APPEALABLE ORDERS. The appointment of a receiver on an ex parte application without notice can only be temporarily valid as an emergency order, till defendants can be notified to appear and show cause, so that an order vacating on motion such an appointment is not appealable under Ballinger's Ann. Codes & St. § 6500, subd. 5, as amended by Laws 1901. p. 28. c. 31. authorizing an appeal from an order appointing or removing, or refusing to appoint or remove, a receiver, as, CROW, J. This action was commenced by W. A. Libert, plaintiff, as mortgagee, against Fred Unfried and Sylvia Unfried, his wife, mortgagors, to foreclose a chattel mortgage on a flock of sheep in Garfield county. The complaint, which was filed and served April 17, 1906, alleged that the defendant Fred Unfried had, without the knowledge or consent of plaintiff, sold about 260 head of the sheep, that unless restrained he would make further sales, that the defendants were insolvent, and that the plaintiff had, at his option, under the terms of the mortgage, elected to declare all the notes thereby secured to be due and payable. On April 19, 1906, the plaintiff made an oral ex parte application for the appointment of some suitable person to take possession of the mortgaged property and retain the same pending the foreclosure proceedings. The court forthwith entered an order directing one T. W. Owsley to take and care for the mortgaged property, and also restrained the defendants from selling or disposing of any of the sheep or their increase. This order was made without notice to, or the knowledge of, either of the defendants. It did not require Owsley to take an oath of office or give bond. It did not on its face purport to be a temporary emergency order, nor did it fix any time for the defendants to appear upon notice and show cause why a receiver should not be appointed or why a temporary restraining order should not be made. April 30, 1906, the defendants moved the court to dissolve the ex parte restraining order and to vacate the ex parte order appointing the receiver. After hearing this motion, the trial court, on April 11, 1906, made and entered an order (1) dissolving the temporary restraining order and vacating the appointment of the receiver, and (2) restraining the defendants from selling or disposing of any of the mortgaged property; the latter order to become effective upon the giving of a $500 bond by the plaintiff. From the order dissolving the ex parte injunction and vacating the ex parte appointment of the receiver, the plaintiff has appealed. On linger's Ann. Codes & St. as amended (Laws 1901, p. 28, c. 31), authorizes an appeal from an order appointing or removing, or refusing to appoint or remove, a receiver. The appellant, in the discussion of this case upon the merits, contends that Owsley was not a receiver, but that he was an agent or representative of appellant, appointed under sections 5877 and 5878, Ballinger's Ann. Codes & St. If this contention is correct, it would necessarily follow that the order is not appealable. In 1891 the Legislature passed an act relating to receivers (section 5455, Ballinger's Ann. Codes & St.) reading as follows: "A receiver is a person appointed by a court or judicial officer to take charge of property during the pending of a civil action or proceeding, or upon a judgment, decree, or order therein, and to manage and dispose of it as the court or officer may direct." Under this statutory definition any person appointed by the court to take charge of mortgaged chattels and retain the same pending foreclosure proceedings is a receiver, whether appointed under section 5456, or sections 5877 and 5878, Ballinger's Ann. Codes & St. If the appellant, upon notice to respondents, had moved for the appointment of a receiv er and the court, after notice and hearing, had refused to make such appointment, or if an appointment had been then made and the court had afterwards removed the receiver, there can be no question but that either of such orders would be appealable. The record discloses no such orders. The trial court, without notice and on appellant's ex parte application, appointed Owsley, without requiring any bond or directing that the respondents should be notified to appear and show cause why a receiver should not be appointed. This order was void, as it in substance directed the receiver to seize and retain respondents' property without the giving of bond. But, ignoring the fact that no bond was required, this court has held that the appointment of a receiver on an ex parte application without notice can only be temporarily valid as an emergency order until the defendants can be notified to appear and show cause. Larsen v. Winder, 14 Wash. 109, 41 Pac. 123, 53 Am. St. Rep. 864, distinguished in Cole v. Price, 22 Wash. 18. 60 Pac. 153; State ex rel. Washington Match Company v. Superior Court, 34 Wash. 123, 74 Pac. 1070. In the last-mentioned case we said: "The trial court seemed to be of the opinion that its temporary appointment of a receiver continued indefinitely, if no motion to discharge the same was made. This is not the rule. While the court may, on an ex parte application, where an emergency is shown, appoint a receiver to take temporary charge of property until notice can be given and a hearing had on the question of the necessity for a receiver, such ex parte appointment has no force beyond such hearing, and a failure to make an order after such a hearing appointing a receiver, or continuing the first appointment, would operate to discharge the temporary receiver." Had the emergency order appointing Owsley required him to take an oath of office and give bond, and had it further directed that upon notice the respondents should appear and show cause, it would nevertheless have become inoperative after such notice and hearing. If on such hearing the court afterwards determined the case to be one for a receiver, and appointed one pending the foreclosure, unquestionably the order making such appointment would be appealable. Should this court now entertain this appeal, it could not restore or continue the original emergency ex parte order of April 17th, although that seems to be the substantial object and purpose of the appeal. The appellant, however, contends that he filed a motion for the appointment of a receiver, which was heard with respondents' motion to dissolve and vacate, and that, as the substance of the order made by the trial judge was to refuse a receiver on such hearing of appellant's motion, it is appealable. This contention cannot be sustained, for several reasons: (1) The appellant's motion did not ask for the appointment of a receiver. It only requested the court to confirm the order theretofore made, and to continue appellant's possession under his mortgage, as theretofore ordered. so as to make the property available for the satisfaction of his debt and prevent the losing of his security, relying upon sections 5877 and 5878, Ballinger's Ann. Codes & St. (2) Appellant's motion was never noted for hearing in the manner provided by statute. (3) The record shows that the only motion considered and passed upon by the trial court was the one interposed by respondents. Appellant contends that his appeal must be sustained under subdivision 6 of section 6500, supra. An examination of the order from which he has appealed shows such contention to be utterly devoid of merit. The motion to dismiss is sustained. HADLEY, C. J., and MOUNT and RUDKIN, JJ., concur. |