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court was influenced largely by the long a certain sum per capita, a mode of taxacontinued acquiescence of the people in the tion which, under the guise of equality, statute under which the tax in question was might, and probably would, be productive of imposed; but, while the long acquiescence of intolerable hardship, it is clear that in the the people in the custom of levying such tax exercise of its right to levy poll taxes the es was alluded to, yet a much more satisfac Legislature must deviate to some extent from tory reason for the decision can be found in any such Procrustean standard of equality as the following extract from the opinion: this." **While the latter clause of this section can It must be apparent that a street poll tax only apply to taxes upon property, the for imposed on minors or females without remer clause is broad enough in its terms to gard to property or ability to pay would be include any possible form of taxation, wheth unjust and oppressive in the extreme. The er of persons or property, and to prohibit all burden of paying the tax for the entire houseexemptions whatsoever. Upon a strict con hold would ordinarily fall on the head of the struction of its language, a poll tax upon family. Such a tax would lack both equality qualified voters alone is as objectionable as and uniformity, and was never contemplated a poll tax on all qualified voters except fire by the framers of the Constitution. In men, for it is undoubtedly possible to levy Thurston County V. Tenino Stone Quarries, and assess a poll tax upon every inhavitant Inc., 87 Pac. 631, we held that the act of of the city, of whatsoever sex, age, or oc 1905 (Law's 1905, p. 297, c. 150), imposing an ('upation. The effect of such a construction, annual road poll tax of $2 on every male inhowever, would be to prohibit taxation by habitant of the state between the ages of 21 the poll altogether; for there can be no doubt and 50 years, outside the limits of any incorbut that a poll tax thus levied and assessed perated city or town, did not violate any prowould justify the declaration of the bill of vision of our Constitution. While the provirights of the state of Ohio: "That the levy sion now invoked applies only to municipaliing taxes by the poll is grievous and op ties, yet a court should not readily presume pressive; therefore the Legislature shall never that the Constitution authorized or sanctionlevy a poll tax for county or state purposes.' ed one system of taxation within and another No such prohibition as this is contained in without the corporate limits of cities and the Constitution of this state. The Legisla towns. After a full consideration of the ture has, therefore, the power to impose a question presented, we are satisfied that the poll tax. The very language of the Consti uniformity rule of taxation does not forbid tution implies that absolute equality is not a proper classification of the subjects of the to be expected. Taxes are to be 'as nearly tax, that the classification complained of is equal as may be,' not as nearly equal as a reasonable and proper, is sanctioned by usmathematical calculation can make them, but age, and violates no provision of the state as nearly equal as is consistent with the gen Constitution. eral welfare of the people, and an equitable The judgment of the court below is theredistribution of the public burdens. The Con fore affirmed, and the case of the State v. stitution does not require a theoretical equal Ide, in so far as it conflicts with the views ity at the expense of substantial equity. herein expressed, is overruled.

* And in view of the grievous and oppressive results which would follow a levy CROW, FULLERTON, and DUNBAR, JJ., and assessment upon the whole population of concur. MOUNT, J., dissents.

(47 Wash. 220)

case a return could not be had, for the sum ANDREWS v. HOESLICH.

of $141, being its value less the $75 in the

registry of the court. The judgment further (Supreme Court of Washington, Sept. 28, 1907.)

provided that, if the ring should be return1. REPLEVIN-POSSESSION OF THE PROPERTY. The rule that replevin will not lie against

ed, the $75 in the registry of the court one not in possession when the deinand was

should be paid to the defendant; but that made or the action commenced does not apply | otherwise the plaintiff was not only to have where the property has actually been in defendant's possession, and has been wrongfully trans

judgment for $141, but the $75 should also ferred by him, without plaintiff's knowledge,

be returned to him. The defendant has before commencement of the action.

appealed. [Ed. Yote. For cases in point, see Cent, Dig. The appellant's first assignment of error vol. 42, Replevin, $ 81.)

is based upon his exceptions to the findings 2. TEXDER-KEEPING TENDER GOOD.

of fact. We have carefully examined the Even if plaintiff in replevin for an article he pawned to defendant is obliged to keep his

evidence, and conclude that the findings are tender good, it is enough that he deposited it supported by its preponderance. The apin court, where it reinained, before service of pellant raises the same question based upon the summons, though not till after the filing of the complaint.

the statute of frauds that was urged by the

defendant corporation on the former appeal, Appeal from Superior Court, King County; but we now adhere to our view's then exGeorge E. Morris, Judge.

pressed. Action by Jacob Andrews against Joseph The appellant further contends that, as Hoeslich and another. Judgment for plain he was not in possession of the ring at the tiff.

Defendant Hoeslich appeals. Affirmed. time of the commencement of this action John E. Humphries and George B. Cole,

of replevin, the respondent cannot recover. for appellant. Jay C. Allen, for respondent,

The common-law rule undoubtedly is that an action of replevin cannot be maintained

against a defendant who is not in possession CROW J. This action, which was brought

at the time the demand is made or the by Jacob Andrews against Joseph Hoeslich

suit is commenced. This doctrine was anand the Uncle Joe Diamond Broker, a cor

nounced in Dow v. Dempsey, 21 Wash. 86, poration, to recover possession of a diamond

57 Pac. 353. In that case, however, it afring, has heretofore been before this court on

firmatively appeared that the plaintiff inan appeal prosecuted by the defendant cor

stituted her action after she had learned poration, and a statement of the pleadings

and positively knew that the defendant, as and the facts involved may be found in the opinion then filed. 87 Pac. 947. At the

sheriff of Spokane county, had parted with former trial the defendant Joseph Hoeslich

the goods by delivering them to a receiver,

in obedience to an order of court. Here was not in court. He was served afterwards,

the court did not find, nor is it suggested by and on July 28, 1906, served his answer, in which, after denying allegations of the com

the evidence, that the respondent knew at

any time prior to the commencement of the plaint, he affirmatively pleaded that on Au

action that the appellant had sold the ring gust 27, 1904, the plaintiff left the ring with

or parted with its possession. Under such him as a rawn to secure a loan of $50;

circumstances, an exception must be recogthat he issued a pawn ticket to the plain

nized to the rule in Dow v. Dempsey, supra. tiff'; that thereafter the plaintiff sold and delivered the pawn ticket to him for the sum

Where, as in this case, property has actof $.3, in addition to tle $30 loan; and that

ually been in appellant's possession and bas the plaintiff then ceased to have any further

been wrongfully transferred by him without interest in the ring. This affirmative an

respondent's knowledge, before the commencesw'er being denied, the cause was tried on

ment of an action for the recovery of its the issues thus joined between the plaintiff

possession, the rule that replevin will not and the defendant Joseph IIoeslich. The

lie against one not in possession at the time trial court made substantially the same

of the commencement of the action will not findings as those made on the former trial,

obtain. The evidence and findings show that sustaining all the allegations of the com

the appellant's disposition or sale of the plaint, and further found that, within a week ring was wrongful. In an action for the or so after the ring had been pawned, the

recovery of the possession of personal propdefendant Joseph Hoeslich sold it without erty, when it appears for the first time durthe knowledge or consent of the plaintiff ;

ing the progress of the trial that the defendthat in this action the plaintiff tendered to

ant theretofore in possession had, prior to the defendant, and paid into court for his the commencement of the action, without the use and benefit, the sum of $7), which has knowledge or consent of the plaintiff, wrongever since remained in the registry of the fully disposed of the property, it would be a court; and that the ring was of the reason rank injustice for any court to hold that able value of $210. Upon these findings a the plaintiff cannot for that reason recover final judgment was entered in favor of the Many well-considered cases hold that the plaintiff for the return of the. ring, or in

action does not fail under such circumstan

c'es. Wells on Replevin (20 Ed.) § 145; MCBrian v. Morrison, 55 Mich. 351, 21 N. W. 308: Gildas v. Crosly, 61 Mich. 413, 28 N. W. 1.73; Helman y. Withers, 3 Ind. App. 532, 30 X. E. 5, 30 Am. St. Rep. 295; Holliday v. Poston, 60 S. C. 103, 38 S. E. 419; Latimer v. Wheeler, 3 Abb. Dec. (X. Y.) 35; Ellis v. Lersher, 18 Barb. (N. Y.) 539; Ross v. Cassidy, 27 IIow. Prac. (X. Y.) 416; Brockway V. Burnap, 16 Barb. (N. Y.) 309; Nichols v. Mihael, 23 X. Y. 261, SO Am. Dec. 259 ; Harkey V. Tielman, 10 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 in(onvenient 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 erade 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. 263, 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 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 prosection of an action of replevin against une 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, liąd 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

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. Proceeding upon the theory of the respondent, 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 (20 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, 132 Mass, 20, 21 N. E. 905; Ilyams v. Bamberger, 10 Utah, 3, 30 Pac. 202. The respondent, however, assum

ed by the allegations of his complaint that should the appeal be entertained, the emergency he should keep the tender good. In other order could not be restored or continued. words, he did not plead or rely upon any

Appeal from Superior Court, Garfield claim tbat the lien had been discharged, but

County; Chester F. Miller, Judge. prosecuted this action upon the theory that

Action by William A. Libert against Fred to discharge the lien he must continue his

Uufried and wife. From an adverse order, offer to keep the tender good as a condition

plaintiff appeals. Dismissed. precedent to the recovery of the possession of the ring.

Charles L. McDonald, Ben F. Tweedy, On the former appeal a reversal was grant

and Garrie W. Jewett, for appellant. I. ed because it neither appeared that the $75

N. Smith and Gose & Kuykendall, for reremained in the registry of the court at the

spondents. time of final judgment, nor that the final judgment protected the appellant corpora CROW, J. This action was commenced tion in all of its rights. The record here by W. A. Libert, plaintiff, as mortgagee, shows beyond question that before service against Fred Unfried and Sylvia Unfried, of summons was made upon the present ap his wife, mortgagors, to foreclose a chattel pellant Joseph Iloeslich the $75 tender was mortgage on a flock of sheep in Garfield deposited in the registry of the court, that county. The complaint, which was filed and it has since remained there, and that the served April 17, 1906, alleged that the detrial court has in the final judgment fully fendant Fred Unfried bad, without the protected the appellant. This being true, he knowledge or consent of plaintiff, sold about is now in no position to complain of the 260 head of the sheep, that unless restrainrespondent's failure to deposit the $75 at ed he would make further sales, that the dethe time he filed his complaint. The evi fendants were insolvent, and that the plaindence now before us establishes the fact tiff bad, at his option, under the terms of that the respondent has fully complied with the mortgage, elected to declare all the notes every reasonable requirement that could be thereby secured to be due and payable. On made of him in the matter of tender.

April 19, 1906, the plaintiff made an oral ex The judgment is affirmed.

parte application for the appointment of

some suitable person to take possession of HADLEY, C. J., and ROOT, FULLER.

the mortgaged property and retain the same TON, MOUNT, DUNBAR, and RUDKIX, JJ.,

The pending the foreclosure proceedings.

court forthwith entered an order directing concur.

one T. W. Owsley to take and care for the

mortgaged property, and also restrained the (47 Wash. 182)

defendants from selling or disposing of any LIBERT Y UNFRIED et ux,

of the sheep or their increase. This order

was made without notice to, or the knowl(Supreme Court of Washington. Sept. 18, 1907.)

edge of, either of the defendants. It did not

require Owsley to take an oath of office or 1. CHATTEL MORTGAGES-RECEIVERS-PERSOXS APPOINTED TO TAKE CHARGE OF MORTGAGED

give bond. It did not on its face purport to CITATTELS.

be a temporary emergency order, nor did it Under Ballinger's Ann. Codes & St. $ 5155, fix any time for the defendants to appear defining a receiver as a person appointed by a

upon notice and show cause why a receiver court to take charge of property pending a civil action or proceeding, and to manage and dispose

should not be appointed or why a temporary of it as the court may direct, a person appointed restraining order should not be made. On by the court to take charge of mortgaged chat

April 30, 1906, the defendants moved the tels and retain the same pending foreclosure proceedings, is a receiver, whether appointed un

court to dissolve the ex parte restraining der section 5456, providing generally when re

order and to vacate the ex parte order apceivers may be appointed, or under sections 5877, pointing the receiver. After hearing this 5878, relating to the case of a chattel mortgagee

motion, the trial court, on April 11, 1906, having reasonable cause to believe the debt is insecure.

made and entered an order (1) dissolving 2. RECEIVERS APPOINTMENT – REQUIRING

the temporary restraining order and vacat. Boxds.

ing the appointment of the receiver, and (2) An order appointing a receiver on an ex restraining the defendants from selling or parte application, which in substance directs the receiver to seize and retain property without

disposing of any of the mortgaged property ; giving a bond, is void.

the latter order to become effective upon the 3. APPEAL-APPEALABLE ORDERS.

giving of a $500 bond by the plaintiff. From The appointment of a receiver on an ex parte

the order dissolving the ex parte injunction application without notice can only be tem and vacating the ex parte appointment of pora rily valid as an emergency order, till defendants can be notified to appear and show cause,

the receiver, the plaintiff has appealed. so that an order vacating on motion such an

The respondents have moved this court to appointment is not appealable under Ballinger's dismiss the appeal for several reasons. We Ann. Codes & St. $ 6500. subd., :), as amendeil will only consider their contention that the br Law's 1901, n. 28. c. 31. authorizing an appeal from an order appointing or removing, or

order upon which it is based is not appealrefusing to appoint or remove, a receiver, as,

able. Subdivision 5 of section 6300. Bal.

linger's Ann. Codes & St. as amended (Laws | is not the rule. While the court may, on an 1901, p. 28, c. 31), authorizes an appeal from ex parte application, where an emergency is an order appointing or removing, or refusing i shown, appoint a receiver to take temporary to appoint or remove, a receiver. The ap- charge of property until notice can be given pellant, in the discussion of this case upon and a hearing had on the question of the the merits, contends that Owsley was not a necessity for a receiver, such ex parte arreceiver, but that he was an agent or repre

pointment has no force beyond such hearing, sentative of appellant, appointed under sec and a failure to make an order after such a tions 5877 and 3878, Ballinger's Ann. Coiles | hearing appointing a receiver, or continuing & St. If this contention is correct, it would the first appointment, would operate to disnecessarily follow that the order is not up charge the temporary receiver.” Had the pealable. In 1891 the Legislature passed an emergency order appointing Owsley required act relating to receivers (section 51.55, Bal him to take an oath of office and give bond, linger's Ann. Codes & St.) reading as fol and had it further directed that upon notice lows: "A receiver is a person appointed by the respondents should appear and show à court or judicial officer to take charge of cause, it would nevertheless have become inproperty during the pending of a civil action operative after such notice and hearing. If or proceeding, or upon a judgment, decree, on such hearing the court afterwards deteror order therein, and to manage and dispose mined the case to be one for a receiver, and of it as the court or officer may direct." Un appointed one pending the foreclosure, under this statutory definition any person aj questionably the order making such appointpointed by the court to take charge of mort- ment would

ment would be appealable. Should this Laged chattels and retain the same pending court now entertain this appeal, it could not foreclosure proceedings is a receiver, wheth restore or continue the original emergency er appointed under Section 51.56, or sections ex parte order of April 17th, although that 11877 and 5878, Ballinger's Ann. Codes & St. seems to be the substantial object and purIf the appellant, upon notice to respondents, pose of the appeal. had moved for the appointment of a receir The appellant, however, contends that he er and the court, after notice and bearing, filed a motion for the appointment of a receiv. had refused to make such appointment, or if er, which was heard with respondents' moan appointment had been then made and tion to dissolve and vacate, and that, as the the court had afterwards removed the re substance of the order made by the trial (eiver, there can be no question but that judge was to refuse a receiver on such heareither of such orders would be appealable. ing of appellant's motion, it is appealable. The record discloses no such orders. The This contention cannot be sustained, for sertrial court, without notice and on appellant's eral reasons: (1) The appellant's motion ex parte application, appointed Owsley, with did not ask for the appointment of a receivout requiring any bond or directing that the er. It only requested the court to confirm respondents should be notified to appear and the order theretofore made, and to continue show cause why a receiver should not be ap appellant's possession under his mortgage, pointed. This order was void, as it in sub as theretofore ordered. so as to make the stance directed the receiver to seize and re property available for the satisfaction of his tain respondents' property without the gir debt and prevent the losing of his security, ing of bond. But, ignoring the fact that no relying upon sections 5877 and 5878, Balbond was required, this court has held that linger's Ann. Codes & St. (2) Appellant's the appointment of a receiver on an ex parte motion was never noted for hearing in the application without notice can only be tem manner provided by statute. (3) The recporarily valid as an emergency order until ord shows that the only motion considerthe defendants can be notified to appear and ed and passed upon by the trial court was show cause. Larsen v. Winder. 14 Wash. the one interposed by respondents. 109, 41 Pac. 123, 53 Am. St. Rep. 861, dis Appellant contends that his appeal must tinguished in ('ole v. Price, 22 Wash. 18. 00 be sustained under subdivision 6 of section Pac. 153: State ex rel. Washington Watch 6:00, supra. An examination of the order Company v. Superior Court, 34 Wash, 123, 74 from which he has appealed shows such conPac. 1070. In the last-mentioned case we tention to be utterly devoid of merit. said: "The trial court seemed to be of the The motion to dismiss is sustained. opinion that its temporary appointment of a receiver continued indefinitely, if no mo HADLEY, C. J., and MOUNT and RUDtion to discharge the same was made. This KIN, JJ., concur.

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