SUPREME COURT OF THE UNITED STATES.

and oppressive toward the said county; and that, in fact, they were without consideration, and that the giving thereof was induced by some secret and fraudulent agreement or understanding between the said Commissioners or some of them, on the one side, and the said Chapman on the other." It also admits that during the delay of the complainants in bringing their suit, "The evidences of the fraudulent, corrupt, oppressive and unjust contract of purchase have disappeared." No evidence in support of the alleged fraud is, therefore, offered, and the defendant is constrained to rely upon the statutes of limitation, if any cause of action ever existed. In reference to the allegation of the oppressive amount of the price agreed to be paid, in addition to the fact admitted in the answer, that the rents and profits accrued to the county since it has been in possession amounted in value to more than the payment made, it is also urged in argument by its counsel against a rescission of the contract, that "There has been such a change of circumstances that that mode of relief would be most oppressive. This land, purchased when the county was very sparsely settled, and situated very near to a town which has recently grown to great importance, must have greatly appreciated in value. which fact, there is the further one already adBesides verted to, that the county has improved it to the extent of $30,000." It is, therefore, insisted that the county should be permitted to retain the land without paying for it.

OCT. TERM,

buildings, as contemplated in the sections before referred to.

strued by the Supreme Court of Nebraska in These provisions of the statute were conthe case of Stewart v. Otoe Co., 2 Neb., 177. It does not appear from the report when this decision was made, but, as the case arose upon a contract dated in January, 1870, it must, of course, have been long after the making of the contract, which is the foundation of the present litigation. The decision of the Supreme Court. of Nebraska referred to was rendered in an action brought upon a contract, similar in its character to the one between Chapman and Douglas County, to recover against Otoe County damages for its refusal to accept a deed and execute the note and mortgage contemplated. A judgment against the plaintiff sustaining a general demurrer to the petition was affirmed, on the ground that the contract was illegal and void. The court said:

Commissioners to bind the county in the man"There is no authority of law for the County ner contemplated. They cannot give a promissory note, nor can they mortgage the property of the county. Should they formally do so, their action would be a nullity. In the purthe commissioners of a county is very clearly chase of land for a poor-farm, the authority of set forth. paying it over, are all definitely stated. These The mode of raising the money, and statutes set a limit, beyond which they cannot missioners, but equally so to all persons dealing go. They are a guide, not only to the comwith them, who must see to it that their contracts are within the boundaries thus described. Here we find the authority, and inMessrs. J. M. Woolworth and J. C. Cow-payment of money for a poor-farm by the deed the only authority, for the purchase and in, for appellee.

On final hearing the bill was dismissed, and the decree, to that effect, is brought here for review by this appeal.

Messrs. C. C. Bonney and George Wil-* ley, for appellants.

Mr. Justice Matthews delivered the opinion of the court:

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We,

County Commissioners; and here, too, is spefor that purpose, together with the mode of cially designated the money that may be used The Statute of Nebraska, in force at the date gaging the property of the county to secure the raising it. But there is not one word about mortof the transaction in question, conferring pow-payment of the purchase money at a given time. er on the County Commissioners over the sub- The statutes provide the only security that can ject, R. S. Neb., ch. XL., provided, section 17, be given. The public faith is pledged; and a "That the county commissioners in each coun- tax, not exceeding one per cent may be levied ty are authorized, whenever they see fit to do upon all the taxable property of the county anso, to establish a poor-house;" and, in the next nually and, when collected, paid to the person section, that "They may take to the county, entitled thereto by an order upon the treasurer by grant, devise or purchase, any tract of land, of the county, payable out of that special fund." not exceeding six hundred and forty acres, for the purposes of said poor-house." The doctrine of this decision has been acof the same chapter declares, that "Said com- asked to consider any question as to its correctSection 19 cepted by all parties to this suit, and we are not missioners are hereby empowered to receive do-ness, or as to our obligation to adopt it. nations to aid in the establishment of such poor- therefore, assume it to be the law of Nebraska, house; and also empowered, from time to time, applicable to the case, and the basis of further as they shall see fit, to levy and collect a tax, inquiry as to the relative rights of the parties to not exceeding one per cent, on the taxable prop- this litigation. erty in the county, and to appropriate the same to the purchase of land, not exceeding the aforesaid six hundred and forty acres; and to erect and furnish buildings suitable for a poor-house, and to put into operation and to defray the actual expenses of said poor-house, should the labor of the inmates be inadequate thereto." section 23 of the same Act, the commissioners By are authorized, if they deem it to be for the interest of the county, to appropriate out of any other money belonging to the county any sum not exceeding $2,500 for the purpose of purchasing a farm and erecting thereon suitable 380

of Nebraska,in this case, that it is clear that the It is expressly declared by the Supreme Court County Commissioners had power to purchase a poor-farm. The point of the decision is, that this power does not extend to an agreement to pay at a definite time, or to give as security for must either receive the purchase money on depayment a lien upon the land. livery of the deed, or wait for its payment in The vendor the due course of administration, by the appropriation of the taxes levied, collected and paid into the treasury, applicable to that purpose.

If, in the present case, such had been the

original understanding between the parties, and | derstanding of the parties that the vendor should the deed had been delivered without payment, await the collection of taxes, as prescribed by the but upon orders drawn upon the county treas- statute, for the payment of the purchase money; urer payable according to law, the vendor would but, on the contrary, there was an agreement have been obliged to wait during the reasonable for payment in a definite time without regard delays of administration. "Whoever," said the to the condition of the county treasury, and Supreme Court of Nebraska, in Brewer v. Otoe for security by way of notes and mortgages. Co., 1 Neb., 373, "deals with a county and The agreement, as we have assumed, so far as takes in payment of his demand a warrant of it relates to the time and mode of payment, is the character of these, no time of payment be- void; but the contract for the sale itself has been ing fixed, does so under an implied agreement executed on the part of the vendor by the dethat if there be no funds in the treasury out of livery of the deed, and his title at law has actuwhich it can be satisfied, he will wait until the ally passed to the county. As the agreement money can be raised in the ordinary mode of between the parties has failed by reason of the collecting such revenues. He is presumed to legal disability of the county to perform its part, act with reference to the actual condition and according to its conditions, the right of the the laws regulating and controlling the business vendor to rescind the contract and to a restituof the county. He cannot be permitted, imme- tion of his title would seem to be as clear as it diately upon the receipt of such warrant, to re- would be just, unless some valid reason to the sort to the courts to enforce payment by judg- contrary can be shown. As was said by this ment and execution, without regard to the con- court in Marsh v. Fulton Co., 10 Wall., 676--684 dition of the treasury at the time, or the laws by [77 U.S., XIX., 1040-1042], and repeated in La. which the revenues are raised and disbursed.' v. Wood, 102 U. S., 294–299 [XXVI., 153, 155], Accordingly, in that case it was decided that "The obligation to do justice rests upon all perthe Statute of Limitations did not apply to cases sons, natural and artificial, and if a county obof such claims against counties. The court, on tains the money or property of others without that point, said, "But these warrants do not, authority, the law, independent of any statute, nor was it the intention of the Legislature will compel restitution or compensation." And that they should, fall within the operation of see, also, Miltenberger v. Cooke, 18 Wall., 421 this Act. * Nor can any action be [85 U. S., XXI., 864]. The illegality in the conbrought on such warrant until the fund is raised, tract related, not to its substance, but only to a or at least sufficient time has elapsed to enable specific mode of performance, and does not the county to levy and collect it in the mode pre- bring it within that class mentioned by Mr. Jus scribed in the revenue laws. That the Legisla- tice Bradley in Thomas v. Richmond, 12 Wall., ture never intended that county warrants should 349-356 [79 U. S., XX., 453-457]. The purbe affected by the limitation Act before referred chase itself, as we have seen, was expressly auto, is evident, I think, from the whole course of thorized. The agreement for definite times of legislation respecting them. As late as the 12th payment and for security alone was not authorof February, 1866, it was enacted that 'all debts ized. It was not illegal in the sense of being heretofore incurred by the county commission- prohibited as an offense; the power in that form ers of any county, acting in good faith, and was simply withheld. The policy of the law duly recorded at the time on their books, shall extends no further than merely to defeat what be deemed valid, and the county shall be held it does not permit, and imposes upon the parliable for the same.' Ch. V., sec. 1, R. S. *ties no penalty. It thus falls within the rule, as stated by Mr. Pollock, in his Principles of Contract, 264: "When no penalty is imposed, and the intention of the Legislature appears to be, simply, that the agreement is not to be enforced, then neither the agreement itself nor the performance of it is to be treated as unlawful for any other purpose." Johnson v. Meeker, 1 Wis., 436.

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From these, as well as numerous other enactments of the Legislature that might be cited, I have reached the conclusion that the plea of the Statute of Limitations cannot be successfully made against these warrants, and that whenever it can be shown that the funds have been collected out of which they can be paid, or sufficient time has been given to do so in the mode pointed out in the statute, their payment may be demanded, and if refused, legally coerced."

And if, in such cases, a proceeding in mandamus should be considered to be the more appropriate and, perhaps, the only effective remedy, it also is not embraced in the Statute of Limitations prescribed generally for civil actions. The writ may well be refused when the relator has slept upon his rights for an unreasonable time, and especially if the delay has been prejudicial to the defendant, or to the rights of other persons, though what laches, inthe assertion of a clear legal right, would be sufficient to justify a refusal of a remedy by mandamus must depend, in a great measure, on the character and circumstances of the particular case. Chinn v. Trustees,32 Ohio,236; Moses, Mand.,190. There is no Statute of Limitations in Nebraska applicable to that proceeding.

The principle was applied in the case of Morville v. Am. Tract Society, 123 Mass., 129, 137, where it was said: The money of the plaintiff was taken and is still held by the defendant under an agreement which, it is contended, it had no power to make, and which, if it had power to make, it has wholly failed on its part to perform. It was money of the plaintiff, now in the possession of the defendant, which in equity and good conscience it ought now to pay over and which may be recovered back in an action for money had and received. The illegality is not that which arises where the contract is in violation of public policy or of sound morals, and under which the law will give no aid to either party. The plaintiff himself is chargeable with no illegal act, and the corporation is the only one at fault in exceeding its corporate powers by making the express contract. The plaintiff is not seeking to enforce that con

In the present case, however, it was not the un-tract, but only to recover his own money and

prevent the defendant from unjustly retaining the benefit of its own illegal act. He is doing nothing which must be regarded as a necessary affirmance of an illegal act." The decision of this court in Hitchcock v. Galveston, 96 U. S., 341-351 [XXIV., 659-662], covers the very point. There a recovery was allowed for the value of the benefit conferred upon the municipal corporation, notwithstanding and, indeed, for the reason, that the contract to pay in bonds was held to be illegal and void. "It matters not," said the court, "that the promise was to pay in a manner not authorized by law. If payments cannot be made in bonds, because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law."

This doctrine was fully recognized by the Supreme Court of Nebraska as the law of that State in the case of Clark v. Saline Co., 9 Neb., 516, in which it adopts, from the decision of the Supreme Court of California in Pimental v. San Francisco, 21 Cal., 362, the following language: The city is not exempted from the common obligation to do justice which binds individuals. Such obligations rest upon all persons, whether natural or artificial. If the city obtains the money of another by mistake or without authority of law, it is her duty to refund it, from this general obligation. If she obtain other property which does not belong to her, it is her duty to restore it, or, if used, to render an equivalent therefor, from the like obligation. Argenti v. San Francisco, 16 Cal.,282. The legal liability springs from the moral duty to make restitution.'

which an action for the recovery of the title to lands must be brought. R. S. Neb. 1866, p. 395, sec. 6.

On February 12, 1869, the Legislature of Nebraska passed an Act, which took effect July 1, 1869, which amended this section so as to reduce the limitation to ten years. It is not denied that if Chapman's cause of action first accrued to him on March 5, 1859, this amendment could not operate upon it because to give it that effect, would be to take away an existing right of action by mere legislation, as the ten years would then have fully expired. It is, therefore, claimed that his right of action for a reconveyance of the title, could only have first accrued when the first installment of the purchase money became due, that is, on March 5, 1860, which left eight months after the statute took effect before the ten years' limitation would expire, which, it is claimed, would be a reasonable time within which to require that suits upon existing causes of action should be brought. But this view cannot be supported; for the original contract for payment, at a fixed time, is rendered invalid, for the same reason that avoided the notes and mortgage, the objection being, according to the decision of the Supreme Court of Nebraska, that the county had no power to bind itself to pay, in any other manner than that prescribed by the statute. Hence, it must be held, in this aspect of the case, that the right of action was not postponed, after the date of the deed, by the credit given, and if it accrued at that time, the limitation was twentyone years, according to the statute then in force, within which the present suit was in fact brought.

The conveyance by Chapman to the County of Douglas passed the legal title, but upon a condition in the contract which it was impossible in law for the county to perform. There resulted, therefore, to the grantor the right to rescind the agreement upon which the deed was made, and thus to convert the county into a trustee, by construction of law, of the title for his benefit, according to the often repeated rule, as stated by Hill on Trustees, 144, that " Whenever the circumstances of a transaction are such that the person who takes the legal estate in property cannot also enjoy the beneficial inter-pay would not be extinguished by the statutory est, without necessarily violating some established principle of equity, the court will immediately raise a constructive trust and fasten it upon the conscience of the legal owner, so as to convert him into a trustee for the parties who, in equity, are entitled to the beneficial enjoyment." Upon this principle, the vendor of real estate is treated as trustee of the title for the purchaser; and the mortgagee, having the legal title, after payment of the mortgage debt, is a trustee for the mortgagor. The analogy is complete between these, and every case, of which the present is one, where the holder of the legal title is under a duty to convey to another.

But the more satisfactory answer to this defense is, that none of the statutes of limitation referred to apply to the case at all. We have already seen that by the decision in the case of Brewer v. Otoe Co., 1 Neb., 373, it is the declared law of Nebraska that the claim against the county for the purchase money, on the supposition that the understanding had been to accept payment according to the terms of the statute, was not liable to the bar of the limitation Acts. So that the obligation of the county to

But, admitting that Chapman was entitled to call for a reconveyance, it is alleged, that the Statute of Limitations of Nebraska, which bars the right to recover the title to real estate in ten years from the time it first accrued, defeats the recovery.

The Statute of Limitations in force on March 5, 1859, which was the date of the deed, prescribed twenty-one years after the cause of action shall have accrued, as the period within

lapse of time. Now, although the right of Chapman to rescind the contract and demand a reconveyance accrued at the very date of the deed, he was not bound to exercise the right, and his cause of action did not accrue, until he had made manifest his election. He had the right to treat as null that part of the contract which was illegal, and having executed it on his part, to waive performance according to its terms, on the part of the county, and wait a reasonable length of time for the county to make the payment in the mode made lawful by the statute, before exerting his power to rescind the contract. Until that time had elapsed, and until, after that, Chapman had elected to rescind, there was no existing cause of action, and consequently nothing upon which the Statute of Limitations could begin to take effect. When that reasonable time expired we have no means of determining. It would depend upon circumstances not disclosed in the record, such as the state of the county treasury, the extent of its other obligations, the value of the taxable property, and its general financial condition. There

is nothing whatever to show that the delay that | PEOPLE OF THE STATE OF NEW YORK, has taken place in filing the present bill, has been unreasonable. It is impossible, therefore, tc say that any statute of limitations has even begun to run against the cause of action, much less, that its bar has become complete.

Court of the United States for the Southern | of article I, section 10, clause 2, of the ConstiDistrict of New York, which court, on de- tution of the United States, to wit: "No State murrer to the complaint, rendered a judgment in favor of the defendant. To that judgment this writ of error is prosecuted.

The tax in this case is demanded under section 1 of a Statute of New York, passed May 31, 1881, entitled "An Act to Raise Money for the Execution of the Inspection Laws of the State of New York." The section reads thus: "Section 1. There shall be levied and collected a duty of one dollar for each and every alien passenger who shall come by vessel from a foreign port to the Port of New York for whom a tax has not heretofore been paid, the same to be paid to the chamberlain of the City of New York by the master, owner, agent or consignee of every such vessel within twentyfour hours after the entry thereof into the Port

of New York."

It has been so repeatedly decided by this court that such a tax as this is a regulation of commerce with foreign Nations, confided by the Constitution to the exclusive control of Congress, and this court has so recently considered the whole subject in regard to similar Statutes of the States of New York, Louisiana and California, that unless we are prepared to reverse our decisions and the principles on which they are based, in the cases of Henderson v. Mayor of N. Y., and Chy Lung v. Freeman, 92 U. S., 259–275 (XXIII., 543-550], there is little to say beyond affirming the judgment of the circuit court, which was based on those decisions.

The argument mainly relied on in the present case is, that the new Statute of New York, passed after her former statutes had been declared void in the Passenger Cases, 7 How., 283, and in the recent case of Henderson v. Mayor, is in aid of the inspection laws of the State. This argument is supposed to derive support from another statute passed three days earlier, entitled "An Act for the Inspection of Alien Emigrants and their Effects, by the Commissioners of Emigration."

shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of the Congress."

What laws may be properly classed as inspection laws under this provision of the Constitution, must be determined largely by the nature of the inspection laws of the States at the time the Constitution was framed.

In the opinion of this court in the case of Turner v. Maryland [ante, 370], delivered by Mr. Justice Blatchford,contemporaneously with the one in the present case, an elaborate examination of those statutes, many of which are cited, is to be found, and similar citations are found in a foot note to the report of Gibbons v. Ogden, 9 Wheat., 119.

We feel quite safe in saying, that neither at the time of the formation of the Constitution nor since has any inspection law included anything but personal property as a subject of its operation. Nor has it ever been held that the words, imports and exports, are used in that instrument as applicable to free human beings by any competent judicial authority.

We know of nothing which can be exported from one county or imported into another that is not in some sense property; property in regard to which some one is owner, and is either the importer or the exporter.

This cannot apply to a free man. Of him it is never said he imports himself, or his wife or his children.

The language of section 9, article I, of the Constitution, which is relied on by counsel, does not establish a different construction:

"The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."

This Act empowers and directs the commissioners of emigration "To inspect the persons and effects of all persons arriving by vessel at the Port of New York from any foreign country, as far as may be necessary, to ascertain who among them are habitual criminals, or There has never been any doubt that this pauper lunatics, idiots or imbeciles, or deaf, clause had exclusive reference to persons of the dumb, blind, infirm, or orphan persons, with-African race. The two words "migration and out means or capacity to support themselves and subject to become a public charge, and whether their persons or effects are affected with any infectious or contagious disease, and whether their effects contain any criminal implements or contrivances."

Subsequent sections direct how such characters, if found, shall be dealt with by the board. Other sections of the Act of May 31 direct the chamberlain of the city to pay over to the commissioners of emigration all such sums of money as may be necessary for the execution of the inspection laws of the State of New York, and the net produce of all duties received by him under that Act, after the necessary payments to the commissioners of emigration, to the Treasury of the United States.

These two statutes, construed together, it is argued, are inspection laws within the meaning

importation" refer to the different conditions of this race as regards freedom and slavery. When the free black man came here he migrated; when the slave came he was imported. The latter was property, and was imported by his owner as other property, and a duty could be imposed on him as an import. We conclude that free human beings are not imports or exports within the meaning of the Constitution.

In addition to what is said above, it is apparent that the object of these New York enactments goes far beyond any correct view of the purpose of an inspection law. The commissioners are "To inspect all persons arriving from any foreign country, to ascertain who among them are habitual criminals, or pauper lunatics, idiots or imbeciles * * or orphan persons, without means or capacity to support themselves and subject to become a public charge.'

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