with its amount. But who can adjust with precise accuracy the amount which each individual in an organized civil community shall contribute to sustain it, or can insure in this respect absolute equality of burdens and fairness in their distribution among those who must bear them?

"We cannot say judicially that the plaintiff received no benefit from the city organization. These streets, if they do not penetrate his farm, lead to it. The waterworks will probably reach him some day, and may be near enough to him now to serve him on some occasion. The schools may receive his children, and in this regard he can be in no worse condition than those living in the city who have no children, and yet who pay for the support of the schools. Every man in a county, a town, a city, or a state is deeply interested in the education of the children of the community, because his peace and quiet, his happiness and prosperity, are largely dependent upon the intelligence and moral training which it is the object of public schools to supply to the children of his neighbors and associates, if he has none himself."

It is no objection to a tax that the party required to pay it derives no benefit from the particular burden; e. g. a tax for school purposes levied upon a manufacturing corporation. But, in truth, benefits always flow from the appropriation of public moneys to such purposes, which corporations in common with natural persons receive in the additional security to their property and profits. Nail Co. v. Weed, 17 Mass. 52.

In Cooley, Tax'n, 16, the result of a wide examination of the cases is thus stated:

"If it were practicable to do so, the taxes levied by any government ought to be apportioned among the people according to the benefit which each receives from the protection the government affords him, but this is manifestly impossible. The value of life and liberty, and of the social and family rights and privileges, cannot be measured by any pecuniary standard; and, by the general consent of civilized nations, income or the sources of income are almost universally made the basis upon which the ordinary taxes are estimated. This is upon the assumption, never wholly true in point of fact, but sufficiently near the truth for the practical operations of government, that the benefit received from the government is in proportion to the property held, or the revenue enjoyed under its protection; and though this can never be arrived at with accuracy, through the operation of any general rule, and would not be wholly just if it could be, experience has given us no better standard, and it is applied in a great variety of forms, and with more or less approximation to justice and equality. But, as before stated, other considerations are always admissible. What is aimed at is not taxes strictly just, but such taxes as will best subserve the general welfare of the political society."

The fact that the taxes in question are levied

on personal property only, and thus exempts real property, is urged as an objection to the validity of the act. It is claimed that such an exemption operates as an unjust discrimination.

As the owners of the cattle taxed own no real estate within the Indian reservation, this; objection, if sound, would render*It impossible to tax the cattle at all. But it is the usual course in tax laws to treat personal property as one class and real estate as another, and it has never been supposed that such classification created an illegal discrimination because there might be some persons who owned only personal property, and others who owned property of both classes. Again, it is complained that this law violates the principle of uniformity, and operates as an unjust discrimination, because it provides for an assessment of cattle, kept and grazed on the Indian reservations, at a different time from that provided for the assessment of personal property, including cattle, in the organized country.

It is not unusual for tax laws to authorize the assessment of different classes of property at different dates, and even of the same classesof property in different localities at different dates. Such matters of regulation must be supposed to be within the power of the stateor territory, and to have their reasons in special facts known to the legislature. We are informed that the revenue laws of Oklahoma. provide that real estate shall be valued for taxation on the 1st day of January, and personal property in the organized counties on the 1st day of February, of each year, and the personal property upon the reservations on May 1st. The gravamen of the complaint is that cattle are fatter and more valuable on May 1st than on February 1st, and hence there is an inequality in the assessments. On the other hand, it is claimed that, if the cattle on the reservations were to be valued for taxation in February, the larger part would escape taxation, as they are not driven to the reservations till April.

A similar objection was urged against the validity of a tax law of the state of Wisconsin, wherein April 1st was fixed as the date for assessing sawlogs belonging to nonresidents, and May 1st for assessing sawlogs of residents. The court said:

"It is claimed that this law violates the principle of uniformity in providing for an assessment of the logs of a nonresident at a different time than that provided in the case of residents, and that for the same reason it a discriminates unjustly against nonresidents. But the court is of opinion that the case does not come within either of these principles.

The legislature was aware that the logs of nonresidents were liable to be floated out of the state during the month of April." Nelson Lumber Co. v. Town of Loraine, 22 Fed. 54.

In Missouri a statute was held valid which provided that real property should be assessed

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every two years in all counties outside of St. Louis, and that all property in the city of St. Louis should be assessed every year, for state and munda! taxes, and this although in the particular case it was shown that this difference in the time of the assessments made a considerable difference in the amount of the taxes. State v. Lindell Hotel Co., 9 Mo. App. 450.

A law providing different times for assessments for state taxes in the state of New York was held to be legal. People v. Commissioners of Taxes, 91 N. Y. 593.

Several other provisions of the act in question are pointed to as creating discriminations against taxpayers whose property is in the unorganized districts and reservations, such as these; that city and township assessors are required to be residents and qualified voters in the township or city where elected, but there is no such requirement imposed on the special assessor appointed by the board of county commissioners to assess the personal property in the reservations and unorganized districts; that the several township and city assessors are required to meet at the county seat and agree upon an equal cash basis of valuation of all property that they may be called upon to assess, but in this matter the special assessors do not participate; that the township assessor, clerk, and treasurer are a township board of equalization, and the mayor, city clerk, and city assessor are a city board of equalization, but that, in the case of the unorganized districts and reservations, the board of county commissioners act as a board of equalization, etc. Without undertaking to enumerate all the instances in which there is some difference of procedure in respect to property assessed within the organized counties and property assessed in the unorganized districts and reservations, or to consider minutely the several objections that are urged to such differences, we do not perceive that the questions suggested are for the courts. Clearly these are matters of detail, within the legislative discretion. It is the lawmaking power which is to determine all questions of discretion or policy in ordering and apportioning taxes; which must make all the necessary rules and regulations, and decide upon the agencies by means of which the taxes shall be collected. When, as may sometimes happen, the legislature transcends its functions, and enacts, in the guise of a tax law, a law whereby the property of the citizen is confiscated, or taken for private purposes, che judiciary has the right and duty to interpose. But such a case is not presented by this record.

These views dispose of the objections urged against the validity of the act of March 5, 1895, and leave only for consideration error assigned to the action of the territorial board of equalization in adding 35 per cent. to the assessment or valuation made by the officer or officers to whom the duty to make

the assessment is by the statute expressly committed. It is alleged that this order by the board of equalization was unauthorized and void.

We learn from the opinion of the supreme court of Oklahoma in the present case that this question of the power of the territorial board of equalization to raise the valuation of the properties to be taxed had been, in the previous case of Wallace v. Bullen, decided affirmatively, and that such decision was followed in the present case.

We are informed, however, by the brief filed in behalf of the petitioners, that subsequently, on September 3, 1897, in the case of Gray v. Stiles (Okl.) 49 Pac. 1083, the subject was again considered and an opposite conclusion reached. It is also asserted in said brief that the question is one of general importance, and that a final decision of it may affect the validity of municipal obligations heretofore issued in the territory.

Such allegations disclose that there are parties not represented before us whose interests are involved in the inquiry. The case was heard in the trial court on a demurrer હા to the petition, and the question of the valid. ity of the action of the board of equalization in raising the assessed values throughout the territory was put by the supreme court, without discussion, on its previous decision in the case of Wallace v. Bullen. We are also informed by the briefs that the case just mentioned is now pending before the supreme court on an order for a rehearing. Whether the facts pertaining to the action of the board of equalization in this particular were the same in Gray v. Stiles as those in this case we cannot say from this record.

In such circumstances, we think it would be premature for this court to determine the question.

As, for the reasons before given, the judgment of the supreme court must be reversed, that court will have an opportunity to deal with this question, if it think fit, upon a rehearing.

The judgment of the supreme court of Oklahoma is accordingly reversed, and the cause is remanded, with directions to proceed in conformity with this opinion.

(169 U. S. 295)

WILLIS et al. v. EASTERN TRUST & BANKING CO.

(February 21, 1898.) No. 383.

FORCIBLE ENTRY AND DETAINER - WHEN MAINTAINABLE-MORTGAGES-STATUTES.

1. A mortgagor in possession, after default under a mortgage giving the mortgagee a right of entry on breach of the condition, is not the mortgagee's tenant, in such sense as to enable the latter to maintain a summary action of forcible entry and detainer, under Rev. St. D. C. § 684. This statute applies only in cases where the conventional relation of landlord and tenant exists, or has existed, between the parties.

16ee 53 Pao. 954, 54 Pac. 974.

2. When congress adopts a statute substantially as it exists in the legislation of a state, it adopts also the known and settled construction given to it by the courts of that state.

On Writ of Certiorari to the Court of Appeals of the District of Columbia.

This was a summary process to recover possession of land in the city of Washington, under section 684 of the Revised Statutes of the District of Columbia, commenced September 17, 1894, by complaint before a justice of the peace, by the Eastern Trust & Banking Company against Edward M. Willis and William G. Johnson, each of whom pleaded title in Johnson; and the case was thereupon certified to the supreme court of the District of Columbia.

In accordance with a general rule of that court requiring the plaintiff in such a process to file "a declaration making demand for the possession of the premises, with a description thereof, as in ejectment," the plaintiff filed a declaration, demanding possession of the land, describing it by metes and bounds, and alleging that the defendants entered thereon, and unlawfully ejected the plaintiff therefrom, and unlawfully detained the same from the plaintiff.

The parties submitted the case to the determination of the court, without a jury, upon an agreed statement of facts, in substance as follows:

The plaintiff was a corporation organized under a charter granted by the legislature of the state of Maine, by which it was located at the city of Bangor, in the county of Penobscot, and was authorized to establish agencies elsewhere in that state. Johnson was sued as assignee of the American Ice Company, a corporation of Maine, and doing business at Bangor, and also at the city of Washington; and Willis was sued as the tenant or lessee of Johnson.

On December 2, 1889, by an indenture, in the nature of a mortgage, executed in Maine, and duly recorded in that state and in the District of Columbia, the American Ice Company conveyed to the Eastern Trust & Banking Company, "and its successors, in trust, with full power of succession to and enjoyment of the franchises of the corporation, all its real estate, wharves, ice houses, boarding house, stables, boilers, elevator. and machinery, situated in the town of Hampden, in said county of Penobscot, and in the city of Washington, in the District of Columbia, together with, all and singular, the privileges and appurtenances thereto belonging," to secure the payment of bonds of the ice company to the amount of $40.000, payable to the trust company, at its office in Bangor, in equal installments of $5,000 each, in 3, 4, 5, 6, 7, 8, 9, and 10 years after date, with interest. The deed provided, among other things, as follows:

First. "Until default shall be made in the payment of the principal or interest of said bonds, or some of them, or in the mainte

nance of insurance, or in the payment of taxes or assessments, as herein provided, or until default shall be made in respect to something by these presents required to be done by said party of the first part, the American Ice Company shall be permitted and suffered to possess, manage, develop, operate, and enjoy the plant and property herein conveyed, and intended so to be, and to take and use the income, rents, issues, and profits thereof, in the same manner, to the same extent, and with the same effect as if this deed had not been made."

Second. If the ice company shall pay the principal and interest, and do all other things required to be done on its part, this deed shall be void. But if any default shall be made, and shall continue for ninety days, the whole amount of the bonds, principal and interest, shall be deemed immediately due and payable, "and it shall be lawful for the trustee to enter into or upon the premises and property hereby granted, or intended so to be, and to take possession of the whole or any part thereof," and to sell and dispose of the same by public auction in Bangor, giving notice, as therein required, in newspapers published in Bangor and in Washington, and "in its own name, or in the name of the American Ice Company, to make, execute, acknowledge, and deliver to the purchaser or purchasers at such sale a good and sufficient deed or deeds of conveyance of the property so sold; and any sale made as aforesaid shall be a perpetual bar, both at law and in equity, against the American Ice Company, and all persons claiming by, through, or under it, from claiming the property, rights, interests, and franchises so sold, or any interest therein." The proceeds of the sale, after payment of expenses, shall be paid over ratably to the bondholders, and the remainder, if any, to the ice company.

Third. "The foregoing provision for a sale under the power aforesaid is cumulative with the ordinary remedy of foreclosure by entry or suit therefor; and the trustee hereunder may, upon default being made as aforesaid, institute and carry out proceedings to foreclose this mortgage or deed of trust, by suit or otherwise, in such manner as may be authorized by law for the foreclosure of mortgages of real estate. And the American Ice Company hereby waives any and all rights of sale or redemption now or hereafter provided by the statutes of Maine or of the United States."

The bonds were duly issued as recited in the mortgage, and were delivered to and held by purchasers for value in the regular course of business. The first installment of the bonds, and all interest which fell due on or before December 1, 1892, were paid. The rest of the bonded debt, and the interest thereon, were never paid, and were due and payable at the time of the commencement of this suit.

On October 13, 1893, the ice company ex

ecuted to Johnson an assignment of all its property for the benefit of its creditors, under the act of congress of February 24, 1893, c. 157 (27 Stat. 474). Johnson accepted the assignment, and assumed "the duties of assignee, and as such on January 29, 1894, executed to Willis a lease in writing of all the ice company's real estate in the city of Washington, for one year from that date, at a monthly rent of $130.

After the default which took place on December 1, 1893, had continued more than 90 days, a majority of the bondholders directed the trust company to proceed in the execution of the trust. In pursuance of that direction, and of the power contained in the mortgage, the trust company advertised and exposed the whole mortgaged property for sale by auction at Bangor on May 4, 1894. The sale was adjourned until September 8, 1894, when the property was sold, and was purchased by a committee of the bondholders, and for their benefit. The terms of the sale have not yet been complied with, nor any deed made to the purchasers; it being understood and agreed between them and the trustee, at the time of the sale, that the trustee should first obtain possession of the property.

The trust company on July 30, 1894, caused a 30-days notice to quit to be served on Johnson and on Willis, and on September 17, 1894, commenced this suit to recover possession of the property by causing a 7-days summons to be issued to each of them by a justice of the peace of the District of Columbia; and thereupon subsequent proceedings took place as above stated.

Upon the agreed statement of facts, the supreme court of the District of Columbia gave judgment for the defendants. The plaintiff appealed to the court of appeals, which reversed the judgment, and remanded the case, with directions to enter judgment for the plaintiff. 6 App. D. C. 375. The defendants sued out a writ of error from this court, which was dismissed for want of jurisdiction. 167 U. S. 76, 17 Sup. Ct. 739. They then obtained from this court this writ of certiorari to the court of appeals, under the act of March 3, 1897, c. 390 (29 Stat. 692). 167 U. S. 746, 17 Sup. Ct. 1004.

Calderon Carlisle and W. G. Johnson, for petitioners. B. F. Leighton, for respondent.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court. Sections 680-691 of the Revised Statutes of the District of Columbia, contained in chapter 19, entitled "Landlord and Tenant," are a re-enactment of the act of congress of July 4, 1864. c. 243, entitled "An act to regulate proceedings in cases between landlord and tenants in the District of Columbia." 13 Stat. 383.

By sections 681 and 682 (re-enacting section 1 of the act of 1864). "a tenancy at will shall not arise or be created without an express

contract or letting to that effect, and all occupation, possession or holding of any mes suage or real estate, without express contract or lease, or by such contract or lease the terms of which have expired, shall be deemed and held to be tenancies by sufferance"; and "all estates at will and sufferance may be determined by a notice in writing to quit of thirty days."

By section 684 (re-enacting section 2 of the act of 1864), "when forcible entry is made, or when a peaceable entry is made and the possession unlawfully held by force, or when possession is held without right, after the estate is determined by the terms of the lease by its own limitation, or by notice to quit, or otherwise," then, "on written complaint, on oath, of the person entitled to the premises, to a justice of the peace, charging such forcible entry or detainer of real estate, a summons may be issued to a proper officer, commanding the person complained of to appear and show cause why judgment should not be rendered against him."

The statute further provides as follows: The summons shall be served at least seven days before the appearance of the party complained of. If it appears by default, or upon trial, that the plaintiff is entitled to the possession of the premises, he shall have judgment and execution for the possession and costs; if the plaintiff fails to prove his right to possession, the defendant shall have judgment and execution for his costs. If, upon trial, the defendant pleads title in himself, or in another person under whom he claims the premises, the case is to be certified to the supreme court of* the District of Columbia, and each party is to recognize to the other, the defendant, "to pay all intervening damages and costs and reasonable intervening rent for the premises"; and the plaintiff, to enter the suit, and to pay all costs adjudged against him. An appeal to the same court may be taken by either party against whom judgment is rendered by the justice of the peace. Rev. St. D. C. §§ 685-689; Act July 4, 1864, c. 243, §§ 2-4 (13 Stat. 383, 384).

This plaintiff is the mortgagee of land in the District of Columbia, under a deed of trust to secure the payment of certain bonds, in installments payable in successive years, with interest, and providing that until default the mortgagor shall be permitted to possess and enjoy the property, and to take and use the income, rents, issues, and profits thereof, “in the same manner, to the same extent, and to the same effect as if this deed had not been made," but that if any default be made, and be continued 90 days, the trustee may enter upon the property, and sell the same by public auction, or may pursue the ordinary remedy of foreclosure by entry or suit, as authorized by law.

The mortagor assigned the property to an assignee for the benefit of creditors; the assignee made a lease in writing thereof for a year, at a monthly rent; default was made, and continued for 90 days; and the mortgagee,

after giving the assignee and his lessee 30 days' notice to quit, instituted this process against them to recover possession under the landlord and tenant act of the District of Columbia.

The principal question presented by the record is whether, in a case like this, where there has been neither forcible entry, nor detainer by force, a mortgagee entitled to possession after condition broken is within the scope and effect of the statute.

In Barber v. Harris (1888) 6 Mackey, 586, affirmed by this court in Harris v. Barber (1889) 129 U. S. 366, 9 Sup. Ct. 314, cited in support of the judgment below, this question was not, and could not be decided. That case arose upon a writ of certiorari to a justice of the peace, by which his judgment for possession under the statute was sought to be set aside upon allegations that the plaintiff was a purchaser at a sale under a mortgage, and the conventional relation of landlord and tenant did not exist between the parties, and therefore the justice of the peace had no jurisdiction. The ground on which both the supreme court of the District of Columbia and this court declined to set aside the judgment of the justice of the peace was that the existence of the relation of landlord and tenant between the parties, and the jurisdiction of the justice of the peace over the case, were sufficiently shown by general allegations in the complaint that the plaintiff was entitled to the possession of the premises, and that they were detained from him and held without right by the defendant, tenant thereof by the sufferance of the plaintiff, and whose tenancy and estate therein had been determined by 30 days' notice to quit, and that these allegations could not be contradicted upon the writ of certiorari. See 6 Mackey, 594, 595; 129 U. S. 368, 371, 9 Sup. Ct. 314.

In Jennings v. Webb (1892) 20 D. C. 317, 322, in which it was decided that one tenant in common could not maintain this form of proceeding against his co-tenant, Justice Cox, speaking for Justices Hagner and James, as well as for himself, said: "There seems to be a little misapprehension of the nature of this proceeding. While our rule requires the plaintiff to file a declaration, as in ejectment, that does not convert the proceeding into an action of ejectment at all, in which the plaintiff recovers upon the strength of his title. In this proceeding, unless he establishes the relation of landlord between himself and the defendant, no matter what the form of declaration is, he is not entitled to recover. I have always held that at special term, and that is the opinion that we entertain now. It is still a landlord and tenant proceeding."

In two earlier cases, a purchaser at a sale ander a deed of trust in the nature of a mortgage had been declared by the supreme court of the District of Columbia, in general term, to be entitled to maintain this proceeding against the mortgagor, who had remain

ed in possession without the plaintiff's consent, and had been served with a 30-days notice to quit. But in the first of those cases this was wholly obiter dictum, the appeal to the general term being dismissed because the judgment in special term was final, and in the other case no question appears to have been raised upon the construction of the statute. Luchs v. Jones (1874) 1 McArthur, 345; Fiske v. Bigelow (1876) 2 McArthur, 427.

Afterwards, in Loring v. Bartlett (1894) 4 App. D. C. 1, the court of appeals, speaking by Chief Justice Alvey, reversing a judgment of the supreme court of the District of Columbia, and quoting from Birch v. Wright, 1 Term R. 378, 382, 383, refrained from expressing a definite opinion upon the question "whether the simple and ordinary relation of mortgagor and mortgagee involves the relation of landlord and tenant, by implication of law, within the meaning and sense of the statute," and maintained the suit solely upon the ground that a provision, in a trust deed to secure the payment of promissory notes, by which the mortgagee and her heirs and assigns were to be permitted "to use and occupy the said described premises, and the rents, issues, and profits thereof to take, have, and apply to and for her and their sole use and benefit, until default be made in the payment of said notes, or any of them," constituted a redemise from the mortgagee to the mortgagor, which would support a proceeding under the statute. The cases relied on in support of that decl sion were Creek Co. v. Detmold, 1 Md. 225, 230, and some English cases, all of which were ordinary actions of ejectment, and none of them under statutes like that now in question.

The decision in Loring v. Bartlett was followed by the court of appeals in the present case, without further discussion. 6 App. D. C. 375, 383.

Upon full consideration of the terms of the act of congress, and in view of the existing state of the law in this country at the time of its passage, this court is unable to concur in the conclusion of the court of appeals.

The common saying that a mortgagor in possession is tenant at will to the mortgagee has been often recognized to be a most, unsafe guide in defining the relation of mortgagee and*mortgagor, or in construing stat-i utes authorizing landlords to recover possession against their tenants by summary process before a justice of the peace.

In Moss v. Gallimore (1779) Lord Mansfield said: "A mortgagor is not properly tenant at will to the mortgagee, for he is not to pay him rent. He is only so quodam modo. Nothing is more apt to confound than a simile. When the court or counsel call a mortgagor a 'tenant at will,' it is barely a comparison. He is like a tenant at will. The mortgagor receives the rent, by a tacit agreement with the mortgagee, but the mortgagee

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