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ness of description thenceforth is important only to the plaintiff, and not to him. If, therefore, the declaration was faulty in the particular alleged, the defendant is not in a position to take advantage of it."
But we do not think the complaint is defective, and even if it was, after verdict and judgment, when the defendant has retained the property, he is not in a position to urge the objection,-he has got the property, and the plaintiff a judgment for it or its value. Judgment must be affirmed.
(11 Or. 332)
HOLMES, Ex'r, v. SCHOOL-DISTRICT No. 15, UNION Co.
1. TAXATION-DESCRIPTION-SUFFICIENCY OF.
An assessment of real property entered on the assessment roll simply as follows, "Acres of land, 1,580; value of land, $1,680," is an insufficient description, and the assessment void. Tilton v. Oregon Cent. Mil. R. Co., 3 Sawy. 22,
2. SAME-ILLEGAL ASSESSMENT-PAYMENT UNDER DURESS-RECOVERY.
Where an illegal assessment of tax is paid under duress it may be recovered. Appeal from Union county.
J. A. Stratton, for appellant.
WALDO, J. The question on this case arises on the validity of the assessment, and collection of the tax extended thereon, of real estate assessed to the respondent's testator in Union county. There is no description of the land in the assessment roll whatever. There appears therein simply this entry: "Acres of land, 1,580; value of land, $1,680." In Tilton v. Oregon Cent. Mil. R. Co., 3 Sawy. 22, Mr. Justice DEADY said of a similar assessment, "That this assessment is illegal and void there is no room for doubt," and many authorities are cited. In addition to authorities there cited, counsel for respondent cite People v. Cone, 48 Cal. 427. The school-district, therefore, had no authority to collect the tax extended against the land, and this amount, having been paid under duress, may be recovered back. There is no difficulty in separating the tax on the real property from that on personal. Because the assessment is legal as to some property assessed, it does not follow that the party assessed must also pay on other property illegally assessed to him. All the authorities go to sustain the judgment of the court below, which must accordingly be affirmed.
Conversion is any act of dominion wrongfully exerted over the property of another in denial of his right, or inconsistent with it.
Where one sells the property of another without authority from such other, and appropriates the money arising therefrom to his own use, this amounts to conversion of such property.
Appeal from Wasco county. The facts are stated in the opinion. W. Lair Hill, for appellant.
N. H. Gates, for respondent.
LORD, J. This was an action of trover, and the only question involved in the case is, what will constitute a conversion? It originated in the refusal of the court to give certain instructions asked by the defendant, and an exception to an instruction given, based upon evidence tending to show about this state of facts: That the plaintiff was the owner of the cattle in controversy by purchase from one Smith, which were running at large on the range; that the defendant sold them to Strickland, and received therefor the sum of $500, and that the plaintiff has never seen nor had possession of the cattle since. The defendant admitted that he sold the cattle to Strickland, received the money for them, and "believed and supposed that Strickland had took them," but there was no evidence that the defendant ever exercised any other actual control or dominion over the cattle than such sale to Strickland, or that he actually delivered them to him, or that Strickland ever gathered the cattle in pursuance of such sale, except what may be inferred from the fact that the plaintiff has never seen, nor had possession of his cattle, since the sale, and the payment for the cattle, and the admission of the defendant that he believed and supposed that Strickland had taken the cattle. Upon this state of facts the court gave the following instruction to the jury, to which the defendant excepted:
"Any assertion of title to or any act of dominion over personal property inconsistent with the rights of the owner is a conversion A sale of the property of one person by another is a conversion. Therefore, if you find the plaintiff was the owner of the cattle at the time of the alleged taking, and that the defendant sold them without the plaintiff's consent, or in any way appropriated them to his own use without plaintiff's consent, you should find for the plaintiff in such sum as he was damaged thereby. But if you find that the plaintiff was not the owner of the cattle, or that the defendant did not so convert them, you should find for the defendant."
The effect of the instruction asked and the point raised is that, to maintain an action of trover, the defendant must have actual or virtual possession of the property. A conversion is defined to be "any distinct act of dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it." Cooley, Torts, 448. "It
may be laid down as a general principle," says Mr. Bigelow, “that the assertion of a title to or an act of dominion over personal property inconsistent with the right of the owner is a conversion." Bigelow, Torts, 428; 2 Hil. Torts, § 3, p. 97. Of the different ways by which a conversion of personal property may be effected, one is, where a party sells the property of another without his authority or consent. Such sale is the assumption of ownership, of dominion over or right to control the property, inconsistent with and in denial of the rights of the true owner. Hence, it is said, "Every assuming by one to dispose of the goods of another is a conversion." "Trover," Bac. Abr. 631. Or "the assumption of authority over property, and actual sale, constitutes a conversion." Gilman v. Hill, 36 N. H. 324. No actual force need be used, (Gibbs v. Chase, 10 Mass. 128,) nor any manual taking or removal of the property, (Reynolds v. Shuler, 5 Cow. 326; Connah v. Hale, 23 Wend. 465,) nor proof that the defendant had actual possession of the property, (Fernald v. Chase, 37 Me. 290;) for, in the language of SHEPLEY, C. J.: "The exercise of such a claim of right or dominion over the property as assumes that he is entitled to the possession, or to deprive the other party of it, is a conversion." See, also, Anonymous, 6 Mod. 212; McCombie v. Davies, 6 East. 540; Reid v. Colcock, 1 Nott. & McC. 601; Dickey v. Franklin, 32 Me. 572. As applied to the facts, the instruction was not objectionable. The defendant had assumed to himself the property and the right of disposing of the plaintiff's cattle. plaintiff's cattle. He sold them, received the money for them, authorized the purchaser to take them, and swears 'he believed and supposed the cattle were taken. The gist of conversion is the owner's deprivation of his rightful dominion and control over his property. Under this state of facts, the sale of the defendant was a wrongful assumption of authority and dominion, subversive of the rightful dominion and control of the plaintiff over his property. The judgment must be affirmed.
1. CONSTITUTIONAL LAW-INTOXICATING LIQUORS-LICENSE TO TRAFFIC INPOWER OF MUNICIPAL CORPORATION TO GRANT.
The legislature has the power, under the state constitution, to invest the subordinate municipal governments with control of the traffic in intoxicating liquors.
2. LICENSE "TAVERN," "BAR-ROOM," ETC.-CHARTER OF PORTLAND.
A tavern has been judicially defined to be "a house licensed to sell liquors in small quantities to be drunk on the spot; " and there is no essential difference between the original meaning of the word "tavern" and the word "barroom" or "drinking shop," as used in the charter of Portland.
3. SAME ORDINANCE "QUARTER" CONSTRUED.
The word "quarter" as used in the ordinance providing for licensing and regulating "bar-rooms," "drinking shops," etc., means a quarter of a year, and is not indefinite or uncertain.
Under an authority to "regulate and restrain bar-rooms and drinking shops" is conferred power to require, as a proper measure of regulation and restraint, a bond to be given by an applicant for a license to keep a "bar-room" or "drinking shop" within the city limits.
5. SAME-ORDINANCE OF PORTLAND-VALIDITY,
The ordinance of Portland to "regulate and restrain bar-rooms and drinking shops" considered, and held to be valid.
WALDO, J., dissenting.
Appeal from Multnomah county. Application for writ of habeas
Drake & Stephens and N. B. Knight, for appellant.
R. Williams, contra.
WATSON, C. J. This is an appeal from an order of the circuit court refusing to discharge the appellant from custody upon a writ of habeas corpus directed to the chief of police of the city of Portland. It is impossible to notice all the questions raised in the argument of the case in an opinion of reasonable length, and I shall therefore restrict my examination to such as appear fairly open to controversy. That the legislature has the power, under the state constitution, to invest the subordinate municipal governments with control of the traffic in intoxicating liquors, is not a debatable question. The only questions of real difficulty presented in the record arise upon the construction of the several provisions of the charter conferring power over the subject upon the city council, and the ordinances adopted by the council in attempted pursuance of the power conferred.
1. What is the power "to license, tax, regulate, and restrain barrooms and drinking shops" bestowed upon the council by subdivision 5 of section 37 of the charter? The terms "bar-rooms" and "drinking shops" are obviously used here to signify the business of conducting or keeping such places. They are susceptible of no other reasonable interpretation in the connection in which they are found in this provision of the charter. It is such business, therefore, that the council is empowered "to license," etc.
In this view, the legal character of the place would be determined by the nature of the business for which it is occupied. The council, then, in requiring license to be taken out before engaging in the business of disposing of liquors to be drunk on the premises owned or occupied by the dealer, simply exercised its rightful authority; for the business of disposing of liquors to be drunk on the premises where disposed of is identical with the keeping of a "bar-room" or "drinking shop," and every place where liquors are disposed of to be drunk on the spot is a "bar-room" or "drinking shop" within the meaning of the charter. There can be no essential difference between the original meaning of the word "tavern" and the word "bar-room" or "drinking shop" as used in the charter. And a "tavern" has been judicially defined to be "a house licensed to sell liquors in small quantities to be drunk on the spot." State v. Chamblyss, 34 Amer. Dec. And such is doubtless the common understanding of the terms
"bar-room" and "drinking shop," and the sense in which they are employed in the charter.
It is true the language of the ordinance is somewhat broader, covering any sale, barter, or delivery of the liquors specified, to be drunk on the premises, without license; but a reasonable construction, in view of the particular subject before the council at the time the ordinance was adopted, justifies the restriction I have placed upon it. Albrecht v. People, 78 Ill. 510.
The proviso to subdivision 5 of section 37 of the charter also justifies the inference that the legislature intended to confer a large measure of control over the traffic in liquors upon the local government. It is found in the same subdivision of the section by which the power "to license," etc., is given, and declares that "all persons vending liquors within the city of Portland" are exempted from the necessity of taking out license under the general laws of the state. I think, therefore, the ordinance fairly conforms to the power given by the charter in this respect.
2. The objection that the ordinance is ambiguous as to the time when the license fee is to be paid is not maintainable. It is to be paid each quarter, and the term "quarter" in this connection can only mean the quarter of the year for which the applicant desires a license. And, inasmuch as he may not engage in the proposed business without a license, it is apparent the "five days of the beginning of each quarter" within which he is required to file the receipt of the city treasurer for the amount of the license fee with the city auditor, who is authorized to issue the license, must be the five days immediately preceding the beginning of such quarter.
3. A question is made as to the power of the city council to pass an ordinance requiring a bond from an applicant for a license to keep a "bar-room" or "drinking shop" within the city limits. I think I may safely assume the existence of the power under the authority to "regulate and restrain bar-rooms and drinking shops," unless some limitations can be implied from other parts of the charter. There is no express limitation, and the authority to "regulate and restrain," uncontrolled by other provisions, would clearly give the power to require the bond. In fact, the requirement of a bond from the applicant for license to engage in such business is universally recognized as a proper and legitimate measure of regulation and restraint wherever such power is to be exercised. And as the state exercised the power in the same manner until it withdrew its jurisdiction in favor of the city government, there seems good ground for concluding that the legislature intended the latter should enjoy the power in the same ample and efficacious measure.
The opposite view rests upon deductions from the provisions of subdivision 36 of section 37 of the charter, prescribing the mode and measure of punishment for violations of city ordinances.
These provisions unquestionably limit the power of the council to