A mortgage upon real property in this state, whether considered as a conveyance of the same, giving the creditor an interest in or right to the same, or merely a contract giving him a lien thereon for his debt, and the power to enforce the payment thereof by the sale of the premises, is a contract affecting real property in the state, and dependent for its existence, maintenance, and enforcement upon the laws and tribunals thereof, and may be taxed here as any other interest in, right to, or power over land. And the mere fact that the instrument has been sent out of the state for the time being, for the purpose of avoiding taxation thereon or otherwise, is immaterial.

But the right to tax the mortgage may not give the state any direct power over the debt, when the same is actually held without the limits of the state. But indirectly it does. A sale of the mortgage, although it would not carry with it the debt, would separate them, and leave the latter without any security. A purchaser of the mortgaged premises from the mortgagor, who has or may purchase the mortgage when sold for taxes, would thus unite in himself the interest of both mortgagor and mortgagee, and hold the property discharged from the debt.

But counsel for the defendants claim that these debts are actually within the jurisdiction of the state for the purposes of taxation, on the ground that the plaintiff and its assignors in the transaction of their business here, out of which these notes and mortgages arose, maintained an agent in the state under the foreign-corporation act: Or. Laws, 617, secs. 7, 8.

As to any of the foreign corporations required by that act to appoint an agent to represent it within the state, before doing business here, it is clear to my mind that as to such business, and for the purposes of taxation, it is a domestic corporation, having a residence within the state. But in the case of the Oregon and Washington Trust and Investment Company v. Rathbun, 5 Saw. 32, this court held that a foreign corporation engaged in loaning its own money in this state was not within the purview of the act, as limited by its title, and therefore not required to appoint such agent before doing business here.

But admitting that the plaintiff was not required, while doing business in Oregon, to appoint and keep an agent here under the foreign-corporation act, nevertheless it appears to be a fact that the business out of which these notes and mortgages arose was done here through an agent, resident in Oregon. The money of the plaintiff was sent here to be loaned by this agent upon applications made and accepted here. And although the notes were made payable to the plaintiff in Dundee, and with the mortgages sent there for safe keeping, they are and have been returned here for payment, and the money received on them reloaned here.

It is altogether probable that the otherwise useless ceremony of making these notes payable in Dundee, and sending them there for custody until their maturity, and then returning them here for payment and collection, is a mere shift to avoid taxation thereon in Oregon.

In fact, it appears that the money was loaned in Oregon and the notes made here, with the understanding between the parties, that whatever their tenor, they should be paid and payable here. If the plaintiff was actually engaged in loaning money in Dundee, and a resident of Oregon should go or send there and procure a loan from it and give his note therefor, the case would be a different one, although the note was secured

by a mortgage on real property in Oregon. But it is plain to be seen that that is not this case, and that the plaintiff could never have done this volume of business here in that way. Therefore, availing itself of the comity of the state, it comes here, in the person of its authorized agent, with its money, loans and reloans it, and is so far, I think, a resident here for the purposes of taxation.

The maxim so much relied on by the plaintiffs-that personal property follows the person of the owner-is but a legal fiction, invented for useful purposes, and must yield whenever the purposes of convenience or justice make it necessary to ascertain the fact concerning the situs of such property. In cases of attachment and for the purposes of taxation it is constantly disregarded, as the following cases will show: Catlin v. Hull, 21 Vt. 158; The People v. Commissioners of Taxes, 23 N. Y. 225; People v. Home Ins. Co., 29 Cal. 533; Green v. Van Buskirk, 7 Wall. 150.

And the case of the State Tax on Foreign-held Bonds, 15 Wall. 300, cited and also much relied on by counsel for the plaintiff, only decides that a state law which comes between the foreign lender and the local borrower and compels the latter to pay a portion of the interest due the former on his debt, as taxes to the state, is void, because it impairs the obligation of the contract between the parties. And this same ruling could as well have been made on this ground, if the parties had both been citizens of the state seeking to impose the tax. The case was before the court on a writ of error to the judgment of the supreme court of the state of Pennsylvania, and this was the only federal question in the case, and therefore the only one determined by it.

But on the question of uniformity, I confess I am unable to find any ground on which this act can be harmonized with the constitution of the state, and upheld as a valid law. It is expressly confined to mortgages on land in only one county, and thereby admits what was conceded on the argument, and what the court may judicially know, that there are mortgages in this state on land in more than one county.

Section 1 of article 9 of the constitution of the state, already referred to, not only requires the legislative assembly to "provide by law for uniform and equal rate of assessment and taxation," but also to "prescribe such regulations"-make such laws-"as shall secure a just valuation for taxation of all property, both real and personal, excepting such only for municipal, educational, etc., purposes as may be specially excepted by by law." And section 32 of article 1, declares that "all taxation shall be equal and uniform."

The rule on this subject prescribed by the constitution is mandatory, and the legislature in exercising the power of taxation must conform its action thereto. But the constitution must have a reasonable and practical construction in this respect. It does not require that a law on this subject shall have mathematical precision or secure in practice absolute equality and uniformity. But it must at least appear to have been enacted with a view to uniformity, and must contain provisions reasonably calculated to secure that end in practice.

But when an act not only fails to secure uniform taxation, but upon. its face appears to have been passed with a contrary intent, there can be no question of its invalidity. For instance, no one would claim that an act taking mortgages in all the counties of the state excepting Yamhill, or one taxing mortgages in all the counties of the state except those in the Wallamet valley, was intended or calculated to produce uniform

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taxation, or to secure a just valuation for taxation" of "all property” not exempt therefrom by the constitution.

Now, there is no difference in principle between such an act and the one under consideration, and very little in the circumstances. The latter taxes mortgages on land in no more than one county, and exempts those on land in more than one county. The mortgage taxed and the mortgage not taxed and the property affected by them are in all essentials the same. The only difference between them is the purely adventitious and immaterial one, that in the one case the land is all in one county, and in the other is in two or more; as in the case of the railway mortgages.

Without admitting that there can be any classification of mortgages for taxation, under the constitution of the state, so as to produce a difference in the burden imposed on them, or the cost or convenience of discharging it, there is no ground to say that this discrimination between one and two county mortgages is the result of a bona fide or other attempts to so classify mortgages for the purpose of taxation. Classification for the purpose of state taxation can not be arbitrarily made, as by mere reference to the county in which the property is situated. For such purpose a mortgage upon an acre of land in Polk county is not distinguishable from one on an acre of land in Benton county; and a law providing for the assessment and taxation of one and not the other is wanting in the uniformity required by the constitution, and therefore void. This conclusion can not be made plainer by argument. If the injunctions of the constitution in this respect mean anything, they certainly prohibit this kind of unequal and discriminating legislation on the subject of taxation.

This being a suit between a foreign corporation and citizens of this state, the court has jurisdiction of the controversy on account of the citizenship of the parties, whether a federal question is involved in the controversy or not. The defendants are intending and attempting to sell and dispose of the notes and mortgages of the plaintiff respectively assessed by them for the non-payment of an illegal tax; and this being repeated from year to year, until the maturity and payment of the notes, the plaintiff may be compelled to maintain a corresponding number of actions at law to recover the amounts so collected, to prevent and avoid which an injunction will be allowed: Pomeroy's Eq. Jur., secs. 243–275. But the act under which the defendants are proceeding to dispose of the plaintiff's property for taxes being void, such disposition constitutes a violation of section 1 of the fourteenth amendment to the constitution of the United States, which forbids a state "to deprive any person of life, liberty, or property without due process of law," and therefore this court has jurisdiction of the case, as one arising under said constitution, without reference to the citizenship of the parties thereto.

If the defendants, acting for and in the name of the state, are allowed to take the plaintiff's property for taxes assessed under a void law, the state would thereby deprive the plaintiff of such property "without due process of law," contrary to the constitution of the United States: The Railway Tax Case, 8 Saw. 251, 287.

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The constitution of the state, art. 4, sec. 23, subd. 10, also prohibits the passage of "special or local laws for the assessment and collection of taxes for state, county, township, or road purposes."

In Manning v. Klippel, 9 Ör. 367, it was held that an act providing for the compensation of the sheriffs and clerks of fourteen out of the twen

ty-three counties of the state was a "local" law for the assessment and collection of taxes for county purposes, and therefore within this prohibition and void.

The terms "special" and "local" are not always convertible, though the former may include the latter. A special act is one that comes short of being general. The latter comprehends the genus, while the former is confined to the species. In Holland's Case, 4 Co. 76 a, cited in Smith's Commentaries, section 798, it is said, by way of illustration: "Spirituality is genus; bishopric, deanery, etc., are species," and the author adds: "Hence acts which concern the whole spirituality in general are general acts. A statute concerning leases made by bishops is a special act, because it concerns the bishops only, who are but a species of the spirituality."

* * *

An act providing for the assessment of mortgages generally is, so far, a general act. It comprehends the genus. But an act providing for the assessment of all mortgages for sums exceeding five hundred dollars, or not payable within one year from the date of their execution, is special. It comprehends only a species of mortgages. So an act providing for the assessment of mortgages on woodlands, plow-lands, or river-lands is special; and in my judgment, an act that taxes mortgages on land in no more than one county, to the exclusion of those on land in more than one, is in the same category. It does not comprehend the genus, mortgages, but only the species-one-county mortgages.

Without imputing to the legislature that passed this act any other purpose, in making this discrimination between one and two county mortgages, than a desire to avoid the supposed inconvenience of applying it to the latter, it is well to remember that special legislation in the imposition of taxes is sure, if unrestrained, to run into partiality, oppression, and injustice. To prevent this evil, this inhibition against special legislation was placed in the constitution.

It is not material to the decision of this application nor the case, except as to the loan in Marion county, to ascertain how far, if at all, this act is prospectively valid. It forbids any more two-county mortgages being made, but it can not, nor does not, attempt to annihilate or strike out of existence those made before its passage. Admitting that the legislature can not discriminate between mortgages on the ground of the locality of the property affected by them, it follows that so long as there are any two-county mortgages in existence in the state, an act taxing only one-county mortgages is open to the objection of want of uniformity. In reaching this conclusion concerning the validity of this act, I have not been unmindful of the responsibility of declaring an act of the legislature void. But as was said by this court under similar circumstances, Or. & Wash. T. & I. Co. v. Rathbun, 5 Saw. 38: "In a plain case like this, it is as much the duty of the court to declare the act of the legislature invalid as to reform or set aside a contract for mistake or fraud. so doing, it but upholds and obeys the supreme law-the constitution-to which both courts and legislatures are bound to conform their conduct." Let the injunction issue as prayed for; the plaintiff first giving a bond with sufficient surety, to be approved by the master of this court, in a sum equal to the tax in question and twenty per centum thereon, conditioned that the plaintiff will pay all damages which the defendants or either of them may sustain by reason of such injunction, if the same shall be held wrongful, to be ascertained by a reference or otherwise, as this court may direct.

In

SUPREME COURT OF MONTANA.

WELLS ET AL. v. TAYLOR ET AL., Officers of Jefferson County.

Filed February, 1884.

ACT PROVIDING FOR SPECIAL ELECTION.-Where an act of the legislature providing for a special election on the question of the removal of a county seat designates that such election shall be conducted, and the votes cast thereat shall be counted and returned, by certain officers and boards named therein, but fails to state the individuals who shall constitute the same, it will be presumed that the legislature referred to the officers and boards of the saine name existing under the general election laws.

DISQUALIFICATION OF ELECTION OFFICERS, EFFECT OF.-Where no question is raised as to the fairness of the vote and the honesty of the count, an election will be valid although the officers conducting the same were not duly sworn or chosen, and did not possess the qualifications requisite for their office.

BRIBERY OF VOTERS, WHAT IS.-An election to determine the removal of a county seat will not be invalidated by the fact that prior to the election certain inhabitants of the county presented an offer to the voters, in the form of a bond, conditioned for the building of certain county buildings at a designated place, provided a majority of the votes cast were in favor of changing the county seat to such place. Such an offer was not bribery.

REMOVAL OF COUNTY SEAT OF JEFFERSON COUNTY.-Where a majority of the votes cast on the election to determine the question whether the county seat of Jefferson county should be removed from Radersburg to Boulder city were in favor of such latter place, the officers of such county may make such removal, although the county commissioners failed to make the order contemplated by section 6 of the act of 1883, causing the books, records, papers, and effects of the county to be removed.

APPEAL from a judgment of the third judicial district court for Jefferson county, entered in favor of the defendants, on an application for a writ of mandate. The opinion states the facts.

Erastus D. Edgerton and Chumasero & Chadwick, for the petitioners. W. F. Sanders and E. W. Toole, for the respondents.

WADE, C. J. This is an application filed in this court by Frank Wells, Henry B. Barkley, Edwin M. Bachelor, P. B. Clark, and Charles Furgerson, citizens of Radersburg, Jefferson county, for a writ of mandate against Joel M. D. Taylor, clerk and recorder, John McDermitt, sheriff, Edward McSorley, treasurer, and Davie G. Warner, probate judge, officers of said Jefferson county, residing, and exercising the functions of their respective offices at Boulder city, in said county, to compel said officers to return the books, records, archives, papers, and effects of their several offices to Radersburg, which place the petitioners aver is the legal county seat of Jefferson county, and to require said officers to reside in and hold their offices at said Radersburg.

The questions to be determined arise upon a demurrer to the application of petitioners, no writ having issued in pursuance of the prayer of the petitioners, and hence no answer having been filed by the respondents. A brief statement of the facts as they appear in the application will be necessary in order to present the questions to be decided. The legislative assembly of the territory at its thirteenth regular session, 1883, passed an act authorizing the citizens of Jefferson county to vote upon the question of removing the county seat of said county from Radersburg to Boulder city, and providing the notice to be given, and the day when such election should be held. The act further provided that the county commissioners should appoint judges and clerks of said election in the several election precincts as now established, who shall qualify as