must first do equity, but a tender of an amount due is not always required as a prerequisite to the maintenance of an action in such cases where the amount is in dispute, or is unknown by a plaintiff; or where a defendant denies all right to recover, an actual tender need not be made. In this case, the plaintiff expressed its willingness to pay such sum on this account as the court should find due to Mrs. Manley, and we think brought itself well within the equitable rule. The court, however, did not decree to her anything. In this we think the court was in error. These taxes were paid by Mrs. Manley, not by the banking company. The benefit of their payment inured directly to the parties interested in the lands. If Mrs. Manley had not paid them, those parties would have been compelled to. We think it would be inequitable to cancel these certificates without attaching the condition that these taxes should be refunded to her. In this respect, the decree of the court will be modified and the case will be remanded for the purpose of enabling the court below to ascertain the amount of the taxes so paid by her, with interest at the rate of 6 per cent. per annum, and to require payment of such sum as a condition to the relief granted. The costs in this court will be divided. All the justices concurring. (64 Kan. 566) FOWLER 7. CITY OF KANSAS CITY. (Supreme Court of Kansas, Division No. 2. March 8, 1902.) LIABILITY OF CITY-TORTS OF OFFICERS. In an action to recover against a city for the wrongful acts of its officers. a petition which states that the acts complained of were done by such officers, and while they were acting as such officers, does not state a cause of action against such city; it not appearing therein that the complained-of act was done by the authority of the city, or in the performance of some official act authorized and directed by the city. (Syllabus by the Court.) Error from district court, Wyandotte county; E. L. Fischer, Judge. Action by Eliza Fowler against the city of Kansas City. Judgment for defendant on demurrer, and plaintiff brings error. Affirmed. Argued before SMITH, CUNNINGHAM, and GREENE, JJ. Winfield Freeman, for plaintiff in error. T. A. Pollock and M. J. Reitz, for defendant in error. CUNNINGHAM, J. The questions presented in this case arise out of the sustaining of a demurrer by the court below to the petition of the plaintiff in error. The petltion alleged that the city of Kansas City was a municipal corporation; that plaintiff was the owner of a house and frame stable at No. 832 Jersey avenue, within that city, in which on the 6th day of June, 1899, was 68 P.-3 a large amount of valuable furniture, clotbing, and household goods belonging to her, and "that the said defendant city on the said day, June 6, 1899, without legal authority, and without instituting any condemnation proceedings, without any notice to the plaintiff, and without her consent or knowledge, and in her absence from said premises, by its officers and agents and servants, entered upon the said premises, and set fire to and completely destroyed all of the buildings and personal property thereon; that one Dr. F. P. Clark was duly appointed by the mayor and council of the said defendant city as city physician and health officer, and at said date was acting as such, and in that capacity recommended to the health committee that the buildings at, and personal property at, No. 832 Jersey avenue could not be properly fumigated, and, as such health officer, advised said health committee that the building and personal property on said premises be removed and burned; that said health committee was com posed of diverse members of the city council of said defendant city, who were duly appointed and authorized and acting as such health committee at the said date; and said plaintiff says that the health committee, with one Larkin H. Norman, chief of the fire department of the said defendant city, and acting on the advice of the said Clark as such health officer, and upon the advice of one Thos. A. Pollock, city counselor of the defendant city, wrongfully and unlawfully entered upon the premises of the plaintiff on the said 6th day of June, 1899, and took possession thereof for and on the part of the said defendant city, without condemnation proceedings and without the consent of the plaintiff, and carried away large amount of the personal property be longing to the said plaintiff, and permanently deprived her of the use and enjoyment of same, and also set fire to and destroyed the buildings upon the said premises, and all of the personal property left thereon." The above are all the vital allegations of plaintiff's petition. Do they allege a cause of action against the city? The court below held not, and we are constrained to affirm that holding. It will be noted, while there are general allegations that these acts were done by the city, the detailed statement shows what the facts were, how and by whom the wrongful acts were accomplished. Dr. Clark, who was city physician, advised the health committee that the property be destroyed; and the health committee, with Norman, chief of the fire department, acting upon the advice of the health officer and the city counselor, did the complained-of acts. This detailed statement does not bear out the allegations that the city itself did these acts. It is not alleged in the petition that any of these acts of the health officer or health committee or chief of the fire de partment or of said city council were order ed or approved by the city council. It does not show that there was any general or special authority from the city council to destroy any property whatever. It does not show that these officers, or any of them, had been authorized or in any way empowered to do these acts by the authority of the city. The mere fact that these gentlemen who destroyed plaintiff's property were city officers of various grades and kinds does not necessarily or even inferentially make such city liable for their wrongful acts. Neither the allegation that Clark had been appointed city physician and health officer, and was at the time acting as such, nor that the health committee of the council were acting as such health committee at said date, is an allegation that the wrongful act complained of was the act of the city. A municipal corporation does not become liable for the torts of its officer simply because he holds such office, or is acting as such officer. To bind the city, the act must have been done by the authority of the city, or at least in the performance of some official act under the authority of the city. No such authority is here pleaded. The petition presents no different phase than it would have presented had the allegation been that Dr. Clark, city physician and health officer, while acting in such capacity, had assaulted and beaten the plaintiff on the street. Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490; City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949. In City of San Antonio, v. White (Tex. Civ. App.) 57 S. W. 858, where the mayor, police force, and city physician seized a hotel and quarantined yellow fever suspects therein, it was held that the city was not liable for these acts of its officers, where such acts were not authorized or ratified by the city council. In this case the following language was used: "A fact that is essential to the city's liability in cases of this kind is wanting, viz., the fact that the city was, or has made itself, a party to the trespass. There is absolutely no evidence from which it can be found that the city directed or has ratified the proceedings. A city is not liable for acts of its health officers or for malfeasance and misfeasance in the line of their public duties. We are of the opinion that, at least without some testimony connecting the corporation with the transaction complained of, either by showing its previous direction or participation therein, or ratification, there is no basis for any claim or liability against it." We presume, from the brief of plaintiff in error, that the question sought to be raised by the petition was whether the city might summarily and without investigation or condemnation destroy private property for the purpose of protecting the public health, without being liable to the owner of such property in the value thereof. But we do not think that the petition presents this question. * * The judgment of the court below will be affirmed. All the justices concurring. (64 Kan. 612) SCHOOL DIST. NO. 76, RENO COUNTY, SCHOOL DISTRICT- ANNEXATION VALIDITY 1. Where territory was for several years known and designated by county officers and the public generally as school district No. 24, and so described on the tax rolls, an act of the legislature attaching another district to it, in which it was designated as district No. 24, will not be declared void for uncertainty, although a large part of district No. 24 was at the time within the limits of a city of the second class, and its affairs administered and controlled by the board of education of such city. 2. The power conferred on a city council by section 6313, Gen. St. 1901, to approve the annual tax levies made by the board of education of a city of the second class, is not to be construed as a grant of authority to be exercised on behalf of the city. Councilmen, when considering such levies, act as ex officio members of the board of education, and are not engaged in the performance of municipal functions. (Syllabus by the Court.) Application by school district No. 76 for writ of mandamus against C. A. Ryker, county treasurer. Judgment for respondent. Argued before SMITH, CUNNINGHAM, and GREENE, JJ. Vandeveer & Martin, for plaintiff. Carr W. Taylor (J. U. Brown, of counsel), for defendant. SMITH, J. School district No. 76, of Reno county, seeks in this proceeding to compel the county treasurer to pay over to it taxes collected by him for school purposes for the year 1900 on property included within the boundaries of that district before the passage of chapter 338 of the Laws of 1901. The relevant parts of the act referred to read: "Section 1. That school district number 76, Reno county, Kansas, be and the same is hereby disorganized, and the territory comprising said district number 76 be and the same is hereby attached to and made a part of school district number 24. "Sec. 2. That the property and funds belonging to said district number 76 shall, after the publication of this act, become the property of school district number 24." It seems that at the time of the passage of this act there was not in fact any school district in Reno county legally known as No. 24. The territory comprising the city of Nickerson, a city of the second class, when it was referred to in connection with school matters, has been uniformly designated as district No. 24. The agreed facts in the case are: "That the city of Nickerson and several sections of land beyond its corporate limits constituted school district No. 24 before said city became a city of the second class, and was such school district No. 24 at the time said city became a city of the second class, in the year 1888; and that ever since said district has been recognized as said school district No. 24 by the school board or board of education of the city of Nickerson, and by the county superintendent, the county clerk, and the county treasurer of Reno county, Kansas; and that all moneys received and paid out by the county treasurer for said district have been received and paid out in the name of school district No. 24; and that during all of said time said district has been carried on the rolls of Reno county, Kansas, as school district No. 24." To the parties in interest there can be no uncertainty concerning the geographical division of territory to which district No. 76 was attached by the statute above set out. It is an old maxim of the law that, "That is sufficiently certain which can be made certain." Broom, Leg. Max. p. 555. It is contended by counsel for the plaintiff that the act of 1901 disorganizing district No. 76 and attaching it to district No. 24 is, in its effect, a special act, conferring corporate powers not only on the board of education, but also on the city of Nickerson. Section 6313, Gen. St. 1901, which has relation to public schools in cities of the second class, reads: That the board of education shall on or before the fifteenth day of August of each year levy a tax for the support of the schools of the city for the fiscal year next ensuing, not exceeding in any one year fifteen mills on the dollar, on all personal, mixed and real property within the district, which is taxable according to the laws of the state of Kansas, which levy shall be approved by the city council; and when so approved the clerk of the board shall certify to the county clerk, who is hereby authorized and required to place the same on the tax roll," etc. To support their argument, counsel refer to the case of State v. Addis, 59 Kan. 762, 54 Pac. 1065, where it is held: "Before a levy of taxes for the support of schools by a board of education in a city of the second class becomes effective, it must have the approval of the city council,-not a mere perfunctory approval, but the intelligent assent and concurrence of that body." While it is true that the city council possesses a veto power on the action of the board of education in the matter of levying taxes on the territory formerly comprising district No. 76, yet we do not interpret the act of 1901, which brings the school district within the scope of such authority, as an act conferring corporate powers. It is no objection to the validity of the act that corporate powers are conferred on the board of education by a special law. The board of education is a quasi corporation. Beach v. Leahy, 11 Kan. 23. The city council, in whatever it does concerning the levy made by the board of education for school purposes, does not act for the city, but advisory to the members of the board of education. The members of the city council, when considering tax levies made by the board of education for school purposes, act ex officio as members of the school board. The same power which the council possesses might have been conferred by law on the county clerk, or any board other than the governing body of an incorporated city. The county superintendent of public instruction might have been vested with it. The power which the council exercises in the respect mentioned is not a municipal function. It does not pertain to authority which is to be exercised for and on behalf of the city. Judgment will be entered in favor of the respondent. All the justices concurring. STATE v. HICKOX. (64 Kan. 650) (Supreme Court of Kansas. March 8, 1902.) INTOXICATING LIQUORS INTERSTATE COMMERCE-CONSTITUTIONAL LAW. A state law which places substantial restrictions upon the taking or soliciting of orders by a nonresident salesman for intoxicating liquors, to be purchased in and imported from another state, where such orders are subject to approval or rejection at the election of the nonresident merchant, is a burden upon interstate commerce; and, so far as the act applies to such cases, it is repugnant to the provisions of the federal constitution giving congress the power to regulate interstate com merce. (Syllabus by the Court.) In banc. Appeal from district court, Elk county. A. L. Hickox was convicted of violating the intoxicating liquor law, and appeals. Reversed. J. C. Rosenberger, for appellant. A. A. Godard, Atty. Gen., J. S. West, Asst. Atty. Gen., and W. A. McCausland, for the State. JOHNSTON, J. A. L. Hickox was prosecuted for taking orders for intoxicating liquors in violation of the prohibitory liquor law, and was convicted upon two counts. The facts in the case are undisputed, and show that Hickox was a traveling salesman for Bernard Holzmark, a liquor merchant of Kansas City, Mo. Holzmark was a resident of Missouri. His office and place of business were in that state, and at no time had he any liquors for sale or other purpose in Kansas. Hickox was also a resident of Missouri, whose only authority was to solicit orders for liquors from persons in Kansas and elsewhere, which were to be transmitted to Holzmark, in Missouri, to be accepted or rejected as he might elect. In October, 1900, Hickox went to Elk county, Kan., and took orders for liquors from W. A. Kindall and George Buel, neither of whom were authorized to sell intoxicating liquors. They ordered the liquors for their personal use, and not for sale to others; and both of them were regular customers of Holzmark, and had frequently sent orders by mail to Holzmark for liquor in gallon packages, without solicitation by any one. When the orders referred to were taken from Kindall and Buel, no money was paid or accepted by Hickox, but the orders were sent to his employer, in Missouri, for approval or rejection. The orders were accepted by Holzmark, and the liquors were selected from the stock in Missouri, placed on board the cars in Missouri for continuous interstate shipment to Kindall and Buel, in Kansas, who in due time received the same. All orders taken by Hickox were taken subject to the approval of Holzmark at his business house in Kansas City, Mo., and he expressly reserved the right to reject any order which might be taken by Hickox. At the time Hickox took the orders, he did not deliver any liquors to the persons ordering the same, nor did he have intoxicating liquors in Kansas in his possession or under his control which he could have used for such purpose. The prosecut.n is based solely on section 12, c. 149, Laws 1885, which is as follows: "Any person who shall take or receive any order for intoxicating liquors from any person in this state other than a person authorized to sell the same as in this act provided, or any person who shall directly or indirectly contract for the sale of intoxicating liquors with any person in this state other than a person authorized to sell the same, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished therefor as provided in this act for selling intoxicating liquors." The single question presented by this appeal is whether the quoted section, as applied to the admitted facts, is in violation of section 8 of article 1 of the constitution of the United States, providing that the congress shall have sole power to regulate commerce among the several states. This power is national in its character, and therefore must be national in its operation. As to interstate commerce, it is said that the United States are but one country, and therefore there can be but one system and one control, and, in the nature of things, that control must be exclusive. In Brennan v. City of Titusville, 153 U. S. 289, 14 Sup. Ct. 829, 38 L. Ed. 719, Mr. Justice Brewer said: "We think it must be considered, in view of a long line of decisions, that it is settled that nothing which is a direct burden upon interstate commerce can be imposed by the state without the assent of congress, and that the silence of congress in respect to any matter of interstate commerce is equivalent to a declaration on its part that it should be absolutely free." The state is without power, therefore, to legislate in respect to such commerce; and legislation as to domestic concerns which places restrictions or impositions on interstate commerce is necessarily inoperative and void to the extent of such restrictions and impositions. Conceding then, as it must be, that the exclusive power over national commerce is confided to the federal government, and that a state cannot, in the exercise of its police or other powers, interfere with the supreme control of congress, we have the question whether the restrictions upon taking orders for liquors to be sold and shipped from another state into Kansas is a regulation of commerce. On the side of the state it is argued that the statute in question does not purport to affect interstate commerce, nor to regulate the conduct of any one beyond the boundaries of the state, but that it aims only to punish acts done within the state deemed to be deleterious to the welfare of the people, and that, at most, it can have but an incidental effect on commerce. In contending that the section is not an interference with interstate commerce, the assistant attorney general quaintly says: "It does not seek to prevent the man from Missouri from shipping his legitimate article of commerce' into Kansas. It simply says that while we may have to submit to the importation and energizing power of the commodity, we shall insist that its vendor stay on his own side of the state line, and not send or come over here and transact the business which results in the importation. We try to love our neighbors, but we make no profession of loving them so much better than ourselves as to permit them to do what we refrain from doing on our own soil." And contending, further, that intoxicating liquor is not on a footing with ordinary commodities, and is not to be regarded as an article of commerce, he says: "Whisky in the abstract, whisky generically, is by the decree of public sentiment quarantined along with smallpox, leprosy, and cholera. It is an Ichabod, forsaken, cast out, and despised, -a Czolgosz among the commodities of commerce,—and yet we are enjoined to give it a place with the staples and staff of life, and catalogue it with beef and beans and bread." The effect of burdens and restrictions upon the soliciting of orders by persons coming into the state for that purpose, for articles to be imported from another state, was up for consideration in City of Ft. Scott v. Pelton, 39 Kan. 764, 18 Pac. 954; and it was determined that the imposition of a license tax upon a commercial drummer or other person, of another state, for offering to sell goods within the city by sample, where the goods are to be brought from another state, and where the owner of the goods does not reside within the state, was a restriction upon interstate commerce, and that an ordinance creating such restriction was void. This case was based on Robbins v. Taxing Dist., 120 U. S. 494, 7 Sup. Ct. 592, 30 L. Ed. 694. There a license was imposed on drummers for offering for sale or selling goods by sample, and the statute provided for the prosecution and punishment of those who conducted such business without such license. nonresident drummer for a house in another state was arrested, and the question arose as to whether the solicitation of business and the taking of orders constitute an element of A interstate commerce, and whether the tax imposed was an unconstitutional restriction upon the same. It was there held that such a restriction affects the very foundation of interstate trade; that in most cases it was the only practical way for merchants or manufacturers to obtain trade in other states, and "to say that such a tax is not a burden upon interstate commerce is to speak, at least, unadvisedly, and without due attention to the truth of things." In a number of later cases the federal supreme court has taken the view that the right to solicit or take orders for interstate business. constitutes a part of interstate commerce, and that a state is without power to place a restriction or burden on such business. Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1, 32 L. Ed. 368; Stoutenburgh v. Hennick, 129 U. S. 141, 9 Sup. Ct. 256, 32 L. Ed. 637; Lyng v. Michigan, 135 U. S. 161, 10 Sup. Ct. 725, 34 L. Ed. 150; McCall v. California, 136 U. S. 104, 10 Sup. Ct. 881, 34 L. Ed. 392; Vance v. W. A. Vandercook Co., 170 U. S. 438, 18 Sup. Ct. 674, 42 L. Ed. 1100. The taking of orders for ordinary commodities to be sold and shipped here from another state being interstate commerce, the next question is whether intoxicating liquor is to be regarded as a legitimate article of interstate commerce. The contention of the state is that liquors stand on a different footing from other commodities; that, in the exercise of its police power, the state has prohibited the sale or negotiation of sale of liquor, except by certain druggists for certain purposes, and that liquors, being placed under the ban of the law, are taken out of the sphere of commerce in Kansas; and that the commercial power does not operate upon them. There are strong arguments in favor of the position of the state, as is well illustrated in the dissenting opinions upon the subject in the federal supreme court. If the question remained open for our determination, the writer would hold (and perhaps the court) that there is no real conflict between the federal power to regulate commerce and the police power reserved to the states. While commercial power is exclusive within its scope, it was never intended to curtail the police power of a state, exercised in good faith for the protection of the health and morals of the people. As was said in Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819, "in conferring upon congress the regulation of commerce, it was never intended to cut the states off from legislating on all subjects relating to the health, life, and safety of their citizens." It is recognized that selfpreservation belongs to every sovereignty, as well as self-defense to every individual, and that in the exercise of that power it is competent for a state, if it finds the general use of intoxicating liquor detrimental to the peace, health, and morals of the people, to prohibit the sale of the same within its limits by residents or nonresidents. The differ ence between liquors and ordinary commodities was never more strongly stated than by the supreme court of the United States in Mugler v. Kansas, 123 U. S. 662, 8 Sup. Ct. 297, 31 L. Ed. 205, where they say: "We cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the country are in some degree, at least, traceable to this evil. If, therefore, a state deems the absolute prohibition of the manufacture and sale within her limits of intoxicating liqucrs, for other than medical, scientific, and manufacturing purposes, to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives." If, as is there decided, a state may enact such a law without infringing the constitutional limitations as to liberty and property, and may determine and declare that such liquors are destructive of the peace and good order of society, why are not such liquors taken out of the sphere of interstate commerce? Goods infected with disease, and meats and provisions unfit for use, as well as other articles the use of which is attended with danger, may be excluded by a state without trenching on the commercial power, upon the theory that they are not legitimate subjects of commerce; and as Justice Harlan said in Bowman v. Railway Co., 125 U. S. 515, 8 Sup. Ct. 710, 31 L. Ed. 700: "If, consistent ly with the constitution of the United States, a state can protect her sound cattle by prohibiting altogether the introduction within her limits of diseased cattle, she ought not to be deemed disloyal to that constitution when she seeks by similar legislation to protect her people and their homes against the introduction of articles which are in good faith, and not unreasonably, regarded by her citizens as laden with infection more dangerous to the public than diseased cattle, or than rags containing germs of disease." The power of the state to prohibit the manufacture and sale of liquors being acknowledged, it would seem to the writer that such liquors were taken out of the legitimate subjects of commerce within the state of Kansas, and that a restriction on the introduction of them did not trench on the commercial power of the federal government. A very different view, however, has been taken by the supreme court of the United States, which is a controlling authority on questions of this character. In the Bowman Case, supra, the exclusive power to regulate commerce confided to congress is held to imply the right to determine what are the legitimate subjects of commerce, and that it is not competent for a state to determine what is an article of lawful commerce in the state, nor to exclude intoxicat |