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Distinguished in First Nat. Bank v. Swan, 3 Wyo. 375, 23 Pac. 751, where defendant made no attempt to rebut presumption that voluntary conveyance by one indebted was fraudulent.

Fraudulent conveyance. When conveyance is set aside as void as to existing creditors, all creditors, prior and subsequent, share in fund pro rata, p. 36.

Cited and relied on in Bassett v. McKenna, 52 Conn. 442, holding where conveyance is set aside as fraudulent, as to existing creditors, the equities of subsequent creditors are superior to those of grantee. Cited with approval in Platt v. Mead, 9 Fed. 98, and Lilienthal v. Drucklieb, 92 Fed. 758, where conveyance is made with actual intent to defraud existing creditors, and grantee participates in fraud, subsequent creditors are entitled to relief equally with prior.

Distinguished in Lee v. Hollister, 5 Fed. 760, where subsequent creditors were held not entitled to any share.

Miscellaneous. Cited in Rosenberg v. Frank, 58 Cal. 405, as to meaning of "pro rata."

20 Wall. 36-45, 22 L. 282, PACIFIC R. R. CO. v. MAGUIRE.

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Statutes Grants by State to corporations, when ambiguous, are to be construed in favor of State, p. 42.

Cited and principle affirmed in Memphis, etc., Ry. Co. v. Berry, 41 Ark. 446, in discussion as to whether State had contracted to exempt property of railroad company from taxation; Memphis Gas Co. v. Shelby County, 109 U. S. 401, 27 L. 977, 3 S. Ct. 206, holding exemptions from taxation must be in clear and explicit words.

Distinguished in Winona, etc., Ry. v. County of Deuel, 3 Dak. Ter. 16, 12 N. W. 565, when contract is unambiguous, it should be given same effect as contract between private persons.

Taxation.- Missouri act of December 25, 1852, providing that Pacific railway should be exempt from taxation until road was completed and had been in operation for two years, unless dividends were sooner declared, created a contract between the State and railway company, p. 42.

Cited and relied on in Hewitt v. New York, etc., Ry. Co., 12 Blatchf. 472, F. C. 6,443, where a similar statute was construed in same manner; also Oliver v. Memphis, etc., Ry. Co., 30 Ark. 131, Winona, etc., Ry. Co. v. County of Deuel, 3 Dak. 13, 12 N. W. 564, Richmond, etc., Ry. Co. v. Board, 74 N. C. 510, and Railroad Co. v. Hicks, 9 Baxt. 450, all holding a subsequent statute or constitutional provision, taking away this privilege, impairs the obligation of a contract and is, therefore, invalid. Cited incidentally in Bailey v. Magwire, 22 Wall. 226, 22 L. 852.

Modified in Railroad v. Alsbrook, 110 N. C. 162, 14 S. E. 658, holding grant of exemption from taxation, without some consideration therefor, constitutes a privilege which may be recalled at pleasure.

Constitutional law.

Clause in Missouri Constitution of 1865, providing for levying of tax on gross receipts of Pacific railroad, impaired obligation of a contract of 1852, exempting the company, provisionally, from taxation, p. 42.

Cited and applied in Mechanics' Bank v. City of Kansas, 73 Mo. 558, holding State cannot withdraw a statutory exemption from taxation once given, unless right so to do is reserved; to same effect, State v. Walsh, 31 Neb. 477, 48 N. W. 265; opinion, 58 N. H. 624, contract valid when made, cannot be invalidated by amendment to Constitution.

Distinguished in Hewitt, v. New York, etc., Ry. Co., 12 Blatchỉ. 477, F. C. 6,443, where State in granting charter to corporation had reserved right to repeal clause exempting corporation property from taxation; People v. Commissioners, 82 N. Y. 466, on ground, statute in question contained no express exemption from taxation, and none would be inferred.

Taxation.-State legislature, when not restricted by Constitution, may exempt from taxation such property as it may deem expedient, p. 43.

Reaffirmed in Oliver v. Memphis, etc., Ry. Co., 30 Ark. 130, where legislature had exempted property of railroad corporation from taxation; dissenting opinion in State v. Morgan, 28 La. Ann. 493, the majority holding the purchaser of a railroad, which was by statute exempt from taxation, did not acquire this right or franchise of exemption; Dow v. Railroad, 67 N. H. 48, 36 Atl. 534, but exemption, when claimed, must be shown by clear and unambiguous language; Railroad Co. v. Hicks, 9 Baxt. 446, approves the rule. See monographic note, 72 Am. Dec. 684.

20 Wall. 46-64, 22 L. 287, NORTH MO. R. R. v. MAGUIRE.

Taxation.- Power of taxation resides in States, as an incident and attribute of sovereignty, p. 60.

Approved in Western Union Tel. Co. v. Mayer, 28 Ohio St. 533, where constitutionality is affirmed, of State statute, imposing tax on gross receipts of foreign corporation doing business within State; Anderson v. Brewster, 44 Ohio St. 581, 9 N. E. 686, in discussion as to constitutionality of act providing for assessment of tax upon business of trafficking in intoxicating liquors. See note, 55 Am. Dec. 288.

Distinguished in Worth v. Railroad, 89 N. C. 299, 45 Am. Rep. 686, charter providing railroad should be exempt from any public charge or tax whatever.

Taxation. Taxing power of State is never presumed to be relinquished, consequently intention to relinquish must be shown in clear and unambiguous terms; Missouri act of 1865, construed and held not to exempt North Missouri railroad from taxation, p. 61.

Reaffirmed in Mumford v. Sewall, 11 Or. 70, 50 Am. Rep. 464, 4 Pac. 586, holding State may tax property which was exempt from taxation at time it was acquired, as, for instance, mortgages. Cited, arguendo, in Grand Lodge v. New Orleans, 44 La. Ann. 665, 11 So. 151, upholding qualified exemption.

20 Wall. 64-72, 22 L. 315, OREGON STEAM NAV. CO. v. WINSOR. Contract, in general restraint of trade, is illegal and void, p. 66. Cited and principle applied in Fox Steel Co. v. Schoen, 77 Fed. 31, where an agreement between manufacturers that one should not use pressed metal in the manufacture of truck frames, was held an unreasonable restraint of trade; Western U. Tel. Co. v. Am. Tel. Co., 65 Ga. 163, 38 Am. Rep. 783, holding agreement, between railroad company and telegraph company, whereby latter was given exclusive right to occupy right of way of former, for purpose of erecting telegraph poles and other purposes in connection with business of transmitting messages, invalid; Consumers' Oil Co. v. Nunnemaker, 142 Ind. 565, 51 Am. St. Rep. 196, 41 N. E. 1050, holding agreement between seller and purchaser of retail oil business, that former would not re-engage in same business within limits of State, except in one city specified, is void; Texas, etc., R. Co. v. Southern, etc., R. Co., 41 La. Ann. 982, 17 Am. St. Rep. 455, 6 So. 892, where agreement between competing railroads to divide earnings, was held void; Bishop v. Palmer, 146 Mass. 474, 4 Am. St. Rep. 341, 16 N. E. 303, where agreement between purchaser and seller of business, that latter would not enter into like business anywhere within period of five years, was held void; to same effect in Gamewell Tel. Co. v. Crane, 160 Mass. 56, 39 Am. St. Rep. 464, 35 N. E. 99, 22 L. R. A. 676, and n., such an agreement should be limited as to place; Wiggins Ferry Co. v. Chicago, etc., Ry. Co., 5 Mo. App. 372, where agreement between carriers, which resulted in placing impediments in way of shippers, was held void; Ford v. Gregson, 7 Mont. 98, 14 Pac. 662, where contract between parties, owners of water rights, that neither should dispose of same without consent of others, was held contrary to public policy; Herreshoff v. Boutineau, 17 R. I. 6, 33 Am. St. Rep. 853, 19 Atl. 713, 8 L. R. A. 471, and n., holding an agreement between a teacher and his employer, that former would not teach within State for a period of one year from time of leaving employment of latter, to be unreasonable; Field Cordage Co. v. National Cordage Co., 6 Ohio C. C. 620, holding contract, in form a lease of machinery, contrary to public policy and void where parties executed same for purpose of restraining trade and creating a monopoly; West Virginia Transp. Co. v. Pipe-Line Co., 22 W. Va. 622, 623, 46 Am. Rep. 533, 534, holding contract, giving exclusive right of way and privilege of laying tubing for transporting oil over a tract of land, void as an unreasonable restraint of trade. Monographic note, reviewing authorities, 92 Am. Dec. 752, 759.

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Contracts. In order that contract in restraint of trade be not unreasonable, restraint imposed must not be larger than is required for necessary protection of party with whom contract is made, p. 67.

Cited, arguendo, in In re Greene, 52 Fed. 118, where act of Congress of July 2, 1890, in relation to monopolies, is construed, holding no precise boundary can be laid down as to when restraint would be reasonable.

Contracts.-Theory upon which contracts in restraint of trade are held invalid, discussed, p. 68.

This discussion has been cited in a number of cases, relating tc the general subject: Gibbs v. Baltimore Gas Co., 130 U. S. 409 32 L. 984, 9 S. Ct. 557, holding courts will refuse to enforce contracts which impose a restraint on trade, if such restraint, to any extent, be prejudicial to the public interests; to same effect is Central Transportation Co. v. Pullman Co., 139 U. S. 54, 35 L. 66, 11 S. Ct. 486, where a contract not to engage in the business of manufacturing, using or hiring of sleeping cars for a period of ninety-nine years, was held void; dissenting opinion in United States v. Freight Assn., 166 U. S. 350, 41 L. 1030, 17 S. Ct. 562. reversing S. C., 58 Fed. 72, 74, 19 U. S. App. 36, 24 L. R. A. 84, 85, which affirms S. C., 53 Fed. 450, the majority holding an agreement between different railroads, regulating freight rates, to be in restraint of trade and invalid; Oliver v. Gilmore, 52 Fed. 567, 568, holding contract between manufacturers, whereby one agrees not to manufacture a particular article, in consideration other will pay him certain percentage of profits derived from sale of such article manufactured by him, is void. Cited, arguendo, in Carr v. Whitebreast Fuel Co., 88 Iowa, 151, 55 N. W. 210, no special application; National Benefit Assn. v. Union Hospital Co., 45 Minn. 276, 47 N. W. 807, 11 L. R. A. 440, and n., as a leading case on general subjects; Watkins v. Morley, 2 Tex. App. Civ. 635.

Contracts in restraint of trade must be adjudged by the facts and circumstances surrounding each particular case, p. 68.

Cited to this effect in Fowle v. Park, 131 U. S. 97, 33 L. 74, 9 S. Ct. 662, where a contract to sell a particular patent medicine within a specified region only, and not to sell it below a certain rate or price, was held valid. Approved, arguendo, in separate opinion, in Beal v. Chase, 31 Mich. 530, and West Virginia Transp. Co. v. Pipe-Line Co., 22 W. Va. 619, 46 Am. Rep. 530.

Contracts in partial restraint of trade are valid, if reasonable, and there be consideration to support same; therefore, stipulation in contract of sale of vessel, for use in Oregon, that vessel should not run on California waters for ten years, is valid, pp. 67, 72.

Cited and principle applied in Chicago, etc., Ry. Co. v. Pullman Co., 139 U. S. 89, 35 L. 101, 11 S. Ct. 494, holding contract between

railroad company and sleeping-car company, that former would for period of fifteen years run latter's cars over its road exclusively, is valid; Carter v. Alling, 43 Fed. 214, holding contract between travelling salesman and his employer, that former will not engage in service of business competitor within three years of time of leav ing service of latter, is valid; Am. Strawboard Co. v. Haldeman Co., 83 Fed. 624, 54 U. S. App. 428, holding covenant in lease of paper mill, that lessee would not, during term, manufacture a certain kind of paper, being manufactured by lessor, is valid, and binds assignees of lessee; Hitchcock v. Anthony, 83 Fed. 781, 54 U. S. App. 445, holding agreement between seller and purchaser of certain property, that it should not be used for carrying on particular business, was binding; Moore Hardware Co. v. Towers Co., 87 Ala. 210, 13 Am. St. Rep. 25, 6 So. 43, where agreement between competing business firms, that in consideration of one buying the stock of the other, the latter would desist from further competition within a specified district, was held valid; Hursen v. Gavin, 162 Ill. 380, 44 N. E. 735, holding contract, by retiring member of firm, not to engage in similar business for five years, within limits of city named, made upon sale of his business to his co-partner, is valid; Newell v. Meyendorff, 9 Mont. 260, 18 Am. St. Rep. 740, 23 Pac. 334, 8 L. R. A. 441, where contract between manufacturer and dealer in cigars, that latter would sell no cigars in State other than those manufactured by former, was held not to be in restraint of trade; Diamond Match Co. v. Roeber, 106 N. Y. 484, 485, 60 Am. Rep. 469, 471, 13 N. E. 422, 423, where covenant between seller and purchaser of business, that former would not engage in like business within United States, except in States of Nevada and Montana, for period of ninety-nine years, was held valid; Cowan v. Fairbrother, 118 N. C. 412, 415, 54 Am. St. Rep. 736, 738, 24 S. E. 213, 214, 32 L. R. A. 835, and n., covenant by seller of newspaper that he would not re-engage in like business within same State, held valid; dissenting opinion in Tardy v. Creasy, 81 Va. 567, the majority holding contract in question void; Palmer v. Toms, 96 Wis. 369, 71 N. W. 654, where covenant on part of seller of business that he would not enter into like business in same city within five years, was held binding. Approved in Anchor Electric Co. v. Hawkes, 171 Mass. 106, 68 Am. St. Rep. 407, 50 N. E. 511, 41 L. R. A. 192, facts involved. Cited, arguendo, in dissenting opinion in United States v. E. C. Knight Co., 156 U. S. 24, 39 L. 333, 15 S. Ct. 258; also in Dueber Watch-Case Co. v. Howard Co., 66 Fed. 643, 35 U. S. App. 16, in discussion, as to whether an agreement between watch manufacturers was in restraint of trade, within meaning of anti-trust act of July 2, 1890; United States v. Addyston Pipe Co., 85 Fed. 282, 54 U. S. App. 747, and Watkins v. Morley, 2 Tex. App. Civ. 636, without special application; Richards v. Am. Desk Co., 87 Wis. 513, 58 N. W. 789, the contract, to be valid, must only afford protection to interests

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