city council of the authority granted by the charter, and was therefore void. But while upholding the ordinance as not unreasonable, the Court states the rule applicable to this class of cases with clearness and precision: "If this ordinance is unequal, oppressive and unjust; if it be not a legitimate regulation of the vending of meat, but partial and unfair, establishing monopolies, or subjecting either the seller or purchaser to unnecessary inconvenience or expense, it certainly should not be upheld. In assuming, however, the right to judge of the reasonableness of an exercise of corporate power, courts will not look closely into mere matters of judgment where there may be a reasonable difference of opinion. It is not to be expected that every power will be always exercised with the highest discretion, and when it is plainly granted a clear case should be made to authorize an interference on the ground of unreasonableness." This, we think, is the true rule; and it proceeds upon the theory, that under a general grant of power to a municipal corporation to pass ordinances on a given subject, it will be presumed that it was not intended to clothe it with power to pass an ordinance which is clearly unreasonable, unjust, oppressive, partial and unfair, or which contravenes public policy, or is in restraint of trade. But an ordinance will not be pronounced invalid by the Courts on either of these grounds, unless in a plain case. It is, however, for the Court, and not for the jury, to pass upon the validity of the ordinance. (Dillon on Mun Corp., § 261). Tested by these rules, the "Sample-sellers' Ordinance," now under review, must be held to be inoperative and void. It is obnoxious to all the objections above enumerated. It is flagrantly unjust, oppressive, unequal and partial. It discriminates between merchants in the same place, dealing in the same kinds of merchandise, for no better reason than that one deals in goods either actually in the corporate limits, or in transitu under a bill of lading, while the other deals in goods outside the corporate limits, and not in transitu, under a bill of lading. If this kind of discrimination be legitimate and valid, there is no reason why a merchant having his goods in a warehouse on a particular street might not be required to pay a license fee of $10,000, while another merchant doing the same kind of business in the same city, and with his goods stored on another street, would be required to pay only $10. It also contravenes the public policy of the State, in that it obstructs commercial intercourse between the principal seaport city of the State and the interior; the policy being to foster and encourage commercial intercourse and a free interchange of commodities between the several sections. It is in restraint of trade, in that it exacts a heavy tribute from the owner of goods outside the corporate limits and not in transitu, as a condition on which he will be allowed to offer them for sale in the principal city and seaport of the State. But we need not multiply arguments to show the infirmaties of this ordin ance. In the case of Mayor, etc., vs. Althrop, 5 Coldwell, (Tenn.) R., 554, the Supreme Court of Tennessee, in an able and learned opinion, discuss the validity of an ordinance very similar to that now under review, and hold it to be void on the grounds to which we have adverted. We are of opinion that the so-called "Sample Sellers' Order" is invalid, and that the prisoner is illegally restrained of his liberty. Ordered that he be discharged from custody. CROCKETT, J. RHODES, J. We concur : NILES, J. MCKINSTRY, J. U. S. Circuit Court. DISTRICT OF CALIFORNIA. THEODORE LEROY vs. JOHN H. REEVES. 1. VOID TAX DEED. -A tax deed of a sheriff made in pursuance of a sale under a judgment for taxes reciting a sale of real property to the highest bidder, where the statute only authorized a sale of the smallest portion of the property which any one would take and pay the judgment and costs, is void upon its face. 2. TAX SALE TO PARTY IN POSSESSION INEFFECTUAL.-Where a party is in possession of and claiming title at the time when a tax levy is perfected, and the tax becomes delinquent, and when judgment for the tax is rendered, it is his duty to pay the tax. He cannot under such circumstances acquire an outstanding title by neglecting to pay the tax on judgment, and purchasing at the sale for taxes under the judgment. 3. STATUTE OF LIMITATIONS. DISABILITY.-Where a right of action to recover land accrues during the minority of the owner, the statute of limitations of California does not begin to run against the action till the owner attains majority. 4. SAME.-In such case the owner upon attaining majority may convey the land, and the grantee may maintain an action against the disseizer entering during the minority of the owner, at any time within five years after the disability terminates. SAWYER, CIRCUIT JUDGE. This is an action to recover possession of the east half of lot 7 in the block bounded by L and M and Fourth and Fifth streets in the city of Sacramento. On April 23, 1862 Mary A. Wallace acquired the title to the locus in quo., through sundry mesne-conveyances from John A Sutter the original grantee under a Mexican Grant. Said Mary A. Wallace was born on May 2, 1857. She consequently attained her majority in May 1875-eighteen being the age of majority in California for females. On May 6, 1876, she conveyed to the plaintiff, Le Roy. On December 23, 1864, the People of the State of California recovered a judgment for the sum $17.29 taxes for the year 1863, and $20.26 costs against said Mary A. Wallace, the premises in question, eight lots in block between X, Y, 21st and 22d streets, and eight lots in block between G, H, 28th and 29th streets. The lots are wholly disconnected, and lie in different parts of the city. The judgment roll does not show whether the assessments. and taxes were levied separately, or as a single tax upon the whole as one lot. The allegations of the complaint, and the judgment are for a single sum in solido. A certificate copy of the judgment and order of sale having been issued to the Sheriff, he sold thereunder the whole of said premises in a body to Eli Mayo for $48.15 on February 6, 1865. On August 7, 1865, there having been no redemption from the sale, the Sheriff executed and delivered to Mayo, the purchaser, a deed of the entire premises so sold, in which deed he states. the sale to Mayo for $48.15, and recites therein, "he being the highest bidder, and that being the largest sum bid for said property at such sale;" and no where stating any offer to sell any less amount than the whole. The deed is in the form of that adjudged void by the U. S. Supreme Court in French vs. Edwards 13, Wal. 506. On August 25, 1865, the purchaser, Mayo, procured from the Court a writ of assistance under said judgment and sale, and by authority of said writ of assistance on the next day, August 26, he was put in possession of the premises now in question by the Sheriff of the county. On August 6, 1866, the People recovered another judgment against the premises now in question and John Doe and Richard Roe being fictitious names for the sum of $12.05 taxes for the year 1865, and $19.93 costs. Upon a certified copy of this judgment and order of sale, the Sheriff again sold the premises in question to said Eli Mayo for $43.02; and there having been no redemption, the Sheriff executed a deed to said Mayo in pursuance of the sale, on March 25, 1867, in which it is recited he sold the premises "for the sum of 43.02, that being the amount of said judgment and costs, and the best bid therefor; and said land so sold being the smallest quantity that any purchaser offered to take and pay said judgment and costs." He does not, however, say, that he offered to sell to the party who would take the smallest part of the land, or any part less. than the whole. Said Mayo conveyed to the defendant, Reeves, on December 17,1875. The defendant Reeves claims title under those tax sales. He, also, sets up the statute of limitations, claiming that he and his grantor, Mayo, have been in possession claiming adversly under those deeds for a period of more than five years prior to the commencement of his action. The first tax sale and the Sheriff's deed in pursuance thereof require no discussion; for it is, already, authoritatively settled by the Supreme Court of the United States in French vs. Edwards that they are void upon the face of the deed, (13) Wal. 306). The sale and deed in that case arose in the same county under the same statute, and the deed was in form precisely simler to the one in question. In that case, also, the premises consisted of one continuous tract of land. In this the lots were in three different disconnected blocks, lying remote from each other in different parts of the city. The tax seems to have been levied in solido. At all events such was the judgment, and the sale appears to have been of the whole in solido as one lot. It may well be doubted whether a valid judgment could be rendered in this form charging the tax properly levied upon one lot, as a lien upon another distant and distinct lot, and enforcing it by a proceeding in rem against the latter. There was no personal service of process, so as to authorize a personal judgment against the owner; and the tax was not assessed against the owner by name. But, however this may be, the deed is void on the grounds fully stated in the case cited. It is insisted by the defendant's counsel, that the point upon the invalidity of the deed on its face cannot be insisted on, because no objection was made to the introduction of the deed in evidence. But the deed being in evidence the question arises as to its effect. The deed is a fact in the case; but it appears upon its face to be void. Hence it passes nothing to the defendant or his grantor. It might as well be claimed that a piece of blank paper put in evidence passed the title, because no objection was made to its introduction. There is nothing in this point. Conceding for the purposes of this case, that the second tax levy, judgment, sale, and deed are regular in form upon their |