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THE POLICE POWER is but another name for that authority which resides in every sovereignty to pass all laws for the internal regulation and government of the state necessary for the public wel. fare: People v. Budd, 117 N. Y. 1; 15 Am. St. Rep. 460; Champer v. Greencastle, 138 Ind. 339; 46 Am. St. Rep. 390. This power resides in the state in its sovereign capacity: Champer v. Greencastle, 138 Ind. 339; 46 Am. St. Rep. 390; and extends to all regulations affecting the lives, limbs, health, comfort, good order, morals, peace, and safety of society: State v. Heinemann, 80 Wis. 253; 27 Am. St. Rep. 34. But statutes passed in pursuance of the police power must have some relation to the end sought to be accomplished. Where the ostensible object is to secure the public comfort, welfare, and safety, the statute must appear to be adapted to that end. It cannot invade the rights of persons and property under the guise of a mere police regulation, when such is not the effect: Ritchie v. People, 155 III. 98; 46 Am. St. Rep. 315; Smiley v. MacDonald, 42 Am. St. Rep. 684. The boundaries of police power are not susceptible of precise defini. tion, and the courts, therefore, must, as each case is presented, determine whether it falls within or without the appropriate limits: People v. Budd, 117 N. Y. 1; 15 Am. St. Rep. 460. In enacting what shall be done by a citizen for the purposes of promoting the public healtb and safety, it is not usually necessary to the validity of the legisla. tion upon that subject that he shall be heard before he is bound to comply with the direction of the legislation: Health Department v. Rector, 145 N. Y. 32; 45 Am. St. Rep. 579. Compare People v. Board of Health, 140 N. Y. 1; 37 Am. St. Rep. 522. Police power may be delegated to municipal corporations: Walker v. Jameson, 140 Ind. 591; 49 Am. St. Rep. 222; Charleston v. Werner, 38 S. C. 488; 37 Am. St. Rep. 776; and cannot be possessed and exercised by a municipal corpora. tion, unless it has been delegated thereto by the legislature: Champer v. Greencastle, 138 Ind. 339; 46 Am. St. Rep. 390. The legislature bas power to provide for the safety of persons going over highways: State v. Yopp, 97 N. C. 477; 2 Am. St. Rep. 305; monographic note to State v. Goodwill, 25 Am. St. Rep. 890, on the Fourteenth Amend. ment, considered with relation to special privileges, burdens, and restrictions. The right to exercise police power cannot be parted with, or impaired by, contract: Jacksonville v. Ledwith, 26 Fla. 163; 23 Am. St. Rep. 558; monographic note to Butler v. Chambers, 1 Am. St. Rep. 615, on the power of the state to regulate or prohibit the sale or manufacture of articles. It rests solely within legislative discretion, inside of constitutional limits, to determine when public safety or welfare requires the exercise of the police power. Courts can interfere only when such exercise conflicts with the constitution; with the wisdom, policy, or necessity of such enactment they have nothing to do: Walker v. Jameson, 140 Ind, 591; 49 Am. St. Rep. 222. A railroad company, witbin the limits of a city, is subject to the police regulations and ordinances thereof: City etc. Ry. Co. v. Mayor, 77 Ga. 731; 4 Am. St. Rep. 106.
EVIDENCE.-JUDICIAL NOTICE will be taken of things that ought to be generally known: See monographic notes to Lanfear v. Mestier, 89 Am. Dec. 663, and Temple v. State, 49 Am. Rep. 201, od Judicial notice.
CONSTITUTIONAL LAW.--"DUE PROCESS OF LAW" is diffi. cult to define: See monographic note to Bardwell v. Collins, 20 Am. St. Rep. 554, showing that it does not always mean judicial process. It is generally conceded that it requires notice and a hearing, or an opportunity to be heard, before condemnation, and a judgment before dispossession; but personal notice is not always required: See monographic note to Flint River Steamboat Co, V. Foster, 48 Am. Dec. 271.
STATUTES.-A RETROSPECTIVE OR RETROACTIVE LAW Is one which takes away or impairs vested rights acquired under ex. Isting laws: Commissioners v. Rosche, 50 Ohio St. 103; 40 Am. St. Rep. 653.
MANDAMUS lies to compel a rallway corporation to construct a vladuct over its tracks, or to perform any other legal duty: See monographic note to Potwin Place v. Topeka Ry. Co., 37 Am. St. Rep. 321,
CLARK V. HILL.
(117 NORTH CAROLINA, 11.) CONDITIONAL SALES.-A LEASE OF PERSONAL PROP. ERTY, containing conditions for the payment of rent at stated times, and on the last payment of rent the property to belong to the lessee, in the meantime the title to be retained by the lessor, is in effect a conditional sale, and, not being recorded, the stipulation for retention of title by the lessor is void as to third parties.
FIXTURES.-A "steam-feed" machine, attached by bolts to the sills of a sawmill resting on piling driven in the ground, is a fixture as between the mortgagor and mortgagee of the land on which the mill is located.
Action to recover possession of a steam-feed machine shipped by Clark to one Moss, under whom the defendant claims. The machine was shipped, received, and retained under conditions as stated in a letter written by plaintiff as follows: "In sending out our feeds in this way, we have the parties give us their notes, payable according to the terms of the lease, as rental on the same, and, when the notes are paid, we give them title to the machinery and a contract to refund or give back the notes if the machinery does not prove satisfactory.” On the trial, it appeared that the "feed” was attached by iron bolts to the sills of a sawmill resting on piling driven into the ground. The land on which the mill was located belonged to Moss, subject to a mortgage which was subsequently foreclosed. The defendant, Hill, claimed under a purchaser at a foreclosure sale, and was in possession of the property when this suit was brought, the "feed” not having been paid for. Judgment for plaintift. Defendant appealed.
J. H. Small, for the appellant.
12 CLARK, J. The plaintiffs earnestly contend that the terms of the contract were those set forth in their reply to Moss, when the “steam-feed” was shipped, i. e., a lease upon payments of rent, as stated, and, on the last payment of rent, the property to belong to Moss, in the meantime the title to be retained by the vendor. Conceding this to be correct, such contract was, in effect, a conditional sale. Calling it a “lease” did not make it one, when its terms showed it was not. This was held in Puffer v. Lucas, 112 N. C. 377, which has been since cited and approved in Crinkley v. Egerton, 113 N. C. 444; Barrington v. Skinner, 117 N. C. 47. This agreement not being registered, the stipulation for retention of the title by the vendors was invalid as to third parties: Code, sec. 1275. The property in dispute, by the mode of its attachment, became a "fixture” as between Moss and this defendant's assignor, they being 13 mortgagor and mortgagee (Horne v. Smith, 105 N. C. 322; 18 Am. St. Rep. 903; Overman v. Sasser, 107 N. C. 432), and inured to the benefit of the mortgagee: Foote v. Gooch, 96 N. C. 265; 60 Am. Rep. 411.
The court should have instructed the jury, as prayed by the defendant, that upon all the evidence the plaintiffs were not entitled to recover.
IN THE CASE of Barrington v. Skinner, 117 N. C. 47, the question was again presented respecting the effect of an instrument purporting to be a lease of pei property, containing a provision that, when certain notes that had been given should be paid, the title should vest in the lessee. The agreement in question recited that one Moses thereby leased to one Skinner a Sterling upright piano, stool, and cover, of the value of two bundred and sixty-five dollars, for the sum of fifty dollars in advance, his note payable in six months after date for ninety-six dollars and sixty-seven cents, his note payable nine months after date for sixty-six dollars and sixty-six cents, and his note payable twelve months after date for eighty-four dollars and sixteen cents, the cash payment and notes to bear interest at the rate of eight per cent per annum from date until maturity, to be paid for the use of said piano, and agreeing that, when the sum of two hundred and sixty-five dollars should have been paid, the said Moses would sell and deliver to said Skinner the said property, with a good and effectual hill of sale therefor, but, until the said sum should have been paid, the instrument should remain the property of the said Moses; and in the event of the failure to make payments on the Instrument, and in the event of its return to said Moses, the said Skinner would pay rent therefor at the rate of nine dollars per month. The court was of the opinion that, under the decision in the principal case, the instrument was, in legal effect, a conditional sale, and that the vendor was entitled to recover the property against one
claiming under the vendee, unless payment should be made of the balance due under the agreement.
CONDITIONAL SALES-LEASE.-Any agreement by which the owner of persoual property "leases” to another with a provision that upon the prompt payment of a sum of money named, to be paid as rental, the title to the property shall pass to the lessee, although called a lease, is neither a lease nor a chattel mortgage, but is a valid conditional sale: Extended note to Andrews v. Colorado Sav. Bank, 46 Am. St. Rep. 296.
FIXTURES.-MACHINERY, constructed and placed in a mill, to be used in and as a part of it, and which would pass by a grant of the mill, is a part of the real estate upon which the mill is situated and not personal property: Havens v. Germania etc. Ins. Co., 123 Mo 403; 45 Am. St. Rep. 570, and note. To the same effect see Feder Capehart v. Foster, 61 Minn. 132; 62 Am. St. Rep. 582
MOORE V. JORDAN.
(17 NORTH CAROLINA, 86.) JUDGMENTS-LIEN OF-PRIORITIES.- Under a statute pro viding that the docketing of a judgment shall make it “a lien on the real property, in the county where docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years from the date of the rendition of the judgment," the lien of docketed judgments attaches to after-acquired lands in the same county at the moment that the title vests in the judgment debtor, and the proceeds of a sale under such judgments must be distributed pro rata among the judgment creditors without reference to the date when their judgments were docketed.
Special proceedings for the sale of certain lands. One W. S. Battle acquired such lands in Nash county, North Carolina, by descent, after judgments had been rendered against him in favor of one E. B. Lewis, and another in favor of one C. P. Cameron as administrator. The Lewis judgment was rendered and docketed prior to the rendition and docketing of the Cameron judgment. The court below decreed a sale of said lands, and that the proceeds thereof be distributed pro rata in satis faction of said judgments, and Lewis appealed.
H. G. Connor, for the appellant.
88 FAIRCLOTH, C. J. We are now confronted for the first time with the question whether previously docketed judgments take, by their priorities, according to the dates when 80 docketed, the after-acquired lands of the judgment debtor, or whether they take pro rata, the after-acquired lands cast by descent on