make, execute, and deliver to the party of the second part, or his assigns, a proper deed for the conveying and assuring to him the fee simple of said premises free from all incumbrances, which deed shall contain a general warranty and the usual full covenants. "It is further agreed that said party of the second part shall be entitled to immediate possession of said lands and premises herein described, and shall pay all taxes or assessments of every name and nature assessed and imposed on said lands and premises after this date. of Palmer's notes, indorsed by Loring. In the latter part of the year 1868 the credit of both the parties seems to have been somewhat impaired, and there was considerable difficulty in raising money to meet maturing obligations. The first installment on the contract with Mason fell due December 18, 1868, and there were notes of Palmer which had been discounted maturing about the same time to a considerable amount. To raise the means to meet these maturing obligations Palmer, at the request of Loring, sold stocks of his own, from which "It is further hereby expressly understood $15,000 in money was realized. The sale was and agreed that the said terms of payment negotiated before the installment on the conmentioned in this contract are hereby made tract fell due, but the price was not paid until material, and that the failure to pay any of December 21, $5,000, and December 28, said installments or interest on the days named $10,000. All this money was paid over promptfor the payment thereof, shall render this con- ly to Loring for Palmer's credit, and the actract absolutely null and void, and that any in- counts stated by the master show that on the stallment paid before such failure shall, by such 31st of December there was a balance due from failure, be forfeited, and that, whatever amount Loring to Palmer of $17,059.25, and that there may be paid, any failure of payment of any of was a balance of interest account in Palmer's said installments and interest, as the same shall favor for the year of $775.55. In this statefall due and become payable, shall make this ment of the account no charge is made against contract absolutely void, and all rights, inter- Palmer for any share of the purchase money ests, or titles under this contract shall be for- under the Mason contract. On the 18th of feited, and all and every equity and right in February, 1869, when the last installment to the said party of the second part, his heirs or Mason fell due, the accounts show a balance in assigns, shall thereby determine and become favor of Palmer of something more than $10,000. void. The clause in this contract mentioned, Between that time and March 20 this amount relative to the execution of a deed of the said was substantially all used in payment of Palmparty of the second part, being, by the agree-er's maturing notes, but on the last date Palmer [329] ment of the parties hereto, expressly made sub- sold other stocks, from which $8,000 in money ject to the agreement of forfeiture in case of was realized, and put to his credit. After that, any failure of payment of said installments and in August, other notes were paid, and at the interest, as the same shall fall due and become end of the year there was a balance against payable. Palmer of $1,065.18, though the interest account for the year showed a balance in his favor of $302.35. Here the transactions between the parties seem to have stopped, but on the 15th of March, 1872, Loring sold stocks of Palmer which he still held in his hands, from which $12,975 was realized, and afterwards during the year other sales were made, so that on the 31st of December, 1872, the accounts show a balance in favor of Palmer amounting to $15,964.45, which included a balance of interest account in his favor, since the last statement, of $637.96. "It is further understood and agreed that each and every of the stipulations herein before in this contract mentioned shall apply to and bind the heirs, executors, administrators, or as signs of the respective parties. "In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. "Thos. F. Mason, "E. T Loring, Trustee. "H._F. Atwood, as to signature of E. T. On the 22d of June Palmer telegraphed from Michigan to Loring that he had paid $5,000 for him, Loring, there, and asking that he pay the same amount to Mason and execute the contract. This was Frue's money, and it was afterwards so treated by all the parties. The remainder of the purchase money was paid by Loring when it became due, and as soon as the payments were made in full Mason conveyed the property as called for by the contract. In the statement of the accounts to this time, for some reason, no charge was made against Palmer for certain stocks purchased in 1867, the price of which was $6,275, nor for any part of the Mason purchase, but the amount otherwise to his credit with Loring was sufficient to pay these items in full, principal and interest, and still leave a balance due Palmer at the date of the decree amounting to $527.52. On the 16th of March, 1869, Loring, at the request of Palmer, indorsed on a copy of the contract with Mason a declaration as follows: "Boston, March 16, 1869. No moneys were paid by Palmer to Loring "Whereas, Thomas F. Mason has deeded to with particular instructions to use them in pay-E. T. Loring, in trust, the lands described in ing for the land, but Loring had for some years the within document, and received therefor in been acting as the financial agent of Palmer in payment the sum mentioned therein, with the Boston, and the accounts as stated by the mas- interest: Therefore, be it known, for value ter show quite a considerable balance of inter- rec'd, I hereby acknowledge that C. H. Palmer, est in favor of Palmer at the end of the years or Wm. B. Frue, one or either of them, jointly 1867 and 1868, respectively. At first the cred- or separately, are the owners of the undivided Its to Palmer were principally from the sales one fourth part of said lands, and I hereby obof stocks, but during the years 1867 and 1868 ligate myself, heirs, and executors to account they were mostly the proceeds of the discounts to said Palmer, or his assigns, for one fourth [330] [331] [332] [840] part rec'd for the lands in question whenever a sale shall be made of the same. "Elisha T. Loring. "Witness: James Moore." This represented the interest paid for with Frue's $5,000, and Palmer obtained it at Frue's request, so that he, Frue, might have something to show for his interest in the land. Afterwards, on the 22d of May, 1869, Loring conveyed to Frue an undivided one fourth of the property, and he claims no further interest. On the 22d day of February, 1869, Loring wrote Palmer as follows: "I therefore deem it my duty, and as an act of courtesy towards you, to notify you that whatever additional proportion you wish to secure for yourself in section 23, it will be necessary for you to remit the amount of the cost of such additional portion as you desire prior to the 20th of March; otherwise I shall consider as mine and retain the three fourths interest in section 23 which I have paid for." In October, 1871, Loring sued Palmer for a balance claimed to be his due on general account, and the bill of particulars showed the amount demanded to be large. Nothing was claimed for payments on account of the Mason purchase. This suit was pending until June, 1874, when it was discontinued, and on the first of July, 1875, Loring conveyed the land to Welch in trust for him, Loring, and his children. This suit was begun December 20, 1875. The circuit court rendered a decree in favor of Palmer, and from that decree this appeal was "5. For the beneficial interest of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to the limitations as to time prescribed in this title." 2 Howell, Ann. Stat. § 5573, p. 1448. The trust relied on is an express trust, and it relates to lands in Michigan. Consequently it must be established according to this statute, which it is contended requires proof of the creation of the trust by a written instrument that shall clearly express and fully define on its face the rights of the respective parties thereto. It is not enough, as is claimed, to show the existence of the trust by writing. The proof must be that it was originally created by a written instrument sufficient in form. In the view we take of the case it is unnecessary to inquire whether this is the true rule or not, for in our opinion, the evidence is sufficient to meet all these requirements. We do not understand it to be denied that the letters of Palt er to Loring under date of June 18 and June 19; the memorandum of the agreement made in Michigan at the time of the negotiations by Palmer and Frue with Mason for the purchase, and which was sent by Palmer to Loring in the letter of June 19; the telegram and letter from Loring to Palmer before the contract between Mason and Loring, trustee, was executed; the letter from Loring to Smith, under date of June 25; the letter from Mason to Perkins under date of June 26; and the contract between Mason and Loring, may all be read together as one instrument for the purpose of establishing the trust. If, upon the face of these writings thus read and construed together in the light of the circumstances which surrounded the parties at the time, a trust is fully expressed and clearly defined for the beneficial interest of Palmer, then his case has been made out so far as the creation of the trust is concerned. We begin, then, with the fact that Loring, Palmer, and Frue had been operating together for some years in buying mining lands, forming mining corporations, and selling mining stocks. Very generally the titles, both of lands and stocks, had been, during all the time, taken and held in the name of Loring, as trustee for all concerned. Each party paid for his own share of the purchases, but Loring was the principal capitalist, and both Palmer and Frue relied on him to raise money for them to meet their obligations when necessary. This par ticular purchase was set on foot by Palmer and Frue, and it was of a kind of property in which the parties had been in the habit of dealing. It adjoined or was near to other property in which they were all largely interested at the time, and which they were jointly engaged in advancing in value. The writings are to be read and construed in the light of these facts. The contract of purchase, as reduced to writing and finally executed, is in the name of Loring, trustee. This on its face implies that it was made by him for the beneficial interest of others besides himself, in whole or in part. Standing alone, it does not "clearly define" the trust which it apparently created, but taken in connection with the correspondence which preceded it, and out of which it confessedly arose, no room is left for doubt that it was made for the benefit of the three persons who had been so long operating together in that kind of property. Palmer, in his letters acquainting Loring with what he and Frue had done in Michigan towards the purchase, says "It is a fortune to us if well handled;" "When I present the whole matter you will see how important it is to us. We can take from Hecla from 1,550 to 2,305 feet in length, and still give them out of this purchase double the amount of mining value that we get from them. The fact is, this ground bought is worth more to them than the ground next to Ossipee. It is for this reason that I do not want anything said till we have fully considered this matter together, and see how we shall open it to Shaw. *** Hecla would be free then to give us 100 acres, 50 of which would carry the vein, and we should give them 100, all of which would carry the vein. You will see the importance of this matter, and that we should not say anything until we consult. The Hecla is rich, and we can make the Ossipee as rich." And again, "We shall get out of Hecla all I have indicated. The land we would exchange is more convenient on surface and underground for them than what they would give us. It will be under their machinery and improvements. This is a great thing for Ossipee.' It is said, however, that Frue does not appear to have been included as one of the beneficiaries. [341 [342] He was one of those who had been operating | do; I see this matter clearly;" and "we shall Again, It is said that the individual interests of the respective beneficiaries are not stated, and, therefore, that the trust is not sufficiently defined to meet the requirements of the statute; but the rule in Michigan, as well as in all other States where the principles of the common law prevail, is that where a conveyance of lands is made to two or more persons, and the instrument is silent as to the interest which each is to take, the presumption will be that their interests are equal. Campau v. Campau, 44 Mich. 31; Ebertsv. Fisher, 44 Mich. 553. Under this rule the purchase by Loring, as trustee, was for the equal benefit of the three parties in interest, and the trust, therefore, inured in that way. Without doubt it was expected that each of the parties would pay for his own interest, and that as between themselves neither should be bound for the other; but that is a matter the effect of which need not now be considered, as Palmer has paid for his share in full. There is nothing whatever on the face of the papers to indicate that at the time the contract was made and the trust created it was expected that one should have a greater interest in the purchase than another. We conclude, therefore, that the original trust in favor of Palmer for a one third interest in the property has been sufficiently established. It is contended, however, that if the conveyance was made to Loring as trustee for himself and Palmer and Frue, then, under the Statutes of Michigan, the legal title vested at once in the beneficiaries, and the remedy of Palmer is at law and not in equity, because he holds the legal title to his share and not an equitable title merely. The statute referred to is as follows: "5567. Sec. 5. Every disposition of lands, whether by deed or devise, hereafter made, except as otherwise provided in this chapter, shall be directly to the person in whom the right to the possession and the profits shall be intended to be vested, and not to any other, to the use of, or in trust for, such person; and if made to one or more persons, in trust for or to the use of another, no estate or interest, legal or equitable, shall vest in the trustee." 2 Howell, Ann. Stat. 1446. This, it has been held, abolishes all express that contract, and to compel him and his [348] [344] cuted to establish the fact that Palmer was one | been guilty of such glaring errors in his state- The trust having thus been established and the jurisdiction of a court of equity over the subject matter of the suit sustained, it remains only to consider whether the trust, which was originally created, has been abrogated by abandonment or laches. The last payment to Mason was made February 18, 1869, and this suit was not brought until December 20, 1875. This branch of the case is presented to us very differently from what it was to the court below when the interlocutory decree was rendered, and the cause referred to a master to ascertain how much was due from Palmer to Loring upon the purchase money paid to Mason. It was then supposed that Palmer had no money in the hands of Loring which could be used to pay on the land when the deferred installments fell due. The court then found that no part of the proceeds of the smelting stock or the Hecla stock was applied to such payment, and that all went into Palmer's general account with his consent. It now appears that when each of the installments was paid, or very soon thereafter, Palmer had or ought to have had a balance to his credit much more than sufficient to meet his share of what was due. The testimony shows very clearly that neither of the parties had a correct understanding of the state of their accounts with each other at the time. Palmer kept no books of his own, [345] and those of Loring were not at all reliable. Loring always claimed that Palmer was largely in his debt, and Palmer does not scem to have had then any means of showing the contrary. His own credit was exhausted, and Loring had possession of all his securities. Consequently, when Loring called on him to pay by the 20th of March, he did not abandon his claim, but he sold his Hecla stock and paid the proceeds to his general credit and waited for time to show whether this was enough to preserve his interest or not. He gave no special direction for its application, but, under the circumstances, the law will apply it to the only debt he then owed to Loring, and that was his share of this purchase money. Loring, by keeping the charge for the purchase money out of his accounts, cannot deprive Palmer of his right to the application of his credits. In a couple of years or so Loring began his suit, and this was kept pending until 1874, when it was discontinued. Loring says, in his answer, this was because he had ascertained that Palmer was utterly irresponsible and worthless." Now it turns out that when the suit was abandoned, he was himself in debt to Palmer, and that all the time he had securities in his hands which were largely in excess of any amount he had paid for Palmer on the land or otherwise. Under these circumstances it is impossible to say that the evidence makes out a case of actual abandonment, or that Palmer has been guilty of such laches as to bar him of the equities which are now so clearly shown to have existed in his favor all the time. His delay in bringing the suit is to be construed in connection with the uncertainty that existed as to the true situation of his accounts. Loring must have known that Palmer relied ou him to keep the accounts, and having himself ments and in his claims, Palmer is not to be charged alone with the fault of delay. The same explanation applies to his failure to respond more definitely to the letter of Lering under date of February 22, if there was in fact any such failure. He did, however, by the sale of his Hecla stock, put Loring in funds to an amount sufficient to meet his entire share of the purchase money, and that too on the very day he was required to do so by this letter of Loring. This renders it unnecessary to consider the conflicting testimony on the subject of the letter. The explanation also applies to the correspondence in reference to the declaration of trust in favor of Frue, under date of March 16, 1869. It is clear that, if Palmer had known the actual condition of the accounts at the time, he would promptly have claimed his rights; and that, to say the least, Loring was as much responsible for this uncertainty as Palmer. If the land had not in fact been paid for by Palmer, the delay in bringing the suit, or otherwise asserting the claim with distinctness, would have been looked upon very differently. As it is, it does not make out a defense by Loring to the enforcement of the trust which has been so clearly established. The decree of the Circuit Court is affirmed. James H. McKenney, Clerk, Sup. Court, U. S. YICK WO, Plff. in Err., 0. PETER HOPKINS, Sheriff of the CITY AND COUNTY OF SAN FRANCISCO. WO LEE, Appt., v. SAME. (See S. C. Reporter's ed. 356-374.) Constitutional law-police power-relation be tween state and federal courts-regulation of laundry business — municipal orders of the City of San Francisco-Treaty with Chinadiscrimination by board of supervisors. cision of the supreme court of the State in a habeas 1. The jurisdiction of this court to review the decorpus case is limited to the question, whether the petitioner was denied a right in violation of the Constitution, laws or treaties of the United States. 2. In a similar case brought here from the Circuit Court of the United States, the question of the legality of the imprisonment under the laws and the court below; but judicial propriety is best conConstitution of the State is open here, as it was in sulted by accepting the judgment of the state court on that question. court from putting upon the ordinances in ques3. These principles, however, do not preclude this tion an independent construction for the purpose of deciding whether the proceedings under them are in conflict with the Constitution and laws of the United States. 4. The order of the City and County of San Francisco, providing that it should be unlawful for any person to engage in the laundry business within the corporate limits "without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone," does not prescribe a rule and conditions for the regulation of the use of laundry property, to which all similarly situated may conform; but it confers a naked arhitrary power upon [346 [35 Statement of the case by Mr. Justice Matthews: These two cases were argued as one and depend upon precisely the same state of facts, the first coming here upon a writ of error to the Supreme Court of the State of California, the second on appeal from the Circuit Court of the United States for that district. The plaintiff in error, Yick Wo, on August 24, 1885, petitioned the Supreme Court of California for the writ of habeas corpus, alleging that he was illegally deprived of his personal [357] liberty by the defendant as Sheriff of the City and County of San Francisco. The Sheriff made return to the writ that he held the petitioner in custody by virtue of a sentence of the Police Judges' Court, No. 2, of the City and County of San Francisco, whereby he was found guilty of a violation of certain ordinances of the board of supervisors of that county, and adjudged to pay a fine of $10, and, in default of payment, be imprisoned in the county jail at the rate of one day for each dollar of fine until said fine should be satisfied, and a commitment in consequence of nonpayment of said fine. The ordinances for the violation of which he had been found guilty are set out as follows: Order No. 1569, passed May 26, 1880, prescribing the kind of buildings in which laundries may be located. "The people of the City and County of San Francisco do ordain as follows: "Sec. 1. It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the City and County of San Francisco, without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone. Sec. 2. It shall be unlawful for any person to erect, build or maintain, or cause to be erected, built or maintained, over or upon the roof of any building now erected or which may hereafter be erected within the limits of said city and county, any scaffolding, without first obtaining the written permission of the board of supervisors, which permit shall state fully for what purpose said scaffolding is to be erected and used, and such scaffolding shall not be used for any other purpose than that designated in such permit. "Sec. 3. Any person who shall violate any of the provisions of this order shall be deemed guilty of a misdeameanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment." Order No. 1587, passed July 28, 1880; the following section: "Sec. 68. It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain or carry on a laundry within the corporate limits of the City and County of San Francisco without having first obtained the consent of the board of superconstructed either of brick or stone." visors, except the same be located in a building 64 The following facts are also admitted on the record: That petitioner is a native of China and came to California in 1861, and is still a subject of the Emperor of China; that he has been engaged in the laundry business in the same premises and building for twenty-two years last past; that he had a license from the board of fire wardens, dated March 3, 1884, from which it appeared that the above described premises have been inspected by the board of fire wardens, and upon such inspection said board found all proper arrangements for carrying on the business; that the stoves, washing and drying apparatus, and the appliances for heating smoothing irons are in good condition, and that their use is not dangerous to the surrounding property from fire, and that all proper precautions have been taken to comply with the provisions of order No. 1617, defining the fire limits of the City and County of San Francisco and making regulations concerning the erection and use of buildings in said city and county,' and of order No. 1670, 'prohibiting the kindling, maintenance and use of open fires in houses;' that he had a certificate from the health officer that the same premises had been inspected by him, and that he found that they were properly and sufficiently drained, and that all proper arrangements for carrying on the business of a laundry, without injury to the sanitary condition of the neighborhood, had been complied with; that the city license of the petitioner was in force and expired October 1, 1885; and that the petitioner applied to the board of supervisors, June 1, 1885, for consent of said board to maintain and carry on his laundry, but that said board, on July 1, 1885, refused said consent." It is also admitted to be true, as alleged in the petition, that, on February 24, 1880, "there were about three hundred and twenty laundries in the City and County of San Francisco, of which about two hundred and forty were owned and conducted by subjects of China, and of the whole ber, viz: three hundred and twenty, about three hundred and ten were constructed of wood, the same maierial that constitutes nine tenths of the houses in the City of San Fran cisco. The capital thus invested by the subjects of China was not less than two hundred thousand dollars and they paid annually for num [359] |