That a city can only pass such ordinances as its charter authorizes is the established law of the state. Tuck v. Waldron, 31 Ark. 465; Ex parte Martin, 27 Ark. 467; Geotler v. State, 45 Ark. 454. Hence it is necessary to inquire under what statute this ordinance was adopted, and we find that section 5132 of Sandels and Hill's Digest authorizes cities to tax, license, and suppress a number of occupations, all of them either necessarily or probably detrimental to public health or morals, and among them "gift enterprises." No definition of the term is given, and we are therefore compelled to look elsewhere to ascertain its meaning.

So far as our researches, aided by the industry of counsel, have enabled us to discover, the term has been judicially defined only in one case (Lohman v. State, 81 Ind. 15), where the court holds that it means "a scheme for the division or distribution of certain articles of property, to be determined by chance, among those who have taken shares in the scheme." This definition has been approved by Anderson and Black in their law dictionaries, and impresses us as correct. There is nothing immoral in a gift, and, indeed, giving is often to be commended. It is not likely, at least in our time, to grow to such dimensions as to constitute an evil threatening the well-being of society. To be pernicious, a gift must be a mere cover for a lottery, and the evil company in which "gift enterprises" are found in the statute indicates that it is the gifts of fortune that are referred to. The Legislature was apparently apprehensive lest the term "lottery" should be held to apply only to cases where money was at stake, and added gift enterprises to cover all other similar devices where articles of property were disposed of by chance. It is apparent that such devices are highly pernicious, and they are plainly within the legislative intent.

The statute having given no definition of what it means by "gift enterprise," we do not feel privileged to ignore the only judicial definition that the term has received, particularly when it has been accepted by the two latest compilers of legal dictionaries. The law. is sufficiently uncertain without our making it more so by differing from the only existing authorities. We therefore conclude that "gift enterprises," as used in the statute, imply an element of chance, and that, as no such element is to be found in the plaintiff's scheme as described in the bill, it does not fall within the terms of the enactment, and the defendant has no power either to license or suppress it.

We have not overlooked the able decision of the Supreme Court. of the District of Columbia in Lansburgh v. District of Columbia, 11 App. Cas. 512. But that case is clearly distinguishable from this. The act of Congress governing the District prescribes what is meant by gift enterprises, and its definition precisely covered the trading stamp concern. That definition is not binding here. It may be that Congress defined the kind of business that it intended to reach by the term "gift enterprises," because it knew that the term in its ordinary acceptation would have a more restricted meaning, just as in the new bankrupt act many terms are defined in the opening section as applying to things that would not otherwise

be included. Then, too, the court in that case lays stress on the fact that the holder of the stamps could get nothing unless he accumulated stamps representing purchases to the extent of $99, and, as few did that, it was held that the uncertainty of ever getting anything on the stamps introduced an element of chance. No such element exists in the case at bar, as it is alleged that every holder of stamps, however small an amount, is entitled to a premium proportioned to his holdings.

2. Nor, if we are in error in this, do we conceive that it should make any difference in our decision. The freedom of labor is perhaps the most sacred of all those that are guarantied by the national and state Constitutions. A man has the right to earn his livelihood and support his family by following any vocation not harmful to society. It is not sufficient that it may seem useless to the court. Things that are useless to one man are articles of prime necessity to another. To be within the legislative power of suppression, an occupation must be deleterious in its nature, or likely to become so, such as theaters and public balls, which, without police supervision, are apt to degenerate into indecency and riot. A large part of the pursuits of life are not of apparent utility, do nothing to secure food, shelter, or clothing to mankind, yet they assist some in that pursuit of happiness which the Declaration of Independence proclaims to be one of the inalienable rights of men.

Mr. Justice Bradley, in Live Stock Association v. Crescent City Company, 1 Abbott, C. C. 398, maintains this right in language which has been repeated by courts and jurists until it has become almost a legal classic:

"We may safely say that it is one of the privileges of every American citizen to adopt and follow such lawful industrial pursuits, not injurious to the community, as he may see fit, without unreasonable regulation of molestation. These privileges cannot be invaded without sapping the very foundation of republican government. A republican government is not merely a government of the people, but it is a free government. Without being free it is republican only in name, and not republican in truth, and any government which deprives its citizens of the right to engage in any lawful pursuit, subject only to reasonable restrictions as are reasonably within the power of the government to impose, is tyrannical and unrepublican."

In Powell v. Pennsylvania, 127 U. S. 692, 8 Sup. Ct. 1257, 32 L. Ed. 253, Mr. Justice Field is still more emphatic. He says:

"With the gift of life there necessarily goes to every one the right to do all such acts and follow all such pursuits, not inconsistent with the equal rights of others, as may support life and add to the happiness of its possessor. The right to pursue one's happiness is placed by the Declaration of Independence among the inalienable rights of man, with which all men are endowed, not by the grace of emperors or kings or by the force of legislative enactments, but by their Creator; and to secure them, not to grant them, governments are instituted among men."

And again in Butchers' Union Company v. Crescent City Company, 111 U. S. 757, 4 Sup. Ct. 652, 28 L. Ed. 585, the same great judge says:

"Among those inalienable rights, as proclaimed in the great document (the Declaration of Independence), is the right of men to pursue their happiness,

by which is meant the right to pursue any lawful business or vocation in any manner not inconsistent with the equal rights of others, which may increase their property or develop their faculties, so as to give them their highest enjoyments."

In Thomas v. Hot Springs, 34 Ark. 558, 36 Am. Rep. 24, the same distinction is made between harmful and innocent pursuits, and it was held that, while drumming for gaming houses and other iniquitous concerns could be prohibited, there is no power to suppress drumming for hotels, boarding houses, and other legitimate forms of business.

Among the cases in which this subject is discussed, In re Jacobs, 98 N. Y. 106, 50 Am. Rep. 636, and People v. Marx, 99 N. Y. 386, 2 N. E. 29, 52 Am. Rep. 34, are especially noteworthy; but the most conclusive presentation of the questions now before us is found in the able and exhaustive opinion of Judge Peckham, now Mr. Justice Peckham, in People v. Gillson, 109 N. Y. 389, 117 N. E. 343, 4 Am. St. Rep. 465. That involved a scheme precisely like this, save that the counter where the tickets were surrendered and the premiums were selected was in the same store, which seems to us an immaterial difference. He examines the question in every conceivable light, and holds that the New York statute forbidding such devices is an infringement of the constitutional liberties of the citizen. His opinion was followed by the Supreme Court of Maryland in Long v. State, 74 Md. 565, 22 Atl. 4, 12 L. R. A. 425, 28 Am. St. Rep. 268, and commends itself to our approval.

It may be that some persons may be led by complainant's scheme into foolishly buying more than they need, merely to get the stamps, and it is certain that in the end the premiums must be paid for by the public. But these are commercial, not judicial, considerations, and the remedy must be sought in the wisdom and experience of the citizen, not in the legislative interference. Ours is not a paternal government. The freedom of our institutions often permits the unwary to be entrapped, but the advantages derived from the resulting spirit of independence and enterprise far more than outweigh any evil that can follow the incidental abuses of liberty.

3. It is said that this court has no jurisdiction because the amount in controversy is insufficient. But it is alleged that the amount of the license is intentionally made prohibitory, and that, if it is enforced, the plaintiff will be driven out of business. The amount in controversy is therefore the value of that business, which is alleged to exceed $2,000. Moreover, the license imposed amounts to $2,600 per annum, and it is alleged that it would require more than a year to test the matter in the law courts. In the meantime the license would have to be paid, and the amount would exceed the amount required to give this court jurisdiction.

4. Then it is said that the remedy is at law. But the Arkansas statute (Sand. & H. Dig. § 3778) authorizes an injunction against all unauthorized taxes or assessments by counties, cities, or other local tribunals, boards, or officers; and it has been held by the Supreme Court of the United States in Cummings v. National Bank, 101 U. S. 157, 25 L. Ed. 903, that this statute does not merely affect the

remedy, but gives a substantive right that may be enforced on the equity side of this court.

Furthermore, it is alleged that the defendant's financial condition is such that a judgment against it cannot be enforced, so that if plaintiff should pay the license he could not recover it back. Under such circumstances, the remedy at law is not merely inadequate; it is no remedy at all.

The motion to dissolve the injunction is therefore denied.

BANKRUPTCY-SUIT AGAINST TRUSTEE-JURISDICTION.

A Circuit Court is without jurisdiction of a suit in equity against trustees in bankruptcy to require them to pay over the proceeds of property claimed by complainant, but which was sold by defendants under an order of the bankruptcy court as assets of a bankrupt estate, having no power to interfere with the possession of such court of the property or its proceeds, and the remedy against the trustees, if any, being at law.

In Equity. On demurrer to bill.

Charles G. Gardner, for complainants.

Charles H. Beckwith and William H. Brooks, for defendants.

LOWELL, Circuit Judge. This was a bill in equity, brought against trustees in bankruptcy. It alleged a conversion by them of goods belonging to the complainant; that these goods were subsequently sold, pursuant to a decree of the court of bankruptcy, and that the defendants intend to disburse the proceeds in the settlement of the bankrupt estate. The bill further alleged that the defendants were not of sufficient financial responsibility to satisfy any judgment which the complainant might obtain in an action of law; "and that, if the proceeds of said goods and property in the hands of said defendants, and to come into the hands of said defendants as aforesaid, are not applied to the satisfaction of your orators' said claim, they will be entirely without remedy against said defendants." The bill prayed for a discovery not under oath; that the defendants be directed to pay to the complainant the proceeds of the sale; that the defendants be enjoined from disposing of the property or proceeds thereof; that this court determine damages. Defendants demurred.

The court must first decide if it has jurisdiction in the case presented. In White v. Schloerb, 178 U. S. 542, 20 Sup. Ct. 1007, 44 L. Ed. 1183, the Supreme Court decided that a state court has no jurisdiction to replevy property in the possession of a trustee in bankruptcy. The jurisdiction of the Circuit Court has like limitations. In Re Spitzer (C. C. A.) 130 Fed. 879, the Circuit Court of Appeals for the Second Circuit decided that a trustee in bankruptcy can be sued in trover in a state court, because an action of trover

does not disturb the possession of the court of bankruptcy. How far the Court of Appeals would permit the action of trover to proceed, and upon what property it would permit a levy of execution, does not appear. To levy execution upon the individual estate of a trustee in bankruptcy in order to satisfy a judgment for damages arising from his compliance with an order for the sale of specific property made by a court of competent jurisdiction seems to bear hardly upon the trustee. Even the Court of Appeals, however, expressly refused to disturb the control of the court of bankruptcy over the bankrupt estate. In the case at bar the bill cannot be sustained as a bill for discovery. The control of a court of bankruptcy over the property in the possession of the trustees, whether the original goods or their proceeds, cannot be disturbed, and so no injunction can issue restraining the defendants from dealing with the property or its proceeds as the court of bankruptcy shall direct. If there be any remedy prayed for in the bill other than that which is excluded by the bankrupt act from the jurisdiction of this court, it is a remedy obtainable in an action at law. It follows, therefore, that the equitable relief sought in the bill is beyond the jurisdiction of the court, and any relief within the jurisdiction of the court is not obtainable in equity, because obtainable at law. Demurrer sustained. Bill to be dismissed, with costs.

In re GRADY.

(District Court, D. Vermont. June 24, 1905.)

BANKRUPTCY-EXEMPTIONS-VERMONT STATUTES.

Under V. S. 1805, which allows a debtor an exemption of horses used for team work not exceeding $200 in value, a bankrupt having a number of horses, exceeding $200 in value in the aggregate, is not entitled to $200 from their proceeds when sold, but is required to select his exemption, not exceeding that amount in actual value, of which the appraisal is prima facie evidence, and may then select a wagon and other articles named in the statute to bring the total up to the value of $250.

In Bankruptcy. On review of referee's report as to exemptions. WHEELER, District Judge. The bankrupt appears to have had six horses, any two of which are worth over $200, and one, selected by him, $150. He claims $200 in the proceeds of the horses, if entitled to that, with the right to two, if they do not sell for more than $200. But the exemption is not of $200 in value in horses, nor of horses that do not bring at sale more than $200; it is of horses not exceeding in value $200, which is the actual value, of which the appraisal is at least prima facie evidence. Two horses include one, and any one may be exempt, if within the value of $200, and kept and used for team work. V. S. 1805. The one selected worth $150, and so kept and used, appears to be exempt, and the bankrupt does not appear to be entitled to any more as exempt out of the horses. That appears to be the measure of his right in that behalf. The bankrupt appears to be entitled to either of the three team