ligence or carelessness on the part of the defendants, and, upon an examination of the evidence of the witness, it will be found that the evidence, when fairly considered, does not tend to show that the defendants were guilty of any negligence or carelessness. vendor. Here there is no pretense that the de- | plaintiff called but one witness to prove negfendants manufactured either the oysters or the milk, the two ingredients of the oyster stew, and, under the rule laid down in the case cited, there could be no liability. Plaintiff has cited Van Bracklin v. Fonda, 12 Johns. 467, 7 Am. Dec. 339, as authority. But that was an action brought against a person for selling a quarter of beef as good and sound, when it was bad and unwholesome; but it was proved that the vendor knew when he sold the beef that it was diseased, and, while the rule laid down in that case is proper under the facts, it has no application to this case. Here the As the plaintiff failed to introduce any evidence tending to prove the most material averment of her declaration, the instruction of the court to find for the defendants was correct. The judgment of the Appellate Court will be affirmed. IOWA SUPREME COURT. HAWKEYE INSURANCE COMPANY, 1. The unconstitutionality of a statute cannot be set up for the first time on appeal as a ground of attack on instructions which were given on other issues. 2. Notice by a registered letter, provided for by Laws 1880, chap. 210, § 2 in case of notice precedent to forfeiture of insurance policies, is completed by due registration of the letter at the office from which it is to be sent. 3. A letter is not registered, so as to complete service of notice by registered letter, where such service is authorized, until it is numbered as required by the postal laws and regulations, although the postmaster has received it properly addressed and given a receipt therefor. (January 16, 1895.) APPEAL by defendant from a judgment of the District Court for Shelby County in favor of plaintiff in an action brought to recover the amount alleged to be due on a policy of fire insurance. Affirmed. Statement by Given, Ch. J.: ceived, I promise to pay the Hawkeye Insurance Company, at their office in the city of Des Moines, Iowa, sixty dollars, with interest at the rate of 8 per cent per annum from date, being premium for insurance, under policy No. 192,542. And it is hereby agreed that, if this note is not paid at maturity, the whole amount of premium of said policy shall be considered as earned and payable, and the policy shall be null and void; and the company shall not be liable for any loss or damage that may occur to the property insured while this note shall be overdue and unpaid; and if this note remains unpaid for the period of sixty days after maturity, then I agree to pay said company the further sum of 10 per cent on the amount due as fees for collecting the same. George D. Ross, P. O. Address, Harlan, County of Shelby, Iowa. That said policy was made and accepted on the conditions therein, one of which is to the effect that a failure to pay said premium note at maturity shall immediately terminate all liability of this company under this policy, and the company shall not in any case be hable for any loss or damage that may occur at a time when any such note or notes, or any instalment therein, or any part thereof, shall be overdue and unpaid." Defendant avers that on the 1st day of June, 1889, it served on the plaintiff a notice in writing, by inclosing it in a registered letter addressed to plaintiff at Harlan, Iowa, the post office address named in the policy, notifying him that said note would be due on the 1st day of July, 1889, demanding payment and stating that unless such pay ment is made within thirty days from service of this notice your policy will be suspended. The notice also called attention to the condi tions in the policy and note, stating that if the note was not paid when due the policy would become suspended. Defendant alleged that the note fell due July 1, 1889, and, being overre-due and unpaid the policy was suspended, and Action to recover upon a policy of insurance against loss by fire. Plaintiff alleges that the merchandise and fixtures insured were destroyed by fire on or about the 1st day of July, 1889. Defendant answered, admitting the policy, that the fire damaged some of the insured property, and denying that the fire occurred on the 1st day of July, 1889. That the policy sued on was issued in consideration of a promissory note of the plaintiff in words and figures as follows: $60.00. Des Moines, Iowa, April 1, 1889. On the 1st day of July, 1889, for value NOTE.-The above decision as to when a letter is registered so as to become a notice by registered letter is a novel one. 64 For illustrations of presumption from mailing papers, see Pennypacker v. Capital Ins. Co. (Iowa) 8 L. R. A. 236, and Marston v. Bigelow (Mass.) 5 L. For misdelivery of registered letter, see Joslyn v. R. A. 43. King (Neb.) 4 L. R. A. 457. 1895. Ross V. HAWKEYE INS. Co. defendant was not liable thereon for the al- | Mr. George R. Sanderson, with Messrs. D. O. Stuart and Charles McKenzie, for appellant: This law is unconstitutional within the inhibition of the 14th Amendment to the Constitution of the United States, which forbids any state to make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. It also violates art. 1, §§ 1 and 6, and art. 3, $30, of our state Constitution. The appellant has the right to frame its tract and to be bound only by the general laws forbidding those immoral and illegal. Sparta, 77 Ill. 505; People v. Detroit, 28 Mich. This act applies only to insurance companies, The pleadings and facts remaining un- Adams County v. Burlington & M. R. Co. 55 The insurance company must know when Butchers Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 28 L. ed. 585; Adam Smith, Wealth of Nations, bk. 1, chap. 10; Com. v. Perry, 14 L. R. A. 325, 155 Mass. 117; Godcharles v. Wigeman, 113 Pa. 431; State v. Loomis, 21 L. R. A. 789, 115 Mo. 307; State v. Goodwill, 6 L. R. A. 621, 33 W. Va. 179; Millett v. People, 117 Ill. 294, 57 Am. Rep. 869; Frorer v. People, 16 L. R. A. 492, 141 III. 171; Ramsey v. People, 17 L. R. A. 853, 142 III. 380; Bertholf v. O' Reilly, 74 N. Y. 515, 30 Am. Rep. 325; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People v. Marx, 99 N. Y. 377, 52 Am. Rep. 34; Carew v. Rutherford, 106 Mass. 14, 8 Am. Rep. 287; U. S. Const. art. 14; Colo. Const. art. 2, 25; Cooley, Const. Lim. 6th ed. 431: East Kingston v. Towle, 48 N. H. 65; San Mateo County v. Southern P. R. Co. 13 Fed. Rep. 145; Denver & R. G. R. Co. v. Outcalt, 2 Colo. App. 395; Graves v. Northern P. R. Co. 5 Mont. 556, 51 Am. Rep. 81; Dacres v. Oregon R. & Nav. Co. 1 Wash. 525: Wadsworth v. Union P. R. Co. 23 L. R. A. 812, 18 Colo. 600. While under its reserved power a state may place additional burdens and restrictions upon the corporations of its creation, these must be subject to the constitutional limitations and be imposed by general and equal laws. Braceville Coal Co. v. People, 22 L. R. A. 340, 147 Ill. 66. The articles of incorporation of the appellant constitute a contract between the corporators (Morawetz, Priv. Corp. 1047), and nor the be altered, this contract cannot rights of the incorporations thereunder be taken away. Sinking Fund Cases, 99 U. S. 737-766, 25 L. ed. 508-518; Ferguson v. Meredith, 68 U. S. 1 Wall. 25, 17 L. ed. 604; Cook, Stock & Stockholders, 495; Taylor, Priv. Corp. 449, 450; Zabriskie v. Hackensack & N. Y. R. Co. 18 N. J. Eq. 178, 90 Am. Dec. 617; Cooley, Const. Lim. 4th ed. p. 284; Hasbrouck v. Milwau kee, 13 Wis. 42, 80 Am. Dec. 718; Marshall v. Silliman, 61 Ill. 218; People v. Chicago, 51 III. 17, 2 Am. Rep. 278; Cairo & St. L. R. Co. v. But if service is dependent upon proof of when a certain number is affixed to the letter difficulties appear which, at times become almost insurmountable. Ross v. Hawkeye Ins. Co. 83 Iowa, 586; Holbrook Bros. v. Mill Owner's Mut. Ins. Co. 86 Iowa, 255. Messrs. Smith & Cullison, for appellee: The question of constitutionality is raised for The court the first time in the supreme court. will not consider it. Iowa Homestead Co. v. Duncomb, 51 Iowa, 525; Garland v. Wholebau, 20 Iowa, 271; McGregor v. Gardner, 16 Iowa, 538; Goodnow v. Plumb, 67 Iowa, 661; Edwards v. Cosgro, 71 Iowa, 296. Before a letter can be "registered" it must be given to the postmaster for registration, and when registered by him, and not before, is it ready for mailing as a registered letter-ready Holbrook Bros. v. Mill Owners' Mut. Ins. Co. for transmission through the mails. 86 Iowa, 255. Given, Ch. J., delivered the opinion of the court: 1. The evidence shows without conflict that the loss occurred on July 2, 1889, and the court so instructed the jury. The premium note fell due on July 1, 1889, and was unpaid at the time of the fire, wherefore appellant claims that the policy was, by reason of said condition therein, and in the note, and the service of said note, suspended at the time of the loss. Appellant's first contention in argument is that S 1, 2, chapter 210, Laws 1880, providing that such policies shall not be declared forfeited or suspended for nonpayment of premium until after thirty days' notice is given, is unconstitutional. It is entirely clear The constitutionality of said act is first questioned in the assignment of errors. Appellant concedes that this question was not presented to the district court, but insists that it may be presented in this court for the first time as reasons why the instructions complained of are not correct. The instructions were given upon the issues claimed by the parties, and upon which they tried and submitted the case, and they will not be heard to insist upon any different issues on appeal. In law actions, this court sits as a court of review only, and will not consider questions that were not presented to the trial court. Iowa Homestead Co. v. Duncombe, 51 Iowa, 525; Garland v. Wholebau, 20 Iowa, 271; McGregor v. Gardner, 16 Iowa, 538; Goodnow v. Plumb, 67 Iowa, 661; Edwards v. Cosgro, 71 Iowa, 296; Laverty v. Woodward, 16 Iowa, 5; Lower v. Lower, 46 Iowa, 525; Hoyt v. Hoyt, 68 Iowa, 703; Benjamin v. Shea, 83 Iowa, 392. from the record that this question was not | registered on June 1. 1889. The court further raised in or presented to the district court. instructed that "under the laws, rules, and Appellant does not present the question either regulations of the postoffice department, after in the pleadings, motion for verdict, or in- a receipt has been given therefor and the letter structions asked. On the former appeal, and has been numbered, the letter becomes regison both trials below, the defense that the pol- tered." After reciting the undisputed facts, icy was suspended at the time of the loss was that the defendant had on June 1, 1889, degrounded on the alleged compliance with said livered the notice in question to the postmaster chapter 210. at Des Moines, properly addressed and stamped for registry, and procured from him a proper receipt therefor, the court instructed as follows: "The only question for you to determine, as to this defense is as to whether the registry was completed by assigning to said letter its number and indorsing the same on the letter. All other things necessary to a complete registration of said letter on June 1, 1889, are shown by the uncontroverted evidence. You must determine from the evidence whether its registry number was indorsed on said letter, June 1, 1889, or not." On the former appeal we were not called upon to decide, and did not decide, what constituted the registration of a letter. The instructions are in harmony with the laws, rules, and regu lations of the postoffice department as shown in the evidence. It is true that, under the authority of § 1052 of the Postal Laws and Regulations, the postmaster at Des Moines was using "other than standard registration forms." Instead of the slip receipt provided for by postal laws and regulations, receipts were given to appellant, and to certain other companies, for letters deposited for registration, in a separate book for each company. This related solely to the manner of receipting for the letters, and did not in any way change the requirements as to registration. Section 1056 of said Laws, Rules, and Regulations is as follows: "After a receipt has been given, therefore, and the matter has been numbered as prescribed in the preceding sections, the letter or parcel becomes registered and must be guarded with the utmost care." We have seen that service of such notice by registered letter is not complete until the letter, properly addressed, is registered, and that it is not registered until numbered as required. The question whether this letter was registered on the 1st day of July, 1889, was submitted to the jury, and it found, as under the evidence it was warranted in doing, that the letter was not registered until after that day. 2. On the former appeal (83 Iowa, 586), the question presented was upon an instruction to the effect that the service of the notice by registered letter was not completed until, by due course of mail for registered matter, it should be received at the office of its destination." This court held that the service of such a notice is completed when the letter is properly addressed and registered at the postoffice. It was not held, as claimed by appellant, "that the notice was served when the letter was mailed." Section 2 of said chapter 210 provides that such notice may be served by registered letter, addressed to the assured at his postoffice address named in or on said policy. This court said that "in such a case the service is complete when the acts specified as constituting the service are done." Registering the letter is one of the acts specified, and is necessary to constitute a complete service. Appellant insists, and correctly so, that the ruling on the former appeal is the law of this case. The learned district judge, so viewing the law and the former opinion of this court, instructed the jury that registration of the let-firmed. ter was necessary to a completed service, and submitted the question whether said letter was 34 L. R. A. The judgment of the District Court is af Petition for rehearing denied. The appellant contends that the ordinance mentioned in the bill of complaint is null and void, because (1) it did not pass the first branch in conformity with law, because it was put upon its passage before it had been read twice upon two separate days, as required by the ninth joint standing rule, then in full force and unsuspended; and (2) it did not pass either branch legally because the question as to authorizing the Central Railway Company to extend its railway "over almost all of the streets 1. The indefinite postponement of the consideration of an ordinance to authorize a certain company to lay railway tracks in specified streets does not prevent the subsequent passage at the same session of another ordinance granting the same company the right to lay tracks on streets many of which are the same as were named in the prior ordinance, but containing new provisions as to the connection of the new tracks with an existing system, and various other provisions for a more efficient protection of the public interest, although a rule of procedure prohibits action dur-named in the ordinance" had been indefinitely ing the session on the "same subject" after a question has been indefinitely postponed. 2. The two thirds of the members of a branch of a municipal government, which are required by a rule of procedure in order to dispense with one of the regular readings of a proposed ordinance, need not be two thirds of all the members of the body, but only two thirds of the members voting, if they are not less than a majority, and the majority constitutes a quorum. (November 19, 1896.) APPEAL by plaintiff from a decree of the The facts are stated in the opinion. Messrs. T. Wallis Blakistone and postponed in the second branch at the same session of the council, and, under the twentieth joint standing rule, the same subject could not be again considered at such session, by amendment or otherwise. These propositions involve the consideration of two questions: First, were the rules of procedure violated as stated? And, second, if they were, did such violation, under all the circumstances of the case, operate to render the ordinance null and void? It is contended that the indefinite postponement of the "question as to authorizing it [the Central Railway Company] to extend its rail way over almost all of the streets named in the ordinance [mentioned in the bill], including Wolf street," precluded the possibility, under the rules, of passing the ordinance under consideration. The facts are these: On the 18th of May, 1896, the joint standing committee reported favorably, to the second branch, two ordinances,-one entitled "An ordinance to authorize the Central Railway Company to lay its tracks on Wolf street. Aliceanna street, and certain other streets in the city of Baltimore" (this will be hereafter referred to as the "Wolf street ordinance"); the other, "An ordinance to authorize the Central Railway Company to lay its tracks on E. Lexington street in the city of Baltimore" (this will be referred to as the "Lexington street ordinance"). On the same If a vote of two thirds of the members present is, in the eye of the law, to be considered as the vote of two thirds of the members of the branch, of course the motion was carried. Morton v. Comptroller General, 4 S. C. N. S. day both were read and laid over, under the 462, 463. rule. On the 25th of May the Wolf street ordiIt is not necessary to the validity of an ordinance was put upon its second reading. After nance, or an act of the legislature, that the rules of parliamentary law, nor even the special rules of the body which enacts them, should be strictly followed. Smith, Elementary Law, § 81, p. 68; 1 Whart. Ev. 3d ed. § 290; Com. v. Lançaster, 5 Watts, 155; McDonald v. State, 80 Wis. 411; Kilgore v. Magee, 85 Pa. 412; Harwood v. Went worth, 162 U. S. 562, 40 L. ed. 1073; St. Louis & S. F. R. Co. v. Gill, 54 Ark, 105, 11 L. R. A. 452; McGraw v. Whitson, 69 Iowa, 348; Speer v. Allegheny & M. Pl. Road Co. 22 Pá. 378; Fouke v. Fleming, 13 Md. 413; Annapolis v. NOTE.--The above decision on the effect of an indefinite postponement of an ordinance seems to be a novel one. As to the number necessary to carry a measure several amendments were offered and voted on, it was moved and adopted that "the further consideration of the report and ordinance be indefinitely postponed." On the 8th of June the Lexington street ordinance, having passed its second reading, came up again, the question then being upon its passage; and it was amended by striking out all of the ordinance, as reported by the committee, after the words at the end of the first section, and inserting those provisions which the appellant contends are in fact the same subject as the Wolf street ordinance. The rule alleged to have been upon a vote, see Lawrence v. Ingersoll (Tenn.) 6 L. R. A. 308, and note; also State, Walden, v. Vanosdal (Ind.) 15 L. R. A. 832. thereby violated is as follows: "Rule 20. When a question shall have been indefinitely postponed, the same subject, whether originating in this or received from the other branch, shall not be acted on again, or reconsidered during the session." From the bare reading of this rule, it is clear that the indefinite postponement of a question precludes the further consideration of the subject to which the question must be referred, during the entire session, whether it originated in the one branch or the other. What, then, was the subject under consideration, upon which the vote of postponement operated? It certainly needs no argument to show that no single feature of the Wolf street ordinance can be separated from its context, and be properly regarded as the "subject" under consideration. It is true that each item in the ordinance demanded of the members, as watchful guardians of the public welfare, a careful scrutiny. Whether the Central Company should be the donee of the franchise, whether the tracks ought to be permitted on each street named, the terms and conditions upon which the privileges were to be granted, and many other matters, demanded the careful attention of the council. But none of these, taken separately, can properly be regarded as the "subject" postponed. Such a construction would be too narrow, and would preclude the council from considering any other measure that contained any one or more of these features. Such new measure might be highly beneficial to the public, and, taken in its entirety, wholly free from the objections of the original ordinance; and yet, if it contained any feature common to both measures, the rule would have the effect of rendering the council wholly powerless. We think a more correct construction of this rule is that which prevents further action upon a subject or scheme which is substantially the same as that contained in the postponed ordinance. Now, is the scheme of the Wolf street ordinance sub stantially the same as that of the Lexington street ordinance? The donee of the franchise, it is true, in both is the same; also the mode of propulsion; and many of the streets in the one are mentioned in the other. But, in its entirety, the scheme of the Lexington street ordinance is wholly different from that contained in the Wolf street ordinance. The Wolf street ordinance authorized tracks from Aliceanna street to North avenue, along the streets named; but there is no provision requiring the company to connect the new tracks with its present system, or to furnish an outlet for its passengers, on a single fare, to the center of the city. Without such provisions, the new tracks would be but a local concern, and persons using the new road could go no further than over its limits, unless by transferring and paying an additional fare. On the other hand, by the Lexington street ordinance the company was required to lay its double tracks down Lexington street to Gay, and connect its present system, by a single track, with the new system of tracks; and, having thus provided for a continuous road, permission was granted to lay tracks on other streets, opened and to be opened and paved. Moreover, there was a more efficient protection of the public nterests, in the requirements for gutter plates and grooved rails. There are other features by which the two bills may be distinguished, but what we have said is quite sufficient, we think, to substantially differentiate the two measures. Neither in respect to the privileges conferred on the company, nor in the methods by which the safety, convenience, and general interests of the public are protected, nor in the essential features of the two schemes, are the two bills alike. They present two entirely different propositions, having, it is true, some features in common, but, in their substance and entirety, wholly dissimilar. We are of opinion, therefore, that there was no violation of the twentieth rule in the passage of the ordinance in question. Having thus passed the second branch, the Lexington street ordinance, amended as we have stated, came up for consideration in the first branch on the 8th day of June. "Mr. Allison moved a suspension of the rules to obtain a second reading. The yeas and nays were called for, and fourteen members voted in the affirmative, and six in the negative, whereupon it was announced that, "two thirds of the members having voted in the affirmative, the motion was declared adopted." The appellants contend that this decision was in violation of the ninth standing rule, which is as follows; "Rule 9. Every ordinance or joint resolution, before being put on its passage, whether originating in this, or received from the other branch, shall have two readings on two separate [days, unless two thirds of the members of the branch shall by a vote otherwise direct; but simple resolutions of inquiry, etc., may at once be put on their passage." It is insisted that the "two thirds" here mentioned means two thirds of all the members of the branch (that is, in this case, two thirds of twenty-two members); and, if this be correct, the motion to suspend failed to receive the requisite vote. Attention is also called to rule 15, to show-First, the rule cannot be "suspended;" and, second, there is a distinction to be made between "members of the branch" and "members present," which can only be satisfied by construing the former term to mean "all the members of the branch." Rule 15 is as follows: "No standing rule of the branch shall be rescinded or changed without the assent of three fourths of the members of the branch, and after one day's notice shall have been given; but any standing rule may be suspended, upon the assent of three fourths of the members present except rule 9." But we do not deem it important to determine here what was meant by the use of these different terms,-whether, by the words "members present," it was intended to include all who were actually present, as distinguished from those voting. The question now before us must be determined by the proper meaning to be placed upon the words "members of the branch," as used in the ninth rule. It is now well settled that in all cases a majority of a legislative body is a quorum, entitled to act for the whole body, except the power that creates it has otherwise directed. In United States v. Ballin, 144 U. S. 6, 36 L. ed. 325, the court said: "When a quorum is present the act of the majority of the quorum is the act of the body. This has been the rule for all time, ex |