River at Lawrence and collect tolls on such bridge, expired before the commencement of the suit; hence, the first and important question which is presented for our consideration is, whether this company was continued and perpetuated as an incorporation for all time, with all the privileges and franchises originally conferred under its special charter of February 8th, 1858 and the amendments thereto, by the action of its board of directors accepting on February 8th, 1879 certain provisions of the general acts of 1868 concerning private corporations, and forthwith filing a copy of such acceptance with the secretary of State? This inquiry leads to an examination of section 25, chapter 23, Gen. Stat. and necessarily compels us to pass upon the validity of so much of that section as attempts to authorize corporations, organized under special laws of the Territory, to continue to enjoy and exercise all their powers, privileges and franchises originally conferred, for an indefinite period, beyond the limit of their chartered existence.

Before the adoption of the Constitution, the practice was to create corporations by special laws. This practice resulted in partial, vicious and dangerous legislation. To correct this existing evil and inaugurate the policy of placing all corporations of the same kind upon a perfect equality as to all future grants of power; of making such laws applicable to all parts of the State, and thereby securing the vigilance and attention of its whole representation; and, finally, of making all judicial construction of their powers, or the restrictions imposed upon them, equally applicable to all corporations of the same class, (Atkinson v. Railroad Compay, 15 Ohio St. 21.) it was ordained by section 1, article 22 of the Constitution that, "the legislature shall pass no special act conferring corporate powers; that corporations may be created under general laws, but all such laws may be amended or repealed." These provisions are clear and explicit. They are a limitation upon the legislative powers of the State. Any act expressly violative of these provisions would be void, and the well recognized rule that what may not be done directly can not be done indirectly, is as applicable here as elsewhere. Constitutional provisions would be of little value if they could be evaded by a mere change of form. We may look, therefore, to the substance, purpose and effect of said section 25 in determining its true character.

While the corporation act of chapter 23. Gen. Stat. purports to be a law of a general nature, having a uniform operation throughout the State, section 25 thereof occupies an anomalous position. It is sui generis. It is virtually separate and distinct from the other provisions of the chapter, and entirely independent. That it attempts to confer corporate powers is conceded; if sustained at all it must be on the basis that it is a general law within the meaning of article 12 of the Constitution. Yet this section if effective confers corporate powers, which are special to separate corporations, chartered by special acts of the Territory of Kansas, and which powers are not granted to any other corporation, and no other corporation can come into its class, or obtain its privileges and immuni

ties. No corporation organized under the other provisions of the general corporation law can obtain the powers and franchises attempted to be granted to territorial corporations by this section. It may be fittingly described as an omnibus act, loaded to overflowing with special charters, some good, others bad and many vicious, and each of these charters, which is sought to be continued by this act, confers corporate powers and privileges distinct, exclusive and separate from every other corporation, and these powers and privileges do not belong or attach to all corporations of the same class; nor can all corporations of the same class upon the same terms, enjoy like powers and privileges. It is too palpable for argument, that article 12, is a sure and perfect impediment to the adoption by the legislature of a special act confering corporate powers. If it may obstruct the passage of one such act, is it not equally as effective to resist the passage of a score or more acts of like character, notwithstanding the attempt is made, as by section 25, to give them existence and vitality, under the form of a general law? Legislation of the class attempted in section 25 is most harmful. If sustained, it fritters away section 1, of article 12, defeats the object of its provisions and permits the abuses it was intended to prevent. If sustained, corporations can again be created, or extended in their existence all over the State, with just such powers and privilges, as the territorial legislature may have conferred by special charters at its pleasure or caprice, at a time when its power was unrestricted by any such wholesome constitutional provision as is imposed by section 1, article 12 on the legislative power of the State. If sustained, the legislature can go a step farther and provide that all corporations created with special powers and privileges by special charters during the territorial years of Kansas, whether organized or not, and whether in existence or not, may at once be rehabilitated with all their original powers and franchises. Under our construction of said section 25, we do not think it can be denominated a general law in the sense these words are used in article 12. It directs us to special acts and charters and attempts to continue them in existence. It does not in itself enumerate the powers of the corporations, but these powers are enumerated in the various special acts to which we are directed by it; it is therefore a plain evasion of the provisions of said article 12, and fails to be a legal enactment. It had no power to continue the Lawrence Bridge Company in the enjoyment of the exclusive rights, privileges ond franchases granted by the charter of that company. Said corporation ceased on February 8th, 1879; it was then dissolved with all the consequences of a dissolution.

To prevent any misconception of this opinion, we add that said section 25 does not fail to be a general law merely because it does not operate alike upon all citizens or corporations of the State, for many of our laws fail to do that. Take the case of the general laws for the incorporation of cities. By these laws, certain rights, powers and privileges are conferred upon cities of the first class, of which there is but one in the State; certain other

and different powers and privileges are conferred upon cities of the second class, and still different and less upon cities of the third class. Yet in these various laws, every city which is brought within the relations and circumstances provided for, is affected by the law; these acts do not grant to any city powers and privileges which upon the same terms, do not equally belong to every other city. Whenever a city comes into any class, it has all the powers and privileges that have been granted by the statute to any other city of that class. Thus, when a city of the second class has more than fifteen thousand inhabitants, it obtains and enjoys all the powers and privileges of a city of the first class. So, when a city of the third class attains a population of more than two thousand it may possess the powers and privileges of a city of the second class. Again, when a city of the first class loses its population until it becomes a city of the second class, it takes the powers of a city of that class, so, likewise, when a city of the second class, has only inhabitants sufficient to constitute it a city of the third class, it falls back to a city of the third class. The enforcement of said section 25, would give no like results. The corporate powers it seeks to confer are special and exclusive. Corporations are not permitted by it to be on an equality nor enjoy powers, upon the same terms, as belong to other corporations. There is a wide distinction between such an act as section 25, and the act incorporating cities of the first class, and other similar acts, which have often been held valid by this court.

In view of the inability of the Lawrence Bridge Company to prolong its corporate existence by virtue of the unconstitutional provisions of section 25 of the general incorporation act of 1868, and its legal dissolution on February 8th, 1879 by expiration of the time limited for its continuance by the special act under which it was created, it is important for us to determine what became of the bridge, when the franchises of the corporation ceased by limitation. The evidence shows it was completed in the fall of 1863, more than fifteen years ago; that neither the corporation nor any of the corporators ever owned any fee in any of the lands on which it was built, or ever leased any real estate on which it was constructed and maintained; that the approach to it on the south side was from the end of Massachusetts street across the levee: (a plat of ground reserved to the public in laying out the city of Lawrence :) to the south end of the bridge, and on the north side from Bridge Street across a lot, belonging to one Sarcoxie, to the north end of the bridge; that it was an immovable structure or extension of the highway over and across the Kansas River; that it was constructed for the convenience of the public, in the hope of profit to the corporation having the franchise, to be derived from tolls; and since 1863 has been used by the public as a thoroughfare up to the time of bringing this suit, uninterruptedly and without molestation, except as to the taking of the tolls. Under these facts, the bridge was unquestionably a public highway. The corporation lived its time out on February 8th, 1879. Its franchise to demand and accept tolls then ceased. Thereafter, the

free use of such public highway was in the people. They have now the same right to its use, as they have to the use of Massachusetts street, or Bridge street, or any other public highway of Douglas County. We do not rest this decision upon the basis that the Kansas River is a navigable stream, and therefore a common highway, and the bridge a part of such highway, although a strong argument can be formulated that in this case the river might be treated as navigable, as the charter giving the bridge company life assumed that river was navigable, and expressly required of that corporation the construction of its bridge over the water in such a manner as not to prevent the navigation of the river by steamboats, and from the additional fact that up to 1860, the river was used to some extent for the purposes of navigation, But waiving the question of the navigability of the Kansas River, the Lawrence Bridge Company by the manner of constructing the bridge and opening it for use, aud having it used for fifteen years as a part of the highway or an extension of the highway over and across the river, on payment of tolls. dedicated it to the public as fully and completely as it conld have been by a deed of dedication acknowledged and recorded. When the license to take tolls expired, the public took the bridge disburdened of tolls. Craig v. People, 47, III. 487; State v. Lake, 8 Nev. 276; Central Bridge Corporation v. Lowell, 15. Gray, 106; Thompson v. Matthews, 2 Edw. Ch. 212.

There is no hardship in this result. Toll roads or turnpikes and plank roads, constructed under public authority for public use by incorporated companies, with provisions in the acts of incorporation for their management, are common highways; the only difference between them and other common highways is that instead of being made at the public expense in the first instance, they are authorized and laid out by public authority, and made at the expense of individuals or corporations in the first instance, and the cost of construction and maintenance is reimbursed by tolls, levied by public authority for the purpose. Angell on Highways sections 8, 9 and 14. By analogy, considering the manner the bridge in controversy was built, its situation and use, it bears a close relation to toll and plank roads. In this case, the bridge company has received tolls for over fifteen years and located as the bridge has been at a point of great travel and business interests generally, it is very probable that the tolls have been more than sufficient to repay the cost of its construction and maintenance. At least, we may assume that this was the hope of the corporators in accepting the provisions of the charter, and in constructing the bridge; and we cannot believe they have been the unfortunate victims of a harsh contract. If not, no injustice is sustained by them, that the bridge on the expiration of their franchise or license to take tolls becomes free to the use of every citizen as other public highways. If the claim of defendants was valid, that the bridge itself was the private property of the stockholders to be hereafter managed by them, or through their trustees, then, the expiration of the charter of the corporation would be beneficial, rather than injurious to them, for it would eman

cipate the bridge from the control of the law, and convert the limited privileges of the stockholders into a broad unbounded license. We do not mean that it could not be ultimately taken and condemned for a highway, if it was needed, but unless so taken and condemned, they could use it, as other people use their own; run it on their own account; charge what tolls they pleased; close it up or open it when they thought proper, and disregard every interest except their own. This claim of counsel overlooks the fact that the bridge was constructed under authority obtained from the public on property not owned by the company and that the public have already paid for it by tolls levied by public authority. In this condition of affairs the public have rights in the continuance of the bridge or highway in its present position. Under section 42, chapter 23, Gen. Stat., the officers or manager of the late corporation have full authority to settle the business of the corporation and divide the moneys and other property among the stockholders. But the bridge, being an extension of the highway over the Kansas River and a part of the public highway, is not the property of the stockholders of the late corporation, but is a public road which every citizen has the right to use. The period during which it was lawful for the corporation to take tolls has long since expired and now neither the officers, managers, nor stockholders of said corporation have any further control over the bridge or highway. They can not obstruct it, or collect tolls, or remove or otherwise interfere with it.

The injunction prayed for in the petition of plaintiff will be granted, and such injunction will be made perpetual. Costs are also adjudged against the defendants.

It seems to me that the grave question in this case is as to the unconstitutionality of said section 25. It certainly is in form a general law. It purports to apply not to a single corporation, but to all corporations of a particular class. A law concerning cities of the first class only applies at present to a single corporation, but as it applies to all corporations of that class it is unquestionably a general law. This section not only purports to apply to all corporations of a particular class, but does in fact apply to many corporations. It grants to all such corporations the same power, that of self perpetuation. And while the wisdom of such legislation may be doubted, yet I am not clear that it is beyond the legislative

power. But my associates are clear that the section, so far as this case, at least, is concerned, is unconstitutional and therefore all charter privileges of the defendants have ceased. It seems to me to follow from this that the plaintiff is entitled to judgment, for I agree with the chief justice that the bridge is a permanent structure on the public highway, and under the authorities, when the franchise to take tolls ceases, the right of the public to use the bridge free from any burden of tolls attaches, without any right on the part of the builders to remove the structure and destroy the highway. The right to take tolls for a specified number of years was the consideration granted by the public to the defendants for the privilege of placing this improvement on the highway and the former owners have now no more right to remove the bridge than the owners of a turnpike to tear it up after the franchise to take tolls has ceased.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF MINNESOTA.

[Filed October 18-22, 1879.]

APPEAL-PROHIBITION.- Where, in an ordinary · action in the district court, it is alleged that the court has not jurisdiction over the person, the proper remedy is to get the decision of the court upon that question and review such decision upon an appeal from the judgment. If there be an adequate remedy by appeal, prohibition is not the proper remedy. Opinion by GILFILLAN, C. J.-State v. District Court.

LANDLORD AND TENANT-TITLE. - A defendant who has entered into the use and occupancy of premises under a demise or written lease from plaintiff, not under seal, by the terms of which he agrees to pay an amount of rent quarterly for a definite time. can not, after having paid the quarterly rent for a portion of the time, and while remaining in possession, lawfully refuse to make further payments as they fall due, on the sole ground that he was the owner in fee of said premises when the lease was made, and that plaintiff had no title thereto. Opinion by CORNELL, J.-Morrison v. Bassett.

JURISDICTION.- The municipal court act for the city of St. Paul provides that "no summons shall issue until the complaint shall be filed with the clerk," and also that each of the pleadings shall be verified. Held, that the want of a verification to a complaint filed with the clerk in said court is not a jurisdictional defect for which the action will be dismissed after summons issued thereon and duly served. A verification, in the ordinary use of these legal terms, forms no part of a complaint. Opinion by CORNELL, J.McMath v. Parsons.

having exclusive charge and control thereof, make delivery of the wheat, and then return the same either loaded or empty to the plaintiff at said junction in as good condition as when received, ordinary wear and tear excepted. Both parties were to share in the profits of the transportation of the wheat and other freight so carried, and plaintiff was to receive from defendant in addition to its share of profits, a stipulated compensation for such use of its said cars. While being so used by the defendant the cars were wholly destroyed by fire at Minneapolis, without any fault or negligence on its part, amounting to want of ordinary care. Held, that defendant was not liable to plaintiff for such loss, either as a common carrier, a bailee for hire or otherwise. Opinion by CORNELL, J.-St. Paul, etc. R. Co. v. Minneapolis, etc. R. Co.

SUPREME COURT OF KANSAS.

July Term, 1879.

[Filed October 14, 1879.]

TAX DEED-VOID ASSESSMENT.-A tax deed regular on its face, containing a perfect description of the land conveyed, and of record in the time prescribed by the statute of limitations, is protected by said statute from impeachment by evidence that the description of the land on the assessment roll and in the sale certificate is fatally defective. Reversed. Opinion by BREWER, J. VALENTINE, J., concurring. TON, C. J., dissenting.-Maxon v. Huston.

HOR

ABSOLUTE CONVEYANCE CONDITIONAL SALEMORTGAGE.-1. An absolute conveyance and a separate agreement to recover, though executed simultaneously and as parts of one transaction, may or may not constitute a mortgage, and equity is not concluded by the form, but will have regard to the actual facts. The test is the existence or non-existence of a debt. If after the transaction no debt remains, there is no mortgage, but only a conditional sale. 2. In such a case, evidence of the situation of the parties, the circumstances of the transaction and of any independent parol agreement, is competent. 3. Where an action of forcible entry and detainer is upon plea of title certified to the district court, it is not changed to an action for the recovery of real property, and a second trial is not a matter of right. Affirmed. Opinion by BREWER, J. All the justices concurring.-McNamora v. Colvin.

COMMON CARRIER- FREIGHT CHARGES-LIEN.A shipper shipped goods from Roselle, Ill., a station on the Chicago & Pacific Railroad, to Girard, Kas. An agent on that road received the goods at Roselle, took from the shipper what he said would pay the freight charges through, and gave him a receipt upon which was indorsed freight charges paid through to Girard." The Missouri, Ft. Scott & Gulf Railroad received the goods at Kansas City without any knowledge or notice of the action of the agent at Roselle or of the receipt given by him and carried them over its road to Girard. Only a portion of its charges therefor were paid. The agent at Roselle had no authority from the Gulf road, nor did he pretend to have any. No agreement or arrangement of any kind existed between the roads in reference to shipments of freights or contracts therefor. Held, that the Gulf road had a lien upon the goods for its unpaid charges. Reversed. Opinion by BREWER, J. All the justices concurring. -Wolf v. Hough.

FRAUDULENT CONVEYANCE - DEFAULT - PRAC

TICE.-1. A conveyance may be void as against a subsequent creditor if made with a specific intent to defraud such creditor. 2. Ordinarily mere generality of statement in a petition is to be cured by motion and not by demurrer, and where all essential faets are stated though in general terms, the demurrer will not lie. 3. Where judgment is rendered by default against a party, the court may properly overrule a motion to set aside the judgment, unless it appears not only that the default is excusable, but also that the answer tendered is true. Affirmed. Opinion by BREWER, J. All the justices concurring.—McPherson v. Kingsbaker.

NON-USER OF CORPORATE POWERS-STATUTE OF LIMITATIONS.-1. A mere non-user of all corporate powers is not a concealment of the corporation such as to suspend the running of the statute of limitations. 2. Under the general incorporation law of 1866, a failure to elect a successor did not, in the absence of some restrictive provision in the by-laws, vacate the of fice of president, but the then incumbent continued as officer de facto so far, at least, that service upon him would bring the corporation into court. 3. The mere fact that the mayor, to whom, in conjunction with the council, is given the general management of the affairs of a city, is interested adversely to the city in a cause of action belonging to it, and a necessary party defendant in an action to enforce such cause of action, does not operate to suspend the running of the statute of limitations. 4. Where action on a note or bond is barred, it is also barred on the mortgage given solely as security therefor. Affirmed. Opinion by BREWER, J. All the justices concurring.-City of Ft. Scott v. Schulenberg.

RAILROAD STOCK LAW-DEMAND OF PAYMENTEVIDENCE. 1. Under the act of 1874, "Relating to Killing or Wounding Stock by Railroads," (Comp. Laws of 1879, pp, 784, 785), a demand must be made of the railroad company for the value of the stock killed, or for damages for injuries thereto, but this demand "may be made of any ticket agent or station agent of such railway company'' (sec. 3 of said act), and the demand may be made orally and not in writing. Hence, when such a demand is made, what the agent says at the time concerning the matter may be given in evidence against the railroad company, in an action brought by the owner of the stock against the railroad company for injuries done by the company to his stock. The agent's statements, made at such time and concerning such matter, are admissions within the scope of his authority and a part of the res gesta. And on the trial of the case, where a proper oral demand is first proved, and no evidence is at any time introduced tending to disprove the same, it is not material error for the court to permit the plaintiff to show by incompetent evidence that a written demand was also made. 2. A written demand, containing evidence showing what the cow (for injuries to which this suit was brought) was appraised at, was introduced in evidence by plaintiff on the trial. This evidence concerning the appraisement was incompetent; but each of the appraisers was afterwards introduced as a witness, and testified that the cow was worth $30, just the amount at which said written demand showed that the appraisers had formerly appraised her; and all the other evidence introduced in the case upon this subject tended to show that the cow was worth that amount. Held, that no material error was committed by the introduction of said incompe tent evidence as said incompetent evidence was not substantially prejudicial to the rights of the defendant. 3. Two letters of W. F. D., general superintendent of the defendant railroad company, were introduced and read in evidence over

general objections of incompetency, irrelevancy and immateriality. The subject-matter of these letters was within the general scope of the superintendant's authority, and the contents thereof were principally admissions of facts and not merely offers to compromise. Held, that although a mere offer to compromise is not proper evidence; yet that an admission of a fact is, and that these letters were properly introduced in evidence. 4. A witness was permitted to testify that he looked about and saw hair on the ties; the first tie had a lot of hair on it, and the second one not so much, and so on,'' as indicating that the injured cow had been pushed along the railroad track by the company's engine. Held, not error. Affirmed. Opinion by VALENTINE, J. All the justices concurring.-Central Branch R. Co. v. Bateman.

SUPREME COURT OF RHODE ISLAND.

March Term, 1879.

NEGLIGENCE-PROXIMATE AND REMOTE CAUSE. -A was injured by a horse driven by B. The horse was frightened by the overturn of a sleigh to which it was harnessed, and the overturn was caused by a heap of snow and ice wrongfully made and left in a highway by C. A sued C to recover damages. C demurred. Held, that the demurrer could not be sustained, the wrongful act of C being in law the proximate cause of A's injury. Opinion by DURfee, C. J.-Lee v. Union R. Co.

BOUNDARIES IN CASE OF WATER LINE-HOW DETERMINED BETWEEN RIPARIAN PROPRIETORS.-1. In 1855 a harbor line was established for the west side of Providence river. The line was straight, excep that it made a slight turn easterly and outward before striking the projecting headland of Field's Point. North of this headland was a deep indentation in the shore. On a bill in equity brought to determine the boundary from the shore to the harbor line between two riparian estates, one of which had a shore front slightly lengthened, by the curve of the shore; it appearing that many estates along the harbor line had been filled out to it and occupied, and that the harbor line was a long one: Held, in the circumstances of the case, that the boundary line was to be run from the termination of the upland boundary on the shore perpendicular to the harbor line. 2. Held, further, that the initial point of the boundary line so run was the termination on the shore of the upland boundary, however this upland boundary might have been fixed, whether by possession or by record or other title. "The complainants claim a frontage on the harbor line proportionate to their shore line. If they are so entitled, the other proprietors within the harbor line are likewise so entitled, other things being equal; and it follows that their water front can not be determined without simultaneously determining every other water front, for every front will be affected by irregularities of the shore either above or below it. For example: under the rule contended for, the proprietor of the elbow in the shore, having a long shore line, will be entitled to a long frontage which will swing the dividing line between him and the next proprietor aslant, and the result will be a corresponding obliquity on all the water fronts and dividing lines above it. And so any considerable curvature or indentation anywhere will have similar effects. The rule invoked by the complainants is a rule borrowed from a work on the civil law, which was applied by the Supreme Judicial Court of Massachusetts to the apportionment of alluvion in the bend of a innavigable river. Deerfield v.

Arms, 17 Pick. 41. The rule has been approved as a rule for the apportionment of alluvion in New York and in the Supreme Court of the United States. O'Donnell v. Kelsey, 10 N. Y. 412, 415; Nott v. Thayer, 2 Bosw. 10; Johnston v. Jones, 1 Black, 209. It has also been applied, but not invariably, to the apportionment of tide-flowed flats lying in a cove or littoral recess, among the owners of the upland. Rust v. Boston Mill Corporation, 6 Pick. 158; Wonson v. Wonson, 14 Allen, 71, 85; Delaware, Lack. & West. R. Co. v. Hannon, 37 N. J. (Law,) 276. In Gray v. Deluce, 5 Cush, 9, flats lying in a shallow cove were divided among the owners of the upland by drawing parallel lines from the ends of the division lines of the upland at right angles with a base line across the mouth of the cove. This rule seems to have met with. approval in Stockham v. Browning; 18 N. J. (Eq.) 391. In Atty. Gen. v. Boston Wharf Co. 12 Gray, 553, 558, the court say that, 'in general, where there are no circumstances or peculiarities in the formation of the shore or the course of the channel, the lines of division are to be made to the channel in the most direct course from the lateral boundaries of the several tracts of upland to which the flats are appended.' We are not advised that any rule has ever been laid down for a case like the one at bar. The problem here is to define water fronts in regard to a harbor line, not to divide flats or alluvion. The establishment of a harbor line, we have held, amounts to an implied permission to the riparian proprietors within it to fill out to it. The question is, how fill out to it? We answer, fill straight out to it. The owners of the upland are impliedly permitted to carry the upland forward to the harbor line so that each owner will occupy the part which is abreast his own land. There may be exceptional cases where the shore or the harbor line is so peculiar that permission to fill straight out can not be implied. Perhaps it cannot be implied at the elbow which we have mentioned in the shore, where the harbor line diverges from a direct course; if there are several estates there, it cannot. The mode of filling must be varied. But the variation ought to be limited by the necessity for it. It would be impracticable now, after so many fronts have been filled, to allow it to affect the apportionment along the whole harbor line, even if originally it would have been right and expedient. We do not perceive that it will be necessary to allow it to have any effect on the decision of the case at bar, the elbow in the shore being considerably below the estate in controversy. It follows that the dividing line between the water fronts here, in case the parties have not established one for themselves, is a line drawn from the shore end of the dividing line of the upland to the harbor line so as to intersect it at right angles. This rule is analogous to the rule laid down in Gray v. Deluce, and to the rule applied by us in Thornton v. Grant, 10 R. I. 477, 487, to the ascertainment of water fronts where no harbor line existed. It has the great recommendation of simplicity of application," Opinion by DURFEE, C. J.— Aborn v. Smith.