« ForrigeFortsett »
changed its name to that of the K. C. & C. R. R. Co.; that under the act of 1867 that company had consolidated with the H. & St. Jo. R. R. Co., by virtue of which consolidation, the latter company had become the owners and possessed of all the rights, properties, privileges, immunities and franchises which the said K. C. G. & L. S. R. R. Co. had and possessed by virtue of its charter and acts amendatory thereto, or which the K. C. & C. R. R. Co. had by virtue of the charter of the K. C. G. & L. S. R. R. Co., etc.,
There were no such admissions made in the present instance. Nor did the evidence show any such consolidation. Mere resolutions to consolidate, and mere statements in such resolutions to that effect, are but statements of legal conclusions. Facts should have been shown, in order that the court could have determined whether in truth such consolidation had occurred, and whether a transfer of the property of the K. C. & C. R. R. Co. to the H. & St. Jo. B. R. Co. had in reality taken place. But granting that a consolidation between the two companies did occur in accordance with the act of 1867, what was the effect of such consolidation ? The language of the act is: "To consolidate it (the company) with any other company, on such terms as may be deemed just ahd proper,'
The original charter of the K. C. G. &. L. S. R R. Co. contained no provisions looking to consolidation. Now, what was the effect of the act of 1867, and of the alleged consolidation in conformity thereto ? Did it transfer to, and vest in, the Han. & St. Jo. R. R. Co. the franchises, the corporate and unexecuted rights of the K. C. & C. R. R. Co. It is well settled law that the privilege a railroad company may have of receiving a subscription to its stock, is not a vested right, and does not become so until subscription is actually made; and may be repealed at any time before that event occurs. 1 Dillon Municip. Corp. § 42; 22 How. supra; County of Dallas v. McKenzie, 94 U. S., 660; U. P. R. R. Co. v. Davis Co., 6 Kan. 256. The act in question does not even impliedly give authority to the K. C. & C. R. R. Co. to transfer its franchises, and unexecuted powers to the company with which it might, in the future, consolidate, nor does it provide upon what specific terms the consolidation shall occur, or what shall pass or be transferred thereby. Without legislative authority one company could not consolidate with another, and as legislature sanction must be given to a consolidation, (Clearwater v. Meredith, 1 Wall. 25,) so, also, must it prescribe the terms under which, and through which, such union must occur; and nothing passes from one company to another, by the action of the legislature, but what is expressly permitted or authorized thus to pass. P. & W. R. R. Co. v. Maryland, 10 How. 376. Upon the occurrence of consolidation by reason of legislative permission, the two companies become united and form an entirely new and distinct company. McMahon v. Morrison, 16 Ind. 172.
In Harshman v. Bates Co., 92 U. S. 569, 3 Cent. L. J. 367, where the law of this state authorizing consolidation, declared, in express terms, that the new company should be entitled
"to all the powers, rights, privileges and immunities which belong to either," and it was contended that this statutory provision justified the county court in making the subscription to the new company without further authority from the people. This assumption was not countenanced, the court saying: "But did not the authority cease by the extinction of the company voted for. So long as it remains unexecuted, the occurrence of any event whieh creates a revocation in law, will extinguish the power. The extinction of the company in whose favor the subscription was authorized worked such a revocation. The law authorizing the consolidation of railroad companies does not change the law of attorney and constituent. It may transfer the vested rights of one railroad company to another, upon a consolidation being effected, but it does not continue in existence powers to subscribe for stock given by one company to another, which by the general law are extinguished by such a change.'
If, as held by the above quoted authorities, the power to have a subscription made without a vote to that effect first taken was never executed by subscription actually made, but remained an unexecuted power, and did not pass to the Hannibal & St. Jo. R. R. Co. by reason of the alleged consolidation, then it conclusively follows that the subscription was wholly without authority of law, and therefore void. The Greene County case differs from this, in the very essential particular that the demurrer to the answer as above seen, confessed that a consolidation had occurred, and that by reason thereof, all the rights, property, privileges, immunities and franchises formerly possessed by the K. C. G. & L. S. R. R. Co. had passed to, and become vested in the H. & St. Jo R. R. Co., and the remarks of the court were based upon that theory, and are, therefore inapplicable here, where no such admissions are made. And the authorities cited in that case clearly show such inapplicabilily. The case of the P. & W. R. R. Co. v. Maryland. 10 How 376, was one respecting exemption from taxation, where, in consequence of legislative action, the company in which the other company was merged, became possessed of the powers, rights, and privileges the several companies had, prior to consolidation, been possessed of. So, also, the case of Tomlinson v. Branch, 15 Wall. 460, was one merely respecting exemption from taxation, where by the very terms of the legislative permission, one company became merged in the surviving company, which became invested with all the rights, privileges and property belonging to the company whose identity was lost because of the consolidation. And the court were there of unanimous opinion, and speaking through Mr. Justice Bradley, who afterwards delivered the opinion in the Bates Co. case, supra, said: "The keeping alive of rights and privileges of the old company, and transferring them to the new company in connection with the property, indicates that the legislative intent was that such property was to be holden in the same manner and subject to the same rights as before. The owners of the property were to lose no rights by the transfer, nor was the public
to lose any rights thereby." But Mr. Justice Bradley was careful to say: "Of course these remarks do not apply to those corporate rights and franchises of the old company, which appertain to its existence and functions as a corporation. These became merged and extinct." These remarks which I have italicized, seem to have escaped the attention of the learned judge who delivered the majority opinion in the Greene County case, or else were deemed of no importance in consequence of the admitted allegations of the answer.
Chartered exemption from taxation has always been deemed a vested right, incapable of revocation or abrogation by the legislature, or by consolidation in consequence of legislative action or authorization. Not so, however, as above seen, in respect to those rights and powers which are not vested, and do not become so in consequence of remaining unexecuted. In the Clark Co. case, 54 Mo. 58, and the Sullivan Co. case, 51 Mo. 523, no question of consolidation arose, and consequently they cannot be urged in support of the Greene County case, even should it be thought to antagonize this one on the point of consolidation.
Again, a branch road necessarily presupposes a main trunk line. It is a simple solecism to make any other supposition. It would be just as reasonable to suppose a branch without a tree, an agent without a principal, or a child without a sire. No pretence is made that the main line has ever been built. The K. C. & M. R. R. Co. either had its origin in the act of 1868 or it had not. If not, then what color of validity can corporate acts have which rest upon no legislative authority?
If, on the contrary, that organization is based upon that act, then no refuge is left from the inevitable result that the inhibition of the constitution of 1865, requiring a two-thirds vote to be taken before subscription, applies. The majority opinion in the Greene County case, admits that the K. C. & M. R. R. Co., "for all practical purposes is really a distinct and independent branch. The union exists simply in name but not in substance." This statement is fully borne out by the record here. What is called a branch road, is, under the very terms of the act of 1868, totally distinct from the H. & St. Jo. R. R. Co., with separate stock and stockholders president, directors and liabilities. This being so, this question at once seeks an answer: Can the mandates of the constitution of 1865, be thus flimsily evaded by merely calling what is in evident truth and fact an independent road, "a branch?" If so, then in the expressive language of Mr. Justice Norton in the LaFayette Co. case, "Constitutional provisions accomplish nothing, and organic laws may be set at naught by the merest evasion". If then, the K. C. & M. R. R. is to be regarded as an independent organization, as having its origin in the act of 1868, and of this a perusal of that act and of the facts disclosed by this record, will convince any one, then under the authority of the Saline County case, 51 Mo. 351, and of the Callaway County case, Id. 395, a vote, as required by the constitution, was an indispensible pre-requisite to a valid subscription. In Nugent v. Supervisors, 19 Wall. 241, the subscription
had been made and accepted by the company, anterior to the occurrence of consolidation of that company with another; and that case is distinguished on that express ground, from that of Marsh v. Fulton Co., 10 Wall, 676, where, in 1853, the Mississippi R. R. Co. was incorporated by the legislature of Illinois, and authorized to construct a railroad from Warsaw, on the Mississippi river, to the east line of the state. A vote of the people of Fulton Co. was then taken, authorizing a subscription to the stock of this company. After vote taken, but before subscription made, the legislature, in February, 1857, amended the charter of the company, divided the road into three divisions, designated as the Western, Central and Eastern, and each division was authorized to elect a separate board of directors for the management of their own division, conformably to this action of the legislature. A subscription was then made to the central division; but it was held by the Supreme Court of the United States, that this was a totally different enterprise from the one authorized by the vote had, and that the bonds were void and valueless in whosesoever hands they came.
That case, which has twice been cordially indorsed by this court, in State v. Saline County Court, 48 Mo. 390, and Ranney v. Baeder, 50 Mo. 600, confessedly bears a striking resemblance to the present one. Here, a subscription was authorized to the K. C., G. & L. S. R. R. Co. That company afterwards by legislative authority changed its name to that of the K. C. & C. R. R. R. Co. After that an alleged consolidation occurred between the latter company and the H. & St. Joe R. R. Co. After that the subscription was made to the last named company, for the use of the K. C. & M. R. R. Co., the mere creature of the act of 1868. A more conspicuous parallelism could not well exist between two cases, because there can be no difference in point of principle between an authority to subscribe to a particular company, conferred under legislative sanction by a vote of the people and a like authority directly conferred by statutory enactment, as, in either instance, the effect and consequences attending a subsequent consolidation can not fail to be the same. hold, therefore, that the rule of law which dominates the Fulton County case, must also dominate this one, and be conclusive against a recovery by the tax collector.
It is claimed, however, that a large number of the bonds issued have been transferred to "innocent purchasers," and, therefore, the bonds should be paid even unto the uttermost farthing, regardless of whatsoever means, measures and motives may have caused the market to be flooded with the unwarranted issue. But where there is a total lack of power to make the subscription, there can not be such a thing as an innocent purchaser. County of Dallas v. McKenzie, 94 U. S. 660; McClure v. Township of Oxford, id. 429; Marsh v. Fulton Co., 10 Wall. 676; Aspinwall v. Commrs. of County of Daviess, 22 Howard, 364.
But granting that there may be, is it not barely possible that the tax-payer who is called on to pay these unauthorized bonds has some rights
which the courts should feel bound to respect? Is the judicial eye to bestow no glance in the direction of the defendant to the action? His property at least, has been acquired in no questionable manner, and certainly his equities to have that property protected against unlawful assessments and seizures are evidently equal to the equities of him who has bought these bonds with the law and the constitution staring him in the face; who, reaching out with insatiate arms to grasp in all the shore, has "taken the chances," and taking them, has made speculations without profit and ventures without gain. The judgment is reversed. Judges Henry and Norton concur in a separate opinion. Judges Napton and Hough dissent, both filing dissenting opinions.
NORTON and HENRY, J.J., concurring:
We concur, but express no opinion as to the effect of the act of 1861 on the question involved. We are fully satisfied by the other reasons given in the foregoing opinion that the county court of Greene County was not authorized to subscribe for the stock in question, and that the bonds issued in payment therefor are not binding on the county.
It is not the case of an irregular exercise of au thority, but of an assumption or authority where none existed, and we think that the bonds are therefore utterly void, no matter in whose hands found.
HOUGH, J., dissenting.
On the 29th day of March, 1878, the plaintiff instituted suit in the Greene Circuit Court to recover back taxes, designated on the back tax book as railway taxes for the years 1875 and 1876, on land in Greene county, in the State of Missouri; to pay interest on certain bonds, heretofore issued in the name of said Greene county to the Hannibal & St. Joseph Railway Company, to aid in building the Kansas City & Memphis Railroad, as a branch of said Hannibal & St. Joseph Railroad. On the 20th day of May, 1878, final judgment was rendered in favor of the plaintiff, from which judgment the defendant has appealed to this court. is agreed between the parties to this suit "that the only question at issue, or sought to be raised in this case or submitted to the court for adjudication, is the validity of the bonds issued by and in the name of Greene county, to pay a subscription of stock in the Hannibal & St. Joseph Railroad Company, to aid the building of the Kansas City & Memphis Railroad, which bonds were issued and sold, and the proceeds expended in the work of grading and masonry on said road." This identical question was considered and decided in the case of State, at the relation of the Attorney General, v. Greene County and Greene County Court, 54 Mo. 540, which was a procceding to restrain by injunction the collection of a tax levied, and the further levy of any tax in Greene county for the purpose of paying either principal or interest on the bonds aforesaid, and said bonds were in said suit declared by this court to be valid, on facts stated in an answer filed by Greene county. The object of the present appeal is to review that decision.
That decision furnished a rule of property as to
those bonds, which is binding upon Greene County and its citizens. Moreover, that decision was rendered at the January Term, 1874, of this court, and the ruling there made as to the effect of the consolidation of the K. C. & C. R. R. Co. and the H. & St. Joe. R. R. Co., was two years afterwards cited with approval in the case of Daniels v. St. Louis, K. C. & N. R. R. Co., 62 Mo. 43, the opinion in which latter case was concurred in by all the members of this court, except Judge Vories, who was absent. Credit and currency having been thus given by this court nearly five years ago to these bonds, whatever might be my opinion, if the question were an original one, I can not now join in declaring these bonds invalid, especially in a case to which the holders of the bonds are not parties. State ex rel. v. Sanderson, Collector, 54 Mo. 203. If any persons have purchased these bonds on the faith of the decisions of this court declaring them to be valid, they are as much entitled to protection as they would be if the right of the county court to issue the bonds had been affirmed by this court before the bonds were issued. Smith v. County of Clark, 54 Mo. 75; Gelpke v. City of Dubuque, 1 Wall. 175; Thompson v. Lee County, 3 Wall. 327; Havermeyer v. lowa County, Ib. 294; State of Missouri v. Miller, 50 Mo. 133.
For these reasons, I am in favor of affirming the judgment of the circuit court.
NAPTON, J., dissenting:
I dissent from the above opinion. I adhere to the decision of this court pronounced by Judge Wagner in 1874, 54 Mo. 540, and subsequently, in 1876, reiterated in Daniels v. St. L., K. C. & N. R. W. Co., 62 Mo. 48, which had the concurrence of all the judges, except Judge Vories, who dissented from the original opinion. But whether the original opinion in this case was right or wrong, since on the faith of it money was invested, I am opposed to disturbing it. I, therefore, dissent in toto from the above opinion.
NOTE. For the first time in the history of Missouri adjudications has the act of 1861 received judicial attention, and its provisions been fairly examined in the light of established rules of interpretation. The only other case in which any mention whatever of the act, or its existence, is made, is Smith v. Clark County, referred to by Judge Sherwood in the principal case. Here, Judge Napton, in summing up, says of this act: "Whatever, therefore, might be the opinion of this court, or of any individual judge, had the question come up for examination as an open one, we are all of opinion that it is now too late to disturb the received construction." One would naturally infer from this language that the act of 1861 had, through a long line of unbroken decisions, already "received construction," and that it was a matter of judicial regret that the question was no longer an open one. In examining the opinion of the court for this line of decisions, we find the following statement: "The question is whether these provisions in the general law (1861), on the subject of railroad corporations, repealed the specific provisions of the special acts chartering particular companies. In 1867, the Macon County case was decided, and the subject was there discussed and decided." After referring to the Macon County case and its citations, reference is made to State v. Probate Court, 38 Mo. 529, and City of St. Louis v. Ind. Ins.
Co., 47 Mo. 146, concluding with this emphatic declaration: "So that the provisions of the Revised Code of 1855 and the amendatory acts of 1860 and 1861, have been held by repeated adjudications # not to effect the repeal of the privilege contained in special charters." The court does not itself decide that the act of 1861 ought not, or does not, repeal the so-called privilege, but carefully places the responsibility of such a result upon those " repeated adjudications," and adhering with almost reluctance to the rule of stare decisis, yields to what they say was decided in the Macon County case. But in none of the opinions in the cases cited is this act of the legislature mentioned, or in any way alluded to; it must be then that, in the view of the court, some inexorable rule of construction was there declared, which applied with equal force to the provisions of this act. Now, what was that rule? Was it as the court assumes, or was not the character of language used in this statute expressly excepted and saved from its operation? Judge Wagner delivered the opinion in the Macon County case. He was there considering two affirmative statutes, both enabling acts, the first of which in the special charter of the railroad company, provided "it shall be lawful for the county court of any county to subscribe;" and the second, a general law provided that "it shall be lawful for the county court of any county to take stock; provided, twothirds of the qualified voters of the county assent thereto." The second and later act was just like the former, except to it is added the proviso requiring a vote. In discussing the effect of the later general act, Judge Wagner lays down a rule which is supposed to be applied in the Clark County case, one which has ever since been cited with approval and followed by that court. "A later statute which is general and affirmative does not abrogate a former which is particular, unless negative words are used, or, unless, the two acts are irreconcilably inconsistent." So that if negative words are used, or if without such words the two acts are irreconcilably inconsistent, a later general statute does abrogate a former which is particular. A sense of the imperative distinction between the use of affirmative and negative words is impressed on every page of his opinion, saying again: "Besides the 17th section of the general railroad law, with which the enabling act is supposed to conflict, uses no negative words." Again, in the same opinion, in commenting on Vastine v. Judge of the Probate Court, 38 Mo. 529: "But we decided that as negative words were not used, there was not such an inconsistency as would produce a repeal by implication, and prevent both laws from standing together." In the subsequent case of City of St. Louis v. Ins. Co., 47 Mo. 146, cited by Judge Napton as a precedent for his decision, the court again repeat the language just quoted from the Macon County case, and, concluding, say, "this is the general doctrine, and it has been often adjudged in this court."
It appears then that, at the time the court were writing the opinion in the Clark County case, the unquestioned and oft-repeated rule in this state was that, when negative words were used in the later general statute, they did, by implication, repeal a former special act. The court were then considering two inconsistent statutes. The first, affirmative and special, the second, negative and prohibitory, but general: by the former "it shall be lawful for the county court, of any county, to subscribe;" by the latter "it shall not be lawful for the county court of any county to subscribe," unless with the assent of a majority of the resident voters.
The exercise of the power permitted by the first, is by the second statute made unlawful, the two are manifestly repugnant-irreconcilably so-and the negative words used in the latter, distinguish it from the statute considered in the Macon County decision, and bring it
within the letter and the spirit of the exception, which is a part of the rule there laid down. To the profession, who are deeply interested in the final and fair solution of the intricate questions involved in the bond litigation, it is of the highest importance that before a case becomes a precedent it should be clear that it is not the result of misapprehension. "Precedents should be light-houses to a port of safety."
While it may be true, when courts decide a question, that decision becomes an element in the protection of property rights; yet, when courts declare that, in some other case, they have made a decision, which they never made, such declaration ought not to be held equivalent to a decision of the yet undecided question, and fairly subjects the court to the criticism, respectfully made, of having ignored or overlooked the terms of a statute they were required to enforce.
The legislative history of this act of 1861, will throw much light upon its purpose. At that time every railroad in operation, or projected and surveyed, in the state of Missouri, was brought into existence by a special charter. It then became the avowed policy of the general assembly to impose a restraint upon the unlimited powers to subscribe contained in charters, and to protect the people where they most needed protection. To attribute to that body a design of saying from the operation of this act the only class of corporations which could invade its declared policy, would empty the act of all meaning, leaving it upon the statute book meaningless and useless. And so careful was this legislature, and so exact in expressing their meaning, that they used language which, from the days of the common-law to this day, has been adjudged to be a competent and convenient method of repeal. And, as though apprehensive that the emphatic language used in the second section might be overlooked, they went further and stamped the unlawful act as a crime. If, we ask, it is ever possible for a general law, by reason of repugnancy, to abrogate or limit the effect of a special law, and if it was the intention of this legislature to accomplish this result, what other and more explicit language could have been employed? Can it be that the general assembly enabled counties to subscribe without a vote under a charter, while the same subscription, if made under the general law, was denounced as a crime? In the language of Holt, C. J., in Bartlet v. Viner, Skinner Rep. 322: "Therefore, in every case where a statute inflicts & penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, for it can not be intended that a statute would inflict a penalty for a lawfulact."
The doctrine of the Alexander case, 23 Mo. 483, that a general prohibition against subscriptions may well comport with a special indulgence to subscribe, stands alone in the decisions of this state in its application to repeals by implication-often cited, never followed. In its entire application it has been overruled by State v. H. & St. Joe R. R. Co., 60 Mo. 143. In considering that doctrine it may properly be assumed-1st, that there are repeals by implication; 2d, that under certain circumstances special acts may be modified or repealed by a subsequent general act. These distinguishing circumstances are-1st, irreconcilable inconsistency; or, 2d, the use of negative words in the later act; or, 3d, a penalty affixed to the commission of the act as originally permitted. Certainly the act of 1861 contains the two last, so that the indulgence is denied by negative words, and made unlawful and criminal by the penalty affixed. If this be no modification or repeal, then the old rule has been superseded in this state, and no special law can be repealed by implication. To the honor of Judge Sherwood, let it be said that he has rescued this act from judicial oblivion, and adjudged from the bench what the legislature first declared-that a subscription without a vote was unlawful and a crime.
It will perhaps be insisted by those who represent the broker and the bondholder, that although this question was not passed on when the Green county bonds were first examined by the Supreme Court, yet policy and expediency require that their validity should never again be subjected to other tests, or the operation of laws overlooked or ignored. This argument is sometimes urged in favor of a purchaser who has been misled; but far oftener it is the refuge of the bond gambler, who demands the sacrifice of every other interest to his own, and who looks upon courts rather as his accomplices in speculation than as tribunals appointed to administer equal and exact justice. Far beyond the question of expediency there is involved a great question of right and wrong, which will never be satisfactorily answered until courts declare that it is never expedient to do wrong.
It will not do to say that the re-examination of bonds upon new issues will tend to weaken the effect of decisions and disturb the influence of courts, because this is a right exercised by the judiciary upon all other questions, and in all other matters it is conceded without challenge; and besides, the Supreme Court of the United States has so thoroughly demonstrated the elasticity of the law on the bond question that it would be unbecoming in the profession to criticise the Supreme Court of Missouri. Vide Harshman v. Bates Co., 92 U. S. 569, 3 Cent. L. J. 367; contra, Cass Co. v. Johnson, 95 U. S. 360, 5 Cent. L. J. 506.
The diversity of opinion in our state court is no less marked than on the Federal bench,where such men as Justices Miller and Bradley have always on these questions dissented from the extreme views of the majority. Just where these extreme views, when enforced, may lead us, can not be contemplated without some misgiving. It has been a part of the education of every lawyer that to the sovereignty of the state was committed the exclusive power of exercising, regulating and limiting the right of state taxation. when the Missouri Legislature, before authorizing the issue of municipal bonds, provided as a protection for the tax-payer a limitation upon the amount of tax to be imposed for this purpose, (State v. Shortridge, 56 Mo. 126), a majority of the United States Supreme Court, refusing to follow this decision, proclaimed the right of the bond-holder to all the county revenues, irrespective of this limitation. United States ex rel. Johnson v. County Court of Clark Co., decided in January, 1878.
And peremptory writs of mandamus are constantly being issued by both the Federal Courts in this state commanding county officers, regardless of the requirements and necessities of the county itself, to pay the judgments on bonds out of any moneys in the treasury; and as these judgments are largely in excess of the amounts raised by special railroad tax, the counties are required to exhaust all other funds, leaving nothing for the current expenses-nothing for courts, grand juries, poor-houses, etc. When that court undertake, in behalf of a particular class of creditors, to take the entire revenue of a county for the payment of their dues, and hold that until the bondholder gets his pound of flesh no municipality in this state shall be permitted to use from their own treasury the necessary means to support courts of justice, pay its grand jury, care for its paupers, or punish its criminals, it amounts to a complete destruction of the means, and hence the right, of local government. It is but a step further to concede a jurisdiction to the Federal Courts of dispensing with those rights which have been reserved to the states; and to grant to them the exercise of powers which would be more tolerable under an absolute government.
The tendency of that decision may not now be so apparent; perhaps it is only a shadow. The danger is the shadow may materialize.
SCHOOL LAW-CERTIFICATE-STATUTE.-Action by appellee against appellant for services as a school teacher. Appellee was employed for a certain time at a certain monthly salary, and at the end of the month was discharged by two of the directors. It was argued that the certificate of the qualifications of appellee as a teacher, was not sufficient under the statute, which provides: "No teacher shall be authorized to teach a common school, * * who does not possess a certificate as required by this section." It is made the duty of the county superintendant "to grant certificates to such persons as may, upon due examination, be found qualified, * and said certifi
cate may be in the form following." Here follows a form. DICKEY, J., says: "The certificate produced complies fully with the statute in this respect. It is not invalid for want of conformity to the form furnished in the statute. The statute prescribes what fact the certificate must state, and then adds that the certificate may be drawn in a given form. The word 66 may," in this case, was not intended to be interpreted "must." Nor is it conceived that such certificate can be invalidated in this proceeding by proof that no personal examination of the teacher was had. The certificate is in the nature of a commission and can not be attacked collaterally." Affirmed.-School District No. 6 v. Sterricker.
PUBLIC ROAD-OBSTRUCTION-DEDICATION.-This was a prosecution under the statute for obstructing a public road by fencing. The land in question was vacant and unoccupied, the public traveling over it until February, 1876, when the appellant, who owned the adjoining property, began improving and fencing it. The public had been traveling over it unopposed for more than twenty years, but the travel was not confined to any particular track. Several efforts had been made to lay out a road, but failed. A plat and survey of the road had been made, but some time after appellant built the fence. BREESE, J., says: "We understand it to be conceded by appellee there is no record of any highway at this point established by the civil authorities, but they contend there was a public highway there either by dedication or by user for twenty years, or by prescription. *As to ded
ication, we think the testimony quite unsatisfactory. In order to justify a claim that title to a tract of land has been divested by dedication, the proof should be very satisfactory, either of an actual intention to dedicate, or of such acts and declarations as should equitably estop the owner from denying such Intention. Kelly v. City of Chicago, 48 Ill. 388. Our experience teaches that land has been used by the public, in different parts of the state, for the purposes of travel when it was vacant, and the owner having no