Volume 5 — Dakota Reports

W. B. McConnell, Judge. The plaintiffs charge negligence. The defendant contends that it does not appear that the building of the railroad caused the alleged damage to plaintiffs’ property; but if it should be shown that the damage was the result of building the railroad properly, and with due care, that an action will not lie for such damage.

S. A. Hudson, Judge. The plaintiff urges that appellants ratified the agency of Howard by permitting the conveyance of these lots to stand. They certainly did not ratify any fraud on the part of Howard, unless they knew of it. They ratified simply the giving of the price of the lots, and that the conveyance might stand in their three names as tenants in common. In so far as Bruns was concerned, Howard never had authority to make any bargains respecting these lots.

Bartlett Tripp, Judge. The only ground upon which this contest is based is the allegation that there was no meeting of the board of registry prior to said election, and no evidence was furnished by… Held: on the contest of an election, that unregistered persons who had voted at the election without having been registered, and without having furnished proof that they were entitled to vote, as required by the registry law, should not be rejected.

C. S. Palmer, Judge. Two material issues were made by the pleadings: 1. Had the defendant, Pettigrew, built a dam in a manner that exceeded the restriction in the deed ? 2. Were the lands of the plaintiff, Langness, overflowed and damaged by reason of the defendant building a'mill-dam in a manner exceeding said restriction ? In addition to this, it appears by the record the construction of the clause in the deed was a subject of controversy.

L. K. Church, Judge. Referring to section 269 of the Code of Civil Procedure, we find that the judge must either adopt as his own the findings of facts that have already been prepared by his directions, or else he must himself prepare the findings.

W. B. McConnell, Judge. The mortgage covers only such crops as were in existence at the date of its execution, and does not purport to embrace crops to be sown subsequent thereto. The ¡testimony shows that the property pretended to be mortgaged had no existence when the mortgage was made. There was no agreement in the mortgage that the mortgagee should have a lien upon crops to be sown or property to be acquired subsequent to the execution of the mortgage.

C. S. Palmer, Judge. This action was to recover the value of a mare that had been killed on the defendant’s track. The plaintiff had judgment below, and the defendant appealed. The animal was killed at a bridge 105 or 107 rods west from a station called “Hartford,” by a regular west-bound “mixed” train, on the evening of November 26,1881. The train arrived at the station at 9:05 p. m., and left at 9 : 15 p. sf.

W. H. .FRancis, Judge. The proceedings of the board of county commissioners of Stutsman county show that appellant W. E. Mansñeld, on the Tth day of January, 1885, presented for approval his bond for •county treasurer for the ensuing term, and that it was rejected. Their proceedings of the 8th show that he was present, and waived his right of ten days for qualifying as treasurer, and the waiver was accepted by the board.

C. S. Palmer, Judge. The jury are constituted the sole judges of the credibility of the witnesses and the value, force, and effect of their testimony. Held: in legal effect, to be the same thing as fraud. Jones, Bailments, 46, 47; Foster v. Essex Bank, 17 Mass. 479; ■National Bank v. Graham, 100 U. S. 699, 702; Bank v. Bank, .70 N. Y. 278; Tracy v. Wood, 8 Mason, 132.

C. S. Palmer, Judge. Cady testifies that on April 30th he had killed, — one cow, worth $100; one cow, worth $25; one cow, worth $40, injured, which died three days after; one heifer, damaged $10 to $12; and on May 7th, one cow killed, worth $55. He presumes these to have been killed by the company; did not see the killing; and his testimony relative to it is hearsay, incompetent, and would not warrant a verdict.

W. H. Francis, Judge. The mechanic’s lien was made and filed by the plaintiffs at their own expense, and for their sole use and benefit. After filing, it still remained their property, and they had a perfect right, with consent of the clerk, to withdraw it from the files, and to destroy it, or correct an error in it, so long as such correction was made fairly, openly, and in a manner that could not deceive the public.

Wm. B. 'McConnell, Judge. Action by Samuel A. Sawyer, David L. Wallace, and Thomas Miller, partners under the name of Sawyer, Wallace & Co., .against the defendant to recover for services and money advanced. The defendant set up a discharge in bankruptcy. The ^plaintiffs had judgment, and the defendant appealed.

C. S. Palmee, Judge. A public office is a right to exercise a public employment. The right to the fees and emoluments are stated to be co-extensive with the office. The fees are incident to it, as fully as are the rents and profits of lands. Mayfield v. Moore, 53 Ill. 431; 2 Blaekstone, 36; Cox v. City of Burlington, 43 la. 614.

Bartlett Tripp, Judge. The action was for the price of certain beer the plaintiff had ■sold to A. W. and F. W. Mielenz, partners. The defense was that the beer was not what it was warranted to be. A counterclaim was also interposed on the same ground, as appears by the opinion. The plaintiff denied the matters set up in the ■counter-claim. There was a verdict in favor of the defendants. Plaintiff appealed.

L. K. Church, Judge. The statutes create but one county board, — the board of county commissioners. Section 29, c. 21, Pol. C., contains the general grant of power to them.

W. H. FraNCIs, Judge. Was there a right of homestead in these buildings and the land on which they stood on October 19, 1878, so that the signature of Miller’s wife, or her concurrence in the bill of sale, was necessary to its validity ? The homestead law is construed liberally for the family, and strictly against the creditor and purchaser. Thompson, Homesteads, 8; Whittle v. Saunders, 54 Ga. 548, 65 Amer. Dec. 484.

O. S. Palmee, Judge. On the powers of banks and their officers, see section 5136, E. S. U. S., subsecs. 5, 7; Ball, Nat. Banks, 49; Morse, 107-109. A cashier has no authority to make any statement to a person 1 about to become an indorser, releasing any liability. Morse, 152-157, 189, and cases cited; Ball, 60-63; Chemical Nat. Bank v. Kohner, 58 How. Pr. 267; Bank of U. S. v. Bunn, 6 Pet. 51; Bank of U. S. v. City Batik, 21 How. 356; First Nat.

L. K. Church, Judge. The doctrine has been long settled and uniformly upheld that, while the legal title to lands remain in the United States, and proceedings for acquiring this title are yet in fieri, the courts will not interfere to control the exercise of the power vested in the land department of the government.

W. H. Francis, Judge. The uncontradicted testimony in the ease shows that on the 22d day of September, 1886, the defendant was first sergeant of troop D, Seventh United States Cavalry, stationed at Fort Yates; that the complainant was at the same time a private in said troop; that on said 22d of September, defendant received orders to arrest the complainant, and confine him for an infraction of military rules; that he went to complainant’s quarters for the purpose of…

Bartlett Tripp, Judge. All of the elements of the offense, and the means to effect the crime, must be charged. The use of the word “rape” is not sufficient. 5 Crim. Law Mag. 610; 2 Bish. Crim. Proc. 82, 976, n.; Bish. Div. & E. 803; 1 Buss. (7th Ed.) 693, 697. The proof must show that the defendant intended to use force to the extent of rape. Stephen v. State, 8 N. E. Bep. 94; 1 Bish. Crim. Law, 203, 733; 2 Bish. Crim. Law, 979; 4 Crim. Law Mag. 274; Sanford v. State, 12 Tex.

W. B. McConnell, Judge. The plaintiff’s legal residence is in Fargo. The term “residence” does not admit of an exact, all-comprehensive definition, for the reason that its signification varies according to the subject-matter with reference to which it is employed. Frost v. Brisbin, 19 Wend. 11; Haggart v. Morgan, 2 N. Y. 422; Bell v. Pierce, 51 N. Y. 12; Stout v. Leonard, 37 N. J. L. 492; Fitzgerald v. Arel, (la.) 16 N. W. Bep. 712; Bor-land v. Boston, 132 Mass. 337.

A. J. Edgerton, Judge. The testimony which the appellant introduced fully rebutted the prima facie case made by the respondent, and conclusively showed, as a matter of law, that there was no negligence on its part in any of the respects charged against it. The testimony which the respondent offered in the first instance only made out a prima facie case against the appellant.

<p>Original application for a writ of mandamus.</p>

<p>.Executions — Property Subject to Levy.</p> <p>The levy of an execution on a school-warrant of a judgment debtor prior to its receipt and acceptance by him creates no liability in favor of the plaintiff in the execution as against the school-district.</p>

Bartlett Tripp, Judge. Appellant, to secure a reversal, need only show a prima facie-case before the district court. Thompson, Juries, 36; Woods. v. Atlantic Mutual Ins. Go., 50 Mo.. 112. Appellant’s mortgages on the property were prior to the respondent’s. His, as to the wagon, was given before the mortgagor owned it; it was therefore void. Jones, Chat. Mor. § 138;.

•James Spencer, Judge. The face value of commercial paper, it may be conceded,'is prima facie the measure of damages for its conversion. It is competent, however, to show the insolvency of the maker •or any other circumstance to lessen the damages. 3 Suth. Dam. 522; Pottery. Merchants' Bank, 28 N. Y. 641; Booth v. Powers, •56 N. Y. 22; Latham y. Brown, 16 la. 118; Holt y. Van Bps, 1 .Dak. 206.

<p>1. Mechanics’ Liens — Subcontractors—Notice.</p> <p>Under section 556, C. C. Pro., as amended by chapter 94, Laws 1881,. providing that every subcontractor desiring to avail himself of a mechanic’s lien shall give notice to the owner, etc., “before or at the-time” he furnishes any material, of his intention to furnish the same,, the notice is a prerequisite to the establishment of a valid lien.</p> <p>2. Same — Personal Judgment — Privity of Contract.</p> <p>In such case, where it appeared the subcontractor commenced to furnish the materials for which he claimed a lien about a month before-giving notice to the owner, held,, the lien was invalid, and, there being-no privity of contract, he was not entitled to a personal judgment, against the owner.</p>

<p>1. Specific Performance — Contract—Certainty.</p> <p>P., in consideration of a conveyance of land at a certain figure, on> which, to plat a town, agreed to plat the same and reconvey to the-owner a block of average size to include the land on which his dwelling stood. After the town had been platted this block was fractional.. Held, the agreement was too indefinite ánd uncertain to be specifically enforced.</p> <p>2. Same — Part Performance.</p> <p>In an action for specific performance of a contract, a party cannot:, predicate part performance upon being in possession of the land, when, the possession was not induced by the contract.</p>

An appeal from an order of Hon. Jambs Spencer, Judge, Fifth district. Subdivision 5, § 23, Laws 1887, provides that an appeal maybe taken “from orders made by the district court, vacating or refusing to set aside orders made at chambers, where, by the provisions of this act, an appeal might have been taken in case the order so made at chambers had been granted or denied by the district court in the first instance.”

W. B. McConnell, Judge. Cited Railroad Co. v. Jones, 95 U. S. 441, 442; Metropolis Bank v. Guttschlick, 14 Pet. 19; N.J. R. R. Co. v. Pollard, 22 Wall. 341; Detroit Railroad companies have the right to put up structures on their right of way whenever and wherever they see fit, subject only to liability for such injuries as are caused by such structures to employes while engaged in their proper sphere of duty, and to passengers while riding in their proper places on the cars.

O. S. Palmer, Judge. On the subject of gross negligence the court charged the jury as follows: “Whether or not these defendants were guilty of gross negligence, willful carelessness, or as some of the authorities see fit to describe it, ‘reckless management of their train,’ is a question of fact for you to determine from the evidence.

W. B. McConnell, Judge. The foreclosure of the mortgage, and the sheriffs deed thereunder, vested in appellant the “same estate that was vested in the mortgagors at the time of the execution of the mortgage, or at any time thereafter, ” and such deed is a complete bar against each of the defendants. C. C. Pro. §§ 614-623.

<p>.1. Indians — Conveyances of — Restraints on Alienation — Notice. Lands acquired by Indians that would abandon their tribal relations, under 18 IT. S. St. 420, were declared to be inalienable for five years. Such an Indian, having received a patent, which was in the usual form, without any reference to the statutory disability, or his being an Indian, executed a conveyance, within the five years, to B. Held, that the statute prevailed over the recitals of the patent, that purchasers must take ' notice thereof, and that the conveyance was void.</p> <p>‘2. Same — Adverse Possession — Good Faith. — Color of Title— Sufficiency.</p> <p>Under such deed, where the grantee knew his grantor was an Indian, there was no such good faith and color of title as is required for an adverse possession to defeat a subsequent conveyance.</p> <p>■3. Time — Computation.</p> <p>By an act of congress, 18 U. S. St. 420, under which a patent issued to an Indian, on the 15th day of June, 1880, it was declared the land should be inalienable for “five years from the date of the patent.” Held, in computing the time, that the first day should be included, and that a conveyance made on the 15th of June, 1885, was not within the limitation, and therefore valid.</p> <p>A. Same — Construction—Rule as to First Day.</p> <p>In such cases there is no absolute rule of computation. “From” in its literal and restricted sense means “exclusive, ” but it may be used in a connection that means “inclusive;” and to prevent forfeitures, uphold bona fide transactions, and carry out the intention of parties, courts will always regard it as so used.</p>

James Hpencer, Judge. The special act granting a charter to the city of Watertown 'was passed March 11, 1885. The sale is admitted, but justified under a license from the ■city council of WTatertown. The county claims a right to collect a license under section 7, c. 26, Laws 1879. We concede that in the case of cities incorporated under chapter 24, Pol. ■C., this right would exist.

W. B. McConnell, Judge. On or before February 1, 1887, as required by law, the plaintiff filed with the defendant a statement of its gross earnings arising from the operation of its roads in this territory for the year 1886. It did not appear what portion of such earnings arose from the operation of said roads in transporting goods or passengers through the territory, or from points without to points within, or from points within to points without, the territory.

L. K. Church, Judge. When a general appearance and answer have been interposed there can be no judgment by default, but the trial must proceed on its merits. Jus. Code, §§ 42, 43. See, also, §§ 11, 12.

James Spencee, Judge. The evidence on the part of the plaintiff tended to show that Eeed called upon the cashier of the bank, saw the satisfaction there and demanded it, and that the cashier refused to deliver it. He then demanded the money and was refused. These facts showed title and right of possession in the plaintiff, and tended to show a conversion of the satisfaction. It is true the demand and refusal were denied.

<p>1. Constitutional Law — Legislative Power — Intoxicating Liquors — -Local Option Lav.</p> <p>Chapter 70, Laws 1887, providing for the prohibition of the sale of intoxicating liquors in the several counties by local option, is not subject to any of the objections:</p> <p>1. That it deprives the citizen of his property without due process of law.</p> <p>2. That it conflicts with the Organic Act of the territory.</p> <p>8. That it conflicts with the revenue laws of the United States, granting license to sell intoxicating liquors.</p> <p>4. That it conflicts with the act of congress prohibiting the legislature from passing any law “impairing the rights of private property. ”</p> <p>5. That it conflicts with the act of congress prohibiting local or special legislation.</p> <p>6. That it conflicts with the act of congress in delegating legislative power.</p> <p>2. Same — Police Power — Intoxicating Liquors, Sale of — Counties.</p> <p>Such a statute is of a police nature, and a rightful subject of legislation within the power conferred by the Organic Act, and, being local in character, may be left to each county to determine when it shall be enforced therein.</p> <p>3. Same — Statutes—Operation—Penalties for Violation — Habeas Corpus.</p> <p>Section 5 of the act provided that “in addition to the penalties now prescribed by law any person * * * who may sell any intoxicating liquors without a license having been duly granted as provided bylaw, or where the license is granted in violation of this act, shall be restrained from so doing by proper injunction. ” Held, on habeas corpus, where the petitioner had been arrested on a complaint before a justice of the peace charging him with selling intoxicating liquors in violation of the act, that the objection that the statute provided no penalties, and could not be enforced, was not well founded.</p> <p>4. Same — Enactment—Verity of Official Certificates.</p> <p>Where the certificate of the presiding officer of each house shows that the act was regularly passed, and it was in proper time approved by tbe governor, and there is no affirmative record that it did not secure the concurrence of both house, the court cannot say the certificates of these officers do not import verity</p>

C. S. Palmee, Judge. By chapter TO, Laws 188T, § 1, the board of county commis sioners are only authorized to act in case of certain events, viz.: (1) That a petition shall be presented to them; (2) it shall be signed by at least one-third of the legal voters of the county; and (3) that the only evidence that the county commissioners can regard, or look at, in measuring the qualifications of these voters, is the list of those who voted at the last preceding general election.

<p>Appeal from district court of Minnehaha county; Hon. C. S. Palmer, Judge.</p> <p>The local option law is unconstitutional. Cooley, Const. Lim. 139; Barto v. Himrod, 8 N. Y. 483; State v. Weir, 33 Iowa, 143; Ex parte Wall, 48 Cal. 279; Willis y. Owen, 43 Tex. 41; Farnsworth v. Lisbon, 62 Me. 451; Auditor y. Holland, 14 Bush, 147.</p> <p>In 1871 it was decided in the state of Iowa’ that such local option statute was unconstitutional. State v. Weir, supra, citing Santo y. The State, 2 Iowa, 203; Geebrick v. The State, 5 Iowa, 492. See, also, Lammert v. Lindwell, 62 Mo. 183; State v. Field, 17 Mo. 529; Bice v. Foster, 4 Harr. 479.</p> <p>There are decisions holding the other way, but a distinction can be made between them and the cases that we have cited. They only to a very limited extent sustain such statutes. We find that they are almost invariably an overruling or modification of earlier well-considered cases which have given the law largely to this country, and become leading cases. They are quite exceptional. Fell v. State, 42 Md. 71; Locke's Appeal, 72 Pa. St. 491.</p> <p>Section 1846, Bev. St. U. S., vests the legislative power in the governor and legislative assembly. Section 1 of an act of congress approved July 30, 1886, provides that the legislatures of the territories of the United States now or hereafter to be organized shall not pass local or special laws in any of the following enumerated cases, that is to say; * * * Regulating county and township affairs. Chapter 70 is in violation of this statute. Maisze v. The State, 4 Ind. 342; Meshmeir v. The State, 11 Inch 482; Parker v. The Commonwealth, 6 Barr, 507; State v. Parker, 26 Vt. 357.</p> <p>Chapters 70 and 72 of the Session Laws of 1887, being both passed at the same session of the legislature, and both in reference to the same subject-matter, must be construed together, if possible, and effect given to each. Sedg. St. & Const. Law, 209; People v. Jackson, 30 Cal. 427; Cain v. State, 20 Tex. 355.</p> <p>Chapter 72, § 1, and chapter 70, § 3, appear to be in conflict, and, unless they can be reconciled so that effect can be given to each, one or the other of them must fall. It is a well-settled rule that where statutes apparently conflict it is the province to reconcile them, if possible, and thus give effect to the entire legislative expression. Can this be done with these two statutes ? It seems to us that it can be done, and that effect can be given to both. The statute would then read: “Should a majority of the ballots cast at such election be against the sale, it shall be unlawful for the board of county commissioners of such county to issue or grant a license for the sale of intoxicating liquors in such county; or of any common council or officer of any incorporated town, city, or village in said county to grant or issue any license for the sale of intoxicating liquors, unless said city has a special charter giving it the exclusive authority in the matter of granting licenses for such sales.” It seems to us that this is a reasonable interpretation of these two statutes. In the first place, the city of Sioux Falls, or any city having a special charter giving it exclusive power to grant licenses, is taken apart in this matter and all other matters in which exclusive power is given to it from the remainder of the county.</p> <p>The voters of the county at large could say nothing in regard to who shall be the city officers, as to what the city taxes shall be, as to what ordinances or by-laws it may pass, or as to what licenses it may grant. It was not intended by the legislature that the people of the county should control any of its municipal affairs. Now, in the face of these two laws passed at the same session, will this court say that in this one matter, although in all other things appertaining to this municipal gov-eminent it is recognized as being distinct and apart from the remainder of the county, although in all its other affairs the county, by its voters, can in no way disturb or regulate it, still in this one- matter every voter within that city may have expressed himself the other way; that the ones living in the county outside of it, paying none of its taxes, regulating none of its affairs, having no voice in the administration of its peculiar matters, may step in and say: “ We shall attend to this. We ought not to have any voice in it, but we will regulate your matters. We will cut off from your income what you may desire for the purpose of fixing your streets; of paying your officers, which you have to pay alone; of making your municipal improvements, in which we have to pay not one dollar. We will step in and abrogate this, and thus make taxation heavier upon your citizens, reduce their revenue, and take from you that power, that authority, that right, which your special charter had given you.”</p> <p>Section 6 of this same law further interprets it, and, it seems to us, gives the same construction that we do. Why does not this law say that in addition to the commissioners revoking the licenses, that the city council, where they had granted license, should also revoke ? The power to revoke implies the power to grant. Let us see where this would bring us. Supposing the city council of a city having a special charter, with the exclusive power to grant licenses, had in October, 1887, granted a license for one year from that date, how could the county commissioners revoke it ? The law also says that where a license is revoked the license money for the time that has not expired shall be refunded. In such a case, would the county commissioners, from the county treasury, refund the money for the unexpired term ? Scarcely. These laws are to be construed, if possible, from the reading of the parts of the laws themselves, and then interpreted. Now, does not the very absence of anything in the law that city councils must revoke licenses in counties where the vote has been against license, and that from their city charters they must refund the moneys for the unexpired terms, show that this law never was intended to apply to municipal corporations having special charters giving them this exclusive power? Then, if it was not, does not the record in this case exonerate the defendant from any liability under the law ?</p> <p>The local option law is constitutional and valid. Section 4 of the Organic Act declares that the legislative power should extend to all the rightful subjects of legislation not inconsistent with the constitution and laws of the United States. That the territorial legislature has the power to legislate upon all matters of general concern to the people of the territory there can be no question, and that congress invested it practically with the same power of local self-government as is exercised by the states is equally clear.</p> <p>Every presumption is in favor of the constitutionality of the law, and the courts will declare a law unconstitutional only when it is clearly, palpably, and plainly inconsistent with the provisions of the constitution, and the burden is upon those who assail the act to show that it is repugnant to the constitution. Morrison v. Springer, 15 Iowa, 304; Stewart v. Supervisors, 1 Amer. Eep. §38; Ogden v. Saunders, 2 Wheat. 270; Fletcher v. Peck, 6 Craneh, 128; Griffiths v. Commissioners, 20 Ohio, App. A; Robinson v. Schenck, 102 Ind. 307, 1 N. E. Eep. 698; State v. Cooper, 5 Blackf. 258; Clark v. People, 26 Wend. 606; Morris v. People, 3 Denio, 394; State v. Able, 65 Mo. 357; Territory v. Farnsworth, 5 Pac. Eep. 871; Potter’s Dwar. St. 64, 65; Cooley, Const. Lim. (5th Ed.) 218; Wellington, Petitioner, 16 Pick. 87.</p> <p>The act in question was a perfect law when it left the hands of the law-makers, mandatory in all its parts, and there is no delegation of legislative power in the provisions of said act. State v. Court of Common Pleas, 36 N. J. Law, 72, 13 Amer. Eep. 422; Village v. Howel, 70 N. Y. 286; Fell v. State, 42 Md. 71, 20 Amer. Eep. 83; Locke’s Appeal, 72 Pa. St. 491, 13 Amer. Bep. 716; Com. v. Weber, 14 Bush, 218, 29 Amer. Bep. 407; State v. Wilcox, 42 Coon. 364, 19 Amer. Bep. 536; Boyd v. Bryant, 35 Ark. 69, 37 Amer. Bep. 6; Com. v. Bennett, 108 Mass. 27; Com. v. Dean, 110 Mass. 357; Erlinger v. Boneau, 51 111. 94; State v. Cook, 24 Minn. 247, 31 Amer. Bep. 344; C. W. é Z. Ii. R. Co. v. Commissioners, 1 Ohio St. 77; Kane v. Commissioners, 86 N. C. 8; Bull v. Read, 13 Drat. 88; Bancroft v. Dumas, 21 Yt. 456; State v. Barker, 26 Id. 357; Smith v. Janesville, 26 Wis. 291; People v. City of Butte, 4 Mont. 179, 47 Amer. Bep. 346; State v. Noyes, 30 N. H. 279; Territory v. Scott, 3 Dak. 357, 20 N. W. Bep. 401; Cooley, Const. Lim. (5th Ed.) 146-148.</p> <p>The courts of many of the states have been called upon to determine more or less directly the validity of the acts of their respective legislatures that are not only similar to the one in question, but like it in every respect. In at least 15 of the states such acts are held to be valid and constitutional, while, so far as we have been able to find, the only states holding a contrary doctrine are Delaware, Iowa, and Texas. The case of Maize v. State, 4 Ind. 342, cited by appellant, is substantially overruled by Groesch v. State, 42 Ind. 547. The question involved in Ex parte Wall, 48 Cal. 279, is not the same as in the case at bar, and the decision in that case has been greatly modified by subsequent decisions in that state.</p> <p>In Locke's Appeal, 72 Pa. St., the case of Parker v. Commonwealth, 6 Barr, cited by counsel for appellant, and freely quoted by them, is expressly overruled.</p> <p>We do not deem it necessary to enter into any argument to show that the act in question is not in conflict with the act of congress passed July 30, 1886. It is neither local nor special in the sense contemplated by congress. It applies to every county in the territory alike, and confers no greater powers or privileges upon one county than another, but is general in its application.</p> <p>It is claimed that the city of Sioux Falls is not included within the provisions of chapter 70, Laws 1887, by reason of chapter 72, and that under its charter the city council have the exclusive right to grant license. Upon examination, such construction cannot be rightfully affirmed.</p> <p>Chapter 72 is an amendatory act, and as such amends section 1, c. 26, Gen. Laws 1879, and therefore becomes a part of the provisions of the general law of 1879. The effect of such amendments is clearly set forth in People v. Sweetser, 1 Dak. 308. The principle is there clearly enunciated that “an amendment becomes a part of the original act, whether it be the change of a word, figure, or line, or striking out and inserting, or in any way modifying or altering its provisions.” And, further, that “the amendment of a statute by a subsequent one operates, as to all acts done subsequently thereto, as though the amendment had been a part of the original statute.”</p> <p>It should also be noticed that chapter 72 of the Laws of 1887 was approved February 15, 1887, and chapter 26 of the Laws of 1879, as so amended, was then in force.</p> <p>A careful examination of the provisions of the local option law of March 11, 1887, will make it evident that it was the intent of the legislature to make its provisions absolute in all counties in which a majority should vote “against the sale,” and to abrogate and repeal all special laws and charters in any way inconsistent therewith. Section 6 provides that “all acts, special or general, so far as they conflict with the provision of this act, are hereby repealed.”</p> <p>It has been suggested by counsel that chapters 70 and 72 are acts in pari materia, and as such should be construed together, and effect given to each. This proposition is virtually disposed of by the above considerations, it being amendatory,' and what was clearly the legislative intent.</p> <p>The rule of construction urged can have no application to the acts in question, for the further reasons:</p> <p>(1) The later act, approved March 11th, covers the whole subject-matter of the antecedent statute, and would repeal all previous statutes, even without an express repealing statute. People v. Sponsler, 1 Dak. 289.</p> <p>(2) The rule in pari materia does not go to the extent of controlling the language of a statute by the supposed policy of previous enactments, and cannot be resorted to where the language is plain and exact. Goodrich v. Russell, 42 N. Y. 177; Ingalls v. Cole, 47 Me. 530.</p> <p>(3) The rule can only be invoked when the statutes relate to the same identical subject-matter. Sedg. St. & Const. Law, (2d Ed.) 210-212.</p> <p>(4) These are different sets of laws, intended by the legislature to operate in different counties, and cannot be construed together.</p> <p>Special give way to general laws when the legislature annexes to the latter a repealing clause abrogating all inconsistent local or special acts. Bank v. Bridges, 30 N. J. Law, 116; 4 Field’s Lawyers’ Briefs, 520; Sloan v. State, 8 Blackf. 361. A special act is repealed by a general act when that appears to have been the purpose, of the legislature. State v. Severance, 55 Mo. 378; Eichels v. Evansville, S. R. Co., 78 Ind. 261, 41 Amer. Bep. 561.</p> <p>It is within the province of the legislature to alter, amend, or repeal a city charter or any part thereof. Section 374, Civil Code; Cooley, Const. Lim. (5th Ed.) 230-232; City of St. Louis v. Allen, 13 Mo. 400.</p>

W. B. McConnell, Judge. It is conceded that there was no evidence, direct or circumstantial, that connected the defendant with the ignition of the fire which did the damage to the plaintiff; that is, the afternoon fire, if the same was separate and distinct from the morning fire. Was there any evidence, direct or circumstantial, sufficient in law to establish any connection between the a. m. and the p. m. fire? See Gr. Ev. (Redf.

W. R. McConnell, Judge. The clause in the receipt was not complied with. Was the -clause valid and binding? Whatever doubts may formerly have existed, this question ■ cannot now be considered an open one, and must be answered affirmatively. Such a regulation is not unreasonable, and must be complied with as a condition precedent to the right to recover.

Charles M. Thomas, Judge. That the court erred in admitting in evidence tbe proceedings had in the land-office, and admitting the rules and… Held: so far as we are aware, that it was necessary for co-owners of the same location, or parties claiming under the same location, to adverse the application for a patent to such location; at least, unless one of the co-tenants or co-owners had been excluded from the possession by the other co-owners, — not this case, for this…

Chaeles M. Thomas, Judge. The question of homestead cannot be tried in this summary ■manner upon motion and affidavits, but by the court in a proper action, in which issue shall be joined and evidence taken. Blc-■Cracken v. Weitzel, 29 N. W. Eep. 62é. The customary, if not universal, procedure is by injunction. Ashton v. Ingh, 20 Kan. 670; Swenson v. Kiehl, 21 Kan. 533; Or by bill in equity to set aside the sale and remove the cloud.

C. S. Palmer, Judge. Section 23, c. 20, Laws 1887, and section 11, c. 119, of the statutes of Wisconsin, (2 Tayl. St. 1630,) are identical. When the legislature of Dakota adopted this statute it also adopted the interpretation given to it by the supreme court of that state. The supreme court of Wisconsin has decided that an appeal can be taken from an order denying or granting a change of the place of trial under this statute.

The action was brought to recover the value of a heifer owned by the plaintiff, alleged to have been killed by the negligence of the defendant in running its train upon her. Upon the trial of the action in the court below the plaintiff obtained a verdict. Motion to set the verdict aside, upon the ground that it was without evidence to support it, was duly made, and denied. Judgment was duly entered f®r the respondent.

<p>Master and Servant — Negligence—Sufficiency of Evidence.</p> <p>Plaintiff, while in the service of the defendant in loading cars from a gravel-pit with which he was familiar, received injuries by a falling, bank. It appeared the defendant’s foreman, under whom the plaintiff worked, with notice to the plaintiff and the other laborers, went upon the bank, and tried to pry it down, but, not succeeding- at first, the plaintiff returned, working at a point where he could see the foreman, and that he regarded safe, but he was afterwards caught by the falling bank. Held, there was no question of fact for a jury: (1) There was no negligence on the part of the defendant; (2) such an injury was one of the ordinary risks of the service in which the plaintiff engaged. Palmer, J., dissenting.</p>

The action was brought to recover damages for the death of John Elliot, plaintiff’s husband,' alleged to have been caused by defendant’s negligence. The deceased at the time of his death was in the employ of the defendant as a section foreman, and the injuries from the effect of which he died were occasioned by the negligence of other of defendant’s employes in running a freight train, and while making a flying switch.