at the same time to a former law which authorized commissioners to fix points and manner of crossing. The difference between the two statutes is so obvious that comment is unnecessary. Lake Shore, etc., Ry. Co. v. Cincinnati, etc., Ry. Co., 116 Ind. 578, 19 N. E. Rep. 440, was a discussion of a statute exactly like our General Statute, § 1571, except that in case of disagreement the points and manner of crossing were to be fixed in the first place by commissioners, as was the amount of compensation. On a question as to the sufficiency of allegations showing an Inability to agree, one side arguing that the necessity for showing disagreement only went to compensation, the court said: "We cannot see how it is possible, looking solely to the words of the statute, to hold that all it refers to is the matter of compensation, since to reach such a conclusion many strong and clear words must be rejected. The language is plain, but, plain as it is, we think it is not more plain than the object the legislature intended to accomplish. It is very evident that the legislature did not mean to invest the younger company with power to cross at any point and in any mode it might elect, but that, on the contrary, it meant to prevent the arbitrary exercise of the right to cross the older line.

Our conclusion is that the negotiations which the statute requires the two corporations to conduct are negotiations concerning the three things we have enumerated, [compensation and points and manner of crossing;] and, if these three things cannot be settled by negotiation, they must be brought before the appropriate tribunal for adjudication."

Cases upon

statutes similar to ours and that of Indiana are found in St. Louis T. Ry. Co. v. St. Louis, I. M. & S. Ry. Co., 100 Mo. 419, 13 S. W. Rep. 710; Montana, etc., Ry. Co. v. Helena, etc., R. Co., (Mont.) 12 Pac. Rep. 916; Toledo, etc., R. Co. v. East Saginaw, etc., R. Co., 72 Mich. 206, 40 N. W. Rep. 436; Union Pac. Ry. Co. v. Leavenworth, etc., Ry. Co., 29 Fed. Kep. 728; In re Lockport, etc., R. Co., 77 N. Y. 527; In re Minneapolis, etc., Ry. Co., 36 Minn. 481, 32 N. W. Rep. 556; and In re St. Paul & N. P. Ry. Co., 37 Minn. 164, 33 N. W. Rep. 701,-in all of which the matter of the points and manuer of crossing are treated as, or held to be, matters of judicial determination, and not of arbitrary exercise by the petitioning corporation. In the case cited above from 6 Biss, the United States circuit court of the northern district of Illinois held that, although the general policy of the legisla tion of that state was to allow a new railroad to cross an existing road at grade, equity would interfere to compel it to cross overhead, at a different place, although at some cost, where the crossing proposed would materially interfere with the business of the senior road. Judging this case by our own statute, and by these authorities, we do not think the re

spondent made out a case of necessity that it should cross appellants' tracks at the point and in the manner proposed, except as to the crossing beneath the coal bunkers of the Columbia & Puget Sound Company. One of the items in which it failed has not yet been mentioned, viz. its proposed crossing with four tracks. It showed no definite intentions at to the use of so many tracks, but suggested that it would probably use the easterly two tracks for the passage of its freight and passenger trains, the third track for the passing and repassing of locomotives, and the fourth track for connections with wharf spurs. All of these tracks it calls "main tracks," but they are obviously so in name only. The main line consists of but a single track, and the three additional tracks are for mere connections between the shops and the freight yard. Conceding, however, that a necessity was shown for two tracks for the purposes of such connection through the city. it was not suggested why these two tracks could not perform the entire service required or likely to be required. Ordinarily, under the statute, a railroad company is permitted to condemn land to a certain width, and may maintain thereon as many tracks as it sees fit, but in such a case as this, which the principal of respondent's witnesses likens to the case of a canyon or defile, the right of way allowed to be taken should be limited to what is necessary, and no more. With two tracks-an inward and an outward-it would have facilities far better than those of either of the appellants, and equal to those of nine railroads in ten in the country. Being lo cated practically upon the streets of a city, where the whole room applicable to railroad purposes is shown to be extremely limited, it should not expect more, and certainly the public interest would not be subserved by conceding more for the purposes set forth.

6. Appellants claim that there was no attempt on the part of respondent to agree with them as to the points and manner of crossing, and the record sustains them. In cases of crossings like this one courts will not be technical in requiring an effort to agree, but the theory adopted by respondent, and its letter to the appellants, shows that it purposely limited its proposition to one of compensation for the specific crossing de scribed, and none other. The importance of showing an attempt to agree upon the three cardinal points appears from the cases we have cited elsewhere.

7. We do not think there was error on the part of the judge who heard the case on the question of necessity in sending the jury trial to another judge, for the case consisted of two distinct branches. If a judge should die, or retire from the bench after ordering a jury, there could certainly be no necessity for going over the preliminary part of the case again; but on a motion for a new trial before the second judge we think the whole case would be open for re-examination, and

the better practice would be for the same Judge to hear the entire matter.

8. The proposition of the respondent to stipulate that it would put in and maintain at its own expense all necessary frogs and crossing apparatus was proper, and is sustained by authority. Chicago, etc., Ry. Co. v. Joliet, etc., Ry. Co., 105 Ill. 388. So, also, we think, would be the proposition to construct and maintain the overhead arrangement for the crossing under the bunkers, the manner of construction being left to the court in case the parties could not agree.

Other questions in the case appealed have either been covered or are immaterial to a decision. The decree of appropriation will be reversed, and the petition dismissed.

DUNBAR, C. J., and ANDERS and SCOTT, JJ., concur.

(7 Wash. 69)

MCBRYDE ▼. CITY OF MONTESANO et al. (Supreme Court of Washington. July 25, 1893.)

MUNICIPAL CORPORATIONS-POWER TO CREATE INDEBTEDNESS - -ELECTION TO RATIFY INDEBTED

NESS.

1. Acts 1890, p. 225, 5, validates any municipal indebtedness owing by any city organized prior to the adoption of the state constitution, "when the only ground for its invalidity is that it exceeds the amount authorized by its charter," provided that there must be a popular vote if the excess reached be beyond 11⁄2 per cent. Act Cong. July 30, 1886, limits the power of territorial cities to create indebtedness to 4 per cent. of their taxable property. Held, that the act of 1890 applied to an indebtedness created by such city, though the indebtedness was not only in excess of the amount it could create under its charter, but in violation of the act of congress, since the latter act became and was "a part of the charter" of every city in the territories.

2. Such indebtedness being one which the territorial legislature could have authorized but for the congressional prohibition, and which congress could have authorized at its pleasure, and the state legislature having taken the place of both, the latter can do anything that either or both of the others could have done, and therefore can validate such indebtedness.

3. Acts 1891, p. 261, provides that when a city council deems it advisable to borrow money or create an indebtedness for municipal purposes greater than 1 per cent. of the city's taxable property, it shall provide therefor by ordinance specifying the amount desired to be created, and the same shall be submitted to the electors of such city at a special election. Held, that where such an ordinance submitted two distinct propositions, one to fund $20,000 of old debts, and the other to borrow $5.000 for future purposes,-and only one ballot was used, so that the voter had no opportunity to express himself separately as to each, the whole election was void.

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by Walter McBryde against the city of Montesano and others to restrain the issue of negotiable bonds of defendant city. There was judgment for defendants on a demurrer to the complaint, and plaintiff appeals. Reversed

Geo. T. Quinby and Bausman, Kelleher & Emory, for appellant. B. F. Jacobs, for re spondents.

STILES, J. The city of Montesano, under its first charter, was limited in its power to create a debt, except for ordinary current expenses, to the sum of $6,000. Acts 1883, p. 268. Under its present charter, approved January 20, 1886, the limit was placed at $10,000. Acts 1885-86, p. 373. But the act of congress of June 30, 1886, changed the basis of limitation to 4 per cent. of the taxable property, and this continued to be the law governing the city until Washington became a state, November 11, 1889, when the act of 1886 became again operative until the act of February 26, 1890, extended the limitation to 1 per cent. of the taxable property in the city, absolutely, and to 5 per cent. upon a popular vote. August 7, 1885, Montesano issued 10-year warrants or promissory notes for $6,000,-the full limit of its authority under the act of 1883,-for the purpose of "constructing an elevated roadway," and these warrants are now outstanding. September 2, 1889, like warrants were issued for $6,224.75 for an electric light plant. At the date of this second issue of warrants, the complaint alleges that the last property assessment was but $165,853, upon which 4 per cent. was only $6,634.22. Therefore, under the act of congress, the void excess of debt created by the electric light warrants was $5,590.67. Under the charter, it would have been but $2,224.75. But, in providing for and holding the election hereinafter mentioned, all of the electric light warrants were treated as tainted by the same Invalidity. The complaint also shows that at the date of the election, August, 26, 1892, there was further indebtedness of the city, in the sum of $7,775.25, for general purposes, and that the assessment limiting that city was $972,531, 1% per cent. of which was $14,587.96. Therefore, the legal debt, $13,775.25, including the roadway warrants and the current expense debt, but excluding the electrio light warrants, was within the constitutional limit, without any resort to popular vote. Since August 22, 1892, warrants representing the debt for current expenses have been called in and paid, but others, for new current expenses since that date, have been issued, so that at the commencement of the action it is alleged that the total city indebtedness was $19,480.22. But, if we understand the pleading, this sum should be reduced $6,224.75, unless the electric light debt was validated at the election in August, 1892. The election mentioned was held upon two propositions: First, to validate the electric light debt; second, to borrow $25,000 by the issuance of bonds.

1. The act of March 7, 1891, (Acts, p. 267,) does not apply to this case, because the sole ground of invalidity curable thereby is an excess of 12 per cent. of assessables, which is a new limitation coming in with the consti

tution. But the act of February 26, 1890, (Acts, p. 225, § 5,1) does apply. As against the operation of this act, appellant's first claim is that the language of the act limits it to indebtedness which was void because it exceeded the charter amount; but this may be conceded, and the act still apply, for we think it may be fairly held that the act of congress prohibiting indebtedness in excess of 4 per cent. became and was a part of the charter of every city in the territories. Another objection is that the legislature could not validate, or permit to be validated, indebtedness which it could not have authorized originally by reason of the congressional prohibition; but this was a contract which the territorial legislature could have authorized, but for the act of congress, and congress could have authorized it at its pleasure. The territorial legislature could not have validated the contract, but the state legislature, which has now taken the place of both the territorial legislature and congress in the matter of jurisdiction over cities, can do anything that either or both of those bodies could have done, and therefore it can validate this contract. Cooley, Const. Lim. p. 379.

2. Having found, therefore, that the electric light debt was validated, as it appears, by a three-fifths vote, it follows that on August 26, 1892, the legal indebtedness of Montesano was the sum total of the roadway warrants, the electric light warrants, and the general warrants, viz. $20,000. This sum was $4,412.04 in excess of the 12 per cent. limit. But between the date of the election, August 26th, and September 2d, all of the general warrants were paid, so that the city on the latter date had a new margin for general purposes of $2,363.21; and this sum it has now again exceeded by the issue of new warrants for $7,275.47, leaving it with $4,892.26 of invalid warrants outstanding, no vote having been taken upon the question of issuing these excess warrants. But we have gone into this analysis of the city's condition more to illustrate the appellant's position than anything else, for, as we understand him, he urges this void excess indebtedness created since August 29, 1892, as a reason why certain bonds voted at the same election should not be issued. Plainly, however, it could not operate in any such way. If the purposes for which bonds were voted were lawful, and the election was regular, the subsequent illegal action of the city in some other direction would have no effect upon its prior legal action. Money realized from bonds should not be used to pay off the subsequent void debt, and appellant, as a taxpayer, would,

1Acts 1890, p. 225, § 5, provides that any indebtedness contracted for municipal purposes and now owing by any city organized prior to the adoption of the state constitution is hereby validated, "when the only ground of its invalidity is that it exceeds the amount authorized by its charter." provided that there must be a popular vote if the excess reached be beyond 12 per cent.

in proper time, have his action to prevent such use.

3. By Ordinance 178, the city council ordered the submission of a proposition to borrow $25,000 upon time bonds, under the act of March 7, 1891, (Acts, p. 261.) The purposes for which this money was to be borrowed were set forth in the ordinance as (1) to pay outstanding indebtedness, $20,000; (2) for the purchase of fire apparatus, $1,500; (3) for the purchase of a lot of land, and the erection of a city hall and jail thereon, $3,500. But one ballot was used, "Bonds, yes;" and "Bonds, no;" and appellant contends that this was irregular, inasmuch as there were two propositions involved, viz. a proposition to fund $20,000 of old debts, and a proposition to borrow $5,000 for future purposes. We agree with him in this, notwithstanding the argument of the respondents that the statute is broad in its permission to borrow money for municipal purposes, and that the acquisition of money to pay debts is a strictly municipal purpose. The act in question looks entirely to the future needs of cities, and leaves to other statutes in existence the matter of providing for old debts by funding. The act under which Montesano is authorized to fund her debt is the same one under which she voted to validate the electric light debt, (section 4, Act Feb. 26, 1890;) and it will be found that, whenever the city council sees fit to fund any of her lawful indebtedness, it can do so without any popular vote at all. It is probable that the city authorities were in this instance misled by the act of March 7, 1891, (Acts, p. 269,) where a permission is granted to cities to submit propositions to fund at the same election with propositions to ratify void indebtedness. But this last act does not make it necessary thus to submit, and does not interfere with the act of 1890. Yet it was proper enough to submit a proposition to fund at the election which was held, but it could not be united with the proposition to borrow money for future purposes, so as to have one expression of the voter answer both propositions. They might be decided by the same ballot, but the voter must have an opportunity to express himself separately as to each one. For these reasons, the whole election under Ordinance 178 was void. Respondents claim that under our decision in Seymour v. City of Tacoma, (decided June 2, 1893,) 33 Pac. Rep. 1059, part of the result of the election may be saved; but the ruling in the former case does not apply here. People voted very largely on the proposition to issue bonds for $25,000; but it might be that a feeling may have existed in favor

Acts 1891, p. 261, provides that when a city council deems it advisable to borrow money or create an indebtedness for municipal purposes, greater than 11⁄2 per cent. of the city's taxable property, it shall provide therefor by ordinance specifying the amount desired to be created. and the same shall be submitted to the ratification of the electors of such city at a special election.

1. A notice to settle a statement of facts, given 21 days after judgment is filed, is in time, though it is not given until 33 days after the date of the judgment, and the filing of the findings of fact.

2. Where a party appears before the judge the day after the date fixed in the notice to settle a statement of facts, and objects to settlement only because the notice was not given in time, he thereby waives objection to the jurisdiction of the court to settle the statement on that day.

3. A wife may enjoin the sale of community lands on execution issued on a judg ment rendered against her husband on a contract made by him only to pay the judgment creditor commissions for finding a purchaser for such lands, where they were not sold, and there is nothing to show that she authorized her husband to sell, contract to sell, or find a purchaser for them.

Appeal from superior court, Spokane county; W. G. Langford, Judge.

Action by Adelia McGlauflin against Rufus Merriam and F. K. Pugh to enjoin the sale of certain community lands on execution issued on a judgment against plaintiff's husband. From a judgment and decree for defendants, plaintiff appeals. Reversed.

Nash & Nash, for appellant. Merriam & Merriam, for respondents.

SCOTT, J. The respondents move the court to strike from the record in this case the statement of facts, and for an affirmance of the judgment upon the following grounds: Because appellant did not give notice to respondents of the time and place of settling said statement of facts within the time required by law, and because the court had no jurisdiction to settle the same. It is contended that the decree was rendered in this case on the 10th day of November, 1892, upon which date the findings of fact were filed, and notice to settle the statement of facts was not given until the 23d day of December following. The judgment is dated on the 10th day of November, but it appears by the record that it was not filed until the 2d day v.34r.no.6-36

of December, and consequently could not have been entered before then. We are of the opinion that the notice to settle the statement was within the time prescribed by law. The notice to settle the statement required respondents to appear on the 2d day of January, 1893, and it appears that the statement was settled on the following day, January 3d; and as the record fails to show that the settlement of such statement was continued or adjourned from the 2d day of January until the 3d day of January, it is contended by the respondents that the court had no jurisdiction to settle it at said time. It appears, however, that the respondents appeared before the judge upon the 3d day of January, and objected to the settlement thereof because the time provided by statute for giving notice of settlement had expired before notice was given. No point was made of the fact that the notice had been given to settle the statement on the day preceding. The court overruled the objection raised, which we have sustained; and the respondents, having appeared, and not having raised the further objection urged here, waived the same, and the motion to dismiss is denied.

The respondent Rufus Merriam brought suit against one George McGlauflin, appellant's husband, to recover a commission for finding a purchaser for certain real estate, the community property of said McGlauflin and the appellant, and a judgment therefor was rendered in his favor. An execution was issued upon this judgment, which was by the respondent Pugh, as sheriff, levied upon community lands, and appellant brought this action to enjoin a sale thereof. She had originally been joined as defendant in the action brought by Merriam against her husband, but a demurrer upon her part to the complaint was sustained, and the action was dismissed, as against her. In this action she sought to enjoin the sale of said land upon the ground that the same was her separate property. It is not necessary to pass upon the question of fact, as to whether such real estate was her separate property, for it is admitted by the respondents that it was the community property of the plaintiff and her husband. There was nothing to show that George McGlauflin, the execution debtor, had any authority from his wife to sell, contract to sell, or to find a purchaser for said community lands, and the lands were not, in fact, sold. The husband, having no authority to sell community real estate, cannot bind the same for any indebtedness incurred by him in employing a broker to find a purchaser therefor, and consequently the judg ment obtained by respondent Merriam was not a charge upon the community lands. For that reason the plaintiff should have been granted the relief prayed for, and it is immaterial whether or not such real estate was her separate property, as such relief was fairly within her prayer for general relief,

if the property was community property. The decree rendered against her in the court below is reversed, and the cause remanded.

HOYT, ANDERS, and STILES, JJ., con

cur.

(7 Wash. 114)

STATE ex rel. O'CONNELL ▾. NELSON.1 (Supreme Court of Washington. July 31,

1893.)

ROAD OVERSEER-CHANGING BOUNDARIES OF DISTRICT POWER OF COUNTY BOARD TO CREATE VACANCY.

Const. art. 11, § 5, empowers the legislature to provide for the election in all counties of district officers, and to prescribe their terms of office. Section 6 provides that the board of county commissioners shall fill all vacancies in any road district office by appointment. Code, vol. 1, § 1937, provides that such boards shall divide such counties into suitable road districts, and may change the boundaries thereof not oftener than once a year. Section 1938 provides for elections in the several counties of an elector of each road district as road overseer, to hold office for two years, or until his successors are elected and qualified. Section 342 provides that every office shall become vacant on the incumbent's ceasing to be an inhabitant of the district for which he was elected, or within which the duties of his office are to be discharged. Held that, where a person had been elected road overseer of a certain district, the commissioners could not create a vacancy in the office of road overseer in such district by so changing its boundaries as to leave out that part in which such person resided, and adding it to another district.

Appeal from superior court, King county; J. W. Langley, Judge.

Proceeding by the state of Washington, at the relation of Richard O'Connell, against James Nelson, to determine respondent's right to a certain office to which he had been appointed. There was judgment for respondent on a demurrer to the petition, and relator appeals. Reversed.

Bausman, Kelleher & Emory, for appellant. A. G. McBride, for respondent.

SCOTT, J. O'Connell, the relator, was in December, 1892, elected road overseer of a district designated as 18, in King county, and qualified and entered upon his duties. On the 7th day of January following, the county commissioners made some change in certain of the road districts, by virtue of which that part of district 18, in which O'Connell resided, was cut off therefrom, and was included in an adjoining district, numbered 19. Whereupon, said commissioners appointed the respondent road overseer of said district 18, as changed. Upon the latter's assuming his duties, O'Connell brought this proceeding in quo warranto to determine his right to such office. A demurrer to the petition was sustained, and O'Connell appealed.

The constitutional provisions bearing upon 'Pehearing denied.

this matter are as follows: By article 11,' § 5, it is provided that "the legislature, by general and uniform laws, shall provide for the election in the several counties, of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys, and other county, township or precinct and district officers as public convenience may require, and shall prescribe their duties and terms of office." By section 6 of said article, it is provided that "the board of county commissioners in each county shall fill all vacancies occurring in any county, township, precinct or road district office of such county by appointment, and officers thus appointed shall hold office till the next general election, and until their successors are elected and qualified." By section 1937, vol. 1, of the Code, the legislature provided that "the boards of county commissioners of the several counties shall divide their respective counties into suitable road districts, and may change the boundaries thereof not oftener than once a year." By section 1938 it is provided that "there must be elected in the several counties of this state on the first Saturday in December, in the year eighteen hundred and ninety, and every two years thereafter, one elector of each and every road district in the county, to act as road overseer in their respective districts, to hold office for two years, commencing on the first Monday after the first day of January next succeeding their election, or until their successors are elected and qualified." By section 342 of said volume of the Code, it is provided that "every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer: The death of the incumbent; his resignation; his removal; his ceasing to be an inhabitant of the district, county, town or village for which he shal have been elected within or appointed, or which the duties of his office are to be dis charged," etc. By subdivision 9, § 1936, it is provided that the commissioners shall have authority to "remove any overseer for in efficiency, neglect of duty, or malfeasance in office." It is conceded that the office is an elective one, within the provisions of the constitution, and, while the constitution does not prescribe the terms of such officers, the legislature has prescribed them, as directed to do by the constitution. It is conceded that appellant has not changed his place of residence, but that he resides at the particular place where he resided when he was elected. To entitle him to be elected to such office, it was necessary that he should have been a resident and elector of the particular district at the time he was elected.

The sole question presented for our determination is whether, by virtue of the change of the boundaries of said road district 18, by which that part of the original district wherein appellant resided was taken