any such obvious ground for holding that there is a conflict between the federal constitution and the constitution of this state as would justify us in holding the provision for confirming these sales of school lands to be void. The statute does not authorize the assessment of costs against the state, and none should have been allowed. The state has never been in fault in these matters, but it has graciously allowed a suit to be brought, that the landholder might secure further assurance of his title. It is all to his advantage, and he ought to pay the expense of the proceeding. But it was different when the state appealed, and thereby put itself in the wrong. The commissioner is the mere ministerial officer of the state, to execute its deed, and was not a necessary party to the action. The decree is affirmed, with the exception of the ccsts allowed. Respondent will recover costs of the appeal against the state only. DUNBAR, C. J., and SCOTT, ANDERS, and HOYT, JJ., concur. (7 Wash. 226) TOWN OF DENVER v. CITY OF SPOKANE FALLS et al. (Supreme Court of Washington. Nov. 7, 1893.) PLEADING-ANSWER-SPECIAL LEGISLATION. 1. An answer wherein defendants "say" that they deny each and every allegation in the complaint, while not commendable, is a denial, and will be sustained, unless objected to at the proper time. 2. Under Code Proc. § 194, subd. 1, which requires the answer to contain a general or specific denial of each material allegation of the complaint controverted by defendant, such denials put plaintiff to his proof as to every allegation material to his cause of action; and hence a general denial in an answer is sufficient to require plaintiff to prove its corporate character alleged in the complaint. 3. Act March 27, 1890, (Laws 1889-90, p. 131,) giving certain communities, which had previously undertaken to incorporate as municipal corporations under an invalid law, the right to reincorporate under the statute without reference to population, but solely by reason of their peculiar condition, is a special law, and void, under Const. art. 2, § 28, which prohibits the legislature from passing special laws "for granting corporate powers and privileges," and article 11, § 10, which provides that "corporations for municipal purposes shall not be created by special laws." Appeal from superior court, Spokane county; Jesse Arthur, Judge. Action by the town of Denver against the city of Spokane Falls and others to restrain defendants from proceeding with the annexation of the town to the city. From a judgment for defendants, plaintiff appeals. Affirmed. Thomas C. Griffitts, for appellant. James Dawson, Corp. Counsel, and Jones, Belt & Quinn, for respondents. ANDERS, J. This controversy grew out of an assumption on the part of the defend ant city of Spokane Falls to exercise authority and jurisdiction in municipal matters over certain territory claimed by the plaintiff, the town of Denver, to be embraced within its corporate limits. The defendants claimed that the disputed territory was legally annexed to the city of Spokane Falls, and became a part thereof, by virtue of an election held for that purpose on July 26, 1890, in conformity with the provisions of section 9 of the act of March 27, 1890, entitled "An act providing for the organization, classification, incorporation and government of municipal corporations, and declaring an emergency," and that the inhabitants of the alleged town of Denver ever since have been, and still are, amenable to the same laws and ordinances by which the remaining portion of the city is governed. and regulated, and that its officers have the same powers there that they may lawfully exercise elsewhere within the corporate limits of the city. On the contrary, the plaintiffs contend that the town of Denver was, long prior to and at the time of said annexation proceedings, a legally organized and acting municipal corporation, and that said proceeding was, as to it, illegal, null, and void; and it sought, by this action, to restrain the defendants from proceeding further in the matter of said election, or can vassing the vote thereof, held in said town of Denver, or from asserting any right or authority whatever over the said town or any of its inhabitants, or the property of any of its inhabitants, or interfering with the proper exercise of the corporate franchises and privileges of said town, and of the official duties of its mayor and aldermen, and to obtain a decree declaring the election and proceedings concerning the extension of the boundaries of the city of Spokane Falls to be null and void. It is alleged generally in the complaint that the plaintiff, the town of Denver, now is, and at all times hereinafter mentioned has been, a municipal corporation, duly organized and existing under and by virtue of the laws of the state of Washington; and it is further specially alleged that on the 16th day of June, 1889, it was duly incorporated under and by virtue of the provisions of an act of the legislature of the then territory of Washington entitled "An act for the incorporation of towns and villages in the territory of Washington," approved February 2, 1888, and then and there became, ever since has remained, and now is, a municipal corporation duly organized and acting; and that on the 15th day of May, 1890, it reincorporated as a municipal corporation under and by virtue of a law of the state of Washington entitled "An act providing for the organization, classification, incorporation and government of municipal corporations, and declaring an emergency," approved March 27, 1890, in the manner prescribed in section 4 of said act, as a municipal corporation of the fourth class, as therein provided. The learned counsel for the appellant strenuously insists that these allegations were not denied in the answer, and must therefore be deemed admitted. The point made is that the attempted denial is bad in form, and, if valid at all, amounts to a plea of the general issues only, and that such a plea admits the corporate existence of the plaintiff. The particular part of the answer thus objected to is as follows: "Now come the above-named defendants, and for their answer to the third amended and supplemental complaint of the plaintiff herein say that they deny each and every allegation, matter, and thing in said complaint contained, except those hereinafter admitted." It must be admitted that this form of pleading is objectionable, and not to be commended. It is just as easy for a defendant to deny positively any allegation of the complaint controverted by him, and thus conform strictly to the requirements of the Code, as it is to "say" he denies. "But such a form is nevertheless a denial, and, if not objected to at the proper time, will be sustained." Maxw. Code. Pl. 390. While the denial in this case is not so specific as it should have been, yet, inasmuch as the defendants were not required by motion in the court below to make it more specific, we do not think we ought now to declare it insufficient, especially as it appears from the answer as a whole just what allegations of the complaint are denied and what are admitted. See Boone, Code Pl. § 60, and cases cited; Maxw. Code Pl. p. 388. But as before intimated, it is claimed by counsel for the plaintiff that, even if the said allegations of the answer constitute a denial in any sense, still they are not sufficient to require proof of the corporate existence of the town of Denver. Numerous authorities are cited to the proposition that by pleading the general issue the defendants admit the corporate existence of the plaintiff. Some of the decisions cited, however, were based upon special statutes, (see Association v. Read, 93 N. Y. 474; Bank v. Loyhed, 28 Minn. 396, 10 N. W. 421,) and others proceeded upon the theory that a plaintiff's capacity to sue is a preliminary question, which is waived by pleading to the merits. The doctrine contended for by appellant is recognized by Mr. Wait in his recent work on Insolvent Corporations as one of very general application, but he admits that it is not universal, and that the question is more or less affected by the provisions of the different Codes. Wait, Insolv. Corp. § 136. Our Code of Procedure (section 194, subd. 1) provides that the answer must contain a general or specific denial of each material alJegation of the complaint controverted by the defendant, etc.; and it was manifestly intended by the legislature that such denials should put the plaintiff to his proof as to ev ery allegation material to his cause of action. See Pom. Rem. & Rem. Rights, § 683. If, therefore, it was material for the plaintiff, in order to state a cause of action entitling the town of Denver to the relief sought, or to any relief whatever, (and we think it was,) to allege the corporate existence of said town, we are of the opinion that the denials in the answer were sufficient to controvert that fact, and to require proof thereof. But the respondents' counsel contends that the complaint shows on its face that the alleged town of Denver never was incorporated under any law of the territory or state of Washington, and that for that reason the complaint fails to state facts sufficient to constitute a cause of action. And the argument is that the act of February 2, 1888, under which it first attempted to organize, was void, and so declared by this court in Territory v. Stewart, 1 Wash. St. 98, 23 Pac. 405, and that section 6 of the above-mentioned act of March 27, 1890, under which it is alleged it reincorporated, is also null and void, as being in direct conflict with the provisions of the constitution of the state. A serious and important question is thus presented for our determination, for, if the town of Denver, as such, never had an existence, it would seem logically to follow that the contention of respondents should prevail. But it is earnestly insisted on behalf of the appellant that by its organization under the void act of February 2, 1888, and the exercise of corporate powers, the town of Denver became at least a de facto corporation, and that by its reorganization it became a corporation de jure, the existence of which cannot be called in question in this action. In support of this position the general rule of law is invoked that when the existence of a corporation has been recognized by acts of the legislature, all inquiry as to the original creation of the corporation is precluded; that it becomes by such recognition ipso facto a legal corporation, whatever defects or irregularities there may have been in the proceedings required by law to be taken for its organization. We have no doubt of the correctness of this proposition, generally, for it has many times been enunciated by the courts. See Wait, Insolv. Corp. § 484, and cases cited. Nor do counsel for the respondents question it. But they do question the power of the legislature to enact the law by which the town of Denver claims to have been recog nized as an existing municipal corporation; and, furthermore, they deny that the legislature, by the statute in question, or by any other statute, ever attempted or assumed to recognize its corporate existence. In other words, it is insisted that section 6 of the act of March 27, 1890, is in contravention of subdivision 6, § 28, art. 2, and also of section 10, art. 11, of the constitution of the state, and is therefore null and void, and conferred no rights or privileges upon the so called town of Denver. that they had not the power to do so, whatever the intention may have been; and, this being so, it follows that the town of Denver, as shown by the complaint, never had a legal corporate existence, and is, therefore, not entitled to the relief sought. Nor do we think that the complaint states a valid cause of action in favor of the mayor and aldermen, who were joined as plaintiffs. And as what we have already said is decisive of this case, it is not necessary to determine other points which are ably discussed in the briefs of counsel. The judgment appealed from is affirmed. DUNBAR, C. J., and SCOTT, STILES, and HOYT, JJ., concur. (7 Wash. 225) ILIFF v. FORSSELL et al. (Supreme Court of Washington. Nov. 7, 1893.) MECHANICS' LIENS-PRIORities. One who performs labor in the erection of a building on land in possession of his employer under a contract for its purchase is not entitled to a lien, as against the interest of the legal owner, though the latter has failed to post a notice that he is not responsible for improvements placed thereon, as provided by Gen. St. § 1671. Lumber Co. v. Bolton, 32 Pac. 787, 5 Wash. 763, followed. Appeal from superior court, Chehalis county; Mason Irwin, Judge. The following are the respective provi- | 1888, and we are now constrained to hold sions of the constitution above mentioned: "The legislature is prohibited from enacting any private or special laws in the following | cases: (6) For granting corporate powers or privileges. * ** Corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization and classification in proportion to population of cities and towns, which laws may be altered, amended or repealed," etc. And it is contended that section 6 of the act of March 27, 1890, (Laws 1889-90, p. 131) is inimical to those constitutional provisions, and especially the latter, for the reason that the legislature thereby attempted to confer upon certain communities which had previously undertaken to incorporate under an invalid law the right to incorporate under the statute without reference to population, but solely by reason of their peculiar condition. As to such communities, is this a general or a special law? It is claimed by the learned counsel for the appellants that it is general, because it applies to all communities in the state similarly situated. But we think that cannot be said to be the exclusive test. If the operation and effect of a statute is necessarily limited to a particular class or number of persons or things, it is as much a special statute, whatever may be its form, as it would be if it applied to but one person or thing only. Now, the legislature found certain aggregations of citizens, in different localities throughout the state, assuming, without warrant of law, to be municipal corporations, and, in order to relieve them from the embarrassment consequent upon the condition in which they had placed themselves, enacted the section of the statute in question. Would the character of the provision be different if it applied to but one such community instead of several? Manifestly it would not. We think it was, and was intended to be, a special provision, applicable solely and exclusively to existing conditions. It is therefore not a general law, and, as it purports to grant special corporate powers and privileges to the appellant town and its so-called officers, it is unconstitutional, and consequently void. See City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800, in which case the court, upon an elaborate review of the adjudged cases upon this question, reached the same conclusion we have arrived at in this case; and, being unconstitutional, it is as ineffectual and inoperative as though it had never been passed. Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121. It was no law, and the claim of legislative recognition of appellant as a municipal corporation is therefore without foundation, and must fall. In Re Campbell, 1 Wash. St. 287, 24 Pac. 625, this court held that the legislature by the act of March 27, 1890, did not legalize attempted incorporations under the act of February 2, Action by Albert E. Iliff against Theodore Forssell and Milford J. Pierson to foreclose a mechanic's lien. From a judgment in plaintiff's favor, defendant Forssell appeals. Reversed. Ben. Sheeks and Hogan & McGerry, for appellant. C. J. Pearson and A. H. Garretson, for respondent. SCOTT, J. Appellant was the owner of certain lots situated in Aberdeen, Chehalis county, and contracted in writing to sell the same to defendant Pierson. The respondent, under a contract with Pierson, performed labor in erecting a building on said real estate, and brought this action against appellant and said defendant to foreclose a lien upon the premises therefor. It is not claimed that there were any contract relations existing between appellant and respondent, and it appears that respondent, at the time he performed said labor, knew that Pierson had only a contract for the purchase of said property, and that appellant was the owner of the legal title. In filing his lien notice, no attempt was made to make said claim a charge upon the interest of appellant, and he was not named in the notice. It seems that the lower court rendered judgment against appellant upon the ground that he was liable because of not having posted a notice, under section 1671, Gen. St. Since this cause was tried, we have held, in Lumber Co. v. Bolton, 5 Wash. 763, 32 Pac. 787, that the lien, in such a case, only attaches upon the interest of the contracting party, and not against the owner of the legal title, and this case is governed by that decision. There is an attempt on the part of respondent, in his brief, to maintain that appellant is estopped from denying his liability, but upon just what grounds such claim is made, does not clearly appear. It is not contended that he represented Pierson was the owner of the real estate, and, for that matter, respondent testified that he knew of the contract between appellant and Pierson, relating to the sale and purchase of said premises, at the time he performed the work. It does not appear that appellant had anything to do with the construction of said building, in any way, further than guarantying the payment of a certain bill for lumber which was purchased by Pierson, and used in the construction of the building. Reversed and remanded. DUNBAR, C. J., and STILES, HOYT, and ANDERS, JJ., concur. (7 Wash. 265) PUGET SOUND & C. R. CO. v. OUIL- SAME v. ELWELL. (Supreme Court of Washington. Nov. 15, 1893.) CORPORATIONS-STOCK-SUBSCRIPTIONS-EN- 1. Code 1881, § 2421, as amended by Acts 1886, p. 84, declaring corporations, and the members thereof, liable to all the conditions and liabilities "herein imposed and to none others," and providing (section 2430) for the forfeiture and sale of stock for unpaid subscriptions, does not relieve stockholders from liability to be sued by the corporation on their subscription, and limit the remedy against them to forfeiture and sale of their stock. 2. When the trustees of a corporation, suing on a subscription to its capital stock, show that they have taken steps which the law au thorized them to take, the presumption is that they have taken them regularly; and, if there is any by-law which renders their action irregular, it is matter of defense, and should be so pleaded. Appeal from superior court, Thurston county; M. J. Gordon, Judge. Actions by the Puget Sound & Chehalis Railroad Company against Louis P. Ouillette, and by the same plaintiff against W. S. Elwell. Demurrers to the complaints were sustained, and plaintiff appeals. Reversed. Chas. H. Ayer and Hughes, Hastings & Stedman, for appellant. W. I. Agnew and Phil. Skillman, for respondents. STILES, J. The almost universally accepted doctrine is that a subscription to the capital stock of a corporation is a contract to pay money, which may be enforced by the corporation by suit. 2 Beach, Priv. Corp. § 584; 1 Mor. Corp. (2d Ed.) § 128; Cook, Stock, Stockh. & Corp. Law, (2d Ed.) §§ 69 et v.34P.no.12-59 seq., 124. But respondents' first point is that that portion of section 2421 of the Code of 1881, as amended by the act of 1886, (page 84,) which reads, "Such corporations and the members thereof being subject to all the conditions and liabilities herein imposed and to none others," relieves the stock subscriber from all liability, except that of having his stock forfeited and sold under the provisions of section 2430, as amended in 1886. (Reference is made to the Code of 1881 and amendments, because this corporation appellant was organized, and the subscription made, in 1888.) But the same sections provide for subscriptions to the whole of the capital stock before business can be commenced, and for the times, manner, and amounts in which subscriptions shall be paid. The plain implication is that such payment may be secured or enforced in any lawful way by which other contracts for the payment of money are enforced. This, then, is a liability which is, in the language of the statute, "herein imposed," though it is frequently spoken of as the common-law liability of the stockholder. But he is also subject to a liability to have his stock forfeited, which is purely statutory. The internal evidence of the intention to provide these two methods of realization by the corporation is of the very strongest, in this: By section 2430, the stockholders may make by-laws prescribing the time, etc., of payments, but if the stockholders make no by-law on the subject the trustees can demand and call in subscriptions as they see fit. Now, when it comes to selling forfeited stock for unpaid subscriptions, the sale must be made "as prescribed in the by-laws of the company." Therefore, the trustees must follow the by-laws, and the express authority given to them in the absence of by-laws is completely negatived. It cannot be admitted that a corporation can do nothing to collect in its capital until the stockholders make by-laws, for they may not be made at all. And this brings the discussion to respondents' second point, viz. that the complaint did not aver that the stockholders, by their by-laws, did not exercise the powers granted them. The trustees, collectively, are the corporation, and it is the corporation alone which collects subscriptions. The general power to do this, and to do all things preliminary thereto, is vested in the trustees; and, when they show that they have taken any step which the law authorizes them to take, the presumption is that they have taken it regularly. If there is any by-law on the subject which renders their action irregular, it is, we think, matter of defense, and should be so pleaded. The judgment is reversed, and the cause remanded, with directions to overrule the demurrer to the complaint. ANDERS, SCOTT, and HOYT, JJ., concur. DUNBAR, C. J., did not sit, and expresses no opinion. In a suit to foreclose a mortgage, when the decree for plaintiff has been affirmed on appeal, the lower court cannot reopen it, and allow defendants to show a partial release of the mortgage, since, on equity appeals, the supreme court tries the cause de novo, and its judgment is final, and can only be reopened by itself. Prohibition, on relation of Laura Wolferman, administratrix, to the superior court of Spokane county, against the reopening of a judgment entered in the case of relatrix against Bell and others, decided by this court. 32 Pac. 1017. Writ granted. Feighan, Wells & Herman, for petitioner. Turner, Graves & McKinstry, for respond. ent. SCOTT, J. This is an application for a writ of prohibition to restrain said court from entertaining or proceeding with a petition to modify a judgment and decree theretofore rendered in an action brought by Laura Wolferman, as administratrix, etc., against Harry C. Bell, Belle Bell, et al. Said action was brought in said court to foreclose a certain mortgage, and a decree was rendered in favor of plaintiff and against defendants therein, whereupon the defendants appealed said cause to this court, and judgment was here rendered affirming the decree of the lower court. 6 Wash. 32 Pac. 1017. Subsequently, said Harry C. Bell and Belle Bell filed a petition in said superior court praying that they be allowed to introduce and set up in said action a release of a part of said mortgaged lands upon which said decree operated, and a payment of $300 therefor, which they failed to introduce at the trial of said action, and which failure is sought to be excused in said petition, and further prayed that the decree, as rendered by said superior court in said cause, and affirmed by this court, be modified by said superior court to the extent that they be allowed a credit of the $300 aforesaid, and that the lands so released be exempted from sale under said decree. A demurrer was filed thereto by the relator, which was overruled, and this application was made to us to prohibit said court from proceeding in said matter. It is urged in behalf of the respondent that an appeal does not divest the superior court of jurisdiction of a case, and that it has authority thereafter to entertain proceedings for the purpose of amending or modifying the judgment or decree rendered; and some authorities have been cited where amendments have been permitted in the lower court while an appeal has been pending in the upper court, and also after it has been disposed of. Rew v. Barker, 14 Amer. Dec. 516, authorities cited in note. But an ex amination of these authorities shows that such amendments were permitted under a practice relating to appeals essentially different from our own. An appeal of an equity cause here brings up the entire case for a trial de novo in this court upon questions of both law and fact. The judgment rendered here is final and conclusive, and, when remanded to the lower court, such court has no further authority or power in the premises than to proceed to execute it according to the decision rendered here; and the affirmance of the judgment of the superior court in said cause made it as much the Judgment of this court as if a new judgment had been rendered. It is certainly questionable, and we very much doubt, whether the superior court has authority to entertain any such petition in a law action, where an appeal has been taken to this court, and a Judgment rendered finally disposing of the case. However this may be, we are clearly of the opinion that in an equity cause it has no such jurisdiction, and that all such applications must be made here. See Sibbald v. U. S., 12 Pet. 488; Mulford v. Estudillo, 32 Cal. 131; Kirby v. Superior Court, 68 Cal. 604, 10 Pac. 119; Boynton v. Foster, 7 Metc. (Mass.) 415. It is therefore directed that a writ of prohibition issue herein as prayed for, and that the relator recover her costs in this proceeding of said Harry C. Bell and Belle Bell. DUNBAR, C. J., and HOYT, ANDERS, and STILES, JJ concur. (7 Wash. 236) CITY OF OLYMPIA ▼. MOORE, County Auditor. (Supreme Court of Washington. Nov. 8, 1893.) APPEAL HEARING OUT OF Order. The practice of bringing cases to be heard out of their order, as "presenting a question of great public interest," is to be discour aged, and is only warranted by grave publie considerations. Appeal from superior court, Thurston county; M. J. Gordon, Judge. Action by the city of Olympia against C. M. Moore, county auditor. Judgment for defendant. Plaintiff appeals. Affirmed. O. V. Linn, for appellant. Milo A. Root, for respondent. HOYT, J. This case was brought here, and heard out of its order, on account of its presenting an alleged question of great public interest, that it was important should be immediately decided. The practice of bringing cases here on such allegations, for the purpose of obtaining an opinion of this court as to the proper construction of a law as to which possible doubt may arise, has become somewhat common. While such a course of proceeding is proper enough in some cases, the tendency to thus take the opinion of this court in a somewhat informal manner, with |