proceedings. The appeal in this case was from the order denying the defendant a new trial. This court reverses that decision, and the order of the court should be and is that appellants have a new trial. With this change the rehearing is denied.

SULLIVAN, C. J., and HUSTON, J., concur.

(3 Idaho [Hasb.] 381)

SPOKANE & P. Ry. Co. v. LIEUALLEN. (Supreme Court of Idaho. April 1, 1592.) EMINENT DOMAIN-MEASURE OF DAMAGES-EVIDENCE HARMLESS ERROR.

1. In proceedings for the condemnation of land for railroad purposes under the statutes of Idaho, the value of the land at the time it is taken is the measure of damages, and it is error to admit evidence of value at time of trial. Where, however, one witness stated the basis of his estimate of damages to be the value of land at the time of the trial, and several others stated that their estimate was based upon the value at the time of the taking, and the court repeatedly charged the jury that the value of the property at the time of the taking was the true basis, the refusal of the court to strike out the testimony of such first witness held not to be reversible

error.

2. It is error to estimate damages, in such a case, upon what has been paid by the corporation seeking the condemnation of land to owners of adjacent property.

(Syllabus by the Court.)

Appeal from district court, Latah county; W. G. PIPER, Judge.

Action by the Spokane & Palouse Railway Company against A. A. Lieuallen to condemn certain land belonging to defendant. From the judgment entered on a verdict awarding defendant damages, plaintiff appeals. Affirmed.

Hyde, McBride & Allen and Forney & Tillinghast, for appellant. James W. Reid, for respondent.

HUSTON, J. Plaintiff, a railroad corporation organized under the laws of the state of Washington, brings this action to condemn certain real estate situate in Latah county, state of Idaho, belonging to defendant, for railroad purposes. The action is brought under the provisions of title 7, Rev. St. Idaho. Complaint was filed and summons issued on September 26, 1890. Answer filed February 2, 1891. The only issue raised by the pleadings is the amount of damages assessable against plaintiff corporation for the land sought to be condemned. The cause was tried before a jury at the June term, 1891, of the district court for Latah county. Verdict and judgment for the defendant for $900. Motion for new trial overruled, and appeal by plaintiff from both order and judgment. Section 5220, Rev. St. Idaho, provides that "the court, jury, or referee must hear such legal testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess (1) the value of the property sought to be condemned, and all improvements thereon pertaining to the realty," etc.; (2) if the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of its severance from

the portion sought to be condemned, and the construction of the improvements in the manner proposed by the plaintiff; (3) separately, how much the portion not sought to be condemned, and each estate or interest therein, will be specially and directly benefited, if at all, by the construction of the improvement proposed by the plaintiff," etc.; "(4) if the property sought to be condemned be for a railroad, the cost of good and sufficient fences along the line of such railroad, and the cost of cattle guards, when fence may cross the line of such railroad; (5) as far as practicable, compensation must be assessed for each source of damages separately." Section 5221 provides: "For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accraed at the date of the summons, and its actual value, at that date, shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken, but all injuriously affected, in cases when such damages are allowed, as provided in the last section," etc. The jury rendered the following verdict: "(1) We find that the value of the property sought to be condemned, and all improvements thereon pertaining to the realty, is the sum of six hundred dollars. (2) We find that the damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the railway in the manner proposed by the plaintiff, amount to three hundred dollars. (3) We find that the portion not sought to be condemned will be specially and directly benefited by the construction of the railway proposed by the plaintiff in the sum of dollars."

Several witnesses were examined on the part of plaintiff and defendant as to the value of the property sought to be condemned, and the damages. The testimo. ny is conflicting, the witnesses varying in their estimates from $300 or $400 to $2,000. It is urged by appellant, as a ground for reversal, that one of the witnesses for defendant, upon his cross-examination, testified that he based his estimate of damages upon the present value of the property, while the statute fixes the value of the property at the time it was taken as the rule. We think the court erred in allowing this testimony to stand against the plaintiff's motion to strike it out, but we think such error was rendered harmless by the reiterated charge of the court to the jury that they were to find from the evidence the value of the property on September 27, 1890, the time of the taking. It is also objected by appellant that one Campbell, a witness on the part of the plaintiff, upon cross-examination, stated that the basis of his estimate of damages was that the plaintiff corporation had allowed $800 for right of way over property adjacent to that of defendant, and that he considered the damage of defendant double that of the party to whom the $800 was allowed. But an examination of the record shows that this was only one of various grounds upon which this witness based his estimate of dam

ages, and, while we think it would have been eminently proper for the court to have stricken out that part of the witness' testimony wherein he gave as one basis of his estimate of damages the price paid by the plaintiff corporation to another party, still the rest of his testimony must stand, and that would fully support the finding of the jury, corroborated, as it was, by the testimony of several other witnesses. From a careful consideration of the record we are satisfied that there is not such error shown therein as would justify this court in reversing the judgment. Judgment of district court is affirmed, with costs to the respondent.

SULLIVAN, C. J., and MORGAN, J., concur. (3 Idaho [Hasb.] 384)

STATE V. DOHERTY et al.

(Supreme Court of Idaho. April 21, 1892.) STATUTE-ENACTMENT-TITLE- CONSTITUTIONAL LAW-EQUITY OF TAXATION-LIQUOR LICENSEPOLICE REGULATION.

1. An act entitled "An act to regulate the sale of intoxicating liquors in less quantities than one quart" was passed by the house of representatives, and transmitted to the senate. By the senate amendments to said act, all of that part of said act referring to the sale of intoxicating liquors in quantities less than one quart was stricken out. Thereafter the bill was returned to the house as amended by the senate, which amendments were concurred in by the house. Thereafter the title of the act was amended by the house by striking out the words following, to wit, "in less quantities than one quart. " After said title was so amended the bill was not transmitted to the senate for its concurrence in said amendment, but was properly enrolled with the title as amended by the house, and thereafter approved by the governor. Held, that the amendment of the title as made by the house was not one of substance, and did not invalidate said act. 2. The subject of said act is fairly indicated by the title, and said title is comprehensive enough to include the provisions contained in said act in regard to a license tax.

3. The provisions of sections 2, 5, art. 7, Const. Idaho, requiring equality and uniformity of taxation upon the same class of subjects, is not applicable to the license tax imposed by section 4 of an act entitled "An act to regulate the sale of intoxicating liquors." 1 Sess. Laws Idaho, p. 34. Said act is a police regulation.

4. As a police regulation, the price of licenses may be graduated by some standard, provided such standard is reasonably fair and just.

5. The standard of graduation provided by section 4 of said act is reasonably fair and just. (Syllabus by the Court.)

Appeal from district court, Shoshone county; J. HOLLEMAN, Judge.

Action by the state against James Doherty and Michael Meagher to recover a sum alleged to be due for a license for selling intoxicating liquor. From a judgment for plaintiff, defendants appeal. Af

firmed.

February 6, 1891. See 1 Sess. Laws Idaho, p. 33. The case was tried upon an agreed stipulation of facts, und judgment rendered by the court below in favor of the plaintiff, from which judgment this appeal was taken. The appellants contend that the court below erred-First, in holding that section 4 of said act approved February 6, 1891, was constitutional; and, second, in case said section is constitutional, then the court erred in rendering judgment against the defendants for more than $75.

After the case was submitted to this court, Messrs. Hawley & Reeves having been retained to present to the district court of the third judicial district, and from that court to this court, for final decision, a case involving the constitutionality of said act, approved February 6, 1891, upon their application were permitted to present their printed brief in this case, to be considered by this court in the final determination of the case. In addition to the two points raised by appellant's specification of errors, Messrs. Hawley & Reeves contend that said act is void, for the reason that it was not legally passed or enacted by the legislature; that the legislature in its pretended enactment thereof violated the provisions of article 3 of the constitution of Idaho, in this: that the house of representatives amended the title of said act after it had passed the senate. and failed to return said bill, with its amended title, to the senate for its concurrence thereto.

We will first consider the point as to whether said act was legally enacted by the legislature. The passage of the act in question occurred as follows: The bill was introduced in the house of representatives, January 5, 1891, and designated as "House Bill No. 24," and entitled “An act to regulate the sale of intoxicating liquors in less quantities than one quart," (see House Jour. 1891, p. 45,) and was thereafter passed and transmitted to the senate. The senate passed the bill, with amendments, February 3, 1891. The bill was then returned to the house, with the senate amendments, and on the 5th day of February, 1891, the bill, with the senate amendments, was taken up by the house, and adopted and concurred in. It was then moved to amend the title to said bill by striking out the following words, to wit, “in less quantities than one quart," which amendment was agreed to, and said words stricken out. See House Jour. pp. 114, 115. The bill was not returned to the senate for its concurrence in the house amendment of the title, but was referred to the committee on enrollment, and thereafter reported as correctly enrolled, and presented to the governor for his approval, with the title as amended, on February 6, 1891, and approved by him on that day. The provisions of section 4 of said bill, when first introduced in and passed by the house of representatives, related to the sale of intoxicating liquors in less quantities than one quart, but when amended by the senate related or applied to intoxicating liquors to be drank in, on, or about the premises where sold, regardless of the quantity. The senate, after so amending the bill as to strike out all provisions con

tained therein in regard to the quantity of intoxicating liquors sold, omitted or failed to strike out of the title that part thereof referring to quantity. That failure or omission may be regarded as a mere oversight or clerical error. After the senate amended said bill, that part of the title referring to the quantity of liquor sold was mere surplusage, as no part of said act contained any provisions referring to the quantity. The amendment of the title, as made by the house of representatives, was not one of substance, and did not invalidate the act. Plummer v. People, 74 Ill. 361; Ballou v. Black, 17 Neb. 389, 23 N. W. Rep. 3; Binz v. Weber, 81 Ill. 288; Johnson v. People, 83 Ill. 435.

He

It is also contended that said act is in contravention of section 16, art. 3, Const. Idaho, in this: that the subject-matter of the act is not embraced in the title thereof, so far as the license tax is concerned; hence that part of the act relat. ing to the license is void for that reason. Judge Cooley, in his work on Constitutional Limitations, (6th Ed.) pp. 171, 172, states the purpose of constitutional provisions, such as we havein said section 16, art. 3, as follows: "It may therefore be assumed as settled that the purpose of these provisions was-First, to prevent hodgepodge or 'log-rolling' legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the title gave no intimation, and which might therefore be overlooked, and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceeding as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire. further says: "The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by the title. To require every end and means necessary and convenient for the accomplishment of this general object to be provided for by a separate act relating to that alone would not only be unreasonable, but would ac_tually render legislation impossible." Id 172. Section 16, art. 3, of the constitution must be given a reasonable construction. It is sufficient if the act treats of but one general subject, and that subject expressed in the title. To hold that each subdivision of the subject, and each and every of the ends and means necessary for the accomplishment of the object of the act, must be specifically mentioned in the title, would greatly embarrass legislation, and accomplish no legitimate purpose. The title to said act is comprehensive enough to include all provisions necessary and convenient to regulate the sale of intoxicating liquors. It is comprehensive enough to include the provisions of said act in regard to a license tax, that being one of the means usually employed for the purpose of regulating the sale of intoxicating liquors.

It is contended that section 4 of the act in question is in conflict with the provisions of sections 2 and 5 of article 7 of the constitution of Idaho, requiring equali- |

ty and uniformity of taxation upon the same class of subjects. Section 4 of said act provides as follows: "The amount to be paid by each applicant for snch liceuse shall be the sum of $500 per year, or a proportionate amount for each fraction of a year, in any city, town, village, or hamlet where, at the last general election next preceding the date of the application for license, the total vote for governor exceeded 150 votes, and $300 per year in all other cities, towns, villages, or hamlets: provided, that all persons engaged in retailing liquors in connection with an hotel or tavern where meals and lodgings are kept and furnished in good faith for the entertainment of travelers, at any point distant three miles or more outside of the limits of any city, town, village, or hamlet, shall pay a license therefor of $100 per year, or a proportionate amount for each fractional part of a year; and provided, further, that no license issued under the provisions of this act shall be for a less time than three months, and no license shall be granted for a longer period than one year. Section 2, art. 7, of the constitution, is as follows: "The legislature shall provide such revenue as may be need. ful, by levying a tax by valuation, so that every person or corporation shall pay a tax in proportion to the value of his, her, or its property, except as in this article hereinafter otherwise provided. The legislature may also impose a license tax both upon natural persons and upon corporations, other than municipal, doing business in this state; also a per capita tax: provided, the legislature may exempt a limited amount of improvements upon land from taxation." Section 5 of said article 7 is as follows: "All taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal: provided, that the legislature may allow such exemptions from taxation from time to time as shall seem necessary and just, and all existing exemptions provided by the laws of the territory shall continue until changed by the legislature of the state: provided, further, that duplicate taxation of property for the same purpose, during the same year, is hereby prohibited."

We are of the opinion that the provisions of said sections of the constitution requiring equality and uniformity of taxation upon the same class of subjects do not apply to the license tax provided for in said section 4 of said act. No one can doubt (who reads the act in question) that the intention of the legislature, in its passage, was to regulate a traffic which was believed by them to be pernicious in its effects upon society, and not for the purpose of raising revenue. The principal object was to regulate such traffic, not to raise revenue. The constitutional provision in regard to equality and uniformity of taxation has reference solely to "taxation," pure and simple, according to the commonly accepted meaning of that term, for the purpose of revenue only. It

to

does not apply to those impositions made under the police power of the state, as a means of constraining and regulating a business that may be regarded as evil in its effects upon society. In Burroughs on Taxation (page 147) it is stated that the provisions of the constitution as equality and uniformity of taxation do not apply to licenses. See, also, 1 Desty, Tax'n, 305, note 5; 2 Desty, Tax'n, 1385 et seq.; Fahey v. State, (Tex. App.) 11 S. W. Rep. 108; Allentown v. Gross, 132 Pa. St 319, 19 Atl. Rep. 269; Pleuler v. State, 11 Neb. 547, 10 N. W. Rep. 481; East St. Louis Wherung, 46 Ill. 392; People v. Thurber, 13 Ill. 554; Wiggins Ferry Co. v. East St. Louis, 102 Ill. 560; Distilling Co. v. Chicago, 112 Ill. 19; New Orleans v. Railroad Co., 41 La. Ann. 519, 7 South. Rep. 83.

V.

The contention that said section 4 is unconstitutional, for the reason that the license tax is not the same on each person engaged in selling intoxicating liquors, is fully answered by the authorities last above cited. Under said act the license tax is graduated by the number of votes cast for governor at the last general elec. tion next preceding the date of the application for a license. If the total vote cast for governor at such election exceeds 150 votes, then the applicant is required to pay a license of $500 per annum; and if such vote did not exceed 150 votes, then the applicant must pay $300 per annum. The act in question is a police regulation, and, as such, the price of licenses may be graduated as indicated therein. In Ex parte Marshall, 64 Ala. 266, Justice STONE, delivering the opinion of the court, says: Inasmuch as the price of a license may be graduated by the populousness of the community in which the privilege is to be exercised, and by the profitableness of the employments, amusements, games, etc., it authorizes, this assessment is not obnoxjous to the objection that it is not levied equally throughout the taxable district." See, also, East St. Louis v. Wherung, supra; State v. O'Hara, 36 La. Ann. 93; New Orleans v. Railroad Co., 41 La. Ann. 519, 7 South. Rep. 83; Allentown v. Gross, 132 Pa. St. 319, 19 Atl. Rep. 269. In City of Newton v. Atchison, 31 Kan. 151, 1 Pac. Rep. 288, the court holds that a license tax may be graduated by some standard, provided such standard is fair and just. We are of the opinion that the intention of the legislature was to graduate the license tax for selling intoxicating liquors by the populousness of the community in which the business was carried on, and the method of ascertaining such fact was by referring to the vote cast for governor at the election next preceding the application for a license. The standard for graduating the license tax, prescribed by the act in question, is reasonably fair and just. The judgment of the court below is affirmed, with costs of this appeal.

MORGAN and HUSTON, JJ., concur. (94 Cal. 139) RIMMER V. BLASINGAME et al. (No. 14,579.) (Supreme Court of California. March 29, 1892.) FORCIBLE ENTRY AND DETAINER-DAMAGES.

Plaintiff in an action of forcible detainer alleged her possession of certain land, and entry

of defendants in her absence. She also alleged a demand and refusal of surrender, and that the defendants "have ever since said demand refused, and they still refuse, to surrender the same to plaintiff." The complaint claimed restitution, damages, and that damages be trebled. Defendants denied plaintiff's possession, but admitted their entry and detainer of possession till five days after demand, and denied damage: thus putting plaintiff's possession and the question of damage alone in issue. Held, that a verdict for plaintiff entitles her to a judgment for treble the amount of the verdict.

Commissioners' decision. Department 1. Appeal from superior court, Fresno county.

Action by Elizabeth Rinmer against A. A. Blasingame and another for damages and treble damages for forcible detainer of land and premises. Judgment for plaintiff. Plaintiff appeals. Damages trebled. O. L. Abbott, for appellant. E. D. Edwards, for respondents.

TEMPLE, C. This is an action of forcible detainer. After stating her possession of the demanded premises, plaintiff avers: "That on or about the 10th day of January, A. D. 1890, during the temporary absence of plaintiff from said land, the defendants above named, without the consent and against the will of plaintiff, entered upon the said real property, the above-described parcel or tract of land, and took possession and occupancy thereof, and have ever since retained and had, and they still retain and have, possession and occupancy of all of said tracts or parcels of land. That on the 4th day of March, A. D. 1890, of the said defendants the plaintiff made demand for the surrender forthwith to her of the said tracts or parcels of land, and of the possession and occupancy thereof; but upon the said demand so as. aforesaid by plaintiff made for such surrender, the said defendants refused, and they have ever since said demand refused, and they still refuse, to sur render the same to plaintiff, the former Occupant thereof." She also alleges that the defendants herded on the land large bands of sheep, and that she was damaged in the sum of $2,000. She asks judgment for restitution, for damages, and that the damages be trebled. The defendants answered, denying the alleged possession of plaintiff, but admitting their entry upon the land, and that they retained possession for about three months, up to about March 10, 1890, and no longer. They admit herding sheep upon the land, but deny the damage. The case was tried by a jury, which found a verdict as follows: "We, the jury, find for the plaintiff in the sum of $162.75." Upon this verdict, judgment was entered for plaintiff for $162.75, the amount of the verdict. From this judgment the plaintiff appeals, without a bill of exceptions, and makes the point that the judgment should have been for three times the amount of the verdict, for restitution of the premises, and for costs.

The respondents claim that the complaint is insufficient to constitute an action for forcible detainer, because it is not expressly averred that defendants refused to surrender possession within five days after demand. A demand made March 4th