1098 L. R. A. CASES AS AUTHORITIES.

[28 L. R. A.

28 L. R. A. 761, HOUSTON & T. C. R. CO. v. CRAWFORD, 88 Tex. 277, 53 Am. St. Rep. 752, 31 S. W. 176.

Liability of purchaser of railroad from receiver.

Modified on final proceedings ia error in 89 Tex. 89, 33 S. W. 534, Affirming (Tex. Civ. App.) 32 S. W. 155, requiring complaint seeking to hold purchaser of railroad from receiver on claim for personal injuries while road in receiver's hands after sale, to allege making of improvements after sale, paid for out of subsequent earnings.

Approved in Holman v. Galveston, H. & S. A. R. Co. 14 Tex. Civ. App. 503, 37 S. W. 464, denying liability of purchaser of railroad, for damage to freight shipped over road under contract with receiver, in absence of proof that funds from operation were invested in betterments or turned over to purchaser.

Cited in San Antonio & A. P. R. Co. v. Bowles, 88 Tex. 639, 32 S. W. 880, refusing, from insufficiency of assignments of error, to pass on question as to sufficiency of allegation as to improvements by receiver with funds derived from operation of road.

Distinguished in Houston & T. C. R. Co. v. Bath, 17 Tex. Civ. App. 707, 44 S. W. 595, holding purchaser of railroad from receiver liable for damage to freight shipped over road after sale, while operated by receiver, for purchaser's benefit, in opposition to orders of court, though no betterments made.

Where claim against receiver presented.

Followed in San Antonio & A. P. R. Co. v. Bowles, 88 Tex. 640, 32 S. W. 880, holding claim for injuries during receivership of railroad not barred by failure to present it in court in which receivership was pending.

28 L. R. A. 765, MUTUAL L. INS. CO. v. SIMPSON, 88 Tex. 333, 53 Am. St. Rep. 757, 31 S. W. 501.

Breach of warranty as to health of insured, etc.

Cited in Mutual L. Ins. Co. v. Baker, 10 Tex. Civ. App. 525, 31 S. W. 1072, holding applicant's omission to mention death of infant brother, of which he had no knowledge, not breach of warranty avoiding policy.

Cited in footnotes to Barnes v. Fidelity Mut. Life Asso. 45 L. R. A. 264, which holds that person in bed with cold may be "in good health" within meaning of policy, though pneumonia, terminating fatally, sets in soon after; Globe Mut. I. Ins. Asso. v. Wagner, 52 L. R. A. 649, which holds policy not avoided by false statement that none of applicant's brothers dead; Black v. Travelers' Ins. Co. 61 L. R. A. 500, which holds injury not bodily infirmity as matter of law, unless physical health of insured affected.

Limitation of agent's authority.

Cited in Delaware Ins. Co. v. Harris, 26 Tex. Civ. App. 544, 64 S. W. 867, holding applicant for insurance bound by terms of application in regard to extent of agent's authority.

28 L. R. A. 769, SALT CREEK VALLEY TURNP. CO. v. PARKS, 50 Ohio St. 568, 35 N. E. 304.

Followed without special discussion in West Alexandria & E. Turnp. Road Co. v. Gay, 50 Ohio St. 583, 35 N. E. 308.

Right to jury trial.

Cited in Cincinnati v. Steinkamp, 9 Ohio C. C. 181, holding void, statute authorizing court of equity to issue injunction against use or occupation of certain buildings in absence of fire escapes on same.

28 L. R. A. 773, ROBINSON v. SOUTHERN P. CO. 105 Cal. 526, 541, 38 Pac. 94, 722.

Stop-over privileges.

Cited in Southern P. Co. v. Robinson, 132 Cal. 412, 64 Pac. 572, holding decision that passenger entitled to stop-over privileges under statute not stare decisis as to one repeatedly seeking such privilege in order to have refusals as basis of many actions for penalty.

Cited in footnote to Louisville & N. R. Co. v. Klyman, 56 L. R. A. 769, which sustains right to eject one stopping over on ticket good only for continuous passage.

Extent of repeal or amendment of statute.

Cited in Home Bldg. & L. Asso. v. Nolan, 21 Mont. 214, 53 Pac. 738, holding previously existing corporations not electing to come within its provisions not affected by statute providing that it shall not affect any existing corporation unless it elects to come under its provisions; Murphy v. Pacific Bank, 119 Cal. 342, 51 Pac. 317, holding statute as to savings banks not repealed as to bank not electing to continue existence under Civil Code, by section thereof providing that existing corporations not electing to continue under Code not affected by its provisions; Anderson v. Byrnes, 122 Cal. 277, 54 Pac. 821, holding amendment of act limiting liability of corporate directors not invalidated by invalidity of previous provision limiting its operation to certain class of corporation, in absence of anything to indicate that former limitation would not have been made in any event.

Disqualification of judge.

Cited in footnotes to State ex rel. Perez v. Wall, 49 L. R. A. 548, which holds judge disqualified in suit by sister of father-in-law; First Nat. Bank v. McGuire, 47 L. R. A. 413, which holds judge disqualified to try case in which plaintiff is corporation of which his wife is shareholder.

28 L. R. A. 783, DAVOCK v. MOORE, 105 Mich. 120, 63 N. W. 424. Who are public officers; eligibility.

Approved in Atty. Gen. ex rel. Moreland v. Detroit, 112 Mich. 159, 37 L. R. A. 217, 70 N. W. 450, holding mayor of city within prohibition against person holding office under "state," executing office of governor.

Cited in footnote to State v. Loechner, 59 L. R. A. 916, which holds member of city board of education a ministerial officer.

Local self-government; powers of legislature or governor.

Cited in State ex rel. White v. Barker, 116 Iowa, 104, 57 L. R. A. 250, 93 Am. St. Rep. 222, 89 N. W. 204, denying power of legislature to take from appointees of municipality, management of its water supply system; Brockenbrough v. Water Comrs. 134 N. C. 18, 46 S. E. 28, sustaining legislative power to authorize city board of water commissioners to issue bonds for water works and execute mortgage securing same; Grand Island & N. W. R. Co. v. Baker, 6 Wyo.

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L. R. A. CASES AS AUTHORITIES.

[28 L. R. A. 390, 34 L. R. A. 840, 71 Am. St. Rep. 926, 45 Pac. 494, requiring compulsory obligations imposed by legislature to be included in determining whether county indebtedness exceeds constitutional limitation; Atty. Gen. ex rel. Moreland v. Detroit, 112 Mich. 170, 37 L. R. A. 220, 70 N. W. 450, holding statutory power of governor.to remove mayor of city authorized by Constitution; Adams v. Kuykendall, 83 Miss. 592, 35 So. 830, holding appointment of state revenue agent to collect uncollected taxes for past years not invasion of local self-government. Cited in footnotes to Simon v. Northup, 30 L. R. A. 171, which upholds legislative power to require city to incur debt for bridges and ferries; State cr rel. McCausland v. Freeman, 47 L. P.. A. 67, which sustains statute arbitrarily establishing high school and requiring its maintenance by people of county; Rathbone v. Wirth, 34 L. R. A. 408, which holds void, statute for bipartisan police board of four members, to be selected by all members of common council voting for two members only.

Cited in note (48 L. R. A. 467, 491) on power of legislature to impose burdens on municipalities, and to control their local administration and property. Amendment of statute.

Cited in Detroit v. Schmid, 128 Mich. 386, 92 Am. St. Rep. 468, 87 N. W. 383, holding that title to amendatory act need not be more specific than that of amended act, if nothing is in later act which could not have been included in earlier one.

28 L. R. A. 793, DETROIT, G. H. & M. R. CO. v. GRAND RAPIDS, 106 Mich. 13, 58 Am. St. Rep. 466, 63 N. W. 1007.

What property subject to local improvement assessment.

Approved in Boston v. Boston & A. R. Co. 170 Mass. 100, 49 N. E. 95, holding railroad right of way not more than 5 rods wide exempt from street improvement assessment.

Cited in footnotes to Storrie v. Houston City Street R. Co. 44 L. R. A. 716, which holds street railway company required to pave between rails, and 6 inches each side; Cincinnati, L. & N. R. Co. v. Cincinnati, 49 L. R. A. 566, which denies right to assess entire cost of land taken for highway on remaining land of same owner.

Cited in notes (28 L. R. A. 252) on liability of railroad right of way to assessment for local improvements; (35 L. R. A. 40) on liability to local assessments for benefits of property exempt from general taxation.

Limited in Kansas City, P. & G. R. Co. v. Waterworks Improv. Dist. No. 1, 68 Ark. 381, 59 S. W. 248, holding right of way and depot grounds assessable for local improvements which benefit them.

Disapproved in effect in Pittsburgh, C. C. & St. L. R. Co. v. Hays, 17 Ind. App. 264, 44 N. E. 375, holding railroad right of way assessable for improvement of highways.

28 L. R. A. 796, DUGGER v. MECHANICS' & T. INS. CO. 95 Tenn. 245, 32 S. W. 5.

Equal protection of laws.

Approved in Leeper v. State, 103 Tenn. 516, 48 L. R. A. 170, 53 S. W 962, upholding statute providing for selection of text-books of all schools of state

by commission, and their purchase from lowest bidder; Henley v. State, 98 Tenn. 698, 39 L. R. A. 136, 41 S. W. 352, sustaining act for payment by state or county of costs of criminal prosecution in certain classes of cases only; Knoxville Iron Co. v. Harbison, 183 U. S. 20, 46 L. ed. 61, 22 Sup. Ct. Rep. 1, Affirming 103 Tenn. 441, 56 L. R. A. 320, 76 Am. St. Rep. 682, 53 S. W. 955, sustaining act requiring redemption in money of store orders, scrip, etc., given in payment of wages.

Extent of recovery on policy.

Approved in Hickerson v. German-American Ins. Co. 96 Tenn. 208, 32 L. R. A. 176, 33 S. W. 1041, holding market value of property, destroyed so far as covered by insurance, amount recoverable on policy; Western Assur. Co. v. Phelps, 77 Miss. 660, 27 So. 745, holding statute against insurance company denying that insured property was worth full value placed on it not waived by acceptance of policy prescribing different rule for fixing amount of loss; Phoenix Ins. Co. v. Levy, 12 Tex. Civ. App. 47, 33 S. W. 992, holding clause in policy allowing company to rebuild void in case of total loss.

Cited in footnote to Daggs v. Orient Ins. Co. 35 L. R. A. 227, which upholds statute requiring payment of full amount of policy on total loss.

Forfeiture of policy.

Cited in footnote to McGannon v. Michigan Millers' Mut. F. Ins. Co. 54 L. R. A. 739, which holds policy not avoided by temporary absence of competent watchman from mill.

Invalidity of statute in part.

Approved in State v. Scott, 98 Tenn. 262, 36 L. R. A. 463, 39 S. W. 1, holding other provisions of statute not affected by holding separate and independent provision void as interference with interstate commerce.

Distinguished in Reelfoot Lake Levee District v. Dawson, 97 Tenn. 179, 34 L. R. A. 732, 36 S. W. 1041, holding statute void in toto when enforcement impracticable on elimination of unconstitutional provision.

Foreign corporations.

Approved in State er rel. Astor v. Schlitz Brewing Co. 104 Tenn. 753, 78 Am. St. Rep. 941, 59 S. W. 1033; State v. Connecticut Mut. L. Ins. Co. 106 Tenn. 285, 61 S. W. 75; North British & M. Ins. Co. v. Craig, 106 Tenn. 631, 62 S. W. 155; Daggs v. Orient Ins. Co. 136 Mo. 391, 35 L. R. A. 229, 58 Am. St. Rep. 638, 38 S. W. 85,-upholding right of state to impose on foreign corporations such conditions as it deems proper, or to wholly exclude them.

Corporation as "person."

Approved in Dayton Coal & I. Co. v. Barton, 103 Tenn. 611, 53 S. W. 970, holding corporation within protection of constitutional provision against depriving any "man" or any "person" of life, liberty, or property without due process.

28 L. R. A. 801, Ex parte HART, 11 C. C. A. 165, 25 U. S. App. 22, 63 Fed. 249. Extradition proceedings.

Followed without special discussion in Ex parte Dinsmore, 11 C. C. A. 588, 25 U. S. App. 46, 63 Fed. 261.

Approved in Ex parte Rowland, 35 Tex. Crim. Rep. 109, 31 S. W. 651, holding

1102

L. R. A. CASES AS AUTHORITIES.

[28 L. R. A. complaint on which extradition demanded, insufficient when made on affiant's information and belief.

Cited in footnotes to State ex rel. Nisbett v. Toole, 38 L. R. A. 224, which sustains governor's right to revoke warrant for surrender of fugitive before removal from state; State ex rel. McNichols v. Justus, 55 L. R. A. 325, which holds that requisition for extradition "by the acting governor" is made by chief magistrate; State v. McNaspy, 38 L. R. A. 756, which holds waiver of requisition papers and submission to arrest, voluntary return authorizing prosecution for any crime.

Questions considered on habear corpus in extradition cases.

Approved in Armstrong v. Van De Vanter, 21 Wash. 693, 59 Pac. 510, holding courts authorized to inquire into sufficiency of indictment found in demanding state on habeas corpus to obtain discharge from arrest in extradition proceedings; Bruce v. Rayner, 62 C. C. A. 502, 124 Fed. 482, holding person arrested under extradition statute entitled to judicial inquiry of state or Federal court into sufficiency of indictment under which he is demanded.

Annotation in 28 L. R. A. 801, referred to particularly in Ex parte Devine, 74 Miss. 719, 22 So. 3, upholding right of relator in habeas corpus to secure release from custody in extradition, to traverse return by showing that there was no copy of indictment or affidavit as basis of extradition warrant.

28 L. R. A. 811, BRASHEAR v. HOUSTON C. A. & N. R. CO. 47 La. Ana. 735, 49 Am. St. Rep. 382, 17 So. 260.

Contributory negligeace of passenger.

Cited in footnotes to Distler v. Long Island R. Co. 35 L. R. A. 762, which holds stepping from station platform onto slowly moving train not negligence per se; Jones v. New York C. & H. R. R. Co. 41 L. R. A. 490, which denies right of one attempting to enter car of mixed train at distance from station to recover for injury from sudden jolting of car in coupling.

Distinguished in Bemiss v. New Orleans City & Lake R. Co. 47 La. Ann. 1676, 18 So. 711, holding attempt to go from one car to another while train is in motion, contributory negligence.

28 L. R. A. 812, STATE v. APPLEGARTH, 81 Md. 293, 31 Atl. 961. Discrimination; uniformity,

Approved in Hughes v. State, 87 Md. 301, 39 Atl. 747, sustaining act against fishing in certain waters with seines or nets, except from shore in usual and customary manner; Applegarth v. State, 89 Md. 143, 42 Atl. 941, sustaining act requiring license by person engaged in business of packing and canning oysters for sale and transportation; Simpson v. Hopkins, 82 Md. 489, 33 Atl. 714, upholding taxation of corporate bonds secured by mortgage, though individual debts secured by mortgage are exempt; Lacy v. Armour Packing Co. 134 N. C. 573, 47 S. E. 53, holding valid, act taxing all meat-packing houses doing business within state, specified amount for each county in which business is carried on.

Cited in footnote to Levi v. Louisville, 28 L. R. A. 480, which holds void, for lack of uniformity, ad valorem tax on realty and license tax on personalty.