constitution, and therefore not free to all persons for the transportation of their persons and property thereon; that section applies only to public railroads. Koelle v. Knecht, 99 Ill. 396. 1. Philadelphia W. & B. R.Co. v. Williams (Pa.), 4 P. F. S. 103; Getz Appeal, 65 Pa. St. 1;3 Am. & Eng. R. Cas. 186; Chicago, B. & Q. R. Co. v. Wilson, 17 Ill. 125; In re New York Cent. etc. R. Co., 67 Barb. (N. Y.) 426; Toledo etc. R. Co. v. Daniels, 16 Ohio St. 390.

The A., T. & S. F. R. Co., having completed the line of road authorized by its charter, and having once condemned land in the city of Atchison, for depots, side tracks, etc., and needed more room in said city for the transaction of its business, instituted proceedings for condemning more land. Held, that such proceedings could be maintained, and that under the statute the right of eminent domain was not terminated by the completion of the road or exhausted by a single exercise of the power. Central Branch U. P. R. Co. v. Atchison etc. R. Co., 29 Kan. 669; 5 Am. & Eng. R. Cas. 389.

In Cleveland & P. R. Co. v. Speer, 6 P. F. S. (Pa.) 335, it was said: "By the express words of this charter, the power is conferred of making as many sets of tracks as are deemed necessary. But if this power were not expressed, it is clearly to be inferred from the general powers conferred and the essential purposes of the grant. A power to build side tracks is essential to the purpose and use of the road.

And in Black v. Philadelphia & R. R. Co., 8 P. F. S (Pa.) 252, it was said that "the word 'railroad' ex vi termini, includes sidings."

In New York Cent. & H. R. Co. v. Metropolitan G. L. Co., 5 Hun (N. Y.) 201; 6 ib. 109; 63 N. Y. 326, it was held that a railway company may take lands, under the general law, for the purpose of laying tracks from its main line to its stock yards.

In South Chicago R. Co. v. Dix, 109 Ill. 237; 17 Am. & Eng. R. Cas. 157, it was held that a railway corporation, organized under the Illinois general act of 1872, and the amendment thereto of 1877, is expressly empowered to condemn land for the purposes of switches, turnouts and side tracks, when

necessary for the successful operation of its road. The act requires the persons incorporating a company to name the places from which and to which it is intended to construct the proposed railway, but no limitation is laid down as to the places where switches, turnouts or sidetracks shall be constructed.

Where a railroad company had a side track for many years before connecting its main track with a public warehouse and elevator in a town over the land of another, but without having the right of way therefor, except by the mere consent or licence of the owner, it was held that the company had the right to institute proceedings to condemn the land over which such branch ran for right of way. Fisher v. Chicago & S. R. Co., 104 Ill. 323; 10 Am. & Eng. R. Cas. 14.

A railroad corporation may lay side tracks for its convenience over any land it may own in fee, or land of individuals giving legal consent thereto if no public interest or private right is effected. Bangor etc. R. Co. v. Smith, 47 Me. 34.

Public Use.-Where the record shows that the construction of branches and spur tracks laid down on the map is essential to any successful operation of the petitioner's road, it must be held to be necessary to public use. Toledo, S. & M. R. Co. v. East Saginaw etc. R. Co. (Mich. 1888), 36 Am. & Eng. R. Cas. 553.

Railroad in Street.-A land owner who had released to railroad company the right to occupy a street for one track has been held not entitled to enjoin the construction of a switch by laying an additional rail on the projecting ends of the ties on which main track was laid. Indianapolis etc. R. Co. v. Calvert, 110 Ind. 555; 32 Am. & Eng. R. Cas. 170.

A railroad company having the right to extend a switch track into a highway is bound to use such track in such manner as not unnecessarily to interfere with public travel. Bussian v. Milwaukee etc. R. Co., 56 Wis. 325; 10 Am. & Eng. Cas. 716.

Where the right to lay a railroad track in a street is limited to thirty feet in the center, a railroad company may condemn for a side track which

runs perpendicular to the main track. South Chicago R. Co. v. Dix, 109 Ill. 237; 17 Am. & Eng. R. Cas. 157.

The map required to be filed by a railroad company is sufficient if it shows the alignment and profile; it is not essential that it should show all the connections, turnouts and switches. People v. Brooklyn etc. R. Co., 89 N. Y. 75; 9 Am. & Eng. R. Cas. 454.

Land Adjoining Side Track.-In State v. United N. J. R. & C. Co., 43 N. J. L. 110; 10 Am. & Eng. R. Cas. 103, it was held that the act concerning railroad corporations, approved March 6th, 1877, which authorizes such corporation to condemn land "adjoining their road as constructed on their right of way as located" does not apply to lands which merely adjoin a side track leading from the railway route to a freight house.

Contract Not to Build.-When the defendants executed to the plaintiff railroad company a bond, one of the conditions of which was that said company was not to lay down a side track at a certain town through which the railroad passed, this condition is construed to be a consideration inseverable from the other considerations upon which the entire contract rested, and such consideration being held illegal as against public policy, and void, the contract will not be enforced, nor a recovery had upon breach thereof. Pueblo & A. V. R. Co. v. Taylor, 6 Colo. 1; 6 Am. & Eng. R. Cas. 474.

1. South Chicago R. Co. v. Dix, 109 Ill. 237; 17 Am. & Eng. R. Cas. 157.

2. Avinger v. South Car. R. Co. (S. Car.), 35 Am. & Eng. R. Cas. 519. In this case, accordingly, it was held that an instruction that if a defendant railroad company maintained and operated a branch road, or ran its own engine and cars upon it, whether under its charter it had a right to construct

such branch road or not, it will become a common carrier thereon with all the liabilities to the public which attend the main lines is erroneous. "Suppose, for instance," said the court, "that the defendant owned a body of timber land some miles from its main track and that for its own purposes in procuring crossties, stringers and other lumber for repairs it should construct a track to said lands, using its engines and cars thereon for the transportation of said lumber to the main track, and for no other purpose, could it be claimed that the company would become a common carrier thereon and be bound to receive and transport all freight that might be offered? We think not. The question in such cases must turn on the object and purpose of the branch constructed, and the road operated; and this is a question of fact, dependent, not simply, as we have said, upon the use, but upon the character of the use."

Higher Rates.-A branch line may properly be allowed a larger share of a total rate covering branch and main line than its mileage is part of the total mileage. Distance yields to lightness of traffic and other such considerations in such a case as this. This practice is also sanctioned by the Iowa commissioners, who say: "The practice of allowing to branch and smaller lines, that gather up and distribute the traffic of the main lines, a large percentage of the entire joint rate than a pro rata is universal, and, so far as the commissioners are able to judge, is correct. Without it a few branch lines in the State could probably earn operating expenses. The weak lines with a light traffic must derive subsidy from the main lines to whose large business they contribute, otherwise it would be impossible to equalize the rates, and stations on main lines would get very

This

1. Blackstone's Com., bk. 3, ch. 19, p. 286.

2. Wolfreston's Case, Yelverton 52; Roe v. Cock, 2 Term Rep. 257; Chase v. Joyce, 4 M. &. S. 412.

3. 2 Will. IV, ch. 39.

4. By a certain contract in writing A agreed to deliver to B certain goods the 20th December and 1st January, to be paid for at the time of delivery. Subsequently, this agreement was modified and the time of performance was by consent of the parties enlarged to "the latter part of January Part payment was made upon the contract, and on the 24th of January B called upon A to deliver the goods, which he refused to do, and declared that he would not then, nor at any other time, deliver said goods. B there upon brought suit, to which A demurred. The court sustained the demurrer, DAVISON, J., saying: "Another objection is raised to these counts. This suit was instituted on the 24th of January, when the time of performance was extended to the latter part of that month. It has been decided that where, by the terms of the contract, one party was to perform certain labour, and the other, in consideration thereof, to pay a sum of money in a certain month, an action commenced on the last day of the month was prematurely brought. Chitty on Cont. 730, 731; Harris v. Bleu, 4 Shepley, 175. The terms latter part of Fanuary' must be construed to mean the whole of that part. It follows that this suit was not maintainable until after the expiration of that period. But it is insisted that the statement of the defendants that they would not then, nor at any other time, deliver the goods' excused the plaintiff from waiting longer. We are not of that opinion. That statement did not incapacitate them

from fulfilling the contract. It was still within their power to perform within the time stipulated. Until the expiration of the time we know of no principle upon which they could be held liable." But as to the latter observation, see CONTRACT, vol. 3, 904. Bailey v. Ricketts, 4 Ind. 488.

5. The Rev. Stat. of Maine, ch. 91, § 7 (ch. 91, § 8 of ed. of 1883) are as follows: "Any person who furnishes labor or materials for building a vessel, shall have a lien on it therefor, which may be enforced by attachment thereof, within four days after it is launched.

It

. And a person who furnishes labor or materials for a vessel after it is launched, or for its repair, shall have a lien on it therefor, which may be enforced by attachment within four days after the work has been completed." Assumpsit was brought for materials and labor furnished for and used in rebuilding a schooner, to secure a lien, more than "four days after the work has been completed" having expired before the attachment was made. appeared that the vessel was hauled in, in the first place, at the side of the wharf, and dismantled; then blocks were laid down on the beach and she was floated upon the blocks; she was raised somewhat aft, and while supported with shoes under the bilge and deck under the transom, the timber was taken out stick by stick and replaced with new so far as the old was removed. In the place where she was the tide flowed over a wall ahead of her some eight or ten feet from her stern. This wall was some three feet in height, and as she lay stern to the water, the tide, at ordinary tides, flowed all round the vessel. At full tides the water flowed over the top of the wall, and would have floated the vessel had she been tight, but holes had been

See note I.

LAW. made in her for the purpose of allowing the tide to ebb and flow to prevent her floating. There was evidence that without these holes in her it would not be safe to leave her in a full tide, lest she should go adrift. Upon these facts the court refused judgment against the vessel. DANFORTH, J., saying: "In these actions the several plaintiffs claim a lien upon the vessel under R. S., ch. .91, § 7. That the lien as claimed once existed is not denied; and the only question involved is whether it continued up to the time of the attachment. If it accrued under the first clause of the statute it is conceded that it did so continue, otherwise it did not. The first clause continues the lien four days after the vessel is launched; the last clause four days after the labor has been completed. It is quite evident that in contemplation of the statute, when labor or materials are furnished for a vessel in the water, whether for construction or repairs, the lien accrues under the last clause only, otherwise there can be no definite time from which the four days can be reckoned. Under the first clause the lien ceases in four days after the vessel is launched. But a vessel already in the water cannot be launched, the meaning of which in such cases is, to cause to move or slide from the land into the water.' During all the time the work in this case was going on. This vessel was in the water, certainly not upon the land. It was not in a situation where it could be moved from the land into the water. It was at no time upon the 'stocks' as a vessel in process of building. True, it was blocked up, but in a place where, by a preponderance of evidence at least, whenever the blocks are removed, it may be floated again. The launching is a definite period, one well understood as applied in shipbuilding, and the only period provided by law from which the four days can be computed under the first clause of the statutes. In this case there is no possibility of any such launching as the statute contemplates." Homer v. Lady of the Ocean, 70 Me. 350.

1. The Word Law May Include in Its Signification Both Common and Statute Law. The phrase "the laws of the State," in § 2 of act 1 of the Vermont laws of 1874, which prohibits any foreign insurance company from transacting business in Vermont unless such

company is responsible by "the laws of the State" of its origin for the acts and neglects of its agents, includes the common law as well as the statute laws. Lycoming Fire Ins. Co. v. Wright, 12 Atl. Rep. (Vt.), 103; s. c., 22 Am. & Eng. Comp. Cas. 662, n.

A State Constitution Is a Law.-Art. 1, § 10, of the Constitution of the United States declares that "no State shall pass a law impairing the obligation of contracts. The constitution of a State is undoubtedly a law within the meaning of this prohibition. Railroad Company v. McClure, 10 Wall. (U.S.) 511; Pacific R. Co. v. Maguire, 20 Wall. (U. S.) 36.

Section 25 of the schedule of the constitution of Nebraska provides as follows: "The auditor shall draw the warrants of the State quarterly for the payment of the salaries of all officers under the constitution, whose compensation is not otherwise provided for, which shall be paid out of any funds not otherwise appropriated." The second clause of § 22, art. 3, of the same instrument, provides that "no money shall be drawn from the treasury except in pursuance of a specific appropriation made by law." In an application for a mandamus against the auditor to compel him to draw his warrant for salary due the relator as an officer under the constitution, in accordance with the provisions of the schedule above set out, the answer of the respondent alleged that by § 22, art. 3, no money could be drawn except in pursuance of a specific appropriation made by law; that there had been no session of the legislature, the law making power, and no specific appropriation made to cover said salary. And on the argument the respondent contended that the two clauses above set out were in conflict, and that both could not stand. But the court held that there was no conflict, and that the appropriation made in § 25 of the schedule was a specific appropriation "made by law," within the meaning of § 22, art. 3. State ex rel. Roberts v. Weston, 4 Neb. 216.

Any Act of the Legislature, Whether Public or Private, Is a Law. --Section 426 of the New York Code of Procedure provides as follows: "Printed copies in volumes of statutes, code or other written law, enacted by any other State or territory, or foreign government, purporting or proven to have been pub