strictly construed. The authorities cited in the opinion do not support the conclusion reached by the majority. The two cases relied on were suits to recover usury paid by the plaintiff within the statutory period after such payments, and have no bearing upon the case at bar. For these reasons I dissent from the majority opinion. DU RELLE and HOBSON, JJ., concur. HENNING et al. v. STENGEL et al. FISHBACK et al. v. MEHLER. CLARK et al. v. BITZER.1 (Court of Appeals of Kentucky. Jan. 16, 1902.) STREET ASSESSMENTS - FILING OF SPECIFICATIONS-PRESUMPTION AS ΤΟ OFFICIAL DUTY-ATTESTATION OF COPIES-FAILURE TO OBJECT-REPEAL OF STATUTE BY CONSTITUTION-EXCESSIVE ASSESSMENT. 1. Under Ky. St. § 2829, requiring the board of public works of a city of the first class to file drawings and specifications for any work ordered by them before publication of notice calling for bids, it will be presumed, in the absence of positive proof to the contrary, that the officers did their duty. 2. The objection that copies filed with the petition are not properly attested comes too late when made on appeal for the first time, it being alleged in the petition, and not denied in the answer, that the papers are true copies. 3. Act March 4, 1867, providing that no city or town shall charge the ground fronting any street with the cost of the improvement thereof beyond one-half the value of such ground, was repealed, at least after six years from the adoption of the constitution, by Const. § 156, providing for the classification of the cities of the state, and for their government by general laws, as the act was a local or special one, in that it did not apply to the whole state, one county being excepted from its operation. 4. The proof as to the value of the property and the extent it is benefited being conflicting, the chancellor's finding that the assessment does not amount to spoliation will not be disturbed, especially as the property owners desired the improvement, and the trouble complained of arises in a large measure from the effort to construct a cheap street in their supposed interest; the fault being in the specifications, and not in the contractors. Appeals from circuit court, Jefferson county, chancery division. "Not to be officially reported." Actions by Stengel & Bickel and others against Sallie K. Henning and others to enforce liens for the cost of street improvements. Judgment for plaintiffs, and defendants appeal. Affirmed. Lane & Harrison, Barker & Woods, and R. W. Wooley, for appellants. Wm. Furlong, for appellees Stengel & Bickel. Bodley, Baskin & Morancy, for appellee Bitzer. HOBSON, J. These three appeals are heard together. They are prosecuted from Judgments of the Jefferson circuit court en Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter. forcing liens for the improvement of three sections of Transit avenue, in Louisville, Ky. The first objection made relates to the filing of the drawings and specifications of the work with the board of public works, according to section 2829, Ky. St.: "Whenever said board shall order any work to be done which either by order of said board or according to law, is to be performed by independent contract, said board shall prepare and place on file in the office of said department complete drawings and specifications of said work. Thereupon said board shall cause a notice to be published in one daily or weekly newspaper of general circulation in said city, once in each week for two weeks, informing the public of the general nature of the work, of the fact that the drawings and specifications are on file in said office, and of the nature and extent of the bond or se curity required, and calling for sealed proposals for said work by a day not earlier than ten days after the first of said publications." It is insisted that the plans and specifications are shown by the proof not to have been filed with the board as required by the statute before the publication of the notice. We have carefully examined the proof, and are of the opinion that it sustains the conclusion of the chancellor on this point. While there is some testimony from which it might be inferred that the papers were not filed until the day of the letting, there is positive testimony of one of the bidders that they were filed and he examined them ten days before the letting. Two other bidders testify to examining them five days before the letting. No bidder testifies to being unable to see them. There were a number of bidders, the work was let unusually low, and there is nothing to show that any of the bidders failed to understand what was proposed. The law presumes the officers did their duty, and if they failed to do it in this case positive proof of it could have been made. The presumption of regularity is not overthrown by the evidence. It is also insisted that the copies filed with the petition are not properly attested by the comptroller. Some of them read thus: "A true copy. Attest: W. M. Finley, C. B. C. Attest: John H. Hancock, Comptroller." On some of them the words "A true copy" is omitted before the signature of Finley. It is insisted that the comptroller does not attest these papers as true copies. We think it is evident that this is the intent of the attestation of Hancock. No objection appears to have been made to the attestation in the trial court, and we do not think the question should be made for the first time in this court. In the petition the papers are alleged to be true copies, and this is not denied in the answer. It is also insisted that the amount adJudged against some of the property is more than its value, and amounts to spoliation. The act of March 4, 1867, entitled "An act In relation to the improvement of streets in cities and towns in this state," is relied on. The act reads as follows: "Sec. 1. Be it enacted by the general assembly of the commonwealth of Kentucky, that no city or town shall, by virtue of any authority it has to improve its streets at the cost of the owners of ground fronting thereon, have authority to charge the ground or the owner thereof, on a count of such improvements, with more than one-half the value of such ground. This act shall not apply to Barren county. "Sec. 2. This act shall be in force from its passage." 1 Acts 1867, p. 64. Section 156 of the constitution provides for the classification of the cities of the state and for their government by general laws. Pursuant to it the present statutes on this subject were enacted. By section 1 of the schedule all laws inconsistent with such provisions of the constitution as required legislation to enforce them remained in force not longer than six years after its adoption, on September 28, 1891. The act of 1867 was a local or special act, in the sense that it did not apply to the whole state, and was inconsistent with the provision of the constitution looking to the government of all the cities in the state by general laws, according to their classification. It was therefore not in force, at least, after six years from the adoption of the constitution, when these proceedings were had. The proof as to the value of the property and the extent it is benefited is conflicting, but the chancellor knew the ground and the local situation, and some weight should be given his finding. We are the more inclined to do this because it is conceded that the property holders wanted the ordinance passed and the improvement made; that things were hurried up for them, and that they still would have paid without objection if the street had been properly metaled, and the city had carried out the plan, and improved a gap between them and one of the thorough fares of the city. It is clear the contractors are responsible for none of these things. They could not control the council or the board of public works. They did their work according to their contract, and the trouble is in the specifications, not in them. specifications were changed contrary to the Judgment of the city engineer in the interest of the property holders, if not at their wish, and the trouble now complained of seems to be due in a large measure to an effort to construct a cheap street. The property lay in the outskirts of the city, it was not available for sale in lots for building purposes without the improvement of the street, and some weight must be given to what seems to have been the common judgment of the property owners as to their interest in the premises. The We see no objection to the manner in which the cost of the improvement was apportioned by the city council against the property owners. The mode or apportionment seems to have followed the statute. Judgment affirmed. MIDDLETON et al. v. KENTUCKY LUMBER CO.1 (Court of Appeals of Kentucky. Jan. 9, 1902.) BURDEN OF PROOF-PEREMPTORY INSTRUCTION. 1. In an action to recover the price of timber sold, defendant, having admitted a contract to pay for the trees and pleaded a new contract in avoidance, properly took the burden of proof. 2. There being a conflict of testimony upon the issues presented by the pleadings, it was error to grant defendant's request for a peremptory instruction. Appeal from circuit court, Harlan county. "Not to be officially reported." Action by James H. Middleton and another against the Kentucky Lumber Company to recover the price of timber sold. Judgment for defendant, and plaintiffs appeal. Reversed. Jas. Andrew Scott, W. F. Hall, and J. G. Forester, for appellants. Tinsley & Faulkner, for appellee. DU RELLE, J. In January, 1889, the appellants, a firm engaged in buying and selling land and standing timber, sold to appellee lumber company 455 poplar trees, which were thereupon marked with the lumber company's brand, for the agreed price of $1,657.25; one half of which was to be paid on the execution of a deed for the timber, and the other half June 1, 1889. A deed was accordingly executed for this timber and other property sold to the company, reciting the payment of one-half the purchase money, which, however, was not paid. The 455 trees seem to have been the property of Pace, and to have been standing on his land. Suit was brought for the unpaid purchase money in September, 1894. The answer of the company admits the contract and the execution of a deed which covered the 455 trees, but alleges that soon after the execution of the deed the company ascertained there was dispute over the title to the timber, which was claimed by the Commonwealth Land & Lumber Company, and that "it declined to take or pay for said timber under said deed, which was agreed to and acquiesced in by said Middleton & Pace"; that afterwards, in November, 1891, the company made a new contract with J. H. Middleton, for Middleton & Pace, and one Hiram Cawood, by which it agreed to deed back said timber, but the deed was afterwards waived by said parties; that under the last contract it bought of J. H. Middleton and Hiram Cawood from three to five thousand poplar and ash logs, to be delivered on floating water, at the agreed price of 70 cents for 22-inch logs and upwards, and 50 cents Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter. for 18 to 22-inch logs, which was the fair market price for such timber, and which contract contained this clause: "This contract is to cover timber deeded by James H. Middleton and Calvin Pace to second party, and mentioned in an agreement to make a deed executed by second party under this date, and also all the timber now owned and controlled by party of the first part tributary to Gabe's Branch;" that the new contract was intended to and did abrogate the deed as to the 455 trees; that the company offered to deed back to appellants the 455 trees, but Middleton said it was "no use, as they would go on and put in the timber under said last-named contract, which they did"; and that the company had paid for the most of said timber at the prices agreed on in the second contract. The second contract, which was filed with the answer, was be tween Hiram Cawood and James H. Middleton, of the first part, and the Kentucky Lumber Company, of the second part, and not, as alleged in the answer, between Middleton, for himself and Pace, and Cawood. By an amended answer it was alleged that the partnership between Middleton and Pace was dissolved in 1890, and Pace took all claims against the company arising out of the transaction concerning the 455 trees, and that neither Middleton nor the firm of Middleton & Pace had any interest in that claim. By reply and amended replies the appellants de nied the affirmative averments of the answer in regard to the disputed title to the trees; denied that a new contract was made by them, or by Middleton for Middleton & Pace, by which the company agreed to deed back said timber, or that any such deed was waived by the parties; and alleged that Middleton and Cawood owned a large amount of timber on Gabe's Branch near the 455 trees deeded to the company by Middleton & Pace, and that the company offered to pay Cawood and Middleton at the rate set out in the second contract for delivering on floating water the timber already deeded to the company, if they would deliver all the timber they owned on Gabe's Branch at the same price, which offer was accepted by Cawood and Middleton; that there was no agreement that Middleton & Pace should take back the 455 trees, and that the clause quoted In the answer was fraudulently inserted in the written contract by the draftsman. There was also a denial of the averment as to the dissolution of the partnership of Middle ton & Pace and the taking by Pace of the claims against the company. By rejoinder the company denied the affirmative averments of the reply as amended. The answer contained a plea of the statute of limitations, to which a reply was filed, and a rejoinder to the reply. No question in regard to these pleadings, however, is made upon this ap peal. The first trial resulted in a verdict and judgment for the appellants. Upon appeal to this court (Lumber Co. v. Middleton, 41 S. W. 48) that Judgment was reversed for error in the admission of evidence, the principal error being the refusal to admit what is called a supplemental contract by the company with Cawood and Middleton,-being ap parently the agreement referred to in the clause set up in the answer,-bearing the same date with the second contract, by which supplementary contract the Kentucky Lumber Company agreed to convey to Middleton and Cawood the 455 trees on condition that Middleton and Cawood should cut and deliver all the timber mentioned in the new contract at as early a date as possible. This supplementary agreement appears to have been signed only by the lumber company. Upon the second trial there was a distinct conflict of testimony as to whether this supplementary agreement was ever seen by Middleton, Pace, or Cawood before the suit was brought, and as to whether the new contract, which was signed with the firm name of Cawood & Middleton,-the firm name being signed by Cawood,-was intended to contain the clause set out in the answer. The lumber company, having admitted the original contract to pay for the trees, and pleaded the new contract in avoidance, properly took the burden of proof. There was evidence tending to show an admission by Middleton that Pace had sold out his interest in the firm to Cawood. There was some evidence which tended to contradict this, but we are unable to find any issue upon this question made by the pleadings. At the conclusion of the testimony the lumber company asked a peremptory instruction to find for the defendant. This was granted. This action by the court seems to us to have been erroneous. Some of the questions argued in the briefs are not fully presented by the pleadings; but, as there was a conflict of testimony upon the issues presented, the ap pellants were entitled to have those issues submitted to the jury, by proper instructions, for determination. For the reasons given, the judgment is reversed, and cause remanded, with directions to award appellants a new trial, and for further proceedings consistent herewith. WILEY et al. v. BIRD et al. (Supreme Court of Tennessee. Nov. 19, 1901.) SUIT BY REMAINDER-MEN-RIGHT TO POSSESSION-CANCELLATION OF FRAUDULENT TITLE-EQUITABLE RELIEF. Where a bill by infant remainder-men alleged that defendants were setting up invalid claims to the land, and prayed that complainants be declared the true owners of the land, and that all claims of defendants be declared void and canceled, it was not necessary to dismiss without prejudice on the ground that the remainder-men's right to recover would not accrue until the determination of the particular estate, but, as possession was not the only relief sought, complainants were entitled, on proper showing, to a decree fixing their rights. Appeal from chancery court, Anderson county; H. G. Kyle, Chancellor. Bill by E. F. Wiley and others against L Bird and others. From a decree dismissing the bill without prejudice, both parties appeal. Modified. Lucky, Sanford & Fowler, for plaintiffs. C. J. Sawyer, for defendants. WILKES, J. The original bill in this cause was filed against L. Bird et al., among whom was Amos Carroll. The only controversy now before the court is between complainants and Amos Carroll, all other controversies being eliminated. The controversy is over a large body of land, consisting of several tracts. The chancellor held that, as to the land claimed by Amos Carroll, his title had been perfected by adverse possession, so far as it conflicted with the title of complainants, and the bill was dismissed as to him. The court of chancery appeals affirmed the decree of the chancellor upon the grounds that the conveyance under which Amos Carroll held was not a forgery, and that Amos Carroll had maintained adverse possession under it for the statutory period to vest title in him, and the boundaries thus acquired were fixed by the court of chancery appeals. Upon a petition to rehear the court of chancery appeals modified its original opinion as to the interest claimed by J. H. Vanderson and his children, who owned an undivided third interest in the disputed land. It appears that J. H. Vanderson is tenant by curtesy of this interest, and the remainder is in the children. The court of chancery appeals finds as against the children the adverse possession commenced in 1882, and they were then minors, and entitled only to a remainder after the termination of their father's curtesy estate, and, this being so, the statute of limitations had not run against the children because of their minority, and their right of action would not accrue until the termination of their father's life estate. The complainants and defendants have appealed, and both assign errors. As to the errors assigned by the complainants, except the said remainder-men, it is only necessary to say that we think they are precluded by the finding of the court of chancery appeals that Amos Carroll had held the land in dispute for more than seven years adversely, and hence his title to the land thus held could not be disturbed. As to the said remainder-men, the court of chancery appeals held that, while they were not barred, because their right of action had not accrued, still their suit was premature, inasmuch as the tenant by curtesy was still alive, and the right to recovery by the remainder-men had not accrued. Hence the suit as to them was dismissed, but without prejudice, and they appealed from the decree of dismissal, and Amos Carroll appealed from so much of the decree as dismissed the suit without preju dice. The court of chancery appeals proceeded upon the idea that the possession as to the remainder-men was not adverse until the life estate should fall in, and complainants, as remainder-men, could not maintain their action until the happening of that event. If this were a pure ejectment suit alone for the immediate recovery of the land and its possession, the decree of the court of chancery appeals might be proper, but the scope and prayer of the bill is broader than that of a pure ejectment bill for present possession. The bill alleges, among other things, that the various defendants, and among them Amos Carroll, are setting up some sort of claims to the land which are not valid, and are frauds upon the rights of complainants, and that they are entitled to have the same canceled and declared void. The rights of the remainder-men are set out in full; that is, that their father had a life estate, and they were entitled in remainder. There is a specific prayer that complainants be declared to be the true owners of the land, and that all claims of every kind and character which may be set up by defendants, and each of them, be declared void and canceled. We are of opinion that the allegation and prayer of the bill are broad enough to warrant the court in declaring the right of the remaindermen, and setting aside the claims of Amos Carroll so far as they are a cloud upon their title. Dodd v. Benthal, 4 Heisk. 608, 610; Anderson Co. v. Hays, 99 Tenn. 543, 42 S. W. 266; Weaver v. Davidson Co., 104 Tenn. 321, 59 S. W. 1105; Aiken v. Suttle, 4 Lea, 109. The decree of the court of chancery appeals is modified to the extent that decree will be entered here fixing the rights of the remainder-men, Wm. Henry Vanderson and Eliza Belle, or Lida Cheney, to a one-third interest in remainder in the lands which are shown by the decree to have been adversely held by Amos Carroll as to the other complainants, and the claims of said Amos Carroll as to said undivided third interest in said land are extinguished and removed as a cloud upon the title in remainder of said Wm. Henry Vanderson and Lida Cheney. The costs of the cause will be divided, two-thirds to be taxed to complainants except said Wm. Henry and Lida, who will pay no costs, and onethird to the defendant. HARDING v. COMMISSIONERS' COURT Where the petition in a suit to enjoin the commissioners' court from declaring a local option election valid, on the ground that it would interfere with petitioner's business as retail liq uor dealer, did not state that he was "legally" carrying on such business, he was not entitled to relief, though it appeared from the evidence that he was legally so engaged. Application for writ of error to court of civil appeals of Third supreme judicial district. Suit for an injunction by R. Harding against the commissioners' court of McLennan county to restrain respondent from declaring a local option election invalid. A judgment denying the writ was affirmed by the court of civil appeals (65 S. W. 56). Application by complainant for writ of error. Denied. E. E. Easterling, for plaintiff in error. GAINES, C. J. We are of opinion that the writ of error applied for in this case should be refused, but are not prepared to concur in the conclusion upon which the court of civil appeals rest their decision. That court decided the appeal upon the agreed facts upon which the case was tried, from which it appears that the applicant "was legally carrying on" the business of a liquor dealer in the district in which the election was held. Harding v. County Commissioners, 65 S. W. 56. But the allegation in the petition is merely "that your petitioner is engaged in the sale of beer and other liquors in Axtell, Texas. within the limits of said described local option precinct, and in said school district," etc. There is no averment that he was legally so engaged. If such were the fact, it should have been alleged. Unless he was a licensed dealer, which is not averred, and which we are not at liberty to assume, we are of opinion that he would have no such interest in the question agitated by his suit as would have entitled him to bring the action. Since it does not appear that the effect of declaring that the election had carried in favor of local option was to imperil any pecuniary right of the applicant, the question as to him is merely a political one, and the courts agree that a party cannot sue to determine a controversy of such a character. The trial court decided against the applicant on the ground that the election was valid, and the court of civil appeals held that he was not entitled to sue, although a licensed dealer. Both are questions of much difficulty; but since it was not averred that the applicant was lawfully engaged in the business of selling liquors, we do not find it necessary to decide either of them. The courts, in determining a case, are not at liberty to consider a fact appearing in evidence which is not alleged in the pleadings. The application for the writ of error is refused. eral, or other officer charged with the enforcement of the laws, and request him to institute proper proceedings. Article 4577 provides that all the penalties therein provided for shall be recovered, and suits thereon shall be brought in the name of the state, by the attorney general, or under his direction. Held, that the district attorney for the county in which such suit is brought has no authority to appear and prosecute it, except by request of the commission, and hence is not entitled to the fees provided therefor. 2. Const. art. 5, § 21, provided that county attorneys shall represent the state in all cases in the district and inferior courts in their respective counties. An amendment to article 10, § 2, provides that the legislature shall pass laws to regulate railroad tariffs, etc., and enforce the same by adequate penalties, and may provide and establish all requisite means and agencies, invested with such powers as may be deemed adequate and advisable. Held, that the legislature had power to authorize the attorney general to institute and control suits in the district courts to enforce penalties for violation of the railroad laws. Original application for writ of mandamus, on the relation of Warren W. Moore, against C. K. Bell, attorney general. Writ refused. Warren W. Moore, in pro. per. C. K. Bell, Atty. Gen., and T. S. Reese, Asst. Atty. Gen., for respondent. BROWN, J. This is an original suit in this court seeking a mandamus against the respondent, C. K. Bell, attorney general of the state, to compel him to pay over to the relator certain moneys alleged to be in the hands of the respondent, and claimed to belong to the relator. The petition alleges, in substance, that at the date of the collections made in the several cases therein stated the relator was, and is now, district attorney for the judicial district which embraces Travis county, and that C. K. Bell was then, and is now, the attorney general of the state of Texas. It is alleged that the attorney general of the state, at the request of. the railroad commission of Texas, instituted a number of suits in the district court of Travis county against the Texas & New Orleans Railroad Company to recover of that corporation penalties incurred by it for refusing to permit a person authorized by the railroad commission of Texas to examine its books and papers; that all of said suits were consolidated and tried as one case, which resulted in a judgment for the state of Texas in the sum of $2,500, which sum, with interest to the amount of $67.50, was collected by the said attorney general, the respondent herein. It is also alleged that at the instance of the railroad commission of Texas the attorney general instituted in the district court of Travis county a suit, in the name of the state of Texas, against the Houston, East & West Texas Railway Company, to recover of it penalties incurred by the corporation in charging, demanding, and collecting from one person less compensation than it charged another person for like and contemporaneous service; that said suit was tried, and resulted in a judgment in favor of the state of Texas |