THE PEOPLE v. LOUGHRIDGE.

conflict. In Massachusetts, The Commonwealth v. Cullings, 1 Mass. 116; Connecticut, The State v. Ellis, 3 Conn. 185; Vermont, The State v. Mockridge; Ohio, Hamilton v. The State, 11 Ohio, 435; and Maryland, Cummings v. The State, 1 Har. & John. 140, such indictments have been sustained. In New York, The People v. Gardner, 2 John. 477, The People v. Schenk, 2 John. 479; Pennsylvania, Simmon v. The Commonwealth, 5 Binney, 617; Tennessee, Simpson v. The State, 4 Humph. 456, and North Carolina, The State v. Brown, 1 Harvy, 100, the contrary doctrine has prevailed. The force of the Massachusetts cases however holding as above, is very much shaken by the opinion of Ch. J. SHAW in the much more recent case of The Commonwealth v. Uprichard, 3 Gray's R. 434, where he holds that stealing goods in one of the British Provinces and bringing them into Massachusetts, will not support an indictment in that State. I can discover no reason applying in that case which does not obtain in case of an indictment found in one State where the goods are brought from one into another. The different States are altogether as independent of each other in point of jurisdiction as any two nations.

No case sustaining an indictment under such circumstances asserts the rights of courts of one State to entertain jurisdiction of cases where crimes were committed in other States; but they all proceed upon the assumption that the possession in the thief amounts to a larceny in every county into which he carries the goods, because the legal possession remains in the true owner, and therefore every moment's continuance of the felony amounts to a new caption and asportation. There is considerable subtlety in this principle, and it was, no doubt, suggested for the convenience of trying felons in the county where they might be taken with the goods, and to avoid their escaping punishment by fleeing from one State or locality into another.

THE PEOPLE v. Loughridge.

No legislator in defining larceny, and affixing a penalty to the offence, ever contemplated such an interpretation. To allow this interpretation to hold in the case of different counties of the same State may with safety be permitted. Here the accused may have compulsory process for his witnesses, and a conviction in one county will be a bar to that in another. To extend its application to States, is to attach to the crime of larceny, penalties uncertain in their character, possibly greatly incommensurate with the offence committed, and such as do not attend any other crime. Conviction in one State is no bar to a conviction in another. For larceny committed in the State of Missouri, the thief bringing the goods here by way of Iowa, may be first tried here, under this doctrine, and sentenced for ten years; the same in Iowa, and lastly convicted and sentenced in Missouri. So from the fear that the thief might escape justice altogether, we find a warrant to inflict upon him a triple penalty. I should prefer the ultimate escape of now and then a culprit, than assume jurisdiction upon a theory which

to

me seems based on a fiction rather than on a clear and positive principle of law. The Constitution of the United States has provided for cases where offenders fly from the State where the offence is committed. Wherever he is found he may be secured, and sent to that State for trial from which he has fled, on demand of the executive thereof. Under this provision escape out of a State, while it may involve some inconvenience, need not defeat justice. If the legislature of this State like that of some of the States, chooses to make the possession of stolen goods an offence, it would be proper for it to do so. I am of the opinion, therefore, that the judgment of the court below, should be reversed and the prisoner discharged.

Judgment reversed.

PORTER V. THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY.

Porter v. The Chicago and Northwestern Railway Company.

1. Service of summons on agent of a corporation. An agent invested with the general conduct and control, at a particular place, of the business of a corporation, is a managing agent, within the 75th section of the Code, upon whom a summons may be served. It is immaterial where he resides.

2. Appearance. A defendant may appear specially to object to the jurisdiction of the court, either over his person or the subject matter of the suit, without waiving his right to be heard on these questions in bank. Per MASON, Ch. J.

3.

But if he seek to call into action any power of the court except on the question of its jurisdiction, his appearance is general.

Porter sued the Chicago and Northwestern Railway Company in the District Court for Douglas county. The summons was returned served by leaving a certified copy thereof with "W. B. Strong, the general managing agent of the defendant, at their usual place of doing business in the county of Douglas, State of Nebraska." The defendant appeared specially, and by motion objected to the service alleging that Strong was not a managing agent within the meaning of the statute. The motion was supported by an affidavit made by Strong, in which he says that he is superintendent of the offices of the defendant at Council Bluffs, in Iowa, and at Omaha; that its railroad terminates at Council Bluffs, and does not extend into this State; that it runs passenger and freight trains from Council Bluffs to Omaha over the track and bridge of the Union Pacific Railroad Company, and has a ticket and freight office at Omaha, and has no other office or place of business within this State. The principal office of the defendant for transacting and keeping a record of the business done at its office in Omaha was kept at Council Bluffs. The local agent at Omaha reports to the Council Bluffs' office. His only duties in connection with the Omaha

PORTER V. THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY.

office is occasionally, and for a few hours, to visit it, and confer when necessary, with its agent. He has no agency for the defendant except at the two places named. He resides at Council Bluffs, and never resided in Nebraska. The defendant is a foreign corporation.

The court overruled the motion, and gave judgment for the plaintiff.

E. Wakely, for plaintiff in error.

J. I. Redick, for defendant in error.

MASON, Ch. J.

The defendant transacts all its business in this State, at its office in Omaha. The person served with this summons is superintendent of this office, as well as of that at Council Bluffs. He has the general direction and management of its business at the former office. An agent who is invested with the general conduct and control, at a particular place, of the business of a corporation, is a managing agent, within the meaning of the 75th section of the Code, which authorizes service of summons on a managing agent of a foreign corporation, and it is immaterial where he resides.

It is not necessary to decide here whether the appearance entered by the defendant was such as to give the court jurisdiction, if the service was insufficient. I think a defendant may appear specially to object to the jurisdiction of the court, either over his person or the subject matter of the suit, without waiving his right to be heard on the question in bank. But if, by motion or by any other form of application to the court, he seek to bring its powers into action, except on the question of jurisdiction, he will be deemed to have appeared generally. Such application concedes a cause over which the court has power to act. The judgment must be affirmed.

Judgment affirmed.

BRADSHAW v. THE CITY OF OMAHA.

Bradshaw v. The City of Omaha.

1. JURISDICTION OVER CONSTITUTIONAL QUESTIONS. The courts have no jurisdiction of matters which are committed to the discretion of the legislature.

2.

3.

4.

Nor may they declare an act unconstitutional, because the legislature in passing it, was influenced by unworthy motives.

—: Municipal corporations. The legislature may increase or restrict the powers, extend or contract the limits, of cities, and the courts cannot interfere.

: Municipal taxes. The courts have jurisdiction to inquire and determine whether lands brought by the legislature within the limits of a city, are justly subjected to taxes levied by it for its support; because that is a question of property and private right.

5. TAXATION: Constitutional provisions. There is in the constitution of Nebraska no express provision, limiting the legislative power of imposing, or distributing, or enforcing taxes.

6.

By the general provisions thereof the exercise of that power when unjustly exercised, may be restrained.

7. -: City and State. Whether a city can be authorized to tax property not justly subject thereto, is a question very different from that of the validity of State taxes:

1. The relations of the citizen to the State and to a particular city, are different.

2. All citizens are compensated for what, in the form of taxes, they pay to support the State. This may not be true of taxes levied and exacted by a city.

3. State taxes are levied for political, city taxes for administrative purposes.

8 -Compensation. The constitutional provision that private property shall not be taken for public use without just compensation, implies that it shall not be taken for private use at all; either with, or without compensation. This is the same as the axiom of natural justice, that the State shall not take A's property, and give it to B.

- City. The nature of the act of taking one man's property and giving it to another, is not modified by the circumstance, that the party to whom it is given is a city.