to be unjust and unreasonable, can apply to the commissioners for redress. If redress is denied them there, they can apply to the legislature for relief. Believing the law under which the commissioners are appointed to be within the constitutional power of the legislature, the redress must come either from the commissioners or the general assembly; it is not in the power of this court to give relief. As remarked by Mr. Justice Swayne, in Gilman v. Philadelphia, 3 Wall. 713: "Many abuses may arise in the legislation of the states which are wholly beyond the reach of the government of the nation. The safeguard and remedy are to be found in the virtue and intelligence of the people. They can make and unmake constitutions and laws, and from that tribunal there is no appeal. If a state exercise unwisely the power here in question, the evil consequences will fall chiefly on her own citizens. They have more at stake than the citizens of any other state."

It has been the policy of Georgia, at least since January 1, 1863, to grant no charter which should not be subject to revision or repeal by the general assembly. Whether wise or unwise, this policy has been embodied in the constitution of 1877. It was clearly the purpose of the people, in the adoption of that revision of the organic law, to keep the charges of the railroad companies of the state within legislative control. They were not satisfied with the rules of the common law on this subject. The act of October 14, 1879, is but the practical expression of the will of the people of the state as embodied in their organic law. It is the exercise of a right which they have been careful to reserve, and subject to which the defendant company were allowed to exist as a corporation.

My conclusion is that the act of the legislature of Georgia, approved October 14, 1879, entitled "An act to provide for the regulation of railroad freight and passenger tariffs in this state," etc., etc., is not in violation of either the constitution of the United States or of the state of Georgia; that under the constitution of Georgia power and authority is conferred on the legislature to pass laws to regulate freight and pas

senger tariffs on railroads, and require reasonable and just rates, and it is its duty to pass such laws, that it may prescribe such rates, either directly or through the intervention of a commission; and that the question whether the rates prescribed by the legislature, either directly or indirectly, are just and reasonable, is a question which, under the constitution, the legislature may determine for itself.

It results from these conclusions that the motion for injunction pendente lite must be denied, and the restraining order heretofore allowed must be dissolved; and it will be so ordered.

DAKIN and another, Adm'rs, etc., v. UNION PAC. RY. Co. and others.

(Circuit Court, 8. D. New York. December 28, 1880.)

1. EQUITABLE RELIEF-DAMAGES.

Where the entire ground for equitable relief fails, a bill cannot be retained in equity for the recovery of damages.

2. DEMURRER-PLEA OF CO-DEFENDANT.

The demurrer of one defendant cannot be held to be overruled by the plea of a co-defendant.—[Ed.

In Equity. Demurrer.

E. L. Andrews and J. K. Porter, for plaintiffs.
A. H. Holmes and J. F. Dillon, for defendants.

BLATCHFORD, C. J. A general demurrer to the amended bill in this case is put in by the Union Pacific Railway Company, the Union Pacific Railroad Company, and the Denver Pacific Railway & Telegraph Company, for want of equity. A general demurrer to said bill is also put in by Jay Gould for want of equity. These demurrers must be allowed. It appears, by the face of the certificate on which the plaintiffs' claim is based, that the shares of stock named in it are suhject to assessment. It is not alleged that anything has ever

been paid by any one on J. C. Stone's subscription, which is represented by said certificate, much less that the subscription has been paid in full. The plaintiffs ask to have fullpaid stock in place of this mere subscription to stock, without showing the payment of anything for the subscription, or offering now to pay anything. This defect strikes at the root of the equitable relief asked for. Moreover, the bill shows that one Hallett claimed an interest in the shares named in said certificate, and that stock was issued to him to the amount of the shares named in said certificate, which stock so issued is recognized as valid by the corporations sued herein. Yet the persons now holding said stock are not made defendants. The bill makes such a case that the plaintiffs can have no place as holders of stock without displacing those who represent the stock so issued to Hallett. As the entire ground for equitable relief fails, the bill cannot be retained to recover damages. If the plaintiffs have a claim for any damages they must sue at law.

Jay Gould has been made a defendant since the suit came into this court. Specific relief is asked against him by the amended bill, which was not asked in the complaint in the state court. He demurs for want of jurisdiction, because he is a citizen of the same state with the plaintiffs. This demurrer is allowed. The Kansas Pacific Railway Company has filed a paper which calls itself "the plea and answer in support thereof." Then follows what is announced as a plea, but is really an answer, which admits certain allegations of the bill, and makes certain averments, and then "denies each and every other allegation or averment in the amended bill of complaint herein contained, not hereinbefore specifically admitted or denied." The answer thus covers the whole bill. Then follow several pleas, which are pleaded in bar to the whole bill. The plaintiffs move for an order that the demurrer of the Union Pacific Railway Company (by which is meant the demurrer of that company and the other two companies who join in the same demurrer) be declared to be overruled by the pleas of the Kansas Pacific Railway Com

pany. No authority is cited for the proposition that the demurrer of one defendant can be held to be overruled by the plea of another defendant, and no argument is offered in support of the motion. It is denied.

The plaintiffs also move for an order that the plea of the Kansas Pacific Railway Company be overruled on the ground that the answer covers the whole bill, and that the pleas in bar pray judgment whether the said defendant ɛhall be compelled to make any further answer to the amended bill. On the authority of the cases of Ferguson v. O'Harra, Pet. C. C. R. 493; Stearns v. Page, 1 Story, 204; and Hages v. Dayton, 18 O. G. 1406, the motion must be granted, and the plea must be stricken out.

The demurrers allowed are allowed with costs, but the plaintiffs may, under rule 55 in equity, move for leave to amend their bill.

BURLEIGH, Executrix, etc., v. THE TOWN OF ROCHESTER.

(Circuit Court, E. D. Wisconsin. January, 1881.)

1. TOWN BONDS-BOARD OF SUPERVISORS-PRESUMPTION AS TO ISSUE. A statute provided that certain town bonds were to be signed by the chairman of the board of supervisors, and countersigned by the town clerk. Held, where such bonds appeared to have been issued in strict conformity with the requirements of the statute, that the presumption would be that they were issued under the authority of the board of supervisors.

2. SAME-NEGOTIABLE INSTRUMENTS,

Certain instruments, not under seal, called "town of Rochester bonds," declared that the town had caused these presents to be signed by the chairman of the board of supervisors, and countersigned, as required, by the town clerk thereof; and the form of the obligation was that the town of Rochester is justly indebted and promises to pay to the order of the Fox River Valley Railroad Company the sum of $500, with interest as set forth in the coupons. Held, under the decisions of the supreme court of the United States, that these instruments were essentially promissory notes of the town of Rochester, and negotiable as such like ordinary promissory notes under the law merchant.

3. SAME-VALIDITY-CHANGE OF JUDICIAL RULING.

Held, further, that if such bonds constituted a valid contract when made, as the law and the constitution were then expounded by the supreme court of the state, that it did not cease to be such because the highest court of the state had afterwards changed its ruling. Gelpke v. City of Dubuque, 1 Wall, 175.

4. WISCONSIN-STATUTE OF LIMITATIONS.~[Ed.

DRUMMOND, C. J. The law and facts of this case, by stipulation between the parties, have been left to the court. The suit was originally brought in the state court, and transferred to this court. It is an action on four bonds of $500 each, numbered 5, 6, 7, and 8, issued by the defendant, and made payable to the Fox River Valley Railroad Company, on the first of November, 1856, under the authority of an act of the legislature of March 15, 1856, and found in chapter 138 of the Local and Private Laws of Wisconsin of that year. That act authorized several towns in the county of Racine, Rochester among others, to subscribe to the capital stock of the Fox River Valley Railroad Company, and pay for the same, in the bonds of the town,-the town of Rochester,-the sum of $15,000. The only objection taken to the bonds as not being in accordance with the statute is that they do not appear to have been issued by the board of supervisors. The seventh section of the statute declared that the bonds were to be signed by the chairman of the board of supervisors, and countersigned by the town clerk; and these bonds appear to be strictly in conformity with the requirements of the statute; and the presumption must be that they were issued under the authority of the board of supervisors.

John M. Thompson was a contractor on the railroad, and these bonds were indorsed and transferred to him by the railroad company in payment for work done upon the road. There is much conflict in the testimony as to the subsequent disposition and ownership of these bonds. They were at one time held by the Bank of Alfred, Maine, as collateral security for a loan made to Thompson; and in consequence of that indebtedness being discharged or satisfied by Jeremiah M. Mason, the bonds appear to have come into his hands.