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cer the laws of that state, valid against both | in accordance with the law, and that the the makers. The notes, being valid under motion for a new trial was properly overthe laws of Illinois, are equally valid and ruled. enforceable in this state, by the principle of The judgment is affirmed. comity, unless their enforcement would be contrary to good morals, or in violation of public policy, or forbidden by positive law. It is clear that a contract of suretyship by

PITTSBURGH, CINCINNATI, CHICAGO, a married woman, executed in a foreign

& ST. LOUIS RAILROAD COMPANY, state, is not in itself immoral, nor is its

Appt., enforcement forbidden by our laws. In some states, where the common-law disabil

William J. MONTGOMERY. ities of married women still exist, it has been held that the enforcement of such an

(152 Ind. 1.) alleged contract against them would be con- 1. An employee injured by the neglitrary to the public policy of the state, and gence of another while both are acting in that it was nonenforceable within that jur

the line of duty as employees of a corporation isdiction. Almost all the states of the Union

has a right of action against the company,

under the Indiana employer's liability act of have removed substantially all the disabili

1893. ties of married women to contract, and in 2. A provision creating a new liability the interests of commerce and business, and

is witbin the title of a statute, “An Act Reguupon the principle of comity among the lating Liability of Railroads and Other Corstates, have sustained and enforced contracts porations." validly executed elsewhere, although the

3. The employer's liability act chanparticular contract, if executed within such

ging the law as to the defense in case

of negligence of fellow servants of corpora. states, would have been unauthorized and

tions is not within a constitutional provision invalid. In the case of Baer Bros. v. Terry,

as to local or special laws "regulating the 105 La. 479, 29 So. 886, the supreme court of practice in courts." Louisiana, speaking to this point, said: “Nor 4. The question whether a general law do we agree with the counsel's contention can be made applicable to a particular that, assuming defendant to have been liable

case is for the legislature, and not for the on the notes before she came to this state

court, to determine. the law of this state prohibiting wives from

5. Railroad corporations are persons binding themselves for the debts of their hus

within the constitutional provisions as to

equal privileges and immunities of citizens bands precludes recovery against her. That and the equal protection of persons. law is satisfied, and its whole object and 6. A question of the unconstitutionalipurpose is accomplished, when Louisiana ty of a statute as to other corporations wives are protected against binding them- cannot be raised by a railroad company as to selves for the debts of their husbands. This

which the act is valid. protection is not extended to Missouri wives, 7. The exemption of municipal corpora.

tions from a statute making other corporaand, if these bind themselves in the state of

tions liable to a servant for negligence of a their domicil for the debts of their husbands,

fellow servant does not make the statute in. they cannot be permitted to come to this valid. state to be divorced from their obligations. 8. A statute making void a contract by When defendant crossed our borders as an a corporation for the release or relief from immigrant to our soil the debt was already

liability to an employee for negligence of a

fellow servant is not unconstitutional. hers, and it has continued to be such.

9. A prohibition of contracts releasThere is nothing in the atmosphere of Louis

ing corporations from their liability iana law and Louisiana jurisprudence to to injured employees is within the main subdisintegrate or dissolve valid obligations. ject expressed in the title, which is the reg. To such it is a healthful and bracing at

ulation of liability in such cases,

10. An agreement by a railroad emmosphere.” See also Wright v. Remington,

ployee that the acceptance of bene41 N. J. L. 48, 32 Am. Rep. 180.

fits from a relief fund shall operate as a We hold, in accord with the great weight release of all claims against the railroad of authority, that the enforcement of the company is void, under the employer's liabilnotes in suit against appellant, Lida M. Gar

ity act of 1893, although the release is only

conditional. rigue, is in no sense violative of the public

11. The excusing of a competent juror policy of this state. There is no suggestion

on motion of the court itself is not ground that any unfair means or undue influence was used to procure the execution of the

Note.--As to validity of statute imposing notes, and, their collection not being in con

liability for injury by fellow servant, see John

son v. St. Paul & D. R. Co. 8 L. R. A. 419, and flict with our public policy, we affirm that

Funk v. St. Paul City R. Co. 29 L. R. A. 208, the verdict is sustained by the evidence, and also the case following this one.

of error, if a fair and impartial jury was | Otis v. Pennsylvania Co. 71 Fed. 136; Cor obtained.

v. Pittsburgh, C. C. & St. L. R. Co. 1 Ohio 12. The court may properly refuse to N. P. 213; Pittsburg, C. C. & St. L. R. Co. require the jury to return to their room

v. Cox, 55 Ohio St. 497, 35 L. R. A. 507, and insert specified facts in their special verdict; but the remedy, if any, is by motion 45 N. E. 641; Vickers v. Chicago, B. & Q. for a new trial.

R. Co. 71 Fed. 139. 13. Instructing the sury not to consider

That this contract was not between apevidence withdrawn by the party who pellant and appellee, but between appellee offered it is proper, when requested by the and a third party, does not prevent the apother party.

pellant from claiming protection under it. 14. Physical and mental suffering aris

Rodenbarger v. Bramblett, 78 Ind. 213; ing out of a personal injury may be taken Harrison v. Wright, 100 Ind. 515, 50 Am.

into consideration in estimating damages. 15. A manifest clerical mistake in copy. 237, 16 N. E. 590; Leake v. Ball, 116 Ind.

Rep. 805; Waterman v. Morgan, 114 Ind. ing an instruction is not prejudicial error.

214, 17 N. E. 918; Claypool v. School

Comrs. 132 Ind. 261, 31 N. E. 665. (February 19, 1898.)

Said act denies to certain persons or citi

zens equal protection of the laws, and of the Circuit Court for Cass County in which are not granted to others similarly favor of plaintiff in an action brought to re situated. It abridges the right and privicover damages for personal injuries alleged leges of certain citizens, and deprives them to have resulted from defendant's negligence. of their liberty and property without due Affirmed. The facts are stated in the opinion.

process of law.

While there may be a classification of Messrs. N. 0. Ross and G. E. Ross, for appellant:

subjects or kinds of business by the legisThe statute in question is in derogation affected so that all similarly situated shall

lature, it cannot classify the persons to be of the common law, and must be strictly not be granted the same privileges or imconstrued.

munities. Thornburg v. American Strawboard Co.

Cooley, Const. Lim. 391; Wally v. Ken141 Ind. 443, 50 Am. St. Rep. 334, 40 N. E. nedy, 2 Yerg. 554, 24 Am. Dec. 511; Klodi 1062. What contracts does this statute pro- 56, 18 Atl. 749; State ex rel. Randolple.

Twp. v. State, 51 N. J. L. 402, 6 L. R: A. hibit?

Wood, 49 N. J. L. 85, 7 Atl. 286; Edmonds The contract must be between a railroad

v. Herbrandson, 2 N. D. 270, 14 L. R. 'A. company and one of its employees, or be

725, 50 N. W. 970. tween some other corporation and one of

Inasmuch as the law must apply equally its employees. The contract was not one made by appel- ted, if for any reason any part of them calma

to all persons or citizens similarly situalant with appellee. It was made by the not be made to come within its compass

it appellee with an organization known as the is unconstitutional. If the act is invalida“Voluntary Relief Department of the Penn to any of the persons embraced in its ps ro sylvania Lines West of Pittsburgh;” hence visions, it is invalid as to all, since the it is not within the prohibition of the stat- valid can only be separated from the invaaalid ute.

by construction, which is not permissible, The terms of the contract must be to re

United States v. Reese, 92 U. S. 214, lease or relieve appellant from a liability L. ed. 563; Baldwin v. Franks, 120 U. S. to the appellee. The liability must be re

678, 30 L. ed. 766, 7 Sup. Ct. Rep. 656, 76.) ?: leased by the contract alone. In this case

State ex rel. McCue v. Ramsey County, 48 it was not. This contract provided that, if Minn. 236, 31 Am. St. Rep. 650, 51 N. W. appellee accepted certain payments for a 112; Lavallee v. St. Paul, M. & M. R. Co. certain period of time, such payments 40 Minn. 249, 41 N. W. 974; Nichols v. should operate as a release, and nothing Walter, 37 Minn. 264, 33 N. W. 800; State

Having accepted the former, he can- ex rel. Richards v. Hammer, 42 N. J. L. not justly ask the latter in addition. 436; Missouri P. R. Co. v. Mackey, 127 U. Johnson v. Philadelphia & R. R. Co. 16:3 S. 205, 32 L. ed. 107,

Sup. Ct. Rep. 1161: Pa. 127, 29 Atl. 854.

Deppe v. Chicago, R. 1. & P. R. Co. 36 This contract has been considered and lowa, 52; Johnson v. St. Paul & D. R. Co. construed with reference to the question 43 Minn. 222, 8 L. R. A. 419, 45 N. W. 156; now under consideration in the following Pearson v. Portland, 69 Me. 278, 31 Am.

Rep. 276; Millett v. People, 117 III. 294, Donald v. Chicago, B. & Q. R. Co. 93 57 Am. Rep. 869, 7 N. E. 631; Holden v. Iowa, 284, 33 L. R. A. 492, 61 N. W. 971; 1 James, 11 Mass. 396, 6 Am. Dec. 174; Min

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neapolis & St. L. R. Co. v. Herrick, 127 U. 86 Tenn. 272, 6 S. W. 401; State v. Divine,
S. 210, 32 L, ed. 109, 8 Sup. Ct. Rep. 1176; 98 N. C. 778, 4 S. E. 477.
Buckler v. Central Iowa R. Co. 64 Iowa, The vocation of an employer, as well as
611, 21 N. W. 103; Herrick v. Minneapolis that of his employee, is his property.
& St. L. R. Co. 31 Minn. 11, 47 Am. Rep. Depriving the owner of property of one
771, 16 N. W. 413.

of its attributes is depriving him of his
Laws must not only be uniform in their property under the provisions of the Con-
application throughout the territory over stitution.
which the legislative jurisdiction extends, People ex rel. Manhattan Sav. Inst. v.
but they must apply to all classes of citi- Otis, 90 N. Y. 48; State v. Fire Creek Coal
zens alike.

& Coke Co. 33 W. Va, 188, 6 L. R. A. 359, Shaver v. Pennsylvania Co. 71 Fed. 931. 25 Am. St. Rep. 891, 10 S. E. 288; God

Such contracts have been upheld, and the charles v. Wigeman, 113 Pa. 431, 6 Atl. 354; answers based thereon sustained, in

State v. Loomis, 115 Mo. 307, 21 L. R. A. Graft v. Baltimore & 0. R. Co. 5 Sadler, 789, 22 S. W. 350; Frorer v. People, 141 (Pa.) 94, 8 Atl. 206; Fuller v. Baltimore & Ill. 171, 16 L. R. A. 492, 31 N. E. 395; 0. Employees' Relief A880. 67 Md. 433, 10 Com. v. Perry, 155 Mass. 117, 14 L. R. A. Atl. 237; Owens v. Baltimore & 0. R. Co. 1 325, 31 Am. St. Rep. 533, 28 N. E. 1126 ; L. R. A. 75, 35 Fed. 715; State use of Black Ramsey v. People, 142 Ill. 380, 17 L. R. A. v. Baltimore & 0. R. Co. 36 Fed. 655; Mar. | 853, 32 N. E. 364; San Antonio & A. Pass. tin v. Baltimore & 0. R. Co. 41 Fed. 125; R. Co. v. Wilson, 4 Tex. App. Civ. Cas. Com. v. Equitable Beneficial Asso. 137 Pa. (Willson) p. 565, 19 S. W. 910; Harding v. 412, 18 Atl. 1112; Lease v. Pennsylvania People, 160 Ill. 459, 32 L. R. A. 445, 52 Ain. Co. 10 Ind. App. 47, 37 N. E. 423; Johnson St. Rep. 344, 43 N. E. 624; Ritchie v. Peov. Philadelphia & R. R. Co. 163 Pa. 127, ple, 155 Ill. 98, 29 L. R. A. 79, 46 Am. St. 29 Atl. 854; Ringle v. Pennsylvania R. Co. Rep. 315, 40 N. E. 454; Ex parte Kuback, 164 Pa. 529, 44 Am. St. Rep. 628, 30 Atl. 85 Cal. 274, 9 L. R. A. 482, 20 Am. St. Rep. 492; Donald v. Chicago, B. & Q. R. Co. 93 226, 24 Pac. 737; Low v. Rees Printing Co. Iowa, 284, 33 L. R. A. 492, 61 N. W. 971; 41 Neb. 127, 24 L. R. A. 702, 43 Am. St. Chicago, B. & Q. R. Co. v. Bell, 44 Neb. 44, Rep. 670, 59 N. W. 362; State ex rel. Luriu 62 N. W. 314; Vickers v. Chicago, B. & Q. v. Wagener, 69 Minn. 206, 38 L. R. A. 677, R. Co. 71 Fed. 139; Otis v. Pennsylvania 65 Am. St. Rep. 565, 72 N. W. 67; Re House Co. 71 Fed. 136; Shaver v. Pennsylvania Bill No. 203, 21 Colo. 27, 39 Pac. 431; PeoCo. 71 Fed. 031; Pittsburg, C. C. & St. L. ple v. Gillson, 109 N. Y. 389, 4 Am. St. Rep. R. Co. v. Cox, 55 Ohio St. 497, 35 L. R. A. 465, 17 N. E. 343; Wallace v. Georgia, C. & 507, 45 N. E. 641; Maine v. Chicago, B. & N. R. Co. 94 Ga. 732, 22 S. E. 579; New Q. K. Co. 109 Iowa, 260, 70 N. W. 630, 80 York L. Ins. Co. v. Smith (Tex. Civ. App.) N. W. 315; Chicago, B. & Q. R. Co. v. Cur- 41 S. W. 680; Fraser v. McConway & T. Co. tis, 51 Neb. 442, 66 Am. St. Rep. 456, 71 | 82 Fed. 257; Toledo, W. & W. R. Co. v. N. W. 42; Eckman v. Chicago, B. & Q. R. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611: Co. 169 Ill. 312, 38 L. R. A. 750, 48 N. E. Vanzant v. Waddel, 2 Yerg. 270; Madison 196.

& I. R. Co. v. Whiteneck, 8 Ind. 217. Section 5 of said act is in conflict with

This section does not seek to regulate the the 14th Amendment to the Constitution terms and conditions upon which a right and the acts of Congress passed for the en- may be enjoyed, but it denies to both the forcement thereof. State v. Julov, 129 Mo. 163, 29 L. R. A. tract at all. If contracts such as this sec

employer and the employee the right to con257, 50 Am. St. Rep. 443, 31 S. W. 781; tion forbids are, or can be, classed as liable Bertholf v. O'Reilly, 74 N. Y. 515, 30 Am. to be injurious to public morals or public Rep. 323; Braceville Coal Co. v. People, safety, or as in any way jeopardizing the 147 Ill. 66, 22 L. R. A. 340, 37 Am. St. Rep. 206, 35 N. E. 62; State v. Goodwill, 33 w. public welfare, they might be subject to

reasonable restrictions, but not forbidden. Va. 179, 6 L. R. A. 621, 25 Am. St. Rep. 863, 10 S. E. 285; Yick Wo v. Hopkins, 118

Printing & Numerical Registering Co. v. U. S. 356, 30 L. ed. 220, 6 Sup. ct. Rep. Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep.

Sampson, L. R. 19 Eq. 462; Diamond Match 1064; Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394; Butchers' Union S. H. & L. 464, 13 N. E. 419; United States Chemical S. L. Co. v. Crescent City L. S. L. & 8. H. Co. v. Provident Chemical Co. 64 Fed. 946 ; Co. 111 U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Dent v. West Virginia, 129 U. S. 114, 32 L. Rep. 652; Re Parrott, 6 Sawy. 349, 1 Fed. ed. 623, 9 Sup. Ct. Rep. 231. 481; Re Jacobs, 98 N. Y. 98, 50 Am. Rep.

Messrs. D. H. Chase, S. 0. Pickens, 636; People v. Marx, 99 N. Y. 377, 52 Am. and G. W. Funk also for appellant. Rep. 34, 2 N. E. 29; Ex parte Westerfield, Messrs. McConnell & Jenkines and 55 Cal. 550, 36 Am. Rep. 47; Ragio v. State. / Nelson & Myers for appellee.

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was no

McCabe, J., delivered the opinion of the follow four subdivisions, specifying the cases court:

in which liability is to attach, the fourth of This action was brought by the appellee which, and the one on which this action is against the appellant to recover damages founded, reads thus: “Where such injury suffered by him on account of the alleged | was caused by the negligence of any person negligence of the defendant, resulting in a in the service of such corporation, who has personal injury to the plaintiff. A demurrer charge of any signal, telegraph office, switch to the complaint for want of sufficient facts, yard, shop, roundhouse, locomotive engine, and a demurrer to the second paragraph or train upon a railway, or where such inof the answer, were overruled, and the issues jury was caused by the negligence of any joined were tried by a jury, resulting in a person, coemployee, or fellow servant enspecial verdict and judgment, over defend- gaged in the same common service in any ant's motion for a new trial, for $3,000 of the several departments of the service of damages. The errors assigned call in ques. any such corporation, the said person, cotion the rulings on deniurrer, the refusal of employee, or fellow servant, at the time acta new trial, overruling motions for a venire ing in the place, and performing the duty de novo, for judgment in appellant's favor of the corporation in that behalf, and the on the special verdict, and sustaining appel person so injured, obeying or conforming to lee's motion for judgment on the special | the order of some superior at the time of verdict in his favor.

such injury, having authority to direct; but The only objection urged to the complaint nothing herein shall be construed to abridge is that it shows that the plaintiff was a the liability of the corporation under existfreight brakeman in the defendant's service ing laws." Appellant's learned counsel on its railroad, and that it was the negli say: "The complaint lacks two allegations gence of the engineer of the train on which to make it good under this provision. (1) he was serving that caused his injury, and That the engineer at the time was acting that, under the fellow-servant rule, there in the place and performing the duty of the

iability. The injury occurred on corporation in that behalf; and (2) that apJuly 1, 1893, after the act approved March pellee was obeying or conforming to the 4, 1893, took effect, touching the liability of order of some superior at the time of such railroads, commonly called the "employer's injury, having authority to direct. It was liability act.” Acts 1893, p. 294; Burns's not alleged that the engineer was acting Rev. Stat. 1894, 88 7083-7087 (Horner's in the place or performing the duty of the Rev. Stat. 1897, $$ 5206–5206v).

master, or that appellee was acting in obeAppellant's learned counsel contend that dience to a superior,” etc. it is settled law that the employer is not This language, together with other parts liable to an employee for injuries caused by of appellant's brief, indicates that appelthe negligence of a coemployee in the same lant's learned counsel construe the language general service, unless the employer was of the statute above quoted as conveying guilty of some negligence in employing the the meaning that the right to servant, with knowledge of his negligent against an employer for the negligence of a habits or incompetency, or retained him coemployee or fellow servant rests upon the after knowledge of such negligence or lack condition that such negligent coemployee of skill. There is no showing of any such was at the time acting in the place and pernegligence on the part of the appellant, as forming the duty that the master or ememployer, in the complaint. Appellee con- ployer owed to his or its servants or emcedes this to be the common-law rule, and ployees generally; and yet they do not say that it prevailed in this state prior to the so in so many words. The majority of the enactment above mentioned. Indeed, it is court r re of the opinion that the decision of conceded by the appellee that his complaint that question is not necessary to the dedepends upon that act for its sufficiency in cision of this case. They hold that the only its facts to constitute a cause of action, and part of the 4th subdivision of said section is founded thereon.

which is necessary to be considered in de It is first contended by the appellant termining the sufficiency of the complaint that the act does not change the common-law is the following: “Where such injury was rule, and it would seem to follow, if that is caused by the negligence of any person in true, that the complaint is clearly bad. the service of such corporation who has The 1st section provides: “That every rail. charge of any · locomotive engine road or other corporation, except municipal, or train upon a railway, . . and the operating in this state shall be liable in person so injured, obeying or conforming to damages for personal injury suffered by any the order of some superior at the time of employee while in its service, the employee such injury, having authority to direct;" so injured being in the exercise of due care and that, hence, it was not necessary that and diligence, in the following cases.” Then I the complaint should state that the alleger


negligent engineer, at the time he com- tended that the subject is not expressed in mitted the alleged negligent injury, as pro- the title, in that the title is "An Act Reguvided in such concluding clause, was acting lating Liability of Railroads and Other Corin the place and performing the duty of the porations except Municipal,” while the procorporation in that behalf; while the writer visions of the act itself are, as claimed by hereof is of the opinion that the whole of appellant, to create a liability which up to the 4th subdivision must stand together, and that time had no existence. The precise that the words quoted from the concluding question here involved was decided adverseclause qualify the liability created in the ly to appellant's contention, on a statute first clause or clauses. But the duty of the similar to our own, under a Constitution corporation therein mentioned, in the opin- an exact copy of our own in this respect, in ion of the writer, means, not the duty it McAunich v. Mississippi & M. R. Co. 20 owes to its servants, but the duty it owes Iowa, 338. We feel content to follow that to the public in carrying on its business; case, without extending this opinion by reand the words, "acting in the place of such peating its reasoning, and, accordingly, hold corporation,” with the other words quoted, that the subject is sufficiently expressed in were used to convey the idea that, in order the title. that the liability mentioned should exist, The same rule has been, in effect, followed the negligent person, coemployee, or fellow by this court in holding that the title of an servant must be acting as such employee, act need not go into details. It is sufficient in the line of his duty, at the time of his if it indicates with reasonable precision and negligence. The writer is of opinion that clearness the subject it embraces. Nor is the complaint is good under this construc- an act invalid because it includes details not tion; and the holding of the court is that, mentioned in the title, provided the details in order to make the complaint good under are germane to the general subject designatthe first part of the subdivision quoted, as ed in the title. Bitters v. Fulton County, to the point in question, it is only required 81 Ind. 125; Crawfordsville & S. W. Turnp. that it state that the engineer, while in the Co. v. Fletcher, 104 Ind. 97, 2 N. E. 243; service of appellant, in charge of a loco Benson v. Christian, 129 Ind. 535, 29 N. E. motive engine, negligently injured the appel- 26; State ex rel. Terre Haute v. Kolsem, 130 lee, both being at the time acting in the Ind. 434, 14 L. R. A. 566, 29 N. E. 595; line of duty as employees of the appellant. State ex rel. Duensing v. Roby, 142 Ind. That being so, the averments of the com- 168, 33 L. R. A. 213, 51 Am. St. Rep. 174, plaint, showing, as they do, that at Hart- 41 N. E. 145; Lewis v. State, 148 Ind. 346, ford City, Indiana, the freight train upon 47 N. E. 675. which appellee was brakeman stopped to In the course of some of the briefs filed switch out loaded cars; that the conductor in other cases involving the validity of the of said train, acting in the service of appel- act, it is contended that the act is void, in lant, the authority and position of said con- that it violates § 22 of article 4 of the state ductor making it appellee's duty to obey his Constitution, providing that “the general orders in respect to said train and switch assembly shall not pass local or special laws ing, ordered appellee to go between said cars in any of the following enumerated cases, to make couplings, and while so engaged the that is to say:

Regulating the engineer in charge of said train, also in ap- practice in courts of justice.” That the act pellant's service, and in the line of his duty, does not violate the provision quoted is without signal, carelessly, negligently, and settled by Woods v. McCay, 144 Ind. 316, 33 recklessly reversed said engine and applied L. R. A. 97, 43 N. E. 269, and cases cited; full steam, whereupon said cars were driven Node v. Beasley, 143 Ind. 306, 42 N. E. 727, and jammed together with terrific force, and cases there cited; Jackson County v. without notice to appellee, whereby appel-State, 147 Ind. 476, 46 N. E. 908. Also lee's entire right hand was caught between that it violates § 23 of the same article, rethe bumpers and mashed off, without any quiring all laws to be of general and unifault on his part,-make the complaint suf- form operation throughout the state, where ficient, under the statute, as to the objection such a law can be made applicable. But thereto urged.

that is a question for the legislature, whose The next contention against the sufficiency determination is final and conclusive on the of the complaint is that the act is uncon- courts. Mode v. Beasley, 143 Ind. 306, 42 stitutional, that being confessedly the foun. N. E. 727, and cases there cited; Woods v. dation of the action. It is first contended McCay, 144 Ind. 316, 33 L. R. A. 97, 43 N. that it violates § 19 of article 4 of the state E. 269, and cases there cited. Constitution, which provides that "every act It is next contended that the act violates shall embrace but one subject and matters $ 23 of article 1 of the Constitution, proproperly connected therewith; which subject viding that “the general assembly shall not shall be expressed in the title.” It is con- grant to any citizen, or class of citizens,

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