The letter of the statute was evidently done, not | but expressly continued in force by the Reto avoid the imprisonment of the defendant, but to secure a trial before the county judge.. The evidence in this case shows conclusively that the surrender of the prisoner to the jailer was merely formal, and merely with the design to give the quarterly judge jurisdiction, and not for the safekeeping of the prisoner, or because he was either unable to give bail or unwilling to do so, except for the purpose of bringing his case within the statute." Of all this the court said: "It is to be treated as if the prisoner had procured himself to be accused, arrested, and tried, and then attempted to plead the judgment thus obtained in bar; for, although he had been regularly indicted, he procured a trial in the quarterly court by a fraud upon the statute giving that court jurisdiction." In applying that decision to this case, it follows, a fortiori, that one accused of a crime cannot procure himself to be arrested and bound over under form of law to give jurisdiction to a county of his preference, in fraud of the right of the prosecuting officers acting in good faith to fix it elsewhere, if they choose to do so in the interest of a fair trial. The position of this court on this subject appears to be in harmony with the trend of authority elsewhere. State v. Colvin, 11 Humph. 599, 54 Am. Dec. 60; Watkins v. State, 68 Ind. 427, 34 Am. Rep. 273; Com. v. Dascom, 111 Mass. 404; State v. Simpson, 28 Minn. 66, 41 Am. Rep. 270, 9 N. W. 78. No reflection can be indulged against the judge and prosecuting attorney of the Breathitt circuit court. Their fitness and willingness to enforce the law is in no sense involved. This case, as made up on the trial, has to do solely with what occurred before the prosecution took any form in the Breathitt circuit court. In view of vised Statutes then in effect, provided: "An the language of § 24 of the Criminal Code The accessory The court is of opinion that the Fayette held in that case not to have been repealed, circuit court has now exclusive jurisdiction to try the case made by the indictment re-writ of prohibition against the judge of the turned by the grand jury, and that the pro- Fayette Circuit Court is consequently deceedings before Justice of the Peace Edwards nied. The temporary writ heretofore isare a nullity in so far as they attempt to sued is discharged. of confer jurisdiction upon the courts Breathitt county. The application for the Cantrill, J., did not sit. 2. 1. LOUISIANA SUPREME COURT. City of CROWLEY v. M. ELLSWORTH, Appt. (........La.........) On an appeal coming to this court solely under the grant of jurisdiction to this court over suits involving the constitutionality or legality of a fine or penalty imposed by a municipal corporation, the question of whether the facts were sufficient to justify the conviction of the appellant cannot be considered. An ordinance is not informal or 11legal because the cause or reasons of its enactment are not given, nor because it punishes as a nuisance what neither by it nor by another ordinance is expressly declared to be such. 8. An ordinance which applies alike to all persons, firms, or corporations engaged in the business legislated against is not discriminatory. 4. Authority to a municipal corporation to regulate the storage of combustible and inflammable materials includes authority to prohibit the storage of refined and other explosive oils within the corporate limits; and an ordinance so providing is not unreasonable. 5. A special ordinance granting to a particular person permission to store refined oils within the corporate limits of a town is repealed by a subsequent general ordinance, applicable to all persons alike, making such storage of oils a criminal offense. 6. Though an Messrs. Medlenka & Taylor, for ap pellant: Before any lawful business can be prohibited or regulated by a municipal corporation, it must first be shown to be and declared to be a nuisance. Waters-Pierce Oil Co. v. New Iberia, 47 La. Ann. 863, 17 So. 343; Dill. Mun. Corp. p. 454. A particular law is not repealed by a general law, unless the two are so repugnant that they cannot stand together under any circumstances. State v. Callac, 45 La. Ann. 27, 12 So. 119; Cooley; Const. Lim. last ed. p. 216; Dill. Mun. Corp. § 87; Bond v. Hiestand, 20 La. Ann. 140; State ex rel. Carcass v. First Dist. Judge, 32 La. Ann. 723; Concordia v. Natchez, R. River & T. R. Co. 44 La. Ann. 613, 10 So. 809; Johnston v. Pilster, 4 Rob. (La.) 77. Where the law enables a corporation to make by-laws or ordinances in certain cases and for certain purposes, its power of legislation is limited to the cases and objects specified, all others being excluded by implication. New Orleans v. Philippi, 9 La. Ann. 44; Crowley v. West, 52 La. Ann. 531, 47 L. R. A. 652, 78 Am. St. Rep. 355, 27 So. 53; 1 Dill. Mun. Corp. ¶ 379. In order to hold an officer or agent criminally liable individually for an offense comordinance prohibiting mitted by the corporation, or by its officers the storage of explosive oils in large quantities within the corporate limits happens to have the effect of putting an end to a business, and of rendering valueless certain structures used in connection with the business, its enforcement will not constitute a depriving of property without due process of law, when the circumstances justified its adoption as a police regulation. or agents, it must be shown that he had some actual, personal connection with the illegal acts charged. 21 Am. & Eng. Enc. Law, 2d ed. p. 896. The power vested by legislation in a corporation to make ordinances for its own government does not give the power to enlarge, diminish, or vary its powers by its ordinances. Thompson v. Roe, 22 How. 422, 16 L. ed. 387; Thomas v. Richmond, 12 Wall. 349, 20 L. ed. 453; New Orleans v. Ursuline Nuns, 2 La. Ann. 611. Mr. Thomas R. Smith, for appellee: Officers, directors, or agents of a corporation participating in a violation of law in the conduct of the company's business may be held criminally liable individually there for. 21 Am. & Eng. Enc. Law, 2d ed. p. 896; Clark, Crim. Law, p. 102. One indicted for a nuisance cannot defend on the ground that he acted as the agent of another in maintaining the nuisance. 21 Am. & Eng. Enc. Law, 2d ed. p. 712; Williams v. Hendricks, 115 Ala. 277, 41 L. R. A. 657, 67 Am. St. Rep. 32, 22 So. 439. Under power to pass an ordinance if necessary, the necessity for its enactment, being implied from its mere passage, need not be recited in the ordinance, nor averred in proceedings to enforce it. Dill. Mun. Corp. p. 395, note 2. An ordinance need not recite the authority under which it is enacted. Elliott, Mun. Corp. p. 183. The mere fact that an ordinance, general in its application, injures in a peculiar way a particular individual, will not authorize the courts to presume that it was executed for the purpose of annoying him and depriving him of his rights, and, for that reason, to declare it void. 17 Am. & Eng. Enc. Law, 2d ed. p. 253. The regulation of petroleum and other inflammatory substances is not the taking of private property without due process of law; nor is it in restraint of trade. Waters-Pierce Oil Co. v. New Iberia, 47 La. Ann. 863, 17 So. 343; 17 Am. & Eng. Enc. Law, 2d ed. p. 249, note; Dill. Mun. Corp. 4th ed. p. 396, note 2; Elliott, Mun. Corp. p. 202. His first contention is that the city authorities have hold of the wrong man; that he is a mere employee executing orders, and therefore not responsible. With this defense this court has nothing to do. The case comes here under the provision of the Constitution granting appellate jurisdiction to this court of "suits involving the constitutionality or legality of any . . fine or penalty imposed by a municipal corporation;" and no question can be inquired into except that as to which jurisdiction is thus specially conferred. Burguieres Sanders, 111 La. 109, 35 So. 478. V. Defendant claims that the ordinance under which he has been prosecuted and fined is unconstitutional for six reasons, which we now proceed to consider in regular order. First. That no grounds are assigned as a cause for passing the ordinance, and that, although the storage of oil of an explosive nature in quantities greater than two barrels is not a nuisance per se, the ordinance punishes it as a nuisance without having declared it to be such. The first branch of this objection is clearly without merit. Clearly, a legislative body does not have to give any reasons for its enactments; not though such reasons "were plentiful as blackberries in June." Dill. Mun. Corp. 3d ed. § 318, note 2; Elliott, Mun. Corp. p. 183. The second branch is no better than the first. An ordinance which makes an act Provosty, J., delivered the opinion of the unlawful, by necessary implication declares court: The defendant is the local agent of the Waters-Pierce Oil Company, of Missouri, which company does a wholesale oil business in the city of Crowley. In April, 1898, said company obtained permission from the city council "to construct and erect three iron storage tanks" at a designated place within the corporate limits, "for the purpose of storing illuminating, lubricating, and other oils for the sale and supply of the demand in the town of Crowley and vicinity." In July, 1904, the city council adopted an ordinance providing that "hereafter it shall be unlawful for any person, firm, or corporation to keep on their premises or in storage tanks within the corporate limits of the city of Crowley, at any one time, more than two barrels of gasoline, coal oil, or other refined oils of an explosive nature," and punishing by fine of not less than $5, nor more than $100, or by imprisonment in the city jail for not less than two nor more than thirty days, any violation of the ordinance. Defendant was prosecuted and convicted in the city court for a violation of the ordinance, was fined $100, and he has appealed. it of a noxious character, and any further declaration on the subject would be mere useless tautology. Second. "The said ordinance is discriminatory, unreasonable, arbitrary, and unequal in its operation and effect, for the reason that it is confined exclusively to refined oils handled by the Waters-Pierce Oil Company, when in truth and in fact, to the express knowledge of the city of Crowley, other oils of an explosive nature are stored in large quantities within the city limits of Crowley, by other persons, firms, and corporations.” The ordinance applies alike to all persons, firms, or corporations engaged in the business legislated against, and is certainly not discriminatory. The discrimination is said to consist in that the ordinance applies only to refined oils, and not to crude oils. Conceding that this discrimination in favor of crude oils would be fatal to the ordinance if crude oil were shown to be equally explosive as refined oil, the evidence fails to show that fact, and every presumption is in favor of the fairness of the ordinance. Elliott, Mun. Corp. p. 202. Third. "That the city of Crowley ex as for all others. To such a case the rule as to a special statute not being repealed by a general has no application. ceeded its chartered authority as conferred upon it by paragraph 9, § 16, of act No. 136 of 1898, p. 232, in excluding (which exclusion is an absolute prohibition of con- Sixth. "That the said ordinance is further ducting of the wholesale oil business in the illegal and unconstitutional, and deprives said city from its limits) the storage of the Waters-Pierce Oil Company of its proprefined oils of an explosive nature in quan-erty without due process of law, without tities greater than two barrels; the said compensation or indemnity, and violates ordinance not regulating, but absolutely the Constitution and the laws of the United prohibiting, the Waters-Pierce Oil Com- States and of this state, and more particpany from carrying on its business." ularly the 4th, 5th, and 14th Amendments of the United States Constitution, articles 1, 2, 166, and 167 of the Constitution of Louisiana, and article 497 of the Civil Code of Louisiana." The "chartered authority" thus referred to is conferred in the following terms: "The following additional powers are conferred upon the mayor and aldermen of cities and towns: Ninth. To regu late the storage of powder, pitch, turpentine, rosin, hemp, hay, cotton, and all other combustible and inflammable materials. In the case of the same Waters-Pierce Oil Co. v. New Iberia, 47 La. Ann. 863, 17 So. 343, a similar ordinance was sustained by this court, although the authority to pass it was not so clearly conferred as in the present case. Fourth. "That the said ordinance is unreasonable, and in restraint of a lawful and legitimate business carried on and surrounded with the greatest precaution against danger of fire, explosion, or accident likely to entail the loss of life or property." Clearly, an ordinance prohibiting the storage of oils of an explosive nature within the built-up parts of the city would not be unreasonable. Inasmuch as the ordinance is made to apply to the entire cor This exact point was passed on in the case of the same Waters-Pierce Oil Co. v. New Iberia, 47 La. Ann. 863, 17 So. 343. Judgment affirmed. Rochbert P. RICHARD • v. SPRINGFIELD FIRE & MARINE INSUR- *1. Where a nonresident fire insurance company appointed a local agent in this state, and supplied him with blank policies signed by the president and secretary of the company, to be filled up, countersigned, and issued as occasion may require, such agent will be considered as having the powers of a general agent as to policies issued by him under such circumstances. icies binds the company by all waivers, representations, or other acts within the scope or requirements of his business, unless the insured has notice of the limitation of his power. porate limits, the inference is that there 2. An agent authorized to issue polis no place within the corporate limits where, in the judgment of the council, it would be safe to store the inflammable and explosive substance mentioned in the ordinance. The evidence shows that there are buildings within dangerous proximity to the storage tanks of which the defendant is in charge. Fifth. That the ordinance is unconstitutional in so far as it affects the employer of defendant, because it does not repeal the former ordinance granting permission to the said employer of defendant to erect tanks, etc. The question here raised is that of repeal vel non, and therefore, at best, of the legality of the fine, and not of the constitutionality, vel non, of the ordinance. Surely, the first ordinance, in so far as it may authorize the doing of anything which the second prohibits and punishes as a crime, is inconsistent with it, and therefore repealed. The manifest intention of the second ordinance is that the storing of explosive oil in large quantities shall be unlawful for defendant's employers as well 3. Such an agent has the apparent power to waive, prior to a loss, a breach of the iron-safe clause by him attached to the policy, resulting from the failure of the insured, through illness, to make a complete inventory of stock within 30 days from the date of the issuing of the policy. his favor in an action brought to recover the amount alleged to be due on a fire in surance policy. Reversed. St. Paul F. & M. Ins. Co. 43 Wis. 108, 28 The facts are stated in the opinion. Messrs. Lewis & Lewis, for applicant:thority of a general agent of an insurance Notice given to an agent relating to business which he is authorized to transact, and while actually engaged in transacting it, will inure as notice to the principal. company, whose powers would otherwise be coextensive with the business intrusted to him, are communicated to the party with whom he deals, the company is bound to the McEwen v. Montgomery County Mut. Ins. same extent as though such special inCo. 5 Hill, 101; American Ins. Co. v. Galla-structions had not been given. tin, 48 Wis. 36, 3 N. W. 772; Mattocks v. Des Moines Ins. Co. 74 Iowa, 233, 37 N. W. 174; Ætna Ins. Co. v. Eastman (Tex. Civ. App.) 80 S. W. 255. Southern L. Ins. Co. v. McCain, 96 U. S. 84, 24 L. ed. 653; Murphy v. Royal Ins. Co. 52 La. Ann. 778, 27 So. 143. The agent, though representing his principal in a particular locality, or within a limited territory, and therefore called "local agent," is in fact a general agent. He is supplied with blank policies, properly signed by the company, which he is authorized to fill up, countersign, and deliver to the assured. Continental Ins. Co. v. Ruckman, 127 Ill. 364, 11 Am. St. Rep. 121, 20 N. E. 77; Elliott, Ins. Cases, p. 156; Pitney v. Glen's Falls Ins. Co. 65 N. Y. 6; Georgia Home Knowledge of an agent authorized to countersign, issue, and deliver policies of insurance, and collect the premiums therefor, is knowledge imputable to the company. 1 May, Ins. 617, ¶ 294 E; May, Ins. p. 130, ¶¶ 70a, 131, 132, 143, 152, p. 247; Kerr, Ins. pp. 218 et seq.; Clement, Ins. p. 415, rule 11; Elliott, Ins. p. 91; Wood, Fire Ins. ¶¶ 372-374, 435; Richards, Ins. p. 25; Stage v. Home Ins. Co. 76 App. Div. 509, 78 N. Y. Supp. 555; Brooks v. Erie F. Ins. Co. 76 App. Div. 275, 78 N. Y. Supp. 748; Ben-Ins. Co. v. Kinnier, 28 Gratt. 98; Viele v. nett v. Union Cent. L. Ins. Co. 203 Ill. 439, Germania Ins. Co. 26 Iowa, 9, 96 Am. Dec. 67 N. E. 971; Hunt v. State Ins. Co. 66 83; Carroll v. Chadter Oak, Ins. Co. 40 Barb. Neb. 121, 92 N. W. 921; German-American 292; Etna Ins. Co. v. Maguire, 51 Ill. 342; Ins. Co. v. Paul (Ind. Terr.) 83 S. W. 60; 1 May, Ins. ¶ 126, p. 235; Post v. Etna Ins. Continental F. Ins. Co. v. Cummings (Tex. Co. 43 Barb. 351; Ruggles v. American Civ. App.) 78 S. W. 378; Carnes v. Farm-Cent. Ins. Co. 114 N. Y. 415, 11 Am. St. ers' F. Ins. Co. 20 Pa. Super. Ct. 634; Born v. Home Ins. Co. 120 Iowa, 299, 94 N. W. 849; State Ins. Co. v. Hale, 1 Herdman (Neb.) 191, 95 N. W. 473; Union Assur. Soc. v. Nalls, 101 Va. 613, 99 Am. St. Rep. 923, 44 S. E. 896; Modern Woodmen v. Coleman, 64 Neb. 162, 89 N. W. 641; Anderson v. Manchester F. Assur. Co. 59 Minn. 182, 28 L. R. A. 609, 50 Am. St. Rep. 400, 60 N. W. 1095, 63 N. W. 241. If the insurer receives a premium with full knowledge, through its agent, of the facts constituting a breach of one of the conditions of the policy, the right to insist that the policy is forfeited for the cause is gone. Rep. 674, 21 N. E. 1000. An agent's authority to alter or modify a policy by oral or written agreement may be inferred from a course of dealing acquiesced in by the principal, even though the policy provided to the contrary. Kerr, Ins. ¶ 100, p. 223; Knickerbocker L. Ins. Co. v. Norton, 96 U. S. 234, 24 L. ed. 689; Powell v. Factors' & Traders' Ins. Co. 28 La. Ann. 19. The assured was not required to keep books of account until the taking of the inventory. Neb. 348, 83 N. W. 81; Citizens' Ins. Co. v. St. Landry Wholesale Mercantile Co. v. Springfield F. & M. Ins. Co. (La.) 37 So. Elliott, Ins. p. 129; Mutual Ben. L. Ins. 988; St. Landry Wholesale Mercantile Co. v. Teutonia Ins. Co. 113 La. 1053, 37 So. Co. v. Daviess, 87 Ky. 541, 9 S. W. 812; Dunbar v. Phenix Ins. Co. 72 Wis. 492, 40967; Continental Ins. Co. v. Waugh, 60 N. W. 386; Continental Ins. Co. v. Pearce, 39 Kan. 396, 7 Am. St. Rep. 537, 18 Pac. 291; Pickel v. Phenix Ins. Co. 119 Ind. 291, 21 N. E. 898; Cotten v. Fidelity & C. Co. 41 Fed. 506; Reynolds v. Iowa & N. Ins. Co. 80 Iowa, 563, 46 N. W. 659; Manhattan F. Ins. Co. v. Weill, 28 Gratt. 389, 26 Am. Rep. 364; Germania F. Ins. Co. v. Hick, 125 Ill. 361, 8 Am St. Rep. 384, 17 N. E. 792; Anderson v. Manchester F. Assur. Co. 59 Minn. 182, 28 L. R. A. 609, 50 Am. St. Rep. 400, 60 N. W. 1095, 63 N. W. 241; Gans v. Messrs. Clegg & Quintero and Kenneth Baillio, for respondent: The burden of proof as to all the facts going to establish a waiver is upon the assured. Wood, Ins. 2d ed. p. 71, note; New York L. Ins. Co. v. Fletcher, 117 U. S. 529, 29 L. |