fore coming to the hotel, and afterwards came under that special contract to board and sojourn at the hotel, her acts, in law, constituted her a boarder (Kisten v. Hildebrand, 48 Am. Dec. 416; Johnson Co. v. Reynolds, 3 Kan. 251; Moore v. Development Co. [Cal.] 26 Pac. 92), and the liability of the defendant was only that of an ordinary bailee, from whom she could only recover for the property lost on the ground of his negligence or want of diligence. There being no evidence whatever offered to establish negligence, the determination by the court that, upon the evidence offered, taken as true, the defendant was not responsible for the loss of the jewelry, was simply the determination "that, as a matter of law, no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish." Railroad Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829. This being unquestionably the prerogative of the court, the instruction was properly given. The judgment of the district court is therefore affirmed.

SLOAN and DAVIS, JJ., concur.

(35 Or. 393)

LADD v. GAMBELL, City Auditor. (Supreme Court of Oregon. Dec. 4, 1899.) MUNICIPAL CORPORATIONS TAXATION STREET ASSESSMENTS-STATUTES

-VALIDITY-REPEAL.

1. Laws 1893, p. 171, provides that, where cities of 2,500 inhabitants improve a street at the expense of abutting property, the owners thereof whose assessments exceed $25 may pay such assessments in installments, and the city may issue interest-bearing bonds for the amount of deferred assessments to pay for such improvements. Held, that since Const. art. 1, § 32, providing that all taxation shall be equal and uniform, and Id. art. 9, § 1. requiring the legislature to provide for a uniform and equal rate of assessment and taxation, did not apply to special assessments for street improvements, Laws 1893, p. 171, was not an abuse of the legislature's discretion, and hence was valid.

2. Laws 1893, p. 171, provides that, where cities of 2.500 or more inhabitants improve a street at the expense of abutting property, the owners thereof whose assessments exceed $25 may pay such assessments in installments, and the city may issue 10-year interest-bearing bonds for the amount of such deferred assessments to pay for such improvements, which was not to be deemed to be any part of the debt limit of such city. Portland city charter (Laws 1898, pp. 101, 183) limits its bonded indebtedness to certain designated sums, and declares that no city officer shall have authority to create any indebtedness binding on such city until funds have been provided for its payment, or to issue city warrants for more than two years. Held, that since the debt limit of the charter applied only to debts created under its provisions, it did not repeal Laws 1893, p. 171, in so far as it affected such city.

Appeal from circuit court, Multnomah county; J. B. Cleland, Judge.

Suit by Charles E. Ladd against A. N. Gambell, auditor of the city of Portland. From a judgment in favor of plaintiff, defendant appeals. Reversed.

59 P.-8

J. M. Long, for appellant. W. A. Cleland and S. C. Spencer, for respondent.

BEAN, J. This is a suit to test the validity of what is known as the "Bancroft Bonding Act" (Laws 1893, p. 171), which provides, in effect, that whenever any city within this state having a population of 2,500 or more shall improve a street at the expense of the abutting property, any owner of such property whose assessment shall exceed $25 may, by filing with the proper officer a written application, be permitted to pay such assessment in 10 equal annual installments, the city to issue its 6 per cent. 10-year bonds for the amount of such deferred assessments, for the purpose of raising money with which to pay for the improvement in the first instance. The contention is that, since the interest on the bonds so issued is payable out of the general fund of the city, and not by the persons who elect and are entitled to pay their street assessments in installments (Mall v. City of Portland [Or.] 56 Pac. 654), the act is unconstitutional and void for want of uniformity, because it not only denies to the property owner whose assessment is $25 or less the right to pay his assessment in installments, but also requires him to contribute, under the power of taxation for general municipal purposes, to the fund out of which the interest on the bonds is to be paid. It was early held in this state that the provisions of the constitution that "all taxation shall be equal and uniform" (section 32, art. 1), and that "the legislative assembly shall provide by law for uniform and equal rate of assessment and taxation" (section 1, art. 9), have no application to special assessments for street improvements (King v. City of Portland, 2 Or. 146); and this seems to be the generally accepted rule (2 Desty, Tax'n, 1251). There being, therefore, no constitutional restriction upon the legislature in this regard, it consequently has a broad discretion in making provision for ascertaining what property is specially benefited by a local improvement, and how the benefit shall be apportioned. 2 Dill. Mun. Corp. § 761. And, while the adjudged cases do not agree upon the extent of the legislative power, we are of the opinion that the bonding act does not render an assessment for street improvements so unequal and unjust as to authorize a court to declare it invalid on that account. Perfect equality in such an assessment is hardly attainable, and approximation is all that can be reasonably expected. It will be observed that the bonding act does not affect the method or manner of making the assessment or the apportionment of the cost of the improvement, but applies only to the payment of assessments after they have been made in conformity with the provisions of the municipal charter; and the fact that the legislature, in the exercise of its wisdom, has seen proper to divide the property owners into classes according to the amount of their respective assessments, and

the period of two years from the date of making such contract or assumption, nor shall the city issue warrants or other evidence of indebtedness without there is sufficient funds in the hands of the city treasurer to pay the same on presentation. All indebtedness issued contrary to this provision shall be null and void." Laws 1898, pp. 101, 183. Repeals by implication are not favored. It is only when the new statute revises the whole subject-matter of the old one, and is evidently intended as a substitute for it, or is so inconsistent with it that both cannot stand, that it will operate as a repeal of the former law. Little v. Cogswell, 20 Or. 345, 25 Pac. 727; State v. Rogers, 22 Or. 348, 30 Pac. 74; Insurance Co. v. Riggen, 31 Or. 336, 48 Pac. 476; Strickland v. Geide, 31 Or. 373, 49 Pac. 982. Now the bonding act is a general law, applicable to all the cities of the state of a certain class, and provides that "no obligation incurred by any city in this state by virtue of this act shall be deemed or taken to be within or any part of the limitation by law as to indebtedness of such city." It formed no part of any former charter of the city of Portland, and was applicable to such city only because it belonged to the class designated in the law, and there is not such a direct and irreconcilable conflict between its provisions and that of the present city charter that both cannot stand. The one is a general act, affecting all the cities of the class designated, expressly declaring that the indebtedness therein provided for shall not be taken as a part of the municipal indebtedness within the limitation of the clause in the charter; the other, a special act, applicable only to the city of Portland, and undertakes to limit the indebtedness to be incurred by such municipality. under the provisions thereof. In our judgment, the bonding act is not unconstitutional, nor was it repealed by the present charter of the city of Portland. The decree of the court below must therefore be reversed, and it is so ordered.

(36 Or. 228)

WARNER VALLEY STOCK CO. v. CALDERWOOD.

(Supreme Court of Oregon. Dec. 4, 1899.) PUBLIC LANDS-SECOND SURVEY-NOTICE-EF

FECT-SWAMP LAND-PURCHASER'S TITLE

-PATENT-COLLATERAL ATTACK.

1. Since the United States, continuing in the ownership of lands which by public survey appeared to abut on nonnavigable waters, has the right to readjust the marginal survey, and reserve uplands that appear between the actual margin of the water supposed to have been previously meandered, a purchaser therefrom under timber-culture entries after a second survey, reserving upland between the first survey and the margin of a nonnavigable lake, purchases the land with notice thereof, and is estopped to claim beyond the boundary under which he purchased.

2. Since Act Cong. Sept. 28, 1850, supplemented by Act March 12, 1860, granting swamp lands to the various states, constitutes a grant in præsenti, and, when the swampy character of the land has been established, the grant car

ries title to a state as of the date of the act, a patent of swamp lands to the state of Oregon March 25, 1890, vested it with title from March 12, 1860; and hence a purchaser of such land, succeeding to the title of the state, was entitled to the same, as against a homestead settler thereon in 1886.

3. Since a patent of swamp land to the state under Act Cong. Sept. 28, 1850, supplemented by Act March 12, 1860, is conclusive against collateral attack, it was not error, in an action involving title to land patented under such act. to refuse to allow defendant to prove that land which plaintiff claimed was not swamp land, but land beneath the waters of a nonnavigable lake.

Appeal from circuit court, Lake county; W. C. Hale, Judge.

Action by the Warner Valley Stock Company against J. E. Calderwood to recover land. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E. D. Sperry, for appellant. C. A. Cogswell, for respondent.

WOLVERTON, C. J. This controversy arises from the following facts: In 1875 the United States government caused a survey to be made, purporting to meander the margin of Lake Warner, situated in the southeastern part of the state. By that survey, lots 1 and 2, section 28, township 37 S., range 25 E. of the Willamette meridian, and lots 1 and 2, section 33 of said township, which the defendant claims to own, were made to abut upon the margin of said lake. In 1887 a second governmental survey was made, purporting to again meander the said margin, which did not conform, in so far as it may concern this dispute, in any particular to the survey of 1875, but was run much nearer to the lake, and southwesterly from the original survey. The lands lying between the two lines were also surveyed and platted at the same time. The plaintiff claims to be the owner of certain lands located upon this second survey, and other tracts between the two meander lines, and deraigns title from the United States through purchase from the state of Oregon. fendant claims by purchase under homestead and timber-culture entries. The tracts claimed by the plaintiff were patented to the state as swamp lands March 25, 1890. The defendant settled upon said lots 1 and 2, section 28, November 12, 1886, and on January 24, 1889, entered the same as a homestead, and received a duplicate receipt therefor, numbered 1,178. Subsequently he made final proof, and on September 27, 1895, received his final receipt (No. 608) from the government. He entered lots 1 and 2, section 33, March 28, 1889, under the timber-culture act, and received a duplicate receipt from the government therefor, being No. 1,038. At the trial, plaintiff offered in evidence the patent from the government to the state of Oregon, and a stipulation of the parties to the effect that plaintiff had succeeded to all the interest which the state acquired under said patent. There was also offered and received in evidence a plat showing the relative location of the respective surveys of 1875

The de

and 1887, and the legal and fractional subdivisions of land abutting upon such surveys. An attempt by defendant to show, by evidence aliunde, that the margin of the lake still extended to the survey of 1875, and that the land claimed by plaintiff was covered by the waters of the lake, and was therefore not swamp land, was denied by the court below, and its action in this regard is assigned as error. The defendant contends that, his purchase from the government having been made with reference to the survey of 1875, which purported to meander the margin of Lake Warner, he took to the center of the lake, it being a nonnavigable body of water, notwithstanding the margin may not have been exactly meandered by the survey, and that the government was estopped by the survey to dispose of the upland between the survey and the actual margin of the lake. Under this contention, it is claimed that defendant's lands extend to the actual margin of Lake Warner, and therefore that he is entitled to the lands claimed by plaintiff, lying between the lots of defendant, as designated upon the plats of 1875 and the survey of 1887.

As it regards the timber-culture entry, we have only to say that the contention is wholly without merit, as the second survey was made prior to the date of entry, and the entryman must be deemed to have taken with knowledge that the government had reserved the upland lying between the first survey and the margin of the lake, and he is therefore estopped to claim beyond the boundary of the survey under which he purchased. In such a case it cannot be claimed that he purchased with a view of acquiring riparian rights, as, the government plats did not represent the lots as extending to the water's edge, and the purchase must be deemed to have been made with reference to the public surveys and plats as they existed at that time. Where the general government continues in ownership of lands which by the public surveys appear to abut upon nonnavigable waters, it must be conceded that it has the right and authority to resurvey and readjust the marginal survey, and reserve to itself any uplands that may subsequently appear between the survey and the actual margin of the water supposed to have been meandered in the first instance. Cragin v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Ed. 566.

In so far as it relates to the homestead entry, a different question arises. The defendant claims that inasmuch as the swamp land was not patented to the state until March 25, 1890, he acquired a prior and superior right, by virtue of his settlement, in contemplation of his homestead entry on November 12, 1886, which antedated the second survey. Swamp lands were granted to the state by virtue of the act of congress of September 28, 1850, as supplemented by the act of March 12, 1860, extending its provisions to all the states of the Union. These acts have been held to constitute a grant in præsenti, and that, when the

swampy character of the land has been identified and established, the grant carries the title to the state as of the date of the act. Mr. Justice Field, in Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985, 30 L. Ed. 1039. says: "When identified, the title would become perfect as of the date of the act. The patent would be evidence of such identification, and declaratory of the title conveyed. It would establish definitely the extent and boundaries of the swamp and overflowed lands in any township, and thus render it unnecessary to resort to oral evidence on that subject. It would settle what otherwise might always be a mooted point,-whether the greater part of any legal subdivision was so wet and unfit for cultivation as to carry the whole subdivision into the list. The determination of the secretary upon these matters, as shown by the patent, would be conclusive as against any collateral attacks, he being the officer to whose supervision and control the matter is especially confided. The patent would thus be an invaluable muniment of title, and a source of quiet and peace to its possessor." In a later case (Lumber Co. v. Rust, 168 U. S. 589, 18 Sup. Ct. 208, 42 L. Ed. 592), Mr. Justice Brewer said: "The act of 1850 made a grant in præsenti. In other words, the title then passed to all lands which at that date were swamp lands, and the only matters thereafter to be considered were those of identification." In another case, still later (Brown v. Hitchcock, 173 U. S. 473, 19 Sup. Ct. 485, 43 L. Ed. 773), the same learned justice said, "Under the swamp-land act, the legal title passes only on delivery of the patent;" and it was further held that, until the legal title to such lands passed from the government, inquiry as to all equitable rights came within the cognizance of the land department. These two later decisions must not be understood, however, as in any wise conflicting with the idea that the grant was one in præsenti. The patent is merely the evidence of title, is the final certificate of the character of the land, and, when issued, the title relates back to the date of the grant or the act of congress under which title is given. So that, under these authorities, it must be held that the grant to the swamp lands, covered by the patent under which plaintiff claims, took effect or related back to March 12, 1860, when the provisions of the swamp-land act were extended to the state of Oregon. The action here instituted is for the recovery of real property, and the defendant has not set up any equitable defense by way of cross bill, but merely pleads, in effect, as he may do under the statute, that he is the owner in fee of the land claimed by the plaintiff. The question, therefore, arises squarely upon the record title, and the one prior in time must prevail. The plaintiff's title from the government, as we have seen, dates from March 12, 1860, and this is long before the defendant settled upon the homestead; so that plaintiff must be held to have a better title. The attempt to show by parol that the land

claimed by plaintiff was under the waters of the lake, and not swamp land, was an attempt to impeach the patent under which plaintiff claims from the government, and it was not competent for defendant thus to impeach the plaintiff's muniment of title. The patent is conclusive against collateral attack. Wright v. Roseberry, supra. These considerations affirm the judgment below, and it is so ordered.

(35 Or. 471)

BRAUER T. CITY OF PORTLAND.' (Supreme Court of Oregon. Nov. 27, 1899.) Motion to vacate an order giving appellant leave to file a petition, on decision against it. Overruled.

For former opinion, see 58 Pac. 861.

Chester V. Dolph, for the motion. W. A. Cleland, opposed.

PER CURIAM. This is a motion to vacate an order of this court giving appellant leave to file a petition within 40 days from the rendition of a decision against it upon a rehearing of the cause granted on petition of the respondent. The present decision is adverse to the appellant, and it has never had the opportunity for preferring such a petition in the cause, and we think it is entitled to the privilege, under the rules of the court. The motion is therefore overruled.

(36 Or. 141)

RHODES v. BELCHEE.

(Supreme Court of Oregon. Dec. 4, 1899.)

BILLS AND NOTES-PAYMENT TO AGENT-AUTHORITY OF AGENT-BURDEN OF PROOFCUSTOM AND USAGE EVIDENCE.

1. Where payment of a note was made to an agent, who did not have possession thereof at the time of payment, the burden of proof is on the maker to show that the agent had authority to receive payment.

2. Agency for the sale of machinery, with authority to take notes therefor in the name of the principal, will not authorize the agent to receive payment of such notes after he has parted with the possession thereof.

3. Proof of a custom for general agents of machinery houses to return for collection to the local agents notes taken by them in payment for machinery is not sufficient evidence of the authority of the local agents to receive payment on such notes without having them in their possession.

4. Where there is no evidence that a local agent for machinery has a note taken by him for machinery in his possession at the time payment was made thereon, it is error to admit evidence of a custom for such notes to be returned to the local agents for collection.

Appeal from circuit court, Sherman county; W. L. Bradshaw, Judge.

Action by Erastus Rhodes, as receiver of P. Weyhrich & Co., against Charles H. Belchee. Judgment for defendant. Plaintiff appeals. Reversed.

This is an action brought by the plaintiff, as receiver of P. Weyhrich & Co., formerly

1 Rehearing denied January 26, 1900.

engaged in the manufacture of agricultural implements at Pekin, Ill., to recover on two promissory notes, for $175 each, executed by the defendant on July 25, 1889, and made payable to the order of Weyhrich & Co., at The Dalles, Or., November 1, 1890, and November 1, 1891, respectively. The facts are that in 1889 Mitchell, Lewis & Co., of Portland, were the general agents of Weyhrich & Co. in this state for the sale of their machinery, and, as such, made sales thereof through local agents at various points in Eastern Oregon, among whom were Filloon Bros., of The Dalles, who on July 25, 1889, sold to defendant certain farming machinery manufactured by and belonging to Weyhrich & Co., taking therefor the notes upon which this action is based. Immediately thereafter the notes were forwarded to Weyhrich & Co., at Pekin, Ill., and afterwards came into the hands of plaintiff, as receiver, and were by him placed with several banks for collection, but they were never in the possession of Filloon Bros. after being forwarded to Weyhrich & Co. When the notes matured, the defendant paid the amount thereof to Filloon Bros., and sets up such payment as a defense to this action, alleging that they were at that time, and for a long period prior thereto had been, the acting agents of Weyhrich & Co., and as such were authorized to receive payment of the notes. A verdict and judgment having been rendered in favor of the defendant, the plaintiff appeals.

E. B. Dufur, for appellant. B. S. Huntington, for appellee.

BEAN, J. (after stating the facts). It being admitted that Filloon Bros. were not in possession of the notes at the time of the alleged payment, the burden of proof is on defendant to show that they had authority from Weyhrich & Co. to receive such payment. Long Creek Bldg. Ass'n v. State Ins. Co., 29 Or. 569, 46 Pac. 366; Guilford v. Stacer, 53 Ga. 618; Smith v. Kidd, 68 N. Y. 130. And the mere fact, if it was a fact, that they were Weyhrich & Co.'s agents for the sale of machinery, with authority to take notes therefor in the name of their principal, did not authorize them to receive payment of such notes after they had parted with the possession thereof. Cooley v. Willard, 34 Ill. 68; Thompson v. Elliott, 73 Ill. 221; Strachan v. Muxlow, 24 Wis. 21; Draper v. Rice (Iowa) 7 N. W. 524. Now, there was no evi dence given or offered on the trial tending to show that Filloon Bros. had either expres or implied authority from Weyhrich & Co. te receive payment of the notes in suit, or any general authority to collect notes belonging to them, or that they had been held out to the world as possessing such authority; but it is sought to show the authority from a custom which the defendant claims to have existed in Eastern Oregon at the time of the execution and alleged payment of these notes.