legislative history of the statute and any contemporaneous practical construction given by officers charged with its application and enforcement.

[Ed. Note.-For other cases, see Statutes, Dec. Dig. 217.*]

2. EVIDENCE (§ 29*)-JUDICIAL NOTICE.

The court will take judicial notice of the legislative history of a statute and contemporaneous practical construction given by officers charged with its enforcement.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 37; Dec. Dig. § 29.*]

3. STATUTES (§ 167*)-REPEAL BY REVISION. A statute which is a revision of prior statutes on the subject, and which is intended as a substitute for the prior statutes, and which declares that the liability accruing under the prior statutes before a designated date shall not be affected, repeals the prior statutes.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 242; Dec. Dig. § 167.*]

4. STATUTES (§ 218*) - CONSTRUCTION

CON

TEMPORANEOUS PRACTICAL CONSTRUCTION. Where the language of a statute is ambiguous and susceptible of two reasonable interpretations, weight will be given to the doctrine of contemporaneous practical construction. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 294; Dec. Dig. § 218.*] 5. STATUTES (§ 212*) — CONSTRUCTION - PRESUMPTIONS.

It is presumed that the Legislature, in adopting a statute, knew of the prior law on the subject, and of the practical construction it had received.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. & 289; Dec. Dig. § 212.*]

6. STATUTES (§ 206*)-CONSTRUCTION-EFFECT OF WORDS.

Effect must be given, if possible, to every word, clause, or sentence of a statute.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 283; Dec. Dig. § 206.*] 7. TAXATION (§ 393*)-RAILROADS-STATUTES -CONSTRUCTION.

P. S. 713, 714, 717, imposing a tax for each fiscal year on the appraised value of cor porate franchises, etc., payable semiannually, providing that for each fiscal year a railroad corporation may in lieu thereof, at its option, pay a graduated gross earnings tax, and requir ing returns of the gross earnings for semiannual periods, etc., when considered in the light of the legislative history of railroad taxation and the contemporaneous construction given by administrative officers, and when considered in connection with sections 694 and 695, providing for the imposition of additional taxes and the refunding of excessive taxes, require that the rate of the gross earnings tax shall be determined on the gross earnings during the fiscal year for which the tax is to be paid.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 657; Dec. Dig. § 393.*]

8. TAXATION (§ 840*) — RAILROADS - AD VALOREM TAX-GROSS EARNINGS TAX-OPTION.

A railroad company exercising its option to pay the gross earnings tax imposed by P. S. 714, in lieu of the ad valorem tax imposed by section 713, which erroneously computed the amount of the gross earnings tax, and which did not pay the full amount of the tax computed, is not liable for the ad valorem tax, since section 694 provides a remedy by imposing an additional tax for which the corporation is liable, and for nonpayment of which it is sub

ject to the same penalties as for neglecting annual or semiannual taxes.

[Ed. Note.-For other cases, see Taxation, Dec. Dig. & 840.*]

Exceptions from Grand Isle County Court; Seneca Haselton, Judge.

Actions by the State against the Rutland Railroad Company and against the Central Vermont Railway Company. There were judgments for the state in each action rendered on an agreed statement, and defendant in each action excepts. Judgment in each case reversed.

Argued before ROWELL, C. J., and MUNSON and WATSON, JJ., and MILES, Superior Judge.

C. W. Witters, for Central Vermont Ry. H. Henry Powers, for Rutland Railroad Clarke C. Fitts, Atty. Gen., and Hale K. Darling, for the State.

Co. Co.

WATSON, J. By P. S. 713, for each fiscal year beginning with the 1st day of January, a tax is assessed upon the property and corporate franchise of each person or corporation owning or operating a railroad located in whole or in part within this state at the rate of 1 per cent. of the appraised value thereof, payable semiannually. By section 714 for each such year a person or corporation thus owning or operating a railroad so located may, in lieu of the tax assessed in the preceding section, pay to the state in the manner and at the times specified in the third following section (717) 21⁄2 per cent. of such part of the entire gross earnings derived from all sources as does not exceed $2,000 per mile of the roadbed of such railroad located within this state with provisions for graduated rates according to specified increase in the gross earnings per mile. And by section 717 such person or corporation accepting the provisions of section 714 shall make returns of the gross earnings of such railroad for semiannual periods specified, and shall within 30 days thereafter pay to the state treasurer the percentage of such gross earnings provided in the section last named.

One question is whether under section 714 the tax is to be rated according to the gross earnings per mile for the full fiscal year, or only for the semiannual period on which the particular payment is to be based. The meaning of the statute in this respect being in doubt, we consult the legislative history of the law taxing railroads in this state during the last quarter of a century, and any contemporaneous practical construction given by the officers charged with the application and enforcement of its provisions-all of judicial notice as aids in arriving at the true intention of the statute under consideration. The first enactment of a similar nature that has come to our attention is Act No. 1, p. 6, Laws 1882, of which section 11

provided that every corporation, person, or persons owning or operating a railroad in this state should pay a tax on the entire gross earnings of such railroad if situated wholly within this state; and, if situated partly within and partly without the state, the tax should be upon such proportion of the entire gross earnings as the mileage of the trains run in the state bore to the mileage of all trains run on the entire line of road. By section 12 the tax was to be rated according to the earnings per mile of road in this state, and assessed at the rate of two per cent on the first $2,000 a mile of total earnings if less than that sum, and at a graduated rate on the gross earnings above that sum, in this respect essentially like the law now in force. And by section 13 the tax was payable one-half semiannually, and to be based upon the gross earnings during the six months terminating at times specified. The law of section 12 was re-enacted with some additions as a part of Act No. 5, p. 7, Laws 1884. However, as far as material here, the law continued the same. The tax thereunder was not in terms characterized as either annual or semiannual, yet from the time of its original enactment until the fall of 1890, when the law so far as it sought to tax earnings derived from interstate commerce was declared unconstitutional (Vermont & Can. R. R. Co. v. Cen. Vt. R. R. Co., 63 Vt. 1, 21 Atl. 362, 731, 10 L. R. A. 562; s. c. 159 U. S. 630, 16 Sup. Ct. 113, 40 L. Ed. 284), the successive commissioners of state taxes construed the statute as laying a semiannual tax and acted upon this construction in its execution. Act No. 3, p. 5, Laws 1890, entitled "An act to provide a revenue for the payment of state expenses," was approved November 26th and took effect from its passage. That act was a revision of the whole subject-matter of taxation for the purpose named in the title, and was intended as a substitute for the law of 1882 and amendments and additions thereto; and the latter law, as far as it related to taxes on the gross earnings of railroads-beyond this we have no occasion to speak-was by implication repealed thereby (Barton National Bank v. Atkins, 72 Vt. 33, 47 Atl. 176), except that by section 46 of the new act the liabilities of companies and persons to pay to the state taxes which accrued prior to July 1, 1890, under the law then existing were not to be affected. That the Legislature intended such a repeal of the previous law is clearly shown by thus expressly continuing it in force as to the liabilities for taxes imposed under it. By the act of 1890 provision was made for the assessment of a tax upon the appraisal of the property, taking into consideration the corporation franchise of a railroad in this state, payable semiannually (section 14), with the further provision that, in lieu of the tax thus assessed, the owner or operator of such railroad might "annually" pay to the state a

ings thereof. Section 17. And, if the provisions of this optional privilege were accepted, semiannual returns of the gross earnings were required, and within a time limited thereafter the percentage paid for the period covered by said returns. Section 18. The law of these sections became sections 19, 20, 21, Act No. 20, p. 20, Laws 1902, without change material here, except that in section 19 the tax on the appraisal was in terms also to be "annually" assessed. Nor so far as material here was the law of 1902 changed by Act No. 29, p. 30, Laws 1904, except that, instead of the provision being as before that such optional tax might be paid "annually," it was "for the fiscal year beginning with the first day of January, 1905, and for each year thereafter;" and, if such option for the first six months of the year was not accepted, it could not be for the rest of the year. Section 5. In 1906 the statute was amended to read as it now does with some immaterial change of language in the general revision. Laws 1906, p. 35, No. 37, § 1; P. S. 714. The phrase, "for the fiscal year," etc., was retained, and an optional privilege was given to pay graduated rates on the gross earnings in principle like the law of 1882 and 1884, in lieu of the regular tax assessed on the appraisal with the further provision, which was first contained in the Act of 1904, in effect limiting the right of option to its exercise for the entire year.

It is well settled that, where the language of a statute is ambiguous and susceptible of two reasonable interpretations, weight is given to the doctrine of contemporaneous practical construction. In re National Guard, 71 Vt. 493, 45 Atl. 1051; State v. Stimpson, 78 Vt. 124, 62 Atl. 14, 1 L. R. A. (N. S.) 1153; Houghton v. Payne, 194 U. S. 88, 24 Sup. Ct. 590, 48 L. Ed. 888; Whittemore v People, 227 Ill. 453, 81 N. E. 427. Under this doctrine the practical construction given to the law of 1882 and 1884 by the administrative officers whose duty it was to carry it into execution for the length of time before stated would be entitled to great respect, and perhaps would be controlling in the interpretation of the statute here under consideration, did not the latter, viewed in the light of legislative history and the practical construction given to the earlier law, contain indicia of an intention by the Legislature to give it a different meaning. As before observed, the law of 1882 and 1884 was without terms expressly characterizing the tax assessed thereby as either annual or semiannual as distinguished from the other, and the language in this respect may well be said to have been of doubtful import. It is presumed that the Legislature was informed of this law and of the practical construction it had received, giving the tax a semiannual character, when the subsequent acts were passed. Suth. Stat. Const. (2d Ed.) §§ 403, 499. In the light of this information it en

that payment of an arbitrary percentage on the gross earnings might "annually" be made in lieu of the tax on the appraisal, and the same language was used in the act of 1902. In the amendment of 1904 the language was changed from the word "annually" to "for the fiscal year beginning," etc., words equally or more definite, with a further provision declaring that no right to exercise such option in the second half of the year should exist except that it had been exercised in the first. Thus by the two provisions an intention is indicated to make the optional tax an annual one rather than semiannual. The same provisions were carried forward into the law of 1906, which changed the previously existing optional right, "for the fiscal year beginning," etc., to pay an arbitrary rate per cent. on the gross earnings, to the same right "for the fiscal year beginning," etc., to pay graduated rates on the gross earnings in lieu of the regular tax on the appraisal, also for the fiscal year. In view of the law of 1882 and 1884 and its known practical construction, the insertion of the two abovenamed provisions in the subsequent acts, as before noticed, can reasonably be accounted for only as an intention by the lawmakers to make the tax an annual one instead of semiannual, as by the earlier law under the construction given. To hold that such was not the effect would be to render the words so inserted without force, a holding not in harmony with the elementary rule of construction that effect must be given, if possible, to every word, clause, and sentence of a statute. And, the tax being for the fiscal year, to make the provision therefor effectual, the rate, by implication, is to be determined by the gross earnings during the same period. The phrase "in the manner and at the times specified in the third following section" (P. S. 717) does not indicate otherwise; for that section provides only for returns of the gross earnings on which to base the semiannual payments, and specifies the times within which such payments shall be made. We hold, therefore, that the rate is to be determined upon the gross earnings during the fiscal year for which the tax is to be paid.

It is said, however, that as a practical fact the gross earnings of a railroad are not uniformly the same between the two six-months periods of the year, consequently under the above construction there might be an excess over the true amount by law to be paid at the end of the first semiannual period; that it is hardly probable that the Legislature has passed a law taking more of the taxpayer's money than it ought for the sake of returning it at the end of the year; and that, on the other hand, if the rate is determined by the gross receipts for each six-months period, there can be no such thing as an overpayment during the fiscal year. It is true that, if the rate is determined by the gross earnings for semiannual periods, the exact

ways be ascertained, while under the construction given there may be an overpayment at the end of the first half of the year, or the amount paid may be too small. Yet the force of this argument is in support of the construction here given, since by making provision for the refunding of any excess paid (P. S. 695), and for an additional tax in case the Commissioner finds that owing to the incorrectness of a return, or any other cause, a tax paid is too small (P. S. 694), manifestly the Legislature contemplated that there might be such a condition of things as to make the law of these sections applicable.

The facts of record show that the defendant in each case duly and seasonably elected to accept the provisions of section 714, and that the Rutland Railroad Company paid to the state the amount of the tax computed with the rate determined by the gross earnings of the respective semiannual periods on which the several payments were based, instead of the amount computed with the rate determined by the gross earnings for the full fiscal year, as required by the statute under the construction here given; that the Central Vermont Railway Company computed the tax with the rates determined in the same way, and paid to the state the major part, but not the full amount, of the tax so computed. The state contends that, since in each case the payments made were based upon an erroneous method of computation, the defendants have not legally availed themselves of the option, and that consequently they are liable for taxes on the appraisal of their property and corporate franchises under section 713. In support of this position, it is argued that section 714 creates no legal liability on the defendants' part to pay the sum therein provided for in lieu of the tax on the appraisal, that a payment thereof is purely voluntary, and that no method is provided whereby the state may enforce it. But the fact that payment upon the gross earnings was optional did not in itself make the payments so made voluntary. The defendants were by statute obliged to pay a tax, and it would be on the appraisal unless they ac cepted the option given them also by statute to pay on the gross earnings. The payment of the percentage specified was none the less mandatory under the optional provision when accepted than was the tax on the appraisal had the option not been exercised. In either form money paid is a tax.

In principle the effect of this optional right is not unlike that under consideration in Baker v. Sherman, 77 Vt. 167, 59 Atl. 167. There in a former suit between the same parties, upon the same cause of action, the defendants after verdict moved in arrest of judgment, which motion was finally sustained in this court, and the declaration held bad. The court granted leave to amend and a new trial on terms imposed, and ordered that, if a new trial was not wanted on the terms im

case being remanded to the county court, the plaintiffs elected to submit to an arrest of judgment rather than to amend the writ and proceed to a new trial on the terms imposed. A new suit was then brought for the same cause of action, and by the plea of the statute of limitations and pleadings subsequent thereto the question whether the plaintiffs voluntarily abandoned the former suit was put in issue. The defendants contended that the election between the two courses made the election to submit to an arrest of judgment a voluntary abandonment of the suit. In holding to the contrary the court said: "But it is to be observed that this was not a case in which the plaintiffs could do either or neither of two things. They sought to hold the verdict which they had obtained, but were compelled to abandon it and to take one of two courses, both of which were against their will. Under such circumstances the taking of one course rather than the other does not make the course taken voluntary in any proper sense. * In submitting

to an arrest of judgment when in a dilemma not of their own seeking but forced upon them, the plaintiffs were acting under judicial compulsion." Section 694 of the statute, to which reference has already been made, provides ample remedy by requiring the commissioner in case he finds that owing to the incorrectness of a return, or any other cause, a tax paid is too small, to assess an additional tax sufficient to cover the deficit, and, if the additional assessment is not paid within the time therein specified, the person or corporation against whom it is asBessed becomes liable to the same penalties as for neglect to pay annual or semiannual taxes.

It follows that on the agreed cases the state is not entitled to recover in either suit. In each case judgment reversed, and judgment for the defendant, without costs.

(81 Vt. 420)

E. D. KEYES & CO. v. UNION PAC. TEA CO.

(Supreme Court of Vermont. Rutland. Oct. 8, 1908.)

1. PRINCIPAL AND AGENT (§ 103*)-POWERS OF AGENT-CONTRACT OF AGENCY-CONSTRUC

TION.

Defendant's branch store was in charge of a manager, who conducted the business under a contract providing that he should have general charge of the sale of defendant's merchandise, should sell only the merchandise intrusted to him, and authorizing him to incur expenses for salaries of employés, commissions of salesmen for goods, the hire of horses and wagons for delivering merchandise, etc., and other petty items necessary to maintain the store and prosecute the business, and further providing that he should have no authority to subject defendant to any liability, except as therein before expressly declared, and that expenses and disbursements not named therein should be incurred only by express authority from defendant.

Held, that the manager was not authorized to purchase goods to replenish the stock.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 278; Dec. Dig. & 103.*] 2. PRINCIPAL AND AGENT (8 103*)-POWERS OF AGENT-PURCHASES, SALES, AND CONVEYANCES-IMPLIED AUTHORITY.

Authority of an agent to buy cannot properly be inferred from an authority to sell. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 278; Dec. Dig. § 103.*] 3. PRINCIPAL AND AGENT (§ 124*)-POWERS CONDUCT OF AGENT-IMPLIED AUTHORITY— OF PRINCIPAL-QUESTIONS FOR JURY. Whether defendant's agent had so conducted the business by permission of defendant as to authorize him to purchase certain goods of plaintiff held, under the evidence, a question for the jury.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 724; Dec. Dig. § 124.*] 4. PRINCIPAL AND AGENT (§ 170*)—AUTHORITY OF AGENT-UNAUTHORIZED ACTS-RATIFICATION.

A principal who, with knowledge that his agent, in violation of his authority, is purchasing goods for use in the principal's business, fails to dissent and notify the seller thereof in a reasonable time, will be taken as assenting to the agent's acts.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 638; Dec. Dig. § 170.*] 5. PRINCIPAL AND AGENT (§ 170*)-POWERS OF AGENT-PURCHASES, SALES, AND CONVEYANCES IMPLIED AND APPARENT AUTHORITY EVIDENCE.

Where a principal with knowledge that his agent, in violation of his authority, is purchasing goods for use in the principal's business fails to dissent and notify the seller within a reasonable time, such silence is evidence of authority on the agent's part to make like purchases in the future, and before notice of want of authority.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 638; Dec. Dig. § 170.*] 6. PRINCIPAL AND AGENT (§ 14*)-IMPLIED AGENCY.

It is the prior conduct of the principal that affords ground to infer the continuance of the agency in the particular business.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 272; Dec. Dig. § 14.*]

7. PRINCIPAL AND AGENT (§ 137*)-POWERS OF AGENT ESTOPPEL OF PRINCIPAL TO DENY AUTHORITY OF AGENT.

The authority of an agent is enlarged by implication as to third persons, if the principal allows him to act as his agent, beyond his authority, without objection, and in such case the principal is bound by estoppel to those dealing with the agent as such, within the apparent scope of his authority, without knowledge of want of authority.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 492; Dec. Dig. § 137.*]

Exceptions from Rutland County Court; Eleazer L. Waterman, Judge.

Assumpsit by E. D. Keyes & Co. against the Union Pacific Tea Company. Judgment for plaintiff, and defendant excepted. Reversed and remanded.

Lawrence & Lawrence and B. L. Stafford, for plaintiff. Butler & Moloney, for defendant.

ROWELL, C. J. This is assumpsit for goods sold and delivered, from time to time, from July 25, 1905, to January 19, 1906, consisting of a chest of tea and nine barrels of sugar.

The plaintiffs are wholesale grocers, residing and doing business in the city of Rutland. The defendant is a New York corporation, having its principal office and place of business in the city of New York, and is an importer, and a retail dealer in teas, coffees, and spices, and a wholesale and retail dealer in sugar, having a branch store in the city of Rutland, which it claims was for the sale of its own merchandise only. This branch store was in charge of one Moore as manager, and had been, most of the time, for 15 or 20 years, who conducted the business thereof under a written contract with the defendant. The plaintiff claimed to have sold and delivered said goods to Moore as the defendant's agent. But the defendant claimed that under its contract with Moore he had no authority to buy goods for said store, neither for cash nor on credit, and no authority to buy the goods in question, and none to pledge the defendant's credit therefor. The plaintiff's evidence tended to show that the goods were ordered by Moore for said branch store, and were delivered there, put in with the other goods in the store, and a large part of them taken out and distributed to customers of the store by the defendant's canvassing agents; that the money received therefor was turned over to Moore at the store, mingled with other money received thereat for goods sold, and by him sent to the defendant in New York; that when the goods were bought, there was a shortage of such articles in the store; and that they were needed to fill orders that had been taken by the canvassing agents, and temporarily to supply customers at the store, which shortage was occasioned by delay in transit of goods ordered by Moore of the defendant's New York store, or because he did not seasonably place his orders. The plaintiff's evidence further tended to show that Moore as such manager had, from time to time, for about 16 years, bought similar goods of them for said branch store, which were delivered and paid for in the usual course of business and sold, and the avails thereof accounted for by Moore, as aforesaid.

The written contract between Moore and the defendant provided, among other things, that Moore was to have the general charge and management of the sale of the defendant's merchandise at said branch store, and such other authority as was therein specifically conferred; was to engage such clerks and other employés as the defendant should deem necessary for the due prosecution of its business at said store, appoint their duties, and see to it that they faithfully performed them; was to have the custody of all the defendant's property contained in said

ing money, merchandise, checks, presents, horses, wagons, harness, and fixtures, and to be responsible to the defendant therefor; and was to sell only that merchandise and property of the company which should be intrusted to him for that purpose. The contract authorized Moore to incur expenses, and to make disbursements for account of the defendant from the proceeds of sales, for the following purposes: "The salary of himself and the salaries of other employés in said store; commissions of salesmen for selling goods, when paid by him in accordance with written instructions of the company; gas, electric light or power, coal, advertising to secure salesmen; strictly temporary wagon or harness repairs; feed and shoeing of horses used on delivery wagon connected with said store; freight and cartage; express; the hire of horses and wagons for making deliveries of merchandise therefrom; veterinary surgeon's services for emergencies; and other petty small items necessary for the maintenance of the store or the prosecution of the business thereat." The section of the contract containing this authority closed by saying that the manager should have no authority to subject the company to any liability, except as thereinbefore expressly declared.

The plaintiffs claimed that in the authority thus conferred upon Moore to incur expense, the clause "and other petty small items necessary for the maintenance of the store or the prosecution of the business thereat" authorized him to buy the goods in question. The defendant claimed the contrary. The court submitted the clause to the jury for its consideration, saying that its construction was plain, as far as the court had to say about it, and authorized Moore to make purchases only of petty or small character or amount necessary for the maintenance of the store and the transaction of the business, and that the only question for the jury on that clause was whether these were petty or small purchases, and whether they were necessary for the maintenance of the store and the transaction of the business, considering its character and extent; that it was for the jury to say whether the clause applied to this particular class of goods, or was intended to apply to any such amounts, and whether they were necessary for the maintenance of the store and the transaction of the business. This was error. The court should have ruled the question for the defendant as matter of law under the ejusdem-generis rule, for the contract discloses nothing to make that rule inapplicable, as it does not appear therefrom that the parties intended that those general words should include, not only things of the same kind as those specifically enumerated, but also goods to replenish the stock, which were things of a very different kind; but quite the contrary appears, for the contract expressly provided