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but such as it is, it is competent to be laid
before the jury.

[314] *In People v. Cleveland, 107 Mich. 367, 65
N. W. 216, error was assigned by the defend-
ant in permitting the prosecution to show
the acts of one Mehan, jointly indicted with
Cleveland in the affray; his appearance on
the way to Jackson, and on the succeeding
days; the excuse he gave for his then con-
dition, and the result of an examination of
his clothing. But the court said: "It is
apparent from the testimony that the three
parties, when they left Jackson, had ar-
ranged to engage in this robbery,
and the arrangement had been carried out so
far as they were able to do so. It was
therefore proper to show the condition of
Mehan, who was not on trial for the purpose
of establishing his identity as one of the
men who accompanied the respondent Cleve-
land from Jackson to Somerset Center, thus
identifying the latter's connection with the
robbery."

So, in Angley v. State, 35 Tex. Crim. Rep.
427, 34 S. W. 116, error was assigned upon
the admission of testimony to show the
character of shoes Rice (who was connected
with the transaction but not jointly in
dicted) had on when arrested the day after
the assault. One ground of the objection
was that Rice was not jointly indicted with
Angley. When Rice was arrested and his
shoes examined it was found that one of
them had a hole in the sole fitting a corre-
sponding peculiarity in the track found up-
on the ground. The court held this testi-
mony proper, though Rice was separately in-
dicted, because the conspiracy had been
shown. This was a circumstance tending to
show that he was one of the parties present
at the time the assault was committed.

| 12, the night preceding the shooting, whether Corbett roomed with Fitzpatrick in the latter's cabin, and whether witness saw anyone else in the cabin besides Brooks and Corbett. The court permitted this upon the theory that it was competent for the prosecution to show every movement of the prisoner during the night, the character of his dress, the places he had visited, and the company he had kept.

Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the alleged crime. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts. The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the murder, and as to what he did and the persons with whom he associated that night. Indeed, we know of no reason why an accused person who takes the stand as a witness should not be subject to cross-examination as other witnesses are. Had another witness been placed upon the stand by the defense, and sworn that he was with the prisoner at Clancy's and Kennedy's that night, it would clearly have been competent to ask what the prisoner wore, and whether the witness saw Corbett the same night or the night before, and whether they 4. Error is also assigned in not restricting were fellow *occupants of the same room.[316] the cross-examination of the plaintiff in er- While the court would probably have no pow. Defendant himself was the only wit-er of compelling an answer to any question, ness put upon the stand by the defense, who a refusal to answer a proper question put was connected with the transaction; and he was asked but a single question, and that related to his whereabouts upon the night of the murder. To this he answered: "I was up between Clancy's and Kennedy's. I had been in Clancy's up to about half-past twelve or one o'clock-about one o'clock, I guess. I went up to Kennedy's and had a few drinks with Captain Wallace and Billy Kennedy, and I told them I was getting kind of full and I was going home, and along about quarter past one Wallace brought me down about as far as Clancy's, and then he [315]took me down to the cabin and left me in the cabin, and we wound the alarm clock and set it to go off at six o'clock, and I took off my shoes and lay down on the bunk and woke up at six o'clock in the morning, and went up the street."

ror.

upon cross-examination has been held to be a proper subject of comment to the jury (State v. Ober, 52 N. H. 459); and it is also held in a large number of cases that when an accused person takes the stand in his own behalf, he is subject to impeachment like other witnesses. If the prosecution should go farther and compel the defendant, on cross-examination, to write his own name or that of another person, when he had not testified in reference thereto in his direct examination, the case of State v. Lurch, 12 Or. 99, 6 Pac. 408, is authority for saying that this would be error. It would be a clear case of the defendant being compelled to furnish original evidence against himself. State v. Saunders, 14 Or. 300, 12 Pac. 441, is also authority for the proposition that he cannot be compelled to answer as to any facts not relevant to his direct examination.

On cross-examination the government was permitted, over the objection of defendant's 5. Error is also assigned to the action of counsel, to ask questions relating to the wit- the court in permitting the government to ness's attire on the night of the shooting, call and examine witnesses in rebuttal with to his acquaintance with Corbett, whether respect to the effect of light from the flash Corbett had shoes of a certain kind, whether of a revolver, and whether such light would witness saw Corbett on the evening of March be sufficient to enable a person firing the re

volver to be identified. One of the witnesses,
Ross, testified on cross-examination that al-
though the night was dark, he identified
Fitzpatrick by the flash of the pistol shots.
Had the defense put in no evidence what-
ever upon the subject, the question would
have been presented whether it was or was
not a matter of discretion for the court to
admit this testimony in rebuttal; but in view
of the fact that the defense put in a calen-
dar apparently for the purpose of showing
the time that the moon rose that night as
having some bearing upon this question,
there was no impropriety in putting in this
testimony.

There was no error committed upon the
trial prejudicial to the defendant, and the
judgment of the District Court is therefore
affirmed.

sued that the decree of the court of appeals
be reversed, and the case remanded to the
district court, with direction "to enter a de-
cree in conformity with the opinion of this
court, with interest at the same rate per an-
num that decrees bear in the state of Mich-
igan." Upon the case coming on to be
heard in the district court, the petitioner,
the Union Steamboat Company, owner of the
propeller New York, submitted a decree to
the effect that both vessels were in fault for
the collision, and that the damages result-
ing therefrom be equally divided between the
Erie & Western Transportation Company,
owner of the Conemaugh, and the Union
Steamboat Company, owner of the New
York; that such damages amounted in all to
the sum of $74,319.49, of which certain in-
tervening underwriters of the cargo were en-
titled to, and recovered from the steamboat
company. $19,841.56; that the transporta-[318

[817]*Ex parte UNION STEAMBOAT COM tion company, as trustees for the underwrit

PANY, Petitioner.

(See S. C. Reporter's ed. 317-320.)

Mandamus-to compel obedience to mandate
-questions open under mandate.

1.

2.

The decision by an inferior court upon any matter left open by the mandate and opinlon of a higher court can be reviewed only upon a new appeal, and not by mandamus.

A question as to the recoupment of one half the damages to a cargo from a molety of damages awarded to one of the vessels in collision, if not raised or passed upon on an appeal which directs a decree for a division of the damages between the vessels which are held to be in fault, remains open for determination by the lower court under a mandate to enter a decree in conformity to the opinion on appeal.

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Statement by Mr. Justice Brown: [317] *This was a petition for a writ of mandamus to the district court for the eastern district of Michigan, commanding it to set aside a decree entered in the case of The New York, 175 U. S. 187, anti, 126, 20 Sup. Ct. Rep. 67, and enter a decree dividing the damages equally, so that petitioner would not be decreed to pay more than one half the total damages arising out of the collision between the New York and the Conemaugh, with interest thereon not exceeding 5 per cent per annum.

Upon the opinion of this court in the case of the New York being filed, a mandate is

NOTE. As to mandamus to inferior tribunal -see State ex rel. Bayha v. Kansas City Ct. of Appeals (Mo.) 3 L. R. A. 476, and note.

As to mandamus in aid of appeal-see note to Lewis v. Baltimore & L. R. Co. 10 C. C. A.

450.

As to mandamus, when the proper remedy and when not-see note to United States ex rel. International Contracting Co. v. Lamont, 39 L. ed. U. S. 303; M'Cluny v. Silliman, 4 I. ed. U. S. 263.

ers and owners of the cargo of the Conemaugh, not intervening, suffered damages in the sum of $19,627.67; that, as owner of the propeller, it had suffered damages in the sum of $30,508.46. aggregating the sum of $50,136.13; that the transportation company recover of the petitioner one half of $50.136.13, less one half the sum of $19,841.56, decreed to be paid to the intervening petitioners, etc.

decree; refused to permit the petitioner to The court, however, declined to enter this recoup any sum that it might pay to the owners or underwriters of the cargo of the Conemaugh, from any sum that was due from the steamboat company for damages sustained by the Conemaugh, so that such company was compelled to pay of the total damages about 76 per cent instead of 50 per cent thereof.

Messrs. C. E. Kremer, H. C. Wisner, F. C. Harvey, and O. W. Johnson submitted the cause for petitioner.

Messrs. Harvey D. Goulder, and F. S. Masten submitted the cause for respondent. Mr. S. H. Holding was with them on the brief.

Mr. Frank H. Canfield submitted the cause for intervening underwriters.

*Mr. Justice Brown delivered the opin-[318] ion of the court:

Petitioner applies for this writ of mandamus upon the ground that the district court refused to enter a decree in conformity with the opinion of this court dividing the damages. but in effect entered a decree imposing upon the Union Steamboat Company, the petitioner, about 76 per cent of the damages occasioned by the collision.

The duty of an inferior court upon receiv ing the mandate of this court is nowhere better described than by Mr. Justice Baldwin in an early case upon that subject (Sibbald v. United States, 12 Pet. 488, 492, 9 was before the court, and is disposed of, L. ed. 1167, 1169): "Whatever," said he, is considered as finally *settled. The infe-[319] rior court is bound by the decree as the law of the case, and must carry it into execution

according to the mandate. They cannot
vary it or examine it for any other purpose
than execution; or give any other or further
relief; or review it upon any matter decided
on appeal for error apparent; nor intermed-
dle with it, further than to settle so much
as has been remanded.
If the spe-
cial mandate directetd by the 24th section
[of the judiciary act] is not obeyed or exe-
cuted, then the general power given to ‘all
the courts of the United States to issue any
writs which are necessary for the exercise
of their respective jurisdictions, and agree
able to the principles and usages of law,
by the 14th section of the judiciary act, fair-
ly arises, and a mandamus or other appro-
priate writs will go," although an appeal
will also sometimes lie. Perkins v. Fourni-
quet, 14 How. 328. 330, 14 L. ed. 441, 442;
Milwaukee & M. R. Co. v. Soutter, 2 Wall.
440, 443, 17 L. ed. 860, 861. See also Boyce
v. Grundy, 9 Pet. 275, 9 L. ed. 127; Ex parte
Dubuque & P. R. Co. 1 Wall. 69, sub nom.
Dubuque & P. R. Co. v. Litchfield, 17 L. ed.
514; Durant v. Essex Co. 101 U. S. 555, 25
L. ed. 961; Re Washington & G. R. Co. 140
U. S. 91, 35 L. ed. 339, 11 Sup. Ct. Rep.
673; City Bank v. Hunter, 152 U. S. 512, 38
L. ed. 534, 14 Sup. Ct. Rep. 675; Re City
Nat. Bank, 153 U. S. 246, 38 L. ed. 705, 14
Sup. Ct. Rep. 804; Re Sanford Fork & Tool
Co. 160 U. S. 247, 40 L. ed. 414. 16 Sup. Ct.
Rep. 291; Re Potts, 166 U. S. 263, sub nom.
Re C. & A. Potts & Co. 41 L. ed. 994, 17 Sup.
Ct. Rep. 520.

It is equally well settled, however, that such writ, as a general rule, lies only where there is no other adequate remedy, and that it cannot be availed of as a writ of error. Re Pennsylvania Co. 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141; Re Morrison, 147 U. S. 14, 26, 37 L. ed. 60, 65, 13 Sup. Ct. Rep. 246; Ex parte Des Moines & M. R. Co. 103 U. S. 794, 26 L. ed. 461; Ex parte Baltimore & O. R. Co. 108 U. S. 566, 27 L. ed. 812, 2 Sup. Ct. Rep. 876; Re Atlantic City R. Co. 164 U. S. 633, 41 L. ed. 579, 17 Sup. Ct. Rep. 208. The inferior court is jus tified in considering and deciding any question left open by the mandate and opinion of this court, and its decision upon such matter can only be reviewed upon a new appeal to the proper court (Re Sanford Fork & Tool Co. 160 U. S. 247, 256, 40 L. ed. 414, 416, 16 Sup. Ct. Rep. 291); and the opinion of this court may be consulted to ascertain exactly what was decided and settled. West v. Brashear, 13 Pet. 51, 10 L. ed. 350; Wayne County Supers. v. Kennicott, 94 U. S. 498, 24 L. ed. 260; Gaines Rugg, 148 U. S. 228, 238, 244, 37 L. ed. 432, 435, 437, 13 Sup. Ct. Rep. 611; Re Sanford Fork & Tool Co. 160 U. S. 247, 256, 40 L. ed. 414, 416, 16 Sup. Ct. Rep. 291. The libel in this case was for a collision [320]between the Conemaugh and the New York. The only questions decided were as to the respective faults of the two vessels, and the claim of the underwriters upon the Conemaugh's cargo, that they were entitled to a recovery to the full amount of their damages against the New York, notwithstanding

V.

the Conemaugh was also in fault for the collision. This claim was sustained, and directions given to enter a decree in conformity to the opinion of this court. Such decree was entered, dividing the damages between the two vessels, and awarding to the underwriters of the cargo a full recovery against the New York. It may be true that the decree holds the New York liable for 76 per cent of the entire damages, and not 50 per cent, but this results from the fact that she was primarily held for the entire value of the cargo. The equal division applied only to the vessels, and, upon the other hand, if petitioner be entitled to the recoupment claimed, it would apparently result in an affirmative decree in its favor. But no question of recouping one half of such damages to the cargo from the moiety of damages awarded the Conemaugh was made by counsel or passed upon by this court. It is now insisted that, under the cases of The Chattahoochee, 173 U. S. 540, 43 L. ed. 801, 19 Sup. Ct. Rep. 491; and The Albert Dumois, 177 U. S. 240, ante, 751, 20 Sup. Ct. Rep. 595, this should have been done. This may be so; but it is an entirely new question, quite unaffected by the case of the New York, and if the court erred in refusing to allow such recoupment, the remedy is by appeal, and not by mandamus. Perhaps a mandamus might lie to review the allowance of interest, but that may also be considered on appeal.

No disobedience of the mandate having been shown, the petition must be denied.

JOHN M. WHEELER et al., Plffs. in Err.,[321]

v.

NEW YORK, NEW HAVEN, & HARTFORD RAILROAD COMPANY.

(See S. C. Reporter's ed. 321-326.)

Error to state court-Federal question—constitutionality of taking of land, to abolish grade crossing-due process of law.

1.

A claim that property is taken without due process of law when condemned under a special statute for the abolition of grade crossings, because the act authorizes an increase NOTE.-48 to jurisdiction of Federal over state courts; necessity of Federal question

see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267: Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998.

As to what is a Federal question; when considered-see note to Re Buchanan, 39 L. ed. U. S. 884.

As to what constitutes due process of lawsee Kuntz v. Sumption (Ind.) 2 L. R. A. 655,

and note; Re Gannon (R. I.) 5 L. R. A. 359,

and note: Ulman v. Baltimore (Md.) 11 L. R. A. 224, and note; Gilman v. Tucker (N. Y.) 13 L. R. A. 304, and note. And see notes to People v. O'Brien (N. Y.) 2 L. R. A. 258; Pearson V. Yewdall, 24 L. ed. U. S. 436; Wilson v. North Carolina es rel. Caldwell, 42 L. ed. U. S. 865.

As to liability for cost of changing grade of street to prevent the crossing of a railroad at grade-see Kelly v. Minneapolis (Minn.) 26 L. R. A. 92, and note.

in the number of tracks, and requires the
city to pay part of the expense in violation of
the state Constitution, which prohibits dona-

tions by a city to a railroad corporation,
raises a Federal question for the purpose of a
writ of error from the Supreme Court of the
United States to a state court.

2. The condemnation of property under a spe-
cial statute for the abolition of grade cross-
ings is not a taking of the property of the
owners, whether as property owners or as
taxpayers, without due process of law, by
reason of the fact that the statute authorizes

an increase in the number of tracks, and pro-
vides for payment of part of the expense by
the city in which the property is situated,
whether the provision for payment by the
city is valid under the state Constitution or
not, since the condemnation of the property
and the apportionment of the cost are dis-
tinct and separable portions of the statute.
[No. 534.]

Messrs. Robert E. De Forest and George P. Carroll submitted the cause for plaintiffs in error.

Mr. William D. Bishop, Jr., submitted the cause for defendant in error. Contentions of counsel sufficiently appear in the opinion.

*Mr. Justice Brown delivered the opinion[322) of the court:

Plaintiffs assign as error that, in view of the fact that, by the agreement between the city and the railroad company, it was provided that the city should pay one sixth of the entire cost of the land required for the construction of a four-track road, as well as of all damages resulting from the changes of grade, there would be a reimbursement to the company for expenses in doing work and acquiring land not necessary or germane to the work of eliminating crossings at grade Decided May of the two present main tracks over the highways; and that, under these circumstances, the condemnation of defendants' property N ERROR to the Supreme Court of Er- will be in furtherance of a scheme whereby rors of the State of Connecticut to review the city of Bridgeport will contribute and a decision affirming an order for the appoint- donate to such company the credit, money, ment of appraisers under a statute for the and property of the city, and of its property abolition of grade crossings. Motion to dis-owners and taxpayers, in aid of the railroad miss or affirm. Affirmed.

Submitted May 14, 1900.

IN

28, 1900.

See same case below, 70 Conn. 326, 39 Atl. 443.

Statement by Mr. Justice Brown: [821] *This was a motion to dismiss the writ of error, and in default thereof to affirm the judgment of the supreme court of errors of Connecticut.

company, contrary to the provisions of
twenty-fifth amendment to the Constitution
of the state of Connecticut, and the taking[323]
and condemnation of said Wheeler and
Howes' said property will be a taking there-
of without due process of law, etc.

1. We cannot say that there is no Federal question in this case. In their demurrer to the application of the railroad company The case originated in an application by plaintiffs in error relied upon the unconstitu the railroad company to the judge of the superior court to appoint appraisers to esti- tionality of this special act of the Connectimate the damages that might arise to the fifth amendment to the Constitution of the cut legislature as contravening the twentyplaintiffs in error from the taking of certain real estate in the city of Bridgeport, for the state, and the Fourteenth Amendment of the Federal Constitution. The amendment to purpose of carrying out an agreement be the state Constitution provides as follows: tween the railroad company and the city of "That no county, city, town, borough, or other Bridgeport for the abolition of grade crossings. This agreement, which was entered municipality shall ever subscribe to the capiinto under the provisions of an act of the tal stock of any railroad corporation, or begeneral assembly, "providing for the aboli-nation to, or loan its credit, directly or income a purchaser of the bonds, or make dotion of grade crossings in Bridgeport," pro- directly, in aid of, any such corporation." vided the manner, plans, method, and time in [322]*which the grade crossings should be abolished, and the proportion of the cost thereof to be borne by the city of Bridgeport and the railroad company-the proportion of such cost to be paid by the city being one sixth and that by the railroad company five sixths, provided the total cost to be paid by the city

should not exceed the sum of $400,000.

A demurrer to the application of the railroad company having been overruled, and a special defense in the answer having been stricken out as irrelevant and impertinent, an order was made appointing the appraisers. An appeal was taken to the supreme court of errors, which affirmed the judgment of the judge of the superior court, and defendant sued out this writ of error, which defendant in error moves to dismiss for want of jurisdiction, or to affirm upon the ground that the question upon which the jurisdiction depends is frivolous.

The claim was, not that it was unconstitutional for the city of Bridgeport to pay for a part of the work for grade crossing elimination, but that the pay for work for the benefit of the company, in the construction of a four-track road, which was not necessary or germane to the work of grade crossing elimination, would be contrary to the above amendment to the state Constitution; and therefore that, as the land of Wheeler and Howes was to be taken to carry out a part of the project, to be paid for in part by the city, not necessary or germane to the work of grade crossing elimination, their property would be taken without due process of law. The substance of the defense seems to have been that the land was not taken solely for the purpose of abolishing grade crossings, but also for the purpose of laying two extra tracks, and making the road through the city of Bridgeport a four-track road instead of an

ordinary double track. It seems that the railroad company had laid a complete four track road all the way from New York to New Haven, except in that section which lay in the city of Bridgeport—a distance of more than 4 miles, and crossing at grade twenty-four streets, some of them the most frequented in the whole city. There is no doubt that the special act did authorize an increase in the number of tracks, and there was some reason for saying that in requiring [324]the city to pay one sixth of the expenses in curred for this purpose, it was making a donation in aid of the railroad company in violation of the twenty-fifth amendment to the state Constitution, and as Wheeler and Howes were property owners and taxpayers of the city, they were incidentally affected by this, and therefore their lands were illegally

taken.

ability of the defendants to obtain payment
of their damages does not depend upon the
right of the railroad company to collect a
part of it from the city. Before taking the
land the company must compensate the de-
fendants." It was further said that, ever
if the employment of appraisers had estab-
lished the liability of the city to pay a pro-
portion of the expense of laying the additional
tracks, such a defense was not open to the
defendants, because they had not alleged
that they were taxpayers or had any right
or authority to represent the city in such
proceedings, or that they will be injured in
any respect from the payment by the city of
its part of the expense of the work as fixed
by the agreement and order. "But," says
the court, "the appointment of appraisers in
this proceeding does not affect the question
of the liability of the city to pay that part
2. But, assuming that there was color for of the expense ordered by the commissioners.
the motion to dismiss, we are clearly of the The right of the railroad company to have
opinion that the decree of the supreme court appraisers appointed and to take this prop-
of errors should be affirmed. That court had erty does not depend upon the obligation of
already decided, not only that the legislature the city to pay a one-sixth part of the expense
might compel the removal of grade crossings of the whole, or of any portion of the work
and the payment of the expenses therefor, of this undertaking. The two purposes of
either by the railroad company or by the city, the act of 1895 were: First, the removal of
or by both (Woodruff v. Catlin, 54 Conn. all existing grade crossings in Bridgeport,
277, 6 Atl. 849, a case arising under a for- and the construction, in the most feasible
mer act), and that a statute compelling the manner, after considering the interest of the
removal of grade crossings, as well as im- public, the rights, responsibilities, and duties
posing upon the railroad the entire ex- of the railroad company and of the city, and
pense of the change of grade, was constitu- the rights of other parties concerned, of a
tional (New York & N. E. R. Co.'s Appeal, 58 four-track railroad through the city, in such
Conn. 532, 20 Atl. 670; New York & N. E. R. a way as to avoid crossing any highway at
Co. v. Bristol, 151 U. S. 556, 38 L. ed. 269, 14 grade; and, second, a just apportionment
Sup. Ct. Rep. 437); but the very act in ques-of the cost among those who ought to bear
tion in this case has also been held to be con-
stitutional. Mooney v. Clark, 69 Conn. 241,
37 Atl. 506, 1080. That court also held in
this case that, whether the land be taken only
for the purpose of abolishing grade crossings
or to straighten its line and construct addi-
tional tracks, the taking is in either case for
railroad purposes and for a public use. It
also held that the right of the railroad com-
pany to condemn defendants' property did
not depend upon the validity of any part of
the special act of 1895, since by the resolu-
tion of the board of directors of the company
in July, 1896, and by the approval of the
commissioners in June, 1897, both of which
were alleged in the application, the railroad
company was entitled under section 3461 of
the General Statutes to take the land for the
uses named in the resolution.

the expense of performing the work in the
manner determined. These two purposes are
so far distinct and separable, and are so in-
tended to be by the act, that neither the right
of the railroad company to perform the
work according to the plans approved by
commissioners, nor the power of the commis-
sioners to compel its performance, depends
upon a previous apportionment of the ex-
pense between the parties who should bear it.
Section 12, as we have already said, provides
that if no agreement shall have been made
as authorized by § 2, the commissioners,[326]
after the work shall have been completed,
shall apportion the entire expense among
the proper parties."

The court intimated no opinion as to
whether the agreement and order fixing the
proportionate part of the entire expense to
The plaintiffs in error contended before the be paid by the city was of doubtful validity.
supreme court of errors, as they contend here, It thought the question was one which could
that the agreement and order made in pur-not properly be raised in this proceeding.
suance thereof, imposing upon the city a pro- The court held in substance (1) that the
portion of the expense of constructing the right to have appraisers appointed did not
two additional elevated tracks, not necessary depend upon the obligation of the city to
to the work of eliminating grade crossings, pay a part of the expense, and that defend-
violated the state Constitution as well as the
Constitution of the United States. "But,"
[825]said the court, "if the railroad company *de-
sires to take this property as one step in car-
rying out the proposed plan, the defendants
cannot prevent it upon the ground that the
company may not afterwards be able to ob-
tain reimbursement from the city. The

ants could not prevent a condemnation by
showing that the company might not after-
wards be able to obtain reimbursement from
the city; and (2) that the defendants, not
alleging that they were taxpayers, or spe-
cially interested, were not in a position to
question the validity of the proceedings. If
this be so, it requires no argument to show

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