have undoubtedly power, under s. 108, to make by-laws respecting persons travelling in their own carriages. It would be most inconvenient if they had power to make regulations concerning passengers by carriages belonging to other persons, but no such a power with regard to passengers in their own carriages. The power to make by-laws is a general one with regard to persons travelling upon the railway, and s. 103 imposes a penalty for offences by persons travelling in carriages belonging to the company or other companies. As to the by-law itself, it imposes a penalty of forty shillings for travelling without having paid the proper fare, and also endeavors to create, by contract, a further liability, to be enforced in a civil court. Watson v. London & Brighton Ry. Co., 4 C. P. D., 118, has decided that this cannot be done, and that railway companies cannot create a civil liability to an arbitrary fare where there has been no agreement to pay it. But the by-law is divisible, and the part relating to the penalty may be taken by itself and upheld as reasonable. (Reg. v. Lundie, 31 L. J. (M. C.), 157; Reg. v. Saddlers' Company, 32 L. J. (Q. B.), 345, per Willes, J.) Even if the by-law cannot be divided, and it is held that the two penalties which it imposes are to be regarded as one penalty, it is not absolutely necessary that the penalty should be of an unvarying amount. (Brown v. Great Eastern Ry. Co., 2 Q. B. D., 406.) Lastly, conceding that the by-law is bad, the conviction may be supported as being for the offence described in 8 Vict., c. 20, s. 103. (Shackell v. West, 29 L. J. (M. C.), 45.) The reference to the by-law in the information is immaterial. The offence charged and proved is punishable under the statute.

Dodd, in reply. With regard to the last point, the conviction must follow the information, and the offence described in s. 103 is wholly different from that in the by-law. With regard to the divisibility of the by-law, it cannot possibly be varied unless the words "no intent to defraud" are taken to apply to the whole regulation. Even if it be read in this sense, the objection remains that it dispenses with the obligation to prove the intent to defraud, and imposes an unreasonable penalty.

LINDLEY, J.-I am of opinion that this conviction cannot be supported. The information upon which the appellant was convicted proceeded upon a by-law and not upon the Act of Parliament. The by-law is as follows: [The learned judge read the by-law.]. The first question raised was whether a railway company has any power to make by-laws applicable to persons travelling in their own trains. I think that the sections which give railway companies power to make regulations and by-laws are so worded as to justify them in making by-laws applicable to persons travelling by their own trains. Then comes the question as to the efficiency and validity of the by-law. Taking it in its natural

meaning, it appears to me to be divisible into two parts. The first appears to be that any person, travelling without the necessary permission in a carriage or train of a superior class, is subject to a penalty not exceeding 40s., and I cannot without straining the language add the words at the end "unless he shows he had no intention to defraud," to the preceding sentence, which imposes a separate, distinct, and additional liability. I take the meaning to be that a man who travels under such circumstances as are here stated is to be subjected to a penalty of 40s. simply for the offence, and further that, unless he shows that he had no intention to defraud, he is in addition to be liable to pay the fare as mentioned in the second part of the by-law. The consequence of this construction is that, if you take the by-law as one and indivisible, it is a bad by-law. The authorities which have been referred to show that. But I am disposed to think that it is divisible after the words 40s., that it is in effect two by-laws in one, each perfectly distinct and capable of standing or falling by itself, and we have to consider whether the part relating to the penalty is good or bad. For this purpose we must contrast this part of it with s. 103 of the Railway Clauses Consolidation Act. This section applies to a case like the present, and imposes a penalty of 40s., but under circumstances and under limitations and restrictions which are omitted from the by-law altogether. Sec. 103 is as follows: "If any person travel in any carriage of the company without having previously paid his fare (which must mean his fare according to the regulations of the railway company), and with intent to avoid payment thereof "-words which are the substance of the offence-then he is to be subject to a penalty of 40s. The railway company have enlarged these words in this very material particular, they have struck out the whole gist of the offence, i.e., the words "with intent to avoid payment thereof," and substituted no equivalent words. So that if a man travels without paying his fare, with or without any intention to defraud, he is to pay 408.

Then looking at the powers to make by-laws in ss. 108, 109, we have that expressed which I suppose would be implied, that the by-laws must be in conformity with the provisions of the general and the special act. So that the conclusion I come to is that this by-law as a whole is bad, that it is severable, but that the only part which is material to the present purpose is bad, being in direct contravention of s. 103. The cases of Dearden v. Townsend, Law Rep., 1 Q. B., 10, and Bentham v. Hoyle, 3 Q. B. D., 289, entirely support this view:

It has been contended that even if the conviction cannot be supported under the by-law, it can under s. 103 of the Railway Clauses Consolidation Act. But I cannot think so. The appellant has been proceeded against and convicted under a by-law which does not warrant the conviction, and not under s. 103, and

so far as I can see it is still open for the company to proceed against him under that section.

MATHEW, J.—I am of the same opinion for the reasons given by my Brother Lindley. There is no doubt that the company has the power to make by-laws, and did make this by-law. It is also clear that the directions contained in the statute as to by-laws which the company are entitled to make have not been observed. The bylaw appears to have been framed without reference to the statutory power conferred upon the company, for it seems to have been intended to secure to the company more than Parliament intended they should have. I think the company should be held to a strict observance of the law in this respect, and the principle that bylaws may be upheld because they are partly good is a dangerous one. They are regulations, the administration of which is entrusted to the officials of railway companies officials scattered over the whole country-and regulations likely to be enforced without much consideration for those against whom they are directed, whenever it is supposed that there has been an intention to defraud the company. I agree that a by-law may be divisible, and applying the principle to the present case, it appears to me to be fatal to the by-law, for I think the division is where my Brother Lindley has pointed out. The by-law is, in point of fact, two bylaws put together, each of which is bad, and each of which appears to be in contravention of the general law.

Judgment for the appellant.

ADDENDA.

BEING A STATEMENT OF POINTS DECIDED IN CASES NOT REPORTED.

The general solicitor of the plaintiff corporation, being an officer unknown to the articles of incorporation and the by-laws, has no authority to institute and prosecute suits without the sanction of the board of directors; and such sanction not appearing in this case, the suit was dismissed on motion. Des Moines, etc., R. R. Co., v. Chicago, etc., R. R. Co., U. S. C. C. Iowa, C. D., Jan. 21, 1881; 7 Fed. Reporter, 748.

Plaintiff went to defendant's depot in Philadelphia with nine trunks, to take passage with his family to Chicago. He applied to the baggage-master for checks for his baggage, but was informed that he must first procure tickets; while he was absent for that purpose, the baggage-master caused his baggage to be weighed, checked, and put into the baggage-car. Upon the return of plaintiff with his tickets, he was informed that, under the rules of the company, the tickets were not sufficient to transfer all his baggage; for the excess a charge was made which plaintiff refused to pay. He demanded his checks; these were refused unless the extra charge was paid. He then demanded his trunks, but the baggage-master refused to deliver them, for the reason that they were covered with other baggage and could not be reached before the time for starting the train. Plaintiff declined to go on the train; his baggage went through to Chicago, and the night after its arrival the depot was struck and set on fire by lightning, and it, with the baggage, except two trunks and some loose articles, was destroyed. The trial court found that there was no reasonable excuse for the refusal to restore the baggage to plaintiff. In an action for the conversion of the baggage, held, that the facts authorized a finding of a conversion at Philadelphia. McCormick v. P. C. R. R. Co. (49 N. Y., 303) distinguished.

It appeared that after plaintiff had determined not to take the train, he called upon defendant's president and requested him to cause the baggage to be taken off at Pittsburg, as he intended to stop there. The president gave the necessary directions, and the baggage-master telegraphed to Pittsburg; but the baggage was not stopped. The baggage-master also gave to plaintiff an order for the delivery of the baggage at Pittsburg without checks. During

the same day plaintiff requested the baggage-master at Philadelphia to countermand the order to stop the baggage, as he had concluded to go through to Chicago without stopping. Plaintiff took a train the same evening; on arriving at Pittsburg he presented the order, and was informed that the baggage had gone on. He expressed his gratification, and took an order from the baggage-master to the one at Chicago directing the delivery of the baggage without checks. Upon his arrival at Chicago he claimed and took possession of the baggage saved. Held (FOLGER, J., dissenting), that by the acts of plaintiff subsequent to the conversion, he resumed control of his baggage in the condition it was on board the train, and elected to hold defendant as carrier; that, as such, it was not liable for the loss, and for the original conversion was only liable in nominal damages. (Argued February 26, 1880; decided March 19, 1880.) McCormick, Respondent, v. Pennsylvania Central R. R. Co., Appellant, 80 New York Reports, 353.

Section 43 of the (Missouri) railroad law (Wag. Stat., 310), making railroad companies liable in double damages for stock killed by them in consequence of failure to erect and maintain fences, is not obnoxious to either the 5th or the 14th amendment to the Constitution of the United States, both of which prohibit the taking of property without due process of law. Neither is it in conflict with section 8, article 11, of the constitution of Missouri of 1875, which declares that the clear proceeds of all penalties and forfeitures shall belong to the public-school fund. Spealman v. Missouri Pacific R. R. Co., Appellant, 71 Missouri Reports, 434. (April Term, 1880.)

The word "town" as used in the constitution of this State denotes a civil division composed of contiguous territory; and under the power granted to county boards by the statute "to set off, organize, vacate, and change the boundaries of the towns in their respective counties" (R. S., sec. 670, subd. 1), such a board cannot make a valid order changing the boundaries of a town so that it shall consist of two separate and detached tracts of land. Chicago, etc., R. R. Co. v. Town of Oconto, 50 Wisconsin Reports, 189. (September 21, 1880.)

The act of Congress passed in June, 1870, providing, among other things, that "all railway companies desiring to use the said bridge shall have and be entitled to equal rights and privileges in the passage of the same, and in the use of the machinery and fixtures thereof, and of all the approaches thereto, under and upon such terms and conditions as shall be prescribed by the District Court of the United States," etc., does not confer upon such court jurisdiction over a controversy relating solely to the compensation which is due the corporation for the use of the bridge.

Where a corporation incorporated by the legislatures of Canada