also that the company should operate its railway in connection with one in Missouri, so that cars should be run over both lines without change, making a through line on which cars shall be run at all reasonable hours and times, and further providing a maximum fare which should be charged for transportation over the company's line. From the record presented in this case it does not appear that any other duties or obligations were imposed upon the company by the ordinance granting the franchise, nor does it appear that they contained any express exemption from municipal regulation or control, nor from the liability of others doing business within the city.

The defendant urges that the granting of the franchise, and its acceptance by the company, constituted a contract within the protection of the federal constitution, which could not be impaired by any subsequent legislation of the city without the assent of the company; and he contends that no other or different conditions or burdens could be imposed than those mentioned in the ordinances, and therefore that the license tax could not be enforced against the company, or any of its agents. It may be conceded that the grant and its acceptance constituted a contract the obligation of which comes within the protection invoked; but the extent of the contract is not what is. claimed. It does not involve any conditions or exemptions beyond those which are clearly expressed or necessarily implied. It is well settled that grants of this class are not to be extended by construction beyond the plain terms in which they are conferred, but should be construed strictly against the corporation, or those claiming under the grant, and in favor of the public. It has been said, in respect to grants of special privileges, "that nothing is to be taken as conceded but what is given in unmistakable terms, or by an implication equally clear. The affirmative must be shown; silence is negative, and doubt is fatal to the claim." Fertilizing Co. v. Hyde Park, 97 U. S. 659. The application of this rule will overthrow the contention of the appellant.

As has been seen, the ordinance conferring the grant provided only for the manner of constructing, maintaining, and operating the road. Nothing in the letter or spirit of the ordinance indicates any intention on the part of the city to relinquish municipal regulation and control of the company, if, indeed, it can be done, nor to relieve it from taxation or the ordinary burdens to which other corporations and natural persons within the city are subject. The company must be held to have taken the franchise knowing that the business of operating the road must be conducted under such reasonable rules and regulations as the municipality might impose, and subject to its share of the burdens incident to the conduct of the municipal government. The requirements mentioned in the ordinance do not embrace, and are not in any sense inconsistent with, the one now made, and of which the appellant complains. Express authority is conferred upon cities of the second class to levy and collect a license tax upon the

business of operating a street railroad, (Laws 1881, c. 40, § 3,) and the validity of such legislation has been considered and sustained. City of Newton v. Atchison, 31 Kan. 151; S. C. 1 Pac. Rep. 288. We have examined the authorities cited by plaintiff in error, but in them we find nothing in conflict with the conclusion which we have reached.

There has been considerable discussion in regard to whether the imposition of the license tax is an exercise of the police power or of the power of taxation, but this is a matter of indifference in this case, as it is manifest from the contract made that it was not intended by the parties that either should be bargained away or surrendered. We conclude, then, that the conditions stated in the charter providing how and when the road shall be constructed, and the manner in which it shall be maintained and operated, will not exempt the company from reasonable regulation in other respects, or from bearing its share of the public burdens. San Jose v. San Jose & S. C. R. Co., 53 Cal. 475; Frankford, etc., R. Co. v. Philadelphia, 58 Pa. St. 119; Johnson v. Philadelphia, 60 Pa. St. 445; City of St. Louis v. Manufacturers' Savings Bank, 49 Mo. 574; City of St. Louis v. Missouri R. Co., 13 Mo. App. 524; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; S. C. 2 Sup. Ct. Rep. 257; Union Passenger Ry. Co. v. City of Philadelphia, 83 Pa. St. 429.

The appellant further contends that he cannot be held criminally responsible for the failure of the company to pay the license tax, claiming that the ordinance did not impose the duty of paying such tax upon any officer, servant, or employe of the company. This contention has no ground upon which to rest. A corporation can only act through its agents, and by the agreed facts it is shown that the appellant is the general manager of the company, and that he was actually engaged in running cars and operating a street railway at the time charged, when the license tax provided by the ordinance was unpaid. The ordinance makes it unlawful for any person or firm, as well as a corporation, to engage in any of the occupations or classes. of business mentioned without procuring a license and paying the tax; and provides, further, that whoever shall engage in such business in violation of such ordinance shall be convicted and punished. It is immaterial whether the appellant was acting for himself or for the company. He was engaged in the business of operating a street railway within the city while the tax was unpaid, and must therefore suffer the penalty.

The judgment of the district court will be affirmed. (All the justices concurring.)

(35 Kan. 58)

MISSOURI PAC. Ry. Co. v. JOHNSTON.
Filed March 5, 1886.

RAILROAD COMPANY-FENCES-KILLING CATTLE.

Where the owner of domestic animals, in a county where the herd law of 1872 was in force, kept the same confined on his own farm, in a pasture inclosed with a good and lawful fence, and the animals, without fault of the owner, escaped from the pasture, in the night-time, into a public highway, and wandered upon uninclosed lands through which a railway runs, adjoining the farm of their owner, and are run over and killed by an engine at a place on the railway where it is wholly unfenced, and their escape from the pasture was not and could not, by the use of ordinary care, have been discovered by the owner until after they were killed, held, that such animals cannot be said to be "allowed to run at large:" and further held, that the railway company, under the stock law of 1874, was liable for the value of the animals so killed.

Error from Neosho county.

This was an action brought by R. A. Johnston against the Missouri Pacific Railway Company on August 23, 1884, under the railway stock law of 1874, to recover damages for five three-year old steers belonging to the plaintiff, alleged to have been killed June 4, 1884, by the defendant in the operation of its railway. The cause was submitted to the court upon the following agreed statement of facts:

"The defendant is a corporation, duly organized and incorporated under the laws of the state of Missouri. On the fourth day of June, 1884, and long prior to said date, and ever since then, the defendant has been the owner of certain locomotive engines and cars, and has been engaged in operating a railroad through the county of Neosha, in the state of Kansas. On or about the fourth day of June, 1884, the plaintiff was the owner of five three-year old steers, of the value of two hundred and seventy-five dollars, and kept the same confined on his own farm, in a pasture inclosed with a good and lawful fence, in said county of Neosho. On the night of said fourth day of June, 1881, said steers, without fault of plaintiff, escaped from said pasture into a public highway, and wandered thence into and upon certain uninclosed lands in said county of Neosho, owned and possessed by one Alva Clark, through which runs defendant's railway, said lands of Alva Clark adjoining the farm of plaintiff, upon which was said pasture.

"Said steers entered upon said railway, in said county of Neosho, from said lands of Alva Clark, and were then and there in the night-time, and upon the same night they escaped from the pasture, run over and killed by the engines and cars of said defendant about two hundred yards from the pasture from which they escaped as aforesaid. The said railroad of defendant in said county of Neosho, at the time and place where said steers entered into the same and were killed, was wholly unfenced, and was not inclosed with any fence whatever to prevent said animals from being on said road. From the time of the escape of said steers from the pasture until they were killed there was no one in charge or pursuit thereof; and their escape from the pasture was not and could not by the use of ordinary care have been discovered by plaintiff until after they were killed. On the eighth day of November, 1872, the board of county commissioners of said county of Neosho, under and by virtue of the powers in them vested by an act entitled “An act providing for the regulation of the running at large of animals," approved February 24, 1872, did direct, by an order then duly made, that on and after the twentieth day of December, 1872, no steer or other animal in said order. named should be allowed to run at large within the bounds of said county of

Neosho, which order was entered upon the records of said board of commis. sioner on the said eight day of November, 1872, and was published for four successive weeks next after said entry was made in the Neosha County Journal, a newspaper then published in said county of Neosho, and has been in full force and effect in said county of Neosho at all times since said twentieth day of December, 1872. On the seventh day of June, 1884, and more than thirty days before the commencement of this action. the plaintiff made demand of H. H. Ludlie, who was then the duly-authorized and acting ticket agent and station agent of said defendant at South Mound, in said county of Neosho, for the value of said steers, but said defendant has ever since failed and refused to pay the same. Fifty dollars is a reasonable attorney's fee for the prosecution of this suit.

"It is hereby agreed that the above entitled action shall be submitted to the court upon the foregoing agreed statement of facts, the court to be at liberty to draw inferences of fact.

“HUTCHINGS & DENISON, Attys. for Plaintiff. "DAVID KELSO, Attorney for Defendant."

Judgment was rendered December 8, 1884, in favor of the plaintiff for $275, with interest from June 4, 1884, and the sum of $50 was allowed for attorney's fee, together with the costs, taxed at $10.95. The railway company excepted to the judgment, and brings the case here.

David Kelso, for plaintiff in error.

Hutchings & Denison, for defendant in error.

HORTON, C. J. In this case it appears from the agreed statement of facts that the plaintiff's cattle escaped from his pasture, and wandered from the public highway upon the uninclosed land of one Alva Clark, through which the defendant's railway runs. The railway was not fenced, and the cattle entered upon it, and were run over by a train. Their escape had not been discovered, and there was no one in pursuit. The herd law of 1872 was in force in the county. It is claimed on the part of the railway company, defendant below, that the plaintiff was bound, at all events, to restrain his cattle; that the killing of the cattle was the result of concurring wrongs, and as the law can neither apportion the damages nor attribute the result to defendant's default, disregarding that of plaintiff, no recovery can be had. Railway Co. v. Lea, 20 Kan. 353, and Shear. & R. Neg. § 39, are cited. In Railway Co. v. Lea, the owner permitted his cow to run at large, in violation of the herd law, and while so running at large the animal strayed upon the track of the railroad and was killed. In this case the owner of the animals kept them confined on his farm in a pasture inclosed with a good and lawful fence, and, without his fault, they escaped in the night-time from the pasture into a public highway, and wandered thence into uninclosed lands. upon the defendant's railway, which railway was wholly unfenced. Therefore the case of Railway Co. v. Lea is not controlling.

On the other hand, the agreed statement of facts brings the case within the following decisions of this court: Railway Co. v. Wiggins, 24 Kan. 588; Railway Co. v. Bradshaw, 33 Kan. 533; S. C. 6 Pac.

Rep. 917; Railway Co. v. Roads, 33 Kan. 640; S. C. 7 Pac. Rep.. 213. In Railway Co. v. Wiggins it was held that even in herd-law counties the rigorous doctrine of the common law does not prevail, and that an animal cannot be said "to be allowed to run at large" where the owner has taken reasonable precautions to confine the same. In Railway Co. v. Bradshaw it was held that, under the railway stock law of 1874, a railway company is required to inclose its road with a good and lawful fence as against all animals against which such a fence would be a protection; and it was further held in the case that where an unfenced railway passed through a farm, and a hog belonging to the owner of the farm escaped, without fault on the part of the owner, and strayed upon the railway within the limits of the farm, and was there killed by the railway company in the operation of its road, that the railroad company was liable. In Railway Co. v. Roads it was said that where hogs escape from a pen in which they are inclosed, by mere accident, no negligence can be properly attributed to the owner therefor; and it was further said that the mere fact that the animals were trespassing upon the land from which they went upon the unfenced railroad track, where they were killed, will not, where the plaintiff is without fault, defeat a recov ery. Upon these decisions the judgment of the district court must be affirmed.

(All the justices concurring.)

(35 Kan. 39)

SPALDING and others v. WATSON.

Filed March 5, 1886.

TAXATION-ASSESSMENT-Tax Deed.

A quarter section of land may be divided into 80-acre tracts, and assessed and taxed separately; and this may be done in some cases although the property may belong to one individual; and where a quarter section is so assessed and taxed, it will be presumed, in the absence of anything to the contrary, that the officers did their duty, and a tax deed founded upon such assessment and taxation will be held to be valid, where nothing else appears that would render it invalid.

Error from Wabaunsee county.

H. H. Harris and Foster & Hayward, for plaintiffs in error.

R. A. Friedrich and Irwin Taylor, for defendant in error. VALENTINE, J. This was an action in the nature of ejectment, brought by George W. Watson against James W. Spalding, F. H. Foster, and F. M. Hayward, to recover the N. W. of section 33, township 13, range 13, in Wabaunsee county, Kansas. The case was tried before the court, without a jury, and the court made certain special findings of fact and conclusions of law, and rendered judgment in favor of the plaintiff and against the defendants for the recovery of the land, and for costs, and to reverse this judgment the defendants, as plaintiffs in error, now bring the case to this court.

The plaintiff below claims title under the original patent issued by