a

and not the mortgagee's contract rights, it was | Judge Cooley lays it down as a rule that not, therefore, unconstitutional. Before the party has no vested right in a defense based passage of this Act the power of a chancery upon an informality not affecting his substancourt to set aside a sale was much more lim- tial equities." Cooley, Const. Lim. 454. In ited. Chaffe v. Aaron, 62 Miss. 29. It is not New Orleans v. Clarke, 95 U. S. 644, 24 L. ed. unconstitutional for the Legislature to take 521, the court held: "It is competent for the away a right which is not vested, but contin- Legislature to impose upon a city the payment gent upon some event subsequent to the date of claims just in themselves, for which an of the statute. Before the occurrence trans- equivalent has been received, but which from pires upon which an inchoate right is to be- some irregularity or omission in the proceedings come vested and unalterable, a law may be creating them, cannot be enforced at law.' passed providing, in effect, that the happening This legislation was held not to be within the of such occurrence shall not make that right provision of the Constitution of Louisiana, incomplete. Thus, a joint tenancy may be con- hibiting the passage of a retroactive law. The verted into a tenacy in common, thereby de- Constitution of Louisiana contains a provision stroying the right of survivorship, and the similar, in effect, to that of our own. "The statute will apply to estates already vested at best general rule laid down touching the validthe time of its enactment. Burghardt v. Tur-ity of such statutes is given in 1 Kent, Com. ner, 12 Pick. 538; Bambaugh v. Bambaugh, 11 456, where it is stated that statutes which go to Serg. & R. 191. So an estate tail may be confirm existing rights, and in furtherance of changed into a fee-simple, and thereby destroy the remedy by curing defects, and adding to a remainder limited upon the fee-tail. De Mill the means of enforcing existing obligations, v. Lockwood, 3 Blatchf. 56. It has been often are clearly valid." See notes to Goshen v. held that the right of dower, before it becomes Stonington (Coun.) 10 Am. Dec., beginning consummated by the death of the husband, on page 131. "Any statute which changes or may be taken away or changed at the pleasure affects the remedy merely, and does not deof the Legislature. Lucas v. Sawyer, 17 Iowa, stroy or impair vested rights, is not unconstitu517; Noel v. Ewing, 9 Ind. 37; Hamilton v. tional, though it be retrospective, and although, Hirsch, 2 Wash. T. 223; Morrison v. Rice, 35 in changing or affecting the remedy, the rights Minn. 436; Henson v. Moore, 104 Ill. 403; Bar- of parties may be incidentally affected." Rich bour v. Barbour, 46 Me. 9; 7 Lawson, Rights, v. Flanders, 39 N. H. 304. The decision in Rem. & Pr. § 3867; 1 Sharswood & B. Lead. this case was made in construing a statute Cas. Real Prop. 300, and cases cited; 2 Hare, making competent as witnesses persons who Const. Law, 824, Cooley, Const. Lim. 6th ed. were not so before, and it was held applicable 440 et seq. In Wilbur v. Gilmore, 21 Pick. 250, to pending suits, the Act expressly so declarit was held that an Act allowing an action to ing. Sargent, J., who delivered the opinion, be brought by an executor for an injury in the quotes and adopts the following language of lifetime of his testator was not unconstitu- Daniel Webster in his argument in the case of tional, even when applied to a trespass com- Foster v. Essex Bank, 16 Mass. 245, 8 Am. Dec. mitted before this Act went into operation, 135: "A distinction must be made between inasmuch as it affected the remedy only. acts which affect existing rights, or impose "The presumption against a retrospective con- new obligations, and acts which give new struction has no application to enactments remedies for existing rights, and enforce the which affect only the procedure and practice performance of previous obligations." See of the courts, even where the alteration which also cases cited in Rich v. Flanders, supra. the statutes make has been disadvantageous to one of the parties. A law which merely alters the procedure may, with perfect propriety, be made applicable to past as well as fut ure transactions. No person has a vested right in any course of procedure, nor in the power of delaying justice, nor of deriving benefit from technical and formal matters of pleading. He has only the right of prosecution or defense in the manner prescribed, for the time being, by or for the court in which he sues; and if a statute alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort. It takes away no vested right, for the defaulter can have no vested right in a state of the law which left the injured party without, or with only a We have quoted copiously from the numdefective remedy.' Endlich, Interpretation erous authorities above cited, making little of Statutes, § 285, and cases cited. See also comment thereon, because they seem to be sections 286, 287. "No person can claim a strongly in point, and sustain the doctrine vested right in any particular mode of proced- sought to be established more forcibly than ure for the enforcement or defense of his would perhaps any language of our own. rights. A remedy may be provided for case of Wilder v. Lumpkin, 4 Ga. 208, cited by existing rights, and new remedies added to or counsel for the defendant in error, is not in substituted for those which exist." See Suth. conflict with our conclusions in the case at Stat. Const. § 482, and cases there cited.bar, either as to the applicability of the Act of

In California it was held that an Act requiring a purchaser of property sold for delinquent taxes to give notice of the expiration of the time of redemption was constitutional, and applied to sales previously made. Oullahan v. Sweeney, 79 Cal. 537. A statute altering the mode of proceeding in point of form, in a suit pending when the Act passed, so as to prevent a delay and hasten the time of trial, is not un constitutional. Such an Act will be construed liberally, and general words, not expressly prospective, will be applied to a pending proceeding. The rule that a statute should not be so construed as to affect vested rights does not apply to a statute which alters the form of the remedy merely." People v. Tibbets, 4 Cow. 384.

The

at bar, on the constitutional question, cannot be soundly rested on the fact that Lumpkin's rights were vested because fixed by a judg ment, we will only add that we do not feel constrained to adopt every assertion made in the splendid argument of our illustrious predecessor.

The Act of the Legislature of Tennessee, construed in the case of Chicago, St. L. & N. R. Co. v. Pounds, which case was relied on by counsel for the defendant in error, as will be seen by an examination of the same, not only affected the remedy, but gave a new, distinct, and additional cause of action, which, of course, could not constitutionally be done. 11 Lea, 127, 15 Am. & Eng. R. R. Čas. 510. The same criticism is applicable to the case of 08

1889 to pending actions, or to its constitution- if a distinction between that case and the one ality. That case was ruled mainly upon the ground that the Act of 1847. providing “it shall not be necessary to make securities on appeal and injunction bonds parties to writs of error, was not intended to apply to cases pending at the time of its passage. Judge Nisbet, says, in effect, that the Legislature did not contemplate that the Act should have retrospective operation, because, by its own terms, it is made to take effect from and after its passage. No such language appears in the Act of 1889. This great and learned judge then proceeds to discuss the question of the constitutionality of the Act of 1847 as to its applicability to pending cases, and concluded that, so applied, it would not be constitutional. It appears that the rights of Lumpkin, the defendant in error, had been fixed by a judg-borne v. Detroit, 32 Fed. Rep. 36. In the latter ment, and a subsequent statute affecting the manner in which that judgment might be set aside affected, not merely the remedy, but the right itself. Judge Nisbet lays great stress upon this idea, and, after referring to Lumpkin's rights under the judgment in his favor, remarks that "to give the law a retrospective operation would be to devest rights which had already vested in the defendant in error." We will not follow him further through the opinion delivered in this case. It evidences considerable research, great ability, and much learning, and has become celebrated. Of the correctness of the decision, in so far as it holds that the Act was not intended to be applicable to pending cases, there can be no doubt; and

case an Act limiting the amount of recovery to be had for injuries occasioned by a defective sidewalk was held not applicable to pending suits. So it appears in that case that not only was the plaintiff's remedy affected, but also the measure of his damages a substantial matter.

After a careful consideration of the questions involved in this case, and in view of the authorities cited, we affirm the ruling made by this court in the case Johnson v. Bradstreet Co., that the Act of 1889 is applicable to actions pending at the time of its passage; and we rule in the present case that this Act, when so applied, is not unconstitutional. ' Judgment reversed.

NORTH DAKOTA SUPREME COURT.

Arthur EDMUNDS et al., Appts.,

V.

Peter HERBRANDSON et al., Respts.

........N. Dak.........)

*1. Chapter 56 of the Laws of 1890, regulating the relocation of countyseats, is unconstitutional, as being repugnant to section 69 of article 2 of the State Constitution, prohibiting special legislation locating or changing county-seats, because it arbitrarily classifies counties, putting into one class all counties wherein at the date of the Act the court

house and jail were worth the sum of $35,000, and forever excluding from this class all counties coming within its description in the future, placing all such counties permanently in a separate

class.

2. The constitutional inhibition against special legislation does not prevent classification, but such classification must be natural, not arbitrary; it must stand upon some reason, having regard to the character of the legislation of which it is a feature.

3. It is not the form, but the effect, of a statute which determines its special character. 4. An Act relating to all the objects to *Head notes by CORLISS, Ch. J.

NOTE. For note on rendering statute constitutional by classification, see Re Washington St. (Pa.) 7 L. R. A. 193.

which it should relate, except one, is as much special legislation as if it had embraced only the object excluded.

5. It is purely a legislative question, subject to no review by the courts, whether in a given case a general or special law should be enacted under section 70 of article 2 of the State Constitution, which provides that "in all other cases where a general law can be made applicable no special law shall be enacted."

(December 5, 1891.)

APPEAL by plaintiffs from an order of the

District Court passed at Chambers in Cass County and entered in the office of the clerk of the District Court for Traill County in favor of defendants in a suit brought to enjoin the removal of the county records and the offices of the county officers of Traill County from Caledonia to Hillsboro. Reversed.

The facts sufficiently appear in the opinion. Messrs. A. B. Levisee and Ball & Smith, for appellants:

Unless the law clearly has a uniform operation it cannot be considered as a law of a general nature. The fact that there is a lack of uniform operation, the courts hold, makes the law special or local.

Scranton School Districts' App. 4 Cent. Rep.

For note on legislative discretion as to applicability of general statute, see State v. Terre Haute (Ind.) ante, 566.

311, 113 Pa. 176; State v. Covington, 29 Ohio St. 102-111; Kelley v. State, 6 Ohio St. 269274; Nichols v. Walter, 37 Minn. 264; State v. Somers Point, 6 L. R. A. 57, 52 N. J. L. 32; State v. Hudson County Bd. of Chosen Freeholders, 9 Cent. Rep. 501, 50 N. J. L. 82; McCarthy v. Com. 1 Cent. Rep. 111, 110 Pa. 243. The counties excepted, by reason of their having a court-house and jail exceeding in value the sum of $35,000, are only such counties as have buildings of that value now erected. Any number of counties not having, at the time of the passage and approval of the Act, a court-house and jail exceeding in value the sum of $35,000, might afterwards construct a court-house and jail exceeding that value, and still all of the provisions of the Act in question would apply to them, and under that Act the county seats in those counties might be removed. The exception of one county from the operation of an Act makes it local and special.

State v. Hudson County Bd. of Chosen Freeholders, supra; Davis v. Clark, 106 Pa. 384.

The question as to whether or not the classification is authorized by the Constitution is for the courts to determine.

Ayars' App. 122 Pa. 266.

The law could not have a uniform operation. It would result in a classification which is not based on any reason, and in counties in which precisely the same condition of affairs existed, being subject to different laws as to the re-location of county seats.

State Bd. of Freeholders of Somerset County v. Board of Chosen Freeholders of Hunterdon County, 52 N. J. L. 512.

Under the Constitution of New York state, it has been held by the court of appeals that an Act applying only to fifty-eight counties out of sixty counties in the State was general and not local or special legislation, and was constitutional.

People v. Newburgh & S. P. Road Co. 86 N. Y. 1.

The Act of 1890 is general in its form, operating upon classes of counties therein designated and stands with the general Act regulating the removal of county seats in pari materia, and must be so construed.

See Vermont L. & T. Co. v. Whithed (N. Dak.) July 14, 1891.

Messrs. Joslin & Ryan and Carmody & Leslie also for respondents.

Corliss, Ch. J., delivered the opinion of the court:

The plaintiffs, as taxpayers of Traill County, in this State, instituted this action against the members of the board of county commissioners and the other officers of that county to secure an injunction perpetually restraining them, their successors in office, clerks, deputies, agents, and servants, from removing, or attempting to remove, the books, papers, records, etc., belonging at the county-seat of such county, from such county-seat at Caledonia to the city of HillsMarmet v. State, 9 West. Rep. 449, 45 Ohio boro, in said county, and from locating or St. 63; Com. v. Patton, 88 Pa. 258; Morrison establishing, or attempting to locate or estabv. Bachert, 3 Cent. Rep. 117, 112 Pa. 322; State | lish, the respective offices of such county, or v. Mitchell, 31 Ohio St. 592. any of the same, at such city of Hillsboro, The basis of classification in the Act in ques-under and in pursuance of the votes cast_at tion is unreasonable and no necessity therefor exists.

Ayars' App. 2 L. R. A. 577, 122 Pa. 266; State v. Somers Point, 6 L. R. A. 57, 52 N. J. L. 32; State v. Sloan, 6 Cent. Rep. 346, 49 N. J. L.356; State v. Bloomfield (N. J. L.) Nov. 1885. See Clark v. Cape May, 50 N. J. L. 558; McCarthy v. Com. (Pa.) Oct. 5, 1885; Nichols v. Walter, 37 Minn. 264; State v. Hammer, 42 N. J. L. 439. If local results are or may be produced by a piece of legislation it offends against the constitutional prohibition of special legislation and is void.

Scranton School District's App. 4 Cent. Rep. 311, 113 Pa. 176.

Messrs. F. W. Ames and J. F. Selby, for respondents:

The Legislature may classify persons and subjects, for the purpose of legislation, and enact laws applicable specially to such classes, and while the laws thus enacted operate uniformly upon all members of the class, they are not vulnerable to the constitutional inhibition under consideration.

Vermont L. & T. Co. v. Whithed (N. Dak.) July 14, 1891.

a certain election held for that purpose under the provisions of chapter 56 of the Laws of 1890. It is undisputed that at this election all the requirements of this statute were fully complied with. In fact no question upon this appeal is presented, expect the single one of the constitutionality of this Act. By it a radical change in the manner of relocating county-seats was made. Before its enactment, section 565, Comp. Laws, gave the rule. It required a petition of two thirds of the qualified voters of the county as a condition precedent to the ordering and holding of an election, and two thirds of the votes actually cast at such election were essential to choice. The Act of 1890 requires a petition signed by only one third of the qualified voters of such county, as shown by the vote cast at the last preceding election for state officers holden in such county, to compel the ordering of an election to relocate the county-seat, and three fifths of the votes actually cast will transfer the countyseat to the place having such three fifths vote. The county-seat in Traill County before the election under this statute was located at Caledonia. The proceedings taken under the Act were regular, and the vote in favor of a relocation at Hillsboro was suffi

It is not fatal to the classification, that the individuals of the class were, are and ever will be the only ones composing that class. State v. Spaude (Minn.) July 28, 1887; Nich-cient to work a relocation of the county-seat ols v. Walter, 37 Minn. 264.

An Act applying the like rule to all counties under the like circumstances is general and not local.

at that place, if the law in question is valid. It is undisputed that the proceedings were not efficacious to transfer the county seat, under section 565, Comp. Laws; the petition,

with precision the true doctrine. But it is our opinion that every law is special which does not embrace every class of objects or persons within the reach of statutory law, with the single exception that the Legislature may exclude from the provisions of a statute such classes of objects or persons as are not similarly situated with those included therein, in respect to the nature of the

not being signed by two thirds of the quali- | ble, from the very nature of the case, to state fied voters, and the vote in favor of Hillsboro not being equal to two thirds of the votes cast. The sole inquiry in this appeal, therefore, is respecting the constitutionality of chapter 56 of the Laws of 1890. It is challenged as unconstitutional because of its alleged conflict with section 69 of article 2 of the State Constitution, which provides that "the Legislative Assembly shall not pass local or special laws in any of the follow-legislation. The classification must be nating enumerated cases, that is to say:

ural, not artificial. It must stand upon some reason, having regard to the character of the legislation.

sonable degree, at least, account for or justify the restriction of the legislation." The whole trend of the authorities is in this line. See Nichols v. Walter, 37 Minn. 264; Ayars' App. 2 L. R. A. 577, 122 Pa. 266; People v. Central Pac. R. Co. 83 Cal. 933; Re Washington St. 132 Pa. 257, 7 L. R. A. 193; State v. Boyd, 19 Nev. 43; Closson v. Trenton, 48 N. J. L. 438, 4 Cent. Rep. 83; State v. Hudson County Bd. of Chosen Freeholders, 50 N. J. L. 82, 9 Cent. Rep. 501; Lodi Twp. v. State, 51 N. J. L. 402, 6 L. R. A. 56; Utsy v. Hiott, 30 S. C. 360; State v. Somers' Point, 52 N. J. L. 32, 6 L. R. A. 57; Clark v. Cape May (N. J. Sup.) 14 Atl. Rep. 581; Vermont L. T. Co. v. Whithed (N. Dak.) 49 N. W. Rep. 318. This list might be greatly enlarged.

(3) Locating or changing county-seats." The provision of chapter 56 which it is claimed renders that Act obnoxious to this We find in the adjudications no more feconstitutional inhibition is the proviso which licitous statement of the true doctrine than reads as follows: "Provided, that nothing that of Chief Justice Beasley in State v. Hamin this Act shall permit the removal to or mer, 42 N. J. L. 439: But the true prinlocating of the county-seat of any county at ciple requires something more than a mere a place not located upon a line of railroad, designation by such characteristics as will nor wherein the court-house and jail now serve to classify; for the characteristics erected exceed in value the sum of $35,000.” which thus serve as a basis for classification It is undisputed that some of the counties of must be of such a nature as to mark the obthe State fall within the proviso, and that ject so designated as peculiarly requiring some of them fall without it, and within the exclusive legislation. There must be a subregulation of the Act. It is therefore appar-stantial distinction, having reference to the ent that by this proviso the Legislature has subject matter of the proposed legislation, classified counties for the purpose of deter- between the objects or places embraced in mining under what law a relocation of the such legislation and the objects or places excounty-seat can be obtained. The proviso cluded. The marks of distinction on which excepts from the provision of chapter 56, the classification is founded must be such, counties with respect to which the circum-in the nature of things, as will in some reastances are peculiar. These counties are either left under the provisions of section 565 of the Complied Laws, or there is no statutory rule regulating or permitting the relocation of county-seats therein. Which ever of these two views we take, these counties are placed in a separate class by themselves; and the question which naturally suggests itself is whether this particular classification can be sustained under the authorities and the spirit of the constitutional prohibiion against special legislation. This section of the Constitution must have a reasonable construction. To say that no classification can be made under such an article would make it one of the most pernicious provisions ever embodied in the fundamental law of a State. It would paralyze the legislative will. It would beget a worse evil than unlimited special legislation, the grouping together without homogeneity of the most incongruous objects under the scope of an all-embracing law. On the other hand, the classification may not be arbitrary. The Legislature cannot finally settle the boundaries to be drawn. Such a view of the organic law would bring upon this court the just reproach that it had suffered the Legislature to disregard a constitutional barrier by relegating to it the question where that barrier should be set up. See State v. Newark, 40 N. J. L. 71-80; Ayars' App. 2 L. R. A.577, 122 Pa. 266. Where shall the line properly be traced? We believe that in testing this question these inquiries should be made Would it be unjust to include the classes of objects or persons excluded? Would it be unnatural? Would such legislation be appropriate to them? Could it properly be made applicable? Is there any reasonable ground for excluding them? It is impossi

We are inclined to the view that under the authorities, had the Legislature not closed the door against accessions to the class of counties having a court-house and jail exceeding $35,000 in value, the classification would have been proper. But an arbitrary time is fixed after which no county coming within the same conditions which characterize the class can gain admittance to such class. "Provided, that nothing in this Act shall permit the removal to or relocation of the county-seat of any county... wherein the court-house and jail now erected exceed in value the sum of $35,000.” This classification is not based upon natural reason, but upon the arbitrary fiat of the Legislature. While it may be true that the countyseat ought not to be so easily relocated in a county wherein the loss to the tax-payer will be greater by reason of the erection at the existing county-seat of expensive buildings as in the county where such loss will be comparatively trifling in amount, it is not reasonable that the mere time when such expensive buildings are constructed should at all

66

enter into the consideration of the matter. | class is applied what we may call the maThis law was approved March 7, 1890. So jority rule, and to those in the other the far as the value of improvements is con- three-fifths rule. Had the Act specified by cerned, it excepts only those counties wherein name those counties in which one rule should the court-house and jail now erected exceed apply, and those in which the other should in value the sum of $35,000. If the word apply, it would hardly be questioned that "now" refers to the date of approval of the the legislation was special and not general Act, all counties having a court-house and and uniform, in its operation throughout the jail exceeding $35,000 in value on the 8th State. But the counties were, at the date of of March of that year, but not on the 7th; the Act, identified, and their status fixed for or if the word "now" refers to the date when all time, by reference to the specified event. the Act took effect i. e., July 1st, all counties as fully as though the counties were named. in which the court-house and jail worth There is nothing in the event which is the more than $35,000 should be completely basis of classification which suggests any erected on July 2d instead of July 1st, necessity or propriety for a different rule to would nevertheless be subject to the provis- be applied to the counties to be placed in the ions of the new law, although the natural two classes. Why one county which had reason can suggest no justification of such a located its county-seat by a vote of its electdistinction. If the danger of serious loss to ors, twenty-five years or six months before the tax-payer by the removal of a county- the Act passed, should require a vote of seat from a place at which expensive build-three fifths of its electors to remove it, and ings have been constructed affords reason for the county which should so locate it three placing counties in which such a condition or six months after the Act passed, may again exists in a separate class, to be governed by remove or locate it upon a mere majority more stringent legislation in this respect, vote is impossible to conceive, except that there is no reason why a county in which for the Legislature has arbitrarily so provided. the first time such a condition exists on a But in such matters the Legislature cannot later day should be excluded from this sepa- arbitrarily so provide. The Act is unconrate class, any more than a county in which stitutional and void." In Marmet v. State, this condition existed the day before. There 45 Ohio St. 63, 9 West. Rep. 449, the same is no natural reason for a classification of doctrine is clearly stated and recognized : counties in which the same conditions exist "The law is not a special Act. It is local based solely on and arbitrarily upon the and special as to the ends to be accomplished, period of time before or after which such but general in its terms and operations, apconditions existed for the first time. Such a plying to all cities of the first grade of the doctrine would lead inevitably to unlimited first class. It is not limited to such cities special legislation under the mere guise of as may have been in that class and grade at classification. It would nullify the Consti- the date of its enactment. At that time tution so far as it prohibited special legis- Cincinnati was the only city in the State lation. The authorities are unanimous on answering to the description, but there is a the point. In Com. v. Patton, 88 Pa. 258, possibility, not to say certainty, that other the court says: "Said Act makes no provis-cities in the State will increase in population ion for the future, in which respect it differs from the Act of 1874, which in express terms provides for the future cities and the expanding growth of those now in existence. That is not classification which merely designates one county in the Commonwealth, and contains no provision by which any other county may, by reason of its increase of population in the future come within the class.' In State v. Donovan, 20 Nev. 75, the court says: "All Acts or parts of Acts attempting to create a classification of counties or cities by a voting population which are | confined in their operation to the existing state of facts at the time of their passage, or to any fixed date prior thereto, or which by any device or subterfuge exclude the other counties or cities from ever coming within their provisions, or based upon any classification which in relation to the subject embraced in the Act is purely illusory, or founded upon unreasonable, odious, or absurd distinctions, have always been held unconstitutional and void."

so that they will pass into this grade, and when that happens they will come within the provisions of this law. In this respect the law differs essentially from that in review in the case of State v. Mitchell, 31 Ohio St. 592. That law was made applicable only to cities of the second class having a population of 31,000 at the last federal census, and inasmuch as Columbus was the only city in the State having that population, and as the Act could apply only to that city and never to any other, and as it undertook to confer corporate powers, this court held it to be in conflict with section 1 of article 13, and therefore void. A like objection was found to exist against the Act under consideration in the case of State v. Pugh, 43 Ohio St. 98, 1 West. Rep. 36, and the distinction above indicated is made apparent with great clearness and force in the opinion rendered by the present chief justice." Without further quo tation from opinions, we cite, as sustaining the same view, the following cases: State v. Boyd, 19 Nev. 43; Woodard v. Brien, 14 Lea, Nichols v. Walter, 37 Minn. 264, is pe-520; Morrison v. Bachert, 112 Pa. 322, 3 Cent. culiarly in point. The court said: "Recurring, to the law in question we find it divides the counties in two classes, the classification based upon an event in the past so that no county in one class can ever pass into the other class; and to those in one | Hammer, 42 N. J. L. 440.

Rep. 117; State v. Covington, 29 Ohio St. 102; Devine v. Cook County Comrs. 84 Ill. 592; State v. Herrmann, 75 Mo. 340; State v. Mitchell, 31 Ohio St. 607; State v. Hunter, 38 Kan. 578; State Gaddis, 44 N. J. L. 365; State v.