the testimony had been introduced, and argument concluded before the jury. The court granted the motion generally, to which ruling plaintiff excepted. On a subsequent day of the term plaintiff moved the court to vacate the order granting a new trial, and that judgment be entered upon the verdict on plaintiff's offer then made to remit the sum of $12,000 and interest, and this motion was denied.

On the writ of error sued out by plaintiff, errors are assigned that (1) the court erred in refusing to give certain instructions asked by plaintiff; (2) the court erred in granting the motion for new trial; (3) the court erred in refusing plaintiff's motion to vacate the order granting a new trial, and to enter judgment on the verdict upon plaintiff's offer to remit certain damages; (4) the court erred in giving instructions asked by defendant.

When the case was before this court on motion to strike bills of exceptions and dismiss writ of error (Allen v. Lewis, 38 Fla. 115, 20 South. 821), it was held that the ordinary bill of exceptions did not so present any question in reference to the admission of evidence and giving instructions to the jury that the court could review assignments of error based upon them, but that the evidentiary bill was sufficient to present the question of the ruling of the court on the ground of the motion for a new trial that the verdict was contrary to or not supported by the evidence. The motion to dismiss was denied, without determining what would be the final result, on account of the inability of the court to examine all the assignments of error.

The trial court granted the motion for a new trial without assigning any ground or grounds upon which the ruling was based, and, if any one of them is sufficient to sus tain the order made, it must be affirmed.

In the case of Farrell v. Solary (decided at the January term of this court), 31 South. 283, it was said that: "A trial court should not grant a new trial on the ground that the verdict is not supported by the evidence, where there is material conflict in the evidence, unless the weight of the testimony so clearly preponderates against the verdict found as to require its annulment in order to meet the demands of justice. But trial courts, of necessity, are vested with a discretion in granting or withholding new trials. And where they grant one on the ground that the evidence does not sustain the verdict in a case in which the evidence is conflicting upon a material issue, an ap pellate court will not reverse such order unless it is affirmatively and clearly made to appear, from a clear and palpable preponderance of evidence in support of the verdict overturned, that the trial judge has abused the discretion with which he is vested in such cases, or that some settled principle of law has been violated." This was the deliberate view of this court after an examina

tion of the authorities in reference to the review of an order granting a new trial under section 1267, Rev. St., where there had been but one trial of the case; and that ruling is decisive of this case. It is manifest that on the material point in the case upon which plaintiff's right of recovery depends (that is, whether the sale of defendant's bank stock in the Bank of Key West to plaintiff was upon the condition and agreement that the former should remain president of said bank, and protect its credit until the latter could accomplish certain specified purposes) there was a pointed conflict of evidence; and, after a careful examination of all the testimony, we cannot consistently hold that the trial judge abused the discretion with which he is vested in such matters, in granting the new trial.

This conclusion necessarily results from a consideration of the ruling on the ground of the motion that the verdict is not sustained by the evidence, which is properly presented by the evidentiary bill of exceptions; but, if this was not the case, there are grounds of the motion for a new trial that are not open for consideration, under the ruling made on the motion to dismiss (Allen v. Lewis, supra), and without their consideration it is not perceived how we could adjudge the trial judge to be in error.

There are also assignments of error sought to be presented by plaintiff in error that we do not concede may be raised by him on writ of error from an order granting a motion for a new trial in favor of defendant below, but, as the decision is placed upon the ground stated, it is unnecessary to particularize them.

The judgment of the circuit court must therefore be affirmed, and it is so ordered.

FLORIDA CENT. & P. R. CO. v. BEAR. (Supreme Court of Florida. Sept. 17, 1901.) CONDEMNATION PROCEEDINGS-PAYMENT OF COMPENSATION-WRIT OF ERROR.

1. Proceedings for condemnation of property under the power of eminent domain are governed and controlled by the statutes authorizing them, and these statutes must be strictly construed and substantially complied with in all proceedings instituted thereunder.

2. Under section 1555, Rev. St., the petitioner in condemnation proceedings is required within 10 days after the rendition of judgment to pay into court for the use of the defendant the compensation ascertained by the jury, unless further time be allowed by the court, or else the proceedings, including the judgment, will be null and void, even though petitioner is thereby seeking to condemn property already in its possession; and, where default in such payment is made, a writ of error thereafter sued out from such judgment will be dismissed by the appellate court.

(Syllabus by the Court.)

Error to circuit court, Orange county; Minor S. Jones, Judge.

Action by the Florida Central & Peninsular Railroad Company against J. H. Bear.

From the judgment, plaintiff brings error. Dismissed.

Beggs & Palmer, for plaintiff in error. Alex. St. Clair-Abrams, for defendant in

error.

PER CURIAM. On June 1, 1897, plaintiff in error filed its petition in the circuit court of Orange county praying condemnation of certain land of defendant in error for the purpose of a trackway for its road, which it was then using and occupying as such. Viewers were appointed, and upon the filing of their report defendant in error filed his objection to the award and demand for a jury. Such further proceedings were had that in October, 1900, a trial by jury was had, and a verdict rendered, and, after the motion for a new trial filed by plaintiff in error was overruled, the court, on March 11, 1901, entered its judgment, which, after reciting the verdict of the jury, adjudged that the property described in the verdict he appropriated to petitioner upon petitioner's paying to the defendant in error or securing by deposit of money the compensation found by the jury, and adjudged a personal liability on the part of petitioner to defendant in error for said sum. From this judgment plaintiff in error on May 10, 1901, took this writ of error, assigning various rulings of the court as error, none of which question the propriety of the personal feature of the judgment.

It is made to appear that plaintiff in error has never paid into court for the use of defendant in error the compensation found by the jury and mentioned in the judgment, and that no further time to do so was ever allowed by the court.

Defendant in error now moves this court to strike the writ of error and transcript from the files, basing the motion upon the ground, among others, of the failure of plaintiff in error to pay into court the compensation found by the jury. The court is of opinion that the ground stated is not appropriate to the motion as made,-which is a motion to strike as stated,-but that the defects disclosed by the record are of such a character as to require us to dismiss the writ of error.

The proceedings in the court below were instituted and conducted under the provisions of sections 1514-1558, Rev. St., and by the terms of section 1559 the sections mentioned are expressly made applicable to cases where condemnation is sought by a petitioner who is using lands the title to which has not been acquired by it. By section 1551, when the trial is by jury (as in this case), the jury is impaneled to try what compensation shall be made to the defendants for the property sought to be appropriated, irrespective of any benefit from any improvement proposed by the petitioner. Section 1553 requires the verdict to state,-First, an accurate description of the property taken;

second, the compensation to be made therefor; third, the amount of such compensation to which each owner is entitled. Section 1554 provides that "the judgment shall recite the verdict in full, and shall be that the property therein described be appropriated to the petitioner for the uses alleged in the petition, upon the petitioner paying or securing by deposit of money the compensation found by the verdict of the jury." Section 1555 provides that: "The petitioner within ten days after the rendition of judgment shall pay into court for the use of the defendant the compensation ascertained by the viewers or by the jury, or else the proceedings shall be null and void unless further time be allowed by the court. Upon such payment, and upon the recording in the registry of deeds of the judgment with the clerk's certificate that the compensation has been paid into court, the petitioner shall have full and lawful authority to enter upon and appropriate the property for the uses aforesaid with the same effect as though the petitioner held the same by deed or grant from the defendant." Section 1556 provides that any party aggrieved by the final judgment of the court may have a writ of error as in common-law cases, but that such writ shall in no case operate as a supersedeas where petitioner has paid the amount of compensation into the court as aforesaid, so as to prevent petitioner's appropriation of the property pending the proceedings in error. It also provides that if, after writ of error is taken by any defendant, he shall take out of court the amount found to be due him, the writ of error shall be dismissed. Under the provisions of section 1555, quoted, the proceedings become null and void upon failure of petitioner to pay into court the compensation as therein required. This is the plain language of the statute, and we find no other language in the sections referred to causing us to doubt that it means what it says. This class proceedings is governed and controlled by the statutes authorizing them. Those statutes must be strictly construed and substantially complied with. Railroad Co. v. Hill, 9 Or. 377. There is nothing in our statute which deprives the petitioner of the right to abandon the proceedings at any time be fore it pays or secures the compensation of the landowner, and the statute expressly makes the failure to pay into court an abandonment of the proceedings, and declares them null and void. The compensation found not having been paid into court as required, the entire judgment, and the proceedings in which it was rendered, became inoperative, null, and void, and nothing was left to be reviewed by writ of error, and the writ of error thereafter taken therefrom must be dismissed. It will be observed that the judgment rendered purports to adjudge a personal liability in favor of defendant in error against plaintiff in error for the com

of

pensation ascertained by the jury. No objection to this feature of the judgment is presented by the assignment of errors. It is, to say the least, extremely doubtful if the statute authorizes such provision to be inserted in the judgment; but, whether it does or does not, the failure to pay into court the compensation ascertained by the jury renders the proceedings void, and this provision is, under the statute, invalid, as much so as any other part of the judgment, and therefore equally incapable of supporting the writ of error.

from the box at the previous jury drawing, and that in consequence there were not 300 names in the box when the jury was drawn. He alleged in the motion that he was entitled to be tried by a jury drawn from full 300 names of competent jurors placed in the general venire box, that the drawing of the jury from a box containing less than 300 names was a legal fraud upon his rights, and that the same had operated to his great injury. The trial of this motion was gone into, with the result that the same was overruled, and a bill of exceptions reserved.

(106 La.)

STATE v. LOVE. (No. 14,084.)

(Supreme Court of Louisiana. Jan. 20, 1902.) JURY-STRIKING NAMES FROM LIST-QUASHING ARRAY-PREJUDICIAL ERROR.

1. It may not be legally necessary, in the procès verbal of a jury drawing, to recite the uames of those stricken from the jury list because of previous jury service, or because of death, removal from the parish, exemption from jury duty, or disqualification as jurors, since their names were entered thereon, but it is the better and safer practice to do so.

2. Where, from the procès verbal, it seems to appear that the jury commission, in drawing a regular jury venire, failed to supplement the list and the ballots in the box with the names of other persons, competent as jurors, equal in number to those stricken from the list, and whose names were taken out of the box, thus leaving a depleted box from which they drew the jury, the array of which is challenged. a motion to quash will prevail.

3. The drawing of a jury from a box containing less than 300 names is one of those irregularities so gross, so at variance with the strict mandate of the law, that it amounts to a wrong per se on those affected by it, and is an injury so apparent, and, to those who have reason to complain of it and do complain of it, so great, that they need, in the way of showing injury, do nothing more than allege injury.

(Syllabus by the Court.)

Appeal from judicial district court, parish of East Carroll; F. H. Ransdell, Judge. John Love was convicted of robbery, and appeals. Reversed.

J. M. Kennedy, for appellant. Walter Guion, Atty. Gen., and David M. Evans, Jr., Dist. Atty. (Lewis Guion, of counsel), for the State.

BLANCHARD, J. The defendant was prosecuted, through bill of information, for the crime of robbery, convicted by verdict of a jury, and sentenced to hard labor for 10 years. He appeals. On the opening day of court he filed a motion to quash and set aside the venire of jurors drawn to serve at that term. The ground of this motion was that the jury commission, before commencing to draw the jury, did not supplement the names in the jury box and on the jury list with the same number of names of persons competent as jurors as had been drawn

31 So.-19

when the case of defendant came up for trial before a jury drawn from the venire which had been objected to, and the array of which had been challenged. The motion to quash, and the evidence adduced on the trial thereof, were made part of the bill.

Ruling: The jury commission recite in their procès verbal that they struck from the general venire list the names of all persons who had served as grand and petit jurors since the preceding drawing of the general venire, and also the names of those on the list who were known to have died, removed from the parish, become exempt from jury duty, or disqualified as jurors since their names were entered thereon. They do not give the names of those who were stricken from the list because of previous service, but they do give the names (eight in number) of those stricken from it because of having died, removed from the parish, or become exempt or disqualified since the last drawing. It was, perhaps, not legally necessary to recite the names of any of those stricken from the list, but we throw out the suggestion that it is the better and safer practice to do so. Continuing, the procès verbal recites that, the names having been stricken from the list, the slips or ballots containing the names as stricken off were removed from the general venire box. This, as far as it goes, is a sufficiently substantial compliance with the requirements of the jury act (Act No. 135 of 1898). But the commission seems to have failed to supplement the list, and the ballots in the box, with the names of other persons, competent as jurors, equal in number to those stricken from the list and taken out of the box,-thus leaving a depleted box, from which they drew the jury challenged. It is true, the procès verbal recites: "And we, the said commission, then and there, in the presence of said witnesses, supplemented the original list and the ballots in the box with the names of the same number of good and competent men from the qualified jurors of the parish as have been taken from the box and erased from the list, so as to keep the names of the general venire box and on the jury list at the number of three hundred-" Had they stopped there, their statement could be accepted as one of fact; but from what follows it is transformed from one of fact

to a mere conclusion of the commission, and an erroneous conclusion at that. Thus (continuing from where left off above) "which supplemental names so selected are as follows, to wit [then follow the names of eight persons], and which said names were written by said clerk on said jury list under the supervision of the said jury commission, in the presence of said witnesses, and each name was likewise written by said clerk on a separate slip of paper, together with the number of ward or place of residence of said person, and such slips deposited in the general venire box." The concluding part of this statement, purporting to give the names of those added to the list and placed in the box to make up for those taken off and out, modifies and controls the preceding part, and shows that only 8 names were added to the list and placed in the box. With only this number of new names added, it is ascertained from the evidence that the box from which the jury was drawn contained only 220 names, instead of 300, as the law directs. If there had really been returned to the list and the box the full complement of new names, equaling the number taken therefrom, and the error had been in the procès verbal not so stating, or in the obscurity of its statements, the state, on the trial of the motion to quash, could easily have shown the true facts, or caused the correction of the procès verbal to be made, or its obscurity explained and cleared up by evidence. But nothing of this kind was done, and the unavoidable conclusion is that, judged by the procès verbal, only 8 new names were added, instead of 88. To permit a jury commission to draw a regular jury for a term of court from less than the number prescribed by law is virtually to permit the commission itself to prescribe the number, and thus practically to nullify the legal requirement of 300 names. If a commission may legally draw a petit jury from 220 names in the box, why not with equal propriety draw one from 100 names, or any less number? To sanction this would be to invest the commission with power to select the petit jury, and thus do away altogether with the drawing by lot or chance. As well said by the learned counsel, who, appointed by the trial court to defend a penniless negro, has discharged the duty with consummate ability: "Such a power over the lives and liberty of their fellow citizens could hardly be lodged with safety in the hands of any body of citizens, however honest or upright they might be." The drawing of the jury in question from only 220 names in the box is one of those irregularities so gross-so at variance with the strict mandate of the law-that it amounts to a wrong per se on those affected by it, and is an injury so apparent, and, to those who, like the accused, have reason to complain of it, and do complain of it, so great, that they need, in the way of showing injury, do noth

ing more than allege injury. See State v. Rector, 35 La. Ann. 1098; State v. Harris, 34 La. Ann. 118; State v. Simmons, 43 La. Ann. 991, 10 South. 382; State v. Saintes, 46 La. Ann. 547, 15 South. 160; State v. Kellogg, 104 La. 585, 29 South. 285.

It is ordered, adjudged, and decreed that the verdict, sentence, and judgment appealed from be set aside, reversed, and annulled, and that this cause be remanded to the court a qua to be proceeded with according to law.

(106 La.)

BROWNE, Sheriff, v. SELSER et al. (No. 14,101.)1 (Supreme Court of Louisiana. Jan. 6, 1902.) LICENSE TAX-UNIFORMITY-CONSTITUTIONAL

LAW.

1. The license tax as imposed is uniform, as required by the articles of the constitution Nos. 225 and 229.

2. The lawmaking power is not restricted in dividing trades and professions into classes, and in assessing a license on the classes, respectively, provided the classification be equal and uniform on all persons in the same class.

3. Prior interpretation of the constitutional meaning is accepted as correct. State v. Liverpool, L. & G. Ins. Co., 4 So. 504, 40 La. Ann. 463; Id., 4 So. 504, 40 La. Ann. 466. (Syllabus by the Court.)

Appeal from First justice's court, parish of Iberville; G. Henri Crétin, Judge.

Action by A. A. Browne, sheriff, against J. C. Selser & Bros. Judgment for plaintiff, and defendants appeal. Affirmed.

Lozano & Hébert, Thomas H. Thorpe, and Gustave Lemle, for appellants. J. Hamilton Rills, for appellee.

BREAUX, J. Plaintiff, as tax collector, brought suit to recover a license tax, also penalties and costs, from the defendants. The statute plaintiff seeks to enforce provides that every retail dealer in pistols and cartridges shall pay a license tax of $25. Defendants' contention is that article 225 of the constitution ordains that taxation shall be equal and uniform, and that license taxes be graduated. They attack Act No. 83 of 1900, under which plaintiff made his claim against them for a license on the ground that it is repugnant to, and in conflict with, the articles of the constitution, because, they contend, the tax is not equal and uniform; besides, because, as relates to pistols and cartridges, it is not graduated. With reference to equality and uniformity, defendants have not shown in what respect they have cause to complain.

The statute attacked has nothing about it at all discriminating in favor of any other article of commerce. It is equal and uniform, and applies to all merchants who deal in pistols or pistol cartridges. We will not dwell upon the policy which has evidently moved the legislator to select the business

1 Rehearing denied February 3, 1902.

in pistols, and cartridges for pistols, as one which it was proper to tax. It was made to bear the burden of special license taxation for reasons deemed proper by the lawmaking power. It remains that other occupations and other articles are singled out, and it has never been held that the license as to these were unequal and unfair because, for special reasons, they were placed in a class to themselves.

The question whether the statute attacked comes up to the requirement of the constitution, as relates to the necessity of following a system of graduated licenses, presents the difficulty in deciding. We take it that the defendant directs his attack against the statute on the ground that section 2, Act No. 83 of 1900, is unconstitutional, because not graduated in accordance with the provisions of article 229 of the constitution. The question of equality and uniformity, independently from the question of "graduation," forms but a small part, if any, of the issues presented by the defendant or considered in the discussion.

It is not quite so clear that the legislator has "graduated" the license. Were the question one of first impression in this court, it may be that our conclusion would be different. Special statutes have heretofore been decreed legal although the license was not, in a close sense, graduated. In view of the broad meaning of the word “graduate," the interpretation has been heretofore quite liberal. Thus, in one of the cases decided, the court said: "The constitutional requirement relative to the graduating 11censes leaves it to the legislature to determine the method of graduation." State v. Traders' Bank, 41 La. Ann. 329, 6 So. 582. This court has said in another decision that, "unless defendant can point out some provision of the constitution requiring that the tax shall be graduated in exact proportion to the amount of the business done, it is of no avail, as an attack upon the constitutionality of the law." State v. Liverpool, L. & G. Ins. Co., 40 La. Ann. 466, 4 So. 504. The mode of graduating the license tax is not provided. State v. Chapman, 35 La. Ann. 76. In the case just cited, the statute attacked imposed a specific license of $50 if the traveling clerk represented one house, and $70 if he represented two or more houses. The court held that the license was legal; for it was, the court said, the only practicable mode, and was in compliance with the constitutional requirement. "Peddlers and transient dealers are commonly taxed a specific sum by the year, because they are likely to escape any other." Id. If transient dealers, representing one house, are taxable for a license without reference to the business of the house, a fortiori the retail dealer in the business of selling pistol cartridges and pistols can be taxed when the business is classed, as in this case with another class designated as

wholesale dealers in pistols and pistol cartridges. The question is in great part left to the legislative will. State v. O'Harra, 36 La. Ann. 95. The character of the business has been taken as a basis in fixing the amount of the license; in other cases, the extent of the business; and in other cases, the population of cities and towns in which the business in conducted. Id. The word "graduate," as used generally, has broad meaning. It embraces steps, degrees, grades, or intervals; that is, division into degrees, grades, or intervals. The division here is by classification into wholesale and retail merchants. The tax is graded or graduated by reference to wholesale or retail, and falls within the very broad requirement of the constitution, as heretofore interpreted. "The only restriction placed upon the power by the constitution is that the license tax, likened in this respect to a tax on property, shall be equal and uniform on all persons." Id.

We have seen that the license tax in this case is equal and uniform, and it falls within one of the degrees or grades of business designated as wholesale or retail. The term "graduate" is a term of extensive meaning. State v. Liverpool, L. & G. Ins. Co., 40 La. Ann. 463, 4 So. 504. "Who, then, is to determine what method of graduation shall be adopted? The constitution has expressly and distinctly confided this function to the general assembly. The general assembly has exercised it in the law before us." Id.. 40 La. Ann. 465, 4 So. 504. For these reasons, the judgment appealed from is affirmed.

BLANCHARD, J., concurs in the decree.

(106 La.)

STATE v. BURTON et al. (No. 14.190.) (Supreme Court of Louisiana. Jan. 20, 1902.)

CONSTITUTIONAL LAW-CRIMINAL APPEALSQUESTIONS OF FACT-THREAD OF RIVER. 1. The constitution of the state restricts the jurisdiction of this court in criminal appeals to questions of law alone.

2. Hence, in a criminal case where the judge tries the accused, equally as in a case where he is tried by a jury, a finding of facts is conclusive upon this court.

3. The description of a boundary may be a matter of construction for the court, and therefore a question of law, but the ascertainment of it with the view to its location is a question of fact. So, too, what is "the middle" of a river is a question of law; but once defining that "the middle" of a river is the half way point between its banks, or that the thread of the stream is its middle, it is a question of fact to determine whether an object in the river is on the one side or the other of "the middle" as thus defined.

4. Between nations or states the thread of a boundary river is the line of separation, without reference to the track of navigation.

5. "The thread" of a stream is the line midway between the banks at the ordinary stage of water, without regard to the channel or the lowest and deepest part of the stream.

(Syllabus by the Court.)