plaintiff purchased from the government the quarter section on which such right of way was located, when it removed the timber which had grown on the roadbed, repaired it, and constructed its road. Held, that the question as to whether there had been an abandonment of such right of way by defendant before plaintiff purchased was for the jury.

Appeal from circuit court, Etowah county; John B. Tally, Judge.

Ejectment by J. C. Taylor against the Tennessee & Coosa Railroad Company. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals. Reversed and remanded.

W. H. Denson, for appellant. Amos E. Goodhue, for appellee.

MCCLELLAN, J. This is a statutory action by Taylor against the railroad company for the recovery of land. The complaint contains two counts. In the first count the land claimed is thus described: "A strip of land one hundred feet wide in southeast fractional quarter of section 32, township 10, range 5, in Etowah county, Ala., being 50 feet on either side from the center of the roadbed of the Tennessee & Coosa Railroad Company, as far as the said road passes through said fractional quarter section." The second count claims the whole of the quarter section. The cause was tried on issue joined on the plea of not guilty, the general issue,which admitted defendant's possession of the southeast fractional quarter of section 32, including, of course, the 100-foot strip specially claimed in the first count. Upon request in writing, the court gave the affirmative charge for the plaintiff, and the propriety of that action is the only matter presented for review.

Plaintiff made a prima facie case by introducing a certificate of purchase of the quarter section in question by himself from the United States on November 11, 1889, and rested. The defendant proved that, more than 20 years before suit brought, it had surveyed and located its line of railway across the land and on the strip described in the complaint, and that at that time a roadbed for its said road had been thereon construct-¦ ed by the building of necessary embankments and cuts, and the construction of culverts. It further appeared that after this was done, and before any rails or any cross-ties had been put on the roadbed, defendant desisted from the work, and did not return to it until after the purchase by the plaintiff, when the timber, which had meantime grown on the roadbed, was removed, the roadbed repaired, and upon it defendant's railway was constructed. The theory of defendant is that it acquired title to the 100-foot strip as a right of way by the location of its line and construction of its roadbed thereon prior to the saie to plaintiff, by force of section 2477 of the Revised Statutes of the United States, which declares that "the right of way for the construction of highways over public

lands, not reserved for public uses, is hereby granted." That a railroad is a "highway," within this section, would seem to have been the understanding of congress in the passage of the act of 1856 in aid of the construction of this and other railroads in Alabama, for while careful provision is made by that act for the acquisition of a right of way over reserved land embraced in the general terms of the grant, but specially excepted therefrom, no provision is therein made for rights of way over other public land; an omission which, in view of the fact that at that time there was no law, state or federal, other than this section, for the acquisition of rights of way over public lands, is most reasonably accounted for on the theory that congress supposed that section 2477 applied to railroad rights of way over all public lands “not reserved to public uses." And this is the construction put on the section in every instance of direct adjudication. Railway Co. v. Gordon, 41 Mich. 420, 2 N. W. 648; Verdier v. Railroad Co., 15 S. C. 476; Sams v. Railway Co., Id. 484. Indeed, there is nothing in the adjudged cases against this view, except the merest dictum in Railroad Co. v. Sture, 32 Minn. 95, 20 N. W. 229, a case arising under the act of March 3, 1875, (18 Stat. 482,) which superseded the application of section 2477 to railroads, and was in the nature of an amendment by implication to that effect, not, however, affecting rights acquired under the section in question prior to the amendatory enactment. We concur in the construction put on the statute by the Michigan and South Carolina courts, and hold that it operated to grant rights of way for the construction of railway highways over public lands at the time the defendant located its line and constructed its roadbed on the strip sued for.

Taking this view of the statute, it is notand could not be, reasonably-contended that what the defendant did towards the construction of a highway along this strip across said fractional quarter of section 32 was insufficient to localize the grant, and vest title to the strip, for the uses and purposes of a highway, in the defendant. That the location of defendant's road, and the construction of its roadbed on this strip, vested in the company, in other words, the rights of possession and user, is not denied, if, as we hold, the statute is applicable. It is insisted, however, that any right defendant may have had in the long past was abandoned by it. Whether this be true or not is not for us, and was not for the court below, to decide. The visible acts and omissions relied on to show abandonment were brought out in the evidence, as also the recent acts and conduct of the defendant in returning to the construction of its highway, repairing and rehabilitating its roadbed, building thereon the superstructure of ties and rails, and completing and operating the road. "Abandonment' includes both the intention to abandon, and the external act by which the intention

was carried into effect," and, "as intent is the essence of abandonment, the facts of each particular case are for the jury." 1 Amer. & Eng. Enc. Law, p. 1, notes and authorities; Wyman v. Hurlburt, 12 Ohio, 81, 40 Amer. Dec. 461, note, 464. On the view we take of this case, the only issue in it was upon this question of abandonment vel non, and the result of this issue depended upon the jury's finding as to the defendant's intent. The court, by giving the affirmative charge for the plaintiff, improperly took this inquiry from the jury. The instruction was erroneous, and must work a reversal of the judgment. The cause will be remanded. Reversed and remanded.

PENSACOLA & A. R. CO. v. HYER et al. (Supreme Court of Florida. Dec. 23, 1893.) NAVIGABLE WATERS- OBSTRUCTION BY BRIDGELIABILITIES OF BRIDGE Owner.

Where a railway company, having lawful authority so to do, crosses a public navigable stream or water course with its road, erecting in a proper manner the proper and necessary structures for such crossing, occupying therewith the space, and no more than the space, permitted to it, and so erects and uses such structures as that they shall not unnecessarily abridge or destroy the usefulness of such stream to the public as a navigable highway, using in a proper manner a movable drawbridge by which it crosses that part of such stream left open for the public navigation thereof, it is not liable for injuries resulting to vessels navigating such stream from coming in contact with obstructions in the open space or channel of water under such drawbridge when such obstructions are present without fault on such company's part. The open space left to be temporarily spanned from time to time by the railway's drawbridge is left not only to the free use, but to the control and care of the public, and the railway company is under no more obligation to keep it free of obstructions present without its agency than it is to care for any other part of the channel of such stream. (Syllabus by the Court.)

Appeal from circuit court, Escambia county; James F. McClellan, Judge.

Action by Hyer Bros. and others against the Pensacola & Atlantic Railroad Company to recover for injuries to plaintiffs' boat, alleged to have resulted from an obstruction to navigation by maintaining a defective drawbridge. There was judgment for plaintiffs, and defendant appeals. Reversed.

W. A. Blount, for appellant. John C. Avery, for appellees.

TAYLOR, J. The appellees, as owners of the steam tug E. E. Simpson, in an action in case in the circuit court of Escambia county recovered judgment against the appellant for the sum of $244.88, and from this judgment the defendant below appeals.

The only error assigned is the ruling of the court below upon the defendant's demurrer to the plaintiffs' declaration, whereby the sufficiency of the declaration to warrant a

recovery in law was questioned. The declaration is as follows: "Wm. K. Hyer and Albert Hyer, as partners under the firm name of Hyer Brothers, F. C. Brent, Isaac Rogers, and John J. Bowes, as owners of the steam tug named E. E. Simpson, the plaintiffs, by their attorney, John C. Avery, sue the Pensacola and Atlantic Railroad Company, a corporation, the defendant, for that, to wit, on the 6th day of March, 1888, to wit, in the county and state aforesaid, (Escambia county, Florida,) the said plaintiffs then and there being the owners of a certain steam tug named E. E. Simpson, which they used in the business of towing vessels and timber in the waters of Pensacola bay and the tributaries thereof, and the said defendant, being then and there engaged under the authority of law in the business of transporting freight and passengers for hire over the line of railroad extending from the county aforesaid across the county of Santa Rosa, from east to west, the said defendant was then and there engaged in the said business and accomplishing the said transportation between the said counties by means of a certain bridge across the waters of Escambia bay, a navigable stream, and an arm of the said bay of Pensacola; the said bridge being laid upon piles driven into the soil forming the basin of the said bay, and so near together as to totally obstruct the navigation of the said Escambia bay, except at a point about the middle thereof where the defendant had and maintained a drawbridge, through which all vessels and other craft navigating the said Escambia bay were compelled to and did pass in proceeding from points north of said bridge to the city of Pensacola. And the plaintiffs in fact aver that on the day and date aforesaid, in the county aforesaid, while their said boat was engaged in the navigation of the said bay, in the prosecution of her lawful business, she was compelled to and did pass through the said draw in the said bridge, which said draw it was the duty of the defendant to keep clear of obstructions, so as to enable the same to be safely navigated by all vessels which might have navigated the said waters had said bridge not been erected at all by the defendant. And the said plaintiffs in fact aver that their said boat could and would have safely navigated the said waters had the said bridge not been built as aforesaid, but the defendant permitted the * * space of the said draw through which said boat had to pass to become obstructed by snags, posts, logs, and other obstacles below the surface of the water, and invisible to persons in plaintiffs' said boat, in so much that when the plaintiffs' said boat undertook to pass through the same her propeller struck against the said obstructions, and was broken, so that the plaintiffs were compelled to procure a new wheel, paying therefor the sum of two hundred and forty-four 88-100 dollars, its rea

sonable value. Yet the defendant fails to pay the same, or any part thereof, to the plaintiffs' damage of one thousand dollars, and therefore they sue," etc. The ground of the demurrer to this declaration was "that it sets forth no breach of any obligation of the defendant towards the plaintiffs." It will be observed from this declaration that there is no allegation therein that the occupancy of the navigable water known as Escambia bay by the defendant railway company with its railway, piles, track, and bridge was in any wise unlawful or unauthorized; but, on the contrary, it expressly alleges that the defendant "was then and there engaged under the authority of law in the business of transporting freight and passengers for hire over the line of railroad extending from Escambia county across the county of Santa Rosa from east to west, accomplishing the said transportation between the said counties by means of a certain bridge across the waters of Escambia bay," etc.

The declaration admitting, as it does, that the defendant has the lawful authority to occupy the waters of this bay with its road, the company cannot be held in fault in having it there, unless it be that in the erection or use of its authorized structures it has in some unlawful manner destroyed or unnecessarily abridged or obstructed its usefulness to the public as a navigable highway. Our next inquiry, then, from the declaration is, does it charge upon the defendant any default in the manner in which it has exercised its authority to cross said bay, or in the structures or use of the structures erected by it to effect such crossing, or in the structural design, position, dimensions, or use of the drawbridge designed to subserve the double purpose of affording to the railway the means of crossing the stream, and at the same time serving to retain for such stream its usefulness as a highway? We find no complaint against the defendant in any of these respects. Therefore we conIclude that the defendant has not exercised and used its authority to occupy the stream in any unauthorized manner, but that what it has done has been lawfully done. What, then, is the defendant's default that has wrought the damage complained of? We find it in the allegation that "the defendant permitted the space of the said draw through which said boat had to pass to become obstructed by snags, posts, logs, and other obstacles below the surface of the water, and invisible to persons in plaintiffs' said boat, in so much that when the plaintiffs' said boat undertook to pass through the same her propeller struck against the said obstructions, and was broken," etc. It will be observed that in this, the gravamen of the complaint, there is no charge that the alleged obstructions were present in the waters under the

draw through any instrumentality of the defendant, or in consequence of any faultiness in its structures, but the charge is that the defendant "permitted" the space under the draw to "become obstructed," thereby implying that the obstructions were present there, not through the active instrumentality of the defendant, but through other agencies; and that the defendant was in default in not removing them, and impassively permitting them to remain there. In other words, as is contended here, it is assumed by the plaintiffs that it is the defendant's duty at all times to keep the water highway passing through and under its drawbridge free from all obstructions, no matter how they become present there. And the injury resulting to plaintiffs' boat from the defendant's neglect of this its alleged duty is the foundation for the suit. In this contention we cannot agree with the counsel for the ap pellees. The fact that the company, when authorized to construct its road across a navigable stream, is granted such authority upon the implied condition that it shall cross it in such manner that it shall retain its usefulness as a public highway without unnecessary abridgment, and that the invention of the movable drawbridge enables it to comply with this condition in its authority, necessarily carries with it the idea that the open space, simply spanned by its draw, is left, not for the company's use, nor under its care or control, but free and clear of any of its structures, as the public highway, for use by the public, subject to the same custody, control, and care as any other part of the stream spanned. The company, except to span it with their movable draw, temporarily for the passage of its trains, has no more authority or control over such open space than it has over any other part of such public stream not in contact with its works, and is not charged with the duty of keeping it free and clear of obstructions present without any instrumentality or fault on its part, and is under no more obligation to remove them from time to time than it is under to keep any other part of the stream free from similar obstructions. Its whole duty is performed when it properly occupies with its necessary and proper structures the space, and no more than the space, permitted to it, and so uses its structures that they shall not unnecessarily abridge or impede the rights of the public. The open space left to be simply spanned by its draw is left, not only to the free use, but to the control and care, of the public. From this conclusion it becomes apparent that the defendant's demurrer to the plaintiffs' declaration should have been sustained. Ward v. Railroad Co., (Tenn.) 3 Amer. & Eng. R. Cas. 506. The judgment appealed from is reversed, with directions to sustain the defendant's demurrer to the declaration.

STATE ex rel. LAMAR, Attorney General, v. DILLON et al.

(Supreme Court of Florida. Dec. 13, 1893.) CONSTITUTIONAL LAW-QUALIFICATION OF VOTERS -MUNICIPAL ELECTIONS-OFFICIAL BALLOT.

1. The right to vote is not an inherent or absolute right generally reserved in bills of rights, but its possession is dependent upon constitutional or statutory grant. Subject to the limitations contained in the federal constitution, such right is under the control of the sovereign power of the state; and where the constitution has conferred the right, and prescribed the qualifications of electors, the legislature cannot change or add to them in any way, but where the constitution does not confer the right to vote, or prescribe the qualifications of voters, it is competent for the legislature, as the representative of the lawmaking power of the state, to do so.

2. Section 1 of article 6 of the constitution of 1885, prescribing the qualifications of electors at all elections under it, does not apply to elections for municipal officers in this state, but such elections are subject to statutory regulation; and it is competent for the legislature to prescribe the qualifications of voters at the

same.

3. The provision in the third section of chapter 4301 of the Laws of 1893, (being "An act to fix the number and provide for the election of the municipal officers of the city of Jacksonville, a municipal corporation existing in Duval county, Florida, and to prescribe their terms of office, and regulate their compensation.") that those persons who, at the time of the holding of any city election, are residents of the city, and who, at the time of the general state election held next preceding, were qualified electors of any of the election districts within said city, shall constitute the qualified electors of said city authorized to vote at such city election, is not in conflict with the general provisions of the criminal law disqualifying persons convicted of certain crimes from voting at any election, and the two can, and must be, construed in harmony with each other.

4. The legislature, having the right to prescribe the qualifications of voters at municipal elections, may provide the means of ascertaining the persons who possess the qualifications prescribed; and although the action of a ministerial board in ascertaining the qualifications of those given the right to vote may not be given a conclusive effect on the voter's right to cast his ballot, yet an election held under a statute with a provision making the action of such a board, in this respect, conclusive, will not, on this account alone, be set aside, in the absence of any showing that voters were deprived by the action of such board of any rights conferred by the statute.

5. The provision in section 6 of article 6 of the constitution, that in all elections by the people the vote shall be by ballot, applies to municipal elections.

6. It is competent for the legislature to prescribe an official ballot, and prohibit the use of any other, and may also provide for printing the names of candidates regularly nominated by a convention or mass meeting, or who run as independents; but it cannot restrict the elector to voting for some one of the candidates whose names are printed upon the official ballot. The constitution guaranties to him the right to vote for whom he pleases.

7. The provisions in reference to voting, in the municipal act, supra, held to restrict the voter at municipal elections in the city of Jacksonville for municipal officers to vote for some one of the candidates whose names are printed upon the official ballot, and to this extent the act is unconstitutional.

8. Where unconstitutional provisions in a statute can be separated from the valid portions, and the legislative purpose expressed in so much as is good can be accomplished independently of the void part, and, considering the entire act, the good and the bad features are not so essentially and inseparably connected in substance, or so interdependent as that it cannot be said that the legislature would not have passed the one without enacting the other, it is the duty of the court to give effect to so much as is good.

9. In the application of the foregoing rule it was held that the rejection of the feature of the municipal act in question restricting the voter to some one of the candidates whose names were printed on the official ballot did not affect the valid portions of the act, and that an election authorized by it will not be set aside on an attack solely on the ground of the unconstitutionality of the act, and in the absence of affirmative showing that the result would have been different had the illegal portion not existed.

10. The provision in the third section of the act, supra, "that prior to the holding of the first city election as provided herein, there shall be given to each person who was entitled to qualify himself as an elector at the last state election by registration and the payment of his poll taxes for the years 1890 and 1891, and failed to do so, an opportunity to qualify by registering and himself paying his own poll taxes for such years," did not deprive the voter of his right to pay his said poll taxes through an authorized agent, and a payment made through such agent would be a valid payment. under the principle, "qui facit per alium facit per se."

11. The provisions of the act relating to pay. ing the poll taxes mentioned had reference to the poll taxes due under the general revenue law for the years 1890 and 1891; and if no poll taxes were due for said years, as required by that law, none were required, under the municipal act in question, as a prerequisite to the right to vote in the city election held in July, 1893.

12. The legislature has the power, under the constitution, to make the payment of a capitation tax, not exceeding one dollar a year, a prerequisite for voting; and there is no constitutional limitation against the right to require the payment in any one year of delinquent capitation taxes as a prerequisite to the right to vote, provided such taxes do not amount to more than one dollar for each year.

13. The reasonableness or justice of a deliberate act of the legislature, so long as it does not contravene some portion of the organic law, is a matter for legislative consideration, and not subject to judicial control.

14. The election commissioners named in the fifth section of the act, supra, to prepare for. hold, and declare the result of the municipal election held in July, 1893, are not officers within the meaning of section 27 of article 3 of the constitution of 1885, nor are they officers in any sense, but constitute a temporary board for the performance of certain duties in reference to the holding of an election, and their appointment or designation was not necessarily or essentially executive in its nature.

(Syllabus by the Court.)

Original information in quo warranto at the relation of William B. Lamar, attorney general, against Benjamin F. Dillon and others, to oust defendants from the offices of councilmen of the city of Jacksonville. Heard on demurrer to the information. Demurrer sustained.

The other facts fully appear in the following statement by MABRY, J.:

An information in the nature of a quo warranto was filed by the attorney general, on behalf of the people of the state of Florida, in this court on the 17th day of October, A. D. 1893, against the defendants, Benjamin F. Dillon and 12 others, alleging, in effect, that they, without right or legal warrant, have usurped, and still do usurp, the offices of councilmen of the city of Jacksonville. It is alleged in the information that Thomas W. Roby and 16 others named were duly appointed by the governor of the state of Florida to be councilmen for the various wards of said city, under and by virtue of the act of the legislature approved May 16, 1889, entitled "An act to amend an act entitled 'An act to establish the municipality of Jacksonville, provide for its government and prescribe its jurisdiction and powers,' approved May 31st, 1887," and that they qualified by taking the oath of office prescribed by law, were duly commissioned as such councilmen, and thereupon entered upon and performed the duties of said offices, and exercised the rights, benefits, and privileges thereof, until the same were usurped by the defendants.

Thomas W. Roby and the 16 persons named, it is alleged, constitute the city council of said city, and are still entitled to use, exercise, and enjoy the offices of councilmen of said city.

It is further related that the defendants, Dillon and the 12 others mentioned, for the space of 80 days last past and more, without legal warrant, grant, or right whatever, have used and exercised, and still do use and exercise, the offices of councilmen of said city, and that they have claimed, and still do claim, to be councilmen of said city, and to have the right to use and enjoy all the liberties, privileges, and franchises belonging and appertaining to said offices of city councilmen, but that said offices, liberties, and franchises, during the whole of said time, have been, and still are, usurped by them, against the people of the state of Florida.

The information proceeds with the allegations that the claims of the said defendants to the offices in question are based upon the pretense that they were elected to the same at an election for municipal officers pretended to be held in and for the said city of Jacksonville on the 18th day of July, 1893, by virtue of an act of the legislature of Florida approved May 16, 1893, being chapter 4301, Laws Fla. This election, and the act under which it was held, are alleged to be invalid, void, and in violation of the constitution of the state of Florida, in this: That at said election, by the terms of the act, a considerable number of the inhabitants and citizens of said city to whom the constitution guarantied the right of suffrage at the time of said election were denied the right to vote and participate therein, the excluded classes under said act being enumerat

ed under the following heads: First, all male persons, residents of said city at the time of said city election, possessing the constitutional qualifications of electors, but who, at the time of the general state election held next preceding said city election, were not qualified electors by reason, only, of not having attained the age of 21 years; second, all male persons, residents of said city at the time of said city election, possessing all the qualifications of electors, but who, at the time of the general state election held next preceding said city election, were not qualified electors by reason, only, of not having resided and had their domicile, home, and place of permanent abode in the state of Florida for one year at the time limited for registration for such election; third, all male persons, residents of said city at the time of said city election, possessing all the constitutional qualifications of electors, but who, at the time of the general state election held next preceding the said city election, were not qualified electors by reason, only, of not having resided and had their habitation, domicile, home, and place of permanent abode in the county of their then residence for six months at the time limited for registration for said election; fourth, all male persons, residents of said city at the time of said election, who at the time of the general state election held next preceding said city election, and at the time of said city election, possessed all the constitutional qualifications of electors, but were not electors of any of the election districts of said city at the time of said state election. It is further alleged that the act under which said election was held is unconstitutional, for the reason that by its terms only those persons were allowed to vote whose names appear on the registration lists after the same had been revised by the persons named in the act as election commissioners, without regard to registration in fact; and that, by the terms of said act, persons were allowed to vote at said city election who were qualified electors at the general state election held next prior thereto, but who had afterwards lost their domicile in the state and county of Duval, and had not regained the same in time to become an elector at the time of said city election, under the provisions of the constitution; and also that at said election. by the terms of said act, the qualified electors of said city of Jacksonville were not permitted to vote for whom they pleased, but were restricted in the right of suffrage to vote for such person or persons whose names were placed upon an "official ballot" by the election commissioners named in the act.

The foregoing are the grounds specially alleged in the information, impeaching the validity of the act of 1893, c. 4301, under which the election was held.

The defendants other than Walter F. Coachman moved to quash the writ of quo war