of these things, we think the plaintiff has failed to show negligence on the part of the railroad company; failed to show a cause of action against the railroad company; and therefore is not entitled to recover upon his present presentation of this case. In support of the propositions enunciated in this case, we would refer to the following cases: Atchison, T. & S. F. R. Co. v. Wagner, 33 Kan. S. C. 7 Pac. Rep. 204, and the numerous authorities there cited. See, also, Case v. Chicago, R. I. & P. R. R., 21 N. W. Rep. 30; S. C. 19 Amer. & Eng. R. Cas. 142; Disher v. New York Cent. & H. R. R. Co., 15 Amer. & Eng. R. Cas. 233.

The judgment of the court below will be reversed, and cause remanded for a new trial.

(All the justices concurring.)

(34 Kan. 302)

STATE V. BOARD OF COUNTY COM'RS OF HARPER Co.

Filed November 7, 1885.

COUNTY-LOCATION OF COUNTY-SEAT-ELECTIONS.

Where a county was organized in 1873, and the county-seat was permanently located by a vote of the electors of the county, and afterwards, in 1878, the county-seat was relocated at another place by another vote of the clectors of the county, and the organization of the county and the location and relocation of the county seat were ratified by the legislature, held, that no election could be held in the year 1884, under the statute of 1861, relating to the organization of new counties, and the amendments thereto, (Comp. Laws 1879, c. 24, pars. 1363, 1364,) although the organization of the county, and the prior elections to locate and relocate the county-seat, may not have been entirely regular.

Original proceedings in mandamus.

S. B. Bradford, Atty. Gen., Rossington & Smith, Finch & Finch, and I. P. Campbell, for plaintiff.

W. C. Webb, W. S. Cade, L. J. Webb, and Grove & Shepard, for defendants.

VALENTINE, J. On November 4, 1884, that being the day of the general election, a special election was held in Harper county, Kansas, for the relocation of the county-seat of that county, and whether such special election is valid or not is the only question presented to this court for consideration. It is admitted that such special election was not held under the acts of the legislature relating to the location and removal of county-seats. Comp. Laws 1879, c. 26; Sess. Laws 1881, c. 89. And it is further admitted that, unless it is valid under the act of 1861 relating to the organization of new counties, (Gen. St. 1868, c. 24,) as amended by the act of 1876, (Sess. Laws 1876, c. 63,) it is not valid at all, and was held without any authority whatever. It appears from the alternative writ, this being an action of mandamus, that Harper county was organized de facto on August 20, 1873. Of course a temporary county-seat was located by the governor at the time of the organization of the county, for such is the law, v.8P,no.7-27

(Gen. St. 1868, c. 24, § 1;) and afterwards, as alleged in the alternative writ, the county-seat of said county was permanently located, by a vote of the people of Harper county, at a place called Bluff City, in said county. It would seem that this should end the case; for if one election was held under the act of 1861 (Gen. St. 1868, c. 24, §§ 5, 6; Sess. Laws 1872, c. 106; Comp. Laws 1879, c. 24, pars. 1363, 1364) to permanently locate the county-seat, no second election for such a purpose could be held under any of the provisions of such act, including the amendments thereto. The election to permanently locate a county-seat under that act can only be had upon the organization of a new county. It is claimed, however, that the organization of Harper county in 1873 was fraudulent; but, even if it was, it was still a de facto organization, and the legislature of 1874 ratified and confirmed such organization. Sess. Laws 1874, c. 77, § 28; State v. Stevens, 21 Kan. 210.

It further appears that on November 5, 1878, that being the day of the general election, the people of Harper county again held an election for the location or relocation of their county-seat. Whether this election was held under the general statutes for the relocation of county-seats, or under the statutes relating to the organization of new counties, or under some other statute, is not shown. It is, however, alleged in the alternative writ that this election was only a "pretended and unlawful election." At this election, however, the town of Anthony received a majority of the votes cast, and was declared to be the county-seat. Afterwards, and on March 8, 1879, the legislature, by an act passed at that time, duly ratified, confirmed, and made valid the last-mentioned election, and made Anthony the county-seat for the time being. Sess. Laws 1879, c. 110.

We would think that this act is valid, for the legislature has the power, with the consent of a majority of the electors of a county, to change and relocate the county-seat. Const. art. 9, § 1. For the purposes of this case, however, we would think that it makes no difference whether the act is valid or not. If the county-seat had not been permanently located prior to the passage of that act, then we would think that the act would clearly be valid; but even if the countyseat had been so located, still we would think that the act would be valid. This act, in terms, made Anthony only temporarily the countyseat; but it was temporary only in the sense and upon the contingency that the electors of Harper county should, at the next general election to be held in 1879, relocate their county-seat at some other point. If, in the course of things, no election should be held as provided for in that act, then the county-seat would remain located at Anthony about as permanently as county-seats are usually located; for no county-seat is so permanently located that it cannot be removed by a majority of the electors of the county, if they choose to remove it, and do so in a legal and proper manner. An election was held for the relocation of the county-seat of Harper county at the time

prescribed by the act, but the election was so fraudulent that it resulted in nothing. State v. Stevens, 23 Kan. 456. And therefore, notwithstanding this election, the county-seat still remained at Anthony, and remained there as located by a vote of the electors of the county, and the aforesaid act of the legislature of 1879 ratifying such vote.

Under any view of the case that we may take, we think the election held on November 4, 1884, is a nullity; for, as before stated, that election was held upon the authority of sections 5 and 6 of the act of 1861, relating to the organization of new counties, and was not held upon the authority of any other act. Now, if the countyseat was located permanently at Bluff City by an election held under that act, then the force of that act was completely spent by such election, and no subsequent election could be held under the act. But, if the county-seat was not permanently located at Bluff City by any such election, then why was not the election held at the time of the general election in 1878, which located the county-seat at Anthony, a legal and valid election, and a legal and valid election under the act of 1861, relating to the organization of new counties? And why did not such election permanently locate the county-seat at Anthony? And if the election held in 1878 was legal and valid, then, of course, no second election could be held under the act of 1861, again permanently locating the county-seat of Harper county. But if such election was not legal and valid, then how can the election held in 1884 be legal or valid? Why should the election held in 1878 be void, and the election held in 1884 be valid ? Twice before the election held in 1884 the county-seat of Harper county had been located by a vote of the electors of Harper county, and both of such elections had been ratified by the legislature; and, after such elections and ratifications, certainly no valid election could be held under the act of 1861 relating to the organization of new counties. Besides, Harper county is not new; it has had an existence and a county-seat since 1873, and the county-seat has been at Anthony since 1878. Besides, the election held in 1884 not only ignored the statutes relating to the location and removal of county-seats, (Comp. Laws 1879, c. 26; Sess. Laws 1881, c. 89,) but it was held in violation of such statutes.

We have already sustained a motion to quash the alternative writ in this case, and as the parties acting for the plaintiff do not desire to take any further steps in the case, the action will be dismissed.

HORTON, C. J., concurring; JOHNSTON, J., having been of counsel. did not sit.

Filed November 7, 1885.

1. CRIMINAL LAW-PLEA IN ABATEMENT.

A plea in abatement is a dilatory plea, and must be pleaded with strict exactness; it must be certain to every intent.

2. SAME IRREGULARITY IN SELECTION OF GRAND JURY.

Under the provisions of section 79, Crim. Code, no plea in abatement taken to any grand jury duly charged and sworn, for any irregularity in their selection, will be sustained, unless it be one that implies corruption.

3. SAME-JURORS-CHALLENGE.

Where an indictment or information in separate counts states separate misdemeanors of a kindred character against the same person, the defendant is not entitled to four peremptory challenges upon each count or separate offense, but is entitled, upon the trial under the indictment or information, to four peremptory challenges, and no more. Section 198, Crim. Code.

4. SAME COMPELLING STATE TO ELECT UPON WHAT COUNT TO RELY FOR CONVICTION.

Where an indictment or information charges in separate counts separate public offenses, and they are all misdemeanors of a kindred character and against the same person, the defendant cannot, as a matter of right, require the state, before the trial, to elect upon what count or specific offense it will rely for conviction.

5. SAME

DIFFERENT OFFENSES THAN CHARGED IN INDICTMENT.

Where distinct transactions in cases of misdemeanors are joined in separate counts in one indictment against the same person, and followed by one trial for all, the defendant cannot prove by the county attorney, or any witness before the grand jury, that the offenses for which he is being tried were not the identical offenses which the grand jury had in contemplation when finding the indictment, as the grand jury are at liberty to find a bill upon their own knowledge.

6. SAME-SALE OF LIQUOR EVIDENCE.

In a case where the defendant is charged with unlawfully selling intoxicating liquors without a permit, in violation of the prohibitory liquor law of the state, and evidence is introduced making the question important, it is not error for the court to permit the witness to answer as to "who assumed to be the proprietor of and to control the premises described in the indictment." Even if the evidence offered be regarded rather as an opinion than a fact, it is of such a character of opinion as may be stated by a person who witnessed the conduct and conversation of the defendant at the time upon the premises.

7. SAME-SALE BY CLERK.

Where a person acts as clerk or agent of another in selling intoxicating liquors for him, with his knowledge and consent, in violation of law, the principal may be prosecuted and punished for such unlawful sales by his clerk or agent; and in such a case, where it is admitted that the principal has no permit to sell intoxicating liquors, it is not necessary for the state in the first instance, in order to convict the principal, to show that his clerk or agent had no permit, if the sales were made by the clerk or agent for the principal in the ordinary line of his duty.

8. SAME-INSTRUCTION.

The following instruction held not to violate section 215 of the Criminal Code, which provides that the neglect or refusal of the person on trial to testify shall not be considered by the court or jury before whom the trial takes

place, viz: "You are not authorized by law to arbitrarily reject, without cause or reason, the testimony of any witness, but it is your duty to carefully examine, and, so far as possible, harmonize, all the testimony in the case upon the basis of truth; but if you are unable to do all this, then you are authorized, and it is your duty, to reject such of it as you may think not entitled to credit, and in considering the testimony you should not draw any unfair inferences or unjust conclusions against the defendant because of any failure or omission on his part to offer any particular kind of evidence, but he should be tried alone upon the facts proved. You are to presume the existence of no fact unless it has been testified to; you are to found your verdict on the testimony delivered by the witnesses upon the witness stand, and are not to supplement it with some other fact that you may think exists, but which has not been proved."

9. SAME-CHALLENGING JURORS-SUMMONING OTHER JURORS.

Where a challenge to the array or panel of petit jurors is sustained, there need be no delay on the part of the court in summoning, under the provisions of the statute, a sufficient number of persons, properly qualified, to act as jurors in any case. Sections 23, 26, c. 54, Comp. Laws 1879; Trembly v. State, 20 Kan. 116.

Appeals from Osage county.

On April 21, 1884, an indictment was filed in the district court of Osage county against Charles Skinner, charging him in seven different counts with unlawfully selling intoxicating liquors in violation of chapter 128, Laws 1881, commonly known as the "Prohibitory Liquor Law." Afterwards Skinner was arrested, and at the proper time filed a plea in abatement which charged that the trustees of Osage county for the year 1884 did not select for jury service the names of persons on the assessment rolls of 1883, but willfully neglected, failed and refused so to do; that, instead, they substantially and palpably disregarded the law, and made their selection of names from a class of persons incompetent to serve; that the foreman and eight members. of the grand jury who found the indictments against him were of a class incompetent to be drawn or to serve. To this plea the state filed in writing its answer. Upon the trial the state objected to the introduction of any testimony under the plea in abatement, because it did not state facts sufficient to constitute a defense, or sufficient to abate the cause of action. The court sustained the objection, and refused to hear or consider any evidence of the defendant under said plea. Thereupon, before the trial, the defendant filed in writing his motion to require the state to elect as to what specific offenses it would rely upon, which motion was overruled. The defendant then (May 23, 1885) waived arraignment and pleaded not guilty. The jury returned a verdict of "not guilty" upon the first, sixth, and seventh counts of the indictment, and found the defendant guilty upon the second, third, fourth, and fifth counts. On May 23, 1885, the defendant filed his motion for a new trial, and on June 4, 1885, filed his motion in arrest of judgment, alleging therein that the grand jury that found the indictment had no legal authority to inquire into the offenses with which the defendant was charged, and that the facts stated in the indictment do not constitute any offense. These motions were overruled, and on said June 4, 1885, the court sentenced the defendant to pay a fine of $100 on the second count, $200 on the third count, $200 on the fourth