order an increase of such levies." Laws 1907, tion low, it devolves upon the Legislature c. 409, § 1. to determine where the limitation shall be If this act and that of 1908 are invalid, placed, and, if not obviously unreasonable, it would follow that the act of 1885, which their determination will be valid. In such the act of 1907 purported to repeal, would a case the limitation must be placed somebe in force and if still in force, would au- where, and it belongs to the Legislature to thorize a larger levy than the one actually decide what the necessities of the municipalmade under the law of 1907. But is the act ities are and to fix the line where the limiof 1907 invalid? Is the classification so ar- tation shall be placed. A limitation based bitrary, capricious, and unreasonable as to on a particular number or amount is artificonflict with the Constitution? It will be cial to some extent, but it has to be fixed, observed that the classification is founded on and the lawmakers are the ones to decide valuations, and these have long been recog- what classification is the most judicious and nized as a proper basis of classification in the most appropriate, and where the line of legislation providing for taxation and the division between the classes shall be fixed. expenses of municipal government. Under Such limitations are found in the Constituthe provisions the rates decrease as the val- tion itself, and, although in a sense arbitrary, uation ascends, but it is provided that, when it was deemed necessary and reasonable to the population exceeds 30,000, and the valua- make the particular limitations that were tion is less than $7,000,000, an increased made. For instance, it is ordained that a rate may be levied. It is insisted that this county shall be entitled to a representative feature of the law renders the act inopera- in the Legislature, in which 250 legal votes tive. A classification on the basis of popula- were cast at the next preceding general election and on valuations is frequently made, tion, and yet it may not readily appear why and is sustained where it is based upon sub- it was fixed at that number, rather than at stantial distinctions which are reasonably 10 more or less than the limit fixed. In progermane and pertinent to the subject-mat-viding a scheme of taxation the Constitution ter. Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781. If there is an essential difference between counties having a large population and a low valuation, and those counties where the population is more nearly in proportion with the valuation, then it may be said that there is a reasonable basis for the classification. It is not easy to find an absolutely just basis for taxation, but it is generally recognized that equality of taxation can only be attained by classification. Is there a substantial distinction for the classification that has been made for counties which have a great number of people and a small valuation of taxable property? It appears that Cowley county had a population of about 34,000, and that the assessed valuation of the property was less than $7,000,000. It is well known that the salaries of officers increase as the population of a county increases, and also that other expenses of government are augmented as the county be comes more populous. This condition then appears to afford a reasonable basis for a classification so that counties of that class may be able to meet the general expenses under the prescribed rates.

It is said that the fixing of the limitation of population at 30,000 and the valuation at $7,000,000 is arbitrary, and that there is little reason for a different rate in counties where the population is 30,000, instead of 29,000, or the valuation a little less than $7,000,000, instead of a little more. It may be that there is little difference where the population is a few more or less than the number fixed, or a little more or less in the valuation than that prescribed by the act; but, if there is a real basis for a distinction

requires that each family shall be entitled to an exemption on its personal property to at least the amount of $200. The wisdom of placing it at exactly $200 instead of $250 or $300 may not be readily apparent, but a limit had to be fixed, and the wisdom of fixing the limits was vested in the makers of the Constitution. In legislation where there is an essential difference and a real basis for the classification which is made, the mere fact that the line dividing the classes is placed at one point rather than another will not impair the validity of the classification. It is the function of the Legislature to adopt the classification, and within the limits of the Constitution, it may place the line of division between them at the point which it decides is most suitable and will bring the best results. The function of the court is not to decide whether the classification is the wisest or the best that could be made,. but only to inquire whether it rests on a substantial basis, and is germane to the purposes of the law. The court can go no farther than to decide whether the Legislature has kept within the limits of the Constitution.

In our view the classification herein appears to be germane to the subject-matter of the law and to be based on substantial distinctions. The law applies to all within. the classes established, and appears substantially to cover the entire ground of classification. In that respect it differs from the cited case of Board of Education v. Davis, 87 Kan. 286, 123 Pac. 885, which excluded a number of municipalities from the classes created, and made classes for which no rational theory or basis could be found.

tion at over $7,000,000 and under $8,000,000, and made no provision for cases where the valuation is exactly $7,000,000 or $8,000,000 is not substantial.

The judgment of the district court is affirmed. All the Justices concurring.

W. R. Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, for appellant. M. A. Gorrill and Henry H. Asher, both of Lawrence, for appellees.

WEST, J. November 4, 1913, the plaintiffs delivered to the defendant at Kansas City two carloads of cattle to be transported to Woodward, Okl., and paid the freight there

BROADHEAD et al. v. ATCHISON, T. & S. on. The shipment was permitted to stand on

F. RY. CO. (No. 19887.)

(Supreme Court of Kansas. Feb. 12, 1916.)

(Syllabus by the Court.)

1. EVIDENCE 448-PAROL-UNAMBIGUOUS

TELEGRAM-QUARANTINE.

the side tracks at Argentine about four hours after the cattle were loaded, and when reaching Waynoka, Okl., there was not sufficient time remaining to reach the point of destination without violating the federal 28hour act, and the cattle were unloaded in the In an action for damages to a shipment of yards there. It developed that these yards cattle caused by a delay in starting after they were loaded and by unloading in transit in yards had, by an officer of the Bureau of Animal which had been ordered quarantined by the Bu- Industry, been ordered quarantined, and the reau of Animal Industry, so that such cattle cattle were held therein until the 13th of had to be kept there several days and disinfect-November, and in the meantime were dised, evidence was offered for the purpose of showing that the following telegram: "A., T. & S. infected under the order of the Bureau of F. yards Waynoka infected scabies account El- Animal Industry, and as a result thereof wood cattle. Quarantine until disinfected. Bu- were damaged. To recover for this damage reau Supervision. [Signed] Allan"-required only the quarantining of certain portions of such the plaintiffs brought this action, alleging yards in which infected cattle had been recent- negligence in the delay at Argentine and in ly handled, which evidence was rejected. Held, unloading into infected yards at Waynoka; that such ruling was proper. that the defendant knew and was fully advised that these yards had been on the 5th day of November, 1913, quarantined by an inspector in charge of the Bureau of Animal Industry on account of being infected with scabies.

[Ed. Note. For other cases. see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. 448.]

2. CARRIERS 218 SHIPMENT OF LIVE STOCK

-NOTICE OF INJURY.

The shipping contract provided that written notice of a claim for damages should be given to some officer of the company or to the nearest station agent before the stock should be removed from the destination or place of delivery and before it had been slaughtered or intermingled with other stock. The cattle were kept at the quarantined yards seven days and there dipped by the servants of the defendant under the supervision of the Bureau of Animal Industry. No claim was made for damages caused after the shipment left the yards. Held, under such circumstances written notice was not required as to damages then apparent, but in order to recover for damages so caused, but thereafter developing, notice was required, unless waived.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. $$ 674-696, 927, 928, 933-949; Dec. Dig. 218.]

3. TRIAL 350 SHIPMEnt of CattlE-SPECIAL QUESTIONS-REFUSAL.

The allegations, proof, and instructions involved two grounds of damage, delay at Argentine and the treatment received at Waynoka. The defendant requested that the jury be required to state, if they found the defendant negligent, in what respect or respects they considered it negligent, which request was refused. Held error.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. 350.] West, J., dissenting.

Appeal from District Court, Douglas County.

Action by Ross B. Broadhead and another against the Atchison, Topeka & Santa Fé Railway Company. From judgment for plaintiffs, defendant appeals. Reversed and remanded.

[1] The cattle were unloaded at Waynoka at 12:50 p. m., November 6th. The yards at Waynoka comprise 42 pens, most of them 30 by 54 feet, 3 loading chutes, and 1 unloading platform. October 31st a shipment of cattle from Abernathy, Tex., was unloaded in the Waynoka yards through the north chute into pen No. 42 at the northeast corner of the yards. On November 3d some cattle from Kenna, N. M., were unloaded and placed in pens Nos. 5 and 6 on the west side of the yards and near the central portion thereof. These were reloaded through the south and center loading chutes. On November 5th the station agent received a telegram from Inspector Allan of the Bureau of Animal Industry at Ft. Worth, reading as follows:

"A., T. & S. F. yards Waynoka infected scabies account Elwood cattle. Quarantine until disinfected. Bureau Supervision. Allan."

"[Signed]

November 3d a notice was served upon the railway company, Kansas City, Mo., to"clean and disinfect car 52461 A., T. & S. F.; Until scabby cattle from Abernathy, Texas. chutes and pens through which these cattle were handled are cleaned and disinfected all cattle handled through them will be classed as cattle exposed to scabies. Walter A. Smith, Veterinary Inspector, B. A. I. Unloaded Waynoka, October 31, 1912."

From all of which it appears that when the plaintiff's cattle arrived at Waynoka on November 6th the defendant had notice that

ployés under the supervision of the Bureau of Animal Industry, and no claim is made for any damage except such as was caused by the delay at Argentine and the treatment at Waynoka. The clause of the contract under consideration, so far as applicable, reads as follows:

the Abernathy cattle were infected, and thated there until the 13th, during which time all cattle handled through the pens and they were dipped by the defendant's emchutes which they had passed through would, until cleaned and disinfected, be classed as cattle exposed to scabies, and had received the order of November 5th that the yards were infected on account of the Elwood cattle—that is, the cattle from Abernathy-and to quarantine until disinfected. The information that the shipment from Kenna, N. M., unloaded on November 3d, had been found to be infected, was received by the agent after the plaintiffs' cattle had been

unloaded.

*

"In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated, and the fact and nature of such the best evidence, it is agreed that as a condiclaim or loss preserved beyond dispute and by tion precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place loaded for any purpose on the company's road, or places where the same may be loaded or unthe shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or, if delivered to consignee at a point beyond the company's road, to the nearest station agent of the last carrier making such delivery, before such stock shall tion above mentioned, or from the place of dehave been removed from the place or destinalivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stock yards until the expiration of three hours after the giving of such notice."

The delay at Argentine, while of itself not necessarily of great significance, becomes an important element in the case, if it thereby became necessary to unload at Waynoka in order to keep from violating the 28-hour law. The question of negligence in unloading into infected yards must rest upon the knowledge possessed by the company at the time of such unloading. It is strenuously urged that only two small portions of the yards had been occupied by infected cattle, and that the order from Inspector Allan to quarantine the yards meant and made necessary the quarantine of only such portions thereof as were actually infected. No question is made about the duty of the railway company to obey the orders of the Bureau of Animal Industry, and the plain, unambiguous telegram was sufficient to require the defendant to refrain from unload-ranch, what might develop as the result of ing the plaintiff's cattle in any portion of the treatment while being disinfected at the such yards. Hence it was not error for Waynoka yards, still each had equal knowlthe trial court to reject evidence as to how edge and means of knowledge when the catsuch telegram was or should have been con

strued, neither was it error to speak of the yards in the charge as those that had been

infected with a disease common among cat

tle. The foreman of the stockyards testi

fied that the order was

"to quarantine the stockyards and close the yards for unloading purposes until yards had been disinfected and quarantine raised by B. A. I. inspector. During the time Broadhead shipment occupied my yards, the yards were subject to the supervision of the B. A. I. doctor. Dr. Warner supervised the disinfecting of the yards and spraying of the Broadhead cattle."

It is not the infection, but the dipping of the cattle, and the rough treatment incident thereto, that the plaintiffs complain of, and whatever distinctions are sought to be made between a quarantine of the yards and a quarantine of certain chutes and pens only, the cattle were by the defendant unloaded into yards, which it had been ordered to quarantine, and where they had to be disinfected, and were damaged thereby,

It is urged that written notice of plaintiffs' claim was not given as required by the eighth clause of the shipping contract, and that such notice should have been given after unloading at destination when the cattle were discovered at the owner's ranch. The testimony shows that the cattle were un

[2] While neither the shipper nor the carrier could tell when the cattle left Waynoka, or even when they reached the owner's

tle left Waynoka, so that a written notice

that the shippers would claim damages for injuries already apparent could not have been of any benefit or advantage to the defendant company. Under such circumstances

the rule is well settled that written notice

is not required. Railway Co. v. Frogley, 75 Kan. 440, 89 Pac. 903; Darling v. Railway Co., 76 Kan. 893, 901, 93 Pac. 612, 94 Pac. 202; Railway Co. v. Wright, 78 Kan. 94, 95 Pac. 1132; Cockrill v. Railway Co., 90 Kan. 650, 136 Pac. 322. But as to damages subsequently developing as the result of such dipping notice was required, unless waived, so that the carrier could be advised that a claim would be made for such damages, as well as for those already apparent. Giles v. Railway Co., 92 Kan. 322, 140 Pac. 875. The suggestion that the notice should have been deferred until the cattle were discovered at the ranch of the owner does not accord with the language of the clause in the shipping contract under consideration.

[3] The defendant requested the court to submit to the jury eight special questions. The four submitted were answered to the effect that the cattle were held in the yards under the orders of the Bureau of Animal Industry, and sprayed and disinfected under government supervision; that the yards at

The judgment is reversed, and the cause remanded for further proceedings in accordance herewith.

JOHNSTON, C. J., and BURCH, MASON, PORTER, MARSHALL, and DAWSON, JJ., concurring.

o'clock November 6, 1913, which quarantine 141 Pac. 999; Adams v. Railway Co., 93 Kan. took effect November 3, 1913. Questions 5 475, 481, 144 Pac. 999. and 6 were whether the defendant was notified on November 6th that portions of the yards held infected cattle, and, if so, when such notice was served. It is argued that it was desired by these two questions to show, if possible, that the notice that the Kenna shipment was infected was not received until after the plaintiffs' cattle were unloaded. While not very material, and while it is conceded that the evidence on this point is somewhat convincing in favor of the defendant, it would have been proper to submit these interrogations, although their refusal cannot be held to be materially prejudicial. Question 8 asked the jury to state in what manner the eighth clause of the shipping contract was complied with. This question was so utterly improper in form and substance that the court could not do otherwise than refuse its submission. Question 7 was: "If you find the defendant negligent, then state in what respect or respects you consider the defendant negligent."

The plaintiffs had alleged two acts of negligence, the delay at Argentine and the unloading at Waynoka, and the court had with considerable care instructed as to each, charging that:

WEST, J. (dissenting). In my judgment the instruction given by the trial court concerning notice was in accord with the declarations of this court in Railway v. Frogley, 75 Kan. 440, 443, 89 Pac. 903, Darling v. Railway Co., 76 Kan. 893, 901, 93 Pac. 612, 94 Pac. 202, Railway Co. v. Wright, 78 Kan. 94, 96, 95 Pac. 1132, and Cockrill v. Railway Co., 90 Kan. 653, 136 Pac. 322, and correctly stated the law.

ADAMS v. ROBERSON et al. (STATE, Intervener). (No. 19871.) (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) 1. PUBLIC LANDS 54 ISLAND SCHOOL LANDS-ADJUDICATION OF CLAIMS-Burden.

OF PROOF.

"They claim that these two items of negli-lating to the adjudication of claims to island The provision of the statute of 1913, regence form the basis of the damages they sus- school land, that a cause brought thereunder tained." shall stand for trial with the settler as plaintiff and the protestant as defendant, and shall be fully tried and determined as other civil cases, implies that the burden of proof rests upon the

* *

"Drawing your attention now to the first allegation of negligence, the delay at Argentine, if there was a delay. There is no evidence that the delay at Argentine injured these cattle in and of itself, but it becomes important in connection with another branch of this case. Now, if this delay in Argentine made it necessary for them to unload the cattle at Waynoka in order to comply with this rule, then it becomes important. In other words, if they had not delayed the shipment in Kansas City, might they have arrived at their destination within the 28 hours? So the delay in Kansas City becomes important in that regard; * and so, gentlemen, it becomes quite important for you to inquire, Did the delay in Kansas City make it necessary to unload the cattle at Way: noka? because, it being admitted that they did unload the stock into the Waynoka, yards, they were bound to furnish yards there reasonably

safe for the cattle."

* *

Having given these instructions, and the jury having been thus plainly charged concerning the two claims of negligence on which the plaintiffs relied, it was not only proper, but a matter of right, that question 7 should have been submitted. To this effect have been the decisions for more than a -generation. Central Branch U. P. R. Co. v. Hotham, 22 Kan. *41; Johnson v. Husband, 22 Kan. *277; City of Wyandotte v. Gibson, 25 Kan. *236; Foster v. Turner, 31 Kan. 58, 1 Pac. 145; W. & W. Rld. Co. v. Fechheimer, 36 Kan. 45, 12 Pac. 362, and cases cited; A., T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722; Barker v. Railway Co., 89 Kan. 573, 132 Pac. 156; Cole v. Railway Co., 92 Kan. 132, 139 Pac. 1177; Jones v. Interurban Railway Co., 92 Kan. 809, 813,

settler.

[Ed. Note.-For other cases, see Public Lands, Cent. Dig. 88 152-164, 166-169; Dec. Dig. 54.]

2. PUBLIC LANDS 54 ISLAND SCHOOL
LANDS-LANDS OPEN TO SETTLEMENT.
Under the statute as it existed prior to
1915, the only tracts lying within the original
banks of navigable rivers that were open to
settlement as school land were such as had at
one time constituted islands.

[Ed. Note.-For other cases, see Public Lands,
Cent. Dig. §§ 152-164, 166-169; Dec. Dig.
54.]

3. NAVIGABLE WATERS 44-ACCRETIONS-
ACQUISITION OF TITLE-RIPARIAN OWNER.
A riparian owner is not prevented from ac-
quiring title by accretion by the fact that the
addition to his land is influenced by artificial
causes, in which he has had no part.
Waters, Cent. Dig. §§ 266-278, 281, 282; Dec.
Dig. 44.]

[Ed. Note.-For other cases, see Navigable

determination against the settler, the judgment | that had constituted actual islands within may include an order for his ejection from the twenty years prior to 1913. Laws 1913, c. premises. 295, §§ 1, 9; Means v. Kennedy, 154 Pac. Moreover, the jury were specifically told that the title to the bed of the river was in the state.

[4] 4. The plaintiff does contend, howIt was clearly the purpose of the Legisla-ever, that there was no evidence to sustain ture, in designating the settler as the plain- a finding that the defendants had acquired tiff, to cast upon him, as the instigator of the title by accretion or reliction, for the reason proceedings, the burden of proving facts necthat it conclusively appeared from the eviessary to his recovery-among others, that dence of both parties that the immediate efthe land claimed was of such character as to fect of the fill and dam was to divert the be open to settlement. This was decided in channel of the river, so that what had preWinters v. Myers, 92 Kan. 414, 140 Pac. 1033. viously been the bed of the stream, adjoin[2] 2. The plaintiff criticizes the instruc- ing the tracts now owned by the defendants, tions as ignoring the fact that the state owns became at once tillable land, the ownership the bed of the river, and in this connection of which was in the state; its emergence becites the present act, making all abandoned ing due to the process of avulsion. It is true beds of navigable streams school lands, and that most of the evidence is consistent with providing for their sale whether they were that theory, and much of it has at least an ever islands or not. Laws 1915, c. 322. The apparent tendency to support it. A number case was tried in 1914, and as the law then of the witnesses say that the immediate ef