3. A provision in the contract authorizing the board of public works to suspend or relet the construction of the sewer if the work should be improperly or imperfectly performed, does not authorize it to arbitrarily shorten the sewer 176 feet, against the contractor's protest.

4. A waiver of the terms of the contract will not be presumed from the mere fact that the contractor continued the work after the unauthorized action of the board shortening the sewer.

Appeal from superior court, Milwaukee county; GEORGE H. NOYES, Judge.

Action by James Markey against the city of Milwaukee for breach of a contract providing for the construction of a sewer. The contract contained the following provisions: "And it is hereby mutually agreed between the said parties hereto that the said board of public works shall have the right and power, and the same is hereby reserved to said board, to adjust and determine, finally, all questions-First, as to the proper performance of these presents, and the doing of the said work, by the said party of the first part, and, in case of the improper or imperfect performance thereof, to suspend the said work at any time, or to order the entire reconstruction of the same, if improperly done, or to relet the same to some other competent party, and, in case the said work shall not be prosecuted with such diligence, and with such number of men, as to insure its completion within the time limited by these presents, to suspend the said work, and relet the same to some other competent party, or employ men and secure material for the completion of the same, and charge the cost thereof to the party of the first part; and, secondly, as to the amount earned under these presents by the party of the first part, according to the true intent and meaning thereof. And it is further mutually agreed that any and every such adjustment and determination by the said board of public

works shall be final and conclusive between the said parties to these presents, and binding upon them, and that if, upon any such adjustment or determination by the said board of public works, the damages to be paid to the said city according thereto should exceed the amount due from the said city to the said party of the first part according thereto, then and in that case the said parties of the second part, for themselves, their heirs, executors, and administrators, hereby jointly and severally covenant and agree to pay the same to the said city of Milwaukee on demand." From a judgment overruling its demurrer to plaintiff's complaint, the city appeals. Eugene S. Elliott, City Atty., for appellant. Somers, Somers & Dorr, for respondent.

TAYLOR, J. The respondent brought an action against the city of Milwaukee to recover damages for a breach of contract on the part of the city for doing certain work for said city. The complaint, after alleging the corporate capacity of the ap

the 26th day of May, 1886, the said plaintiff duly entered into a contract with the defendant, in and by which he agreed to furnish all the material, and do all the work, necessary and required in and about the construction and completion of a section of sewer in Cherry street, from the sewer in Washington avenue to the sewer in Twenty-First street, in said city, according to plans and specifications for doing the same on file in the office of the board of public works of said city, and for the price of $3.68 per lineal foot, as mentioned in said contract, a copy of which said contract and specifications, marked 'Exhibit A,' are hereto annexed, referred to herein, and made part and parcel of this complaint; that on or about the first day of June, 1886, said plaintiff entered upon the performance of said work, and was ready and willing to perform said work, and furnish all materials necessary and required therefor, according to his said contract, and the said plans and specifications for doing the same; that on or about the 15th day of --, -, 1886, the said defendant city, by its duly-constituted officers, caused the plans and specifications for doing said work to be modified and changed, whereby the lateral sewers contracted to be constructed by plaintiff were shortened to the extent of one hundred and seventysix feet, against the will and protest of the plaintiff; that plaintiff continued with the performance of said contract, and completed the same in accordance with the plans and specifications, with the exception of the one hundred and seventy-six feet of lateral sewer aforesaid, which he was prevented from constructing and completing by the said defendant city, as aforesaid; that the profits to the plaintiff which he would derive from the construction of said one hundred and seventy-six feet of lateral sewer, contracted by him to be constructed, would be five hundred and twenty-eight dollars; that plaintiff was ready and willing at all times to construct and complete said lateral sewers according to the original plans and specifications, and would have done so but for being prevented by said defendant city; that by reason of the premises plaintiff has suffered damages in the sum of five hundred and twenty-eight dollars. Wherefore plaintiff demands judgment against the defend

ant for the sum of five hundred and twen

ty-eight dollars, besides the costs of this action." To this complaint the city, by its attorney, demurred, alleging as a ground

of demurrer that it does not state facts sufficient to constitute a cause of action. The superior court of Milwaukee county overruled the demurrer, and from the order overruling such demurrer the city ap. pealed to this court.

The learned counsel for the city claims that the demurrer should have been sustained (1) because it is not alleged in the complaint that the work was done to the satisfaction of the board of public works. There would be great force in this objection to the complaint had the action been an action to recover for work done under the contract. But it is evident that the action is not to recover for work done

of keeping his saloon open after 10 o'clock in the evenings of June 11 and 13, 1888, contrary to an ordinance of said village; and thereupon the said village board revoked said license, and an order to that effect was made and signed by all the trustees of the village, and a certified copy thereof was served on Neuman, July 17, 1888. Thereupon, Neuman applied, upon petition, to the circuit court for a writ of certiorari, and the same was issued July 19, 1888, by the judge of said court, and served on said board, July 20, 1888. That said writ contained an order, in effect, staying all proceedings under said revocation, and suspending the operations thereof, until the hearing and determination of said of said writ. That upon due notice, application, and hearing the said circuit judge, by order at chambers, August 6, 1888, vacated and superseded said order so staying proceedings, and suspending the operation of said revocation. That August 27, 1888, the said board made return to said writ. That, upon the hearing of said certiorari, November 23, 1888, the said circuit court found and adjudged that the order of said village board, revoking said license, was valid, and affirmed the same, and quashed said writ of certiorari. That November 28, 1888, the said Neuman appealed from that judgment to this court, and said appeal is still pending herein. That February 7, 1889, the said Neuman was arrested and brought before a justice of the peace, in said village, on a complaint and warrant charging that he did on November 17, 1888, "unlawfully vend, sell, deal, and traffic in, and, for the purpose of evading the laws of this state, give away, certain spirituous, malt, ardent, and intoxicating liquors and drinks, to divers persons, without first having obtained a license therefor, according to the laws of this state; and that at said time said Frank Neuman had no license authorizing such sale or traffic,-against the peace and dignity of the state of Wisconsin. That said complaint contains seven separate additional counts, each charging the same offense as having been committed by said Neuman on December 27, 1888, and on January 4, 7, 10, 12, 19, and 26, 1889, respectively, in substantially the same language, except that four of said counts state the names of the person or persons to whom such sales were made, and two of them state that the names of the persons to whom such sales were made were unknown to the complainant. That Neuman pleaded not guilty. That on the trial before the justice the said Neuman was convicted February 14, 1889, and thereupon he appealed from the judgment, on such conviction, to the circuit court of Grant county. That said cause came on for trial in said circuit court, March 8, 1889, whereupon the defendant waived a jury, and the cause was tried by and before said circuit court, upon the stipulation made therein by the attorneys for the respective parties, and the evidence, papers, and records therein referred to, which stipulation is as follows, omitting signatures: "It is hereby stipulated and agreed that the facts in the above-entitled action are as shown by the record of the proceedings in the case of

Ex rel. Frank Neuman vs. The Village Board of the Village of Bloomington, for reviewing the proceedings of said board as to the revocation of a certain license of the defendant to sell intoxicating liquors in said village, upon certiorari, and appeal by said defendant to the supreme court of Wisconsin; and that this said defendant, Frank Neuman, sold intoxicating liquors as found by the court below, upon the trial of this action in justice's court; and that said saloon was closed on the 17th day of July, 1888, and remained closed till the writ of certiorari was served, July 20, 1888; and that all the said records and proceedings and papers in said action, and the judgments, orders, and proceedings in the circuit court and on appeal, and the record certified up by the justice, may all be considered in evidence. The real object of this appeal and stipulation is to have the court determine whether the said Nueman is justified, under the circumstances, in selling liquor or not, without bringing up more witnesses, and this case shall be tried upon this stipulation, and said records and proceeding. That upon said trial the said circuit court found the said Neuman guilty beyond a reasonable doubt of the offense of selling intoxicating liquors and drinks in said village without first having obtained a license therefor, as charged in said complaint; and it was thereupon ordered, adjudged, and determined by said circuit court that said Neuman pay a fine of $50 and costs, and, in default of payment thereof, be committed to jail until the same should be paid, or until he be discharged by due course of law; such imprisonment, however, being limited to one day. From that judgment said Neuman brings this writ of error.

Rev. St. Wis. § 1548, as amended by Laws Wis. 1882, c. 322, § 10, and Laws Wis. 1885, c. 296, § 1, provides that the town boards, village boards, and common councils of the respective towns, villages, and cities may grant license, under the conditions and restrictions in this chapter contained, to such persons as they deem proper, to keep groceries, saloons, or other places, within their respective towns, villages, or cities, for the sale in quantities of less than one gallon of strong, spirituous, malt, ardent, or intoxicating liquors, to be drank on the premises; and in like manner may grant licenses for the sale, in any quantity, of such liquors, not to be drank on the premises.

Sanb. & B. Ann. St. Wis. § 1548a, (Laws 1885, c. 296, § 2,) as amended by Laws 1887, c. 404, provides that the town boards, village boards, and common councils of the respective towns, villages, and cities in this state, upon the written application of any registered pharmacist, may grant to such registered pharmacists as they deem proper a permit to sell strong, spirituous, and ardent liquors, in quantities less than one gallon, for medicinal, mechanical, or scientific purposes only, and not to be drank on the premises.

Rev. St. Wis. § 1550, as amended by Laws 1882, c. 322, § 1, and Laws 1885, c. 296, § 4, provides: "If any person shall vend, sell, deal, or traffic in, or, for the purpose of evading any law of this state, give away,

any spirituous, malt, ardent, or intoxicat- | ing liquors or drinks, in any quantity whatever, without first having obtained a license or permit therefor, as required by this chapter, he shall be deemed guilty of a misdemeanor," etc.

Rev. St. Wis. §§ 1558, 1559, provide that the supervisors, trustees, or aldermen may revoke a liquor license for certain specified offenses.

A. R. Bushnell, for plaintiff in error. C. E. Estabrook, Atty. Gen., for the State.

CASSODAY, J., (after stating the facts substantially as above.) It is claimed that the complaint, the substance of which is set forth in the foregoing statement, is insufficient in not alleging that, at the several times of selling such liquors, Neuman had no" permit" to sell, as well as alleging that he had no "license" therefor. This contention is based upon the theory that the burden of alleging and proving, at least by presumptive evidence, that such sales were without any "license" or "permit' therefor, was upon the prosecution, under the repeated decisions of this court. Mehan v. State, 7 Wis. 670; Hepler v. State, 58 Wis. 46, 16 N. W. Rep. 42. There is not There is not much difference between the word "license" and "permit." A "license," as used in section 1548, Rev. St., as amended by section 10, c. 322, Laws 1882, and section 1, c. 296, Laws 1885, is certainly a “permit," and a "permit," as used in section 1548a, Sanb. & B. Ann. St., (section 2, c. 296, Laws 1885, and chapter 404, Laws 1887,) is certainly a "license" to pharmacists. The word" permit" was manifestly thus used, merely to indicate such license to pharmacists, as distinguished from the other classes of licenses mentioned; and both words were evidently so used in section 1550, Sanb. & B. Ann. St., (section 4, c. 296, Laws 1885.)❘ The complaint not only charges that Neuman made the sale “ without first having obtained a license therefor," but also that he" had no license authorizing such sale or traffic." Besides, it is very apparent, from the stipulation in the case, which must be regarded as a verity, that Neuman's defense, on the trial of this action in the circuit court, was based entirely upon the protection afforded by the license which the village board revoked, pending the certiorari and the appeal from the judgment therein; that Neuman sold the liquors in “said saloon," which was closed for the three days named; and that "the real obJeet" of such "appeal and stipulation" was to have the court determine whether the said Neuman was "justified, under the circumstances, in selling liquor or not." We must hold the complaint sufficient, especially after conviction. Sires v. State, 73 Wis. 255, 41 N. W. Rep. 81.

2. It is urged that the evidence in the record is insufficient to sustain the conviction. We think otherwise. As indicated, the stipulation was, in effect, an admission that Neuman sold the liquor as charged, and then attempted to justify under the license so revoked by the village board.

3. The more serious question is whether the pendency of the writ of certiorari, and the subsequent appeal from the judgment

thereon to this court, operated as a bar to the prosecution of Neuman for selling during the time which would bave been justified by the license, had it not been so revoked. The writ, as originally issued, embodied an order staying all proceedings under such revocation, and suspending the operations thereof until otherwise determined. The order so staying proceedings, and suspending operations, was, upon notice and hearing, vacated and superseded, August 6, 1888, by the same authority that granted the writ. Each and all of the offenses charged, occurred subsequently to that time. The only undertaking given on the appeal from the judgment affirming the order of the village board, and quashing the writ, was the usual undertaking to "pay all costs and damages" by reason thereof, not exceeding $250, as prescribed by section 3052, Rev. St., which is essential "to render an appeal effectual for any purpose." Id. We do not understand that such undertaking operates as a stay in any case. Whether a stay of proceedings might have been secured by the giving of an undertaking, as required by section 3058 or section 3059 or section 3060 or any other section of the statutes, it is unnecessary here to inquire, since no such undertaking was given, nor attempted to be given. It may be questionable whether there is any section applicable, or intended to be applicable, to such a case. Assuming, therefore, that the circuit judge had the power, in his discretion, to vacate and supersede the stay which was at first ordered, and it necessarily follows that there was no stay of proceedings, nor bar to the prosecution, at the time of the commission of any of the offenses charged.

The more precise question presented is, therefore, whether the circuit judge possessed the power to so vacate and supersede the stay, or, in other words, whether the mere allowance of the writ operated, ipso facto, as a bar to such prosecution as a matter of right, regardless of the orders made by the judge granting the writ, in relation thereto. The revocation of the license by the village board, and the service upon Neuman of a certified copy of the order of the board to that effect, July 17, 1888, was, in legal effect, an abrogation and extinguishment of the license. Sections 1558, 1559, Rev. St.; Com. v. Hamer, 128 Mass. 76; State v. Schmitz, 22 N. W. Rep. 673; Martin v. State, 36 N. W. Rep. 554. The writ of certiorari was granted subsequently to such abrogation and extinguishment, and was a mere command to the village board to return the records adjudging such revocation, and all the proceedings concerning the same, to the circuit court for review. "The purpose of the writ is to have the entire record of the inferior tribunal brought before the superior court, to determine whether the former had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of the law." 3 Amer. & Eng. Cyclop. Law, 61, and cases cited: State v. Dodge Co., 56 Wis. 79, 13 N. W. Rep. 680. The effect of the issuing and serving of the writ is not to open or vacate the judgment or action of the inferior tribunal, like an appeal giving a new trial upon the

merits, but merely to remove the records thereof to the superior court for inspection, and thus enable such court to determine whether the inferior tribunal had the rightful jurisdiction or the rightful authority to render such judgment or perform such act. The judgment of the court in the proceeding upon such writ merely determines the validity or invalidity of the record of such inferior tribunal, and either reverses or affirms the same, in whole or in part, accordingly. Smith v Bahr, 62 Wis. 244, 22 N. W. Rep. 438; Newton v. Leary, 64 Wis. 190, 25 N. W. Rep. 39; Hyslop v. Finch, 99 Ill. 171. While this is true, the issuing and serving of the writ, nevertheless, operates as a stay of all subsequent proceedings by the inferior tribunal, except in cases where the execution of its order has already begun. Gaertner v. Fond du Lac, 34 Wis. 503; Hunt v. Lambertville, 46 N. J. Law, 59; John v. State, 1 Ala. 95. And where such inferior tribunal has thus begun, but not completed, the execution of its order before the service of such writ, the court or judge granting the same may undoubtedly, in the exercise of a sound discretion, incorporate therein an order staying any further proceedings, as indicated in Gaertner v. Fond du Lac, supra, and Patchin v. Mayor, 13 Wend. 664. But in the case at bar the license was, in legal effect, abrogated and extinguished prior to the service of the writ. Assuming that the order staying proceeding, as contained in the writ when first issued, operated as a bar to such prosecution, while it continued, still there can be no doubt but what such stay was effectually vacated and superseded by the order of August 6, 1888. It follows, from what has been said, that neither the pendency of the certiorari, nor the appeal from the judgment affirming the order of the village board, and quashing the writ, operated as a bar to the prosecution for the several offenses of which Neuman was convicted in this action. The judgment of the circuit court is affirmed. (1 N. D. 88)

STATE V. NELSON COUNTY. (Supreme Court of North Dakota. April 21, 1890.) CONSTITUTIONAL LAW-TAXATION-SEED-GRAIN STATUTE-SUPREME COURT-ORIGINAL JURISDIC

TION.

1. An act approved February 14, 1890, entitled "An act authorizing counties to issue bonds to procure seed-grain for needy farmers resident therein," examined, and held to be valid, and not an abuse of legislative powers, in that it authorizes the issue of bonds and taxation for a public purpose. Held, further, that the act is not an infringement of section 185 of the state constitution, in this: that it is a measure intended for the "necessary support of the poor."

2. In the exercise of its original jurisdiction, under section 87 of the state constitution, the supreme court, exercising its discretion, will issue the writs of habeas corpus, mandamus, quo warranto, certiorari, and injunction only when applied for as prerogative writs; and where the question presented is publici juris, and one affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of the people. To invoke the original jurisdiction of this court, the interest of the state must be primary and proximate, and not secondary and remote. This court will judge for itself whether the wrong complained of is one which requires the interposition of this court to protect the prerogatives and franchises of the v.45N.w.no.1-3

state in its sovereign character. In all cases where the original jurisdiction of this court is invoked, except in habeas corpus cases, the attorney general shall proceed only on leave, based upon a prima facie showing that the case is one of which it is proper for this court to take cognizance. In ordinary cases, this court will not exercise its original jurisdiction to restrain local taxation for any reason. The proper jurisdiction for that purpose is lodged in the district courts. Held, this being an application made by the attorney general in behalf of the state to enjoin the issue of bonds upon the alleged ground that the statute authorizing the bonds is unconstitutional, that the question is one of local concern, and affects only the county of Nelson and its tax-payers, and hence the case does not fall within the limited class of cases in which this court will exercise original jurisdiction. Held, that the writ of injunction is denied upon the ground that the statute in question is a valid law, and also upon the ground that the question presented is one of merely local concern, and hence is not a proper case to call for the issuing of a writ out of this court.

(Syllabus by the Court.)

George F. Goodwin, Atty. Gen., and Burke Corbett, for the motion. M. N. Johnson, State Atty., and F. R. Fulton, opposed.

WALLIN, J. Upon the return of an order to show cause, application is made to this court for leave to file an information as a foundation for issuing a writ of injunction out of this court prohibiting the county of Nelson and its officials from issuing seedgrain bonds, under an act of the state legislature approved February 14, 1890, and entitled "An act authorizing counties to issue bonds to procure seed-grain for needy farmers resident therein." The information is based upon the complaint of one John Birkholz, which alleges-" First. That the above-named complainant, John Birkholz, is a tax-payer of the county of Nelson, the respondent above named. Second. That said respondent is a political or public corporation, duly organized under existing laws. Third. That J. W. Forbes is the duly elected and qualified chairman of the board of county commissioners, and N. F. Webb is the duly-elected county auditor of Nelson county, and as such officers are respectively discharging the duties thereof. Fourth. That the above-named respondent, on the 26th day of March, 1890, acting through its board of county commissioners and the county auditor of said county, pursuant to a petition signed by 100 freeholders resident in said county, adopted and passed a resolution at a meeting of said board, and thereby resolved to issue the bonds of the said county in the sum of twenty thousand dollars, ($20,000,) payable in ten (10) years, and bearing interest at the rate of seven (7) per cent. per annum, payable semi-annually, claiming their right to so do under an act of the legislative assembly entitled 'An act authorizing counties to issue bonds to procure seed-grain for needy farmers resident therein,' approved February 14, 1890, and acts amendatory thereto; that in pursuance to said resolution said respondent, acting through its auditor and the chairman of its board of county commissioners, have taken such steps as are requisite and necessary in the premises to and are about to issue bonds for said