B. B. Champion, and sought to be reviewed | pellate courts do not try cases. This court by the. writ of certiorari herein."

No time was expended by counsel upon. these assignments; and whether or not Phillips was a proper party would not affect the main question involved. If he was not a proper party, the writ should have been dismissed as to him, and left to stand as to the other defendants.

has no original jurisdiction in such a case. It sits to review errors committed in the trial of the cause of the lower court. It would not do to allow counsel to assign reasons for the decision of a court where the court itself has assigned other and different reasons. It will not answer for counsel to urge that the order was a discretionary one with the court, when the record clearly shows that the discretion

"Thirteenth. That the said B. B. Champion has waived his right to institute certi-ary powers of the court have never been inorari proceedings in this matter, if he ever had any." No point was made upon this objection. There is no evidence of waiver in the record, whatever might have been urged on the ground of laches, had that point been raised; but this, however, would go to the question of discretion only of the court in granting the writ.

"Fourteenth. That no proper service of the writ has been made."

"Fifteenth. That said writ requires the board of county commissioners to certify and return facts, proceedings, and papers which it is not within their power to do."

These objections go only to requirements which have been fully answered when the board made return to the writ.

"Sixteenth. Upon all the grounds appearing upon the face of the writ and the affidavit upon which it is granted." This is a mere sum total of that contained in the other assignments, and presents nothing new.

voked. This court cannot, in advance, determine what decision the lower court in its discretion might render. The cause must be remanded for the action of the court upon the merits of the application, and for exercise of its discretion in the premises. All the justices concur

GULL RIVER LUMBER Co. v. KEEFE et al. (Supreme Court of Dakota. Feb. 14, 1889.) MECHANICS' LIENS-JURY TRIAL-ESTOPPEL-FOR

EIGN CORPORATIONS-PLEADING-APPEAL. 1. In a suit to enforce a mechanic's lien, a jury trial is not demandable as a matter of right, under Code Civil Proc. Dak. § 236, providing that an issue of fact for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless waived, but that all other issues are triable by the court, or may be referred; nor uning that in suits at common law the right of jury der the constitution of the United States, providtrial shall be preserved.

2. The owner of premises against which a mechanic's lien was sought to be enforced by a subcontractor testified that he had gone to the agent of the latter, and asked him if the principal contractors were paying their bills, and if they were owing plaintiff any amount; and that the agent replied that they were not owing anything of any account, and that they were all right. It appeared that this conversation occurred at a place where the agent did not have access to his books, and that there was no reason why the latter should have desired to mislead the defendant, and there was some conflict as to what the agent did say. Held, that the owner could not resist the enforcement of the lien on the ground that, relying on the cipal contractors the amount he was owing them. representation of the agent, he had paid the prin

3. An objection that a foreign corporation has no authority to sue on account of non-compliance with the laws relating to such corporations, will the defendant merely states legal conclusions, as not be considered on appeal, where the answer of that the plaintiff had not recorded a “duly-authenticated copy" of the appointment or commisice of process, etc., and where there is no evidence sion of any agent "duly authorized "to accept servin the abstract that the statute relating to foreign corporations has not been complied with.

We have thus passed over all the objections urged to the issuance of the writ, and as grounds for its discharge; none of which are tenable. A large part of respondents' argument has been expended in attempting to convince this court that the writ is discretionary, and that it was within the discretion of the court to dismiss it after issue,-a proposition well founded in the decisions of the courts; but that was not the ground upon which the decision of the lower court was based, nor was that the decision of which appellant complained. He alleged, as he had a right to do, that none of the reasons assigned in the motion for dismissal of his writ were tenable, and that the court erred in sustaining the defendant's motion, and with him this court must agree. The case of Tilton v. Beecher, 59 N. Y. 176. is directly in point upon this question. Beecher demanded a bill of particulars of the allegations contained in the complaint, in an action of tort. It was contended in the court below that the court had no power to grant the application in such an action, and the court denied the defendant's motion upon that ground. In the court above, the appellee contended, as here, that the application was addressed to the discretion of the lower court, and was not reviewable. The court of appeals, however, reversed the case, and sent it back for the court to hear the application upon its merits, TRIPP, C. J. This was an action brought and to exercise its discretion; holding that in the district court of Burleigh county to enthe appellate court would examine only the force a mechanic's lien by the plaintiff as a questions raised in the court below. The subcontractor. The defendants Keefe, Hackprinciple is by no means a new one. Ap- ett, and Stewart are joined as contractors,

4. Under Code Civil Proc. Dak. §§ 122-124, providing for a reply to new matter only upon order of the court made upon application of the defendant, a reply to new matter, voluntarily interposed by the plaintiff, will not be regarded as a part of the record.

ty.

Appeal from district court, Burleigh coun

Winchester & Hanitch, for appellant. John E. Carland, for respondent.

and Ward as the owner of the building | itations upon the legislative powers of the against which the lien is sought to be en- territory. The territory, as the creature of forced. Ward alone answers. The case was sent to a referee against the objection of the defendant, and, the referee having reported the evidence to the court, it made findings thereon in favor of the plaintiff, and directed a judgment to be entered, in accordance with such findings, for the amount of the plaintiff's claim, and a foreclosure of the lien to satisfy such judgment. Three alleged errors of the court below are relied upon by the appellant to reverse the case here: (1) That the lower court erred in sending the case to a referee over the objection of defendant; (2) that plaintiff had not complied with the statute relating to foreign corporations, and had no authority to sue; (3) that the plaintiff was estopped from maintaining this action, in that, on application by defendant Ward, its agent had informed him that the contractors, Keefe and others, had paid the indebtedness due for lumber used in the erection of his house, and that he, relying upon such information, had paid said contractors a large portion of the indebtedness due them, and had failed to secure himself for the further performance of said contract. We shall examine the alleged errors in the order of their assignment.

congress, could exercise no greater powers than were possessed by its creator; and if congress could not pass such a law, under which the defendant would be deprived of a right to jury trial, the territory could not, and it would be void. The amendment provides: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Suits at "common law" are so well understood by the profession that an attempted definition would seem pedantic. "Common law actions" and "suits in equity" and "admiralty" are carefully distinguished throughout the sections and amendments of the constitution, and the forms and modes of procedure formerly were as distinct and separate as the principles governing them have ever continued to be. It is a sufficient answer to this objection to say that this is not an "action at common law." No such proceeding was ever known or obtained at common law, but every attempted enforcement of liens, whether existing by common law or under earlier statutes, in absence of express statutory proceedings, was had in equity. Under our modern system of jurisprudence, where the forms of actions have been blendThe record shows that the lower court ed, the same equitable principles must govtreated the action as one in which it had the ern and control the rights of parties outside power to make a compulsory reference. The of the mere form of procedure. Trial by jury defendant contends that he was entitled to a is a matter of right, and not of procedure; it trial by jury, and has been deprived of a belongs to the common law, and not to the right under the laws of the territory and con- equity side of the court. This being a statstitution of the United States. Section 236, utory action in the nature of an equitable Code Civil Proc., as amended by chapter 146, proceeding, the defendant had no right under Laws 1885, provides: “An issue of fact for the statute, the constitution, or any law of the recovery of money only, or of specific real the United States, to demand a jury trial, or personal property, must be tried by a jury, and the court did not err in sending the facts unless a jury trial be waived. * * *Every to a referee. The mere fact that a personal other issue is triable by the court, which, judgment is permitted to be rendered in such however, may order the whole issue, or any cases does not change or affect the character specific question of fact involved therein, to of the action. As stated by the court in be tried by a jury, or may refer it." This Davis v. Alvord, 94 U. S. 540, where it was action is a statutory one, purely in the nature sought to dismiss the appeal upon the ground of an equitable proceeding, to enforce a stat- that the action, which was one brought to utory lien. It is not an action for the recov-enforce a mechanic's and laborer's lien under ery of money only. The summons is one for relief. Judgment cannot be taken by default without proof of the allegations of the complaint. It is clearly one of the "other issues" triable by the court. Appellant was not, then, entitled to a trial by jury under this statute. If the statute is a valid one, the issue was triable by the court, who may either try the issues itself, or send them, or any of them, to a referee or jury, as it may elect. Here it sent the cause to a referee to report the evidence, upon which it itself determined the case.

the statute, was an action at law, and should have been brought up on error: "The fact that, according to the modes of procedure adopted in the territory, a personal judg ment for the amount found due is usually rendered in such cases, with directions that, if the same be not satisfied out of other property of the debtor, the property upon which the lien is adjudged to exist shall be sold, and the proceeds be applied to its payment, does not change the character of the suit from one of equitable cognizance, and convert it into an action at law."

Defendant contends that under article 7 The second objection, that the plaintiff had of the amendment to the constitution he is no authority to sue, is not properly before this entitled to a trial by jury. This amendment, court. This court has held that such a defense and all preceding amendments, have been must be taken advantage of by answer. That uniformly held to be limitations upon the the plaintiff has complied with the statutes repowers of congress granted to it by the lating to foreign corporations need not be alstates, and as such would, of course, be lim-leged in the complaint, and a failure to make

such an allegation does not make the com- this pleading, to determine in what respect plaint open to demurrer. The plaintiff, it is the plaintiff had failed to comply with the true, in its complaint does allege that “it was statute,-whether the copy of the appointduring all of the time hereinafter mentioned ment was not "duly authenticated," the a corporation created and existing under the agent had not been "appointed by the plainlaws of the state of Minnesota, and author- tiff," the agent did not reside at "some acized to transact business in the territory of cessible point," or the agent did not reside Dakota." And the defendant denies this in where the "principal business of plaintiff his answer, but it is the denial of a mere legal was carried on," or whether he meant to alconclusion of the pleader, and created no issue lege that the agent was not "duly authorized of fact upon which evidence was admissible. to accept service." The pleading is not The defendant, however, does attempt to merely indefinite. It pleads, at best, a mere raise the issue in his answer by way of new legal conclusion. Whether the copy of the matter, as follows: "That the above-named appointment was "duly authenticated," or plaintiff has never filed nor had recorded a the agent was "duly authorized to accept duly-authenticated copy of the appointment service of process, are questions for the or commission of any agent, appointed by court. The pleader might, with equal prosaid plaintiff, residing at some accessible priety, have alleged that the plaintiff did point in this territory, in the county where not in his appointment of agent comply the principal business of said plaintiff has with the requirements of the statute; that been carried on, duly authorized to accept is the effect of the allegation in which he service of process, and upon whom service of has copied the language of the section into process might have been made in any action an attempted allegation of fact. The plainin which said plaintiff might have been a tiff, perhaps, came near supplying the omisparty, and service upon such agent might sion of defendant by gratuitously replying, have been taken and held as due service upon and in setting up certain allegations of fact said plaintiff in the office of the register of in reference to appointment of an agent and deeds of the county where such an agent filing a copy thereof. The reply, however, should have resided." A mere inspection of while contained in the record, cannot be conthe pleading will make it evident that no al-sidered by the court, in absence of any order legation of fact is set forth which could be put in issue by a denial. It does not allege that plaintiff had not filed a copy of his appointment, but alleges it had not filed a dulyauthenticated copy; a duly-authenticated copy of the appointment of any agent appointed by said plaintiff; a duly-authenticated copy of the appointment of any agent appointed by said plaintiff, residing at some accessible point in this territory; a duly-authenticated copy of the appointment of any agent appointed by said plaintiff residing at some accessible point in this territory, in the county where the principal business of said plaintiff has been carried on; a duly-authenticated copy of the appointment of any agent appointed by said plaintiff, residing at some accessible point in this territory, in the county where the principal business of said plaintiff has been carried on, duly authorized to accept service of process, and upon whom service of process might have been made in any action in which said plaintiff might have been a party, and service upon such agent might have been taken and held as due service upon said plaintiff; a duly-authenticated copy of the appointment of any agent appointed by said plaintiff residing at some accessible point in this territory, in the county where the principal business of said plaintiff has been carried on, duly authorized to accept service of process, and upon whom service of process might have been made in any action in which said plaintiff might have been a party, and service upon such agent might have been taken and held as service upon said plaintiff in the office of the register of deeds in the county where such an agent should have resided. It is impossible, upon an analysis of

made, or apparent consideration thereof made, by the court. Our statute makes no provision for a reply made voluntarily by the plaintiff. It makes provision for a reply only to a counter-claim. The answer here sets up no counter-claim. It was new matter, and could be replied to only upon order of the court made upon application of the defendant. It often occurs that a defendant, having alleged new matter, as, for instance, the statute of limitations, desires to know what defense the plaintiff will make to it upon the trial; whether he will claim a subsequent promise, etc. In such case, he may apply to the court for an order compelling the plaintiff to reply; and, in absence of such application, the plaintiff may interpose any defense he may have to the plea, but he cannot voluntarily, nor upon his own application to the court, interpose a reply. Such application must come from the defendent only. A reply, then, voluntarily interposed, will be disregarded by the court. Sections 122-124, Code Civil Proc. The issues under our Code are limited to the complaint, answer, voluntary replies to counter-claims, and replies to new matter put in upon order of the court upon application of the defendant. Again, a careful examination of the entire abstract fails to disclose any evidence whatever that the plaintiff ever transacted any business within the territory of Dakota. All the lumber may have been sold without the territory of Dakota, so far as is disclosed by the abstract. Nor is there any evidence whatever that the agent failed in any respect to comply with the statute relating to foreign corporations, if anything in this case was required to be shown. There is an entire ab

sence of anything in the abstract, as presented to this court, that would warrant an examination of the question sought to be raised.

Weaver. As to such indebtedness the plaintiff could not be estopped by the prior act of its agent; but we are unable to discover any fraud or willful misrepresentation on the part of Weaver, or such gross negligence, its equivalent, as would estop the plaintiff. Weaver was not at his own office, where he had ready access to the books,-a fact well known to defendant. His answer must be from memory. His mind was evidently on other matters, foreign to the question propounded by defendant. No reason is urged or shown why he should desire to mislead defendant to his injury. If he answered defendant, as defendant claims he did, he was evidently honestly mistaken, and, if so, the one essential element of fraud is lacking. All the essential elements of estoppel must be clearly proved, and "the evidence should be precise, clear, and unequivocal." Herm. Estop. 742. Justice FIELD, in Brant v. Coal Co., 93 U. S. 335, in applying the doctrine of equitable estoppel, says: "For the application of that doctrine there must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as to amount to constructive fraud, by which another has been misled to his injury." Story says: "In all this class of cases, the doctrine proceeds upon the ground of constructive fraud, or of gross negligence, which in effect implies fraud; and therefore, where the circumstances of the case repel any such inference, although there may be some degree of negligence, yet courts of equity will not grant relief. It has accordingly been laid down by a very learned judge that the cases on this sub

Third. The defendant seeks to set up an equitable estoppel against the plaintiff, based upon certain conversations had with its agent as to the amount of Keefe's and others' indebtedness. Without stopping to consider whether this is a case in which the agent of a corporation can estop its principal by language used, not in the performance strictly of any duties imposed upon him by the terms of his employment, we are of the opinion that the language relied upon does not, under the circumstances, make a case of estoppel. The conversation with plaintiff's agent is set out in full in the record. The defendant claims that he went to the office of Weaver, an alleged agent of the plaintiff, and found him out; that upon inquiry he found Weaver at the office of one Winchester, one of the attorneys of the defendant; and, in his own language: "I asked him if Hackett, Keefe & Stewart were not paying their bills. He looked up,—he was writing at the time. He looked up and said he guessed they was. He looked as though he wondered why I inquired. I told him that I heard that Hackett, Keefe & Stewart were not paying their bills on my house, and that I had come in to see about it. I asked him if they were owing him any amount, and he told me that they were not owing him anything of any account, and that they were all right." And on crossexamination he testified: "Question. Didn't he say to you then that he did not remember without looking in the books what their account was? Answer. I think he said some-ject go to this result only, that there must thing that he could not tell exactly. I do not remember about his mentioning books at all; but he did say that they were not owing him anything of any account. Q. Did he tell you at all that he was not able to tell you what they were owing him from memory? A. That was about the amount of the conversation." Mr. Winchester also corroborated Mr. Ward. Mr. Weaver, on the other hand, testified that he may have told him that his impression was that it was not a very large amount, but that he also told him that he did not remember, as he did not carry his books in his head; and that there was no conversation, to his remembrance, as to why defendant wanted to know, or about indebtedness for lumber for defendant's building; that he considered them straightforward boys, etc.; but that nothing was said to him by defendant about his not wanting to pay them money until he found out how much they owed plaintiff.

The testimony further disclosed that

be positive fraud or concealment, or negligence so gross as to amount to constructive fraud." 1 Story, Eq. Jur. § 391. The cases say: "The element of fraud is essential, either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up." See Hill v. Epley, 31 Pa. St. 334; Henshaw v. Bissell, 18 Wall. 271; Biddle Boggs v. Mining Co., 14 Cal. 368; Com. v. Moltz, 10 Pa. St. 531; Copeland v. Copeland, 28 Me. 539; Delaplaine v. Hitchcock, 6 Hill, 616; Zuchtmann v. Roberts, 109 Mass. 53. Giving to the evidence of defendant its strongest meaning, a court would not be warranted in holding it to constitute an estoppel; and, the court having found upon the evidence in favor of the plaintiff, we cannot disturb the finding. The judgment is aflirmed; all the justices concurring.

Deputy-Sheriff.

(Supreme Court of Dakota. Feb. 4, 1889.) LOCAL OPTION-CONSTITUTIONAL LAW-TERRITO

the defendant had taken a bond from the TERRITORY ex rel. MCMAHON v. O'Connor, contractors in the sum of $2,450 for the faithful performance of the contract, though defendant says he had been informed that the bond was not very good. It was further disclosed by the evidence that a large part of plaintiff's indebtedness-nearly one-halfwas incurred after this conversation with

RIES.

1. The fifth amendment to the federal constitution, that "no person shall be deprived of life, lib erty, or property without due process of law,”

does not prohibit congress from exercising police | amine into, and will not pass upon, questions power in those places where it has exclusive juris- other than those mooted at the argument. diction by local option laws.

2. Congress, by Rev. St. U. S. § 1851, providing that "the legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States, " has conferred upon the territories power to enact local option laws.

3. The United States revenue laws are enacted for purposes of revenue merely, and a liquor license under those laws is, in effect, a receipt for taxes, implying nothing except that the licensee, having paid such taxes, shall be subject to no penalties under federal law; and hence a local option law by a state or territory is not in conflict with

the revenue laws.

4. Although the Revision of 1878 omitted the word "territory" from the provision, as found in the statute of 1864, that no license should be construed "to authorize any business within any state or territory prohibited by the laws thereof," yet the word "state" is by the express provision of section 1, c. 1, tit. "Internal Revenue," (Rev. St. U. S. 1878, § 3140,) made to include the territories. Hence it does not appear that congress intended, by omitting the word "territory," to protect liquor licensees in the territories.

The plaintiff in this proceeding seeks to attack the validity of chapter 70 of the laws of the legislative assembly, passed at the seventeenth session, 1887, entitled "An act to prohibit the sale of intoxicating liquors by local option." By the provisions of the act the board of county commissioners are required to submit to the qualified voters of any county, at any general election, the question of prohibiting the sale of intoxicating liquors whenever one-third of the voters of said county, as evidenced by the vote cast at the last preceding election, petition said board therefor; and if a majority of the votes cast at such election shall be "against the sale," it shall be unlawful for such board to issue or grant a license for the sale of intoxicating liquors in such county. Section 5 of this act provides: "Sec. 5. In addition to the penalties now prescribed by law, any person or persons who may sell any intoxicating liquors without a license having been duly granted, as provided by law, or where the license is granted in violation of this act, shall be restrained from so doing by proper injunction issued by the court, or a judge thereof; and any person may secure such injunction, and 7. Nor is it a delegation of legislative power. 8. Section 5 of the act, providing that, "in addi- may use the name of the county as plaintiff tion to the penalties now prescribed by law," un- in the suit, and no security shall be required, lawful sales may be enjoined, by implication, con- and the district attorney of such county shall tinues in force, and incorporates the penalties re-in all things conduct such prosecution." The ferred to.

5. The Dakota local option law, (Laws 1887, c. 70,) which contemplates nothing beyond the prohibition of the sale of intoxicating liquors in counties a majority of whose citizens shall vote in favor thereof, is not in violation of Rev. St. U. S. 1925, prohibiting the territory from enacting any law "impairing the rights of private property. 6. Nor is the act in conflict with the United States statute prohibiting special legislation.

9. The act will not be declared invalid by reason of the failure of the journals to record its passage, where the certificate of the presiding officer of each house shows that it was regularly passed, and there is no affirmative record that it failed to

secure the concurrence of both houses.

Habeas corpus.

Cyrus Wellington, M. W. Greene, and W. E. Dodge, for petitioner. C. F. Templeton, Atty. Gen., C. B. Pratt, and W. R. Seeby, for respondent.

TRIPP, C. J. The petitioner, Patrick McMahon, was arrested upon complaint before a justice of the peace of Grand Forks county, charging him with selling intoxicating liquors in violation of chapter 70, Laws 188788, known as the "Local Option Law." The petitioner, having been bound over to await the action of the grand jury of that county, and declining to give bail, was committed to the jail of said Grand Forks county, and he sues out of this court a writ of habeas corpus, directed to the defendant, O'Connor, as the person having him in custody, alleging that he is unlawfully restrained of his liberty, in that the statute upon which this offense is based is unconstitutional and void, and was never enacted by the legislative assembly of the territory. No question is raised as to the right and power of the court to determine these questions in this manner, and, as the proceeding is a friendly one, brought as a test case to determine at an early day, and in a speedy manner, the legality of this statute, the court has not seen fit to ex

petitioner contends-First. That the act is within the prohibition of the constitution of the United States, in that he is deprived of his property without due process of law. Second. That the act is in violation of the organic law of the territory and the statutes of the United States, (a) in that it conflicts with the revenue laws of the United States granting licenses to sell intoxicating liquors; (b) in that it conflicts with the section of the Revised Statutes of the United States which prohibits the legislature from enacting any law "impairing the rights of private property;" 1 (c) in that it conflicts with the statute of the United States prohibiting local or special legislation; (d) in that it conflicts with the statute of the United States by delegating the legislative power conferred upon the legislative assembly. Third. That the law is inoperative, and cannot be enforced, for the reason that no penalties or punishments are prescribed for its infraction or disobedience. Fourth. That the act was never passed by the legislative assembly, and never became a law of the territory.

We will consider these objections in the order presented.

It was contended at the argument that this statute was within the prohibition of the first section of the fourteenth amendment to the constitution, which provides that no state "shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdic

'Rev. St. U. S. § 1925.