BARNES, J. Action commenced in the district court for Gage county to recover a sum of money alleged to be due plaintiff from the defendant for the sale or conversion of certain capital stock of a corporation known as the M. T. Cummings Milling Company. At the conclusion of the trial the court below directed a verdict for the defendant, and the plaintiff has appealed.

distance of three-fourths of a mile. In addition the country road leading to the mill was destroyed, making access to the property difficult to the farming community. Great damage was wrought to the millhouse, the flume, and machinery, and in addition a large amount of grain in bins and manufactured products on hand were lost and damaged or totally destroyed. At the time of this disaster the milling company was indebted to the First National Bank of Beatrice on its promissory note, which with interest amounted to something over $5,500, an indebtedness which had been incurred by the company to enable it to operate its mill.

It appears, without dispute, that in the month of October, 1901, the plaintiff and the defendant, together with certain other persons, organized a corporation under the laws of this state, for the purpose of purchasing a mill and water power at Blue Rapids, Kan., to be operated in manufacturing It further appears that the effect of the corn products. It was provided, by the ar- flood was to cut a new channel for the river ticles of incorporation, that the capital stock some distance up the stream from the point of the company should be $30,000, divided in- where the company's property was situated, to equal shares of $100 each, of which one- and above the stone dam, leaving that strucfourth was required to be issued and fully ture high and dry, without water, so that the paid up at the time the business was com- power by which the mill had been operated menced. It was also provided that all of was completely destroyed. The milling comthe stock should be common stock, nonassess-pany was thus left without assets of any able and transferable on the books of the kind to meet its indebtedness, except such as company. Subsequent to organization, and could be realized out of the wreck of its propat the date when the company began active erty. Soon after this disaster the defendant, operations as a manufacturing concern, the as the principal stockholder, president of the amount of $16,500 of stock had been issued board of trustees, and manager of the propand paid for at par. Of this stock the plain- erty, endeavored to sell it for a sum sufficient tiff became the owner of 10 shares of $100 to discharge the company's debt to the bank. each. From the proceeds of the sale of the For over a year the proposition to sell the stock, the milling company, in 1902, purchas- property was extensively advertised in varied a mill site, millhouse, water power and ous milling journals and by other means, all power rights at Blue Rapids, Kan., repaired of which resulted in a failure to make such a and remodeled the millhouse, flume, sea sale. Finally the defendant took up the matwalls, and other appurtenances to said prop- ter of adjusting the debt in some way with erty, and installed new milling machinery the other stockholders of the company, and necessary for their purposes, of the latest on or about the 23d day of August, 1904, he and best type. This was connected up to wrote to the members of the company, includthe power, and in the autumn of 1902 the ing the plaintiff, advising them of the necesmill was put into successful operation as a sity of devising some means of paying the manufacturing plant. The power for the op- debt. Amongst the plans suggested was a eration of the mill, as well as for the opera- surrender to him of the stock in consideration of a number of other milling and manu- tion of his assuming and paying the debts of facturing plants, was supplied by a large the company. Some time in the year 1904 and well-constructed stone dam across the the township in which the city of Blue RapBlue river, which had been in successful operation for more than 35 years. Thus the venture of the milling company appeared to lack no essential element of complete suc

cess.

ids is situated voted to issue its bonds in the sum of $20,000, and use the proceeds thereof in an effort to redivert the Blue river to its ancient channel, and thereby retrieve, to some extent, the misfortune to which the It further appears that during the first whole community and surrounding country, week of June, 1903, there occurred a great equally with the milling company, had sufflood, which inundated the entire valley of fered from the flood. The work was put unthe Big Blue river from its source to its der way in 1904 and completed in 1905, with mouth. In volume of water, duration, force, a fair prospect that restoration of the power and destructiveness, this flood was unpar- to the stone dam would be effective and peralleled in the known history of that country. manent. Under these circumstances the deIt practically destroyed the property of the fendant was able to interest Mr. F. B. Draper milling company. It washed out and destroy- and Mr. W. E. Bryson, of Adams, Neb., in ed the switch track connecting the property his milling company, and finally reached an with the Union Pacific Railroad, nearly a agreement by which they were to join him mile away, and the railroad company refused in taking over all of the stock of the comto rebuild the switch. This required the mill-pany on the basis of the assumption and paying company to depend upon wagons for the ment of the indebtedness of the old company transportation of its products and all other above described. freight to and from the railway station, a

On June 8, 1905, defendant wrote, address

ed, and mailed a letter to the plaintiff, advis- was any money to be got out of a water ing him of this arrangement, stating, among mill; he had yet to see it." other things, that all the stockholders had assigned their stock to him, or were willing to do so on condition that he pay the company's debt to the bank, and renewing his request for the assignment of plaintiff's stock on those conditions. Plaintiff thereafter delivered his stock to the defendant. The new company was organized, and the mill was repaired and put in operation. The property was leased to one Ed S. Miller, and in May, 1906, the millhouse, with its contents, was totally destroyed by fire.

[2] Again, in order for the plaintiff to recover the value of his stock it was necessary for him to show, by some competent evidence, that the defendant had promised to pay him its value when the mill was again in operation. The evidence contains no such promise. Plaintiff did not testify that the defendant ever agreed to pay him the value of the stock. He testified that, in answer to his assumption that he was to receive the money for his stock, the defendant said: "It would be doubtful * if there was any money to be got out of a water mill." It seems idle to assert that this amounted to a promise to pay the plaintiff anything whatever for his stock. Again we find no testimony in the record from which the value of the stock, if it had any value whatever, can be ascertained. On the other hand, it seems clear from the undisputed facts contained in the record that plaintiff's stock has no value whatever. [3] As we view the record no other verHe dict than the one which was returned un

been sustained, and therefore the judgment [ ground that the damaged lands are not included of the district court is affirmed. in the condemnation proceedings.

[Ed. Note. For other cases. see Eminent Do

275.*]

REESE, C. J., and FAWCETT and SEDG-main, Cent. Dig. §§ 769-773; Dec. Dig. 8 WICK, JJ., concur. LETTON, ROSE, and HAMER, JJ., not sitting.

6. DRAINS (§ 5*)-DRAINAGE DISTRICT-PUR

POSES.

Under the statute in question, a district may be formed for the purpose of having swamp and overflowed lands "reclaimed and protected from the effects of water, by drainage or otherwise." Comp. St. 1909, c. 89, art. 4, § 1. To provide a drain to prevent water from flowing onto swamp lands is to protect such (Supreme Court of Nebraska. May 17, 1913.) lands from the effects of water as contemplated by this statute.

O'NEILL et al. v. LEAMER et al. (No. 17,695.)

(Syllabus by the Court.)

1. DRAINS ( 14*)-DRAINAGE DISTRICT-ORGANIZATION-COLLATERAL ATTACK.

When the petition filed for the formation of a drainage district, under article 4, c. 89, Comp. St. 1909, and the proceedings thereunder, are sufficient to give the district court jurisdiction of the subject-matter, and an order is entered therein declaring the organization a public corporation of this state as provided in the third section of that act, the supervisors of the district duly elected cannot be enjoined from proceeding with the work for which the district was organized on the ground of irregularities in the organization thereof.

[Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 5, 6; Dec. Dig. § 14.*] 2. DRAINS (§ 13*)-DRAINAGE DISTRICT"PUBLIC CORPORATION."

A drainage district organized under article 4, c. 89, Comp. St. 1909, is a public corpora

tion.

[Ed. Note.-For other cases, see Drains, Cent. Dig. 4; Dec. Dig. § 13;* Corporations, Cent. Dig. 9.

For other definitions, see Words and Phrases, vol. 6, pp. 5781-5785; vol. 8, p. 7771.] 3. DRAINS (§ 2*)-DRAINAGE DISTRICT-CONSENT TO INCORPORATION.

When a public corporation is organized for subordinate governmental purposes, such as a village, township, city, or drainage district, it is not necessary that all of the people embraced within the corporate limits should consent to incorporation. The Legislature has power to provide for such incorporation by the required number of inhabitants and property owners therein without the unanimous consent of all.

[Ed. Note. For other cases, see Drains, Cent. Dig. 17; Dec. Dig. § 2.*] 4. EMINENT DOMAIN (§ 275*)-INJUNCTION— EVIDENCE-DRAINS.

Condemnation proceedings are allowed under said statute (Comp. St. 1909, c. 89, art. 4, § 12) when the "board of supervisors are unable to agree with the owners" of the property. When the condemnation proceedings and the work thereunder are enjoined on the ground that the drainage district has no legal organization and that no right exists to take the land for such purpose, and there is no evidence that the plaintiffs seeking the injunction are or ever have been willing to grant the right of way upon any terms, it sufficiently appears that the parties cannot agree.

[Ed. Note.-For other cases, see Drains, Cent. Dig. § 2; Dec. Dig. § 5.*]

7. DRAINS ( 14*)-CONDEMNATION FOR DRAIN -PETITION-SUFFICIENCY-COLLATERAL AT

TACK.

The supervisors must file a petition for condemnation "setting forth the location and character of the right of way needed and describing the lands to be crossed." Comp. St. 1909, c. 89, art. 4, § 12. If a petition is filed in county court showing the starting point of the proposed ditch and the lands it will cross, stating the government subdivisions, it is sufficiently definite in that regard to give the county court jurisdiction to appoint the appraisers, and if the damages assessed by the appraisers and the orders of the court thereon are not appealed from they are not subject to collateral attack on the ground that the location of the ditch is not sufficiently set forth in the petition. Dig. 88 5, 6; Dec. Dig. § 14.*]

[Ed. Note.-For other cases, see Drains, Cent.

Appeal from District Court, Dakota County; Graves, Judge.

Action by Elizabeth Leahy and others against Jacob F. Leamer and others. From the judgment, the plaintiffs O'Neill and Heffernan appeal. Affirmed.

Allen & Dowling, of Madison, and M. D. Tyler, of Norfolk, for appellants. A. C. Strong, or Sioux City, Iowa, and R. E. Evans, of Dakota City, for appellees.

SEDGWICK, J. These defendants and other citizens of Dakota county applied to the district court for that county to organize a drainage district under the provisions of article 4, c. 89, Comp. St. 1909. The court made the order organizing the district under the title of "Drainage District No. 2 of Dakota County, Neb." Afterwards, these defendants were chosen as supervisors of the district and began condemnation proceedings in the county court of Dakota county to obtain a right of way to their drainage canal across lands of these plaintiffs. The plaintiffs then began this action in the district court for Dakota county to enjoin the defendants from proceeding further to con[Ed. Note. For other cases, see Eminent Do- struct the ditch across the plaintiffs' land. main, Cent. Dig. §§ 769-773; Dec. Dig. § 275.*]| Upon trial the court found in favor of the 5. EMINENT DOMAIN (§ 275*)-GROUNDSplaintiff Elizabeth Leahy, and against the REMEDY AT LAW-CONSTRUCTION OF DRAINS. plaintiffs O'Neill and Heffernan, and entered If lands not taken by the condemnation a decree dissolving the temporary injunction proceedings are damaged by the improvement, as to the last two named plaintiffs, and the the law provides an adequate remedy. The owners of lands so damaged are not entitled to plaintiffs O'Neill and Heffernan have apenjoin the prosecution of the work on the sole pealed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The pleadings are lengthy and involved, | interested in this land testified that the atand, so far as we can see, contain a consider-torney for the district offered $150 per acre able unnecessary and immaterial matter. A large number of questions are presented and discussed at length by the appellants, but we feel constrained to confine our discussion to the more important ones. The plaintiffs contend that the drainage district was not regularly organized and seem to insist that the proceedings were so defective that the court was without jurisdiction and the district is not even a de facto corporation. The objections suggested, however, relate to supposed defects in serving of notice on some of the parties interested in the formation of the district and other similar matters, none of which are of sufficient importance to affect the jurisdiction of the court or subject its judgment to this collateral attack. [1] The objection that the order incorporating the district was erroneous because some of the property included in the district was not sufficiently described might have been raised upon the hearing of the petition for the formation of the district and upon appeal from the order, but cannot be insisted upon in this collateral proceeding.

[2] Another contention of the plaintiffs is that under our statute a drainage district is not a public corporation, and that the attempt to give it the power of eminent domain is unconstitutional. The argument upon this point is interesting, but in view of the fact that this question has heretofore been fully considered by this court and determined adversely to the contention of the plaintiffs, and that the Legislature has from time to time for many years past established and declared a public policy which is inconsistent with the view that these organizations are purely private corporations, and in view of the fact that other questions presented in

this case are not so well settled and will require somewhat lengthy discussion, we do not consider it advisable to review the grounds of our former decision. Neal v. Vansickle, 72 Neb. 105, 100 N. W. 200; Barnes v. Minor, 80 Neb. 189, 114 N. W. 146; State v. Hanson, 80 Neb. 724, 115 N. W. 294; Drainage District No. 1 v. Richardson County, 86 Neb. 355, 365, 125 N. W. 796.

[3] The plaintiffs contend that it is not within the power of the Legislature to authorize a portion of the property owners in a proposed drainage district to force others in the district to consent to the incorporation and to "bear the burden and liabilities of such an organization." No authorities are cited upon this proposition, and we doubt whether any can be found. The same objection would apply to the organization of counties, townships, villages, and other similar subordinate public corporations.

[4] It was also objected that there was no lawful attempt by the drainage district to agree with the plaintiffs as to a right of way over their lands, before beginning the condemnation proceedings. One of the parties

for the land appropriated, and "I don't think
I accepted it; I think I said I could not ac-
cept it. I don't remember what I said." It
appears from the plaintiffs' petition and the
evidence that the officers of the district
were made to understand that these plain-
tiffs resisted the right of the district to pur-
chase a right of way across the land. None
of the parties interested testified that they
were ready and willing to grant a right of
way. The appraisers appointed by the coun-
ty court fixed the amount of the condemna-
tion money, and there is no serious objec-
tion to the amount so fixed as unjust or un-
reasonable. The briefs of the plaintiffs do
not refer to any evidence of that nature.
There is therefore no merit in this objection.
[5] The plaintiffs contend that the con-
demnation proceedings were void because
they do not condemn and take certain lands
of the plaintiff O'Neill which would be flood-
ed by the waters of the ditch. If the plain-
tiffs' lands, other than those taken by the con-
demnation proceedings, are damaged by this
improvement, the law affords them a remedy
including the right of appeal to the court of
last resort. The statute provides that "the
same proceedings for condemnation of such
right of way shall be had in all other re-
spects, as is provided by law for the condem-
nation of rights of way for railroad corpo-
rations, the payment of damages and the
rights of appeal shall be applicable to the
drainage ditches and other improvements
provided for in this act." Section 12. The
law is well settled in such case by many de-
cisions of this court. When the remedy at
law is adequate the prosecution of the work
cannot be delayed by injunction.

[6] Another contention on the part of the

plaintiffs is that a drainage district has no power to condemn and take the land of a private citizen for the purpose of constructing a ditch outside of the district and to "take water before it reached the swamp or submerged lands within the district and carry it across the private property of a private citizen and empty it into a private lake." It is not seriously contended that the proposed ditch will "empty it into a private lake." Campell v. Youngson, 80 Neb. 322, 114 N. W. 415, and upon rehearing 82 Neb. 743, 118 N. W. 1053, is cited; but that case construed another statute. The statute controlling in the case at bar provides that a district may be formed for the purpose of having swamp or overflowed lands "reclaimed and protected from the effects of water, by drainage or otherwise." Section 1. This language clearly covers this objection.

[7] It is objected that the application for condemnation did not describe and locate the proposed ditch with sufficient accuracy. The statute requires that when the supervisors "have agreed upon a location or route for

said ditch or ditches and formulated a plan for the other improvements contemplated, then they * * may present to the judge of the county court of the county in which

Field v. Barber Asphalt Paving Co., 194 U. S. 618, 24 Sup. Ct. 784, 48 L. Ed. 1142.

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

206.*]

al Law, Cent. Dig. §§ 625-648; Dec. Dig. § 2. LICENSES (§ 7*)-EQUALITY-CLASSIFICATION OF PERSONS.

The provision of article 9, § 1, of the Constitution of this state, authorizing the taxation such a manner as the Legislature shall direct of persons engaged in certain occupations in by general law uniform as to the classes upon which it operates, forbids partiality and favoritism, and makes equality before the law a rule of legislative action. It does not, however, forbid reasonable classification of persons for the purpose of taxation. Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L. R. A. 922.

[Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. § 7.*1 3. LICENSES (§ 7*)-OCCUPATION TAX-CLASS

IFICATION OF OCCUPATIONS.

When a city charter authorizes a municipality to require by ordinance a license tax of persons engaged in any occupation, trade, or of the city, the municipal authorities may by business carried on within the corporate limits ordinance classify the different occupations for taxation, and impose different taxation in different amounts upon the different classes; and a classification made by such authorities will not be interfered with by the courts, unless it manifestly appears that it is unreasonable and arbitrary.

said land, easements or franchise are situated, a petition setting forth the location and character of the right of way needed and describing the lands to be crossed." Section 12. The application for condemnation described the proposed right of way over each government subdivision of the lands of these plaintiffs substantially as follows: "A right of way 200 feet in width, being 100 feet on each side of the center line of said Elk Creek Cut Off Ditch as now located, over and across lot 4 or the southeast quarter of the southeast quarter of section 29, township 29, range 8, being 5.8 acres, Henry W. O'Neill, owner." The starting point appears to be definitely stated in the petition. The evidence shows that the line of the proposed ditch was definitely located by the surveyors and was marked with stakes. When the drainage board went over the land the stakes were still in place. Some of them were missing when the appraisers viewed the land. The drawings, which the appraisers had, showed the exact location of the proposed ditch. There is nothing to indicate that the appraisement of damages was in any way affected by any supposed uncertainty as to the location. The county court had power to correct any irregularities in the method of appraisement. If by reason of the difference in the statute from that construed in Trester v. Missouri P. R. Co., 33 Neb. 171, 49 N. W. 1110, that case is not to be regarded as decisive of the case at bar upon this point which we do not decide, it seems clear that the application was sufficiently definite to give the county court jurisdiction of the proceedings. Errors, if any, not affecting the jurisdiction of the court, should have been corrected in that court or upon appeal. An ordinance providing a fine and imprisWe have not found any errors in the rec-onment as a means of enforcing a license tax ord requiring a reversal of the judgment of does not trench upon the Constitution of this the district court. It is therefore affirmed. state. Rosenbloom v. State, 64 Neb. 342, 89 N. W. 1053, 57 L. R. A. 922.

Cent. Dig. 88 7-15, 19; Dec. Dig. § 7.*]
[Ed. Note.-For other cases, see Licenses,

4. LICENSES ($7*)-OCCUPATION TAX-CLASS

IFICATION-VALIDITY.

The classification of persons lending money upon chattel security in a different class from chartered banks, negotiators of loans on realty, real estate agents, and dealers in bonds and stocks, and the imposition of a tax differing in amount upon such money lenders from that imposed upon such other classes, is not so wanting in reason that the ordinance providing for such classification will be declared void as being entirely arbitrary.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. § 7.*] 5. CONSTITUTIONAL LAW (§ 287*)-LICENSES (§ 7*)-DUE PROCESS-OCCUPATION TAXIMPOSITION OF PENALTIES.

[Ed. Note.-For other cases, see ConstitutionFAWCETT and HAMER, JJ., not sit- al Law, Cent. Dig. §§ 831, 905; Dec. Dig. §

ting.

NORRIS v. CITY OF LINCOLN.

(No. 17,253.)

287;* Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. § 7.*]

Appeal from District Court, Lancaster County; Stewart, Judge.

Action by Nimrod W. Norris against the City of Lincoln. From judgment for defend

(Supreme Court of Nebraska. May 17, 1913.) ant, plaintiff appealed, and, upon his dying,

(Syllabus by the Court.)

1. CONSTITUTIONAL LAW (§ 206*)—CONSTRUCTION-PRIVILEGES AND IMMUNITIES.

William M. Dennis was substituted and prosecutes the appeal. Affirmed.

Greene & Greene and L. C. Burr, all of Lincoln, for appellant. Fred C. Foster and D. H. McClenahan, both of Lincoln, for appellee.

It is not the purpose of the fourteenth amendment to prevent the states from classifying the subjects of legislation and making different regulations as to the property of different individuals differently situated. The proviBARNES, J. This is a suit in equity sion of the federal Constitution is satisfied if all persons similarly situated are treated alike brought by Nimrod W. Norris, a citizen of in privileges conferred or liabilities imposed. the United States, a citizen and taxpayer of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes