The legislature had the power, under the constitution, to pass chapter 98 of the Laws of 1893, and thereby make the territory from which the legislature of 1887 attempted to establish Garfield county a municipal township of Finney county; and the act, so far as it affects the status of that territory, is not in violation of either section 16 or section 17, art. 2, of the constitution.

(Syllabus by the Court.)

Application by the state, by its relator, J. T. Little, attorney general, for a writ of mandate to compel L. D. Lewelling, governor, to appoint two persons as justices of the peace of that portion of the territory which was included in Hodgeman county prior to the passage of the act of 1887, by which the creation of Garfield county was attempted. Writ denied.

John T. Little, Atty. Gen., Fred. C. Thomas, and T. A. Milton, for plaintiff. Milton Brown, for defendant.

ALLEN, J. The purpose of this action is to determine the legal status of the territory from which the legislature attempted to establish Garfield county, but failed because less than the required area was included within its boundaries, as held by this court, in the case of State v. Thomas Rowe.1 A writ of mandamus is asked, commanding the governor to appoint two persons as justices of the peace of that portion of the territory which was included in Hodgeman county prior to the passage of the act of 1887, by which the creation of Garfield county was attempted. No question is raised as to the form of the pleadings, or the right to maintain such an action against the governor, but both parties seek a decision of the court as to the validity of the act passed by the legislature, entitled "An act creating the township of Garfield, of Finney county, Kansas, and making provisions therefor." Approved March 11, 1893. The plaintiff claims that this act is invalid as being in violation of section 16, art. 2, of the constitution, and that the subjectmatter of the bill is not covered by the title, There is much said in the briefs with reference to the legal status of the territory out of which Garfield county was attempted to be created after the passage of the act of 1887, and prior to the passage of the act under consideration at the last session of the legislature. Inasmuch as the legislature has ample power to establish and change county lines within the limits prescribed by the constitution, we do not deem it necessary to decide whether this territory still remained,-"half of it in Hodgeman county, and the

'No opinion filed.

*

other half in Finney," as contended on behalf of the plaintiff, or whether it was simply left out in the cold, as claimed by the defendant. The power of the legislature, by a further enactment, to attach this territory to any adjoining county, was as full in the one case as in the other. Plaintiff claims that, in order to create a township of Finney county, the territory must first be included in Finney county; but the word "create is a very comprehensive one, and, as applied to the doings of human beings, ordinarily implies that they may get their material wherever they can. We are unable to perceive that the legislature, in creating a township of Finney county, is restricted to territory already in Finney county. We must view this act in the light of the conditions existing at the time it was passed. Here was a portion of the state which a former legislature had attempted to form into a county. That attempt had failed because a provision of the constitution was violated. There was an urgent necessity that something should be done in order to give this territory local government. In order to provide for this necessity this act was passed. The title says it is for the purpose of creating Garfield township of Finney county. The body of the act provides that this ter ritory shall be made a municipal township of Finney county, to be known as "Garfield township." It is true that the words, “and is hereby attached to Finney county, Kansas, for judicial purposes, until the further provision for said territory by the legislature of this state," are added, but these words cannot be construed to evidence an intent on the part of the legislature to defeat the act in toto. It is a well-settled rule in the construction of statutes that all the terms and provisions are to be so construed as to uphold the act, and carry out the beneficial purposes of it, rather than to pick to pieces and destroy. It not infrequently happens that the language chosen is not the best that could have been selected, but, whatever the words are, it is our province to ascertain from them the purposes of the lawmaking power, and to declare and enforce the will of the legislature, as expressed in the act. It seems to us clear that the legislature intended that this territory should become a municipal township of Finney county, and that the title to the act would naturally lead any one who might read It to peruse the act for the purpose of ascer taining where the territory was located, its boundaries and extent, from which the township was to be created, and the fact that the township was being named Garfield would be suggestive of a purpose to deal with this particular territory, especially under the circumstances then existing. We are entirely satisfied with the former decisions of this court, which declare that section 16, art. 2. of the constitution, is mandatory, and must be observed, as was said in Philpin v. Mc

Carthy, 24 Kan. 393: "Section 16, art. 2, of the constitution, is mandatory, not merely in requiring that the subject-matter of an act shall be clearly expressed in its title, but also in requiring that the act shall contain only one subject. But while this section should be enforced, so as to guard against the evils designed to be remedied thereby, it should not be construed narrowly or technically to invalidate proper and needed legislation."

It is also claimed that this act is special legislation, and therefore prohibited by section 17, art. 2, of the constitution. It was held in the early case of State v. Hitchcock, 1 Kan. 178: "Section 17, art. 2, of the constitution, providing that, ‘in all cases where a general law can be made applicable, no special law shall be enacted,' leaves a discretion to the legislature, recognizes the necessity of some special legislation, and seeks only to limit, not to prohibit, it. The legislature must determine whether their purpose can or cannot be expediently accomplished by a general law." And the doctrine declared in that case has been reiterated in numerous cases. See Beach V. Leahy, 11 Kan. 23; Commissioners v. Shoemaker, 27 Kan. 77; Harvey v. Commissioners, 32 Kan. 159, 4 Pac. Rep. 153; Knowles v. Board, 33 Kan. 692, 7 Pac. Rep. 561; City of Wichita v. Burleigh, 36 Kan. 34, 12 Pac. Rep. 332. It is very difficult to see how the legislature could have provided for the government of this territory otherwise than by a special act, or how the boundaries of any county can ever be fixed, otherwise than by special legislation. We perceive no valid objection to the validity of this act, in so far as it affects the status of the territory before designated as Garfield county. We think the legislature had ample power to attach it to Finney county, and make it a municipal township thereof. The provisions of section 4 of said act we do not need to express any opinion upon in this case. The writ will be denied. All the justices concurring.

(6 Wash. 244)

WALKER et al. v. BAXTER. (Supreme Court of Washington. April 24, 1893.)

ESTOPPEL-WHAT CONSTITUTES-PLEADING.

1. In an action for the purchase price of oats, defendants alleged that plaintiffs were the stockholders, officers, and agents of a mill company; that the oats in question were bought by defendants of said mill company; that the price of the oats was credited on an indebtedness of the mill company to defendant; and that the price paid was higher than defendant would have paid if he had not purchased from the mill company, which was his debtor, as aforesaid. Held, that these facts did not constitute an estoppel.

2. An estoppel must be specially pleaded to be available as a defense.

Action by William Walker and others against S. Baxter, doing business as S. Baxter & Co. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. B. Metcalfe, for appellant. Hughes, . Hastings & Stedman, for respondents.

ANDERS, J. This action was brought by the respondents to recover the purchase price of oats alleged to have been sold and delivered by them to the appellant. The defendant denied that the plaintiffs were the owners of the oats, or that they sold or delivered the oats to the defendant; and for a separate and affirmative defense, by way of estoppel, alleged: "At all the times herein mentioned the Puget Mill Company was an existing corporation, doing business as such corporation, by virtue of the laws of the territory of Washington, now continuing in force as laws of the state of Washington; and at all the times herein mentioned the plaintiffs, and each of them, were, and they now are, stockholders, officers, and agents of the said corporation, and as such agents had, and now have, the charge, management, and control of the business of said corporation. And on the 16th day of October, 1889, the said corporation, the Puget Mill Company, by and through its agent, William Walker, one of the plaintiffs herein, sold and delivered the oats referred to in said complaint to this defendant. And at the time of sale and delivery of said oats, the said corporation, the Puget Mill Co., was justly indebted to this defendant in the sum of $2,078, which indebtedness has never been paid; and, upon receiving the oats referred to in plaintiffs' complaint from said corporation, this defendant credited to said corporation upon account the amount of the purchase price of said oats, to wit, the sum of twenty-one hundred and fifty-four and 8-100 dollars, ($2,154.08.) And the price which defendant agreed to pay for said oats in making purchase thereof was and is higher than the market at the time justified defendant in paying, and was and is higher than this defendant would have paid for said oats if he had not purchased the same from said mill company, which was then indebted to him as aforesaid." To this affirmative defense the plaintiffs interposed a demurrer, (which seems to have been treated as a motion to strike out,) which was sustained by the court, and the cause proceeded to trial upon the issues raised by the denials in the answer, the result of which was a verdict and judgment for the plaintiff.

The appellant insists that the court erred in sustaining the demurrer, for the reason that the facts stated in the affirmative defense were sufficient to constitute an estoppel in pais, and, if proved, would have been a complete defense to the action; but, in our

putably correct and proper. The insufficien

cy of the pleading as an estoppel is patent upon its face. It nowhere avers that the appellant was induced to believe that the Puget Mill Company was the owner of the oats, by any statement, representation, or act made or done by the respondents. Nor does the pleading contain any other allegation constituting an element of estoppel. See Bigelow, Estop. (5th Ed.) 600. It is at most a mere argumentative denial of the allegations of the complaint, or, in other words, a statement of facts showing that those allegations are untrue. At the trial the appellant sought to introduce testimony, under his denials, tending to show an estoppel in pais, and he now claims that the court erred in excluding such testimony. We think the testimony was properly excluded. Under our system of pleading, the facts constituting an estoppel must be specially pleaded, in order to be available as a defense, (Code Proc. § 194;) and such is the rule generally in those states which have adopted the reformed procedure. See Bliss, Code Pl. § 364; Boone, Code Pl. § 67; Warder v. Baldwin, 51 Wis. 450, 8 N. W. Rep. 257; Anderson v. Hubbell, 93 Ind. 570; Phillips v. Van Schaick, 37 Iowa, 229.

The instructions to the jury requested by the appellant were not warranted by the evidence, and were therefore properly refused; and those given we think fairly presented the law applicable to the case. We perceive no error in the record, and the judgment of the court below is therefore affirmed.

HOYT, SCOTT, and STILES, JJ., concur.

(6 Wash. 220)

CITY OF PORT TOWNSEND v. SHEEHAN, County Assessor. (Supreme Court of Washington. April 14, 1893.) CLASSIFICATION OF CITIES TAXATION--DUTY OF COUNTY ASSESSOR.

1. Act March 27, 1890, provides for the organization of cities of the first, second, and third class, gives cities of each class certain powers, imposes on them certain duties, and provides a manner of reincorporating existing cities. Held, that a city organized by a special charter, and not reincorporated, is not within the classifications made, and hence not included in Act March 9. 1893, providing for the assessment and collection of taxes in cities of the third and fourth class. Rohde v. Seavey, 29 Pac. Rep. 768, 4 Wash. St. 91, followed.

2. The county assessor is not authorized to make an assessment for such city under the general revende act of March 15, 1893, providing in general terms merely a basis of taxation for municipal as well as for all other purposes, and a form of assessment roll in which is a blank for city taxes.

Appeal from superior court, Jefferson county; R. A. Ballinger, Judge.

Application by the city of Port Townsend for writ of mandate to compel John F. Sheehan, as assessor of Jefferson county, to note for assessment the taxable property within the limits of said city. There was a demurrer to the writ as issued, which was sustained. The city appeals. Affirmed.

Del Cary Smith, for appellant. Robt. W. Jennings, for respondent.

HOYT, J. Two questions are presented by the appeal in this case: First. Does the act of March 9, 1893, entitled "An act to provide for the assessment and collection of taxes in municipal corporations of the third and fourth class in the state of Washington, and declaring an emergency," apply to the city of Port Townsend? Second. If it does not apply, is the assessor of the county of Jefferson authorized by the general revenue law ap: proved March 15, 1893, to make the assessment for said city, as a part of his duties as such county assessor?

The first question must be decided in the negative, upon the authority of the case of Rohde v. Seavey, 4 Wash. St. 91, 29 Pac. Rep. 768. In that case we held that the city of Port Townsend was not a classified city under the general laws of the state. We have seen no reason to change the views then expressed, and, as there is nothing in said act of March 9th to show any intention on the part of the legislature to include cities not provided for by such classification, it follows that said act can have no force so far as said city is concerned.

As to the other question, it seems clear to us that there is no sufficient direction to the county assessor contained in said act to authorize him to perform the duties of assessor of such city. The only sections which seem in any manner to relate to the assessment for municipal purposes are the first, which, in general terms, provides a basis of taxation for municipal as well as for all other purposes, and the ninety-fifth, which provides the form of the assessment roll in which a blank is provided for the insertion of the amount of the city tax. But these provisions alone, when unaided by any of the provisions of the act of March 9th, above referred to, do not sufficiently point out the machinery for so doing to authorize the assessor of the county to make an assessment of the city which will be available for city purposes. It follows that the action of the court in quashing the temporary writ of mandamus was correct, and its judgment must be affirmed.

(6 Wash. 250)

STATE ex rel. CITY OF SEATTLE v.
CARSON, Comptroller.

(Supreme Court of Washington. April 25, 1893.)

POWERS OF LEGISLATURE-MUNICIPAL TAXATION-CHANGING METHOD OF ASSESSMENT AND COLLECTION-REPEAL OF STATUTE.

1. The provision of Const. art. 11, § 10, that cities and towns and the charters thereof shall be subject to and controlled by general laws, applies to cities of the first class, and authorizes the legislature to change the method of assessing and collecting taxes in such cities.

2. Const. art. 7, § 9, and art. 11, § 12, providing that for all corporate purposes municipal corporations may be vested with authority to assess and collect taxes, and that the legislature shall have no power to impose taxes on municipal corporations for municipal purposes, do not render invalid Act March 9, 1893, making the assessment roll of a city of the first class the same as that of the county, and making the county treasurer ex officio collector of taxes for the city.

3. Act March 9, 1893, making the county treasurer ex officio collector of city taxes, and requiring the city to pay him $500 per year in payment for his services, is not in conflict with Const. art. 11, § 8, forbidding the salary of a municipal officer to be increased or diminished during his term of office, or with Const. art. 11, § 12, denying to the legislature the right to impose taxes on municipal corporations.

4. The general revenue law of March 15, 1893, (section 137,) repealing all acts and parts of acts heretofore enacted providing for the assessment and collection of taxes, applies only to laws relating to state taxation operating generally in all parts of the state, and does not repeal Act March 9, 1893, relating to the assessment and collection of taxes in cities of the first class.

Appeal from superior court, King county; J. W. Langley, Judge.

Mandamus on the relation of the city of Seattle against James M. Carson, comptroller. From a judgment for defendant, plaintiff appeals. Affirmed.

Battle & Shipley, for appellant. George Donworth and James B. Howe, for respondent.

SCOTT, J. This is a cause just heard upon a special assignment, and the necessity for an immediate decision prevents an elaborate discussion of the questions involved, and a full review of the authorities. It is contended by appellant that an act of the recent legislative assembly, approved March 9, 1893, entitled "An act providing for the assessment and collection of taxes of cities of the first class, and specifying the duties of certain county officers in regard thereto, and declaring an emergency," is without effect, for the several reasons hereinafter mentioned.

First. That it is void as being in contravention of the inherent right of a municipal corporation to regulate its affairs which are purely local; and that it conflicts with section 10, art. 11, of the constitution of the

state, which provides that "corporations for municipal purposes shall not be created by special laws, but the legislature, by general laws, shall provide for the incorporation, organization, and classification, in proportion to population, of cities and towns, which laws may be altered, amended, or repealed. Cities and towns heretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall so determine, and shall organize in conformity therewith; and cities or towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, shall be subject to and controlled by general laws. Any city containing a population of twenty thousand inhabitants or more shall be permitted to frame a charter for its own government, consistent with and subject to the constitution and laws of this state," etc. Appellant contends that cities of the first class, organized under freeholders' charters, are not within the clause which provides that cities and towns heretofore or hereafter organized and all charters thereof framed or adopted by authority of this constitution shall be subject to and controlled by general laws. Appellant contends that such cities have the right of local self-government, and that the legislature cannot interfere there with; that they are subject to the constitution and general laws of the state, but that the words "controlled by" were not intended to apply to such cities; that the words "subject to" and "controlled by" are not synonymous, either in their ordinary meaning or as therein intended; that it is significant that in the third paragraph, where specific provision is made for cities of over 20,000 inhabitants, the word "controlled" is dropped, and charters of such cities are only required to be "consistent" with and "subject" to the constitution and laws of the state; that, strictly speaking, the words "subject to" do not involve the idea of power to "direct" or "govern." And, as further sustaining the contention that cities forming their own charters are not to be "controlled" by the legislature in the regulation and management of the affairs of the municipality, and its right to prescribe the names and number of its officers, and require them to perform certain duties, we have but to take into consideration the fact that the legislature must control all cities not having a population of 20,000 inhabitants or more, for the reason that such cities have no power to adopt their own charters, while the latter-mentioned cities have such power, and such charter, when adopted, is for its own "government" and the "organic law thereof," which facts could not exist consistent with the right of the legislature to enact laws for the "government" thereof, which shall be the "organic