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no chasers of school or university lands," etc., which provided that school lands in this

to compel a conveyance of certain lands in state should be sold only at public auction, section 16, township 10 N., range 35 E., Wil and for not less than $10 per acre. Act lamette meridian, in Walla Walla county, al Feb. 22, 1889, § 11. The act of congress leging that they had been sold and conveyed which enables a territory to come into the to her grantor by the county commissioners Union as a state usually contains many proin 1865, in pursuance of the act passed by visions, which, upon the admission of the the territorial legislature January 23, 1863, state, become inviolable, either by the state authorizing the sale of school lands reserved or by the United States. But an enabling by the act of congress organizing the terri act is at most a proposition, and has no bindtory of Washington. 10 Stat. 179.

ing force upon the people of a territory until eral demurrer to the complaint was over they have adopted a constitution, and the ruled, and a decree was entered upon de state has been admitted into the Union. fendants' refusal to plead further. The com Then, if, by their constitution, they have explaint alleges all the facts required to be pressed no dissent from any proposition conshown by the act of 1890, excepting that it tained in the enabling act, doubtless they is not alleged that "for any reason such must be held bound by its conditions. But grantee has not been vested with a title can they in no way claim to have an exthereto." But this omission is, in the view of pressed dissent respected ? Treating the en- the pleader, compensated by an allegation abling act as a proposition for a contract, as

that the state and the commissioner are as appellants maintain it should be treated, can nemu serting that the title did not vest in respond the other side present no proposals for a

I ent's grantor by the conveyance of the com modification? It would be an unusual thing *32 missioners, but that it is now vested in and in the law of contracts if they could not; Coen held by the state, and that the lands are and it would also be unusual to find that,

o subject to sale as state school lands. Argu where both parties had acted upon the mod

. ment was made, and cases cited, to sustain ified instrument, it should turn out that the on the proposition that the reservation of lands first proposal was, after all, the only conle in the several territories by congress, to be

tract. And that seems to us to be this case. capplied to the support of common schools in Congress proposed to grant to the state cer

the territories, and the states to be created tain lands to constitute a fund for the suptherefrom, constituted, in each case, a pres- port of public schools, and it saw fit to atent, irrevocable grant to the territories, un tach to the grant a condition subsequent, der which the territorial legislatures could governing the manner of sale and the price dispose of the title to those lands. But we at which those lands should be sold. The do not deem it to be material to this case to people of the state, on the other hand, while pass upon that question. Were we to find gratefully accepting the hounty of governin the affirmative upon it, the respondent,

mont, were mindful that certain persons had who advances it for consideration, might find at least a strong moral equity in a portion herself without a cause of action, since the of the lands proposed to be granted, and ex

statute expressly limits the right to sue the pressed in clear and unmistakable language - To state to those transactions of the county com tleir intention to respect that equity. This

missioners university commissioners, made a counter proposition, which went bewhere "for any reason such (their) grantee fore the president, and was passed by him has not been vested with a title." It would without challenge; and it went again before seem to be obvious that, if the territory had congress upon the admission of our senators received a grant of lands from congress, a and representatives, and so far from being

conveyance under its authority would have challenged, and the admission of the state mod vested the title, which is not a case provided | denied, everything has been done to put . for in this law. However the law may be as Washington upon the same footing as the

to the territory's rights and powers, it must other states. It seems to us that, by the be conceded that in so far as the state now analogy of the contract, the modified propoclaims any title to the school lands under the sition would, in any court, be taken to be the act of February 22, 1889, commonly called existing contract between the parties. the "Enabling Act,” she is .estopped to deny But there is also a question of propriety that that act bas controlling force in her dis involved. The courts of the states are as position of those lands, except as that act much bound to uphold the supremacy of the may have been inodified. Minnesota y. constitution of the United States as are the Bachelder, 1 Wall. 109.

federal courts, or as they are to sustain the This brings us to the main point in the constitutions and laws of their several states. case: The appellants urge that it would be This obligation may perhaps even extend to a violation of that provision of the federal declaring unconstitutional a provision in the constitution which prohibits states from state constitution under which the court expassing laws impairing the obligation of con ercises jurisdiction. But the conflict between tracts, were we to uphold the proviso to arti the state and the federal constitution must cle 16, § 2, of the state constitution, and the certainly be a very clear one to call for so act of 1890, because we should thereby coun solemn a decision; and, whatever may be tenance & violation of the enabling act, said of the case at bar, we do not find in it

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any such obvious ground for holding that ant city of Spokane Falls to exercise atober there is a conflict between the federal con ity and jurisdiction in municpal mite stitution and the constitution of this state over certain territory claimed by the pas as would justify us in holding the provision tiff, the town of Denver, to be emborg for confirming these sales of school lands to within its corporate limits. The defender be void. The statute does not authorize the claimed that the disputed territory was legu assessment of costs against the state, and ly annexed to the city of Spokane hul none should have been allowed. The state

and became a part thereof, by virtue of has never been in fault in these matters, but election held for that purpose on July 2 it has graciously allowed a suit to be brought, 1890, in conformity with the provisions et that the landholder might secure further as section 9 of the act of March 27, 1891 surance of his title. It is all to his ad

titled "An act providing for the organis: vantage, and he ought to pay the expense

tion, classification, incorporation and gore: of the proceeding. But it was different when the state appealed, and thereby put itself ing an emergency,” and that the inhabitasz

ment of municipal corporations, and decir in the wrong. The commissioner is the mere ministerial

of the alleged town of Denver eter ŠO officer of the state, to execute its deed, and

have been, and still are, amenable to t

same laws and ordinances by which the was not a necessary party to the action. The decree is affirmed, with the exception of the

remaining portion of the city is gorazd ccsts allowed. Respondent will recover costs

and regulated, and that its officers bite te of the appeal against the state only.

same powers there that they may laura

exercise elsewhere within the corporate Is DUNBAR, C. J., and SCOTT, ANDERS,

its of the city. On the contrary, the past and HOYT, JJ., concur.

tiffs contend that the town of Denver Fa long prior to and at the time of said 33 nexation proceedings, a legally organized an?

acting municipal corporation, and that TOWN OF DENVER v. CITY OF SPO

proceeding was, as to it, illegal, pull

. 23 KANE FALLS et al.

void; and it sought, by this action, to te (Supreme Court of Washington. Nov. 7, 1893.)

strain the defendants from proceeding tr PLEADING-ANSWER-SPECIAL LEGISLATION.

ther in the matter of said election, or 1. An answer wherein defendants "say"

vassing the vote thereof, held in said to that they deny each and every allegation in the of Denver, or from asserting any rigbt o complaint, while not commendable, is a denial, authority whatever over the said to our and will be sustained, unless objected to at the proper time.

any of its inhabitants, or the property of 2. Under Code Proc. $ 194, subd. 1, which any of its inhabitants, or interfering Fit requires the answer to contain a general or spe the proper exercise of the corporate frigcific denial of each material allegation of the complaint controverted by defendant, such de

chises and privileges of said town, and v nials put plaintiff to his proof as to every alle

the official duties of its mayor and alter gation material to his cause of action; and hence a general denial in an answer is sufficient election and proceedings concerning the et

men, and to obtain a decree declaring to require plaintiff to prove its corporate character alleged in the complaint.

tension of the boundaries of the city of 3. Act March 27, 1890, (Laws 1889-90, p.

Spokane Falls to be null and void. It i 131,) giving certain communities, which had pre- alleged generally in the complaint that the viously undertaken to incorporate as municipal plaintiff, the town of Denver, now is a corporations under an invalid law, the right to reincorporate under the statute without refer

at all times hereinafter mentioned has been ence to population, but solely by reason of their a municipal corporation, duly organized and peculiar condition, is a special law, and void, existing under and by virtue of the laws or under Const. art. 2, § 28, which prohibits the legislature from passing special laws "for grant

the state of Washington; and it is further ing corporate powers and privileges," and ar specially alleged that on the 16th day of ticle 11, § 10, which provides that corporations June, 1889, it was duly incorporated under for municipal purposes shall not be created by and by virtue of the provisions of an et special laws."

of the legislature of the then territory of Appeal from superior court, Spokane coun

Washington entitled “An act for the incorpora ty; Jesse Arthur, Judge.

ation of towns and villages in the territory Action by the town of Denver against the

of Washington," approved February 2, 1868 city of Spokane Falls and others to restrain

and then and there became, ever since ba defendants from proceeding with the annexa

remained, and now is, a municipal corport tion of the town to the city. From a judg

tion duly organized and acting; and that o ment for defendants, plaintiff appeals. Af

the 15th day of May, 1890, it reincorporated firmed.

as a municipal corporation under and by Thomas C. Griffitts, for appellant. James virtue of a law of the state of Washington Dawson, Corp. Counsel, and Jones, Belt & entitled "An act providing for the organiza Quinn, for respondents.

tion, classification, incorporation and govert

ment of municipal corporations, and declar ANDERS, J. This controversy grew out ing an

emergency," approved March 27, of an assumption on the part of the defend 1890, in the manner prescribed in section 4

said act, as a municipal corporation of the ery allegation material to his cause of action. purth class, as therein provided. The See Pom. Rem. & Rem. Rights, 8 683. II, arned counsel for the appellant strenuously therefore, it was material for the plaintiff,

isists that these allegations were not denied in order to state a cause of action entitling 2) the

answer, and must therefore be the town of Denver to the relief sought, or eemed admitted. The point made is that to any relief whatever, (and we think it was,) be attempted denial is bad in form, and, to allege the corporate existence of said * valid at all, amounts to a plea of the town, we are of the opinion that the denials

eneral issues only, and that such a plea in the answer were sufficient to controvert dmits the corporate existence of the plain- | that fact, and to require proof thereof. **iff. The particular part of the answer But the respondents' counsel contends that

hus objected to is as follows: "Now come the complaint shows on its face that the alce- he above-named defendants, and for their leged town of Denver never was incorpoe rinswer to the third amended and supple- | rated under any law of the territory or state 'r nental complaint of the plaintiff herein say of Washington, and that for that reason the that they deny each and every allegation, complaint fails to state facts sufficient to con

matter, and thing in said complaint con stitute a cause of action. And the argument *tained, except those hereinafter admitted.”

is that the act of February 2, 1888, under It must be admitted that this form of plead which it first attempted to organize, was void, ing is objectionable, and not to be com and so declared by this court in Territory v. mended. It is just as easy for a defendant Stewart, 1 Wash. St. 98, 23 Pac. 405, and to deny positively any allegation of the com that section 6 of the above

mentioned act of plaint controverted by bim, and thus con March 27, 1890, under which it is alleged it form strictly to the requirements of the reincorporated, is also null and void, as beCode, as it is to “say" he denies. “But ing in direct conflict with the provisions of such a form is nevertheless a denial, and, if the constitution of the state. A serious and not objected to at the proper time, will be important question is thus presented for our sustained." Maxw. Code. Pl. 390. While determination, for, if the town of Denver, the denial in this case is not so specific as

as such, never had an existence, it would it should have been, yet, inasmuch as the

seem logically to follow that the contention defendants were not required by motion

of respondents should prevail. But it is in the court below to make it more specific,

earnestly insisted on behalf of the appellant We do not think we ought now to declare it that by its organization under the void act insufficient, especially as it appears from the

of February 2, 1888, and the exercise of cor1. answer as a whole just what allegations of

porate powers, the town of Denver became 31. the complaint are denied and what are ad

at least a de facto corporation, and that by 12: mitted. See Boone, Code Pl. $ 60, and cases

its reorganization it became a corporation de cited; Maxw. Code Pl. p. 388.

jure, the existence of which cannot be called But as before intimated, it is claimed by

in question in this action. In support of this counsel for the plaintiff that, even if the said

position the general rule of law is invoked in allegations of the answer constitute a de

that when the existence of a corporation has $ nial in any sense, still they are not suff

been recognized by acts of the legislature, Era cient to require proof of the corporate ex

all inquiry as to the original creation of the istence of the town of Denver Numerous

corporation is precluded; that it becomes authorities are cited to the proposition that by such recognition ipso facto a legal corpo by pleading the general issue the defendants ration, whatever defects or irregularities admit the corporate existence of the plain- there may have been in the proceedings retiff. Some of the decisions cited, however, quired by law to be taken for its organizawere based upon special statutes, (see As tion. We have no doubt of the correctness sociation v. Read, 93 N. Y. 474; Bank: v. Loy

of this proposition, generally, for it has many hed, 28 Minn, 396, 10 N. W. 421,) and others times been enunciated by the courts. See e proceeded upon the theory that a plaintiff's Wait, Insolv. Corp. $ 484, and cases cited.

capacity to sue is a preliminary question, Nor do counsel for the respondents question which is waived by pleading to the merits. it. But they do question the power of the The doctrine contended for by appellant is legislature to enact the law by which the recognized by Mr. Wait in his recent work town of Denver claims to have been recogon Insolvent Corporations as one of very gen nized as an existing municipal corporation; eral application, but he admits that it is not and, furthermore, they deny that the legisuniversal, and that the question is more or lature, by the statute in question, or by any less affected by the provisions of the differ. other statute, ever attempted or assumed to ent Codes. Wait, Insolv. Corp. § 136. Our recognize its corporate existence. In other Code of Procedure (section 194, subd. 1) pro words, it is insisted that section 6 of the act vides that the answer must contain a gen of March 27, 1890, is in contravention of eral or specific denial of each material al subdivision 6, § 28, art. 2, and also of seclegation of the complaint controverted by tion 10, art. 11, of the constitution of the the defendant, etc.; and it was manifestly state, and is therefore null and void, and con. intended by the legislature that such denials ferred no rights or privileges upon the so should put the plaintiff to his proof as to ev called town of Denver.

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The following are the respective provi 1888, and we are now constrained to be sions of the constitution above mentioned: that they had not the power to do so, “The legislature is prohibited from enacting ever the intention may have been; and this any private or special laws in the following being so, it follows that the town of Dete, cases: (6) For granting corporate powers or as shown by the complaint, never had : privileges. * * * Corporations for municipal legal corporate existence, and is, theretan purposes shall not be created by special laws; not ent to the relief sought Norde but the legislature, by general laws, shall we think that the complaint states a szig provide for the incorporation, organization cause of action in favor of the mayor and and classification in proportion to population dermen, who were joined as plaintiffs, dr of cities and towns, which laws may be al as what we have already said is decisire il tered, amended or repealed," etc. And it is this case, it is not necessary to determ) contended that section 6 of the act of March other points which are ably discussed in 27, 1890, (Laws 1889–90, p. 131) is inimical to the briefs of counsel. The judgment on those constitutional provisions, and especially pealed from is affirmed. the latter, for the reason that the legislature thereby attempted to confer upon certain DUNBAR, C. J., and SCOTT, STILES communities which had previously under and HOYT, JJ., concur. taken to incorporate under an invalid law the right to incorporate under the statute without reference to population, but solely by reason of their peculiar condition. As

ILIFF Y. FORSSELL et al. to such coinmunities, is this a general or (Supreme Court of Washington. Nor. 7, 182, a special law? It is claimed by the learned

MECHANICS' Liens—PRIORITIES. counsel for the appellants that it is general,

One who performs labor in the erectia because it applies to all communities in the of a building on land in possession of his en state similarly situated. But we think that

ployer under a contract for its purchase is not

entitled to a lien, as against the interest of the cannot be said to be the exclusive test. If

legal owner, though the latter has failed : the operation and effect of a statute is nec post a notice that he is not responsible for is essarily limited to a particular class or num provements placed thereon, as provided by Ga ber of persons or things, it is as much a

St. § 1671. Lumber Co. v. Bolton, 32 Pac idi,

5 Wash. 763, followed. special statute, whatever may be its form, as it would be if it applied to but one person

Appeal from superior court, Chebalis coolor thing only. Now, the legislature found

ty; Mason Irwin, Judge. certain aggregations of citizens, in different

Action by Albert E. Nitr against Thai localities throughout the state, assuming,

dore Forssell and Milford J. Pierson to fore without warrant of law, to be municipal cor

close a mechanic's lien. From a judgment porations, and, in order to relieve them

in plaintiff's favor, defendant Forssell ap from the embarrassment consequent upon the

peals. Reversed. condition in which they had placed them. Ben. Sheeks and Hogan & McGerry, fe selves, enacted the section of the statute in appellant. C. J. Pearson and A. H. Garretquestion. Would the character of the pro son, for respondent. vision be different if it applied to but one such community instead of several? Mani SCOTT, J. Appellant was the owner of festly it would not We think it was, and certain lots situated in Aberdeen, Chebalis was intended to be, a special provision, ap county, and contracted in writing to sell plicable solely and exclusively to existing the same to defendant Pierson. The re conditions. It is therefore not a general spondent, under a contract with Pierson, law, and, as it purports to grant special cor performed labor in erecting a building 03 porate powers and privileges to the appel said real estate, and brought this action lant town and its so-called officers, it is un against appellant and said defendant to fore constitutional, and consequently void. See close a lien upon the premises therefor. It City of Topeka v. Gillett, 32 Kan. 431, 4 is not claimed that there were any contract Pac. 800, in which case the court, upon an relations existing between appellant and re elaborate review of the adjudged cases upon spondent, and it appears that respondent, this question, reached the same conclusion at the time he performed said labor, knen we have arrived at in this case; and, be that Pierson had only a contract for the ing unconstitutional, it is as ineffectual and purchase of said property, and that appels inoperative as though it had never been lant was the owner of the legal title. In passed. Norton v. Shelby Co., 118 U. S. filing his lien notice, no attempt was made 425, 6 Sup. Ct. 1121. It was no law, and the to make said claim a charge upon the inclaim of legislative recognition of appellant terest of appellant, and he was not named as a municipal corporation is therefore with in the notice. It seems that the lower out foundation, and must fall. In Re Camp court rendered judgment against appellant bell, 1 Wash. St. 287, 24 Pac. 625, this court upon the ground that he was liable because held that the legislature by the of of not having posted a notice, under section March 27, 1890, did not legalize attempted 1671, Gen. St. Since this cause was tried. Incorporations under the act of February 2, we have held, in Lumber Co. F. Bolton, 6

act

Wash. 763, 32 Pac. 787, that the lien, in seq., 124. But respondents' first point is that such a case, only attaches upon the interest that portion of section 2421 of the Code of of the contracting party, and not against 1881, as amended by the act of 1886, (page the owner of the legal title, and this case is 84,) which reads, “Such corporations and the governed by that decision. There is an at- members thereof being subject to all the contempt on the part of respondent, in his ditions and liabilities herein imposed and to brief, to maintain that appellant is estopped none others," relieves the stock subscriber from denying his liability, but upon just from all liability, except that of having his what grounds such claim is made, does not stock forfeited and sold under the provisions clearly appear. It is not contended that he of section 2430, as amended in 1886. (Referrepresented Pierson was the owner of the ence is made to the Code of 1881 and amend. real estate, and, for that matter, respondentments, because this corporation appellant testified that he knew of the contract be was organized, and the subscription made, tween appellant and Pierson, relating to the in 1888.) But the same sections provide for sale and purchase of said premises, at the subscriptions to the whole of the capital time he performed the work. It does not stock before business can be commenced, and appear that appellant had anything to do for the times, manner, and amounts in which with the construction of said building, in subscriptions shall be paid. The plain imzany way, further than guarantying the pay

plication is that such payment may be sement of a certain bill for lumber which was

cured or enforced in any lawful way by purchased by Pierson, and used in the con which other contracts for the payment of struction of the building. Reversed and re money are enforced. This, then, is a liabil. manded.

ity which is, in the language of the statute,

"herein imposed," though it is frequently DUNBAR, C. J., and STILES, HOYT, and spoken of as the common-law liability of the ANDERS, JJ., concur.

stockholder. But he is also subject to a liability to have his stock forfeited, which is purely statutory. The internal evidence

of the intention to provide these two methods PUGET SOUND & C. R. CO. v. QUIL

of realization by the corporation is of the LETTE.

very strongest, in this: By section 2430, the SAME V. ELWELL.

stockholders may make by-laws prescribing

the time, etc., of payments, but if the stock(Supreme Court of Washington. Nov. 15, 1893.)

holders make no by-law on the subject the CORPORATIONS-STOCK-SUBSCRIPTIONS-ENFORCEMENT-PLEADING.

trustees can demand and call in subscriptions 1. Code 1881, 8 2421, as amended by Acts

as they see fit. Now, when it comes to sell1886, p. 84, declaring corporations, and the ing forfeited stock for unpaid subscriptions, members thereof, liable to all the conditions and the sale must be made “as prescribed in the liabilities "herein imposed and to none others,"

by-laws of the company." Therefore, the and providing (section 2430) for the forfeiture and sale of stock for unpaid subscriptions, does

trustees must follow the by-laws, and the not relieve stockholders from liability to be sued express authority given to them in the abby the corporation on their subscription, and

sence of by-laws is completely negatived. It limit the remedy against them to forfeiture and sale of their stock.

cannot be admitted that a corporation can do 2. When the trustees of a corporation, su nothing to collect in its capital until the ing on a subscription to its capital stock, show stockholders make by-laws, for they may not that they have taken steps which the law au

be made at all. thorized them to take, the presumption is that they have taken them regularly; and, if there

And this brings the discussion to respondis any by-law which renders their action irreg ents' second point, viz. that the complaint ular, it is matter of defense, and should be so

did not aver that the stockholders, by their pleaded.

by-laws, did not exercise the powers granted Appeal from superior court, Thurston coun them. The trustees, collectively, are the corty; M. J. Gordon, Judge.

poration, and it is the corporation alone Actions by the Puget Sound & Chehalis which collects subscriptions. The general Railroad Company against Louis P. Ouil power to do this, and to do all things prelimlette, and by the same plaintiff against W. S. inary thereto, is vested in the trustees; and, Elwell. Demurrers to the complaints were when they show that they have taken any sustained, and plaintiff appeals. Reversed.

step which the law authorizes them to take, Chas. H. Ayer and Hughes, Hastings &

the presumption is that they have taken it Stedman, for appellant. W. I. Agnew and regularly. If there is any by-law on the subPhil. Skillman, for respondents.

ject which renders their action irregular, it

is, we think, matter of defense, and should STILES, J. The almost universally ac be so pleaded. The judgment is reversed, cepted doctrine is that a subscription to the and the cause remanded, with directions to capital stock of a corporation is a contract to overrule the demurrer to the complaint. pay money, which may be enforced by the corporation by suit. 2 Beach, Priv. Corp. $ ANDERS, SCOTT, and HOYT, JJ., concur. 584; 1 Mor. Corp. (2d Ed.) § 128; Cook, DUNBAR, C. J., did not sit, and expresses Stock, Stockh. & Corp. Law, (2d Ed.) 88 69 et no opinion.

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