Under this motion defendants attempt to appear specially, objecting to the jurisdiction of the court over the defendant herein, and move to quash and set aside the pretended service of the bench warrant above, alleging certain reasons. The government contends that the motion cannot be considered as a special appearance for the reason that the defendants allege therein as the reason for the quashing and setting aside of the service of the bench warrant that "it appears from the indictment herein that the offense charged cannot be committed by a corporation, and that no process can issue against a corporation upon an indictment." The government asserts that, by attacking the indictment, the defendants have gone outside of the prerogative of the special appearance, and must be held to have appeared generally, and to be in court for all the purposes of the indictment.

A special appearance is one made for the purpose of urging jurisdictional objections, but an objection to jurisdiction over the person, to be availing, must not be raised in connection with the denial over the subject-matter; for an appearance to deny the jurisdiction of the court over the subject-matter is, according to the weight of authority, a general appearance. 2 Ency. of P. & P. 621. In the opinion of the court, defendants, by alleging as a reason for the quashing of the service that the offense charged in the indictment cannot be committed by a corporation, raise another question, and attack the indictment itself. It is clear from the language of the motion that this attack is not upon the process primarily, but upon the indictment. itself, and the question of the validity of the process can only be considered after it is determined whether or not the indictment accomplishes the purpose for which it was intended.

The party who denies the jurisdiction of a court over his person must present this single question, and only this question. The mere fact that defendant states in his motion that he appears specially does not relieve it from the character of an ap

peal to the court for relief other than against the process of the court. From the motion itself, and not from the declarations of the pleader as to how he appears, is determined the question as to whether an appearance is special or general. Security Loan & Trust Co. of Southern California v. Boston & S. R. Fruit Co. et al. (Cal.) 58 Pac. 941; Belknap v. Charlton, 25 Or. 41, 34 Pac. 758. I think, therefore, that defendant has of his own act appeared generally and voluntarily in this case. Under section 53, part 4, of the Alaska Code of Civil Procedure, it is provided that: "A voluntary appearance of the defendant shall be equivalent to the personal service of the summons upon him." But, even if the defendant has not so placed himself within the jurisdiction of the court, there is no doubt in my mind but that the process served upon the defendant was sufficient, under section 723, c. 71, p. 4, of the Alaska Code of Civil Procedure. This chapter makes miscellaneous provisions respecting the courts and judicial officers, and I think may be construed to apply as well to the criminal as to the civil side of the court. That section provides:

"When jurisdiction is by any law of the United States conferred upon a court or judicial officer, all the means to carry it into effect are also given, and in the exercise of the jurisdiction, if the course of proceeding be not specially pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code."

While there is no provision in the Code of Criminal Procedure pointing out the form of process by which a corporation shall be brought to the bar of the court for an infraction of the laws of the territory, yet the Code itself, by its phraseology. contemplates that corporations might break the lawɛ of the territory, and in this view it would be unreasonable to say that section 723 did not apply, and that while a corporation might violate the laws and be punished therefor if they could be brought into the court, that there was no provision for such action, and that therefore they could not be apprehended and

brought to justice. Section 723 relieves an otherwise inconsistent and extremely absurd position. I am of the opinion, therefore, that under that section the process which was concededly served upon the defendant is sufficient. The motion of the defendant is denied.

KRAUSE Y. TOWN OF JUNEAU.

(First Division.

Juneau.

December 26, 1905.)

MUNICIPAL CORPORATIONS-DAMAGES-PERSONAL INJURIES.

Plaintiff was injured by a defective sidewalk in the incorporated town of Juneau, and brought suit to recover damages for the failure of the town to keep the sidewalks in repair. Held, that the town had authority to keep the walks in repair, that it was its duty to do so, and that it was responsible in damages for injuries received by persons through its neglect and want of care.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1591.]

Demurrer to Amended Complaint.

Z. R. Cheney, for plaintiff.

R. W. Jennings, for defendant.

GUNNISON, District Judge. Plaintiff brings this action to recover damages from the town of Juneau, Alaska, for injuries resulting from a fall upon the wooden sidewalk on Gold street in the defendant town. Plaintiff alleges that the injuries were "caused by the negligent act of the defendant in allowing the planks in said sidewalk to become and remain loose and out of repair, detached, unsafe, and dangerous" to persons walking thereon, and that this fact was known to the defendant. The allegations of the complaint squarely charge negligence on the part of the defendant. To this complaint. defendant demurs, on the ground that plaintiff does not state facts sufficient to constitute a cause of action, and on the argu

ment of the demurrer contends that, while it is a duly incorporated town, under chapter 21, tit. 3, § 200, Carter's Civil Code, its charter does not charge it with the duty of maintaining the sidewalks within its corporate limits, but gives the town council the power "by ordinance to provide for necessary improvements, sidewalks, and sewerage." Defendant asserts that the granting of this power leaves the determination of what is a necessary sidewalk to the town council, but in no way imposes upon it a duty to maintain sidewalks, and that, since no such duty is laid upon it, therefore there is no liability for a failure to maintain the sidewalk.

This question of defendant's liability is squarely raised, necessitating a construction of the statute. Counsel have exhibited great industry in searching the books, and have cited many cases on the subject in support of their respective contentions, but unfortunately there seems to be no precedent so far as Alaskan municipalities are concerned. We must therefore turn to the tribunal of other jurisdictions for light upon the question.

The cases cited by the defendant in support of his demurrer are the leading cases in the few states where a municipal corporation is held not to be liable for negligence where there is no express statutory enactment declaring such liability to exist. The leading case in this theory is City of Detroit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450; but even this is not the unanimous determination of the courts, though the reasoning of the prevailing opinion is extremely logical; and while the courts in the state of Michigan still follow this case, they do so under protest, holding municipalities not to be liable on the ground of stare decisis, at the same time protesting against the soundness of the determination in that case. McCutcheon's Adm'r v. Village of Homer, 43 Mich. 483, 5 N. W. 668, 38 Am. Rep. 212. The other decisions holding this view follow that case on the same line of reasoning. The Supreme Court of the United

States has, however, adopted the contrary doctrine in the case of Barnes v. District of Columbia, 91 U. S. 540, 23 L. Ed. 440, in which it holds that a municipal corporation, as contradistinguished from a quasi corporation, such as counties, towns, school districts, and especially the townships of New England,

responsible for their mere negligence. The court says:

"The authorities establishing a contrary doctrine-that a city is responsible for its mere negligence-are so numerous and well considered that the law must be admitted settled in accordance with them."

The leading cases establishing this doctrine are there cited. This case was later cited and approved by the Supreme Court of the United States in the Matter of the District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, 34 L. Ed. 472. The Supreme Court of Washington in the Matter of Sutton v. The City of Snohomish (Wash.) 39 Pac. 273, 48 Am. St. Rep. 847, later adopted the same theory, citing the above cases. Mr. Dillon, in his work on Municipal Corporations, vol. 2 (4th Ed.) § 988, says:

"The general doctrine of American courts, as we shall presently see, in respect to municipal corporations proper, has been to hold them civilly liable for injury from defective streets."

And again, at section 1017, he said:

"It may be fairly deduced from the many cases upon this subject * that, in the absence of a statute expressly imposing the duty and declaring the liability, municipal corporations proper, having the power ordinarily conferred upon them respecting bridges, streets, and sidewalks within their limits, owe to the public the duty of keeping them in a reasonably safe condition for use in the usual mode by travelers, and are liable in a civil action for special injury resulting from neglect to perform this duty."

While the duty of repairing sidewalks in the streets of the town is not expressly imposed upon the defendant in the statute, the common council is granted the power to do such work in subdivision 4, § 4, c. 1778, 33 Stat. 531, which is as follows: