242; Grassmeyer v. Beeson, 18 Tex. 753, 70 Am. Dec. 309; Bricker v. Ledbetter, 26 Kan. 269; Anderson v. Gray, 134 Ill. 550, 25 N. E. 843, 23 Ain. St. Rep. 696; Bird v. Lisbros, 9 Cal. 1, 70 Am. Dec. 617; Refining Co. v. Tabor, 13 Colo. 41, 21 Pac. 925, 5 L. R. A. 236, 16 Am. St. Rep. 185; Thomas v. Hunsucker, 108 N. C. 720, 13 N. E. 221. In the case of Bigelow v. Rising, supra, it is stated in the syllabus: "One of two or more tenants in common of real estate may maintain an action in his own name for a trespass on such estate against a mere stranger, and in such action may recover the whole damage to the property for the benefit of himself and his co-tenant." In Jewett v. Whitney, supra, the third clause of the syllabus reads as follows: "A co-tenant in possession may maintain trespass quare clausum against a stranger for an injury to the freehold." In the syllabus in the case, of Grassmeyer v. Beeson, supra, is found the following: "We have heretofore decided that one tenant in common may maintain trespass to try title against a stranger." In Bricker v. Ledbetter, supra, the first clause of the syllabus reads: "Where it appears that a husband and wife entered into the possession of vacant land, built a house thereupon, and occupied it, such possession is prima facie evidence of title, and sufficient as against a mere trespasser and wrongdoer." The last clause of the syllabus in Bird v. Lisbros, supra, is as follows: "A party in possession of land is deemed in law the owner against all persons but one having superior title thereto. Possession is evidence of title, and the possessor, in conveying, is deemed to convey the title itself sufficiently to enable his grantee to maintain ejectment against a mere trespasser." The other cases cited have no possible bearing upon any phase of this case, and we are at a loss to know why they are referred to in the brief. It will be seen, by the quotations from the authorities cited above, that one tenant in common, in exclusive possession of lands and tenements, may maintain an action against a mere trespasser and wrongdoer for the benefit of himself and his co-tenants. In this case the railway company was neither a trespasser nor a mere wrongdoer. It acquired possession of its right of way in a lawful manner, and may not be charged in this action with an unlawful entry thereon. In Railway Co. v. Manson, 31 Kan. 337, 341, 2 Pac. 800, 803, this court held: "Under condemnation proceedings, a railroad company acquires the exclusive use of the land condemned, so far as is necessary for railroad purposes, and the original landowner has no right to go upon the land or construct fences thereon, if his action interferes with the use of the property condemned for railroad purposes. Therefore, in many cases the right of the owner practically amounts to nothing where the land is condemned for a railroad company, because the purposes of the rail

road company may require the use of the land taken to such a degree as to forbid the owner from any benefit whatever." See, also, Kansas Cent. R. Co. v. Jackson Co. Com'rs, 45 Kan. 716, 26 Pac. 394.

As the case must go back to the court below for a new trial, it is proper that we should determine questions which are here fairly presented, which relate to the substantive rights of the parties, and which, if the proofs justify it, are certain to be again raised in the trial court. As to the claim of the defendants in error that they and their testate acquired a title to the undergrade crossing by adverse possession, it will suffice to say that the contention is wholly without merit in fact or foundation in law. Upon principle and authority the rule ought to be, and undoubtedly is, that where a railway company instituted proceedings to condemn land for use as a right of way, and upon a trial in an appeal to the district court from the award of damages by commissioners, which trial was held after the construction of the line of railroad, it appeared that an undergrade crossing of great value to the farm had been left by the railway company; where, upon the trial of such an action, the map and profile of the road showing the width of such opening or undergrade crossing were offered in evidence, and the railway company, in order to reduce the damages to be awarded, asked and obtained an instruction to the jury in the following words: "You are instructed that the plaintiff has the right to build, construct, and maintain any crossing of defendant's right of way upon his land which shall be under the track or tracks of defendant's road upon such right of way, when such undergrade crossing in no wise interferes with the defendant's use of such track or tracks for the purpose of operating and carrying on its business thereon;" and where, several years later, the company or its successor, while improving the railroad, instead of putting in a permanent iron bridge and preserving to the landowner the use of such crossing, wholly ignored the rights which upon the aforesaid trial in the condemnatory proceedings the jury were presumably led to believe had become vested in the latter, and closed up such crossing without his consent, and against his will,-under such circumstances the imposing of additional servitude upon the land, to the injury of the owner of the fee, should be recompensed by an allowance of additional damages, which may be recovered in a proper action by such owner. Railway Co. v. Haines, 10 Kan. 440, 442; Railway Co. v. Allen, 22 Kan. 286, 31 Am. Rep. 190; Railroad Co. v. Kregelo, 32 Kan. GOS, 5 Pac. 15; Railroad Co. v. Kuhn, 38 Kan. 104, 16 Pac. 75; Railroad Co. v. Cosper, 42 Kan. 561, 22 Pac. 634. Such being the purpose of this action, under its pleadings the railway company was entitled to have the matter of damages settled once for all,

and to that end it could, and did, insist that the real parties in interest should be made parties to the suit.

Because the evidence does not show that the plaintiffs in the court below were entitled to maintain this suit without joining the widow as a party plaintiff, the judgment is reversed and a new trial granted. All the justices concurring.

(65 Kan. 137)

BREWSTER v. GRACEY et al. (Supreme Court of Kansas, Division No. 1. June 7, 1902.)

LEASE CONSTRUCTION-RIGHTS OF LANDLORD-ASSIGNMENT.

ог

Where the owner of farm lauds leases the same, reserving to himself the right to enter thereon and prepare the ground for sow a crop of wheat, and when it is provided in the agreement that for such purpose "he and his servants and agents may enter upon such premises without let or hindrance, and the parties of the second part hereby waive all claims for damages incident thereto," the right of such landlord to so enter upon said lands for the purposes named in the agree ment is assignable, and may be conveyed to a tenant.

(Syllabus by the Court.)

Error from district court, Kingman county; P. B. Gillett, Judge.

Action by B. O. Brewster against L. L. Gracey and H. M. Boyd. Judgment for de fendants, and plaintiff brings error. Affirmed.

Argued before DOSTER, C. J., and JOHNSTON, CUNNINGHAM, and ELLIS, JJ.

C. W. Fairchild, for plaintiff in error. W. M. Wallace, for defendants in error.

ELLIS, J. This action was brought originally in the district court of Kingman county to enjoin the defendants in error from entering upon lands occupied by the plaintiff below, and sowing wheat thereon, in the fall of 1900. A temporary injunction was granted, which was afterwards dissolved, exceptions were taken, and proceedings in error instituted to this court to review such order of the district court. That case is No. 11,930, and is decided at this term. 69 Pac. 1126. Afterwards the action was tried upon the merits, an injunction was denied, and plaintiff below, as plaintiff. in error, brings the cause here for review.

The facts are that in the early spring of 1900 the plaintiff entered upon the lands in controversy under a written lease, and planted about 80 acres of corn thereon. Such lease contained the following clause: "That in case said first party shall, during the continuance of this lease, desire to sow or plow and prepare the ground for the crops of the following season, or to make any improvements thereon, he and his servants and agents may enter upon said premises for such purposes without let or hindrance, and the party of the second part hereby waives

all claims for damages incident thereto." In the succeeding September, defendant Boyd entered upon the land in controversy, and began to sow wheat in the standing corn, claiming a right so to do under a lease which he asserted was made to him by an agent of the owner of the land with his authority; and to prevent Boyd, the alleged lessee, and Gracey, who claimed to be agent for the owner of the land, from putting in wheat thereon, this action was brought. The pivotal question in the case was whether the lease to Boyd was made by Gracey, as agent of the landlord, with the latter's authority. Upon that proposition the evidence was conflicting, but seems to predominate in favor of the determination of the trial court that Gracey was duly authorized to execute such lease as agent for the landlord. The finding of the court upon the matter is conclusive. Without presenting any authority in support of his contention, counsel for plaintiff in error insists that the right retained by the landlord to enter upon the premises and sow wheat was personal to himself, or at least that it was not assignable or transferable to a lessee. We do not regard the position as tenable, and hold that, in the absence of a stipulation to the contrary, the landlord could grant the right thus reserved to a tenant.

The judgment of the district court is affirmed. All the justices concurring.

(65 Kan. 240)

STATE v. SMILEY. (Supreme Court of Kansas. June 7, 1902.) STATUTES-CONSTRUCTION-CONSTITUTIONALITY-MONOPOLIES-AGREEMENT

IN RESTRAINT OF TRADE.

1. The general language of statutes will be limited to such persons and subjects as it is reasonable to presume the legislature intended it should apply.

2. Objections to the constitutional validity of statutes can be made only by those to whom the enactment applies and against whom attempts to enforce it are made.

3. The making of anticompetitive trade agreements as to products and merchandise bought or sold on the general market is contrary to public policy, and it is competent for the legislature to enact penal measures to prevent the making and carrying out of such agreements.

4. Chapter 265, Laws 1897, known as the "Antitrust Law," does not conflict with the guaranty of right to acquire property by lawful contract secured by the federal constitution, and is a valid exercise of legislative power.

5. An agreement entered into by all the dealers on a certain market, limiting their right, severally, under stipulated forfeitures or penalties, to buy all the grain they otherwise might on such market, is an agreement in restraint of trade, and falls within the penal terms of the antitrust act of 1897.

6. An instruction to the jury. possibly er roneous, but, if so, harmless, discussed, and the lack of error in giving it pointed out. Pollock, J., dissenting.

(Syllabus by the Court.)

In banc. Appeal from district court, Rush county; J. E. Andrews, Judge.

E. J. Smiley was convicted of violation of the antitrust law, and appeals. Affirmed.

H. Whiteside, for appellant. A. A. Godard, Atty. Gen., and J. W. McCormick (Keeler & Hite and Allen & Allen, of counsel), for the State.

DOSTER, C. J. This is an appeal from a judgment of conviction of a violation of the antitrust law. The information on which the conviction was based reads as follows: "I, the undersigned county attorney of said county, in the name and by authority and on behalf of the state of Kansas, give information that on the 20th day of November, A. D. 1900, in said county of Rush and state of Kansas, one E. J. Smiley, secretary and representative of the Kansas State Grain Dealers' Association, did then and there unlawfully enter into an agreement, contract, and combination in the county of Rush and the state of Kansas with divers and sundry persons, partners, companies, and corporations, or grain dealers and grain buyers in the town of Bison, in said county and state aforesaid, to wit, Humburg & Ahrens, the LaCrosse Lumber & Grain Co., the Bison Milling Co., and George E. Weicken, who were at the same time and place competitive grain dealers and buyers, to pool and fix the price the said grain dealers and buyers should pay at the said place, and to divide between them the net earnings of said grain dealers and buyers, and to prevent competition in the purchase and sale of grain among the said dealers and buyers; contrary to the form of statute in such case made and provided, and against the peace and dignity of the state." The proceeding was instituted and conviction had under chapter 265, Laws 1897. A question is raised as to whether the charge was made and judgment pronounced under that or certain other statutes. This will be noticed hereafter. The parts of the act of 1897 which apply to the case read as follows:

"Section 1. A trust is a combination of capital, skill or acts, by two or more persons, firms, corporations, or associations of persons, or either two or more of them, for either, any or all of the following purposes: First-To create or carry out restrictions in trade or commerce, or aids to commerce, or to carry out restrictions in the full and free pursuit of any business authorized or permitted by the laws of this state. Second-To increase or reduce the price of merchandise, produce or commodities, or to control the cost or rates of insurance. Third-To prevent competition in the manufacture, making, transportation, sale or purchase of merchandise, produce or commodities, or to prevent competition in aids to commerce. FourthTo fix any standard or figure, whereby its price to the public shall be, in any manner, controlled or established, any article or com

modity or merchandise, produce or commerce intended for sale, use or consumption in this state. Fifth-To make or enter into, or execute or carry out, any contract, obligation or agreement of any kind or description by which they shall bind or have to bind themselves not to sell, manufacture, dispose of or transport any article or commodity, or article of trade, use, merchandise, commerce or consumption, below a common standard figure; or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graded figure; or by which they shall in any manner establish or settle the price of any article or commodity or transportation between them or themselves and others, to preclude a free and unrestricted competition among themselves or others in transportation, sale or manufacture of any such article or commodity; or by which they shall agree to pool, combine or unite any interest they may have in connection with the manufacture, sale or transportation of any such article or commodity, that its price may in any manner be affected. And any such combinations are hereby declared to be against public policy, unlawful and void.

"Sec. 2. All persons, companies or corporations within this state are hereby denied the right to form or to be in any manner interested, either directly or indirectly, as principal, agent, representative, consignee or otherwise, in any trust as defined in section one of this act."

Subsequent sections of the act contain penal provisions, under which appellant was fined, and ordered committed to jail. The above statute is assailed with great vehemence by counsel for appellant. Their contention is that it imposes such limitations upon freedom of contract as to constitute a deprivation of the right of property contrary to the guaranty of the fourteenth amendment to the federal constitution. They say that, instead of being what it purports,-an act to prevent unreasonable restrictions upon trade,-it is itself such restriction, and is therefore violative of the fundamental right to acquire property by lawful contract. To enforce these contentions many generalities of language culled out of the reported decisions and the writings of the commentators have been quoted, but no concrete instances of holdings, by courts of last resort, adverse to enactments of the character of the one in question, have been cited. Two recent decisions by subordinate federal judges, ruling against the validity of statutes of a similar kind, have been called to our attention. In re Grice (C. C.) 79 Fed. 627; Insurance Co. v. Cornell (C. C.) 110 Fed. 816. The opinions in both these cases, so far as they discuss the subject of the repugnancy of the acts under consideration to the constitutional guaranty of freedom of contract, are open to the criticism of being without the bonds of the meritorious question at issue. This is perceivable at once.

The first-mentioned case involved the antitrust statute of Texas. That statute exempted from its terms the original producer or raiser of agricultural products or live stock. The other case involved the antitrust statute of Nebraska. That statute exempted from its provisions assemblies or associations of laboring men. The making of these exceptions was discriminatory class legislation, and constituted a denial of the equal protection of the law, so the judges ruled. That ruling was all-sufficient for the purpose of the cases. Not only that, it was on the only necessary question in the cases. Hence the disposition made of them on the one special feature forbade an opinion on the abstract general question, and rendered all that was said upon it dictum of the baldest kind. The supreme court of the United States recently had an identical occasion to declare the law in advance of the presentation of a necessary issue concerning it. It was in the case of Connolly v. Sewer Pipe Co. (just decided) 22 Sup. Ct. 431, 46 L. Ed. 679. That case involved the validity of the antitrust. law of Illinois, an enactment similar to the statutes of Texas and Nebraska, and, like them, containing an exception in favor of a certain class. The court held the statute invalid because of the exception, but very properly refrained from making pronouncement of what the law would be if it had not contained the exception. The opinions of the judges in the cases of In re Grice, supra, and Insurance Co. v. Cornell, supra, are not regarded by us as authority. They are, however, adopted as ar guments by counsel for appellant, and as such are entitled to consideration. Nevertheless, as arguments, they are barren of reference to adjudged cases, except in the form of quotations of abstract and general statement. The burden of their reasoning is that the statutes under consideration were so broad and comprehensive in their terms as to be inclusive of classes of persons and kinds of business that it would be unreasonable and tyrannical to regulate in the mode attempted. In the case first cited it is said, among other things of like kind: "Two village grocers doing business at a loss to both could not form a partnership in order to save themselves from bankruptcy. Neither could they form a partnership in order to lessen their expenses, and thus reduce the price of their commodities to the public. Still more, if A. and B., each owning half a car load of potatoes, should agree to ship together in order to obtain carload rates, thus enabling them to sell lower in the markets, they would violate this act." In the other case the assumed unreasonableness and tyranny of the statute is illustrated by the following, among others, as typical instances: "If this law is valid, two or more farmers cannot agree that they will not sell their wheat to a neighboring mill for less than so much per bushel. Two or more farmers cannot agree that the live stock feeder shall not have their corn except at a certain price.

Nothing can be agreed to by the manufacturer, the farmer, the gardener, the contractor, consumer, or laborer to prevent the reduction of price." If the statutes of Texas and Nebraska were really to be enforced against the class of persons mentioned and to the utter length stated by the judges in the two cases cited, they well deserved the condemnation they received; and, if our statute is to be held to apply in the like way, we should not hesitate to declare it to be violative of the most fundamental principles of constitutional right,-that is, we should not hesitate to do so when the question of its invalidity should be presented by some one entitled to complain, to wit, one of the proscribed and oppressed classes; nor shall we hesitate to do so in behalf of appellant in this case if, on examination, we find him to belong to one of such classes. However, it was not charged against him, or claimed by him, that he belonged in any such category. It was neither charged nor claimed that his confederacy with the other persons named in the information was for purposes of a business partnership, or that he was one of two shippers of produce seeking to lighten freight charges by joining with the other, or that he was a farmer agreeing with his neighbors to hold his grain for an advance in the market; nor was it charged or claimed that the acts performed by him were, as to the examples enumerated, of a like limited scope and a like presumptively harmless and reasonable nature. It was charged and proved against him that he was a buyer of grain on the general open market; that he was an intermediary between the public who produced and sold and the public who bought and consumed, and as such that he conspired with others of like business to prevent competition among themselves, and to pool and fix the price of grain bought and sold on such market. Now, whether this fact takes him out of the list of those innocent instances cited in the cases we are discussing we will presently inquire. Suffice it to say for the moment that, unless he does belong in such list, he cannot be heard to complain. He cannot be heard to object to the statute merely because it operates oppressively upon others. The hurt must be to himself. The case, under appellant's contention as to this point, is not a case of favoritism in the law. It is not a case of exclusion of classes who ought to have been includ ed, the leaving out of which constitutes a denial of the equal protection of the law, but it is the opposite of that. It is a case of the inclusion of those who ought to have been excluded. Hence, unless appellant can show that he himself has been wrongly included in the terms of the law, he can nave no just ground of complaint. This is fundamental, and decisively settled. Kansas City v. Union Pac. Ry. Co., 59 Kan. 427, 53 Pac. 468, 52 I. R. A. 321, affirmed under the title "Clark v. Kansas City," 176 U. S. 114, 20 Sup. Ct. 284, 44 L. Ed. 392; Supervisors v. Stanley, 105

U. S. 305-311, 26 L. Ed. 1044; Railway Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 71 Am. St. Rep. 302-311.

In immediate connection with the subject just discussed the question arises whether, assuming the general phraseology of the statute to be comprehensive of classes of persons who cannot be rightfully included therein, the whole enactment becomes nullified thereby. The general doctrine is that only the invalid parts of a statute are without legal efficacy. This is qualified by the further rule that, if the void and valid parts of the statute are so connected with each other in the general scheme of the act that they cannot be separated without violence to the evident intent of the legislature, the whole must fail. These rules are of everyday enforcement in the courts. The latest case in which they were adverted to by us is Hardy v. Board (just decided) 68 Pac. 1078. The instances in which the application of the rule first mentioned most usually occurs are those where separable words, clauses, sentences, or sections of the statute are stricken out, as it were, because constitutionally objectionable. However, the rule is not limited to such instances. It applies as well to exclude from the operation of the statute subjects and classes of things lying without the legislative intent, although comprehended within the general terms of the act, as it does to exclude parts of the verbal phraseology. Two cases strikingly illustrative of this rule are Supervisors v. Stanley, 105 U. S. 305, 26 L. Ed. 1044, and Com. v. Gagne, 153 Mass. 205, 26 N. E. 449, 10 L. R. A. 442. See, also, to the same effect, McKee v. U. S., 164 U. S. 287293, 17 Sup. Ct. 92, 41 L. Ed. 437; Keokuk Northern Line Packet Co. v. City of Keokuk, 95 U. S. 80, 24 L. Ed. 377. In the first-mentioned case it was held that a state taxing statute, general in its terms, applying alike to all taxpayers, which did not recognize a certain exception allowed by act of congress in favor of stockholders in national banks, was not, for that reason, void as a whole, but, limited by the controlling federal law, was valid as to all the persons embraced within the general language employed. In the other case it was held that a state prohibitory liquor law which did not except from its operation liquors in original packages, but by the generality of its terms included them, which, under the commerce clause of the federal constitution as construed in Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, could not be done, was not, for that reason, void as to liquors in broken packages, but as to them was valid and enforceable. This ruling, in necessary effect, was approved by the supreme court of the United States in the case In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572. In that case Rahrer contended that after the decision of Leisy v. Hardin, supra, there was no law in Kansas prohibiting the sale of liquor in original packages; that the effect of the subse

quent act of congress popularly called the "Wilson Bill," being an act to subject interstate importations of liquor in original packages to the operation of the local law, could not have the effect to give vitality to that which as a statute had existence in form only, and not in fact, but that a new state enactment was required. The soundness of this contention was denied, and in denying it the court, after restating the ground of the decision in Leisy v. Hardin, said: "This was far from holding that the statutes in question were absolutely void, in whole or in part, as if they had never been enacted. On the contrary, the decision did not annul the law, but limited its operation to property strictly within the jurisdiction of the state." When the court did that it only did what courts are in the daily habit of doing,-limited the language of the statute to the subjects in respect of which it was competent and proper for the legislature to dispense. Throughout the entire history of English and American law the courts have been ruling that the general words of statutes were to be restrained in import and application whenever the taking of them in literal sense would lead to absurd or hurtful consequences, and the same is true under the American system of written constitutions whenever the taking of general words in their full signification would expose them to conflict with the organic law. It is but an affectation of sensitiveness of regard for the constitution which often leads courts to beat down the whole of a legislative enactment because of its opposition to the fundamental ordinance in some minor particular, instead of adjusting it to harmonize with the controlling provision. It is not a matter of concern to us that the general language of the statute under consideration may apply to classes of persons who should not have been comprehended therein, and who may have a standing in court to claim exception therefrom. Their cases can be attended to when presented in due form. It is not they, but the appellant, who is before us. Does he state a case entitling him to exemption from the operative scope of the statute? One of the cases most strikingly illustrative of the rule of interpretation in question is In re Opinion of the Justices, 41 N. H. 553. It was claimed that certain sections of the statutes of New Hampshire were so broad and general as to be in opposition to what was called the "Fugitive Slave Law" of congress, and the constitutional provision in pursuance of which it was enacted. Replying to this claim, the justices said: "But, if these sections could not be applied in the cases supposed, they are not, therefore, necessarily void. If the intention of any part of the act, determined upon settled principles of legal interpretation, were to obstruct or impede the exercise of enjoyment of any right secured by the constitution of the United States, or by any constitutional law of the United States, that part would be unconstitutional. But if