W. O. Jackson, of New Castle, and Clore, Dickerson & Clayton, of Cincinnati, Ohio, for

appellant. Turner & Turner, of New Castle, Chas. H. Sheild, of Louisville, Moody & Barbour, of New Castle, and Willis, Todd & Bond, of Shelbyville, for appellee.

CLAY, C. Richard Thomas, at the time of his death, was an infant eight years of age. On May 25, 1911, he fell into Fox Run creek. He died on September 15, 1911. Charging that the defendants, the Eminence Distilling Company, Simon Weil, and Charles Bright, unlawfully and negligently polluted and poisoned the waters of Fox Run creek, and thereby caused the death of the decedent, A. W. Thomas, his administrator, brought this action to recover damages. At the conclusion of all the evidence, the court directed a verdict in favor of the defendants. Judgment was entered accordingly, and plaintiff appeals.

During the years 1910 and 1911, the Eminence Distilling Company was engaged in operating a large distillery near the town of Eminence in Henry county. Charles Bright was its general superintendent. Simon Weil was feeding and slopping a large number of cattle on the premises. In the inclosure in which the cattle were confined, the Distilling Company constructed a concrete dam. The dirty water and excrement on the surface of the pen were permitted to flow and accumulate in a pool. There the solid matter would settle to the bottom. There was a sluice gate near the bottom, and in the center of the dam. Across this gate was a wire screen with 12 meshes to the inch. When solid matters would settle in the bottom, the sluice gate was opened, and the water and such parts of the solid matter as would pass through the screen were permitted to flow into Fox Run creek. On the 4th day of April, 1911, there was a cloudburst at the headwaters of Fox Run, and the concrete dam was washed away. A cypress dam was then installed. In May the cypress dam gave way. When these dams gave way, the accumulated filth ran into the creek and polluted it.

A. W. Thomas, the administrator of the decedent, lived in the years 1910 and 1911 on a farm situated about two miles south of the distillery on Fox Run creek, which flows through the farm. On May 25, 1911, the decedent, Richard Thomas, fell into the creek and swallowed some of the water. He became sick and vomited more or less. The boy's condition improved for a few days, but about two weeks later he became quite sick. A physician was then called and diagnosed the case as intermittent fever, and treated the boy for this disease. About the 2d of July, the physician pronounced the case one

practically recovered from typhoid fever, he was taken ill with spinal meningitis.

September 15th he died.

On

that an enormous quantity of decaying and The evidence for plaintiffs tends to show fermenting animal and vegetable matter passed from the pool at the distillery into the creek. As it descended the valley and the stream widened, the polluted waters spread out into shallow pools, depositing on the farm of plaintiff and near his house a large amount of putrid matter, some of which appeared as a foul scum, and some as a rotting sediment, and the odor emitted therefrom was very noisome. Three or four physicians testified that typhoid and meningitis were germ diseases, and that, while those germs apparently originated with the human, the liberated germs were carried by the wind, on the bodies, feet, and wings of fowls, birds, and insects to, and deposited into, such pools. That such stagnant and polluted water was a most fertile field and hotbed for breeding large and malignant colonies of disease germs. While such germs are present in almost all localities, they are generally present in limited numbers, and in such emaciated condition that they are not likely to produce diseases unless the small and weakened colonies are placed in some nutritious and suitable breeding ground, in which event they will multiply and develop into large and malignant colonies, capable of infecting strong and healthy persons. Two or three physicians gave it as their opinion that decedent was infected by germs which came from the polluted water of the creek. It developed, however, on cross-examination that they had made no examination of the waters of the creek, and could not say from personal knowledge that any typhoid or meningitis germs, or, in fact, any disease germs, were present in the creek, or in any of the pools referred to. While giving it as their opinion that the boy died from disease germs coming from the waters of the creek, they admitted that such germs could be carried by insects, flies, bugs, chickens, and turkeys, and that it was a pure guess as to where a patient took typhoid fever.

It is unnecessary to give the evidence adduced by the defendant. The rule is that when the plaintiff introduces his evidence, and at its conclusion the defendant moves the court to instruct the jury peremptorily to find for it, whether the motion is then determined by the court or not, it must be decided, on the plaintiff's evidence, without reference to any fact shown by the evidence introduced on behalf of the defendant, unless that evidence tends to make out a case for plaintiff; for, in so far as there is a conflict in the evidence, the question, if material, is for the jury. Goins v. North Jellico Coal Co., 140 Ky. 323, 131 S. W. 28.

The question is, Did plaintiff succeed in

DENTON et al. v. MILLER et al.

COURTS (8 246*) - APPEAL

CONSTITUTIONAL QUESTIONS. Though the bill charged unconstitutionality of the statute under which defendant was created, such question, not being referred to in the brief of complainants on their appeal, and appearing to be abandoned, and there being nothing to justify the court in taking it up on its own motion, does not take the appeal out of the jurisdiction of the Court of Civil Ap

peals.

[Ed. Note.-For other cases, see Courts, Cent. Dig. 88 743-748; Dec. Dig. § 246.*]

Appeal from Chancery Court, Rhea County; T. M. McConnell and V. C. Allen, Chan

cellors.

Suit by J. J. Denton and others against R. C. Miller and others. From an adverse

decree, complainants appeal. Transferred to Court of Civil Appeals.

W. L. Givens, of Dayton, for appellants. Miller & Swafford, of Dayton, for appellees.

PER CURIAM. This cause presents a controversy wholly within the jurisdiction of the Court of Civil Appeals, but for the fact that the bill charges the unconstitutionality of chapter 236 of the Acts of 1907, under which the defendant county board of education was created. But this question seems to have been abandoned. It is not referred to in the brief of complainant's counsel, and we see nothing in the act which would justify the court in taking up the question on its own motion. Under such circumstances there is no constitutional question before the court, and the case is entirely with the Court of Civil Appeals. The cause is therefore ordered to be transferred to that court. A copy of this opinion will be attached to the record and accompany the transfer.

2. CONSTITUTIONAL LAW (8_19*)-CONSTRUCTION OF CONSTITUTIONAL PROVISIONS-CONTEMPORANEOUS CONSTRUCTION.

The act of 1835 (Shannon's Code, § 97), must be regarded as a contemporaneous construction of the constitutional provision, and that construction, having been acquiesced in since 1835, will be adhered to.

tional Law, Cent. Dig. §§ 14, 15; Dec. Dig. § [Ed. Note.-For other cases, see Constitu19.*]

'Appeal from Circuit Court, Sullivan County; Dana Harmon, Judge.

Suit by J. C. Brown and others against Sullivan County. From a judgment dismissing the suit, plaintiffs appeal. Affirmed.

Phlegar, Powell, Price & Shelton, of Bristol, for appellants. C. J. St. John, of Bristol, for appellee.

GREEN, J. This suit was brought by certain citizens and taxpayers of Sullivan county to enjoin the issuance of $200,000 of the county's bonds for road purposes.

It was alleged that chapter 620 of the Acts of 1911, which authorize these bonds, was unconstitutional and void, and it was also alleged that the county court of Sullivan county, which, pursuant to the said act of the Legislature, directed the issuance of said bonds, was organized in an illegal manner, and was therefore without power to effect this bond issue.

The act of the Legislature is attacked as being in violation of section 17 of article 2 of the Constitution; it being insisted that it contains several matters not covered by the caption and incongruous therewith. This contention has been disposed of orally, and will not be considered in this opinion. It is sufficient to say that we do not find the act of the Legislature subject to the objections urged against it.

TIONAL PROVISIONS.

Const. art. 6, § 15, provides that the different counties of the state shall be laid off as the General Assembly directs into districts of convenient size, so that the whole number in each county shall not be more than 25, or 4 for every 100 square miles. Const. 1796, art. 5, § 12, provided for the division of districts according to a population basis. Held that, in view of the act of 1835 found in Shannon's Code, & 97, enacted under a constitutional provision identical with the present one, providing for the division of counties into districts on the basis of the population, the instant constitutional provision must be taken as giving the Legislature power, either to divide the counties on a population basis, into districts of not more than 25 in number, or according to territory, into districts not in excess of 4 in 100 square miles, and hence Priv. Laws 1911, c.

[1] It is insisted, however, that Sullivan county is entitled to have but 17 civil districts under the Constitution, whereas, as a matter of fact, it has 22. These 22 districts county court, and it is urged that the are represented by justices of the peace in county court of this county is therefore organized in violation of the Constitution and is accordingly an illegal body.

In section 15 of article 6 of the Constitution it is provided that "the different counties of this state shall be laid off as the General Assembly may direct, into districts of convenient size, so that the whole number in each county shall not be more than 25, or 4 for every 100 square miles. There shall be two justices of the peace and one constable elected in each district by the qualified voters therein," etc.

The plaintiffs' contention is that no county can have more than 4 civil districts for

every 700 qualified voters, and under 1,000, there shall be ten districts; for less than 700 qualified voters, there shall be eight districts."

We do not think this is the true meaning of this portion of the Constitution. The language, inserting in parenthesis the omitted words, which are plainly implied, reads as follows:

"The different counties of this state shall be laid off as the General Assembly may direct, into districts of convenient size, so that the whole number in each county shall not be more than 25, or (so that the whole number in each county shall not be more than) 4 for every 100 square miles."

We think it was intended by the Constitution to intrust the manner of districting the counties to the Legislature, according to a population basis or a territorial basis, as the Legislature should think best. Within limitations, the counties were to be laid off as the Legislature might direct.

Under the Constitution of 1796, justices were selected not exceeding two for each captain's company, on a population basis. Article 5, § 12. Under the present Constitution, and that of 1834, the regulation of this matter was committed to legislative discretion, with a proviso limiting the entire number of districts in each county. If the counties were divided on a population basis, then the entire number of civil districts was

limited to 25. The Legislature was authorized to create any number of civil districts, not exceeding 25, in each county. On the other hand, if the Legislature divided the counties into districts in proportion to the area of each county, then the Constitution limited the number of districts to not more than 4 for each 100 square miles. It was not intended by this provision to declare that 25 districts should be created only in counties covering 625 square miles.

The section quoted appears alike in the Constitutions of 1834 and 1870. In 1835 the Legislature enacted the following law, contained in Shannon's Code, § 97, and section 79 of the Code of 1858:

"The number of districts shall be proportioned to the voting population of the county, as follows: For every 3,000 qualified voters, and upwards, there shall be twentyfive districts; for every 2,500 qualified voters, and under 3,000, there shall be twenty districts; for every 2,000 qualified voters, and under 2,500, there shall be seventeen districts; for every 1,500 qualified voters, and under 2,000, there shall be fifteen districts; for every 1,000 qualified voters, and under

[2] This act, as stated, has been on our statute books since 1835. It is a contemporary legislative construction of the language of the Constitution in question here, as it appeared in the Constitution of 1834. It shows that at that time this provision of the Constitution was construed as authorizing the Legislature to divide the counties of the state into civil districts on a population basis. We think this was an authorized construction. At any rate, this construction has been acquiesced in and accepted as correct since 1835, and all the counties of the state have been divided into districts in this manner. Even, therefore, if we were of opinion that the original act of 1835 was based on a misinterpretation of the Constitution (which we are not), we would refuse, at this late date, to hold such legislation unconstitutional.

We are of opinion, therefore, that the county court of Sullivan county was not illegally organized, and inasmuch as the majority of that body voted for the issuance of these bonds, in pursuance of the legislative act, the plaintiffs can make no question upon the regularity of the action of the county court in this respect.

The circuit judge dismissed the suits of the plaintiffs, and his judgment will be affirmed.

LOGAN & MAPHET LUMBER CO. v. CROSS et al.

(Supreme Court of Tennessee. Nov. 30, 1912.) 1. JUDGMENT (8 572*) - CONCLUSIVENESS JUDGMENT ON DEMURRER ΤΟ BILL GROUNDS.

A decree overruling or sustaining a demurrer is res judicata; and when a single ground of relief is well stated in the bill the overruling of a demurrer thereto is conclusive as to facts subsequently proven in substance as alleged; and where the demurrer is sustained, and the bill dismissed, the decision is an adjudication on the facts as stated in the bill; and when the bill presents several grounds of relief, and the court acts upon each ground, judgment overruling a demurrer to a bill setthe decree is res judicata; but a general ting up several grounds of relief, without an opinion showing the ground of the court's action, amounts only to a decision that there is enough in the bill to require an answer.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1047-1049; Dec. Dig. § 572.*] 2. JUDGMENT (8 572*) - CONCLUSIVENESS JUDGMENT ON DEMURRER TO BILL.

Where a bill was demurred to on the grounds that complainant was not entitled to relief for want of equity in the bill, and because he participated in the fraud therein alleged, that complainant was not entitled to the relief sought, or any relief, because the fraud to complain, and because the bill showed on alleged was not one of which it had the right its face that the cause of action accrued more

matters.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1047-1049; Dec. Dig. § 572.*]

Bill by the Logan & Maphet Lumber Company against C. C. & C. Cross. Plea of res judicata sustained.

J. F. Baker, of Huntsville, and Shields, Cates & Mountcastle, of Knoxville, for complainant. E. G. Foster, of Huntsville, for defendants.

NEIL, J. The first and fundamental question to be determined is whether the matters contained in the present bill must be considered as settled between the parties, in so far as they are the same as those contained in the bill immediately preceding it, filed by the present complainants against the present defendants, and determined by this court in 1910, on bill and demurrer.

To the extent that the two bills are the same, we are of the opinion that the matters involved must be considered settled, as hereinafter more particularly stated.

This conclusion is resisted by defendants on the ground that the judgment of this court overruling the demurrer was general, unaccompanied by a written opinion showing the grounds of the court's action and therefore that, under the authority of Battle v. Street, 85 Tenn. 291, 2 S. W. 384, Jouroimon v. Massingill, 86 Tenn. 90, 5 S. W. 719, Clark v. Pence, 111 Tenn. 20, 26, 27, 76 S. W. 885, and other cases cited therein, it must be true that the judgment amounted to a decision only that there was enough equity in the bill to require an answer, thus leaving undetermined all of the points made in the demurrer.

The basis of the doctrine referred to is that where there are several grounds of relief set up in the bill, and the decision is simply that the demurrer be overruled, it cannot be known whether the court considered each ground separately, and so determined them all, or considered merely that there was enough in the bill on some one or more points to require an answer, even though others might not present sufficient grounds of relief. The present case, however, cannot be decided on the principle stated, because the judgment entered in the former cause shows that each ground of the demurrer was separately acted on and overruled.

This is rendered manifest by the following statement. The grounds of demurrer filed to the former bill were these:

"1. The complainant is not entitled to the relief it prays, nor to any relief, for

because complainant participated in the fraud therein alleged, in that the bill shows that the complainant failed and refused to appeal from the decree fully and finally adjudicating the rights of the complainant and defendants as to the lumber and the value thereof it now seeks to recover, and that it thereby willingly, knowingly, and actively participated in the fraud of which it complains.

"2. The complainant is not entitled to the relief it prays, nor to any relief, because the error and fraud complained of, if it exists as complainant avers, is not one of which it has the right to complain.

"3. The complainant is not entitled to the relief it prays, nor to any relief, because the bill shows on its face that the cause of the action accrued more than one year after the reversal of the judgment for error, before the bill in this cause was filed, and because the cause of action accrued more than one year after the time the decree was entered, in which the right to file a proper bill by complainant was not prejudiced by the decree therein before the bill in this cause was filed."

The judgment of this court on the foregoing grounds of demurrer was:

"This court being of opinion that the demurrer in said cause in the court below is in every respect and on every ground not well taken, the decree of the chancellor overruling same is in all respects affirmed, and said cause is accordingly remanded to the chancery court of Scott county for answer and further proceedings."

It is thus perceived that this court determined in the former case, against defendants, each of the points now insisted upon as matters of defense arising out of the proceedings contained in that litigation between these parties, to which Joe Wright was a party, viz.: The court, in overruling said grounds of demurrer, adjudged on the facts stated in the bill that complainants did not participate in the fraud alleged as having been committed by Joe Wright, and the present defendants, by failing and refusing to appeal from the decree referred to in the bill in that behalf, that the fraud complained of was not one as to which complainants were debarred seeking relief, that the former adjudication was not a bar to the present action, and that the complainants were not precluded by the one-year statute of limitations; that is, that complainants were not precluded by the fact that the cause of action set up in the bill accrued more than one year after the time the decree was entered which gave them the right to file a new bill without prejudice.

[1, 2] It may be properly remarked at this place that the court, while continuing to recognize the general doctrine laid down in