purpose of fixing the price or limiting the pro- Then follows an agreement to the effect duction or regulating the transportation of any that the note should be deposited with Frank product or commodity, an agreement between two companies operating steamboats between H. Kelley, to be held by him for a period of the same points, by which, in consideration of three years or less; that, in the event the $1,500, the one company agreed not to operate Tacoma-Burton Navigation Company, or any its steamboat for three years, was invalid, espe- of its stockholders, should maintain or opercially where the parties were advised, before they entered into the contract, that it was against ate any craft for the carriage of either paspublic policy, and it was recited in the contract sengers or freight between any point in the that the parties recognized that it could not city of Tacoma and any point on Quarterbe enforced in courts of law or equity, and a promissory note given as a part of the contract master Harbor, then the note forthwith and as a consideration for the execution of the should be delivered to the party of the seccontract was unenforceable. ond part, the plaintiff in this action; and that, after certain notice, the note should become immediately due and payable. The contract then contains this provision:

[Ed. Note. For other cases, see Monopolies, Cent. Dig. § 12; Dec. Dig. § 16.*]

Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

"The parties hereto, as gentlemen, agree that, in any litigation which may arise in connection Action by Peter Manson, trustee, against with the enforcement of the obligation of said Arthur M. Hunt and others. From a judg-note, no reference to this agreement or its spenient dismissing the action, plaintiff appeals. testimony, or otherwise." cial subject-matter shall be made in pleading,

Affirmed.

Ralph Woods, of Tacoma (Chas. L. Westcott, of Tacoma, of counsel), for appellant. H. W. Lueders, of Tacoma, for respondents.

The contract then provided that, in case the defendants did comply with the agreement, the note should be canceled and considered as paid in full. The answer then alleged that the defendants had fully complied with the agreement. For reply the plaintiff admitted the making of the contract, and alleged that the note sued upon was independent of that

contract.

On these issues the cause was tried to the

MOUNT, J. This action was brought by the appellant to recover upon a promissory note executed by the defendants. The complaint is in the usual form. The defendants, in answer to the complaint, admit the signing of the note, but deny that it was rightfully court and a jury. A verdict was returned delivered to the plaintiff. As an affirmative in favor of the defendants. Special findings defense, the defendant alleged in substance were made to the effect that the note was that about the 1st day of April, 1909, the given as a consideration for the execution plaintiff representing the Vashon Navigation of the contract, and that the note and conCompany, a corporation, and the defendants, tract were executed at the same time as a representing the Tacoma-Burton Navigation Company, agreed: That, in consideration of part of the same transaction, and that de fendants had not violated the contract. Up$1,500 to be paid by the Vashon Navigation Company to the Tacoma-Burton Navigation on a judgment dismissing the action, the plaintiff has appealed. Company, the latter company would not run its boats between the city of Tacoma and 1, 1909, which was the date of the contract It appeared in evidence that prior to April Quartermaster Harbor. That, when the mon- and note, the Vashon Navigation Company ey was about to be paid to the defendants, operated a steamboat between Tacoma and all the parties were advised that the agree-points on Quartermaster Harbor, which is ment could not be enforced, because it was about 12 or 15 miles distant from Tacoma. contrary to public policy. That thereupon the plaintiff, as trustee for the Vashon Navi- During this time the Tacoma-Burton Navigation Company, paid $1,500 to the defend-gation Company also maintained and operants, and a note was given, according to the terms of a contract which was then entered into between the parties. This contract is attached to the answer and is made a part

of it. It recites that:

"Whereas the parties of the first part have executed and delivered to the party of the second part their joint and several promissory note of even date herewith for the sum of fifteen hundred dollars; and whereas the party of the second part has this day loaned to the parties of the first part the sum of $1,500, lawful money of the United States, for which loan the note aforesaid was given; and whereas all the parties hereto recognize that the special subject-matter of this agreement is not capable of enforcement in any court of law or equity, and that the carrying out of this agreement rests only upon the personal honor and probity of the parties hereto as gentlemen: Now, therefore, the parties hereto have agreed as follows:"

ated a steamboat between the same points. Shortly before that date, the respondents and the appellant agreed that, upon payment of $1,500 by the appellant to the respondents, the respondents would withdraw their steamboat from the run and would agree not to operate that or any other craft for three years.

The parties consulted an attorney with reference to preparing a contract in accordance with the agreement, and were advised that the proposed contract would be void as against public policy; that, if the money was paid, there would be no security that the contract could be enforced. vice it was sought by the parties to circumUpon this advent the Constitution, and they then agreed that the money should be paid as a loan and

the note given as a part of the contract; I previously advised of that fact, and in subthat this note should be placed in escrow stance recited the fact in the contract. They and delivered to the plaintiff upon the fail- well knew they were entering into an illegal ure of the defendants to comply with the transaction. contract, or, in case the contract was complied with, at the end of three years the note was to be delivered to the defendants

and considered fully paid. The contract, which is a part of the record in the case, is to that effect.

The court instructed the jury that the contract was in violation of section 22, art. 12, of the Constitution. This provision of the Constitution is as follows:

"Monopolies and Trusts.-Monopolies and trusts shall never be allowed in this state, and no incorporated company * *in this state shall directly or indirectly combine or make any contract with any other incorporated com*for the purpose of fixing the price or limiting the production or regulating the transportation of any product or commodity.'

pany,

*

*

In Lewer v. Cornelius, 72 Wash. 124, at page 129, 129 Pac. 911, at page 913, we said:

"A court will not knowingly aid in the furtherance of an illegal transaction. And in harself as to the manner in which the illegality of mony with this principle, it does not concern ita matter before it is brought to its attention. If such illegality appears in the pleadings of either party, it will not inquire into the technithe statement of witnesses at the trial, it will cal accuracy of such pleading; if it appears in not inquire into the technical admissibility of such statement as evidence, but will, in either case, start an inquiry of its own, and, if it be found that the differences which it is called upon to adjudicate arise out of an illegal transaction, it will leave the parties where it found them, to work out their differences as best they may"-citing authorities.

We are satisfied, therefore, that the plaintiff ought not to recover in this action. The evidence in the case very clearly shows, in fact the contract itself shows, that the note in question was a part of the contract, and was given to circumvent the Constitution.

It is argued by the appellant that the court erred in instructing the jury that this contract was in violation of this provision of the Constitution. California Steam Nav. Co. v. Wright, 6 Cal. 258, 65 Am. Dec. 511, It was therefore illegal and of no force. is cited in support of the contention that this contract does not violate this provision of the Constitution. The California cases cited were decided under the common law. It does not appear that California at that time had a Constitution the same as ours. We are satisfied that our Constitution, in the section quoted, prohibits contracts which provide for monopolies regulating the transportation of any product or commodity. It is conceded in this case that these two companies were public carriers, carrying passengers and freight between the points named. The contract in question was clearly a contract in violation of this provision of the Constitution, because it in effect provided that the Vashon Navigation Company should have a monopoly of the business between these points. It simply purchased the right of the Tacoma-Burton Navigation Company to maintain its boats upon that line in order that it might limit and regulate the transportation of freight and passengers between the points named.

The appellant presents other questions which we shall not notice, because, from what has been said above, it is plain that the plaintiff was not entitled to recover upon the note.

The judgment is therefore affirmed.

CROW, C. J., and MAIN, FULLERTON, and ELLIS, JJ., concur.

(82 Wash. 344)

STATE v. NORTHERN PAC. RY. CO. (No. 12190.)

(Supreme Court of Washington. Nov. 21, 1914.) INTOXICATING LIQUORS (§ 138*)-LOCAL OP

TION - TRANSPORTATION INTO DRY TERRI-
TORY-SHIPMENT OF UNBROKEN PACKAGES.

Local Option Law 1909 (Laws 1909, p. 165) rier to transport intoxicating liquor into any § 18 (Rem. & Bal. Code, § 6309), forbids a carlocal option unit, provided the law shall not apply to deliveries at residences not places of business or of public resort, by manufacturers or wholesalers in their own conveyances, or by any common carrier, or otherwise in unbroken "A contract between corporations charged packages. C., residing in dry territory some with a public duty, such as that of common car- two miles from defendant's railroad station, orriers, providing for the formation of a combina- dered a barrel of wine to be shipped from a tion having no other purpose than that of sti- wholesaler in wet territory. The wine was defling competition and providing means to accom-livered to defendant carrier, transported to P., plish that object, is illegal and against public where it was delivered to an expressman to conpolicy. Ray on Contractual Limitations, p. tinue the carriage to the consignee's residence, 242, and cases cited. where it was delivered; the expressman receiving his compensation for hauling from the shipof business or a public resort. Held, that the per. The consignee's residence was not a place railroad company's delivery of the wine to the expressman was a delivery to a connecting carrier, and therefore, though made in dry territory, was no violation of the law.

Furthermore, the parties to this contract treated it from beginning to end as a contract in restraint of competition. The contract shows upon its face that they so considered it, because it recites:

"The parties hereto recognize that the special subject-matter of this agreement is not capable of enforcement in any court of law or equity."

They entered into the contract, knowing that it was against public policy; they were

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 148; Dec. Dig. § 138.*]

Department 1. Appeal from Superior Court, Lewis County; A. E. Rice, Judge.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The Northern Pacific Railway Company not a place of business or a public resort. was convicted of violating the local option law by transporting intoxicating liquor into dry territory, and it appeals. Reversed and dismissed.

Geo. T. Reid, J. W. Quick, and L. B. da Ponte, all of Tacoma, for appellant. H. E. Donohoe, of Chehalis, and C. D. Cunningham, of Centralia, for the State.

PARKER, J. The defendant railway company was adjudged guilty, in the superior court for Lewis county, of shipping intoxicating liquor into a dry unit of that county in violation of the provisions of section 18 of the local option law, from which judgment the defendant has appealed to this

court.

Section 18 of the local option law of 1909, being section 6309, Rem. & Bal. Code, in so far as we are here concerned with its provisions, reads as follows:

The barrel of wine was an original unbroken package within the meaning of the local option law. Conrow's compensation for the hauling of the barrel of wine from appellant's station to Caterino's residence was to be collected by him from the St. Helena Wine House, the shipper.

It is contended by counsel for appellant that the trial court erred in adjudging appellant guilty of the violation of section 18 of the local option law by delivery of the barrel of wine to Conrow. This contention, we are of the opinion, must be upheld, in view of the fact that the barrel of wine was admittedly delivered to Conrow, as a carrier, to be by him delivered to Caterino at his residence. The construction of this statute insisted upon by the prosecuting attorney would mean that two connecting carriers cannot within a dry unit lawfully deliver, one to the other, in the course of shipment, an orig

"It shall be unlawful for any person, or pub-inal unbroken package of liquor for the purlic or private carrier, to accept or receive for shipment, transportation or delivery to any person or place within any unit in which the sale of intoxicating liquor is forbidden under the provisions of this act, or to carry, bring into or transfer to any other person, carrier or agent, or handle, deliver or distribute in any such unit any intoxicating liquor of any sort or character whatsoever; *Provided, however, that nothing herein contained shall be construed to apply to shipments or deliveries at residences which are not places of business or of public resort, by manufacturers or wholesalers in their own conveyances, or by any common carrier or otherwise, any unbroken packages of liquor."

pose of having it ultimately delivered to the consignee at his residence. It is manifest that the statute is not directed against the transportation and delivery of liquor in unbroken packages to a consignee at his residence, when his residence is not a place of business or a public resort. It would hardly be seriously contended that appellant would be guilty under this law had it actually transported and delivered the barrel of wine to Caterino at his residence. We think it is equally free from guilt when it in good faith, as is conceded here, delivered the barrel of wine to Conrow to be transported and delivered by him through his transfer business from appellant's station to Caterino at his residence.

We conclude that the judgment of conviction must be reversed, and the case dismissed.

It is so ordered.

CROW, C. J., and GOSE, MORRIS, and CHADWICK, JJ., concur.

(No. 12364.)

(82 Wash. 351)

The case was submitted to the superior court without a jury upon agreed facts, which, so far as material here, may be summarized as follows: Appellant operates a line of railway from Tacoma to the town of Pe Ell, in Lewis county, and beyond, over which it transports freight and passengers for hire. W. R. Conrow, a resident of Pe Ell, conducts a transfer business, in which, among other things, he hauls freight for hire from appellant's station at Pe Ell, to places of business and residences of consignees of freight shipped to Pe Ell over appellant's railway. Joe Caterino resides some two STATE ex rel. HELLAR v. JACKSON et al miles from appellant's station at Pe Ell. His residence and appellant's station at Pe Ell are in the same dry unit of Lewis county, wherein the sale of intoxicating liquor is forbidden by virtue of an election held under the local option law. The St. Helena Wine House, of Tacoma, a wholesaler of intoxicating liquor, delivered to appellant, for shipment, one barrel of wine consigned to Caterino, to be carried by appellant over its railway from Tacoma to Pe Ell. Upon arrival of the barrel of wine at appellant's station at Pe Ell, appellant delivered it to Conrow for the purpose of and with the understanding that it was to be delivered by Conrow, in the course of his transfer business, to Caterino at his residence. Caterino's residence is

(Supreme Court of Washington. Nov. 21, 1914.)

1. TAXATION (§ 450*)-ASSESSMENT "LINE."

Laws 1907, p. 139, § 11, provides that, upon completion of the equalization of the property of railroad companies, the board of tax commissioners shall apportion the value of the operating properties of each company to the county or counties in which the lines of the various companies may extend, in proportion to the value of the entire line. Section 12 deshall consist of land, occupied and used as a clares that the operating property of railroads right of way with all tracks, together with side tracks, roundhouses, etc., and that such property shall be classed as real property. Held, that a right of way owned by one railroad company, which was leased to and used by two other companies, should be treated as the line of the

lessor company, the expression "line" meaning, Washington Railroad & Navigation Company the right of way actually owned, and referring owns about one mile of side tracks. Each of to real property; hence the leasehold rights of these companies also owns, in its own right, the lessee companies should not be treated as part of their lines, for the purpose of apportion- certain terminals in that county. The two last-named companies own lines of railway outside of Pierce county and not contiguous thereto. Other railroads operated through Pierce county have the same arrangements among themselves as the Northern Pacific,

For other definitions, see Words and Phrases, First and Second Series, Line of Railroad.] 2. TAXATION (§ 450*)-ASSESSMENT-LEASE- the Great Northern, and the Oregon-Wash

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 144 P.-4

"personal property," and assessed as such. I missioners are authorized to consider the Section 11 of the same act provides:

"On the completion of the equalization of the property of the railroad companies and other property in the state, by the state board of equalization it shall be the duty of the state board of tax commissioners, to apportion the value of the operating properties of such railroad, to the county or counties through or into which the lines thereof may extend, according to the classification and value thereof, in such proportion to the entire value thereof, as the length of the line in each county may bear to the entire length of line within the state."

In

gross earnings of railroad companies from operation, income from operation, and income from sources from the whole system in this state, and the entire gross earnings of such companies in the state of Washington for each and every month for each calendar year. Subdivisions 17 and 18 of section 5. The income of the Northern Pacific Railway Company from the leases of other companies is considered by the tax commission, and presumably the value of the road as a part of the real estate of the Northern Pacific Railway Company is assessed upon the valuation so determined. So that the state, and the counties through which that road runs, obtain the benefit of those leases in the valua

We are satisfied, therefore, that the apportionment about to be made by the tax commission is the proper one under the statute, and the writ is therefore denied.

CROW, C. J., and PARKER, MORRIS, and FULLERTON, JJ., concur.

(82 Wash. 218)

HYDE v. CLAUSIN. (No. 11855.) (Supreme Court of Washington. Nov. 14, 1914.)

It is argued by the relator in substance that the words "lines" and "line," as used in section 11, above quoted, mean the lines operated as well as owned; and that inasmuch as there are about 70 miles of line in Pierce county owned by the Northern Pacifiction which is fixed upon the road. Railway Company, and inasmuch as all this line is used by each of these three railway companies, in apportioning the assessment to Pierce county and other counties similarly situated, the apportionment should be made on the basis of the whole 70 miles to each company instead of upon the basis of the length of line owned by each company. other words, the relator is claiming that in Pierce county, instead of making the apportionment upon the basis of the lines actually owned, each company should be considered as owning the entire 70 miles. We are satisfied that the word "line," as used in section 11, means line actually owned. It is used with reference to the real properties of the railroad companies. We think it was the intention of the Legislature, in passing this act, that the apportionment of property classified as real property should be made to each county in the ratio that the length of line owned in each county bears to the entire 2. CORPORATIONS (§ 560*) - RECEIVERS length of line owned within the state. To TIONS-DEFENSES. construe this section otherwise would be to Where, in an action against a receiver of say in effect that, in a county where three a jewelry company to recover certain diamonds, defendant defended in his capacity as receiver, railways are operated over the same line, basing his defense on the claim that the propsuch county would be entitled to an appor-erty sought to be recovered was the property tionment of the assessed valuation for taxation upon three times the amount of line actually there, while, in a county where there are two or more competing lines parallel with each other, such county would receive an apportionment upon the actual mileage only. We think the Legislature did not intend such result.

1. CORPORATIONS (§ 560*) — RECEIVERS — APPOINTMENT-EFFECT-ACTIONS.

Where a trustee of a jewelry corporation was appointed its receiver, his powers as trustee ceased when he became receiver, and he was therefore properly sued as receiver.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2253-2260, 2262; Dec. Dig. § 560.*]

Ac

of the corporation, rightfully in his possession as receiver, he could not successfully claim that he should have been sued as trustee, in the absence of direct and positive evidence that he held the property in some other capacity than as receiver.

Cent. Dig. §§ 2253-2260, 2262; Dec. Dig. § [Ed. Note.-For other cases, see Corporations, 560.*]

[2] It is also argued by the relator that, 3. APPEAL AND ERROR (§ 187*)-QUESTIONS

inasmuch as the leases from the Northern Pacific Railway Company to the OregonWashington Railroad & Navigation Company and the Great Northern Railway Company extend for a period of 999 years, these lessees in substance own an interest in the railway. As a matter of fact, this contention may be correct. But, as a matter of law, the lessees do not own the fee, and are not owners of the road. They are simply lessees for a given time. In determining the value of the real property itself, the board of tax com

NOT RAISED AT TRIAL.

An objection not made at trial that defendant was not sued in the proper capacity, could not be successfully urged on appeal. Error. Cent. Dig. §§ 1184-1189; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 187.*]

4. REPLEVIN (§ 72*)-OWNERSHIP OF PROPERTY EVIDENCE.

In an action against a corporation's receiver to recover certain diamonds alleged to belong to plaintiff, evidence held to warrant a finding that the diamonds were plaintiff's property.

[Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 292-295: Dec. Dig. § 72.*]