Koen v. State. brought within the relations and circumstances provided for, it is not objectionable as wanting uniformity of operation. (McAunich v. R. Co., 20 Ia., 338; Haskel v. City of Burlington, 30 Id., 232; R. Co. v. Soper, 39 Id., 112; State v. Graham, 16 Neb., 76; Cooley, Const. Lim., sec. 390.)" Judge Sutherland in his work on Statutory Construction, sec. 116, says: "Laws of a general nature are those which relate to subjects of that nature, and deal generally with them. The requirement involves the question, What is such a subject, and how comprehensively it must be treated in legislative acts? Laws to which the requirement is applicable must be so framed as to have a uniform operation throughout the state." Judge Dillon in his valuable work on Municipal Corporations, sec. 20, in speaking of general laws creating municipal corporations, says: "Within a period comparatively recent the legislatures of a number of the states, following the example of the English municipal corporations act of 5 and 6 Will. IV, cap. LXXVI, heretofore mentioned, have passed general acts respecting municipal corporations. These acts abolish all special charters, or all with enumerated exceptions, and enact general provisions for the incorporation, regulation, and government of municipal corporations. The usual scheme is to grade corporations into classes according to their size, as into cities of the first class, cities in the second class, and towns or villages, and to bestow upon each class such powers as the legislature deems expedient; but the powers and mode of organization of corporations of each class are uniform. General incorporation acts, rather than special charters, would seem clearly to be the best method of creating and organizing municipal corporations. First-It tends to prevent favoritism and abuse in procuring extraordinary grants of special powers. Second-It secures uniformity of rule and construction. Third-All being created and Koen v. State. endowed alike, real wants are the sooner felt and provided for, and real grievances the sooner redressed." Many other cases to the same effect might be cited. Section 251 of the Criminal Code provides that "no person shall be punished for an offense which is not made penal by the plain import of the words, upon pretense that he has offended against its spirit." Now will any one contend that a statute applicable to Douglas county alone is a general law? The authorities, without an exception so far as I have observed after a pretty careful research, hold that such an act is not general but special. Let us apply these rules to the case at bar. The statute provides that a person who publishes a false and malicious libel against another in a newspaper of general circulation shall be punished by imprisonment in the penitentiary for not less than one nor more than three years. Here the highest term of imprisonment is six times as great as in an ordinary case, together with the brand of infamy and the loss of civil rights from conviction. Is this severe punishment to be inflicted unless the offense was committed in the manner indicated; that is, in a newspaper of general circulation? If the circulation of a paper in one county is a general circulation, then why is not the same true if it circulates in a village, township, or other subdivision of a county? If the circulation in any of these subdivisions, or the county itself, constitutes a general circulation, then the court will find it impossible to distinguish between the cases where the punishment is imprisonment in the county jail and those of imprisonment in the penitentiary. It is not necessary that the newspaper circulate to any considerable extent, if at all, out of the state, nor that it circulate in every county of the state, but it must extend beyond the county where it is published and have a general circulation. It may be said that the party who first publishes the Koen v. State. libel, and thus puts it in the power of others, whether intentionally or not, to further injure the plaintiff by a further publication, should be punished to the full extent of the law. The answer to this is that persons must beware what they publish at second-hand, and because one party has made a false and malicious statement in regard to another the second publisher must ascertain its truth before he gives it his indorsement by publishing the same. But to consti tute a penitentiary offense the publication must be in a newspaper in general circulation. By that we understand a paper not restricted to one county, nor necessarily to the state itself. In charging the offense, therefore, it should be done in the language of the statute, without limitation to a particular county. The pleader, after stating the general circulation of the paper, may then allege that it was published in a certain county, so as to give the courts of that county jurisdiction. The indictment fails to state a felony, therefore, and the judgment must be reversed. The charge alleged being merely a misdemeanor, the plaintiff in error should not have been sentenced to the penitentiary; but it is evident that he was rightfully convicted of a misdemeanor, and the cause is remanded to the district court of Douglas county to impose a proper sentence for that offense. THE other judges concur. JUDGMENT ACCORDINGLY. Crane Bros. Mfg. Co. v. Keck. CRANE BROS. MANUFACTURING CO., APPELLANT, V. [FILED NOVEMBER 16, 1892.] 1. Bill of Exceptions: Service on One OF APPELLEES. Where there are two or more principal defendants against whom the plaintiff is seeking to enforce a claim, there being no particular controversy between them, service of the bill of exceptions upon one of such defendants or his attorney within the time fixed by statute will be sufficient. 2. : MOTION TO QUASH: TIME OF FILING: WAIVER. Where a defendant fails to file a motion to quash until after briefs upon the merits have been made and served the court will consider the objection waived. 3. Application of Payments: RIGHTS OF THIRD PARTIES. While as between the debtor owing several debts and his creditor where the former, at the time of payment of a sum of money, fails to designate the debt on which it is to be applied, the latter may do so, yet there is an exception to this rule, as, where the money was received by the debtor from a third party whose property would be liable for the debt in case the money was not applied upon the third party's liability. 4. Construction of Instruments: ORDER. The instrument set out in the opinion is an order which, as the drawee refused to accept the same, the plaintiff was not bound to furnish the material mentioned therein. APPEAL from the district court for Buffalo county. Heard below before HAMER, J. Brown & Brown, and Jeffrey & Rich, for appellant. Calkins & Pratt, for appellee Samantha Keck. R. A. Moore, for appellee Joseph Walther. MAXWELL, CH. J. This is an action by material-men to foreclose a mechanic's lien upon a hotel in the city of Kearney. 35 683 39 192 35 683 50 327 53 139 Crane Bros. Mfg. Co. v. Keck. On the trial of the cause the court below found that the whole value of the material furnished by the plaintiff was the sum of $643, and that the defendants had paid thereon the sum of $450, and that the defendant Keck had sustained damages by reason of the delay of the defendants in furnishing the material, in the sum of $193. The court thereupon found for the defendants and dismissed the action. The plaintiff appeals. A motion is now made on behalf of Walther to quash the bill of exceptions as to him because it was not presented to him within eighty days from the rising of the court. The cause was tried on the 3d day of May, 1890, and judgment entered at that time. A bill of exceptions was thereupon duly prepared and submitted to the attorneys for Samantha Keck. Notice was given the attorney of Walther that the bill was in their hands for examination and amendment. The bill seems to have been retained by such attorneys much beyond the ten days allowed by law. When it was returned, however, it was presented to the attorney for Walther, who refused to examine the same and make any corrections thereon. The bill was thereupon presented to the judge, who signed the same. In this case, while the rights of the defendants are so far separate and distinct that a joint judgment is not sought against them, as against Walther a judgment is asked for the amount of the debt, and it is sought to enforce the same against the property of his co-defendant Keck, yet there is no diversity of interest between them as against the plaintiff and they are so far joint that service of the bill upon the attorneys of either will justify the judge in signing the same. Where there are many defendants, who appear by separate attorneys, it is impossible to serve the same bill upon all within forty, or even eighty days, and in fact is not contemplated by statute. A service upon the principal defendants is all that is required. Ordinarily, this will bring up the case as to all. The service therefore was sufficient. |