been applied in several subsequent cases some of which we cite: Frazier v. East Tennessee, V. & G. R. Co. 88 Tenn. 158; Cole Mfg. Co. v. Falls, 90 Tenn. 483; Illinois C. R. Co. v. Crider, 91 Tenn. 493. The act construed and adjudged to embrace but one subject in the last-named cause provides (1) that any person, corporation, company, lessee, or agent owning or operating any railroad in this state shall be liable for any injury done to live stock upon an unfenced track; (2) that three householders may be appointed to assess the damage resulting from such injury; (3) that the appraisement by such appraisers shall be prima facie evidence of the amount of damage in any action for such injury; (4) that the defendant in such action shall be liable also for a reasonable attorney's fee for plaintiff's counsel; (5) that the master of the section of road on which the injury was done shall give notice thereof to the owner, his agent, or the nearest magistrate; and (6) that any section master who knowingly fails to give such notice shall be guilty of a misdemeanor. Acts 1891, chap. 101. That act, like this one, it will be observed, treats of both criminal and civil remedies, and declares what facts, when established, shall constitute prima facie evidence (of amount of civil liability under the one act, and of the intent to commit the offense prohibited by the other);

over to the assignee, when in fact he had not done so, it was not depriving him of his property or liberty without due process of law to compel him to disclose what other property, if any, he had concealed, and in default of his doing so punish him for contempt of court. If the assignor could in such cases defy the law and the courts, he could retain large sums of money after making the fraudulent assignment, and the insolvency law would become an instrument for the perpetration of fraud and swindling instead of one intended for the equal protection of all.

See also Meadowcroft v. People, 163 Ill. 56, supra, VII; Ex parte Murray, 35 Fed. Rep. 496, supra, VIII. d.

X. Ne exeat.

In West v. Walker, 6 Blackf. 420, a defendant in chancery, who was a prisoner on a writ of ne exeat to secure the performance of a pecuniary demand, was discharged from custody on motion under the Indiana act of 1842, abolishing imprisonment for debt, no fraud being shown.

and, in addition, that act contains three pro-
visions in excess of those contained in this one,
in consequence of which it is to that extent
more comprehensive in its scope and purpose.
Yet that act was, in the case cited, held to em-
brace but one subject; and it has been applied
and enforced as a valid law in subsequent
cases. Cincinnati, N. O. & T. P. R. Co. v.
Russell, 92 Tenn. 108; Nashville, C. & St. L. R.
Co. v. Hughes, 94 Tenn. 450; Cincinnati, N.
Q. & T. P. R. Co. v. Stonecipher, 95 Tenn.
311. The subject of legislation is single in
each of the two acts, though the liabilities de-
clared therein are both criminal and civil, and
the remedies prescribed are more than one.
4. Passing next to the third ground of the
motion to quash, the inquiry is whether or not
the act is in violation of the 3d clause of 17,
art. 2, of the Constitution, which requires that
"all acts which repeal, revive, or amend former
laws shall recite in their caption or otherwise
the title or substance of the law repealed, re-
vived, or amended." The word "caption," as
here used, is synonymous with "title;" and the
word "otherwise" refers to the "body" of the
repealing, reviving, or amending act. Shelton
v. State, 96 Tenn. 521; State v. Runnels, 92
Tenn. 322; Ransome v. State, 91 Tenn. 718.
Neither in its caption nor otherwise (title nor
body) does the act before us recite either "the

The act of Congress of the 28th of February, 1839, adopts the state law with reference to the imprisonment of debtors for the nonpayment of debt. Gray v. Munroe, 1 McLean, 528, 532.

The imprisonment of private debtors sued in courts of the United States is to be governed by the laws and policy of each state wherein the execution issues, but with respect to those who are debtors to the United States it is to be governed by the united and fixed laws of Congress. Moan v. Wilmarth, 3 Woodb. & M. 399.

Where a debtor after being sued in the circuit court took the benefit of the Massachusetts insolvent laws, it was held that he was, under the acts of Congress, entitled to have execution issued against his property alone, and could not be imprisoned for debt, the surrender by the debtor of his property being one of the abolitions under certain "conditions and restrictions" provided for in the Massachusetts statutes. Ibid.

In United States v. Hewes, Crabbe, 307, the defendant sought to be discharged from imprisonment by virtue of an act of Congress the 28th day of February, 1839, entitled, "An Act to Abolish Imprisonment for Debt in Certain Cases," which

debt in any state on process issuing out of a court of the United States, where, by the laws of such state, imprisonment for debt has been abolished; and where, by the laws of a state, imprisonment for debt shall be allowed, under certain conditions and restrictions, the same conditions and restrictions shall be applicable to the process issuing out of the court of the United States; and the same proceed

But the constitutional inhibition against imprisonment for debt as found in art. 1, § 16, Wis. Const., which provides, no person shall be imprisoned for debt arising out of law founded on a contract, ex-enacted "that no person shall be imprisoned for press or implied, was held not to apply to an arrest by virtue of a writ of ne exeat, which is in the nature of equitable bail and issued only by the special order of the court when the party against whom it is asked is about to leave the jurisdiction of the court, so that the decree of the court will be ineffectual and thus prevent the person going from the state until he gives surety for his appearance, and it is not therefore imprisonment for debtings shall be had therein, as are adopted in the within the proper meaning and sense of the words. Dean v. Smith, 23 Wis. 483, 486, 99 Am. Dec. 198. See also Malcolm v. Andrews, 68 Ill. 100, 104, supra, III. d.

XI. Debts owing to the United States. The state legislature has full constitutional authority to pass laws whereby insolvent debtors shall be released or protected from arrest or imprisonment of their persons, on any action for any debt or demand due by them. Beers v. Haughton, 34 U. S. 9 Pet. 329, 360, 9 L. ed. 145, 157.

courts of such state," it was held that persons indebted to the United States were not to be considered as included in the provisions of the statute, for the reason that the United States could not be bound by such general words, and that in order to bind the sovereignty it must be expressly included or there must be a necessary implication to so include such power.

See also State v. Manuel, 4 Dev. & B. L. 20, 26 supra, II. a.

E. W.

title or substance" of any former law. No'ize imprisonment; for misdemeanors whose former law is mentioned or designated in any punishment is not specifically prescribed by the way in any part of that act; hence the act is law creating them are punishable by fine and necessarily void if that constitutional require imprisonment, one or both, in the discretion ment is applicable to any part of it. That re of the court. 1 Bishop, Crim. L. § 719: Archiquirement does not apply, however, to all legis son v. State, 13 Lea, 275. But that does not lation. It relates alone to those acts which decide the whole question. The act authorizes expressly repeal, revive, or amend former laws; imprisonment. That much is certain. But is and does not embrace implied amendments that imprisonment for debt or for something (Shelton v. State, 96 Tenn. 521), nor implied else? To determine that, the act must be conrepeals Home Ins. Co. v. Shelby County Tar- strued; and, in ascertaining its true construcing Dist. 4 Lea, 644; Maney v. State, 6 Lea, tion, all intendments will be made and all 221; Kngrcille v. Laris, 12 Lea, 181; Ballen- doubts resolved in favor of that interpretation tine v. Pulaski, 15 Lea, 633; Poe v. State, 85 which will support the act, and avoid conflict Tenn. 495; Illinois C. R. Co. v. Crider, 91 with the Constitution. Sutherland, Stat. Tenn. 507: Hunter v. Memphis, 93 Tenn. 571), Constr. 332; Cooley, Const. Lim. 5th ed. nor implied revivors. If any former law is 218; Black, Const. Law, § 28; 3 Am. & Eng. amended or revived by this act, that result is Enc. Law, 673, 674; Cole Mfg. Co. v. Falls, 90 accomplished by implication alone; there is no Tenn. 469; Illinois C. R. Co. v. Crider, 91 express amendment or revivor. No word in- Tenn. 507; Ellis v. State, 92 Tenn. 93. Apdicating a purpose to amend or revive any plying that rule, the act assailed in this case former law is used in any part of the act. will not be held to impose or authorize imWith equal propriety and certainty, it may be prisonment for debt if any other reasonable said that no express repeal was intended, and construction can be placed upon the language that any repeal actually effected was by im- used therein. The threefold provision is that plication simply. The words of the 4th sec- any person (1) who shall procure the accomtion "that all laws and parts of laws in con- modations mentioned "with intent to defraud” flict with this act be and the same are hereby the person furnishing them "out of the value repealed," do not make it an expressly repeal- or price" thereof, or (2) who shall obtain credit ing act. Really, that section adds nothing of for such accommodations "by the use of any virtue or meaning to the act, and takes nothing false pretense or device, or by fraudulently from it. All prior conflicting laws and parts depositing" baggage or other property, or (3) of laws were impliedly repealed by the former who, having obtained credit, "shall surreptisection of the act; and, as a consequence, no tiously remove his or her baggage or property," such laws or parts of laws were left for the shall be "guilty of a misdemeanor, and be 4th section to operate upon. That section was punished accordingly." $ 1. Or, stating it therefore useless, and of no force or effect more briefly still, the act provides that any whatever. It had no office to perform, and person who fraudulently obtains such accomperformed none. Its presence in the bill did modations, or who fraudulently removes his not make the act a repealing law or a non-baggage or other property, shall be guilty of a repealing law; and it will not be regarded for the purpose of vitiating the law, nor will it be permitted to have that effect. Such provision is of frequent occurrence in the concluding sections of legislative acts. It has generally appeared, and as often been disregarded, in those cases in which the court has held that the constitutional requirement last mentioned did not apply, and that repeals were wrought by implication. See Acts 1879, chap. 84, § 13, and Home Ins. Co. v. Shelby County Taxing Dist. 4 Lea, 644; Acts 1879, chap. 186, 4, and Poe v. State, 85 Tenn. 495; Acts 1891, chap. 101, § 8, and Illinois C. R. Co. v. Crider, 91 Tenn. 507; Acts 1893, chap. 89, 12, and Hunter v. Memphis, 93 Tenn. 571; Acts 1881, chap. 171, § 88, and Knoxville v. Lewis, 12 Lea, 181. It may be repeated that this act does not expressly repeal, revive, or amend any former law; therefore, it is not obnoxious to the 3d clause of § 17 of art. 2 of the Constitution. If invalid at all, it must be so for some reason or reasons yet to be considered.

5. Is it invalid for the fourth and last reason assigned in the motion to quash? That is to say, does it violate 18 of article 1 of the Constitution, which declares that "the legislature shall pass no law authorizing imprisonment for debt?" It does not in terms provide imprisonment or any other specific punishment; it only declares that certain things shall be misdemeanors and receive punishment as such. That is sufficient, however, to author

misdemeanor. The offense consists, not in the creation of a debt, nor in its nonpayment, but rather in the fraud through which credit may be procured or payment evaded. The latter, and not the former, is the thing for which punishment is to be inflicted. As well said by one of the attorneys for the state, the legislative intent was "to punish the debtor for his fraud, and not for his debt." Honest debtors are not within the act. It relates to those alone who shall intentionally pursue a certain course of fraudulent conduct; and that course of fraudulent conduct intentionally pursued constitutes the offense for which punishment is prescribed, and without which punishment will not be inflicted. Without intentional fraud no offense is committed, no penalty incurred. The intention of the legislature, as we get it from the words and the tenor of the act, was to authorize punishment, including imprisonment, not for debt, but alone for particular intentional frauds, whereby the offender may obtain the property of his victim-for temporary use in case of lodging, and for absolute consumption in case of food-without compensation, or whereby, after obtaining such accommodation, he would defeat the landlord's lien upon his baggage. To our minds, this is not only a fair and reasonable construction of the act, but the most easy and natural one that can be given the language employed. The manifest object was to protect the property and the lien of the landlord against those persons

who would, by intentional fraud, wrongfully
use or consume the one or defeat the other;
and, to make that protection effectual, the of
fender is subjected to punishment for his
fraud, whether practised in the wrongful use
or consumption of the landlord's property, or
in the removal of his own property upon which
the landlord has a lien. In either case the
landlord has an interest in property, which the
state, as a matter of public policy or of indi-
vidual right, may well protect by the passage
and enforcement of a penal statute, such as
that before us. Of like nature are all our
laws against false pretenses (Mill. & V. Code,
SS 5468-5472, inclusive), and against the re-
moval of mortgaged property (Id. § 5626, sub-
sec. 3). Statutes similar to that impeached in
this case seem to have been passed in many of
the states, including Alabama, Illinois, Iowa,
Michigan, Minnesota, Missouri, Nebraska,
New York, and Ohio; but, so far as we are
aware, the question as to whether or not such
legislation violates the usual constitutional pro-
hibition of imprisonment for debt has been
considered by only one court of last resort.
Hearing a case on appeal from a judgment re-
fusing to discharge the petitioner on a writ of
habeas corpus, the supreme court of Alabama
said: "There is nothing in the point raised in
the application that the act 'for the protection
of landlords, proprietors, or keepers of hotels
and boarding houses'
is violative of
S$ 21 and 23 of art. 1 of the Constitution,
which forbids imprisonment for debt, or the
making of laws giving any special privileges
or immunities. The act is in line with our
other statutes against false pretenses, frauds,
cheats, acts to injure, and the like. One who
violates the act is imprisoned, not for the debt
he owes the proprietor, and not to make him
pay it, but to punish him for a wrong he has
perpetrated, which is made a crime. And this
is no more of a special privilege to the hotel
keeper than the statute against burglary from
a store or a dwelling is to the merchant who
owns the store, or to the owner of the dwelling.
Habeas corpus denied." Ex parte King, 102
Ala. 182.

The

The

"

jury trial. In every case the defendant is entitled to trial by an impartial jury and to the benefit of a presumption of innocence; but that right and that presumption can no more preclude a presumption of guilty intent from sufficient proof adduced than they can preclude the introduction of proof altogether. courts have long held that juries may and should be instructed that proof of recent possession of stolen property, unexplained, affords prima facie or presumptive evidence of guilt (1 Greenl. Ev. § 34; McGuire v. State, 6 Baxt. 621; Wilcox v. State, 3 Heisk. 118; Hughes v. State, 8 Humph. 75; Fields v. State, 6 Coldw. 526; Boyer v. State, 93 Tenn. 220); and that, upon a charge of murder, proof of the killing, without more, raises a presumption of malice (1 Greenl. Ev. § 34; Coffee v. State, 3 Yerg. 283, 24 Am. Dec. 570: Draper v. State, 4 Baxt. 246; Gray v. State, Id. 331; Witt v. State, 6 Coldw. 5; Epperson v. State, 5 Lea, 291). power of the legislature to, prescribe rules of evidence, and to declare what shall be evidence, is practically unrestrained, and legislation, to those ends, will be upheld so long as it is impartial and uniform, and does not preclude a party from exhibiting his rights. Cooley, Const. Lim. 5th ed. pp. 452–454. In the case of Illinois C. R. Co. v. Crider, 91 Tenn. 498, 499, this court so held, and sustained as constitutional a provision (Acts 1891, chap. 101. § 4) that the report of appraisers as to value of live stock killed, and as to amount of damages to live stock injured, by moving train upon unfenced track, "shall be prima facie evidence" of such value or damage in the event of suit therefor. That was a civil case, dealing with a provision as to evidence of civil liability, it is true; but that fact does not avoid the force of the decision as a precedent in this case. A man can no more be deprived of his property than of his life or liberty by unconstitutional legislation. Const. art. 1, § 8. It is not an unusual or prohibited thing for the legislature to declare in penal statutes what particular wrongful acts, when proved, shall constitute certain criminal offenses, or the ingredients thereof. One striking instance of 6. The 2d section of the act does not impair the rightful exercise of that power is found in the right of trial by an impartial jury, as guar Mill. & V. Code, § 5349, which is as follows: anteed by 6, 8, 9, art. 1, of the Constitu- "Every murder perpetrated by means of poition. It simply provides that proof of certain son, lying in wait, or by any other kind of wil things therein enumerated shall be "prima ful, deliberate, malicious, and premeditated facie" evidence of fraudulent intent. The lan killing, or committed in the perpetration of or guage used indicates no purpose to abridge the attempt to perpetrate any arson, rape, robbery, right of trial by jury; nor can it be held, by burglary or larceny, is murder in the first deany proper construction, to have that effect. gree.' When the fact that murder, as defined A person arraigned under the 1st section of the in the preceding section (5348), has been comact is left to his trial by an impartial jury, and mitted, is established by proof, and it is further is allowed the presumption of innocence as shown that the offense was perpetrated by fully as in any other case. That right and the means of poison," or by "lying in wait,' that presumption are in no degree affected by or in any other one of the several ways menthe 2d section. Neither can be impaired by a tioned, then the offender is guilty of "murder mere provision that proof of certain facts shall in the first degree,"'-so declared by the legisbe taken as prima facie evidence of a fraud- lature. Thus, the facts that shall constitute ulent intent; and yet that is the sum total of one of the highest crimes known to our law the 2d section. It cannot be true that a decare set forth in a legislative act, whose validity laration by the legislature or a holding by the is unquestioned and unquestionable, and under courts that proof of certain facts is prima facie which scores of unfortunate men have been or presumptive evidence of one ingredient of executed or consigned to imprisonment for an offense, as of guilty intent, is an invasion life. Would that act have been any more subof the peculiar province of the jury, or an im-ject to adverse criticism on constitutional pairment of the defendant's sacred right of grounds had it merely declared that proof of

the killing, by the means or in the manner refusal; but when they are considered in conmentioned, should be prima facie or presump- nection with other parts of the act, and in tive evidence of an intent to commit murder in the first degree? We apprehend not.

KANSAS SUPREME COURT.

NOTE. As to town bonds, see also Brownell v. Greenwich (N.Y.) 4 L. R. A. 685; and State, Charles- | 777.

Messrs. Buchan, Freeman, & Porter, for defendants:

A township is not a municipal corporation. 1 Dill. Mun. Corp. §§ 12, 20; Beach, Pub. Corp. $ 3-6; 15 Am. & Eng. Enc. Law, p. 952; Hamilton County Comrs. v. Mighels, 7 Ohio St. 109; Finch v. Toledo Bd. of Edu. 30 Ohio St. 37, 27. Am. Rep. 414; Askew v. Hale County, 54 Ala. 639, 25 Am. Rep. 730; Harris v. School Dist. No 10, 28 N. H. 61; Fourth School Dist. v. Wood, 13 Mass. 192; Riddle v. Proprietors of Locks & Canals, 7 Mass. 169. 5 Am. Dec. 35; Beach v. Leahy, 11 Kan. 23; Eikenberry v. Bazaar Twp. 22 Kan. 561, 31 Am. Rep. 198; Marion County Comrs. v. Riggs, 24 Kan. 255; Cooley, Torts, 622; Waltham v. Kemper, 55 Ill. 346, 8 Am. Rep. 652; Russell v. Deron County, 2 T. R. 671; Atchison v. Bartholow, 4 Kan. 124; Freeland v. Stillman, 49 Kan. 197.

A statute or a title to a statute is to be so construed as to give sense and meaning to every part.

Cooley, Const. Lim. 70, 71.

In the construction of a statute the words municipal corporation" are not, as a definition, broad enough to include counties, townships, and school districts.

Freeman v. Stillman, supra.

The Constitution has said that the title must be an index to the law, and the court may not sanction, as a valid enactment, any part of the statute to which the finger of the title does not point.

Johnston, J., delivered the opinion of the

court:

This is an original proceeding in mandamus to compel the levy of a tax upon the property in Forrester township, Ness county, for the payment of interest which has accrued upon refunding bonds issued by the township. It appears that in April, 1889, the township voted $20,000 in bonds, payable in twenty years, and bearing interest at 7 per cent per annum, to aid the Ness County Sugar Mill Company; and, on October of the same year, they were refunded in bonds running thirty years, and bearing interest at 6 per cent per annum, in accordance with the provisions of chapter 50 of the Laws of 1879. The petition alleges that the refunding bonds were negotiable, payable to bearer, and had been duly registered by the auditor of the state of Kansas, who certified that they had been regularly and legally issued, in conformity with the laws of the state. Default has been made in the payment of the interest, and the local authorities decline to levy a tax, claiming that the original bonds were invalid, because they were issued in aid of a private enterprise, and also that the act under which they were issued does not authorize the issue of refunding bonds by townships, nor the issue of negotiable bonds, such as were issued by the township, in any case.

The questions submitted for decision are raised on a motion to quash the alternative writ, and the first is that the title of the act under which the bonds were issued is not broad enough to cover the provisions authorizing the refunding of township indebtedness. The title is as follows: "An Act to Enable Counties, Municipal Corporations, the Boards of Education of Any City and School Districts to Refund Their Indebtedness." Express author

State v. Brown, 38 Kan. 390; Re Wood, 34 Kan. 645; State v. Bankers' & M. Mut. Ben. Asso. 23 Kan. 499; Swayze v. Britton, 17 Kan. 627: Shepherd v. Helmers, 23 Kan. 505; Sedgwick County Comrs. v. Bailey, 13 Kan. 600. The original bonds voted in aid of the Ness County Sugar Mill Company were ab-ity is given in the body of the act for refundsolutely void.

Bonds issued in aid of a private enterprise are invalid.

Central Branch U. P. R. Co. v. Smith, 23 Kan. 745; Commercial Nat. Bank v. Iola, 2 Dill. 353; Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185; Citizens' Sav. Asso. v. Topeka, 3 Dill. 376, 87 U. S. 20 Wall. 655, 22 L. ed. 455.

Chapter 50. Laws 1879, even if it applies to townships, does not authorize the issue of negotiable bonds, or bonds such as those set out in the alternative writ.

ing township indebtedness. Townships are mentioned in connection with counties, cities, and school districts in almost every section; and the provisions of the act apply substantially alike to each municipality, except that townships and school districts cannot refund their debts without the assent of the voters, expressed at an election held for that purpose. It was the manifest purpose of the legislature to confer authority upon townships to refund their indebtedness, and the question for decision is whether the general term "municipal The powers of such governmental agencies corporations," employed in the title, is suffias counties, townships, and school districts ciently broad to cover those provisions. In are more strictly construed than in the case of this state, each organized township is a body incorporated municipalities. It is settled that politic and corporate, with power to make this class of corporations have not the im- all contracts that may be necessary and plied power to borrow money and issue ne convenient for the exercise of its corporate gotiable bonds. Direct legislative authority powers, and, in its proper name, may sue and is necessary. be sued. A township is generally spoken of Claiborne County v. Brooks, 111 U. S. 400-as a municipality or municipal corporation, 407, 28 L. ed. 470-472; Hill v. Memphis, 134 but, strictly speaking, every political subdiviU. S. 199, 33 L. ed. 887; Young v. Clarendon sion of the state organized for the administraTrop. 132 U. S. 340, 33 L. ed. 356; Kelley v. Milan, 127 U. S. 139, 32 L. ed. 77; Nashville v. Ray, 86 U. S. 19 Wall. 468, 22 L. ed. 164; Brenham v. German-American Bank, 144 U. S. 173, 36 L. ed. 390; Barnett v. Denison, 145 U. S. 135, 36 L. ed. 652; Merrill v. Monticello, 138 U. S. 673, 34 L. ed. 1069; Anthony v. Jas per County, 101 U. S. 693, 25 L. ed. 1005.

tion of civil government is a quasi corporation. In this respect they are placed on the same plane as counties and school districts; and in this court in determining the liability of this class of corporations for failure to perform some corporate duty, or for the neglect or misfeasance of its officers and agents, it has been held that counties, townships, and school