the meaning of that term as used in the statute. The principal part of the work performed by him is ordinary manual labor, and if the compensation for his work is distinguishable from that performed by the team which he drives, he may, where no bond has been taken, charge the railroad company for the same. In this case, however, it is alleged that the services performed by the teamster and his team were for an agreed price per day for the joint labor of such teamster and team. He was not employed separately. The part which was performed by him was mingled and confused with that performed by the team, and the indebtedness for the same constituted a single demand. There is therefore no mode of ascertaining the amount due from the contractor for the personal services of the teamster. In a case somewhat similar to this it was said:

"Another difficulty in the judgment as it stands is that it makes a new agreement between the plaintiff and the railroad contractor. The foundation of the liability of the corporation is the debt due to the laborer from the contractor. In this case the contract was entire for the labor of the plaintiff, his man, and two teams; the debt is also entire, and arises out of the performance of that contract. Now, it appears to me, the defendants cannot be made liable for a part of the services when confessedly they are not for another part, the whole being performed under one entire agreement. The true obligation of the contractor was to pay for the whole as a unit, and I do not see how this can be split into two parts for the purpose of enforcing one of them against the company. The recovery against the corporation must be according to the agreement of the contractor and his obligation arising under it to the laborer. If the laborer has so dealt with the contractor that any portion of an entire demand is not within the statute, then his remedy is against his employer alone upon his contract." Atcherson v. Troy & B. R. Co., 6 Abb. Pr. 329. See, also, Balch v. Railroad Co., supra.

If, upon the further trial of this cause, it is found that the agreement between the teamsters and the contractor was not an entirety, and did not constitute a single demand, but that the personal services of the teamsters are distinguishable from the labor performed by the teams, the plaintiff may recover for such personal services, provided the railroad company is liable at all. The allegations of the answer, however, make the debt due from the contractor for the teamster and his team a single demand, and therefore the ruling of the court upon the demurrer was correct.

The judgment of the district court will be affirmed. (All the justices concurring.)

(35 Kan. 21)

CITY OF WYANDOTTE v. CORRIGAN.
Filed March 5, 1886.

1. STREET RAILWAY-REGULATION-TAXATION.

A city granted to a corporation a franchise to construct and operate a street railroad within its limits, and in the ordinance conferring the grant provided how and when it should be constructed, and the manner in which it should be maintained. Held, that the grant thus made will not exempt the corporation from reasonable regulation by the city in the operation of the road, nor will it prevent the city from levying and collecting a license tax

thereon.

2. SAME-GRANT OF FRANCHISE, HOW CONSTRUED.

Grants of this class are not to be extended by construction beyond the plain terms in which they are conferred, but should be construed strictly against the corporation, or those claiming under the grant, and in favor of the public.

3. SAME LIABILITY OF AGENT-FAILURE TO PAY LICENSE TAX.

An agent or employe of such corporation who knowingly operates, or assists in operating, a street railway, when the license tax imposed on such business is unpaid, will be liable to prosecution and punishment, as prescribed by the ordinance.

Appeal from Wyandotte county.

Prosecution for the violation of ordinance No. 448 of the city of Wyandotte, in the police court of the city, where the defendant was convicted. He appealed to the district court, and was there tried. and again convicted. The ordinance for the violation of which the defendant was prosecuted was entitled "An ordinance regulating the collection of a license tax on the corporations herein named." Section 1 of the ordinance provided:

"That it shall be unlawful for any person or persons, firm or corporation, to transact, engage in, or pursue any business or vocation, or to do any act, or make any exhibition hereinafter named, described, or specified, in the city of Wyandotte, without first having paid such sum or sums, and obtained a license so to do, as hereinafter provided or required."

Section 2 provided that—

"There shall be charged and collected for every license granted for any business or occupation or object herein named and specified, as follows."

After enumerating the sums to be charged and collected for other business occupations and objects, section 26 provides that there shall be charged and collected "upon a street railway company's license one hundred dollars ($100) per year."

Section 36 of the ordinance provides that

"Whoever shall violate, or neglect or refuse to conform to or to observe the preceding provisions of, this ordinance, and any or either of them, by carrying on or engaging in any business, occupation or profession named in this ordinance without having first taken out a license, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not to exceed one hundred dollars, ($100.)"

In 1871 the mayor and council of the city of Wyandotte enacted an ordinance authorizing the Kansas City & Wyandotte Street Railway Company to construct and operate a street railway upon certain streets and avenues within the city. This ordinance was

amended in 1881 by ordinance No. 330. Section 3 of the amended ordinance provided:

"The said street railway company shall construct a second or double track along and upon such parts of the said streets and avenues as they now are operating their road upon, and shall construct said track along-side of the one now laid, and upon the side and in the manner that shall be designated by the city engineer, the said track to be laid and completed on or before, and said road shall be maintained and operated as a double-track road from and after, the first day of July, 1881; all of said new track to be laid with flat rails, so as not to interfere with public travel; and said company to keep said track of said road up to the established grade of said streets, and to keep the same in good repair; also, the space occupied by its track, and the space between the tracks, to be four feet in width.

"Sec. 4. The said railway company shall, within thirty days after the passage and approval of this ordinance, make such running arrangements with the Jackson County Horse Railroad Company, of Kansas City, Missouri, as to run all of the cars of the Kansas City & Wyandotte Railway Company through without change from the western terminus of the said road, in the city of Wyandotte, to the public square, in the city of Kansas, Missouri, making a through line of said roads, on which through line there shall be, at all reasonable hours and times, run at least twelve cars.

For every

"Sec. 5. The said railway company may collect fare as follows: person over the age of five years riding in said cars, five cents, and no more, for one trip over said road, or any part thereof, between the state line and any point in the city of Wyandotte to which said road shall run, or vice versa.

"Sec. 6. The said railway company shall be entitled to the rights, privileges, and benefits of this ordinance for the full term and period of twenty-one years from and after this ordinance takes effect."

The cause was tried in the district court upon an agreed statement of facts, which is as follows:

"It is agreed by the parties hereto that said railroad is operated only on the streets specified; that Thomas Corrigan, the defendant, on or about the twentysecond day of March, 1884, was the general manager of a street railway company running and operating cars in the city of Wyandotte under ordinance No. 330, and the ordinance of which the same was amendatory; and said defendant, on said day, did run and operate said cars and said street railway without first having procured any license therefor, or paid any license tax thereon, as provided by ordinance No. 448. All other questions are waived."

The trial resulted in a conviction of the defendant, and he was adjudged to pay a fine of $25, with the costs of prosecution, from which fine and judgment he appeals to this court.

Henry McGrew, for appellee.

John C. Tarsney, for appellant.

JOHNSTON, J. The mayor and council of the city of Wyandotte, by an ordinance adopted in 1871, which was amended in 1881, authorized the Kansas City & Wyandotte Street Railway Company, of which the appellant is general manager, to construct and operate a street railway upon and along certain streets and avenues within the city. In the ordinances granting the franchise it was provided that it should be constructed and maintained as a double-track railway; that the tracks should be laid flush with the streets, and with flat rails, so as not to interfere with public travel, and should be kept in good repair;

also that the company should operate its railway in connection with one in Missouri, so that cars should be run over both lines without change, making a through line on which cars shall be run at all reasonable hours and times, and further providing a maximum fare which should be charged for transportation over the company's line. From the record presented in this case it does not appear that any other duties or obligations were imposed upon the company by the ordinance granting the franchise, nor does it appear that they contained any express exemption from municipal regulation or control, nor from the liability of others doing business within the city.

The defendant urges that the granting of the franchise, and its acceptance by the company, constituted a contract within the protection. of the federal constitution, which could not be impaired by any subsequent legislation of the city without the assent of the company; and he contends that no other or different conditions or burdens could be imposed than those mentioned in the ordinances, and therefore that the license tax could not be enforced against the company, or any of its agents. It may be conceded that the grant and its acceptance constituted a contract the obligation of which comes within the protection invoked; but the extent of the contract is not what is claimed. It does not involve any conditions or exemptions beyond those which are clearly expressed or necessarily implied. It is well settled that grants of this class are not to be extended by construction beyond the plain terms in which they are conferred, but should be construed strictly against the corporation, or those claiming under the grant, and in favor of the public. It has been said, in respect to grants of special privileges, "that nothing is to be taken as conceded but what is given in unmistakable terms, or by an implication equally clear. The affirmative must be shown; silence is negative, and doubt is fatal to the claim." Fertilizing Co. v. Hyde Park, 97 U. S. 659. The application of this rule will overthrow the contention of the appellant.

As has been seen, the ordinance conferring the grant provided only for the manner of constructing, maintaining, and operating the road. Nothing in the letter or spirit of the ordinance indicates any intention on the part of the city to relinquish municipal regulation and control of the company, if, indeed, it can be done, nor to relieve it from taxation or the ordinary burdens to which other corporations and natural persons within the city are subject. The company must be held to have taken the franchise knowing that the business of operating the road must be conducted under such reasonable rules and regulations as the municipality might impose, and subject to its share of the burdens incident to the conduct of the municipal government. The requirements mentioned in the ordinance do not embrace, and are not in any sense inconsistent with, the one now made, and of which the appellant complains. Express authority is conferred upon cities of the second class to levy and collect a license tax upon the

business of operating a street railroad, (Laws 1881, c. 40, § 3,) and the validity of such legislation has been considered and sustained. City of Newton v. Atchison, 31 Kan. 151; S. C. 1 Pac. Rep. 288. We have examined the authorities cited by plaintiff in error, but in them we find nothing in conflict with the conclusion which we have reached.

There has been considerable discussion in regard to whether the imposition of the license tax is an exercise of the police power or of the power of taxation, but this is a matter of indifference in this case, as it is manifest from the contract made that it was not intended by the parties that either should be bargained away or surrendered. We conclude, then, that the conditions stated in the charter providing how and when the road shall be constructed, and the manner in which it shall be maintained and operated, will not exempt the company from reasonable regulation in other respects, or from bearing its share of the public burdens. San Jose v. San Jose & S. C. R. Co., 53 Cal. 475; Frankford, etc., R. Co. v. Philadelphia, 58 Pa. St. 119; Johnson v. Philadelphia, 60 Pa. St. 445; City of St. Louis v. Manufacturers' Savings Bank, 49 Mo. 574; City of St. Louis v. Missouri R. Co., 13 Mo. App. 524; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; S. C. 2 Sup. Ct. Rep. 257; Union Passenger Ry. Co. v. City of Philadelphia, 83 Pa. St. 429.

The appellant further contends that he cannot be held criminally responsible for the failure of the company to pay the license tax, claiming that the ordinance did not impose the duty of paying such tax upon any officer, servant, or employe of the company. This contention has no ground upon which to rest. A corporation can only act through its agents, and by the agreed facts it is shown that the appellant is the general manager of the company, and that he was actually engaged in running cars and operating a street railway at the time charged, when the license tax provided by the ordinance was unpaid. The ordinance makes it unlawful for any person or firm, as well as a corporation, to engage in any of the occupations or classes of business mentioned without procuring a license and paying the tax; and provides, further, that whoever shall engage in such business in violation of such ordinance shall be convicted and punished. It is immaterial whether the appellant was acting for himself or for the company. He was engaged in the business of operating a street railway within the city while the tax was unpaid, and must therefore suffer the penalty.

The judgment of the district court will be affirmed. (All the justices concurring.)