(108 A.)

cretionary power, which would in effect sub- [ 3. BILLS AND NOTES 396-INDORSERS' LIAstitute the discretion of the court for that of the person or body designated by statute, and the law upon this point is well summarized in 18 R. C. L. p. 124, as follows:

POWERS, J. B. O. Cote bought of this plaintiff a stock of merchandise, giving as

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part payment therefor his promissory note for a verdict was properly granted, if, as for $1,000 payable at and to the order of the claimed, there was no evidence of presentLyndonville National Bank at a time stated. ment and notice. Mechanics', etc., Bank v. Before this note was delivered to the plain- Katterjohn, 137 Ky. 427, 125 S. W. 1071, tiff, the defendant, Willoughby, had written Ann. Cas. 1912A, 439; Lightner v. Roach, his name across the back of it. The plaintiff supra; Gibbs v. Guaraglia, 75 N. J. Law, took the note to the bank and, having writ- 168, 67 Atl. 81. And the subsequent payment ten his name across the back of it, under that by the plaintiff could not revive a liability of the defendant, received the avails of it by once discharged. 2 Daniels, § 1224; Story, way of credit or otherwise. This note was Bills, § 423; Turner v. Leach, 6 E. C. L. renewed from time to time, and the note in 556. suit fell due on January 29, 1918. On all these notes Cote was the primary debtor, and the parties here were only liable secondarily. On the day the note in suit fell due, the defendant paid $500 thereon, and an indorsement showing that fact was made on the back of the note. Later in the day, the plaintiff, being informed by the cashier of the bank that this payment had been made and that the bank would look to him for the balance, paid the amount remaining due on the note and took it up. Still later in the day, this suit was brought to recover of the defendant the amount so paid by the plaintiff. At the trial below, a verdict was, on motion therefor, ordered for the defendant, and the plaintiff excepted. The only ground of this motion that merits consideration is that there was no evidence tending to show due presentment, dishonor, and notice, without which there could be no recovery.

[1-4] The rights of these parties are controlled by the Negotiable Instruments Act (chapter 140 of the General Laws). As to the bank, their relation is a matter of express definition. They are indorsers (G. L. 2932, 2933), and parol evidence is not admissible to show otherwise. Neosho Milling Co. v. Farmers', etc., Co., 130 La. 949, 58 South. 825; Lightner v. Roach, 126 Md. 474, 95 Atl. 62. An indorser's engagement is to pay, provided the paper is seasonably presented to the maker, and he is seasonably notified of the latter's default. G. L. 2935. His undertaking, then, is not absolute, but conditional; it is not primary, but secondary; and a cause of action does not accrue against him until and unless the condition of his engagement has been fulfilled, or dispensed with. Ordinarily, a demand and notice are conditions precedent to a right of action against him; and, without these, no recovery can be had against him (G. L. 2940, 2958), though protest is not necessary (G. L. 2987).

[5] Other questions aside, then, the motion

[6] As between themselves, however, the rights and liabilities of these indorsers were open to explanation and proof. Prima facie, they were liable in the order in which they indorsed; but parol evidence was admissible to show just what the agreement was, G. L. 2937. And this is all so, though the order of their signatures on the note renewed was reversed. 8 C. J. 380; Enterprise Brewing Co. v. Canning, 210 Mass. 285, 96 N. E. 673.

[7, 8] When the motion for a verdict was presented in the court below, it was necessary for the defendant to specify the grounds on which it was predicated. Castonguay v. Grand Trunk R. Co., 91 Vt. 371, 100 Atl. 908. It was equally necessary for the plaintiff to specify the grounds of his opposition to it. Seaver v. Lang, 92 Vt. 503, 104 Atl. 877. Each was bound to assist the court to an adequate understanding of the situation presented, to the end that the ruling could be understandingly made. This was done. But in stating his objections to the motion, the plaintiff did not claim that there was evidence tending to show demand and notice, or that these formalities had been dispensed with. In response to a questión asked by the court while the motion was under consideration, he expressly limited his opposition to the claim that there was evidence tending to show that the defendant was a maker, in which case, of course, demand and notice would not be required.

The record shows that this claim was unfounded. There was no evidence in the case tending to show that the defendant assumed any obligation different from that shown by the note itself and stated above.

[9] The plaintiff now argues that the case shows that the defendant waived the necessity of demand and notice. But he did not make this point below, and under our familiar and salutary rule it will not be considered.

Judgment affirmed.

An order of the Public Service Commission under G. L. 5168, 5170, requiring the repair of a bridge under a railroad's overpass crossing, is not objectionable for want of adequate findings of jurisdictional facts showing that the bridge was made to accommodate public travel, where the findings show the existence of a bridge and highway under the overpass; the bridge being spoken of as a "highway bridge." 4. CONSTITUTIONAL LAW 117 ALL CONTRACTS AND CHARTERS SUBJECT TO POLICE

POWER.

pairs, petitionee Railroad appeals. Order affirmed, and cause remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Charles B. Adams, of Waterbury, for petitioner.

John W. Redmond, of Newport, and W. R. McFeeters, of St. Albans, for petitionee.

POWERS, J. The track of the defendant's railroad crosses Main street in the village of Waterbury by means of an overpass. Directly under this overpass is an iron bridge forming a part of the highway at that point. This bridge, as well as a wooden structure that preceded it, was built and has always been maintained by the town of Waterbury. It has now become unsafe for public travel and must be repaired or replaced. The town is seeking to charge the defendant with the expense of this undertaking; and, proceeding under G. L. 5170, it gave the defendant notice of the condition of the bridge, and, the latter having failed to repair the same within the time limited by the statute, it brought this petition to the Public Service Commission, and has obtained an order requiring the defendant to make such repairs upon the bridge as will make it safe for public travel and hereafter to keep the same in proper repair. From this order the defendant ap

peals.

[1] G. L. 5168, provides that a railroad corporation whose track crosses a highway by passing upon, over, or under the traveled path thereof shall repair, and rebuild when necessary, bridges, culverts, crossings, and other constructions made for the accommoEvery contract made and corporate charter dation, safety, and convenience of the pubgranted, regardless of its stipulations, is sub-lic travel on such highway. It is contended ject to the police power of the state; the Legislature cannot divest itself of its power to conserve the safety and comfort of the public, nor can one Legislature in any way bind its successor by contract to the contrary.

5. CONSTITUTIONAL LAW 101-NO DEPRIVATION OF VESTED RIGHTS BY ALTERATION OF

CHARTER BY POLICE ENACTMENT.

Application to the Central Vermont Railway Company, chartered originally by Acts 1843, No. 53, of G. L. 5168, requiring repair of a bridge under the railroad's overpass in a town, held not to deprive the railroad of vested rights, its charter having been granted subject to the police power of the state, while the passage of section 5168 was in exercise of such

power.

by the defendant that this statute is not to be taken literally, but means merely that the corporation is to keep in repair such portions of the highway and such structures as it has added, changed, or interfered with.

This contention cannot be sustained. The statute under consideration originated in No. that in all cases where a railroad built its 26, Acts of 1852, wherein it was provided road across a highway or street, and should "find it necessary to erect a bridge or embankment for the accommodation of such highway or street," it should keep and maintain such bridge or embankment in good and sufficient repair for highway purposes, unless it completed such crossing to the acceptance of the selectmen or railroad com

Appeal from Order of Public Service Commissioners, agreeably to its charter. Under

mission.

Petition of the Town of Waterbury to charge the Central Vermont Railway Company with the expense of repairing or replacing a bridge. From an order of the Public Service Commission ordering it to make re

such a statute, the claim of the defendant might well be made. For the language used clearly implies that the responsibility of the railroad company was limited to such constructions as were made necessary by the building of the railroad. But in 1855 anoth

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er act was passed by the Legislature. This the passage over a stream, ravine, or some provided that

"When any railroad corporation in this state shall have constructed a railroad across any public highway, either by passing upon, over, or under the traveled path of such highway, such corporation shall at all times keep in good and sufficient repair, and rebuild, when necessary, all bridges, culverts, crossings and other constructions which have been, or shall hereafter be made, for the accommodation, safety, and convenience of the public travel on such highway, over, under, or upon such highway." No. 28, Acts of 1855.

such thing. From the findings specified it sufficiently and affirmatively appears that this bridge was built and used for the safety and convenience of public travel on the highway there.

Certain findings are challenged for want of evidence, but we do not regard them as necessary to the validity of the order; therefore we take no time in their discussion.

[4, 5] It is urged by the defendant that the statute referred to does not apply to it, and that to hold otherwise would be to deprive it of vested rights. In support of this proposiIt is apparent that this act materially ex- tion it is claimed that the original charter of tended the obligation of railroad companies the defendant is to be found in No. 53, Acts to which it applied and carried it far beyond of 1843; that section 10 of that act prescribes its limits under the act of 1852. For some the terms and conditions on which the correason (not at the moment apparent) the act poration could build its road across a public of 1855 was not treated as amendatory of highway; that that act contains no reservathe act previously passed, and both of the tion of legislative power to alter, amend, or acts were carried into the General Statutes, repeal the same; and it is argued that to where they appear as sections 38 and 40 of apply the statute to the defendant would chapter 28. But, whether the act of 1855 is amount to amending its charter in violation to be regarded as an amendment or other- of the contract clause of the federal Constiwise, the result is the same: It must be tak-tution. Assuming that the record before us en that the Legislature intended thereby to is sufficient to show that the defendant is make some change in the statute as it then stood. The only change that could have been contemplated, as clearly appears from the terms used, was an enlargement of the duties of railroad companies that built railroads across public highways. The editors of the Revised Laws, with the sanction of the Legislature, of course, treated the act of 1855 as an amendment of the previous act and as expressing all the law of the subject. They discarded the act of 1852 and kept only the act of 1855. R. L. 3383; and without material change the law stands the same to-day. G. L. 5168. In view of its plain terms, considered in the light of its legislative history, we have no hesitation in holding that the law requires this defendant to maintain the bridge in question.

[2, 3] The defendant urges that the order is not predicated upon adequate findings of jurisdictional facts, in that it is not shown that the bridge was made for the accommodation, safety, or convenience of public travel on the highway. That all necessary jurisdictional facts must be shown by the record is beyond question. Bessette v. Goddard, 87 Vt. 77, 88 Atl. 1. But it is not necessary that they appear by express findings. It is enough if they appear by necessary implication from the facts expressly found. Such is the case here. The findings show that there is a bridge directly under the overpass; that there is a highway there; the bridge is spoken of as a "highway bridge." The term "bridge" is defined to be a structure erected over a river, creek, stream, ditch, ravine, or other place to facilitate the passage thereof. 1 Bouvier, Rawle's 3d Rev. 395. A "highway bridge" then must be such a structure form

now vested with "the same franchises, privileges, and immunities" contained in the act of 1843, the contention is unsound; for there is nothing in the law more firmly established than this: Every contract made, every charter granted, regardless of its stipulations, is subject to the police power of the state. The Legislature cannot divest itself of the power (which carries with it the corresponding duty) of conserving the health, safety, comfort, and welfare of the people; nor can one Legislature bind its successor by land & Burlington R. Co., 27 Vt. 140, 62 any contract to the contrary. Thorpe v. RutAm. Dec. 625; Clarendon v. Rutland R. Co., Am. Dec. 625; Clarendon v. Rutland R. Co., 75 Vt. 6, 52 Atl. 1057; Boston & Maine R. R. v. County Com'rs, 79 Me. 386, 10 Atl. 113; U. S. 408, 31 Sup. Ct. 534, 55 L. Ed. 789; Texas & New Orleans R. Co. v. Miller, 221 Atlantic Coast Line R. Co. v. Goldsboro, 232 U. S. 548, 34 Sup. Ct. 364, 58 L. Ed. 721; Boston Beer Co. v. Mass., 97 U. S. 25, 24 L. Boston Beer Co. v. Mass., 97 U. S. 25, 24 L. Ed. 989. That the passage of the statute in question was an exercise of the police power is beyond question. Its evident purpose was to safeguard the traveling public by a unified responsibility for and control of all things within its right of way at highway crossings. Boston & Maine R. R. v. County Com'rs, supra. This very case shows the importance of such control. The abutment of the overpass and the abutment of the highway bridge are one and the same structure. A proper regard for the safety of the traveling public demands that it should be free from independent and possibly antagonistic authorities.

Our own cases above cited are decisive

(108 A.)

Exceptions from Chittenden County Court; Barre, 66 Vt. 129, 28 Atl. 878, 23 L. R. A. Zed S. Stanton, Judge. 488, 44 Am. St. Rep. 829; Ford v. Braintree, 64 Vt. 144, 23 Atl. 633; Sanborn v. Village of Enosburg Falls, supra; Morgan v. Stowe,

Action by Etienne Latulippe against the City of Burlington. Judgment for defendant, and plaintiff brings exceptions. Judgment supra. affirmed.

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