Nor is a spot, surrounded with brush and briers, 200 yards from where a public shooting-match is going on. Com. v. Vandine, 6 Gratt. 689. Nor a room in an out-house within a tavern inclosure, formerly used in connection with the tavern, and a room over which is still so used, but now used independently of the tavern by one who boards there. Purcell v. Commonwealth, 14 id. 679. Nor a hollow 100 yards from a dram shop, not visible therefrom nor from a public road, and not customarily used for gaming. Smith v. State, 23 Ala. 39; Bythwood v. State, 20 id. 47. Nor is a private house, to which the public are not permitted to go without invitation, made a public place by the presence of eight | or ten invited persons. Coleman v. State, 20 id. 51.

Nor the office of an unmarried physician, where he eats and sleeps, the gaming being at night with closed doors and a few invited friends. Clarke v. State, 12 id. 492. Nor a lawyer's office, occupied and used in like manner, although during the session of court. Burdine v. State, 25 id. 60. Nor the office of a married physician, adjoining a merchant's counting-room, and occupied at night by another as a sleeping-room, who frequently held invited card parties there. Sherrod v. State, 25 id. 78. Nor the back room used by a register in chancery as a bed-room, adjoining and communicating with his office, the house having a high fence in the rear, and the persons invited coming in by the back way. Boquemore v. State, 19 id. 528. Nor a storehouse in a village, late at night, after persons have ceased to come for goods, and the door is locked. Commonwealth v. Feazle, 8 Gratt. 585; Windsor v. Com., 4 Leigh, 680. (But it is a "public house." Skinner v. State, 30 Ala. 524.) Nor is a room made a public place by the mere fact that it adjoins and communicates by an open door with another in which are persons who are not gaming. Lowrie v. State, 43 Tex. 602. A " room in a public courthouse" is not necessarily a "public place." Shihagan v. Steele, 9 id. 430.

A public omnibus is a "public place" within a statute against indecent exposure of the person. Reg. v. Holmes, 3 Carr. & K. 360. In Reg. v. Orchard, 3 Cox's C. C. 248, it was held that a urinal, with boxes or divisions, for the convenience of the public, situated in an open market, was not a public place within the same statute. But the contrary was held in Queen v. Harris, L. R., 1 C. C. 282. The court said: "It appears that the urinal was open to the public; that it was in Hyde Park, upon a public foot-path, and that the entrance to it was from that foot-path. I think it was just as much a public place, with respect to that portion of the public who use it, as a public highway. Every place must be more or less screened from view on some side, and the size of an inclosure does not necessarily affect the question whether it is a public place or not." Where one indecently exposed himself on the roof of a house in view from the back windows of several other houses, and was seen by seven persons from one of those windows, but could not be seen from the highway, held, that this was in a public place. Reg. v. Thallman, 1 Leigh & C. 326.

The sea-beach, visible from inhabited houses, is a public place. Reg. v. Creusden, 2 Camp. 89. But an indictment charging indecent exposure "in a public place, to wit, a public road," is bad, the publicity having reference to the number of persons rather than the locality. Moffit v. State, 43 Tex. 346.

A field in a forest and one mile from a highway or any other public place is not a public place, although three persons are present, two of whom engage in an affray. Taylor v. State, 22 Ala. 15. (So held in respect to an indecent exposure in a barroom, only one other person being present. Reg. v. Webb, 1 Den. C. C. 338. So under the like circumstances in a church-yard. Rex v. Watson, 2 Cox's C. C. 376.) But an inclosed lot, thirty yards from the street of a country town, but visible from the street, is a public place within the common-law definition of an affray. Carwile v. State, 35 Ala. 392. "The tumult could be heard and its exciting scenes witnessed; and persons passing by would be within reach of missiles thrown by the combatants," said the court.

For the purpose of posting notices, houses of public worship, inns, and perhaps in some places, retail shops, are public places. Scammon v. Scammon, 28 N. H. 428; Tidd v. Smith, 3 id. 181.

In Homer v. State, 49 Md. 277, an indictment for nuisance, it was held that the ordinary and accepted meaning of the words "roads and streets," is "ways for public travel," unless qualified by the adjective "private" or some equivalent expression; and so an allegation of the maintenance of an offensive trade "near unto divers roads and streets," etc., was held to imply a public nuisance.

TREATIES AND THE FEDERAL CONVENTION.

BY SAMUEL T. SPEAR, D.D.

THE Madison Papers contain a summary of the daily

proceedings of the Federal Convention, from the commencement of its sessions on the 14th of May, 1787, to the signing of a draft of the Constitution on the 17th of the ensuing September, covering a period of a little more than four months. One of the questions considered and determined by the Convention relates to the subject of treaties with foreign nations. The purpose of this article is to give a brief history of this question in the Federal Convention as found in the Madison papers.

1. One branch of the question relates to the denial of the treaty-power to the several States, and in regard to this point there does not seem to have been any division of opinion among the members of the Convention. The Articles of Confederation, which preceded and were superseded by the Constitution, while granting, with certain qualifications, to the United States, "the sole and exclusive power" of "entering into treaties and alliances," declared that no State, without the consent of the United States in Congress assembled," shall "enter into any conference, agreement, alliance, or treaty with any king, prince or State," and that "no two or more States shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States in Congress assembled, specifying ac

curately the purposes for which the same is to be entered into, and how long it shall continue." Article VI.

The plan of a Constitution, submitted to the Convention, May 29th, by Mr. Charles Pinckney, provided, in the eleventh article, that no State shall "enter into treaty, or alliance, or confederation," or "enter into compacts with other States or foreign powers." P. 744. The Constitution, as finally adopted, declares, in article 1, section 10, that "no State shall enter into any treaty, alliance, or confederation," and that no State shall, without the consent of Congress, "enter into any agreement or compact with another State or with a foreign power."

The first of these clauses expressly denies to the States all power to "enter into any treaty, alliance, or confederation." This applies, as Mr. Justice Story thinks, "to treaties of a political character, such as treaties of alliance for purposes of peace and war, and treaties of confederation in which the parties are leagued for mutual government, political co-operation and the exercise of political sovereignty, and treaties of cession of sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges." Story's Const., § 1403. The other clause-the one relating to "any agreement or compact," etc., is regarded by the same eminent jurist as applying to "mere private rights of sovereignty, such as questions of boundary, interests in land situate in the territory of each other, and other internal regulations for the mutual comfort and convenience of States bordering on each other." Id. Such agreements or compacts the States are permitted to make with each other or with a foreign power, with the consent of Congress. The compact between Virginia and Kentucky is an example to this effect.

Thus the treaty power, in the general sense of this phrase, is entirely excluded from the States; and all agreements or compacts of the States with each other or with a foreign State are excluded, except with the consent of Congress. This, as was intended, dispossesses the States of one of the fundamental attributes of nationality. Holmes v. Jennison, 14 Pet. 540; and The People v. Curtis, 59 N. Y. 321.

2. A second branch of the treaty question relates to the proper lodgment of the treaty power in the general government. Excluding the judiciary, the power might have been delegated to the President alone, or to him in connection with one or both houses of Congress, or to either house of Congress exclusively, or to both houses in conjunction. These were possible methods of lodging this power. The matter to be settled was to decide which, on the whole, would be the wisest; and this, at different times during the sessions of the Convention, involved considerable discussion.

Mr. Pinckney's plan, proposed May 29th, provided that "the Senate shall have the sole and exclusive power" "to make treaties." P. 742. That of Alexander Hamilton, proposed June 18th, provided that the President shall "have, with the advice and approbation of the Senate, the power of making all treaties," and that the Senate shall have "the power of advising and approving all treaties." P. 891. The report of a draft of the Constitution by the Committee of Detail, made August 6th, declared that "the Senate of the United States shall have the power to make treaties." P. 1234.

Mr. Madison, in the discussion of this part of the report, August 23d, observed "that the Senate represents the States alone, and that for this, as well as other obvious reasons, it was proper that the President should be an agent in making treaties." Gouverneur Morris did not know that he should agree to refer the making of treaties to the Senate at all, but for the present would move" to amend the section by adding

the following words: "But no treaty shall be binding on the United States which is not ratified by law." This motion, after debate, was rejected, and the section was then referred "to the committee of five" for further consideration." Pp. 1412-1415.

On the 31st of August the Convention referred such parts of the Constitution as had been postponed, together with such parts of reports as had not been acted upon, to a committee of eleven, consisting of a member from each State. P. 1478. This committee reported on the 4th of September, recommending that the grant of the treaty power should be as follows: "The President, by and with the advice and consent of the Senate, shall have power to make treaties; but no treaty shall be made without the consent of twothirds of the members present." Pp. 1487, 1488. The Convention on the 7th of September entered upon the consideration of this recommendation. Mr. Wilson moved to amend it by adding the words, "and House of Representatives," immediately after the word "Senate," saying: "As treaties are to have the operation of laws, they ought to have the sanction of laws also. The circumstance of secrecy in the business of treaties formed the only objection; but this, so far as it was inconsistent with obtaining the legislative sanction, was outweighed by the latter.' Mr. Sherman thought that the power "could be safely trusted to the Senate," and that "the necessity of secrecy in the case of treaties forbade a reference of them to the whole Legislature." The motion of Mr. Wilson was rejected, and the recommendation of the committee adopted. Pp. 1518, 1519.

A draft of the Constitution having been agreed to by the Convention, it was on the 9th of September referred to a committee to revise its style and arrange its several articles and sections in the proper order. This committee reported on the 12th of September, proposing that the clause in respect to the lodgment of the treaty power should be a part of article 2, section 2, and should read as follows: 'He (the President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided twothirds of the Senators present concur." P. 1555. In this form the clause was adopted by the Convention, and, being subsequently ratified by the people, became a part of the fundamental law of the land. The Convention proposed to commit to the President the general management of our relations with foreign nations, and, as a part of this idea, to vest in him the treatymaking power, subject, however, in its exercise to the advice and consent of the Senate given by a two-thirds majority of the members present.

3. The third branch of the treaty question, as considered and determined by the Convention, relates to the legal effect of treaties made under the authority of the United States, and the manner of making them operative as laws. The solution of this problem, as contained in Mr. Pinckney's plan of a Constitution presented May 29th, was as follows:

"All acts made by the Legislature of the United States pursuant to this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the land; and all judges shall be bound to consider them as such in their decisions." Pp. 741, 742.

Mr. Patterson's solution, submitted June 15th, read as follows:

"Resolved. That all acts of the United States, made by virtue and in pursuance of the powers hereby and by the Articles of Confederation vested in them, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, so far forth as those acts or treaties shall relate to the said States or their citizens; and that the judiciary of the several States shall be bound thereby in their decisions, any thing in the respective

laws of the individual States to the contrary notwithstanding; and that if any State, or any body of men in any State, shall oppose or prevent the carrying into execution such acts or treaties, the Federal executive shall be authorized to call forth the power of the confederated States, or so much thereof as may be necessary, to enforce and compel an obedience to such acts, or an observance of such treaties." P. 866.

Mr. Luther Martin, on the 17th of July, submitted a resolution on the same subject, which appears to have been accepted by the Convention without debate, reading as follows:

"Resolved. That the legislative acts of the United States made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, so far as those acts or treaties shall relate to the said States, or their citizens and inhabitants; and that the judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding." P. 1119.

This resolution, with others, was, on the 26th of July, referred to the Committee of Detail, charged with the duty of preparing and reporting the form of a Constitution, and on the 6th of August the committee made their report, the eighth article of which read as follows:

"The acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the several States and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions any thing in the constitutions or laws of the several States to the contrary notwithstanding." P. 1234.

This article was, on the motion of Mr. Rutledge, August 23d, amended so as to read as follows:

"This Constitution, and the laws of the United States made in pursuance thereof, and all the treaties made under the authority of the United States, shall be the supreme law of the several States and of their citizens and inhabitants; and the judges of the several States shall be bound thereby in their decisions, any thing in the constitutions or laws of the several States to the contrary notwithstanding.' P. 1408.

The article was again amended, August 25th, on the motion of Mr. Madison, by adding after the words, "all the treaties made," the words, " or which shall be made," thus providing that the supremacy intended to be asserted shall attach to all the treaties of the United States, whether made before or after the adoption of the Constitution. P. 1430. The draft of the Constitution having been adopted and referred to the Committee on Style, this committee, on the 12th of September, reported the article as section 2 of article 6, in the following words:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding." P. 1559.

This is the precise language of the section as found in the Constitution when signed by the members of the Convention, and afterward ratified by the people; and hence it was the final disposition of the question relating to the legal effect of treaties made "under the authority of the United States." Treaties made under this authority are such as were made by the United States in Congress assembled, prior to the adoption of the Constitution, and such as have been made by the President, with the approval of the Senate, under the authority conferred by the Constitution. Whatever these treaties may be, considered as compacts with other nations, and whatever international obligations

they may involve, they operate, so long as they continue in force, as supreme laws within the territory of the United States. They are, consequently, supreme laws in every State in the Union.

The history of this part of the Constitution, as it passed through its successive modifications in the Federal Convention until it reached its final form, shows that the framers thereof meant to assert the supremacy of treaties, not in contrast with or as superior to the Constitution or laws enacted by Congress, but as supreme laws considered relatively to State constitutions and State laws. They predicate supremacy of three things, namely, the Constitution itself, the laws of Congress, and the treaties of the United States, placing them all in the category of supreme laws, without any formal discrimination between them as to rank. Having done this, they then provide that "the judges in every State shall be bound" by all parts of this composite supreme law, any thing in the constitution or laws of any State to the contrary notwithstanding." This special reference to State judges, taken in connection with the oath they were to take to support the Constitution, and to the constitutions and laws of the States, clearly indicates that it was the exercise of State authority which was meant to be placed in subordination to "the supreme law," including treaties therein.

And in order to secure this end and make "the supreme law" practically effective, it was further provided, in article 3 of the Constitution, that "the judicial power of the United States shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority." The interpretation, application, and enforcement of treaties, considered as supreme laws, were thus placed within the scope of the judicial power of the United States.

And still further, Congress, in article 1, section 8, of the Constitution, was authorized to make all laws necessary and proper for carrying into execution the 'powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The treaty power is vested in the President, in connection with the Senate; and the judicial power of the United States, extending to cases in law and equity arising under treaties, is "vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." The power to enact laws to carry this executive and this judicial power into effect is given to Congress. This places in the hands of the general government all the necessary legal machinery for making treaties operative as supreme laws.

There was a special reason in the antecedent history of the United States, as well as in the complex character of our political system, which led the framers of the Constitution to give to a treaty the attributes of law, and make it a part of "the supreme law of the land." The Articles of Confederation, though bestowing the treaty power on the United States in Congress assembled, and denying it to the States, except with the consent of Congress, nevertheless, contained no provision for the enforcement of treaties, or to prevent their infraction by State authority. Congress could not raise a dollar by taxation to fulfill the stipulations of a treaty, and could not compel the States to supply funds for this purpose. It had the treaty power without the adjuncts necessary to make it effective. The consequence was that treaties made by Congress were regarded by the States as mere compacts, which they were at liberty to observe or not as they should see fit; and, as a matter of fact, they did see fit in several instances to disregard them. This was specially true in respect to the treaty of peace with Great Britain in 1783.

Congress remonstrated, and even implored the States

to pay due respect to its treaties; yet the sense of moral obligation was not sufficient to secure the result. "Power and right," says Mr. Justice Story, "were separated. The argument was all on one side, but the power was on the other." Story's Const., § 1838. Congress, though charged with the duty of conducting the intercourse of the country with foreign nations, including the making of treaties, could not guarantee the fulfillment of its own stipulations. This was a source alike of weakness and peril, as a very brief experience abundantly showed.

Moreover, the political system of the United States is planned upon the principle of a law-making and a law-executing power reserved to the States, which, in its sphere, operates independently of the general government. Such was the fact under the Articles of Confederation; and this fact remains under the Constitution. The system is duplicate in its character. Hence arises the necessity that treaties, if they are to be operative as sacred compacts, should be placed beyond the power of the States to nullify them.

It was at first proposed to gain this end by giving Congress the power to enforce treaties by legislative action. This was the idea of Mr. Pinckney in his plan of a Constitution, and it was incorporated in the draft made by the committee of detail, pp. 741, 1233. The idea was, however, abandoned, and, as a wiser method of attaining the result, it was provided that treaties should have the character of supreme municipal laws, and that the judges in every State should be bound thereby, "any thing in the constitution or laws of any State to the contrary notwithstanding." If a State constitution or law conflicts with a treaty of the United States, it is to the extent of the conflict void and of no effect; and State judges are required thus to decide in any issue involving the question.

So, also, treaties, as a part of "the supreme law of the land," are placed under the cognizance of the judicial power of the United States. This enables the Federal judiciary to expound and apply them as supreme municipal laws. The remedy for any conflict between State action and the treaties of the United States is hence located in the powers and functions of the judiciary, both State and National, and ultimately in the latter. Not only are State courts bound to regard treaties as supreme laws, but their judgments and decrees affecting rights claimed under treaties, may be carried to the Supreme Court of the United States for final review.

The twenty-fifth section of the Judiciary Act of September 24, 1789, provides that a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit can be had, where is drawn in question the validity of a treaty of the United States, and the decision is against its validity, or where is drawn in question the validity of a statute of any State on the ground of its repugnance to a treaty, and the decision is in favor of the validity of the statute, or where is drawn in question the construction of a treaty, and the decision is against the right, privilege or exemption claimed under such treaty, "may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error." 1 U. S. at Large, 73. This section, which is reproduced in section 709 of the Revised Statutes of the United States, enables the highest tribunal of the land to review the decisions of State courts in regard to treaties. Suits in law and equity, in which treaties are involved, may, in the cases specified, be transferred to this court for final settlement.

If all governmental powers had been lodged in the United States, there would have been no necessity for any constitutional provision in regard to the legal authority and effect of treaties. The National government, having the power to make them, would have equal power to carry them into effect. Such, however,

was not the fact under the Articles of Confederation; and such would not have been the fact under the Constitution, without some provision to secure treaties against infraction by State authority. The problem was a delicate and difficult one to solve, yet it was solved by giving to treaties the character of supreme laws, and requiring judges, both State and National, to regard them as such. Though not laws in the sense of being enacted by Congress, they are placed on the same footing, and precisely the same provision is made for their interpretation, application and enforcement, so far as they operate within the territory and among the people of the United States.

PLEADING IN ACTION UPON PROMISSORY NOTE.

NEW YORK COURT OF APPEALS.

ALLIS V. LEONARD ET AL., appellants.*

In an action upon a promissory note the complaint alleged that defendant made the note, that one W. indorsed it and delivered it to the payee, who before the commencement of the action, for a valuable consideration, sold and delivered it to the plaintiff, who is now the owner and holder thereof. The answer admitted "the making and delivery of said note as averred in the complaint," set up payment and denied each and every allegation except those admitted. Held, that there was a sufficient denial of the transfer of the note by the payee to the plaintiff to entitle defendant to prove payment to the payee, and that the note then belonged to such payee.

ACTION upon a promissory note.

states the case.

M. W. Waters, for appellants.

Ballard & Warner, for respondent.

The opinion

RAPALLO, J. This action was brought upon a note made by the defendants, Leonard, Stevens and Hathaway, dated August 2d, 1866, and payable to Fid. Allis or bearer, sixty days after date. The plaintiff sued as transferee and holder, and to prove his title gave evidence that the note was received by Fid. Allis for money loaned to the defendant, Leonard, which money belonged to the plaintiff, and that the note was immediately afterward delivered by Fid. Allis to the plaintiff.

The plaintiff testified that all the claim he pretended to have to it was by virtue of his ownership of the funds which were loaned in taking it.

The defendant offered to prove, by Fid. Allis, payment of the note to him by John Leonard; also, that Fid. Allis was in fact the owner of the money loaned on taking the note.

This proof was excluded and exception taken, aud a verdict directed for the plaintiff. The ground stated by the court for excluding evidence of Fid. Allis' ownership of the note was that under a simple denial in the answer the defendant could not prove that some person other than the plaintiff was the owner of the note, and that the answer raised no issue, except that of payment.

As the question seems to have been disposed of wholly on the question of pleading, it is necessary to examine the complaint and answer.

The complaint alleges that the defendant made the note, and thereupon one Wheeler indorsed it, and then and there delivered it to the payee, and before the commencement of the action, for a valuable consider

*This case was decided November 11, 1871, and is referred to in the "Memoranda of causes not reported in full." 46 N. Y. 688.

ation, sold and delivered it to the plaintiff, who is now the owner and holder thereof.

The answer specially admits "the making and delivery of said note, as averred in the complaint," and sets up payment. It denies each and every allegation, except those expressly admitted.

We think that this was a sufficient denial of the transfer of the note by the payee to the plaintiff to enable the defendant to prove, if he could, that the note belonged to the payee at the time of the alleged payment to him.

The defense was meritorious, if true, and the pleadings should have been liberally construed for the purBut a strict construction would pose of admitting it.

lead to the same result.

The complaint alleges two deliveries of the note in first a making and delivery to the payee, and a subsequent sale and delivery by the payee to the plaintiff.

The answer admits only the making and delivery and denies every other allegation.

This puts in issue the alleged sale and delivery. In the absence of such sale or delivery the payment to the payee was a good defense.

When the transfer and delivery of a note by the payee to the plaintiff is specifically alleged, and not denied, a mere denial that the plaintiff is the holder is a denial of a conclusion drawn from the facts stated, and not of the facts themselves, and has been held insufficient; but a denial that the note has been thus transferred is a sufficient basis for proof, controverting the plaintiff's title and establishing that the payee remained the owner and payment to him.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

CONTRACT VOID AS AGAINST PUBLIC POLICY.

IOWA SUPREME COURT, MARCH 18, 1880.

WILLIAMSON ET AL. V. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY Co.

A railroad company, in consideration of the conveyance of certain lands to it for depot purposes in the city of D., agreed with plaintiffs, who conveyed the lands, that it would erect no depot in said city but upon such lands. It erected a depot upon the lands and also another in a different part of the city. Held, that the contract was void as against public policy, and that plaintiffs could not maintain an action for damages caused by the breach of it by the railroad company.

A

CTION for a breach of contract. From a verdict in favor of plaintiffs defendant appealed. Sufficient facts appear in the opinion.

Wright, Gatch & Wright, for appellant.

H. W. Maxwell and P. Gad Bryan, for appellees.

DAY, J. The petition alleges that in consideration of the conveyance of the lots in question the defendaut proposed to contract to "build all its depots, both passenger and freight, which it might or would build in the said city of Des Moines, on the east side of the Des Moines river, in the said East Des Moines, and on the lots so transferred and conveyed to it," and that "the plaintiffs agreed to and accepted the said proposition upon the terms offered by the defendant.' The petition further alleges that the defendant, for a long time after the occupation of said lots, and the building of said temporary depot, gave out in speeches, and held out inducements and encouraged the plaintiffs to believe, that they were going to build their permanent depot on the said lots in the said East Des Moines, and that they would not build one anywhere else in the city of Des Moines," but that the defendant "does

fail and refuse to comply with the said contract, or any part thereof, by building its permanent and only depot on the said lots on the east side of the Des Moines river, as it had contracted to do," and instead thereof "proposes to and has already commenced to build its permanent and chief passenger depot on the west side of the Des Moines river, in West Des Moines."

The plaintiffs allege that, by "the willful, wrong and fraudulent representations and violations of said contract by the defendant, they are damaged in the money contributed by them, and the conveyance of said lots to the defendant, and the time and labor expended in the same, and the depreciation of the value of their property * in the aggregate sum of $40,000." The evidence is in entire harmony with these allegations of the petition. [The evidence is considered at length.]

* **

The evidence shows that the defendants erected, and that they now maintain on the lots in question, a wooden depot building, at which all the day trains stop. It is evident, both from the allegations of the petition and the evidence submitted in support of it, that the contract which the plaintiffs claim the defendant made was that it would erect a passenger depot in East Des Moines, and would erect no passenger depot in West Des Moines, and that the substantial cause of the plaintiffs' complaint is, not that the defendant has failed to construct a depot on the east side of the Des Moines river, but that it has constructed a depot on the west side of the Des Moines river. The evidence shows very clearly "that the business, commerce, trade and necessities of the city of Des Moines demand, and have demanded from the time the road crossed the river, a depot on the west side of the river. The important question in this case, and the one which we think is decisive of it, is this: Is the contract in question valid, so that damages may be recovered for a breach of it, or is it void as against public policy?

In

In the case of the St. L., Jacksonville & Chi. R. Co. v. Mathers, 71 Ill. 592, it was alleged that Mathers conveyed 200 lots in the town of Ashland to trustees for a railroad company, on condition that it should build no station within three miles of Ashland. Upon the breach of this condition, Mathers commenced an action to compel a reconveyance of the property. the court below the relief asked was granted. The Supreme Court, reversing this judgment, said: "The alleged agreement or condition, on account of the non-performance of which relief is here sought, was that a railroad company, chartered by an act of the Legislature, and invested with the power of condemuing private property, upon the ground that its road is for the public use, shall not establish a depot or station within three miles of Ashland. It cannot be pretended for a moment that the board of directors had authority to make such an arrangement or condition. They were trustees both for the public and the stockholders of the company, and in the discharge of their twofold duty, were required to act with reference to the public convenience, on the one hand, and the private interests of the stockholders upon the other. The interests * * *both of the stockholders and the public forbid that there should be a positive prohibition against the establishing of stations at any points on the line of the road. Whenever the public commerce requires that a station on a railroad should be established at a particular place, and it can be done without detriment to the interests of the stockholders of the company, the law authorizes it to be established, and no contract between a board of directors and individuals can be allowed to prohibit it. * ** Appellee stands in pari delicto with the board of directors, so far as this agreement or condition is concerned. He voluntarily, according to his own showing, contracted for this breach of trust toward the stockholders of the railroad company, and breach of duty to the