The duty of the court is plain, and should not be evaded.

For the reasons heretofore given, we hold that the act under consideration denies to the persons named therein equal protection of the laws, that it is special and class legislation, and violates the fourteenth amendment of the Constitution of the United States and the Constitution of this state. The demurrer to the petition is overruled, and the petitioner is ordered discharged from the custody of the warden of the state prison.

SULLIVAN, C. J., and AILSHIE, J., con

cur.

the trial court to impose any lesser punish-
ment than fixed by the statute. To give
this construction to this statute it seems to
us would be to legislate upon the subject,
and supply what we might conceive to be
necessary in order to sustain the constitu-
tionality of the statute. If this be the rule
which should guide courts in determining
the constitutionality of a statute, the court
would have little difficulty in sustaining all
legislative acts, because they might supply
all such defects or alterations by judicial
legislation. We, however, must take this
statute as it reads, and, when so taken, the
punishment is fixed arbitrarily, and is not
in any sense left to the discretion of the
trial court. If the Legislature in its wisdom
-and it no doubt would be wise-desires to
provide a penalty for escapes or attempts to
escape from the state prison, such legisla-
tion would be simple, and need not in any
sense be complicated in order to accomplish
the results desired. It could be made to
apply to all persons who escape or attempt
to escape from the state prison, and the
punishment could be fixed with reference to
the nature or character of the offense that
is, if the effort was peaceable, the gravity
of the offense would be less than if forci-
ble and by threats-and the extent of pun-
ishment might be committed to the trial
court with a minimum and maximum fixed
between which the court could exercise its
discretion as is generally provided for pub-3.
lic offenses, and the constitutional objec-

tions to such statute could not then be
urged.

LAMB v. LICEY et al.

(16 Idaho, 664)

(Supreme Court of Idaho. June 5, 1909.) 1. NEGLIGENCE (§ 63*)-ACT OF GOD.

No liability attaches for damages sustained by reason of an act of God or forces of nature.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 80; Dec. Dig. § 63.*] 2. NEGLIGENCE (§ 134*)

· ACTIONS SUFFI

CIENCY OF EVIDENCE.
Held, under the facts of this case, that the

defendants did not negligently erect or careless-
ly, negligently, or wrongfully maintain the flag
pole which was the cause of the accident com-
plained of in this action.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 270; Dec. Dig. § 134.*]

NEGLIGENCE (§ 63*)-ACT OF GOD. defendants are not liable. Held, under the facts of this case, that the

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 80; Dec. Dig. § 63.*] 4. APPEAL AND ERROR (§ 1001*)-REVIEWQUESTIONS OF FACT.

Under the provisions of section 4824, Rev. support the verdict, the same will not be set Codes, when there is substantial evidence to aside on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3928; Dec. Dig. § 1001.*] (Syllabus by the Court.)

Appea! from District Court, Boise County; Fremont Wood, Judge

Action by Eva E. Lamb, as administratrix.

The Attorney General also argues that to hold this act unconstitutional, and thereby release from the penitentiary those who have been convicted of violating the same, would be a very great wrong. This court. however, is called upon to administer the law as it is written as near as we can understand it, and, if the result be to release persons who are now confined in the penitentiary, it is not the concern of this court, for, if the law is unconstitutional under which a conviction is had, then the party convicted should not be in the penitentiary, against B. Licey and others. From a judgand his imprisonment is illegal and wrong-ment for plaintiff and an order denying a ful. If the constitutional rights of an innew trial, defendants appeal. Reversed and mate of the penitentiary have been invaded, remanded, with directions to enter judgment it is just as much the duty of the court, as we understand it, to give to this person his constitutional rights as to any other person whatever his station or position in life may be. It is for the Legislature to enact the SULLIVAN, C. J. This action was comlaw, and it is for the court to construe it; menced by the respondent, as plaintiff, to reand, if in construing an act the court finds cover $20,000 damages against the appellants that it denies a person his constitutional for the alleged wrongful death of the rerights, we do not understand that the court spondent's husband, by reason of the careless. should be controlled by the fact that it may negligent, and wrongful maintenance of a flag result in extending liberty to persons who pole. The principal allegations of the comhave been imprisoned (although illegally), plaint were: That the defendants and othalthough they be vicious or bad characters.ers were members of the local camp of Mod

for defendants.

Hawley, Puckett & Hawley, for appellants. Karl Paine and H. L. Fisher, for respondent.

The complaint is framed upon the theory that the members of said Woodmen's Lodge are liable because that lodge carelessly and negligently maintained said flag pole. After alleging that said defendants are members of said Woodmen Lodge, and that they were in possession of a certain building in the said village of Sweet, commonly known as the "Hall of the M. W. A.," allege as follows: "And as such members were then and there, and for a long time prior thereto had been, carelessly, negligently, and wrongfully maintaining in front of and in connection with said hall a long and very heavy pole, which they used as a flag pole, and on and from which on divers occasions prior thereto have raised and hung the flag of the United States." The case was tried by the plaintiff upon the theory that said lodge, or the members thereof, were liable for the damages resulting in the death of said deceased. During the trial it appeared from the evidence that several of the defendants named had joined said Woodmen Lodge subsequent to the death of the intestate, and on motion the court granted a nonsuit or dismissed the action as to them, and as to those who were members of said lodge before the pole was erected the motion for nonsuit was denied. It is thus made to appear that the respondent sought to hold the members of said Woodmen Lodge liable for the death of her intestate.

ern Woodmen of America at the village of to pass upon each assignment separately. Sweet, in Boise county, which camp, it is alleged, is a voluntary unincorporated association securing life insurance to its members and promoting their social and fraternal interests; that as such members they were in possession of a building known as the Woodmen's Hall; that they, as such members, carelessly, negligently, and wrongfully maintained a flag pole in front of and in connection with said hall; that the said flag pole rotted at a point near where it emerged from the ground, and the rotted and decayed condition thereof by the exercise of ordinary care on defendants' part could have been ascertained; that the plaintiff's intestate lived so close to the pole that the defendants were bound to know that the pole in falling might injure or kill said intestate; that the pole did break off at the point where rotted and decayed, and in falling did kill said intestate. Then follows the usual allegation of damages. The defendants demurred to the complaint on several grounds: First, on the ground that the complaint did not state facts sufficient to constitute a cause of action; second, that there is a defect of parties defendants, and that the complaint is ambiguous, specifying wherein the ambiguity exists. The court overruled the demurrer. In their answer several of the defendants denied practically in toto the allegations of the complaint, and, as a further answer, that they had joined said Woodmen Lodge since the death of said intestate. The answer of the other defendants was a practical denial of all of the material allegations of the complaint, while both answers pleaded that the flag pole was erected by the people generally in the vicinity of Sweet and was used as a liberty pole by the whole people of the vicinity; that it was not erected by or at the cost of the said Woodmen Camp; that the pole was carefully selected, and no decay appeared thereon; that as an inevitable act of God the pole fell, blown down by an extremely high wind; that the deceased had equal opportunities with all, and better than most of the defendants, to inspect and notice the condition of the pole, and voluntarily erected his tent in its proximity. Allegations of contributory negligence on the part of the intestate were made, as well as allegations as to the lack of negligence on the defendants' part. The case was tried by the court with a jury, and the jury returned a verdict of $3,600 in favor of plaintiff; $600 in favor of the widow, $800 in favor of Myrtle R., $1,200 in favor of Walter W., and $1,000 in favor of Pearl Lamb, children of said deceased. During the trial a motion was made to dismiss as to the defendants who joined said society subsequent to the death of said intestate, which motion was sustained. A motion for a new trial was overruled, and the appeal is from the judgment and the order denying a new trial.

It clearly appears from the evidence that said society, as a society, never had anything whatever to do with the purchase and erection of said pole. It was erected in the street about 10 feet in front of the Modern Woodmen Society's building. It appears: That a subscription was taken up by a person who was not a member of said society, for the purchase and erection of said flag pole; that nearly all of the citizens in the community contributed something for that purpose, from 25 cents to $2 each; that a number of the members of said society contributed to the expense of the purchase and erection of said pole, but not as members of such society, but simply as other citizens had contributed. The flag used on said pole was purchased by contributions from the people. It appears that the day that said pole was erected was celebrated as a holiday, and the people from the surrounding country attended, and speaking and other exercises were had on that day. Said pole was used as a public flag pole, and any one who wanted to raise the flag on it did so. The raising of the flag seemed to be a public right. Any one in the community had a right to raise it. The deceased himself, during his lifetime, raised, or assisted in raising, the flag at different times. It was the general understanding that the pole, having been purchased and erected by the general public, could be used by anybody and everybody. One of the witNumerous errors are assigned; but, in our nesses testified as follows: "The flag was view of the matter, it will not be necessary raised on all public occasions. The Wood

**

*

men Camp had nothing more to do with the
flag pole than the other people. Every one
had the privilege of raising the flag.
Part of the time the flag was in the hall, be-
cause it was a convenient place. Part of the
time it was in our store, and part of the
time in my home.
*The last time the
flag was raised was September 29, 1906.
John Brown and Mr. Lamb [the intestate]
raised it. There was a democratic conven-
tion there." One Dennis Crowley, not a
Woodman, controlled the placing of the pole.
It further appears that the pole was care-
fully examined at the time it was set, that
it was a black pine pole containing pitch up
for about seven feet from the bottom, and
it further appears that poles like that in that
vicinity had lasted for many years set in the
ground. The deceased lived near the pole
in a tent, and had lived there from April
10th up to October 11th, the date of the ac-
cident. He had assisted in raising the flag
on that pole. He had often lounged around the
pole, and even leaned against it. The wind
which blew down the pole was the most se-
vere ever known in that region of the coun-
try, was of unprecedented velocity, causing
much damage and destruction of property.
The sheriff of Boise county, who was nei-
ther a Woodman nor a resident of the town
of Sweet, testified as follows: "I have lived
in Boise county for 36 years, and am fa-
miliar with Sweet and vicinity, and never at
any time since my residence in the county
was there a storm approaching in intensity
to that storm." Another old resident, testi-
fied as follows: "It was the hardest wind I
had ever seen since I have been in the coun-
try. The dust was so thick you could not

A

from 20 to 30 years. The windstorm that caused the falling of the pole was one of * unprecedented velocity and intensity. wagon spoke was blown through a window. Trees were blown down. A pine tree two feet in diameter was broken off four or five feet from the ground. Header boxes, weighing from 900 to 1,000 pounds, were picked up and dashed to the ground and broken in pieces. A barn was blown away. A shed barn, 18 by 40 feet, was unroofed. A hayrack, weighing 600 or 700 pounds, standing on a wagon, was picked up and carried 147 feet from where the wagon stood, and badly broken. It appears from the record that the pole was blown down by a very severe windstorm for that region, and that said storm was the immediate cause of the damage done. It further appears that the general public was responsible for the erection and maintenance of said pole, and not the Modern Woodmen of America Society, as that society, as a society, had nothing whatever to do with the erection and maintenance of it. The evidence shows that the death of plaintiff's intestate was caused by the extraordinary disturbances of nature, of violent wind, commonly called the act of God, and that the death of the intestate was not caused by reason of the negligence and carelessness of the defendants in maintaining said flag pole, or by any act or omission on the part of the defendants. The record shows that said intestate established his tent wherein he resided within reach of said pole, and that he had every opportunity that any of the defendants had of discovering the condition of said pole. He had lived within a few feet of it from April to October, had sat on the sidewalk near the pole, and was no doubt of It will be observed from the foregoing: the same opinion as others in regard to the That said Woodmen Society had nothing strength and ability of said pole to withstand whatever to do with the erection or mainte- the winds of that region of country. While nance of said flag pole; that the allegations the accident was a very unfortunate and sad of the complaint to the effect that the deone, the record fails to show that the appelfendants, as members of said society, "were lants were in any manner responsible for it. then and there, and for a long time prior For the reasons above suggested, it is not thereto had been, carelessly, negligently, and wrongfully maintaining in front of and in necessary for us to pass upon the other asconnection with said hall a long and very tion 4824, Rev. Codes 1909, among other It is provided by secsignments of error. heavy pole," is not sustained by the evidence things, that, whenever there is substantial in any particular, for the evidence clearly evidence to support a verdict, the same shall shows that they, as members of said society, not be set aside or appeal. In this case we had nothing whatever to do with the pur-find there is no substantial evidence to supchase, erection, or maintenance of said pole. An exhibit, consisting of a part of said port the verdict, and it must therefore be set pole where it had broken, was introduced in aside. As the record shows the respondents evidence. This exhibit shows that the pole could not recover in this case, it would be was considerably rotted just underneath the useless to order a new trial. surface of the ground, but might have with

see a person 10 feet."

stood the ordinary storms of that region of the country for many years, as it had only been in the ground about five or six years, and the evidence shows that poles of that kind in that region of country had withstood

The judgment is therefore set aside, and the cause remanded, with instructions to the district court to enter judgment in favor of the defendants. Costs of this appeal are awarded to appellants.

(16 Idaho, 639)
JUST et al. v. IDAHO CANAL & IMPROVE-
MENT CO., Limited, et al.

(Supreme Court of Idaho. June 4, 1909.)

|jections to immaterial questions is not prejudicial error.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 924, 926, 967-975; Dec. Dig. & 275.*]

1. CORPORATIONS (§ 207*)-ACTIONS BY STOCK-7. CORPORATIONS (§ 212*)-ACTIONS-SUFFIHOLDERS-OWNERSHIP OF STOCK.

A stockholder suing on behalf of his corporation, which is unable or unwilling to bring suit, and pleading a good cause of action, may maintain the same, though he was not an owner of stock at the time the breach of duty was committed or the cause of action accrued, except in cases where it is shown that he purchased the stock with the purpose of bringing suit, or where his vendor was for some reason estopped from maintaining the action and the purchaser

had notice of such bar.

Ed. Note.-For other cases, see Corporations, Dec. Dig. § 204.*]

3. EQUITY (8 72*)-LACHES.

The doctrine of laches in the prosecution of an action, when the delay does not amount to a bar by any statute of limitations, does not apply where the relative position of the parties has not been materially changed since the time when the cause of action accrued, and the delay has worked no wrong or serious inconvenience to the adverse party, so that substantial justice can still be done between the parties.

CIENCY OF EVIDENCE.

Evidence in this case examined, and held sufficient to support the verdict.

[Ed. Note. For other cases, see Corporations, Dec. Dig. § 212.*]

8. APPEAL AND ERROR ( 1001*)-REVIEWQUESTIONS OF FACT.

evidence is conflicting and there is substantial A judgment will not be reversed where the evidence to support the verdict of the jury. Citing section 4824, Rev. Codes.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3928-3934; Dec. Dig. § 1001.*]

(Syllabus by the Court.)

Appeal from District Court, Bingham County; J. M. Stevens, Judge.

Action by James Just and others against the Idaho Canal & Improvement Company, Limited, and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Standrod & Terrell, for appellants. A. M. Bowen, for respondents.

AILSHIE, J. This action was instituted by the plaintiffs, who held a minority of the stock of the Taylor & Goshen Canal Company, a corporation existing under the laws of this state. The action is prosecuted by such stockholders for the use and benefit of the corporation, and is for the collection of a sum alleged to be due the corporation on a contract entered into by and between the Taylor & Goshen Canal Company, and the Idaho Canal & Improvement Company, Limited, a corporation, both of which corporations are joined as defendants. The purpose` of this action is to collect for and on behalf of the Taylor & Goshen Canal Company the

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 207-226; Dec. Dig. § 72.*] 4. EVIDENCE (§ 389*)-CORPORATE RECORDS-sum due under the contract from the Idaho PAROL EVIDENCE. Where the verity of the records of a corporation is attacked by minority stockholders, who deny that the transactions therein purporting to be recorded ever occurred, and they contend that the true minutes of a given meeting show the very contrary of that shown by the official record, parol evidence is admissible to show what actually occurred at such meeting. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1717; Dec. Dig. § 389.*]

5. TRIAL (8 295*)-INSTRUCTIONS-CONSTRUCTION AS A WHOLE.

Canal & Improvement Company. For convenience, we shall hereafter refer to the former as the "Taylor & Goshen Company," and to the latter as the "Idaho Canal Company." Judgment was entered in favor of the plaintiffs for the use and benefit of the Taylor & Goshen Company, and both the defendant corporations have appealed.

The defendants demurred to the complaint, both generally and specially, and their demurrer was overruled. The action of the The instructions given in a particular case must all be read and viewed together, and if court in overruling the demurrer is assignthey are not in conflict with each other, and ed as error. In order to intelligently considcorrectly state the law as far as they go, the cir-er the sufficiency of the complaint, it is necescumstance that an isolated sentence or paragraph is obscure, incomplete, or indefinite, will not of itself constitute a ground of reversal. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 703-717; Dec. Dig. § 295.*]

6. WITNESSES (§ 275*)-Cross-EXAMINATION
-IMMATERIAL QUESTIONS.
A wide latitude should be allowed in the
cross-examination of parties to the suit; but
the action of the trial court in sustaining ob-

sary to make a brief statement of the allegations of the complaint and set out some portions thereof in detail. After alleging the corporate existence of the two corporations, it is alleged that the main canal owned and operated by the Idaho Canal Company runs parallel to the main canal owned and operated by the Taylor & Goshen Company, and

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

that both canals receive their water from | regarding the rights and interests of these the Snake river for the purposes of irriga- plaintiffs. (9) That the said Taylor & Goshtion, and that the two canals "cover and are en Canal Company, by its board of directors available for the same lands," and are com- and legally constituted officers, being under peting companies. It is then alleged that the the same control as the Idaho Canal & Implaintiffs are stockholders in the Taylor & provement Company, has failed, neglected, Goshen Company, and have owned their and refused to bring action against the laststock at all the times mentioned in the com- named company for said sum of money due plaint, with the exception of the plaintiff J. and owing as aforesaid, and have failed and E. Tarr, who acquired his stock subsequent neglected and refused to insist upon the payto the transaction involved in the action. It ment thereof. That these plaintiffs have at is also alleged that on or about April 1, 1903, various times requested said board of directthe Idaho Canal Company and the Taylor & ors and the members thereof to bring action Goshen Company entered into a contract and and collect said amount so due, and at all agreement, whereby the latter company rent- times have endeavored, by every means withed to the former its canal for the irrigating in their power, to secure action by said corseason of the year 1903, and that the Idaho poration on said claim; but said corporaCanal Company promised and agreed to keep tion, by its directors and officers, have at and maintain the canal in a good and proper all times refused and neglected to do so. condition and to pay on October 1, 1903, the That on or about the 1st day of November, sum of $1,500 to the Taylor & Goshen Com- 1904, these plaintiffs served and caused to be pany as rent for the use and benefit of the served upon the board of directors of the canal. This is followed by an allegation that said Taylor & Goshen Canal Company a dethe Taylor & Goshen Company fully and mand in writing that suit be commenced completely complied with its part of the con- against the said Idaho Canal & Improvement tract, and that the defendant the Idaho Ca- Company upon said claim; but said board nal Company used and operated the Taylor has refused, and ever since refuses, to bring & Goshen Canal and had control of the same said action. And these plaintiffs are compelfor the year 1903, in accordance with the led to bring said action for the benefit of contract and agreement. said Taylor & Goshen Canal Company, in order that they, as minority stockholders therein, may have their rights as such protected."

Paragraphs 7, 8, and 9 of the complaint contain the material allegations entitling plaintiffs, as stockholders, to maintain their action, and embody the allegations that are

Rights of transferee to sue on cause of action accruing prior to his purchase of stock:

particularly assailed by appellants. These paragraphs are as follows: "(7) That on or about the 13th day of June, 1903, one W. S. Chaney and one J. H. Brady, being at that It is insisted by appellants that one who time owners and in control, by themselves acquires stock subsequent to the commission and others representing them, of a majority of the wrongs complained of is not in a posiof the outstanding stock of the defendant tion to maintain an action as a minority corporation, the Idaho Canal & Improvement stockholder for the redress of such wrongs. Company, purchased and caused to be pur- In support of this contention, appellants cite: chased, by themselves and others represent- Taylor v. Holmes, 127 Ú. S. 489, 8 Sup. Ct. ing them, a majority of the outstanding 1192, 32 L. Ed. 179; Bimber v. Calivada Co. stock of the defendant corporation the Tay- (C. C.) 110 Fed. 58; Ulmer v. Maine R. E lor & Goshen Canal Company, and on said Co., 93 Me. 324, 45 Atl. 40. This is undoubtday elected and caused to be elected a ma- edly the rule in the federal courts; but it jority of the board of directors of the last- is a rule that has been adopted for the purnamed company; and ever since said day pose of preventing a transfer of stock to a the said Chaney and Brady are and have nonresident in order to enable him to bring been in actual control of each of said cor- the case in the federal court. It is a rule porations. (8) That at all times since June of practice, instead of a principle of law, 13, 1903, the said Chaney and Brady, by and is not applicable in the state courts. themselves and those representing them, Equity rule No. 94, adopted by the Supreme have operated and controlled the said de- Court of the United States, specifically profendant the Taylor & Goshen Canal Com- vides that: "Every bill brought by one or pany, in their own interests, and in the in- more stockholders in a corporation against terests of the said Idaho Canal & Improve- the corporation and other parties founded ment Company, and have disregarded the on rights which may properly be asserted by rights and interests of these minority stock- the corporation, must be verified by oath holders; and these plaintiffs allege, upon in- and must contain an allegation that the formation and belief, that the control of the plaintiff was a shareholder at the time of said Taylor & Goshen Canal Company was the transaction of which he complains, or obtained by the said Chaney and Brady for that a share had devolved upon him since the purpose of preventing competition with by operation of law." Preface to 104 U. S. the said Idaho Canal & Improvement Com- ix. The rule prevailing in the majority of