their conclusion as to values will be disturbed. In the cases at bar the contention of the plaintiffs is that the assessments for the year 1897 should have been no greater than those of previous years. But there was evidence tending to show that their receipts for that year were greatly in excess of those of previous years, and, as heretofore stated, the question of values is largely a matter of opinion; and in the present instance we are unable to find that the board acted maliciously, fraudulently, arbitrarily, or oppressively. Still another contention is that the board of equalization, without any notice to plaintiffs, assessed their corporate franchises. There are several reasons why this contention cannot be sustained. In the first place, we are convinced that the assessor's return was not changed by the board of equalization, and in the return made by the assessor the franchises were assessed. It is true, there was some slight evidence offered tending to show that the roll was changed by the assessor after its delivery, but the weight of the evidence is the other way, and the only change made-and that was by the assessor prior to the return of the rollwas the insertion of the word "franchise" In the column entitled "Other Property"; and this, at most, was an immaterial change, made at a time when the assessor might lawfully make it, and the aggregate amount of the assessment remained unchanged. And still another reason may be found in the fact that the plaintiffs had knowledge of the change-if. indeed, one had been made prior to the adjournment of the board of equalization, and during the times that they were before the board upon their applications for reductions. We think there is nothing in the claim that they have been assessed for the privilege of occupying and using the streets of the city, and, upon the entire record, our conclusion is that the superior court did not err, and its judgment will be affirmed. DUNBAR, FULLERTON, and REAVIS, JJ., concur. (22 Wash. 154) CITY OF SEATTLE v. FIDELITY TRUST ERTY-STATUTES EVIDENCE. 1. Laws 1885-86, pp. 269, 270, relating to the condemnation of property for public use, and requiring that appraisers appointed to ascertain the value of such property shall report within 30 days after their appointment, being in derogation of individual rights, requires a strict construction; hence proceedings in which such report was not offered until 70 days after appointment were void, and the record thereof was not admissible in subsequent proceedings to condemn the same property. 2. Where proceedings to condemn property for public use were void, because of noncom pliance with the statutes, evidence of possession under such proceedings was inadmissible in subsequent proceedings to condemn the same property. Appeal from superior court, King county; O. Jacobs, Judge. Action by the city of Seattle against the Fidelity Trust Company of Seattle and others. From a judgment for defendants, plaintiff appeals. Affirmed. Wm. E. Humphrey and Edward Von Tobel, for appellant. Martin, Joslin & Griffin, for respondents. DUNBAR, J. The city of Seattle commenced this action against the respondents to condemn certain property for the improvement of First avenue, in said city. The appellant offered to introduce in evidence the record of condemnation proceedings involving the land in question, which proceedings were instituted in 1889. The court excluded the record of condemnation proceedings, and error is alleged on the action of the court in that respect. It was the opinion of the court that the statute in reference to the time the appraisers should make their report was mandatory. The statute upon which the proceedings were inaugurated is found on pages 269, 270, Laws 1885-86, the material part of which is as follows: "Such appraisers shall be sworn to faithfully execute their duties, according to the best of their ability. They shall view the premises, and receive only legal evidence, and may adjourn from day to day, but shall make their report within thirty days from the time of their appointment. They shall assess the damages sustained over and above the additional value of the property by reason of the change or improvement. They shall sign their report and deliver the same to the clerk of the district court holding terms at Seattle, and if no objection is made thereto in the manner hereinafter prescribed, within twenty days thereafter the assessment shall be final, and the city shall pay the amount so assessed," etc. The proceedings sought to be introduced show that the report of the referees appointed in that case was not made for about 70 days after their appointment, and it does not appear that any further proceedings were had. It is contended by the appellant that, under the rules of construction governing the actions of public officers, these proceedings were not vold for not having been performed within the time required by statute; that the statute was simply directory, and, unless objections were made at the time, they were binding upon the respondents; and many cases are cited to sustain this rule. There is no doubt that the general rule is as urged by the appellant, but there is a distinction between the acts of officers which do not directly affect individual rights and those which do. Again, it is the well-established and universal law that statutes delegating the right of eminent domain to corporations, being in derogation of common rights, are not to be extended by implication, but are to be strictly construed. 6 Am. & Eng. Enc. Law, p. 552. The taking of private property for public uses is in derogation of private right, and in hostility to the ordinary control of the citizen over his estate, and statutes authorizing its condemnation are not to be extended by inference or implication. Spring Valley Waterworks v. San Mateo Waterworks, 64 Cal. 123, 28 Pac. 447; Prather v. Railroad Co., 52 Ind. 16; Railroad Co. v. Wilson, 49 Cal. 396. Indeed, it seems the duty of the appraisers to report is made mandatory by the express provision of the statute in this respect, for the language is: "They shall view the premises and receive any legal evidence, and may be adjourned from day to day, but shall make their report within thirty days from the time of their appointment." Laws 1885-86, p. 270, § 100. It may well be considered that for various reasons the legislature deemed a speedy adjustment of this question important. At all events, the last clause above quoted seems to preclude them from adjourning from day to day for any greater length of time than the 30 days. Again, the record introduced, and the whole record in this case, conclusively shows that this was a stale proceeding, which was not only disregarded by the landowners, but was actually abandoned by the city, and we think the record was properly excluded by the court. Having been thus properly excluded and held for naught, the court properly refused the testimony of fered in relation to the possession of the land by the city; for, if the condemnation proceedings were void, no possession which the city might take would avail, without it was taken under some action of the respondents which amounted to a dedication, and the proof did not tend to show any dedication. We have examined the other alleged errors in relation to the admission of testimony, and the instructions asked for, given, and refused, and we think no error was committed. The instructions, as a whole, stated the law of the case. The judgment is affirmed. GORDON, C. J., and FULLERTON and REAVIS, JJ., concur. STATE v. PHELPS. (Supreme Court of Washington. Feb. 20, 1900.) RAPE INFORMATION- SUFFICIENCY OF EVIDENCE CONSTITUTIONAL LAW-CRIMINAL LAW-NAMES OF WITNESSES. 1. An information alleging that defendant, at a certain time and place, carnally knew prosecutrix, a female child under the age of 18 years. etc., under 2 Ballinger's Ann. Codes & St. § 7062, providing that a person shall be deemed guilty of rape who shall carnally know any female child under the age of 18 years, is not objectionable, as failing to interpret the word "rape"; the rules relative to the common-law crime of rape being inapplicable to the crime designated in the statute. 2. Such statute is a valid and proper exercise of legislative power. 3. On an information under 2 Ballinger's Ann. Codes & St. § 7062, for carnally knowing a female child under the age of 18 years, the testimony of prosecutrix and her brother that she was 16 years of age, and her testimony that she was invited to meet defendant, and that they remained together in a certain lodging house, where the offense was committed, is sufficient to sustain conviction. 4. The fact that a witness' name was not indorsed on the information does not render his testimony inadmissible, when offered in rebuttal to meet evidence tendered by defendant. Appeal from superior court, Walla Walla county; Thomas H. Brents, Judge. Herman Phelps was convicted of the crime of rape, and appeals. Affirmed. Ernest Poindexter, for appellant. Oscar Cain, for the State. REAVIS, J. The defendant was convicted at Walla Walla of the crime of rape. The information was in the following form: "The said Herman Phelps, then and there being, did, on the 1st day of February, 1899, in the county of Walla Walla, aforesaid, carnally know one Marian Gould, a female child under the age of eighteen years, contrary to the statute," etc.,-and framed under section 7062, 2 Ballinger's Ann. Codes & St. The information was objected to on the grounds that it did not state a crime. It is argued that it fails to interpret the meaning of the word "rape," and May, Cr. Law (Students' Series) p. 208, § 192, and Bish. Cr. Law, p. 557, are cited to sustain the contention. But these authorities, and others relative to the common law crime of rape, are not applicable to the crime designated in the statute. Carnal knowledge of a female under the age of 18 years is the crime. The statute is valid, and a proper exercise of legislative power, and the information conforms to the terms of the statute. The objection that the evidence does not support the verdict of the jury is untenable. There was substantial evidence to support each essential element of the crime. The prosecutrix testified that her age was 16. There was the merest scintilla of evidence to contradict this. But she was not uncorroborated; for her brother testified explicitly to her age, to the same effect as did she. Her testimony that she was invited from school, near Walla Walla, to meet the defendant, and that they remained together in a lodging house in Walla Walla, where the offense was committed, was amply corroborated. The objection to the testimony of Ernest Gould, because his name was not indorsed upon the information, cannot be sustained, as the testimony was offered in rebuttal, after some question was raised by counsel for defendant upon the proof of the age of prosecutrix, and it was for the purpose of meeting the evidence tendered by the defendant on this issue that Gould was called. State v. Bokien, 14 Wash. 403, 44 Pac. 889. The evidence upon which the verdict was rendered is satisfactory, and, no error being observed in the record, the judgment is affirmed. GORDON, C. J., and DUNBAR, J., concur. FULLERTON, J., concurs in result. STATE ex rel. MITCHELL et al. v. HORAN et al. (Supreme Court of Washington. Feb. 24, 1900.) 1. Under 2 Ballinger's Ann. Codes & St. § 5781, providing that, when any person unlawfully holds any office in a corporation, an information may be filed against him by the prosecuting attorney, or by any other person on his own relation, whenever he claims an interest in the office, franchise, or corporation which is the subject of the information, stockholders of a corporation may bring quo warranto proceedings to remove trustees from office. 2. The fact that 2 Ballinger's Ann. Codes & St. $5786, provides that, if on such an information judgment be rendered for the relator, he shall proceed to exercise the functions of the office after he has been qualified, does not make it necessary that the claimant to the office should bring the suit. 3.1 Ballinger's Ann. Codes & St. § 4255, provides that it shall be competent for "two-thirds of the stockholders" of a corporation to expel any trustee from office, and to elect another to succeed him, that all elections shall be by ballot, and that each stockholder shall be entitled to as many votes as he may own shares of stock. Held, that "two-thirds of the stockholders" means holders of two-thirds of the stock. Appeal from superior court, county; Frank T. Reid, Judge. Snohomish Proceedings in quo warranto, in the name of the state of Washington, on the relation of William Mitchell and another, against J. E. Horan and others. From a judgment for relators, defendants appeal. Affirmed. Cooley & Horan, for appellants. Preston, Carr & Gilman, for respondents. DUNBAR, J. The defendants, appellants here, were the trustees of the Kootenay Consolidated Mining Company, a corporation. During their term of office they were removed as such trustees, and other trustees were elected to fill the vacancies. The appellants refused to vacate their positions as trustees, and this proceeding in quo warranto was brought in the name of the state of Washington, ex rel. the respondents, for the purpose of ousting said appellants from their positions. Upon the hearing of the cause, judgment of ouster was rendered, from which judgment this appeal is taken. The first contention of the appellants is that the relators have no standing to maintain this proceeding, being stockholders in the corporation. Section 5781, 2 Ballinger's Ann. Codes & St., provides that the information may be filed by the prosecuting attorney in the superior court of the proper county upon his own relation whenever he shall deem it his duty to do so, or shall be directed by the court or other competent authority, or by any other person in his own relation whenever he claims an interest in the office, franchise, or corporation which is the subject of the information. We think this statute is sufficiently comprehensive to empower the stockholders in a corporation to bring this action. The case of Mills v. State, 2 Wash. St. 566, 27 Pac. 560, is cited and relied upon by both the appellants and the respondents, but a recurrence to that case shows that it was not decisive of the question raised here. That case involved the title to an office in a branch of the government, viz. the office of councilman of the city of Vancouver; but nothing that is said there could, as we consider it, affect the rights of the parties in this transaction. This is purely a private corporation, in which the state has very little interest. The law does not, as it does in regard to municipal corporations, make it the duty of the prosecuting attorney to superintend their business. It was said in the Mills Case, supra, that "the representatives of the people, in exercising their legislative discretion, have not deemed it proper, or to the best interest of society, that grievances of a public character, affecting the whole community alike, should be investigated at the suit of a private individual, but through the agency of a public officer, who represents and has in charge the interest of the whole community"; and it was held there that the mayor did not have any interest in the office which distinguished him from any other citizen; consequently he could not bring the action. It will readily be seen that the same principle does not apply to a business which is private in its nature, and which does not, as a rule, concern the public one way or the other. It is claimed by the appellants that their contention is re-enforced by the provision of section 5786, 2 Ballinger's Ann. Codes & St., which provides that, "if judgment be rendered in favor of the relator, he shall proceed to exercise the functions of the office, after he has been qualified as required by law," and therefore it must necessarily be the party particularly interested in the office-in other words, the claimant to the office-who is presumed to bring the suit, and that the statute would be meaningless if construed in any other way. But we would be met with the same incongruity if the action were brought by the prosecuting attorney. We think the stockholders in a corporation have an interest in the offices of the corporation which will permit the bringing of the action. At the time of the removal of the appellants, two-thirds of the shares of stock were voted in favor of their removal, but less than twothirds of the stockholders personally present voted for their removal. The section under which the action was taken is section 4255, 1 Ballinger's Ann. Codes & St., which provides that "it shall be competent, at any time, for two-thirds of the stockholders of any corpora * * tion organized under its chapter to expel any trustee from office and to elect another to succeed him." It is the contention of the relators that "two-thirds of the stockholders" means holders of two-thirds of the stock; while it is contended by the appellants that the legislature intended that two-thirds of the persons holding stock should be competent to expel, and it is urged that section 4272, Id., gives color to their contention, because it is expressly stated in that section that, "whenever it is desired to increase or diminish the amount of the capital stock, * a vote of two-thirds of all of the shares of the stock shall be necessary to increase or diminish” the same. But it seems to us that this latter provision has no controlling influence in the construction of the other provisions, and the whole law, taken together, indicates to our minds that the legislature had in contemplation the control of the business interests of the corporation by a majority of the shares held; for instance, in section 4255, supra, which provides that "* all elections shall be by ballot, and each stockholder, either in person or by proxy, shall be entitled to as many votes as he may own, or represent by proxy, shares of stock, and the person or persons receiving the greatest number of votes shall be trustee or trustees." It would seem that the court ought not to impute to the legislature the folly of providing that a majority of the stock should be necessary to elect a trustee, and that a minority of such stock would have authority to remove the same trustee. Under such construction, three men, representing $50,000, could elect a trustee, and five men, representing $10,000 in the aggregate, could remove him. While it is true, as argued by appellants, that hardships which are imposed by law are not to be considered by the court because the policy of the law belongs exclusively to the legislative department, yet the court will be justified in considering the incongruities of the act, for the purpose of determining the intention of the legislative department. As showing, further, what the intention of the legislative department was, it provides, in the same section (section 4255, 1 Ballinger's Ann. Codes & St.), that "* nothing herein contained shall prevent any corporation, by their by-laws, limiting such bona fide shareholder to a single vote, or one vote for every full share of paid-up stock, or its equivalent in assessable stock, disregarding the number of shares of stock he may own." It is true that this express proviso follows the provision in relation to the election of trustees, but, for the reason we have suggested, it must have been intended to cover the right to vote in any instance. The corporation not having provided for a different rule than that announced by the legislature, we think it must be held that the vote cast was sufficient to remove the trustees. Affirmed. * GORDON, C. J., and FULLERTON and REAVIS, JJ., concur. 1. Const. art. 27, § 2, providing that laws in force in the territory of Washington at the time of the adoption of the state constitution, and not repugnant thereto, shall remain in force until repealed, does not operate as a re-enactment of an existing law, but merely operates to continue in force valid existing laws. 2. Const. art. 1. § 21, provides that the right of trial by jury shall remain inviolate, but that the legislature may provide for a jury of any number less than 12 in courts not of record, and authorizes a verdict by 9 or more jurors in civil cases in any court of record, and permits waiver of a jury in civil cases by consent of the parties; and article 27, § 2, continues in force the existing laws of the territory not repugnant to the constitution. Terr. Laws 1854 provided that defendant in a noncapital criminal case, by agreement with the prosecuting attorney and the assent of the court, might submit to trial by the court without a jury. Held that, even if such act was not repugnant to the constitution, and in force, it does not authorize a trial of a felony by a jury of less than 12. 3.2 Ballinger's Ann. Codes & St. § 4978, provides that a jury in civil cases shall consist of 12 persons, unless the parties consent to a less number, not less than 3, and that such consent shall be entered by the clerk on the minutes of the trial. Section 6930 declares that, except as otherwise specially provided, issues of fact joined on an indictment or information shall be tried by a jury of 12 persons, and the law relating to the drawing, retaining, and selecting jurors, and trials by jury in civil cases, shall apply to criminal cases. Held not to authorize the trial of a felony by a jury of less than 12, though defendant consented thereto in writing. Appeal from superior court, Spokane county; Leander H. Prather, Judge. DUNBAR, J. Information for robbery was filed against the respondents. The case went to trial before a jury of 12 men on February 15, 1899, and on February 18, 1899, 1 of the 12 jurors became ill, and unable to proIceed at the trial, or to be present in the court at all. Thereupon a stipulation was entered into to proceed with 11 jurors. The stipulation was as follows: "It is hereby stipulated between the state and the defendants, and defendants' consent is hereby given, that the trial of this case shall proceed with eleven jurors, and the right to a trial by twelve jurors is hereby expressly waived. James Z. Moore, Miles Poindexter, for the State. Charles Ellis, John Ward, Sullivan, Nuzum & Nuzum, Defendants' Counsel." Thereupon the trial of the case proceeded, and in due time a verdict of guilty as charged in the information was rendered and returned by said jury of 11 men against said respondents, and entered in the said court; and thereafter, in due time, the defendants filed a motion to set aside said verdict, and for a new trial of the case, for the reason, among others, that the court had no jurisdiction to proceed with the trial of the case with 11 jurors only, and that a verdict rendered by said jury of 11 was void, and of no effect. The court granted the motion to set aside the verdict and for a new trial, for the reason that the respondents could not waive the constitutional right to a trial by 12 jurors, and, as a consequence, the verdict returned by 11 jurors was null and void. To this ruling the state excepted, and from it now prosecutes this appeal. The question for determination here is whether a defendant in a prosecution for felony, not capital, under the constitution and laws of this state, may bind himself by stipulation to submit to a trial by any number of jurors less than 12. The prosecuting attor ney has, with commendable diligence and ability, presented a brief in support of the contention that a defendant can waive the constitutional guaranty of a right to a trial by jury, and has cited many cases supporting such contention. The logic of these cases, to our minds, seems almost irresistible; but they do not, any of them, it seems to us, discuss the material proposition lying at the threshold of this case. Section 21, art. 1, of the constitution is as follows: "The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto." The cases cited on both sides generally discuss the question whether the constitutional provision that a right of trial by jury shall remain inviolate is a personal right which can be waived, or whether such an enactment is a limitation, not only upon the legislature, but upon the right of the individual to waive such right. It would seem to the writer of this opinion that the first clause of the section, viz. that "the right of trial by jury shall remain inviolate," was simply intended as a limitation of the right of the legislature to take away the right of trial by jury, and that it did not intend to interfere with the right of the individual to waive such privilege. What construction might be placed upon the further provisions of the same section as indicating the intention of the members of the constitutional convention is not necessary to determine here, for the trouble with the case at bar is that the legislature has not attempted to provide any method by which the guilt or innocence of a defendant can be determined other than by a jury; and it must be conceded that, when the constitution speaks of a right of trial by jury, it refers to a common-law jury of 12 men. It is contended by appellant that this procedure is justified by the sections of the law enacted in 1854, which provide that a defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court except in capital cases. Respondents insist that a law of this character in the territory of Utah has been pronounced unconstitutional by the supreme court of the United States, as being in contravention of the seventh amendment of the constitution of the United States (reported in the case of Thompson v. State of Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061). But the appellant, in his reply brief, insists that, inasmuch as this law was upon the statute books at the time of the adoption of our constitution, under the provision of article 27, § 2, of the constitution, which provides that the laws which are now in force in the territory of Washington, which are not repugnant to the constitution, shall remain in force until they expire by their own limitation, or are repealed by the legislature, these laws become incorporated into our laws, and must be considered as valid, existing constitutional law until it has been declared to be unconstitutional by competent judicial authority; and that, inasmuch as the Utah case was not decided until after the adoption of our constitution, and the said similar act in Utah had not been adjudicated to be invalid until after that time, it must be held to have been the intention of the constitutional convention to re-enact the laws of the territory of Washington which were not repugnant to our own constitution, and that this law is, in effect, a re-enacted law. But we hardly think this rule of construction is sound. Section 2 of article 27 could not be construed as re-enacting a statute, as all the force it had was to continue in force all valid laws which were then in existence. But, even if this law were held to be in force, it would not aid the respondents here, for it simply provides that a trial, with the assent of the defendant and the prosecuting attorney, may be submitted to the court; but the trial in this case was not submitted to the court, but to a jury of 11 men. The appellant further contends that, in case its position on that proposition should not be sustained, the legislature has made ample provisions for the trial of a criminal case by a jury of less than 12 men in sections 4978, 6930, 2 Ballinger's Ann. Codes & St.; that, when such sections are construed together, they plainly indicate the right contended for. Section 4978 is in relation to the trials of civil actions by jury, and provides, among other things, that a jury shall consist of 12 persons, unless the parties consent to a less number. The parties may consent to any number not less than three, and such consent shall be entered by the clerk upon the minutes of the trial. Section 6930 is as follows: "Except as otherwise specially provided, issues of fact joined upon an indictment or information shall be tried by a jury of twelve persons, and the law relating to the drawing, retaining, and selecting jurors, and trials by |