or wrong and gave rise to the cause of action. Rizer v. Geary County, 58 Kan. 114, 48 Pac. 568; Krueger v. Smith, 71 N. J. Eq. 531, 63 Atl. 850; Van Horn v. Van Horn, 52 N. J. Law, 284, 20 Atl. 485, 10 L. R. A. 184. Conspiracy is a common-law action, and is

not a liability created by statute. In the case of State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. Rep. 710, it is held:

evidence supporting the verdict, taken together, together with all presumptions and deductions to which it is reasonably susceptible, is sufficient, then this court will not hold it should be set aside on the ground that other evidence, had it been accepted, would have justified a

different verdict.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.]

Commissioners' Opinion, Division No. 5. Error from District Court, Sequoyah County; John H. Pitchford, Judge.

Action by T. F. Walters against Tom Johnson. Judgment for plaintiff, and defendant brings error. Affirmed.

Kyle & McCombs, of Sallisaw, for plaintiff in error. E. M. Frye, of Sallisaw, for defendant in error.

CLAY, C. For convenience the parties herein will be referred to as they appeared in the trial court. This is an action by the plaintiff, T. F. Walters, against Tom Johnson for the balance due on a promissory note in the sum of $476, and alleging that a copy of the note could not be attached for the reason that it was left with the defendant

PER CURIAM. Adopted in whole.

(59 Okl. 233)

JOHNSON v. WALTERS. (No. 6990.) (Supreme Court of Oklahoma. June 27, 1916.) (Syllabus by the Court.)

1. WITNESSES 56(1)-HUSBAND AND WIFE

-AGENCY.

Under section 5050 of the Revised Laws of Oklahoma of 1910, the wife is not competent to testify for her husband unless she was acting as his agent in the matter about which she is offered as a witness. Held, that upon timely objection to her competency as a witness the court committed no error in excluding her testimony.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 153, 156; Dec. Dig. 56(1). 2. BILLS AND NOTES 430-PAYMENT-Ac

CEPTANCE OF NOTE FOR SMALLER SUM.

Where J. left with W., one of the makers of a note, a note for the sum of $750, for safekeeping, and thereafter called for such note, and W. delivered to him a note signed by only one of the makers for $650, and J. returned such note, protesting that it was not the note left with W., and thereafter collected a part of the $650 note, and then sued W. for the balance due upon the $750 note. Held, that the taking of the $650 note was not payment of the $750 note, where there was no express agreement between the parties that the taking of the same was payment.

by a general denial, and denied that he ever executed or delivered any promissory note, or that any note was ever left with him or destroyed by him, and that he is not indebted to the plaintiff in any sum of money. The issues were tried to a jury, and a verdict and judgment for plaintiff, from which defendant appeals.

[1] The first assignment of error discussed by the defendant is that the court erred in not permitting Belle Johnson, the wife of the defendant, to testify in her husband's behalf. The testimony showed that they were both working for the Gore Mercantile Company, he as manager, and she as bookkeeper. She was incompetent to testify about any personal transaction that took place between the defendant and her unless she was an agent in the transaction, and the evidence nowhere shows that she was the agent of the defendant in the transaction. We think it sufficient on this point to cite section 5050 of the Revised Laws of Oklahoma 1910, subd. 3, and cases cited.

[2] The defendant's next or third assignment of error is that the trial court erred in overruling a demurrer to plaintiff's evidence. The testimony in the case on the part of the plaintiff shows that he loaned defendant, Johnson, $750, with GillilandHayes Mercantile Company as sureties on the note, which note was sealed up by Johnmercantile company paid him $75 in cash; that the company exchanged for this note several other notes; and that he collected thereon about $335.50, leaving a balance due of $475.67. The defendant urges that the acceptance of this $650 note was payment. The answer to this is that the acceptance of this note by the plaintiff would not constitute payment unless there was an express agreement between the parties to treat it as such. Nor would the acceptance of other notes in lieu of the $650 note constitute payment unless there was an express agreement to that effect. Again, defendant's answer was not a plea of payment, but that he never executed the note, and did not owe the plaintiff anything. Defendant cites as authority the case of Lomax v. Colorado National Bank, 46 Colo. 229, 104 Pac. 85, announcing the rule that, while it is true that the mere taking of a note of the debtor, or that of third persons, for an antecedent debt, is not payment of the latter, yet, where that is the intention of the parties, such effect is given, and also citing Fidelity Insurance Company v. Railroad Company, 86 Va. 1, 9 S. E. 759, 19 Am. St. Rep. 858.

submitted to a jury, and the evidence adduced is conflicting and contradictory, but there is competent evidence reasonably tending to support every material averment necessary to uphold the verdict, and the trial court in its instructions to the jury fully and fairly states the issues and fixes the burden thereon as the same are presented by the pleadings and the evidence, and a verdict is rendered which from all the facts appears to meet the requirements of justice, and which is approved by the court and judgment rendered in accordance therewith, this court will not reverse the order of the trial court denying a motion for a new trial.

In the case of City of Wynnewood v. Cox, 31 Okl. 563, 122 Pac. 528, Ann. Cas. 1913E, 349, this court said:

"The evidence in support of the verdict of the jury on appeal to this court is regarded as true, and the evidence against it is deemed, for sufficient reasons, to have been rejected; and where all of the evidence supporting a verdict, taken together and given all of the presumptions and deductions to which it is reasonably susceptible, is sufficient, then this court will not go behind the verdict and set it aside, on the ground that the countervailing evidence offered, had it been accepted, would have justified a different one."

For the reasons above given, we recommend that the judgment of the trial court

PER CURIAM. Adopted in whole.

(53 Okl. 785) LUSK et al. v. ΕΜΙΝHISER, County Treas

urer. (No. 8138.)

(Syllabus by the Court.)

TAX-OFFICERS.

cited.

Defendant's fourth, fifth, and sixth assignments of error assert error in the instructions of the trial court with reference to the $750 note, for the reason that the acceptance of the $650 note was a novation. We think that the trial court's instructions were correct in this respect. It was according to the issues tendered in the pleadings. What we have said in passing on the third assignment of error is equally applicable to this. However, we have examined the instructions, and we think they fairly present the law of the case.

[3] Defendant's seventh and eighth assignments of error urged that the evidence was insufficient to support the verdict. It

has often been held by this court that it will not disturb the verdict of the jury where the evidence is submitted on proper instructions upon controverted questions of fact.

Kiser v. Nichols, 35 Okl. 8, 128 Pac. 103.

The part of section 10, art. 2, c. 173, Session Laws 1915, entitled, "An act creating a department of highways and relating to roads and highways, and repealing chapter 105, Session Laws 1910-1911, and section 8581, Rev. Laws Okl. 1910," which provides: "For this purpose there shall be expended, under the direction of the township board, through the road superintendent, upon the township road system not more than two mills drag tax herein authorized to be levied," requires the expenditure of not more than two mills drag tax each year upon the taxable property of the townships of the state for the purpose of constructing and maintaining dragable roads, in pursuance of the provisions of the good roads law of the state, and authorizes the levy and collection thereof by the local taxing officers.

[Ed. Note.-For other cases, see Highways, Cent. Dig. § 381; Dec. Dig. 124.] 2. HIGHWAYS TAX-LIMITATION OF AMOUNT.

125-TAXATION-POWER TO -DRAG TАХ.

KANE, C. J. This was an action commenced by the plaintiffs in error, plaintiffs below, against the defendants in error, defendants below, pursuant to section 7, art. 1, c. 107, Session Laws 1915, to recover the amount of taxes paid under protest upon an alleged illegal and excessive levy of four mills, made by the county excise board of Tillman county for Hunter township, for the fiscal year ending June 30, 1916. A general demurrer was sustained to the petition of the plaintiffs by the trial court, and it is to review this action that this proceeding in error was commenced.

It is conceded that a levy of 1.9 mills was made against the property of the railroad company for the benefit of Hunter township, and that this levy was .4 mills in excess of

any levy which could legally be made pur

suant to section 7376, Rev. Laws Okl. 1910, as amended by chapter 195, Session Laws 1913, which provides:

"In all counties, the total levy for current expenses in each county, city, town, township or school district shall not exceed in any one year the following:

"County levy not more than four mills, provided that any county may levy not exceeding one mill additional in aid of the common schools of the county; and provided that where the assessed valuation of any county is less than $4,000,000, the county levy shall not exceed six mills for current expenses, and one mill in aid of the common schools of the county; and provided further, that where the assessed valuation of any county is less than $10,000,000 and not less than $4,000,000, the county levy shall not exceed five mills for current expenses and one mill additional in aid of the common schools of the county; city levy not more than six mills; incorporated town levy not more than four mills; township levy not more than one and one-half mills; school district levy for the support of the common schools, not more than five mills."

states a cause of action turns upon whether the excise board was authorized by section 10, art. 2, c. 173, Session Laws 1915, to levy an additional 2-mill drag tax, to be expended under the direction of the township board upon dragable roads, without submitting the question to a vote of the qualified electors of the township. Section 10, supra, forms part of an act entitled, "An act creating a department of highways and relating to roads and highways, repealing chapter 105, Session Laws 1910-11, and section 7581, Rev. Laws Okl. 1910," and has for its purpose the construction and maintenance of good roads and highways through the state by the co-operation of the state and local highway authorities under the direction and supervision of the state department of highways.

With this end in view, the office of commissioner of highways was created, to have supervision of all matters relating to state roads and highways. To facilitate the cooperation of the state and its minor governmental agencies in this work, the act provides for the division of all roads and highways into state, county, and township road systems. The act requires the board of county commissioners of each county to designate and select for improvement from the highways of the county not less than 10 per cent., nor more than 15 per cent., of the total mileage, to be designated as state roads. By the terms of the act, all roads not embraced in the state road system belong to either the county or township road system. Section 10, supra, which we are called upon to construe, provides that:

"At every February meeting, or as soon thereafter as possible, the township board of each township shall select from its township road system the roads to be dragged for one year, to be known as dragable roads, and shall employ a superintendent of the township road system, who shall give bond for the faithful performance of his duties in such sum as said board may disuperintendent shall have general

supervision of all dragging and repair work on

the township road system, whose term of office and compensation shall be at the discretion of the township board. He shall see that the approaches to all bridges on the said roads are maintained in such manner as to present smooth and uniform surfaces and shall keep the openings to all culverts and ditches free from weeds, brush and other material that will in any manner prevent the free discharge of surface water. He shall have charge of all dragable roads of the township road system and shall make contracts for dragging, and shall see that all dragable roads of the township road system are properly dragged at such times as are necessary to maintain such roads in a smooth condition, at such price as is reasonable and necessary to

secure such contracts.

"For this purpose there shall be expended, under the direction of the township board, through the road superintendent, upon the township road system not more than 2-mill drag tax herein authorized to be levied."

Counsel for plaintiff in error, in their brief, state their main contention as follows: "The maximum levy, which the excise board can make for the current expenses of a town

ship, is fixed in section 7376, Rev. Laws 1910, as amended in Session Laws 1913, p. 435, as 1.5 mills. It is our contention, therefore, that a township cannot exceed the maximum levy therein provided, without a vote of the electors of the township, and that there is nothing in the State Highway Act which in any way authorizes the county excise board to make a levy in excess of the maximum limit fixed by section 7376, as amended."

Before considering the question whether section 10, supra, authorizes the county excise board to make a levy in excess of the maximum fixed by section 7376, supra, as amended, without a vote of the qualified electors of the township, it will be necessary to note a preliminary question which goes to the constitutionality of the part of the act from which such power must flow, if it exists at all. Counsel in their brief say:

"If effect is to be given to the language found in section 10, art. 2, c. 173, Sess. L. 1915, p. 317, providing for a levy of two mills for drag tax as contended for by the defendant in the court below, then we submit that the same is in conflict with article 5, § 57, of the Constitution, which reads as follows:

"Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. Provided, That if any

***

subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.'

The precise point presented is that, inasmuch as no direct reference is made to the subject of taxation, or, limitations of levy, in the title to the act, the general purpose of this provision is not clearly expressed in the title, and therefore must be held to be void. We consider this position wholly untenable. The general subject embraced in the title of the act includes not only the creation of a highway department, and everything relating to highways and roads, but the

means by which the work may be accomplish

ed, including the proceedings necessary to be adopted for these purposes, such as assessing and paying the expenses incurred, etc. Matter of the Petition of Ferdinand Mayer to vacate a system of Sewers in the City of New York, 50 N. Y. 504. The main purpose

for which such constitutional provisions are adopted is to prevent matters foreign to the main objects of a bill from finding their way into such enactment surreptitiously. In re County Commissioners, 22 Okl. 435, 98 Рас. 557.

If this is the principal abuse against which this provision is directed, it seems to us that the generality of the title, not defining the particulars of the proposed legislation, would be more apt to excite general attention than otherwise, since the general words would give warning that everything within their limits might be affected, and thus draw the attention of the whole body of legislators; while narrower words would only interest those concerned with the matters specially named. Mobile Transportation Co. v. City of Mobile, 128 Ala. 335, 30 South. 645, 64 L. R. A. 333, 86 Am. St. Rep. 143; Jeffer

son v. Toomer, Clerk, 28 Okl. 658, 115 Pac. 793. Many of the authorities construing this and similar constitutional provisions in harmony with the foregoing views may be found collected in Jefferson v. Toomer, Clerk,

supra.

Having reached the conclusion that the subject of the part of section 10, supra, now under discussion is properly embraced in the general title of the act, we will now take up the questions: (1) Whether the Legislature intended to authorize the additional levy of two mills for a drag tax; (2) if so, whether the levy can be made in excess of the limitation prescribed by section 7376, supra, without a vote of the people; and (3) by what authority. There is but small room for doubt that it was the intention of the Legislature to authorize an additional levy of not more than two mills drag tax upon the taxable property of the township. The act requires all or some part of such an expenditure each year as the township's contribution toward carrying out the policy of the state in the matter of establishing a uniform system of good roads. So that, while this tax is levied for a township purpose, it also subserves an important state purpose, and in this respect it differs from the ordinary township purpose the Legislature had in mind, at the time it placed the limitation of 11⁄2 mills upon the township levy by the enactment of section 7376, supra.

The drag tax is an additional involuntary tax placed by the state upon one of its instrumentalities, which alone might more than exhaust the maximum levy allowed by section 7376, supra, for ordinary township purposes. The legislative demand for this additional expenditure necessarily requiring an extension of the former limitation, in order to carry out the purpose of the later act, it would be absurd to say that the Legislature intended to require the expenditure to be confined within the previous limitation, which was intended to cover the ordinary township levy, or that the levy and collection of a tax necessary to carry out a state pur

pose should be dependent upon the vote of the qualified electors of a minor state agency.

It is our opinion that, as to this drag tax, the intention of the Legislature was to require the townships and counties of the state to aid the state in its general plan for the construction and maintenance of a system of good roads entirely unhampered and unhindered by any prior statutory limitations upon taxation, except the constitutional limitation of eight mills elsewhere mentioned in the act, and to continue in force the limitations contained in section 7376, supra, as to the ordinary county and township levies. In other words, as to townships, if the estimates made by the township authorities for ordinary purposes alone, excluding the drag tax, exceeds the limit placed upon such levies by section 7376, supra, then, by virtue of sec