
    Northern Pacific Railroad Co. vs. Christian A. Benson.
    Opinion filed November 8th, 1894.
    
      Railroad Co. v. McGinnis, 61 N. W. 1032, 4, N. D., — ■ followed.
    Appeal from District Court, Barnes County; Rose, J.
    Action by the Northern Pacific Railroad Company against Christian A. Benson, county treasurer. From a judgment for plaintiff on the pleadings, defendant appeals.
    Reversed.
    (61 N. W. Rep. 1035.)
    
      Herman Winterer and E. W. Camp, for appellant.
    
      Ball & Watson and F. M. Dudley, for respondent.
   Corliss, J.

The object of this action was the same as that of the action of Railroad Co. v. Barnes, 2 N. D. 310, 51 N. W. 386. All of the same questions, however, are not presented for decision, owing to the fact that the judgment appealed from was rendered on motion for judgment on the pleadings. After the answer had put in issue most of the averments of the complaint, the plaintiff moved for judgment on the pleadings, and, of course, by this motion, admitted, for the purposes of such motion, that none of the allegations so denied were true. The case, therefore, presents the single question whether the gross earnings law of 1883 was constitutional. This question has been settled in the negative by this court in the case of Railroad Co. v. McGinnis, (just decided) 61 N. W. 1032.

The judgment of the District Court is therefore reversed, and the case will stand f<®? trial.

All concur.

Bartholomew, C. J., and Wallin, J., having been of counsel, took no part in the above case; McConnell, J., of the Third Judicial District, and Morgan, J., of the Second Judicial District, sitting in their places, by request.  