of another conveyance, cannot maintain an action against the owner of the latter, if the driver of the former, by the exercise of proper care and skill, might have avoided the accident, has at length been overruled. The ground upon which the court, in Thorogood v. Bryan, based this startling proposition was, that the passenger in selecting a vehicle so identifies himself with its owner, and therefore with its driver, that the negligence of the driver is to be considered as the negligence of the passenger himself. Starting from this assumption, the court not unnaturally came to the conclusion that the rights of the passenger against the owner of the other vehicle were restricted so as to deprive him of any right of action. The court of appeal fails to see any ground for the assumption. The passenger has no control over the driver, he cannot control his movements, and is, in fact, powerless to prevent his negligence. As the court of appeal points out, if the passenger is so identified with the driver as to be deemed to be guilty of negligence, and therefore deprived of a right of action, it must necessarily follow that, in addition to his rights being curtailed, his liabilities are correspondingly enlarged, and the result is, that every passenger in an omnibus, or cther public conveyance, is necessarily liable to third parties for the negligence of the driver. The absurdity and injustice of such a doctrine are so obvious as not to need observation."

Other English legal periodicals express similar views. To us it is not so remarkable that there should be so much unanimity on the subject now, as it is that so gross and manifest an absurdity and injustice should have been so long accepted as a component part of the law which arrogates to itself the distinction of being the perfection of reason.

The decision was originally a glaring abuse of the privilege of legislating under the form of expounding the law and declaring what it❘ really is, which the courts have so long and so freely exercised.

With the design of making the law consistent and symmetrical, the courts, in many cases, as in the one under consideration, seek to fit undeniable legal principles to facts and circumstances to which they are in no degree germane. In comparison with some of their rulings made in pursuance of this theory, the bed of Procrustes was a logical institution.

CONSTITUTIONAL LAW-FOURTEENTH AMENDMENT-JURY-PEREMPTORY CHALLENGE.-In a recent case1 the Supreme Court of the United States construed the fourteenth amendment to the constitution of the United States, so far as it was supposed to affect the rights of persons tried for murder in the city of St. Louis, Mo., and the right of the prosecution in such cases to challenge jurors peremptorily. The facts were that Hayes was convicted in St. Louis of a murder perpetrated in that city. He sued out a writ of error, by which the case was taken to the Supreme Court of the United States, and it was assigned for error that the trial court had permitted the prosecution to challenge peremptorily fifteen persons offered as jurors. It was conceded that, under the laws of Missouri,2 the prosecution was allowed fifteen peremptory challenges in cities having a population of over 100,000 inhabitants (St. Louis being a city of that class), although elsewhere in the State the number of challenges allowed to the prosecution was limited to eight. This discrimination against him and other persons tried for murder in the City of St. Louis, it was contended on behalf of Hayes, was repugnant to the fourteenth amendment of the constitution of the United States, which secures to all persons the equal protection of the laws.

The supreme court held that the discrimination made by the statutes of Missouri between the rural and urban portions of that State, in the matter of peremptory challenges in criminal cases, in no degree impaired the equal protection of the laws guaranteed by the amendment in question to all citizens; that the object and only effect of those statutes was to secure impartial juries in criminal cases; that to attain that object the State might well allow to the prosecution a larger number of peremptory challenges in large cities than in sparsely settled regions, and that neither the object of statutes of this character nor their effect and operation afforded any ground whatever for objection by persons accused of crime. The whole subject of challenges, the court said, was under the control of the State legislatures, which may well discriminate as to the prosecution's

1 Hayes v. Missouri, 7 S. C. Rep. 350. 2 Rev. Stat. Mo. (1879) §§ 1900, 1902.

number of challenges, according to the condition of different communities. In support of these views the court cites several authoriities:

8 Stokes v. People, 53 N. Y. 164; Walter v. People, 32 N. Y. 147; Commonwealth v. Dorsey, 103 Mass. 412, 418.

JUDICIAL CONTROL OF PUBLIC OF

FICERS.

Our national government is one of checks and balances. Each of the three great branches, the legislative, executive and judicial, operates as a check upon the others. And in this respect our State governments are all patterned, in a greater or in a less degree, after the national government. In the constitutions of all of them we may expect to find, as Judge Cooley says, "separate departments for the exercise of legislative, executive and judicial power, and care taken to keep the three as separate and distinct as possible, except so far as each is made a check upon the other to keep it within proper bounds, or to prevent hasty and improvi

dent action. The executive is a check upon the legislature in the veto power, which most States allow; the legislature is a check upon both the other departments through its power to prescribe rules for the exercise of their authority, and through its power to impeach their officers; and the judiciary is a check upon the legislature by means of its authority to annul unconstitutional laws."'1 This theory of government is an excellent one, but in practice it is not always easy to determine how far the officers of one department may go without encroaching on the territory of another. The balance of power, with respect to the different departments of our government, has been almost as troublesome a question as that of the balance of power among the nations, in European politics. "Power," says Story, "is of an encroaching nature and, it ought to be effectually restrained from passing the limits assigned to it. Having separated the three great departments by a broad line from each other, the difficult task remains to provide some practical means for the security of each against

1 Cooley's Const. Lim., 34.

the meditated or occasional invasions of the others."'2 As Judge Story says, the line separating the different departments is a broad one. That is one source of trouble, it is too broad; it contains debatable ground.

But while it has been found necessary to leave the line of separation a broad one, in order that one department may guard and check the others, it is nevertheless true that they form co-ordinate branches of the government, and that each is supreme within its own proper sphere.

8

The courts have, therefore, again and again refused to interfere with the governmental or political acts of public officers. Such interference could, as a rule, cause nothing but mischief, and would amount to an encroachment by one branch of the government upon another. Thus, it has been held by the Supreme Court of Missouri, that the courts have no jurisdiction to compel the governor of a State by mandamus to issue a commission to an officer, the court saying per Wagner, J.: "The constitution has divided the powers of government into three distinct departments-the legislative, executive, and judicial-and provided for their independent exercise. They are each co-ordinate and independent of the other, within the sphere of their powers, duties and functions. The legislature cannot compel by enactment this court to enter up a certain judgment, nor can this court coerce the legislature into the passing of a law. The governor has no right, nor would he be permitted to interfere with the action of this court, nor can the court control him in the exercise of executive duties devolved on him by law. The interference of either branch with the other would imply dependence and 21 Story on Const., § 530. See also Federalist, No. 48.

3 Wright v. Defrees, 8 Ind. 298; Little v. State, 90 Ind. 338; State v. Sloss, 25 Mo. 291; Cooley's Const. Lim., 41, 133; People v. Bissell, 19 Ill. 229; s. c., 68 Am. Dec. 591.

4 Sutherland v. Governor, 29 Mich. 320, opinion by Cooley, J.; Marburg v. Madison, 1 Cranch, 137; Gaines v. Thompson, 7 Wall. 347; Mississippi v. President, 4 Wall. 475; People ex rel. Roosevelt v. Edson, 52 N. Y. Sup. Ct. Rep. 53; 8 Am. & Eng. Corp. Cas., 135; Pacific R. R. Co. v. Governor, 23 Mo. 353; Tennessee, etc. R. R. Co. v. Moore, 36 Ala. 380; Magruder v. Swan, 25 Md. 212; Hawkins v. Governor, 1 Ark. 346; s. C., 33 Am. Dec. 346; U. S. v. Lytle, 5 McLean, 17; Tiernan v. Woodruff, Ib. 134. See also Judge Cooley's essay on "Checks and Balances in Government," 3 Atlas Essay, 140.

7

6

inferiority, when by our peculiar frame of government there exists equality and independence.''5 So it has been held that the secretary of the navy cannot be compelled by mandamus to pay a pension, or the secretary of the treasury to credit a party on the books with a sum found by a jury to be due him from the United States, nor to pay a territorial judge a salary alleged to be due. Nor can the president be controlled either by injunction or mandamus in the exercise of his executive discretion. Nor will injunction lie to restrain the secretary of the interior from cancelling an entry in the land office. 10 And where an injunction was sought to restrain the mayor of New York, acting in a public capacity under authority conferred upon him by the legislature, from proceeding to appoint a corporation attorney, it was held that the court has no jurisdiction to enjoin him, no matter whether his motives in making the appointment were good or bad." Commenting on this case before its final decision, the editor of the CENTRAL LAW JOURNAL, in the issue of January 30, 1885, said: "The singular thing connected with it is, that the writ of injunction should be employed to restrain the appointment of public corporation officers. There is no principle known to the students of the books which warrants such a use of the writ of injunction."'12 Other illustrations will be found on consulting the authorities cited in note 4, supra. It has been held by the highest courts of many of the States that in no case will mandamus lie against the governor or head of the executive department, while other courts have held that, where no discretion is involved and the duty is a ministerial one, the governor may be made to perform it by the courts. The weight of authority, however, is to the effect that courts have no jurisdiction to interfere with the official acts of the chief executive, no matter of what nature they may be. Such is the hold

5 State ex rel. Bartley v. Governor, 39 Mo. 388, opinion 394.

6 Decatur v. Paulding, 14 Pet. 497.

7 Reside v. Walker, 11 How. 272.

8 U. S. v. Guthrie, 17 How. 284.

9 Wilson v. Izard, 1 Paine, 70; State of Mississippi v. Johnson, 4 Wall. 475.

10 Gaines v. Thompson, 7 Wall. 347.

11 People ex rel. Roosevelt v. Edson, 52 N. Y. Sup. Ct. Rep. 53; s. c., 8 Am. & Eng. Corp. Cas. 135. 2 20 Cent. L. J. 82.

ing in Arkansas, 18 Georgia,14 Florida, 15 Illinois, 16 Louisiana, 17 Maine, 18 Michigan, 19 Mississippi,20 Minnesota,21 Missouri, 22 New Jersey, 23 Rhode Island,24 Tennessee, 25 and Texas.26 On the other hand, this power is declared to exist in Alabama,27 California, 28 Maryland, Montana, 30 North Carolina, and Ohio. 32 As in the case of the Saracen's Head "much may be said on both sides," but the text-writers seem to take the side of the minority.

It is well settled, as a general rule, that courts cannot control a public officer, either State or national, in the exercise of a discretion, with which he is vested by virtue of his office. 33

It is also a well settled general rule that an injunction will not be granted where there is an adequate remedy at law. Nor can resort

18 Hawkins v. Governor, 1 Ark. 570; s. c., 33 Am. Dec. 346.

14 Low v. Towns, 8 Ga. 360.

15 Bisbee v. Drew, Gov., 17 Fla. 07.

16 People v. Bissell, 19 Ill. 229; s. C., 68 Am. Dec. 229.

17 State v. Warmouth, 22 La. Ann. 1; s. C., 2 Am. Rep. 712.

18 In re Dennett, 32 Me. 508.

19 People ex rel. Sutherland v. Governor, 29 Mich. 320; s. C., 18 Am. Rep. 89.

20 Vicksburg & Meridian R. R. Co. v. Lowry, 51 Miss. 102; s. C., 48 Am. Rep. 76.

21 Rice v. Governor, 19 Minn. 103.

22 State v. Governor, 39 Mo. 388. But see State v. Vail, 53 Mo. 97.

23 State v. Governor, 25 N. J. L. 331.

24 Maurau v. Smith, 8 R. I. 192; s. C., 5 Am. Rep. 564.

25 Turnpike Co. v. Brown, 8 Baxt. 490; s. c.,53 Am. Rep. 713.

26 Houston R. R. Co. v. Randolph, 24 Tex. 317. 27 Tennessee, etc. R. R. Co. v. Moore, 36 Ala. 380. But see Chisholm v. McGhee, 41 Ala. 197.

28 Middleton v. Low, 30 Cal. 596; Harpending v. Haight, 39 Cal. 189.

29 Magruder v. Swan, 25 Md. 212; Groome v. Swinn, 43 Id. 572.

30 Chumesero v. Potts, 2 Mont. 242.

31 Catten v. Ellis, 7 Jones L. 545.

32 State v. Chase, 5 Ohio St. 528; High on Extr. Rems., § 118; Morse on Mandamus, 82. For an elaborate and exhaustive consideration of this question, with statement of the reasons for either view, see note to Hawkins v. Governor, 33 Am. Dec. 346, 362, et seq. 33 New Orleans Nat. Bank v. Merchant, 18 Fed. Rep. 841; State ex rel. Winterburg v. Demaree et al., 80 Ind. 519; People v. Village of Hyde Park (Ill.), 6 N. E. Rep. 33; People ex rel. Ambler v. Atty.-General. 38 Mich. 746; State v. Whitcomb, 28 Minn. 50; s. c., 8 N. W. Rep. 902. And see authorities cited in note 4, supra.

34 Delahanty v. Horner, 75 Ill. 185; s. c., 20 Am. Rep. 237; Sims v. City of Frankfort, 79 Ind. 446; Leslie v. St. Louis, 47 Mo. 474; Youngblood v. Sexton, 32 Mich.

35

be had to the extraordinary remedy of mandamus, when there is any other specific and adequate remedy. But where there is no other adequate remedy, and the act sought to be coerced is a ministerial one, imposed on a public officer as an absolute duty, the courts will often interfere by mandamus to compel him to perform it.36 Thus, it is held that mandamus will lie to compel the auditor of State to audit demands provided for by law ;37 to compel a county treasurer to permit an inspection of the public records;38 to compel the delivery of books and papers belonging to a public office, where the title to the office is not in issue; to compel an election board to canvass and make returns of the votes cast at a general election;40 to compel a clerk to approve an official bond;41 and to enforce the performance of many other ministerial acts by public officers. 42

.89

So, also, will courts of equity often interfere, by injunction, to prevent the performance of a ministerial act by a public officer contrary to his duty and calculated to cause irreparable injury.43 Thus, where the case is a clear one, State officers may be restrained from committing a breach of trust injuriously affecting public rights or franchises.44 So, it 406; s. C., 20 Am. Rep. 654; 2 Story's Eq. § 864; High on Injunctions, § 30, and authorities there cited.

35 Reading v. Commonwealth, 11 Penn. St. 196; s. c., 51 Am. Dec. 534; Board of Police v. Grant, 9 Smedes & Marsh (Miss.), 102; s. c., 47 Am. Dec. 102; Habersham v. Sears, 11 Oreg. 431; s. C., 50 Am. Rep. 481; Harrison School Twp. v. McGregor, 96 Ind. 185; Mansfield v. Fuller, 50 Mo. 338.

36 Ayers v. State, 42 Mich. 422; s. c., 4 N. W. Rep. 274; State v. Dubuelet, 24 La. Ann. 16; Towle v. State, 3 Fla. 202; State v. Moore, 42 Ohio St. 103; State v. Garesche, 3 Mo. App. 584; Kendall v. U. S., 12 Peters, 524.

37 Mansfield v. Fuller, 50 Mo. 338. Compare Reeside v. Walker, 11 How. 272.

38 Brown v. Co. Treas., 54 Mich. 132; s. C., 52 Am. Rep. 800.

39 Territory v. Shearer, 2 Dak. 332; s. C., 8 N. W. Rep. 135; McGee v. State, 103 Ind. 444; s. c., 3 N. E. Rep. 139.

40 State ex rel. Bloeham v. Gibbs, 13 Fla. 55; s. C., 7 Am. Rep. 233. See also State v. Garesche, 3 Mo. App. 526. Compare Dalton v. State, 11 Am. & Eng. Corp. Cas. 78.

41 Gulich v. New, 14 Ind. 93.

42 See authorities cited in note, supra. For an excellent definition of a "ministerial act " see Pennington v. Streight, 54 Ind. 376; also Arberry v. Beavers, 6 Tex. 457; s. C., 55 Am. Dec. 791.

48 3 Pom. Eq. Jur., § 1345 and authorities there cited; also High on Inj., § 796.

44 People v. Canal Board, 55 N. Y. 390; Greene v. Mumford, 5 R. I. 472; Lane v. Schamp, 5 C. E. Green,

82.

In an important case which has just been decided by the Supreme Court of Indiana the principles above stated were applied, the court holding that the secretary of the state could not be enjoined from transmitting to the speaker of the house of representatives the certified statement of the number of votes cast for lieutenant-governor, as required by statute. It was argued that there was no vacancy and no right to hold an election under the fact in the case, but the court refused to consider that question, on the ground that it had no jurisdiction to grant an injunction in any event. In the course of the opinion, by Elliott, C. J., it is said: "We doubt whether papers directed by law to be delivered to a designated officer can in any case be stopped by injunction in the hands of a mere custodian charged with the duty of delivering them; we are clear that they cannot be stopped by injunction in such a case as that which this record presents to If the courts shoujd enjoin the secretary of state no substantial result would be accomplished, because duplicates of the papers are in the hands of the members of the general assembly who are charged by him with the duty of delivering them to the speaker to whom they are addressed, and the courts cannot enjoin legislators from performing a duty cast upon them by law. Decrees of courts in injunction cases can only be enforced by punishing, by fines, or imprisonment, those who disregard them, and it cannot be true that courts can fine or

us.

45 Hartford Fire Ins. Co. v. Doyle (U. S. Cir. Ct. Wis.), 3 Cent. L. J. 41.

46 Conn. River R. R. Co. v. Co. Comrs., 127 Mass. 50; Arberry v. Beavers, 6 Tex. 457; s. c., 55 Am. Dec. 791. 47 People v. Hoyt, 66 N. Y. 606; Trustees v. State, 11 Ind. 205; Drexel v. Berney, 14 Fed. Rep. 268; Hanley et al. v. Wetmore et al. (S. Ct. R. I.), 6 Atl. Rep. 777; High on Ex. Leg. Rem., § 10; High on Inj., § 8; State v. Hollinshead, 2 Atl. Rep. 244.

imprison legislators for doing what the law directs them to do. Courts will not issue writs of injunction where they would be unavailing. "It is a principle of constitutional law, declared in our constitution, and enforced by many decrees of our own and other courts, that the departments of government are separate and distinct, and that the officers of one department shall not invade any other. To interfere by injunction in this case would involve a violation of this fundamental principle. The general assembly has power to compel the production of papers necessary to enable it to justly and intelligently discharge its duties and exercise its functions. If the judiciary should enjoin the secretary of state from delivering the papers described in the complaint, and the general assembly should demand their delivery to the officer to whom they are addressed, a conflict of authority would arise which no tribunal could effectually deter

The courts having no jurisdiction over the subject-matter in such a case, mere consent on the part of the officer will not give them jurisdiction to grant the relief sought.49

The courts have often been asked to interfere by mandamus or injunction in contested election cases, but, in accordance with the rules and principles herein before stated, they have almost unanimously refused to interfere, when the title to an office would be involved. 50 The legal right is seldom clear in such cases; there is, generally at least, an adequate remedy by quo warranto, and to award a mandamus or an injunction, even if the court had jurirdiction, would, in many cases, be utterly vain and futile.51 But 48 Smith v. Myers, Sup. Ct. Ind. (MS.) Jan. 4, 1887. 49 Smith A. Myers, supra; State ex rel. v. Dike, 20 Minn. 363; People ex rel. Sutherland v. Governor, 29 Mich. 320; s. C., 18 Am. Rep. 89, opinion 96. But see People v. Bissell, 19 Ill. 229; s. c., 68 Am. Dec. 591.

50 Meredith v. Supervisors, 50 Cal. 483; State v. Auditor, 34 Mo. 375; People v. Frazier, Breese (Ill.), 68; Warner v. Myers, 4 Oreg. 72; Matter of Gardner, 68 N. Y. 467; People v. Treas., 36 Mich. 416; Dalton v. State ex rel. Richardson (S. Ct. Ohio), 11 Am. & Eng. Corp. Cas. 78; State v. Dunn, Minor. 46; s. c., 12 Am. Dec. 25, and authorities cited in note 29; High Ex. Leg. Rem., § 49; Moses on Mandamus, 49; Injunction Cases: Kilpatrick v. Smith, 77 Va. 347; Delahanty v. Warner, 75 Ill. 185; s. c., 20 Am. Rep. 237; Markle v. Wright, 13 Ind. 548; Beal v. Ray et al., 17 Ind. 554; Gilroy's Appeal, 100 Pa. St. 5; Foster v. Moore, 32 Kans. 483; 2 High on Inj. (latest ed.), § 1312, and authorities there cited.

51 Fitch v. McDiarmid, 26 Ark. 482; Hanley v. Wet

mandamus has frequently been resorted to with success by one holding a commission and prima facie entitled to an office, for in such a case the question of title is not necessarily put in issue by him, and may, perhaps, not be in any way involved.52

53

There is little difficulty in cases where the office is not already filled by one claiming title, but where there is an incumbent who claims title to the office and denies the right and title of the new claimant, a more difficult question is presented. Mr. Moses states the rule generally that no mandamus will issue in the latter case, Mr. High attempts to distinguish between the cases of the latter class, and lays down the rule that, where the claimant simply seeks to be restored from an office already, held by him, but from which he has been ousted, mandamus will lie. Perhaps the true ground of distinction is that stated by the editor of the American Decisions, namely: "If the applicant can show a clear prima facie legal title to the office, and if the contest involves merely the determination of a simple question of law, the writ will be awarded whether the office is filled at the time or not, and without reference to the question whether the applicant has previously occupied it. But the court will not enter upon any investigation of fact, and will not undertake to adjudicate and enforce a doubtful right. It will not go behind the certifiate, commission, or other declaration of title to the office, issued or made by the proper authority, to inquire into the ultimate right."55 Indianapolis, Ind.

W. F. ELLIOTT.

more, 6 Atl. Rep. 777: Sharlburne v. Horn, 45 Mich. 160; Howard v. Gage, 6 Mass. 462; Woodbury v. Comrs., 40 Me. 304.

52 Lewis v. Whittle, 77 Va. 425; Strong's Case, 20 Pick. 484; State v. Watertown, 9 Wis. 254; Curtis v. McCullough, 3 Nev. 202; Ex parte Diggs, 52 Ala. 381. And see note to State v. Dunn, 12 Am. Dec. 25, 29, and authorities there cited.

53 Moses on Mandamus, 150.

54 High Ex. Leg. Rem. §§ 46, 67.

55 Note to State v. Dunn, 12 Am. Dec. 25, 30.

PAYING HALF A DEBT FOR THE WHOLE.

Though justices of the peace (in England) do not often require to consider the law of debtor and creditor, except when perhaps an