that is to issue coupon bonds of Cascade Coun- | positive law. And under such circumstances ty for the purpose of raising the money with nothing is better settled than that the County which to discharge said debt, the inquiry arises or other municipal corporation cannot be held as to whether interest should be paid upon said liable for a violation or neglect of duty by its debt, and if so from what time shall it be com- officers." And we are referred to the followputed. The Act organizing the county is silent ing authorities in support of this position: upon this point. In other words, it does not say Cooley, Torts, p. 621; Richmond v. Long, 94 in so many words that interest shall be paid up- Am. Dec. 461, 17 Gratt. 379; Anne Arundel on the debt until it is discharged by the proceeds Co. v. Duckett, 20 Md. 468, 83 Am. Dec. 566, of the bonds for the issuance of which it pro- last note; Stewart v. New Orleans, 9 La. Ann. vides. On the other hand, the Act does provide 461, 61 Am. Dec. 218; Lloyd v. New York, 5 N. that if the debt is paid by warrants drawn up- Y. 369, 55 Am. Dec. 347; Lorillard v. Monroe, on the general fund, they shall bear interest, 11 N. Y. 395, 62 Am. Dec. 124, note; Chumasero and it provides the time from which the inter- v. Potts, 2 Mont. 242; People v. Tweed, 13 Abb. est shall commence. In the absence of any Pr. N. S. 77, referred to in note 62 Am. Dec. special provision in the Act, we are left to in- 124. terpret it in the light of the general law and with reference to the scope and purpose of the law under consideration. It is fair to assume that the Legislature acted in the belief that the Cascade Commissioners would at their first regular meeting make their election as to the method by which they would pay the debt, and that if they chose to pay it by issuing coupon bonds, they would proceed at once to advertise as required by section 810, supra, and raise the money with which to pay said debt.

The doctrine of these cases is that when the law devolves upon certain public officers a duty to perform as such the rule of respondeat superior does not apply to them. This rule can only apply where the relation of master and servant or principal and agent exists. In such cases the master or principal must answer for the conduct of the servant or agent within the scope of the service or agency imposed. Judge Rives, of the Supreme Court of Virginia, in the case of Richmond v. Long, 17 Gratt. 375, 94 It is fair to assume that the Legislature be- Am. Dec. 461, in speaking of municipal corlieved that bidders could be found in the mar-porations, lays down this doctrine in the fol kets of the world for these bonds. We observe lowing language, to wit: "The functions of that the Commissioners could not have issued such municipalities are obviously two-fold: (1) and sold the bonds at their first meeting if they political, discretionary and legislative, being had elected to do so. We observe, further, such public franchises as are conferred upon that they were not bound to issue warrants upon them for the government of their inhabitants a special fund which they had not had reason- and the ordering of their public officers, and to able time to provide. Said warrants when pre- be exercised solely for the public good rather sented to the treasurer and indorsed "not paid than their special advantage; and (2) those minfor want of funds” would draw interest under isterial, specified duties, which are assumed in the General Law. This would not be a fair consideration of the privileges Conferred by construction of the Act under consideration. their charter. Within the sphere of the former, We think, then, that it was the expectation of they are entitled to this exemption; inasmuch the Legislature that the County Commissioners as the corporation is a part of the government would provide for the payment of this debt in and to that extent its officers are public officers, a reasonable time, if they saw fit to sell bonds and as such entitled to the protection of this for that purpose. Certainly it was the duty of principle; but within the sphere of the latter the appellant to have realized the money by the they drop the badges of their governmental oftime of its second meeting, which, according fices, and stand forth as the delegates of a prito the allegations of the petition, was on the vate corporation in the exercise of private fran6th of June, 1888. At this meeting an agent chises, and amenable as such to the great of Choteau County demanded of the appellant fundamental doctrine of liability for the acts warrants upon the general fund or the money of their servants. in payment of said indebtedness, and its Com- Again the Supreme Court of the State of missioners refused to do either. They had New York, in the celebrated case of People v. failed to take action in the matter at the March Treed, 13 Abb. Pr. N. S. 77, lays down this session, in violation of the plain, imperative doctrine as follows, to wit: "This special commandate of the Statute. They again refused mission, appointed by the Legislature, whether at the June session, and continue thus in open or not they were a corporation, or a quasi cordefiance of the law to the present time. We poration, it is not material to inquire. It is think this constitutes a case of money "with-sufficient to say they were created, by an Act held by an unreasonable and vexatious delay:" of the State, public officers, and they were inand that it should bear interest from the 6th vested with certain specified powers as such, day of June, 1888, at the rate of 10 per cent to be exercised for special and limited purposes; per annum, under section 1237 of the Compiled but it was nevertheless clearly an office of pub Statutes. lic trust, to be executed for confessedly public purposes. They were not created the agents of the County of New York, or of the board of supervisors in their corporate capacity. Lorillard v. Monroe, 11 N. Y. 395, 62 Am. Dec. 120.

But we are met at this point with the argument that "this Board is composed of public officers, who give bonds for the faithful performance of their official duties, on which they are directly answerable for neglect or violation of duty. And in this instance, by virtue of the "The county could not be sued or made reAct in question, they are created a special tri-sponsible for the manner in which they dis bunal for the performance of certain public charged or used the duties of their office, for governmental functions or duties imposed by their breach of duty, for misfeasance or non

feasance, or for frauds, collusions, conspiracy | is argued that this case is not brought within or embezzlement of money."

We hold, then, that while a county is a corporation for many purposes, and as such an independent legal entity endowed by law with a limited portion of the sovereignty of the State, and as such charged with duties political and discretionary in their character, to be ex ercised for the public good, and that the board of county commissioners is the organ through which its functions are mainly executed, still, when the law itself imposes a duty upon its commissioners as such, and they are not appointed thereto by the county, the county will not be responsible for their breach of duty or for their nonfeasance or misfeasance in relation to such duty. The Organic Act of Cascade County imposes upon its Commissioners the duty of selecting which of two methods shall be adopted in the payment of its indebtedness, and declares what they shall do when they have determined which method they will adopt. They derive their power from the law alone. None of it comes from the County. They are in no legal sense the servants or agents of the County, so that the doctrine of respondeat superior can apply to them. It follows, therefore, that the taxpayers of the County of Cascade cannot be burdened with $1 more indebtedness than the Legislative Act imposes. And when we turn to it we find that the principal sum is $30,000, and interest on warrants, if they are issued at all, from the time they are presented to the treasurer, and by him indorsed "Not paid for want of funds," at the rate of 7 per cent; but if coupon bonds are issued and sold, and the debt paid from the proceeds thereof, then no interest at all shall be paid by the County.

the purview of the Statute, for the reason that
this proceeding was not an action, but a mere
maudate, not brought for the recovery of
money, but to enforce a specific obligation, the
direct effect of which was not the collection of
money, but the enforcement of a ministerial
duty, which resulted in securing the evidence
of a debt rather than the payment of it. We
think, however, that there is more ingenuity
than soundness in this view. The Statute
makes no other provision for this service, and
we cannot suppose that the Legislature meant
that the compensation of the district attorney
should be made dependent upon the nature or
form of the action. The substantial thing in-
tended was a proceeding whereby the claim
might be realized, and whether this were by
action of debt or mandamus was not important,
if this end were secured. Nor is it important
whether this result be obtained by a judgment
for money or for anything else which was
equivalent, or could be made equivalent, to
money. The assurance of the warrant by a
judgment affirming the indebtedness of Ama-
dor County was in effect the collection of the
money, or the securing of it to the County of
Calaveras; and when that county used the war-
rant as money it became liable to the attorney
for his fees as if the money had been directly
paid to it. This would be the true construc-
tion of an ordinary contract between counsel
and client, and we see no reason for a different
rule here."

The argument that the fee cannot be paid
until the money is collected is not sound, be-
cause the Statute provides that it shall be taxed
as costs, and this should be done at the time
the judgment is rendered.

. ex

Section 846, supra, provides "that in no case
shall the fees allowed by this section
ceed in amount the sum of $1,200 in any
county, and the county attorney shall furuish
to the county commissioners a statement of all
fees received by him, which, together with the
fees allowed by the county commissioners,
shall not exceed the sum of $1,200." This
Statute governs in this case. By its provisions
the county attorney cannot receive a greater
sum as fees than $1,200; and the commissions
allowed by the Statute are limited by this pro-
vision. If the county attorney who was in of-
fice when the case was tried below has received
the maximum of $1,200 in fees, then he can
receive no more.

3. The second ground of appeal presents the question of the correctness of an item of costs of $1,582.85. Of this item the court below allowed the sum of $1,059, from which defendant appealed; no appeal on the part of plaintiff. This was taxed as the fees of the county attorney, under 847, p. 820, Comp. Stat. This section provides, among other things, that the county attorney shall receive "for collections made for the county or territory on all sums of $500 or less, 10 per cent thereof; on all sums over $500, 10 per cent on the first $500, and 5 per cent on the excess over $500 all fees in this section bereinbefore provided shall be taxed as costs." The defendant contends that the above section applies to the collections of money actually made and paid The case will be remanded upon this point, into the treasury, and not to the proceeding by with directions to the court below to ascertain writ of mandate to compel the performance of by proof what amount of fees the county ata duty, notwithstanding such duty is the pay-torney of Choteau County has already received. ment of money into the treasury. At first we thought this position correct, but upon fuller consideration we have reached a different conclusion, and follow the construction given by the Supreme Court of California to a similar statute, in the case of Higby v. Calaveras Co. 18 Cal. 176. In this case the court says: "But it 7 L. R. A.

This sum will be deducted from $1,200, the
remainder will be taxed against the defendant
and collected as costs.

Judgment modified.

De Wolfe and Liddell, JJ., concur.

Motion for rehearing overruled July 12, 1889.

C

NOTE-Duty of railroads to furnish safe stations and | secure in his exit from the track and over its right

Railroad companies have the power to make reasonable rules and regulations as to the manner of performing their duties as public carriers; that is to say, as to the hour and schedule time for starting and running their trains, and as to the places on the route at which particular trains shall stop in transit. Duling v. Philadelphia, W. & B. R. Co. 5 Cent. Rep. 571, 66 Md. 120.

It is the duty of a passenger to inquire before embarking on a train whether it will stop at the station of his destination, and if he does so, and is misled by an agent authorized to speak for the comrail-pany, he has his action against the company for the misdirection, but not for the refusal of the conductor to stop there, if it be a station at which the train is forbidden to stop by the regulations of the company. St. Louis, I. M. & S. R. Co. v. Atchison, 47 Ark. 74.

knowing he had this passenger to put off, attempted to signal the engineer with the bell rope, but, owing to some tangle or disarrange ment, could not do so, consequently the two whistles were not blown. The conductor, the engineer and the porter all agree on this point, and there is no contradictory statement. The porter only calls out flag-stations when there are passengers to put off and the signal to stop is blown. The plaintiff testifies that the porter did pass through the car, and call out Doyline Station, but this the porter positively denies, and, considering the uncontradicted testimony that no signal to stop was given, the fact is of little importance. The consequence was that the train passed by the station, only slacking its speed, as customary, but not stopping.

ployé of the Company. The conductor says that, having failed to give the signal, he went through the train, after pissing the station, to find plaintiff, intending to lack the train up to the station, and put him off, but failed to find him, and supposed he had gotten off when the train had stopped on account of the oxen on the track.

Under these facts, the fault of the Company, in not stopping its train, cannot be disputed. It was bound, under its contract, to stop, and safely discharge its passenger. But did its negligent failure to discharge this duty justify the plaintiff in jumping off the moving train, or absolve him from the charge of contributory negligence, which, under the settled jurisprudence of this court, is a bar to his recovery? We consider the law to be settled by the overwhelming weight of authority that while a railroad company is bound to stop its train at the station to which it has contracted to carry a passenger, and to land him safely and conveniently, the fact that the train is about to pass such a station without stopping does not justify the passenger in jumping off the moving train, unless expressly or impliedly invited to do so by the Company.

The plaintiff having several times made this same trip, and knowing his station, went out on the platform of the car for the purpose of getting off. He went down on the steps of the car, and, after passing a little beyond the station platform, seeing that the car did not stop, and, as he says, supposing that it was intended that he should get off, and that he could do so with safety, he stepped off while the train was moving; and he says that, as he was in the act of doing so, the train accelerated its motion, A leading case on the subject, which we segiving a sudden jerk, which threw him, and lect from a multitude of authorities, not only broke his ankle, occasioning the injuries for on account of the great lawyer who delivered which his present action in damages is brought, it (Judge Black), but also because it has been He says that, just before he stepped off, some- expressly quoted and affirmed by this court, one called to him, "Is not this your station?" lays down the principle, in a state of facts which acted in determining him to step off; strikingly similar to those before us, as follows: but the evidence leaves no doubt that the per-"The plaintiff below was a passenger in deson who asked the question was not any em

parting in the direction he wished to go, and after he boarded the train he learned that it would not stop at the station for which he had purchased the ticket, he has no redress against the company. Duling v. Philadelphia, W. & B. R. Co. supra.

A railroad company, having sold a ticket to a point on its road, including a return trip, was bound to stop at the station and bring the passenger back, | upon the usual signal, which had been recognized by the company, being given. Freeman v. Detroit, M. & M. R. Co. 9 West. Rep. 117, 65 Mich. 577. Liability for injury to passenger, alighting from

train.

Where the conductor has reason to believe that any passenger, on reaching the station of his destination, has not alighted, and is dilatory in the act of alighting, and he starts his train without examination or inquiry, and such passenger is in the act of alighting when the train is started, and is thereby injured, the company will be liable. Sherwood, J., dissents, on the ground that there was evidence to show the conductor that plaintiff was not in danger. Strauss v. Kansas City, St. J. & C. B. R. Co. 5 West. Rep. 433, 86 Mo 421.

Where, before a passenger had safely alighted at a station, the conductor signaled the train to start, and jerked the passenger to the ground, injuring him, the carrier is liable. Louisville, N. A. & C. R. Co. v. Wood, 12 West. Rep. 313, 113 Ind. 544.

When a conductor is merely asked how long a train will stop at a certain station, and tells the passenger, he is not presumed to know that the latter desires to alight on business, and does not thereby assume any obligation to watch the movements of the passenger or delay the train on his account. Missouri Pac. R. Co. v. Foreman, 73 Tex. 311.

He is not bound at his peril to ascertain from any mere stranger of the existence of an agreement to

fendant's cars from Philadelphia to Morgan's

change the arrangement and stop at an unusual place. Atchison, T. & S. F. R. Co. v Gants, 38 Kan. 608.

A freight train accustomed to discharge passengers away from its platform, or where it is impracticable to reach it, may require them to leave at some convenient place. New York, C. & St. L. R. Co. v. Doane, 1 L. R. A. 157, 15 West. Rep. 465, 115 Ind. 435.

Where a passenger-freight train stopped at an inconvenient place, a female passenger was justified in supposing it would stop at che platform. and, her presence being discovered as the train passed the station, it was negligence in the company not returning to the station or assisting her to alight from the train when it stopped, or to reach the station in safety. Ibid.

A female passenger required to alight from a freight train, beyond the station, was not negligent in not discovering gates into a private inclosure through which the station might be reached by an unmarked route; and the company is liable for injuries suffered by her falling while attempting to cross a cattle pit. Ibid.

Duty of carrier to stop train to allow passenger to alight.

It is the duty of the servants and employés on a passenger train to stop the train long enough for a passenger, by the exercise of ordinary care and diligence, considering age, sex and physical condition, to alight from the train safely before it is started or suffered to start. Hickman v. Missouri Pac. R. Co. 8 West. Rep. 564, 91 Mo. 433: Central R. Co. v. Whitehead, 74 Ga. 441; Strauss v. Kansas City, St. J. & C. B. R. Co. 5 West. Rep. 433, 86 Mo. 421.

A sufficient time to permit a passenger to get off the train in safety means time to alight safely in the use of reasonable diligence and care, having re

the constant habit of the company to stop at
that place, the leap not being made to avoid an
imminent impending peril, produced by the
misconduct of defendants, but to avoid being
guilty of such imprudence as relieves the com-
pany from the consequences of the want of
caution on the part of their servants; for in such
a case the accident may be attributed to the
fault of both parties, which would destroy
plaintiff's right to recover." And then the
court quotes, with approval, the above decision
of the Pennsylvania court. Damont v. New
Orleans & C. R. Co. 9 La. Ann. 441.
In a very recent case we referred to this
principle as an evident one, saying:
"Now,
supposing that any passenger on a regular train
should labor under a similar mistake in believ-
ing, for instance, that the train was passing by
the station to which he was destined, and, fear-
ing that he might be carried beyond the same,
should jump out as the train was pulling out of
the station, and be injured by falling, could the
company be held liable for injuries thus re-
ceived? Evidently not." Reary v. Louisville,
N. O. & T. R. Co. 40 La. Ann. 32.

Corner. The train should have stopped at the latter place, but some defect in the bell-rope prevented the conductor from making the proper signal to the engineer, who therefore went past, though at a speed somewhat slack-carried beyond her destination, she was herself ened on account of the switches which were there to be crossed. The plaintiff, seeing himself about to be carried on, jumped from the platform of the car, and was seriously hurt in the foot. . . . Persons to whom the management of a railroad is intrusted are bound to exercise the strictest vigilance. They must carry the passengers to their respective places of destination, and set them down safely, if human care and foresight can do it. . . . But they are answerable only for the direct and immediate consequences of errors committed by themselves. They are not insurers against the perils to which a passenger may expose himself by his own rashness and folly. . . . From these principles it follows very clearly that if a passenger is negligently carried beyond his station, where be ... had a right to be let off, he can recover compensation for the inconvenience, the loss of time and the labor of traveling back, because these are the direct consequences of the wrong done to him. But, if he is foolhardy enough to jump off without waiting for the train to stop, he does it at his own risk, because this is gross imprudence, for which he can blame nobody but himself." Pennsylvania R. Co. v. Aspell, 23 Pa. 147.

This court long ago laid down the like doctrine in the following language: "If the daughter of plaintiff voluntarily jumped from the cars when in motion, even though it was

In the multitude of adjudications and judicial expressions on this subject, by numerous courts, there have naturally arisen varieties and conflicts of opinions, and decisions, hostile, or apparently hostile, to each other, are quoted on either side; but the weight of authority undoubtedly sustains the views above expressed, and, at all events,-what more nearly concerns us.-they have been adopted in the jurisprudence of Louisiana.

gard to all the circumstances. Pennsylvania R. Co. | at night in a strange city. Galveston, H. & H. R. v. Lyons (Pa.) 25 W. N. C. 6.

A conductor has no right to assume, because he does not see a passenger in the coach on looking into it, that he has leaped out in the dark from the moving train; but it is his duty to know that he has a passenger for a station, to have the station announced and to stop the train. Louisville, N. O. & T. R. Co. v. Mask, 64 Miss. 738.

Passenger carried beyond his destination.

A passenger carried beyond his station may recover for an injury sustained by falling through a trestle work. Whether he consented to leave the train at that point, so as to waive his right, is a question for the jury. Winkler v. St. Louis, I. M. & S. R. Co. 3 West. Rep. 433, 21 Mo. App. 99.

The complaint in an action for carrying a passenger beyond his station should aver that under the rules of the company the train should have stopped at the station. Chicago, St. L. & P. R. Co. v. Bills, 1 West. Rep. 849, 104 Ind. 13.

The plaintiff is entitled to recover damages for his trouble and inconvenience in getting back to his destination. East Tennessee, V. & G. R. Co. v. Lockhart, 79 Ala. 315.

A railroad company which sells a ticket to a point beyond its line is liable for injuries to the passenger caused by the negligence of those in charge of the train and car at a point beyond its own line to which the passenger was carried without change of cars. Chollette v. Omaha & R. V. R. Co. (Neb.) 4 L. R. A. 135.

A woman with an infant, wrongfully carried by a train beyond her destination, and who insists on being put off, in consequence of which she has to walk back a mile, is not thereby prevented from recovering damages, where she was without money, and, if she had gone on, would have been left late

Co. v. Crispi, 73 Tex. 236.

Where a train passes the station to which the passenger was entitled to be carried, without stopping a sufficient time for him to get off, the carrier is liable in damages. The fact that the train carried freight as well as passengers makes no difference. White Water Valley R. Co. v. Butler, 12 West. Rep. 207, 112 Ind. 598.

A railroad company admitting passengers to a freight train incurs the same liability to transport them safely as if on a passenger train. New York, C. & St. L. R. Co. v. Doane, 1 L. R. A. 157, 15 West. Rep. 465, 115 Ind. 435.

If a passenger-freight train is stopped near a station, and the passengers rightfully understand they are to leave the train, the company is liable for the injuries they may sustain in so doing, to the same extent and upon the same ground as if suffered from the defectiveness of its own premises. Ibid. Contributory negligence defeats right of action.

An administrator cannot recover for the death of his decedent, caused by negligence of a railroad company, unless deceased was in the exercise of due care for his own safety. Chicago & A. R. Co. v. Fietsam, 12 West. Rep. 844, 123 Il!. 518.

An adult, if guilty of any negligence, however slight, contributing directly to produce the injury to himself, cannot recover. Dowling v. Allen, 5 West. Rep. 370, 88 Mo. 293; Monongahela City v. Fischer, 2 Cent. Rep. 79, 111 Pa. 9; Western Union Teleg. Co. v. McDaniel, 1 West. Rep. 274, 103 Ind. 294; Cook v. Missouri Pac. R. Co. 1 West. Rep. 452, 19 Mo. App. 329.

A street railway is not liable for a personal injury when it appears that, when plaintiff signaled the conductor to stop the car, the latter rang the bell for that purpose, and the car immediately be