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The distinction thus taken by Mr. Justice | substitute another and different method of Field between funds acquired and held by a paving the city streets by the company, and county in the exercise of the governmental this without the consent and notwithstandfunction of taxation and funds or property ing the objection of the city. held in its quasi private or proprietary right is maintained in many cases. Worcester v. Worcester Consol. Street R. Co. 196 U. S. 539, 49 L. ed. 591, 25 Sup. Ct. Rep. 327; Mt. Hope Cemetery v. Boston, 158 Mass. 509, 35 Am. St. Rep. 515, 33 N. E. 695; 1 McQuillin, Mun. Corp. §§ 230-232. The first is declared not entitled to "constitutional protection," while the latter is so safeguarded and may not be diverted by legislative act.

As demonstrating an equivalent power of the legislature of the state, this court held in Demoville v. Davidson County, supra, that the legislature could release individuals from liability to a county incurred by way of a privilege tax, assessed by the county under due legislative power, although the demand had been reduced to judgment before the act was passed that provided for the release.

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The Worcester Case related to the superior power of the legislature over the city's streets. The control of highways is primarily a state duty, to be taken in immediate charge at will through its own agents. Atkin v. Kansas, 191 U. S. 207, 48 L. ed. 148, 24 Sup. Ct. Rep. 124; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224. As was said by Chief Justice Gibson in O'Connor v. Pittsburgh, 18 Pa. 187, 189: "To the commonwealth here, as to the King in England, belongs the franchise of every highway as a trustee for the public. In England

a public road is called the King's highway; and though it is not usually called the commonwealth's highway here, it is so in contemplation of law, for it exists only by force of the commonwealth's authority."

It is to be observed, therefore, that in the case before us the legislature attempted to deal with a subject-matter within the province, highways, and that its effort to do so was by way of controlling that which had come into existence under its authority, funds produced by bonds to be redeemed by taxes.

In Worcester v. Worcester Consol. Street R. Co. supra, the Supreme Court of the United States (affirming 182 Mass. 49, 64 N. E. 581) held that the legislature could modify or terminate a contract, made by a municipality with a street railway company, and In either or both aspects, it was within so by an arbitrary order from the legis- in pursuance of law, and every law imposlature that a particular portion of the funding a tax shall state distinctly the object should be devoted exclusively to the in- of the same, to which only it shall be apterests of one particular portion of the plied," it was held in State ex rel. Lima v. parish, and then only in a certain con- Pohling, 1 Ohio C. C. 486, that an act protingency, which not happening, the moneys viding that so much of the county road tax are not to be held in the parish treasury as was levied and collected in a certain city, for other parish purposes, nor to be re- together with any balance of such tax which turned to the parties who paid the licenses, may remain unexpended, levied, and colbut to be turned over to the towns, who in lected in such city, shall be expended withthe meantime may have exercised their in the corporate limits of that city under power of taxing and licensing their own the direction of the council, was unconstiinhabitants up to the full constitutional tutional. limit."

In National Bank v. Barber, 24 Kan. 534, an act diverting to township purposes of certain towns the county tax arising from certain property situated in such towns was held to be in contravention of the constitutional provision that "no tax shall be levied except in pursuance of law, which shall distinctly state the object of the same; to which object only shall such tax be applied."

And by virtue of the same constitutional provision, it was held in Smith v. Haney, 73 Kan. 506, 85 Pac. 550, that an act permitting the diversion of unexpended balance of general revenue tax to the building of a courthouse was unconstitutional, the building of a courthouse being considered a special or extraordinary matter, and not one included in the purposes for which the general tax levy is made.

And under the provision of the Ohio Constitution that "no tax shall be levied except

In Nashville v. Towns, 5 Sneed, 186, it was held that an act providing that the county revenues collected within the limits of a certain city in such county shall be turned over to the treasurer of such city, to be expended therein, was in violation of the constitutional provision that "the general assembly shall have power to authorize the several counties and incorporated towns in this state to impose taxes for county and corporation purposes respectively in such manner as shall be prescribed by law." The court stated that the county court levies the taxes with a view of providing for the current expenses of the county, and if the legislature has the power to divert the funds thus levied to other and different purposes, it has the power to bankrupt the county at pleasure. The court in STATE EX REL BELL v. CUMMINGS observed that the constitutional provision just referred to is the only limitation on the control of the legislature over county funds.

J. H. B.

the competency of the legislature to act, and | jury to a person near its right of way by to divert the funds from one road to an- a loose spike used to fasten the rail to the other in the county, as to it seemed proper. tie, which was hurled from the track by a Such a governmental arm of the state has rapidly moving train, even though the comnot such a proprietary interest in money au- pany knew of the condition of the spike, thorized to be raised as would prevent a sub- since such injury could not have been anticipated. sequent legislature from giving another direction to the expenditure of the fund. State Bd. of Edu. v. Aberdeen, 56 Miss. 518; State ex rel. Police Comrs. v. County Ct. 34 Mo. 546, 571; State ex rel. Lott v. Brewer, 64 Ala. 287; Lucas v. Tippecanoe County, 44

Ind. 524.

The only limitation on the power of the legislature in that regard imposed by our Constitution, it seems, is that the legislature may not direct that the portion of the revenue of a county collected within the limits of a municipal corporation be paid into the treasury of the latter for its sole use and benefit. Nashville v. Towns, 5 Sneed, 186; Demoville v. Davidson County, supra; and see State ex rel. Board of Education v. Haben, 22 Wis. 660.

But here the effort is not to divert from the county to a city, or even from the roads of Hamilton county to another and different county purpose.

Another phase of the defendants' insistence is that if it be conceded that power existed in the legislature to provide for a change in the roads to be constructed, yet, as a condition of exercise, any change must be made through the local or county authorities, and that a discretion must be left to them, else that there would be a violation of the principle of local self-government.

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(January 13, 1915.)

'RROR to the Court of Civil Appeals for the Fifth Supreme Judicial District to review a judgment affirming a judgment of the District Court for Hill County in plaintiff's favor in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence.

Reversed.

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The evidence fails to show any negligence, and defendant is not liable.

Gulf, C. & S. F. R. Co. v. Oakes, 94 Tex. 157, 52 L.R.A. 293, 86 Am. St. Rep. 835, 58 S. W. 999; Galveston, H. & S. A. R. Co. V. Currie, 100 Tex. 136, 10 L.R.A. (N.S.) 367, 96 S. W. 1077; Terhune v. Brooklyn Heights R. Co. 151 App. Div. 927, 136 N. Y. Supp. 113 Mo. App. 429, 87 S. W. 74; Teel v. Rio 1149; Smith v. Missouri & K. Teleph. Co. Bravo Oil Co. 47 Tex. Civ. App. 153, 104 S. W. 422; Bishop, Non-Contract Law, § 829; Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623; Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372; Veith v. Hope Salt & Coal Co. 51 W. Va. 96, 57 L.R.A. 410, 41 S. E. 187; Broom, Legal Maxims, 8th ed. pp. 365, 367; Nitroglycerine Case (Parrott v. Wells) 15 Wall. 524, 21 L. ed. 206.

This aspect of the contention is, we consider, covered by what has been said above in respect of the power of the legislature to immediately intervene and direct the change. Plaintiff placed his right to recover on The legislature need not act through such the ground of negligence alone, and thereby local agencies, however wise it may be waived any right to recover without proof of deemed to be that it should. With the un-negligence, and is estopped from so doing. wisdom of what was done by the legislature, the court as a co-ordinate branch of the

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Note.

The liability of a railroad company for personal injuries to persons on adjoining property or highway by objects thrown by passing trains is covered in the note to St. Louis, I. M. & S. R. Co. v. Jackson, 31 L.R.A. (N.S.) 981; and see also note to Louisville & N. R. Co. v. Eaden, 6 L.R.A. (N.S.) 581, as to liability of railroad company for personal injuries by objects thrown from moving train.

It will be observed that in TRINITY & B. VALLEY R. Co. v. BLACKSHEAR, the railroad company was relieved from liability upon the ground that it could not have anticipated such an injury as a result of the condition complained of. The question of anticipation as an element of proximate cause is discussed in the note to Kreigh v. Westinghouse, C. K. & Co. 11 L.R.A. (N.S.) 684. See further on this point, the opinion in Hubbard v. Bartholomew, 49 L.R.A.(N.S.) 443.

Biggins v. Gulf, C. & S. F. R. Co. 102 Tex. 417, 118 S. W. 125.

Negligence cannot exist unless there is a duty to the person injured, and no duty to the plaintiff rested upon the railway company unless the conditions were such that a prudent person would have anticipated and guarded against the occurrence which caused his injuries.

It is a perfectly plain duty of a railway company to use due care in the maintenance of its track and in the operation of its trains over its tracks, to the end that no injury will accrue to adjoining landowners. This duty is due not only to the landowner himself, but to every individual lawfully on property contiguous to its right of way.

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St. Louis & S. F. R. Co. v. Troutman, Texas & P. R. Co. v. Reed, 88 Tex. 439, 31 Tex. Civ. App. -, 138 S. W. 427; Jackson S. W. 1058; Texas & P. R. Co. v. Bingham, 90 v. Galveston, H. & S. A. R. Co. 90 Tex. 372, Tex. 223, 38 S. W. 162; Texas & P. R. Co. v. 38 S. W. 745, 1 Am. Neg. Rep. 359; Gulf, C. Short, Tex. Civ. App. 58 S. W. 56; & S. F. R. Co. v. Wood, Tex. Civ. App. St. Louis Southern R. Co. v. Pope, 98 Tex., 63 S. W. 164; Houston & T. C. R. Co. 535, 86 S. W. 5; G. A. Duerler Mfg. Co. v. v. Gee, 27 Tex. Civ. App. 414, 66 S. W. 78; Dullnig, Tex. Civ. App. -, 83 S. W. 890, Missouri, K. & T. R. Co. v. Scarborough, 29 87 S. W. 333; International & G. N. R. Co. Tex. Civ. App. 194, 68 S. W. 196; Gulf, C. v. Reiden, 48 Tex. Civ. App. 401, 107 S. W. & S. F. R. Co. v. Marchand, 24 Tex. Civ. 665; McNiff v. Texas Midland R. Co. 26 App. 47, 57 S. W. 860; Alabama G. S. R. Tex. Civ. App. 558, 64 S. W. 1010; Galves- Co. v. Chapman, 80 Ala. 615, 2 So. 738; ton, H. & S. A. R. Co. v. Washington, 94 West Virginia, C. & P. R. Co. v. State, 96 Tex. 517, 63 S. W. 534; Texas & P. R. Co. v. Md. 652, 61 L.R.A. 574, 54 Atl. 669; St. Shoemaker, 98 Tex. 451, 84 S. W. 1049; Louis, I. M. & S. R. Co. v. Jackson, 96 Ark. Atchison, T. & S. F. R. Co. v. Calhoun, 213 469, 31 L.R.A. (N.S.) 980, 132 S. W. 206; U. S. 1, 53 L. ed. 671, 29 Sup. Ct. Rep. 321. Blackshear v. Trinity & B. Valley R. Co. Defendant would not be liable unless it Tex. Civ. App. —, 131 S. W. 854; Savannah, was called upon to anticipate the occurrence F. & W. R. Co. v. Slater, 92 Ga. 391, 17 S. E. causing the injuries. 350; Illinois C. R. Co. v. Schultz, 87 Miss. 321, 39 So. 1005; Turney v. Southern P. Co. 44 Or. 280, 75 Pac. 144, 76 Pac. 1080; Louisville, N. A. & C. R. Co. v. Downey, 18 Ind. App. 140, 47 N. E. 494, 3 Am. Neg. Rep. 638; Texarkana & Ft. S. R. Co. v. O'Kelleher, 21 Tex. Civ. App. 96, 51 S. W. 54; Gulf, C. & S. F. R. Co. v. Johnson, Tex. Civ. App. -, 51 S. W. 531, 6 Am. Neg. Rep. 719; Illinois C. R. Co. v. Watson, 117 Ky. 374, 78 S. W. 175; Black v. Michigan C. R. Co. 146 Mich. 568, 109 N. W. 1052; Howser ▼. Cumberland & P. R. Co. 80 Md. 146, 27 L.R.A. 154, 45 Am. St. Rep. 332, 30 Atl. 906.

Texas & P. R. Co. v. Reed, 88 Tex. 439, 31 S. W. 1058; Galveston, H. & S. A. R. Co. v. Washington, 94 Tex. 517, 63 S. W. 534; Texas & P. R. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Yellow Pine Oil Co. v. Noble, 101 Tex. 127, 105 S. W. 318; Galveston, H. & S. A. R. Co. v. Washington, 25 Tex. Civ. App. 600, 63 S. W. 538; Texas & P. R. Co. v. Short, Tex. Civ. App., 58 S. W. 56; Southern Constr. Co. v. Hinkle, Tex. Civ. App. 89 S. W. 310; Western U. Teleg. Co. v. Timmons, Tex. Civ. App. 125 S. W. 379; Southern Teleg. & Teleph. Co. v. Thompson, Tex. Civ. App. —, 157 S. W. 1186; St. Louis Southern R. Co. v. Pope, 98 Tex. 535, 86 S. W. 5; St. Louis, S. F. & T. R. Co. v. Cason, Tex. Civ. App. -, 129 S. W. 397.

Messrs. H. B. Porter, Walter Collins, Shurtleff & Cummings, W. F. Ramsey, and C. L. Black, for defendant in error: It is not necessary, in a case of negligence, to show that the defendant ought necessarily to have anticipated the very occurrence, accident, or injury made the basis of the suit. Texas & P. R. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Jackson v. Galveston, H. & S. A. R. Co. 90 Tex. 372, 38 S. W. 745, 1 Am. Neg. Rep. 359; Washington v. Missouri, K. & T. R. Co. 90 Tex. 314, 38 S. W. 764, 1 Am. Neg. Rep. 366; Vicksburg, S. & P. R. Co. v. Jackson, Tex. Civ. App. -, 133 S. W. 925; El Paso & N. W. R. Co. v. McComus, 36 Tex. Civ. App. 170, 81 S. W. 760; Trinity County Lumber Co. v. Denham, 85 Tex. 56, 19 S. W. 1012.

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of. Blackshear was at the time about 50 feet from the railroad track. From the injury received in his side Blackshear was confined to his bed and room for about two weeks, and, when he was able to do so, he went back to the place at which he was plowing and where he was standing at the time he received the blow, and he found near there on the ground an iron spike such as was used on the railroad track, and he be-lowing: Sjogren v. Hall, 53 Mich. 274, 18 lieved it was the spike that struck him and caused his injury.

the man at the gate could not have been anticipated; therefore the injury to him could not have been anticipated as a result of the negligence. In this case it was negligence to. permit spikes to lie upon the track, and if Blackshear had been lawfully on or near the track in discharge of a duty, and had received his injury, there might be liability. In support of the case cited, we add the fol

The spike being negligently permitted to be upon the track of the railroad, or loose in the ties, the railroad company would be responsible for injury proximately caused by such negligence, which, in the exercise of reasonable diligence, the railroad company might have foreseen might result therefrom. Texas & P. R. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162.

N. W. 812; American Brewing Asso. v. Talbot, 141 Mo. 674, 64 Am. St. Rep. 548, 42 S. W. 679, Labatt, Mast. & S. §§ 1042-1045.

This doctrine is well stated in vol. 3, Labatt on Master & Servant, 2d ed. § 1042, in the following language:

"The negative form of the doctrine under discussion may be stated in its most general form as follows: 'A person is not answerable at law for a failure to avert or avoid peril that could not have been foreseen by one in like circumstances, and in the exercise of such care as would be characteristic of a prudent person so situated.' In other words, it is not negligence to fail to provide against an accident of such a nature that nobody could have foreseen it, and that no prudence could have anticipated the need of guarding against it. After an accident has occurred it may be easy to see what would have prevented it; but that of itself does not prove nor tend to prove tha reasonable or ordinary care would have anticipated and provided against it."

In the case cited, Chief Justice Gaines, in his usual thorough manner, examined and discussed this question, and announced the rule to be: "But we are not prepared to hold that in no case can the original cause of the injury be deemed the proximate cause, where an independent and disconnected agency has supervened and brought about the result. The fact of the intervention of an independent agency, it occurs to us, bears more directly upon the question whether the injury ought, under all the circumstances, to have been foreseen; and, where this latter fact appears, we think that We have conceded the correctness of the the original negligent act ought to be jury's conclusions as the basis upon which deemed actionable. In Seale v. Gulf, C. & S. to determine the rule of law applicable, but F. R. Co. 65 Tex. 274, 57 Am. Rep. 602, we do not concede that this court would be Chief Justice Willie says: 'If the inter- bound to accept such conclusion; for it is in vening cause and its probable or reasonable disregard of the natural laws which govern consequences be such as could reasonably in such cases that an iron wheel would lift have been anticipated by the original wrong- an iron spike from the ground and throw it doer, the current of authority seems to be any distance. If it be admitted as true, then that the connection is broken.' It follows it proves that it could not have been forethat, in our opinion, the question of proba-seen by the railroad company's employees in ble cause ought to depend upon the further question whether a reasonably prudent man, in view of all the facts, would have anticipated the result,-not necessarily the precise actual injury, but some like injury, produced by similar intervening agencies."

In the Bigham Case the railroad company was negligent in not providing a safe latch to the gate of a lot in which cattle were placed, and was held liable for the injury to cattle which broke through the gate and escaped, but was held not to be liable for injury to a man who was attempting to prevent the escape by guarding the gate. The escape of the cattle should have been foreseen as a consequence, but the presence of

this case, as such occurrence would be so rare that it could not be anticipated.

We therefore conclude that, admitting the truth of the statements made by the witnesses, the occurrence was of such a nature that it could not have been anticipated and guarded against. Therefore the railroad company was not guilty of negligence, and is not liable for the injury which was caused. It is therefore ordered that the judgment of the District Court and the Court of Civil Appeals be reversed, and that judgment be here entered that the defendant in error, Blackshear, take nothing by his suit, and that the plaintiff in error recover against him all costs of both courts.

UNITED STATES SUPREME COURT. purposes of prostitution, contrary to the white slave act of June 25, 1910.

UNITED STATES, Plff. in Err.,

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RROR to the District Court of the United States for the Eastern District of Wisconsin to review a judgment sustaining a demurrer to an indictment charging defendant with conspiring to cause her own transportation in interstate commerce for purposes of prostitution. Reversed.

On page 866 of the note to which reference has just been made, United States v. Diggs and United States v. Caminetti, un-ity. reported cases, were cited to the proposition that transporting a female person in interstate commerce for the purpose of having illicit sexual intercourse with her is an indictable offense under the statute. Both cases have now been affirmed in 220 Fed. 545, on the point to which they were there cited. It is also held to be immaterial that defendant did not actually purchase the transportation, it being understood between him and the person who did purchase it that the defendant would reimburse him.

The holding in UNITED STATES V. HOLTE, on the applicability of the general rule, that one who could not be indicted for an offense may be indicted for a conspiracy to commit the offense, to a female person who assists in transporting herself in violation of the act of 1910, appears to have resulted partly from a desire on the part of the majority to put an end to an evil which has arisen out of the broad construction heretofore given to the statute, i. e., blackmail. The almost unlimited scope given to the operation of the statute (see note in L.R.A.1915A, 862) furnished a wide field for the work of the blackmailer, and perhaps the opportunity was not neglected. See statement by the court where it supposes a case of blackmail, also statement in dissenting opinion as to the correct remedy for blackmail.

Neither the majority of the court, nor the minority, disputed the general rule that a person who could not be convicted of an offense may nevertheless, under certain circumstances, be convicted of conspiracy to commit the offense, the other conspirators

The facts are stated in the opinion. being capable of committing the completed offense. Nor did they dispute the soundness of the exceptions to the general rule. The disagreement was upon the applicability of the rule to the facts in case of a woman conspiring to transport herself in violation of the act of 1910. The decision being by the court of last resort, it must be regarded as settling the question in favor of the applicability of the general rule, notwithstanding the apparently irrefutable arguments against it produced by the dissenting members of the court. Mr. Justice Lamar advanced at least two points which were not effectively refuted by the majorFirst, he showed by the most convincing arguments that the general object of the statute is to protect the woman on the theory that she is the victim. The majority attempted to meet this proposition by supposing a case that would show that the theory of the law as stated is not based upon fact. Then they say that the general rule can be applied, "if we abandon the illusion that the woman always is the victim." The position taken by each side on this point can be seen clearly by making a comparison of the words, "whether with or without her consent," used in the statute, with the same words used in various state statutes, providing that any male person over a certain age who has sexual intercourse with a female person under a certain age, "with or without her consent," shall be guilty of the crime of rape. Could a girl under the age fixed by these statutes be convicted of conspiracy to commit rape upon herself, her codefendants being persons capable of committing the completed crime? "If we abandon the illusion that the woman always is the victim," that is, if we may abandon that illusion by supposing a case, and it takes no stretch of imagination to do so, that clearly demonstrates the fact that the woman is not always the victim, then she might be convicted of a conspiracy to violate one of these statutes. Mr. Justice Lamar would probably say that the courts should wait until the legislative power has "abandoned the illusion" by enacting a statute the theory of which is based upon fact. If, as may be the case, the majority meant that the illusion consists in supposing the theory of

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