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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 notwithstand. function of taxation and funds or property ing the objection of the city. held in its quasi private or proprietary right

The Worcester Case related to the supeis maintained in many cases. Worcester v. rior power of the legislature over the city's Worcester Consol. Street R. Co. 196 U. S. streets. The control of highways is prima539, 49 L. ed. 591, 25 Sup. Ct. Rep. 327; rily a state duty, to be taken in immediate Mt. Hope Cemetery v. Boston, 158 Mass. charge at will through its own agents. At509, 35 Am. St. Rep. 515, 33 N. E. 695; kin v. Kansas, 191 U. S. 207, 48 L. ed. 148, 1 McQuillin, Mun. Corp. $$ 230-232. The 24 Sup. Ct. Rep. 124; Barney v. Keokuk, 94 first is declared not entitled to "constitu- | U. S. 324, 24 L. ed. 224. As was said by tional protection," while the latter is so Chief Justice Gibson in O'Connor v. Pittssafeguarded and may not be diverted by burgh, 18 Pa. 187, 189: "To the commonlegislative act.

wealth here, as to the King in England, beAs demonstrating an equivalent power of longs the franchise of every highway as a the legislature of the state, this court held trustee for the public. In England in Demoville v. Davidson County, supra, a public road is called the King's highway; that the legislature could release individuals and though it is not usually called the comfrom liability to a county incurred by way monwealth's highway here, it is so in conof a privilege tax, assessed by the county templation of law, for it exists only by force under due legislative power, although the of the commonwealth's authority." demand had been reduced to judgment before It is to be observed, therefore, that in the act was passed that provided for the re- the case before us the legislature attempted lease.

to deal with a subject-matter within the In Worcester v. Worcester Consol. Street province, highways, and that its effort to R. Co. supra, the Supreme Court of the Unit- do so was by way of controlling that which ed States (affirming 182 Mass. 49, 64 N. E. had come into existence under its authority, 581) held that the legislature could modify funds produced by bonds to be redeemed by or terminate a contract, made by a munici- taxes. pality with a street railway company, and In either or both aspects, it was within so by an arbitrary order from the legis. 1 in pursuance of law, and every law imposlature that a particular portion of the fund ing 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 Nashville v. Towns, 5 Sneed, 186, it In National Bank v. Barber, 24 Kan. was held that an act providing that the 534, an act diverting to township purposes county revenues collected within the limits of certain towns the county tax arising from of a certain city in such county shall be certain property situated in such towns turned over to the treasurer of such city, was held to be in contravention of the con- to be expended therein, was in violation of stitutional provision that “no tax shall be the constitutional provision that "the genlevied except in pursuance of law, which eral assembly shall have power to authorize shall distinctly state the object of the the several counties and incorporated towns same; to which object only shall such tax in this state to impose taxes for county be applied."

and corporation purposes respectively in And by virtue of the same constitutional such manner as shall be prescribed by law." provision, it was held in Smith v. Haney, 73 The court stated that the county court levies Kan. 506, 85 Pac. 550, that an act permit- the taxes with a view of providing for the ting the diversion of unexpended balance of current expenses of the county, and if the general revenue tax to the building of a legislature has the power to divert the funds courthouse was unconstitutional, the build- thus levied to other and different purposes, ing of a courthouse being considered a spe- it has the power to bankrupt the county at cial or extraordinary matter, and not one pleasure. The court in STATE EX REL. BELL included in the purposes for which the gen- v. CUMMINGS observed that the constitueral tax levy is made.

tional provision just referred to is the only And under the provision of the Ohio Con- limitation on the control of the legislature stitution that "no tax shall be levied except '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 an

ticipated. sequent legislature from giving another direction to the expenditure of the fund.

(January 13, 1915.) State Bd. of Edu. V. Aberdeen, 56 Miss. 518; State ex rel. Police Comrs. v. County Ct. 34 E

RROR to the Court of Civil Appeals for Mo. 546, 571; State ex rel. Lott v. Brewer,

the Fifth Supreme Judicial District to 64 Ala. 287; Lucas v. Tippecanoe County, 44

review a judgment affirming a judgment of Ind. 524.

the District Court for Hill County in plainThe only limitation on the power of the tiff's favor in an action brought to recover legislature in that regard imposed by our damages for personal injuries alleged to Constitution, it seems, is that the legisla- have been caused by defendant's negligence. ture may not direct that the portion of the Reversed. revenue of a county collected within the lim

The facts are stated in the opinion. its of a municipal corporation be paid into

Messrs. N. H. Lassiter, Robert Harthe treasury of the latter for its sole use rison, and Morrow & Morrow, for plainand benefit. Nashville v. Towns, $ Sneed,

tiff in error: 186; Demoville v. Davidson County, supra;

The evidence fails to show any negligence, and see State ex rel. Board of Education v.

and defendant is not liable. Haben, 22 Wis. 660.

Gulf, C. & S. F. R. Co. v. Oakes, 94 Tex. But here the effort is not to divert from 157, 52 L.R.A. 293, 86 Am. St. Rep. 835, the county to a city, or even from the roads 58 S. W. 999; Galveston, H. & S. A. R. Co. of Hamilton county to another and different v. Currie, 100 Tex. 136, 10 L.R.A. (N.S.) 367, county purpose.

96 S. W. 1077; Terhune v. Brooklyn Heights Another phase of the defendants' insist. R. Co. 151 App. Div. 927, 136 N. Y. Supp. ence is that if it be conceded that power 1149; Smith v. Missouri & K. Teleph. Co. existed in the legislature to provide for å

113 Mo. App. 429, 87 S. W. 74; Teel v. Rio change in the roads to be constructed, yet, Bravo Oil Co. 47 Tex. Civ. App. 153, 104 S. as a condition of exercise, any change must W. 422; Bishop, Non-Contract Law, $ 829; be made through the local or county authori- Losee v. Buchanan, 51 N. Y. 476, 10 Am. ties, and that a discretion must be left to Rep. 623; Brown v. Collins, 53 N. H. 442, them, else that there would be a violation of 16 Am. Rep. 372; Veith v. Hope Salt & Coal the principle of local self-government.

Co. 51 W, V8. 96, 57 L.R.A. 410, 41 S. E. This aspect of the contention is, we con- | 187; Broom, Legal Maxims, 8th ed. pp. 365, sider, covered by what has been said above 367; Nitroglycerine Case (Parrott v. Wells) in respect of the power of the legislature to 15 Wall. 524, 21 L. ed. 206. 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. I negligence, and is estopped from so doing. wisdom of what was done by the legislature,

Note. — The liability of a railroad comthe court as a co-ordinate branch of the

pany for personal injuries to persons on state government is not concerned. Its adjoining property or highway by objects power cannot be denied.

thrown by passing trains is covered in the The chancellor upheld the act of 1913 as note to St. Louis, I. M. & S. R. Co. v. Jackconstitutional. His decree is affirmed, with son, 31 L.R.A. (N.S.) 981; and see also note remand for further proceedings.

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. TEXAS SUPREME COURT.

It will be observed that in TRINITY & B.

VALLEY R. Co, v. BLACKSHEAR, the railroad TRINITY & BRAZOS VALLEY RAILWAY company was relieved from liability upon COMPANY, Piff. in Err.,

the ground that it could not have antici

pated such an injury as a result of the conC. M. BLACKSHEAR.

dition complained of. The question of an

ticipation as an element of proximate cause (- Tex. —, 172 S. W. 544.)

is discussed in the note to Kreigh v. West

inghouse, C. K. & Co. 11 L.R.A. (N.S.) 684. Railroad injury by article hurled See further on this point, the opinion in from track liability.

Hubbard v. Bartholomew, 49 L.R.A.(N.S.) A railroad company is not liable for in-'443.

665;

Biggins v. Gulf, C. & S. F. R. Co. 102 It is a perfectly plain duty of a railway Tex, 417, 118 S. W. 125.

company to use due care in the maintenance Negligence cannot exist unless there is a of its track and in the operation of its trains duty to the person injured, and no duty to over its tracks, to the end that no injury the plaintiff rested upon the railway com- will accrue to adjoining landowners. This pany unless the conditions were such that a duty is due not only to the landowner himprudent person would have anticipated and self, but to every individual lawfully on guarded against the occurrence which caused property contiguous to its right of way. his injuries.

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.

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. Texas & P. R. Co. v. Reed, 88 Tex. 439, 31 321, 39 So. 1005; Turney v. Southern P. S. W. 1058; Galveston, H. & S. A. R. Co. Co. 44 Or. 280, 75 Pac. 144, 76 Pac. 1080; v. Washington, 94 Tex. 517, 63 S. W. 534; Louisville, N. A. & C. R. Co. v. Downey, 18 Texas & P. R. Co. v. Bigham, 90 Tex. 223, Ind. App. 140, 47 N. E. 494, 3 Am. Neg. Rep. 38 S. W. 162; Yellow Pine Oil Co. v. Noble, 638; Texarkana & Ft. S. R. Co. v. O'Kelle101 Tex. 127, 105 S. W. 318; Galveston, H. her, 21 Tex. Civ. App. 96, 51 S. W. 54; & S. A. R. Co. v. Washington, 25 Tex. Civ. Gulf, C. & S. F. R. Co. v. Johnson, Tex. App. 600, 63 S. W. 538; Texas & P. R. Co. Civ. App. 51 S. W. 531, 6 Am. Neg. Rep. v. Short, Tex. Civ. App. —, 58 S. W. 719; Illinois C. R. Co. v. Watson, 117 Ky. 56; Southern Constr. Co. v. Hinkle, Tex. 374, 78 S. W. 175; Black v. Michigan C. R. Civ. App. 89 S. W. 310; Western U. Co. 146 Mich. 568, 109 N. W. 1052; Howser Teleg. Co. v. Timmons, Tex. Civ. App. v. Cumberland & P. R. Co. 80 Md. 146, 27 125 S. W. 379; Southern Teleg. & Teleph. L.R.A. 154, 45 Am. St. Rep. 332, 30 Atl. Co. v. Thompson, Tex. Civ. App. —, 157 906. S. W. 1186; St. Louis Southern R. Co. v. Pope, 98 Tex. 535, 86 S. W. 5; St. Louis, S. Brown, Ch. J., delivered the opinion of F. & T. R. Co. v. Cason, Tex, Civ. App. the court: - 129 S. W. 397.

The plaintiff in error constructed its road Messrs. H. B. Porter, Walter Collins, through a farm in Hill county (the name of Shurtleff & Cummings, W. F. Ramsey, the owner is not important), and was and C. L. Black, for defendant in error: operating its trains thereon at the time the

It is not necessary, in a case of negligence, injury complained of occurred. There is to show that the defendant ought necessarily evidence from which a jury might conclude to have anticipated the very occurrence, ac- that within the limits of the said farm the cident, or injury made the basis of the suit. spikes which held the rails to the ties of

Texas & P. R. Co. v. Bigham, 90 Tex. 223, the railroad track were in many instances 38 S. W. 162; Jackson v. Galveston, H. & S. loose, and in some instances they were lying A. R. Co. 90 Tex. 372, 38 S. W. 745, 1 Am. upon the ground. Neg. Rep. 359; Washington v. Missouri, K. Defendant in error, Blackshear, was em& T. R. Co. 90 Tex. 314, 38 S. W. 764, 1 Am. ployed by the owner of the farm as a hand, Neg. Rep. 366; Vicksburg, S. & P. R. Co. and was engaged in plowing at the time at v. Jackson, Tex. Civ. App. -, 133 S. W. a point near to the railroad track. A 925; El Paso & N. W. R. Co. v. McComus, freight train upon the railroad track passed 36 Tex. Civ. App. 170, 81 S. W. 760; Trinity by him at unusual rapid speed, and just as County Lumber Co. v. Denham, 85 Tex. 56, it passed something struck Blackshear in 19 S. W. 1012.

the side and caused the injury complained of. Blackshear was at the time about 50 ; the man at the gate could not have been anfeet from the railroad track. From the in-ticipated; therefore the injury to him could jury received in his side Blackshear was con- not have been anticipated as a result of the fined to his bed and room for about two negligence. In this case it was negligence to. weeks, and, when he was able to do so, he permit spikes to lie upon the track, and if went back to the place at which he was Blackshear had been lawfully on or near the plowing and where he was standing at the track in discharge of a duty, and had retime he received the blow, and he found near ceived his injury, there might be liability. there on the ground an iron spike such as In support of the case cited, we add the folwas 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 N. W. 812; American Brewing Asso. v. Talcaused his injury.

bot, 141 Mo. 674, 64 Am. St. Rep. 548, 42 S. The spike being negligently permitted to W. 679, 3 Labatt, Mast. & S. $$ 1042-1045. be upon the track of the railroad, or loose This doctrine is well stated in vol. 3, in the ties, the railroad company would be Labatt on Master & Servant, 2d ed. $ 1042, responsible for injury proximately caused by in the following language: such negligence, which, in the exercise of “The negative form of the doctrine under reasonable diligence, the railroad company discussion may be stated in its most general might have foreseen might result therefrom. form as follows: "A person is not Texas & P. R. Co. v. Bigham, 90 Tex. 223, answerable at law for a failure to avert or 38 S. W. 162.

avoid peril that could not have been foreseen In the case cited, Chief Justice Gaines, in by one in like circumstances, and in the his usual thorough manner, examined and exercise of such care as would be character. discussed this question, and announced the istic of a prudent person so situated. In rule to be: “But we are not prepared to other words, it is not negligence to fail to hold that in no case can the original cause provide against an accident of such a nature of the injury be deemed the proximate cause, that nobody could have foreseen it, and that where an independent and disconnected no prudence could have anticipated the agency has supervened and brought about need of guarding against it. After an acthe result. The fact of the intervention of cident has occurred it may be easy to see an independent agency, it occurs to us, what would have prevented it; but that of bears more directly upon the question itself does not prove nor tend to prove tha“ whether the injury ought, under all the cir- reasonable or ordinary care would have ancumstances, to have been foreseen; and, ticipated and provided against it.” 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 this case, as such occurrence would be so question whether a reasonably prudent man, rare that it could not be anticipated. in view of all the facts, would have antici- We therefore conclude that, admitting the pated the result,-not necessarily the pre- truth of the statements made by the witcise actual injury, but some like injury, pro- nesses, the occurrence was of such a nature duced by similar intervening agencies.” that it could not have been anticipated and

In the Bigham Case the railroad company guarded against. Therefore the railroad was negligent in not providing a safe latch company was not guilty of negligence, and to the gate of a lot in which cattle were is not liable for the injury which was placed, and was held liable for the injury to caused. It is therefore ordered that the cattle which 'broke through the gate and judgment of the District Court and the escaped, but was held not to be liable for in- Court of Civil Appeals be reversed, and that jury to a man who was attempting to pre judgment be here entered that the defendvent the escape by guarding the gate. The ant in error, Blackshear, take nothing by his. escape of the cattle should have been fore- suit, and that the plaintiff in error recover seen as a consequence, but the presence of ' against him all costs of both courts.

v.

UNITED STATES SUPREME COURT. I purposes of prostitution, contrary to the

I white slave act of June 25, 1910.
UNITED STATES, Piff. in Err.,

(Mr. Justice Lamar and Mr. Justice Day CLARA HOLTE.

dissent.) (236 U. S. 140, 59 L. ed. —, 35 Sup. Ct.

(February 1, 1915.) Rep. 271.)

E

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Conspiracy against United States

ed States for the Eastern District of white slave traffic guilt of woman. Wisconsin to review a judgment sustain1. A woman may conspire to commit an ing a demurrer to an indictment charging 'offense against the United States" within the meaning of the provisions of the Crimi- defendant with conspiring to cause her own nal Code of March 4, 1909, § 37, although transportation in interstate commerce for the object of the conspiracy is her own purposes of prostitution. Reversed. transportation in interstate commerce for The facts are stated in the opinion. Note. Indictment, of woman trans-, being capable of committing the completed

ported in violation of the white slave offense. Nor did they dispute the soundtraffic act, for conspiracy to violate ness of the exceptions to the general rule. the laws of the United States.

The disagreement was upon the applicabil

ity of the rule to the facts in case of a As to the possible bearing of the opin- woman conspiring to transport herself in ion in UNITED STATES V. HOLTE, on the violation of the act of 1910. The decision question of indicting, under the white slave being by the court of last resort, it must traffic act, the woman transported in viola- be regarded as settling the question in favor tion thereof, see citation of the case in note of the applicability of the general rule, in L.R.A.1915A, 862, in which the construc- notwithstanding the apparently irrefutable tion, applicability, and effect of the act was arguments against it produced by the disconsidered.

senting members of the court. Mr. Justice On page 866 of the note to which refer- Lamar advanced at least two points which ence has just been made, United States v. were not effectively refuted by the majorDiggs and United States v. Caminetti, unity. First, he showed by the most conreported cases, were cited to the proposition vincing arguments that the general object that transporting a female person in inter- of the statute is to protect the woman on state commerce for the purpose of having the theory that she is the victim. The maillicit sexual intercourse with her is an jority attempted to meet this proposition indictable offense under the statute. Both by supposing a case that would show that cases have now been affirmed in 220 Fed. the theory of the law as stated is not based 545, on the point to which they were there upon fact. Then they say that the general cited. It is also held to be immaterial that rule can be applied, "if we abandon the defendant did not actually purchase the illusion that the woman always is the victransportation, it being understood between tim." The position taken by each side on him and the person who did purchase it this point can be seen clearly by making a that the defendant would reimburse him. comparison of the words, "whether with or

The holding in UNITED STATES V. HOLTE, without her consent,” used in the statute, on the applicability of the general rule, with the same words used in various state that one who could not be indicted for an statutes, providing that any male person offense may be indicted for a conspiracy to over a certain age who has sexual inter: commit the offense, to a female person who course with a female person under a cerassists in transporting herself in violation tain age, “with or without her consent,” of the act of 1910, appears to have resulted shall be guilty of the crime of rape. Could partly from a desire on the part of the a girl under the age fixed by these statutes majority to put an end to an evil which be convicted of conspiracy to commit rape has arisen out of the broad constri ion upon herself, her codefendants being perheretofore given to the statute, i. e., black- sons capable of committing the completed mail. The almost unlimited scope given to crime? "If we abandon the illusion that the operation of the statute (see note in the woman always is the victim,” that is, L.R.A.1915A, 862) furnished a wide field if we may abandon that illusion by supfor the work of the blackmailer, and per- posing a case, and it takes no stretch of haps the opportunity was not neglected. imagination to do so, that clearly demonSee statement by the court where it sup strates the fact that the woman is not poses a case of blackmail, also statement in always the victim, then she might be condissenting opinion as to the correct remedy victed of a conspiracy to violate one of these for blackmail.

statutes. Mr. Justice Lamar would probNeither the majority of the court, nor ably say that the courts should wait until the minority, disputed the general rule that the legislative power has "abandoned the a person who could not be convicted of an illusion” by enacting a statute the theory offense may nevertheless, under certain cir- of which is based upon fact. If, as may be cumstances, be convicted of conspiracy to the case, the majority meant that the illucommit the offense, the other conspirators sion consists in supposing the theory of

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