(116 A.) [7] The defendants had accepted the provisions of Laws 1911, c. 163, at the time this accident happened. Consequently the duty, and the only duty, the law imposed on them for the plaintiff's benefit in so far as this action is concerned was to notify him of all the dangers of the employment of which they either knew, or would have known if they had used ordinary care for his safety, and of which he neither knew nor was in fault for not knowing. In other words, it is an answer to this action to show that the plaintiff either knew or ought to have known that the lickerin was running when he attempted to remove the lapfeeder, and fully appreciated the risk incident thereto. Bergeron v. Fellows & Son (N. H.) 116 Atl. 440. [8, 9] The plaintiff testified that he thought the lickerin had stopped when he attempted to remove the lapfeeder. Consequently the test to determine whether he assumed the risk of his injury is to inquire whether the ordinary man in his situation and with his knowledge, and means of knowledge, would have known that the lickerin was running. The evidence relevant to that issue tends to prove that a card is a complicated machine, that the plaintiff was without experience, and his only knowledge as to how long the lickerin would run was what he had acquired the previous three days, and that in every case in which he had seen a card taken down the lickerin was stopped when the lapfeeder was removed. It is obvious that it can be found from this evidence that the plaintiff was not in fault for not knowing that the lickerin was running when he attempted to remove the lapfeeder. Defendants' exceptions overruled. (80 N. H. 280) there being no law against presenting one as a candidate for more than one party, and their names were properly placed on the ballot in both party columns, and though the call for the committees was for a "Citizens' caucus," the caucus signed by the chairmen of the party town clerk would have erred had he placed them under the heading, "Citizens," as he did err in placing the names of nominees of the "Independent" party on the ballot; there being no recognized "Citizens'" or "Independent" party in the state or in such town. 2. Elections 125-A caucus for nomination of candidates for town officers may be legally held less than 28 days before the annual election; "in all other cases"; "all other nominations." The amendment by Laws 1905, c. 112, of Laws 1897, c. 78, § 4, so as to provide times for holding caucuses in specified cases, and for 28 days before election "in all other cases," relates to and is founded on provisions as to biennial elections, as to which such section 4, as originally enacted, provided only for forms tains to section 6, providing times for filing of nomination certificates, and it evidently perwith the secretary of state nominations at caucuses held pursuant to the amendment in each case five days before nominations must be filed under that section for the same class of officers, and section 8, by which towns are authorized to adopt the biennial election law (Laws 1897, c. 78), so far as applicable, provides for filing nominations six days before a 6 should not apply thereto, so that the words town election, and herein provides that section "all other nominations," used in the latter section with reference to the limitation of 33 days for filing nominations, do not include officers voted for in other than biennial elections, and fixing time for caucuses is apparently to make certain that certificates can be seasonably filed, and, if it was necessary to legislate as to town caucuses, the rule applying to biennial elections would have required them to be held 11 days instead of 28 days prior to the election, but no penalty is attached to failure to hold a v. late caucus, and, unless an objection is made on the ground that a caucus is held too late, the secretary of state is required under secCoos. tion 9 to accept a certificate of nomination duly filed, and hence the general provision in the amendment of 1905 to section 4 for caucuses 28 days before election "in all other cases" does not include a town caucus, and such a caucus may be legally held less than that time before the annual election. ATTORNEY GENERAL ex rel. FOREN Jan. 3, 1922.) 1. Elections 168(4)-Names of nominees of a joint party caucus called as a "citizens' caucus" in a town adopting biennial election law held properly placed on ballots in both party columns, and not under heading, "Citizens." Where, under section 8 of the Laws of 1897, c. 78, relating to biennial elections, a town adopted such act for its annual elections so far as applicable, and not Laws 1905, c. 93, so that the provisions of the latter act for calling caucuses did not apply, and the Democratic and Republican parties in such town as the only parties authorized under section 2 of the Act of 1897 by votes for Governor at the preceding election, held a joint caucus, and nominated the same candidates, each nominee would be the candidate of each party and his name placed on the ticket as a candidate thereof. 3. Statutes 183-Subject within letter of law, but plainly not within intention of Leg.. islature, is not within meaning thereof. Though a subject is within the letter of a law, it is not within its meaning where it is plainly not within the intention of the Legislature. 4. Elections 153-Questions as to nominations for town elections decided by board of ballot commissioners if it has jurisdiction; otherwise, by the town clerk. If the jurisdiction of the board of ballot commissioners provided for by Law of 1897, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. Quo warranto 11-Proper form of ac tion for trial of title to office but not to correct errors of law. ocratic town committees. When the meeting opened, it was stated that it was called as a joint caucus of both parties. After discussion as to whether the two parties should meet in separate rooms, it was agreed without dissent to go ahead together, the meeting voting unanimously: "That all candidates elected by the caucus, have their names printed on both Republican and Democratic ballots." A list of candidates was chosen and certiAn information in the nature of quo war-fied to the town clerk with the vote of the ranto is the appropriate form of action for the trial of title to office, but not for the exercise of the court's superintending jurisdiction for the correction of errors of law. 6. Quo warranto 53-Amendment of proceeding to permit review of error in making up ballot not granted where defendant received most votes. Where nominees of a "Citizens' caucus," whose names were placed on the ballot in the Republican and Democratic columns, received more votes than an Independent candidate, an amendment of an erroneous proceeding in the nature of quo warranto will not be granted to permit a review of the clerk's action in making up the ballot, even if it were probable that such action would be found erroneous so as to affect the result of the election. caucus as to the printing of the names. The same day a caucus of "the Independent voters of Gorham" was held, at which a list of candidates was adopted which, with the exception of those who declined the nomination, was certified to the town clerk and printed on the ballot under the heading, "Independent." No votes had at any previous election been cast at Gorham under the name Independent party. Before election a committee chosen at the Independent caucus protested in writing against printing in two columns the names of the candidates chosen at the other caucus. No objection was made because of the date of holding the caucus. At the meeting the ballot was fully explain ed to the voters, none of whom was deceived Transferred from Superior Court, Coos or misled by its form. The relator Foren County; Sawyer, Judge. Information in the nature of quo warranto by the Attorney General, on the relation of William E. Foren, against Woodbury B. Gates and others. Heard and transferred from the superior court. Petition dismissed. March 19, 1915, the town adopted the provisions of chapter 78, Laws 1897, but has not adopted chapter 93, Laws 1905. The ballot as prepared by the town clerk and used at the meeting contained four columns, three of which were headed, respectively, "Republican," "Democratic," "Independent." The Republican and Democratic candidates for the several offices as printed on the ballot were the same, and three of them also appeared as candidates in the Independent column. The name of the relator, Foren, appeared in the Independent column as a candidate for selectman for three years. As to all other offices except library trustee and water commissioner, the Independent column contained no nominations or presented the names contained in the other columns. In former years it had been the custom for the Republican and Democratic voters of the town to meet separately in caucus at the same time and by conference to agree on the same persons as candidates for the several town offices. February 21, 1921, a call for a caucus to be held February 24 was posted. This was headed, "Citizens' Caucus," and was signed by the chairmen of the Republican and Dem had 139 votes for selectman for three years. His opponent received 170 votes in the Republican column, 128 in the Democratic, and being written in. All the other candidates two votes in the blank column; his name received a majority of the votes cast. Upon in the Republican and Democratic columns the ground that the relator showed no title to the office of selectman, the court ordered the bill dismissed, unless as matter of law the whole election was void. Heard and transferred by Sawyer, J. Jesse F. Libby, of Gorham, for plaintiff. Alfred R. Evans, of Gorham, and Drew, Shurtleff, Oakes & Hinkley, of Lancaster (Ere C. Oakes, of Lancaster, orally), for defendants. PARSONS, C. J. [1] The relator objects to the legality of the ballots used at the last annual election in Gorham upon two grounds: (1) Because the candidates agreed upon at the so-called Citizens' caucus were printed in two columns, one headed Republican and the other Democratic, instead of in one column which should have been headed, as he claims, Citizens'; and (2) because the caucus was held less than 28 days before election. The town had adopted the provisions of chapter 78, Laws of 1897, for its annual elections. The procedure prescribed for biennial elections by that statute and its amendments should have been followed at the election so far as they were applicable. (116 A.) Laws 1897, c. 78, § 8. Under that law par- | ment to section 4, c. 78, Laws 1897, adopted ties casting at least 3 per centum of the en- in 1905, chapter 112. The ballot law of 1891 tire vote of the state given in for Governor and 1897 substituted an official ballot for at the preceding biennial election are au- the ballots hitherto privately prepared. For thorized to choose candidates by a caucus biennial elections the duty of preparing this of legal voters. Id., § 2. Whether this pro- ballot was imposed upon the secretary of vision is applied literally, or the total vote state. The preparations of such ballot for upon which the percentage is reckoned is re-use throughout the state involves much labor stricted to Gorham, the Democratic and Re- and detail and requires considerable time. publican parties of the town are by the stat- Accordingly, it was provided by section 6 of ute authorized to select candidates for town the Laws of 1897: officers by a caucus of legal voters. Prior to the holding of the caucuses in Gorham, February 24, 1921, there was no recognized "Citizens' " or "Independent" party in the state, or in Gorham. Neither party cast any votes for Governor at the preceding biennial election, or for any candidate at any election in Gorham. Consequently the town clerk would have erred had he printed the nominees of the joint Republican and Democratic caucus under the heading "Citizens' " as he did err in placing the names of the nominees of the "Independent" party upon the ballot. As the town had not adopted chapter 93, Laws 1905, the provisions of that act as to calling town caucuses and the procedure thereat are inapplicable. The caucus called on reasonable notice was necessarily authorized to establish its own rules of procedure. Although the posted notice of the meeting was headed, "Citizens' Caucus," the call was signed by the chairmen of the town committees of both parties. When the meeting opened, it was stated that it was called as a joint caucus of the two parties. Previously it had been the custom of the two parties to meet in different rooms at the same time and by conference to agree on the same persons as candidates for the several offices. Under such procedure, each nominee would be the candidate of each party, and his name would necessarily be placed on the ticket as a candidate of each party, for there is no rule of law which prohibits one from being presented as a candidate by more than one party. On this occasion, the voters of the two parties so assembled without dissent agreed to go ahead together. It was then unanimously voted: "Certificates of nomination and nomination papers shall be filed with the secretary of state as follows: Thirty days prior to the day of election in case of candidates to be voted for by the voters of the entire state, sixteen days in case of nominations made by wards and cities, and twenty-three days in case of all other nominations." "All other officers," as written, plainly refers to officers voted for at biennial elections, because no others go upon the ballot. There could be no necessity for allowing town or city clerks so much time in which to make up the ballot for local elections. Accordingly, in section 8, by which towns were authorized to adopt the provisions of the act "so far as they are applicable to town that elections," it is provided "The time for filing certificates of nomination and nomination papers shall be at least six days prior to the day of election." In other words, the act provides that section 6 should not apply to town elections as to the filing of nominations and the words "all other nominations," used in the section, do not include officers to be voted for in other than biennial meetings. Chapter 112, Laws 1905, amended section 4, c. 78, Laws of 1897, which when enacted contained no reference to caucuses to read as follows: "Sec. 4. Certificates of nominations made in accordance with the provisions of sections 2 and 3 of this act, shall contain the name and residence of each candidate, the office for which he is nominated, and the political principles or party he represents, and shall be signed by the chairman and clerk of the caucus or con "That all candidates elected by the caucus have their names printed on both the Republi-vention, and when practicable such certificates can and Democratic ballots." Candidates were then chosen and their names with the condition attached to their selection duly certified to the town clerk. From these facts it could be found that each party in caucus assembled chose the several candidates as nominees of the party, and hence their names were properly placed on the ballot. [2] The relator's second objection, if valid, is also decisive against his right to have his name placed on the ballot. The contention that the caucuses should have been held 28 days before election is based upon an amend of nomination shall be signed by each candidate, but the absence of the signature of a candidate shall not invalidate a certificate of nomination. Any caucus or convention wherein nominations are made of candidates to be voted for by the voters of the entire state shall be held, at least, thirty-five days prior to the day of election; wherein nominations are made of candidates to be voted for by the voters of cities and wards, at least, twenty-one days prior to the day of election, and in all other cases, at least twenty-eight days prior to the day of election." [3] It is argued that "in all other cases" nominees for town officers are included. If they are within the letter of the law, it is very plain they are not within the intention, especially if no objection is made. But if the amendment is read in connection with section 6, providing the times for filing nominations with the secretary of state, the matter added to section 4 in 1905 is readily seen to pertain to that section rather than to section 4, which originally related only to the form of certificates of nominations. See sec tion 9, Id. It appears that the local construction of the statute had been against the relator's contention as to the time of holding the caucuses for the annual town meeting. It is thought such has been the general understanding. But regardless of this consideration, which is doubtless of little weight and might not be sustained upon thorough inquiry, it is clear it was not intended in 1905 to require caucuses for nominees for offices to be filled at annual town meetings to be held 28 days prior to the meeting. The objections of the relator are without foundation. [4] These questions have been considered although not actually presented by the case. A board of ballot commissioners is provided for final decision of "all questions arising in case of nominations." Laws 1897, c. 78, § 9. Whether their jurisdiction extends to questions arising upon town elections may not be entirely clear. If it does, the relator's objection or that of the "Independent party of Gorham" should have been made to them. If it does not, the duty of making up the ballot imposed upon the town clerk carries with it authority to decide all questions of law and fact involved subject to the superintending power of the court. A comparison of the new matter added in 1905 with section 6 shows that the date assigned for the caucus for each class of officers is in each instance five days greater than that within which nomination papers must be filed for the same class of officers. The amendment of 1905 could have been written only by one who had the provisions of section 6 in mind. In that section, as has already been seen, "in case of all other nominations" does not by the terms of chapter 78 include officers elected at other than biennial meetings. It is not probable the Leg- [5, 6] An information in the nature of a islature in the substantially identical ex- quo warranto is the form of action appropression "in all other cases," in the amend-priate for the trial of title to office. It is ing act, intended to include such officers. not the proper form of action for the exerThe amendment related to and is founded upon provisions relating to biennial elections and which were expressly excluded from application to annual elections. No reason appears for giving more extensive application to the amendment than to the matter to which it is an addition. The purpose of defining the time within which caucuses should be held appears to have been to make certain that the certificates of caucus action could be seasonably filed as required by law. If it had been thought necessary to legislate as to town caucuses, the rule applied to caucuses for biennial elections would have required them to be held 11 instead of 28 days prior to election. It is to be noted that no penalty is attached to a failure to hold a caucus the required number of days before election. The secretary of state is not required or authorized to refuse to accept a certificate of nomination duly filed upon the ground that the caucus was held too late, cise of the superintending jurisdiction for (121 Me. 216) WARDWELL'S CASE. (116 A.) (Supreme Judicial Court of Maine. March 25, 1922.) 1. Master and servant 405 (4)-Finding of compensable injury sustained. Finding of injury to knee by accident arising out of and in the course of the employment, within Workmen's Compensation Act, held sustained by the evidence. 2. Master and servant Company, the employer. There was an award of compensation and the employer appeals. Affirmed. Argued before CORNISH, C. J.; and SPEAR, HANSON, MORRILL, and WILSON, JJ. Edward C. Payson, of Rockland, for plain tiff. Andrews, Nelson & Gardiner, of Augusta, for defendant. 417(7)-Finding on evidence in compensation case conclusive. CORNISH, C. J. Appeal from the decision In case of controverted facts tending to of the chairman of the Industrial Accident excuse failure to notify master of injury with- Commission awarding the claimant compenin 30 days, under the Workmen's Compensa-sation. The principal contention of the retion Act, §§ 17-20, it is the province of the spondents is that written notice of the accichairman of the Industrial Accident Commis-dent as required by the Workmen's Compension to determine those facts like any other sation Act (P. L. 1919, c. 238, §§ 17 to 20) was issue of fact before him, and his finding is final provided there is some competent evi- not given to the employer within the required dence to support it, but on facts undisputed, time, and therefore these proceedings for or on facts found by the chairman, the question compensation cannot be maintained. whether proper written notice has been given Section 17 provides: to the employer is one of law. "No proceedings for compensation for an injury under this act shall be maintained unless a notice of the accident shall have been given to the employer within thirty days after the happening thereof." Where servant's injury first seemed comparatively insignificant, and then pneumonia set in, and later an ugly abscess developed at the The accident in this case happened on Febplace of the injury, with the consequent suf-ruary 17, 1921. The written notice to the fering, weakness, and natural inability or dis- employer was given on April 8, 1921, 20 days inclination to give thought to business matters, (after the expiration of the statutory period. the Industrial Accident Commission did not err This is admitted. But section 20 provides in awarding compensation, though notice of among other things: injury was not served on the employer until 50 days after the accident, instead of 30 days, as required by Workmen's Compensation Act, §§ 17-20; the situation being within the meaning of term "unforeseen cause" excusing delay, which may be defined as one which could not have been reasonably foreseen as likely to arise or occur, and yet is of such a nature as It is not shown that the employer or its to have substantially interfered with the giv-agent had knowledge of the injury, apart ing of the notice contemplated by the statute from this notice of April 8th, and therefore which is remedial, and should be applied in a the contention is narrowed to this, whether broad and reasonable way. under the facts of this case the failure to "Want of notice shall not be a bar to proceedings under this act, if it be shown that the employer or his agent had knowledge of the injury, or that failure to give such notice was due to accident, mistake or unforeseen cause." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Unfore- give the notice was due to "accident, mistake, seen Cause.] or unforeseen cause." The facts connected with the accident and the events subsequent thereto may be summarized as follows: On Thursday, February 17th, the claimant, while in the employ of the Camden Anchor-Rockland Machine Company, struck his left knee with a sledge hammer weighing between 6 and 10 pounds, while "dumping out a flask," a mechanical process in the foundry. The blow caused a discoloration and a slight abrasion of the skin but the injury was not regarded by him as serious. He continued at work on Friday, on On Appeal from Supreme Judicial Court, Saturday forenoon, and on Monday, during Knox County, at Law. which time he was suffering some pain, and Proceeding by George A. Wardwell under was treating the knee when at home with the Workmen's Compensation Act to obtain liniment. On Monday, although still at work, compensation for personal injuries, opposed he felt sick in other ways, as he expresses it, by the Camden Anchor-Rockland Machine and on reaching home that night went at For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |