Imágenes de páginas



show that the plaintiff was to some extent an parties were in fault but small damages should Invalld before she was injured, and that the be awarded. pain and disability she had suffered since In Wilson v. Hicks, 26 L. J. Exch. N. S. 242, should in part at least be attributed to previous however, which was an action on a charter parIll health. Robinson v. Waupaca, 77 Wis. 544, ty for not loading a cargo, the captain of the 46 N, W. 809.

vessel having been directed to go to a desig. And a verdict for the plaintif for $700 in an nated place, but as no cargo could be obtained action for a personal Injury to a child not quite there, he was requested to go back to the place two months old, alleged to have caused her to he came from or elsewhere with the hope of obbecome deaf and dumb, will not be set aside as taining a cargo, which he declined to do, and inadequate where her parents were both mutes, remained inactive until the time for loading and the testimony was voluminous and conflict. had elapsed, the amount of freight lost being ing, consisting largely of that of experts, and £2,750, a verdict for £500 was set aside as too there was a conflict as to whether the injury low, notwithstanding a direction to the Jury caused her condition, or as to whether it was that if they deemed the master's conduct un. hereditary. Davis v. Central R. Co. 60 Ga. 329. reasonable they might diminish the damages on

So, a verdict for the plaintiff in an action that account on the theory that the jury had to recover for a year's service for a sum less acted unreasonably and arbitrarlly. than full wages will not be disturbed where And a verdict for one dollar in an action there was proof of misconduct, but that the for damages for an alleged nuisance will be set plaintiff was not discharged, and it does not ap- aside as not supported by the evidence, where it pear for what length of time of service the ver- appears that the plaintiffs were largely and serl. diet had been given, as the jury may have taken ously damaged by water flowing on to and over the misconduct into the estimate under the their land, and that a large part of the water quantum meruit. Scott v. Baldwicke, 2 MIII, was caused to flow there by the acts of the de Const. 410.

fendants, though a part of the flow was other. And a new trial on writ of Inquiry on a cove-wise caused, where there was nothing to war. pant to pay a certain sum, and a grant that rant a finding that all of the damage was done upon default it should be lawful for the cove by the water coming from the other source. Dantee to enter and take profits, will not be Learned v. Castle, 78 Cal. 454, 21 Pac. 11, 18 granted because the damages are too small, Pac. 872. where entry and taking profits are pleaded, un

VI. Who entitled to relief. less there was some trick or contrivance in the Anonymous, 2 Salk. 647.

As a general rule, where the jury gives the Add a new trial will not be granted on the plaintif less than he is entitled to ground that the small amount of damages shows upon the finding of the issues, it is an error of that the jury must bave come to a compromise, which the plaintiff alone can complain, and 11 In an action against the defendant for excavato be submits to the verdict, the defendant cannot ing under his own house and removing his own

be heard to Insist that it shall be set aside be soil, whereby the plaintiff's house was deprived

cause it is unjust to the plaintiff. Woltv of support and sank, unless from the circum. Goodhue F. Ins. Co. 43 Barb. 400; Lamberty stances of the case it is evident that there was

v. Roberts, 31 N. Y. S. R. 148, 9 N. Y. Supp. a total refusal on the part of the jurors to dis- 607. charge their duty, and the verdict is necessar

And a verdict in an action for damages id lly wholly inconsistent, and it will be sustained favor of the plaintiff will not be set aside at the where there was some color for the view that Instance of the defendant because it was for some of the injury might have arisen from the

one half of the amount that the plaintiff claimed plaintiff's house being bullt upon a foundation

was due him, though the evidence as to the that gave way. Richards v. Rose, 24 Eng. L.

amount due was uncontradicted. Alderman v. & Eq. 406, 9 Exch. 218, 23 L. J. Exch. N. S. 3, Cox, 74 Mo. 78. 17 Jur. 1036, 2 C. L. Rep. 311.

A party against whom a verdict is rendered So, a nominal verdict for the plaintiff in an Is not entitled to a new trial upon the ground action against a ballee for injury to and de- that the other party ought to have recovered struction of goods will not be set aside on the more or nothing. Wright v. Griffey, 44 m. ground that the damage must have been more, App. 115. or there was no cause of action, where it is And a new trial will not be granted at the possible to reconclle the verdict as the result instance of the defendant where the plaintif of an opinion that although the negligence or recovered apparently less, rather than more, misconduct of the plaintif had not occasioned than the evidence warranted. Smith v. Lee, the injury, it had in some way contributed to 82 Ga. 674, 10 S. E. 201. It. Mostyn v. Coles, 7 Hurlst. & N. 872, 31 L. And a verdict in an action upon an insurance J. Exch. N. S. 151, 10 Week. Rep. 355.

policy in which it was claimed that the insured And a new trial will not be granted on the set Ore to the property himself, and that he ground that the verdict was perverse, in an ac- was guilty of fraud and perjury in preparing tion for negligently driving against and killing the preliminary proofs, will not be set aside on the plaintiff's borse proved to be worth £30, be

motion of the defendant because it is for less cause the jury gave a verdict for only £15, than the amount of the policy, upon the theory though the court was of the opinion that the that the fact that it was less furnishes evidence damages were too small, where there was strong leged, where the motion for a new trial virtually

that he was guilty of the fraud and perjury al. evidence to negative negligence on the part of the defendant, and some evidence of negligence whole amount insured it could not be disturbed.

concedes that if the verdict had been for the on the part of the plaintik. Hawkins v. Alder, Wolf v. Goodhue F. Ins. Co. 43 Barb. 400. 18 C. B. 640.

And the allowance of a counterclaim asserted So, in Flanders v. Meath, 27 Ga. 358, the by the defendant where the court had withdrawn murt refused to set aside a verdict for the plain- it from the consideration of the jury is not a tid for $50 in an action for personal Injuries ground for a new trial on motion of the defend. received by being run over by a dray, where ant; the plaintip is the only one who can com. there was evidence of negligence on the part of plain. Wood v. Belden, 54 N. Y. 658. the plaintif, upon the theory that where both It has been held, however, that a verdict for

a much less sum, in an action on contract in ground of inadequacy may be properly made to which the plaintiff was entitled to recover his the judge who tried the cause. riatz v. Ca whole claim or nothing, will be deemed to show hoes, 8 Abb. N. C. 392. that the jury, in determining the case, either And the trial judge may entertain a motion wholly disregarded the evidence, or misappre- for a new trial on the ground of inadequacy of hended its effect, or overlooked some important the verdict upon bis minutes, and need uot com. fact, or necessarily found some fact in favor of pel the plaintiff to take the more formal prodefendant, which is wholly inconsistent with a ceeding of moving at special term upon a case verdict for any amount in favor of the plain. | made at the first instance for that purpose. tiff, and may therefore be set aside, even on McDonald v. Walter, 40 N. Y. 551; McKeever motion of the defendant. Powers v. Gouraud, v. Weyer, 11 N. Y. Week. Dig. 258; Emmons v. 19 Misc. 268, 44 N. Y. Supp. 249.

Sheldon, 26 Wis. 648. But the defendant cannot complain because McDonald v. Walter, 40 N. Y. 551, supra, ap the plaintif did not recover against him as large parently overrules Moore v. Wood, 19 low. Pr. a verdict as he was entitled to unless tne 405, holding that N. Y. Code, § 264, does amount of the verdict shows that the jury in de- not permit a motion for a new trial upon the termining the case either wholly disregarded ground that the damages were inadequate to be the evidence, or misapprehended its effect, or heard upon the justice's minutes, the only rem. overlooked some Important fact, or must bare edy of the plaintiff in such a case being by a Decessarily found some fact in favor of tbe de- motion for a new trial upon a case. tendant which is wholly inconsistent with a ver- But a motion for a new trial for inadequacy dlet for any amount in favor of the plaintiff ; of damages must be made either at special term and a verdict for the plaintif will not be set or upon the minutes, the proceeding to obtain aside on such an application upon the ground a new trial being analogous to that to obtain that If plaintif was entitled to recover at all one for excessive damages. Carpenter v. Beare, be should have recovered more, where a coun- 4 Hun, 509. terclaim was pleaded and evidence given to And where a party in whose favor a verdict support it, and the jury was charged that if was rendered depends upon the circumstance they should find in favor of the plaintiff on such that it was too small, he may rely upon the pleading they sbould deduct the amount they ground that the verdict was not sustained by found him entitled to from the amount which the evidence on a motion for a new trial. Ben the plaintiff would otherwise be entitled to. nett v. Hobro, 72 Cal. 17 13 Pac. 473; Du Harton v. Bloom, 1 Jones & S. 115.

Brutz v. Jessup, 54 Cal. 118; Emmons v. Shel. So, the court possesses the power at common don, 26 Wis. 648; Gartner v. Saxon, 19 R. I. law to grant a new trial on its own motion, | 461, 36 Atl. 1132. and the power is not limited to cases where the And the ground on which the courts set aside error is that of the court, or where there is verdicts and grant new trials for the reason misconduct of the jury, but extends to an award that the damages are inadequate under stat. of insufficient damages in an action for personal utes similar to the Minnesota act is that such injury. Fort Wayne & B. I. R. Co. V. Wayne verdicts should be treated as not supported or Circuit Judge, 110 Mich. 173, 68 N. W. 115. Justified by the evidence. Henderson v. St. Paul

A plaintiff not entitled to recover at all, how. & D. R. Co. 52 Ming. 479, 55 N. W. 53. ever, cannot have a verdict in his favor set It has been held, however, that passion or aside because the damages are inadequate. prejudice of a jury exhibited by the rendition of O'Malley V. Chicago City R. Co. 33 Ill. App. à verdict for insufficient damage is not proper 854, 30 Ill. App. 309.; Lovett v. Chicago, 35 III. as an independent ground for setting aside a App. 570; Hubbard v. Mason City, 64 Iowa, verdict, where the whole matter is statutory. 245, 20 N. W. 172 ; Gray v. Second Ave. R. Co. and there is no provision authorizing the set65 N. Y. 561.

ting aside of a inding on that ground. BenAnd a judgment to which the plaintiff was Jamin v. Stewart, 61 Cal. 605. not entitled will be affirmed on appeai taken on And that the rendition of a judgment for a the ground that the damages were inadequate smaller amount than that to which the success. where the defendant entered no motion for a

ful party appears from the evidence to be ennew trial. O'Malley v. Chicago City R. Co. 30 titled does not go to the question of the suftiII. App. 300.

ciency of the verdict upon a motion for a ronire But in Galther v. Kansas City, etc., R. Co. de novo. Paxton y. Vincennes Mfg. Co. 20 27 Fed. Rep. 545, a verdict for $250 for the

Ind. App. 253, 50 N. E. 583. plaintif in an action for a personal Injury

And in Moore v. Wood, 19 How. Pr. 405, It caused by negligence, though accepted by the defendant, was set aside on motion of the plain-dence means a verdict for a party upon evidence

was held that a verdict upon insufficient evi. tire made upon the ground that it was inade-insufficient to establish his right to recover, and quate, where the case was such that it the de- which therefore ought not to stand; and a party fendant had asked a new trial the court would have granted it on the ground that the verdict cannot move to set aside a verdict in his own was given to the plaintif merely through sym favor because of inadequacy on the ground that pathy for a poor man.

the evidence was insufficient to sustain It. But A new trial will not be granted in an action see supra, McDonald v. Walter, 40 N. Y. 551. by a father for the death of his minor child al

Where a motion is made to set aside a verdict leged to have been caused by negligence on ac- for inadequacy of damages on the statutory count of the smallness of the damages, where, 11 ground of insufficiency of the evidence to justi. the child had llved and brought the action, hefy the verdict, the statement must specify the would not have been entitled to a new trial on particulars in which the evidence is alleged to that ground, as the father, under Ind. Code, be insufficient, and if such, particulars are not | 784, stands in the place of the child as to the stated, the motion will be disregarded. Benright of action. Gann v. Worman, 69 Ind. 458. jamin v. Stewart, 61 Cal. 605.

See also Rafferty v. Missouri P. R. Co. 15 But specifications that the injuries of the Mo. App. 559, infra, IV. e, 2.

plaintiff were very serious, and that the sum

found by the jury was unreasonable and grossVII. Matters of procedure.

ly inadequate, are sufficient on motion for a new An application to set aside a verdict on the 'trial on the ground that the verdict was not

sustalned by the evidence. Bennett v. Hobro, small will not be reviewed on appeal where the 72 Cal. 178, 13 Pac. 473.

record does not purport to contain all the evi. And specifications on motion for a new trial, dence in the cause, though it does contain the made on the ground that the evidence is Insuf- opinion of the trial judge that the verdict ficient to justify the verdict, that by the evi- should have been for a larger sum. All the dence It is shown that the plaintiff was wrong. evidence must be abstracted and submitted to fully assaulted and beaten, and that he was pre- the court. Kinser v. Soap Creek Coal Co. 85 viously in good health and able to earn $60 per Iowa, 26, 51 N. W. 1151. month, and that the injuries resulted in the loss The grounds for awarding a new trial under of his arm and great physical and mental pain, 1 Va. Rev. Code, 510, $ 96, authorizing it where and rendered him unable to earn his support, the damages found are manifestly small, need and that the verdict for $500 was wholly inade- not be stated on the record. Rixey v. Ward, 3 quate, are sufficient. Townsend v. Briggs, 88 Rand. (Va.) 52. Cal. 230, 26 Pac. 108.

And an order stating that a verdict for the That a judgment was rendered for too small plaintiff for nominal damages had been returned, a sum is no ground for a writ of error; the rem- and that a motion on behalf of the plaintiff was edy is by petition for a new trial under the made upon the minutes of the court for a new statute. Whitwell v. Atkinson, 6 Mass. 272. trial, but that such motion was denied, suff

And an omission to make a motion for a ciently discloses the fact that the motion was new trial on the ground of inadequacy of dam- made for inadequacy, to warrant the consideraages is fatal to a proceeding by appeal where tion of that ground on appeal. Cowles v. Wat. the appeal rests entirely upon the inadequacy son, 14 Hun, 41. of the sum named by the jury and upon the So, while the general rule is to require the plaintiff's right to a new trial for that reason. party obtaining an order for a new trial to Carpenter v. Beare, 4 Hun, 509.

pay costs where the damages found by the jury But where a verdict is set aside the appel. are so small as to force upon the mind the conlate court will usually sustain the action of the viction that by some means the jury acted under trial court on the principle that such motions the influence of a perverted judgment, the court are addressed to the sound discretion of the might properly relieve the party from such pay. court. Lefrois v. Monroe County, 88 Hun, 109, ment. Emmons v. Sheldon, 26 Wis. 648. 34 V. Y. Supp. 612 ; O'Shea v. McLear, 15 N. Y. And the cost of a former trial in an action Civ. Proc. Rep. 69, 1 N. Y. Supp. 407.

for damages for negligence in which a verdict And the court of appeals in New York will of six cents was set aside and a new trial Dot review the discretion of the court on this granted because substantial damages were ground. Jung y. Keuffel, 144 N. Y. 381, 39 N. proved on the ground that it was against the E. 340.

evidence, and also the cost of subsequent proAnd the appellate court is not justified in ceedings and of the appeal from the order set. reversing the action of an inferior court on a ting aside the verdict, will be regarded as costs motion for a new trial on that ground unless of the cause to abide the event. Robbins v. It appears that the discretion vested in the Hudson River R. Co. 7 Bosw. 1. lower court had been abused. McKeever v. But the payment of the costs of the first Weyer, 11 N. Y. Week. Dig. 258.

trial is a condition precedent to the second Or that the discretion was unreasonably exer- trial, under a judgment awarding a new trial cised. . Chouquette v. Southern Electric R. Co. for Inadequacy, under 1 Va. Rev. Code, 510, $ (Mo.) 53 S. W. 897 ; Lee v. George Knapp & Co. 96, though the judgment directing the payment 137 Mo. 385, 38 S. W. 1107.

of the costs says nothing about when they shall But see BENTON V. COLLINS, holding that the be paid. Rixey v. Ward, 3 Rand. (Va.) 52. discretion of the trial court is not reviewable on appeal.

VIII. Increase of verdict by court. And to entitle a party to have a judgment

In some of the early English cases the court, In his favor reversed it must appear that he was instead of granting a new trial for inadequacy deprived of his full right by some error of the of damages, claimed and exercised the power to court, and not by his own neglect, and where a

increase the verdict given to such an amount as Ferdict gives the plaintiff damages for only a

It deemed just. portion of the time to which he is entitled, and

Thus, in Brown v. Seymour, 1 Wils. 5, It this is not in consequence of any erroneous in

was held that the court had discretionary powstruction, but of a mere omission, his remedy er, in an action for damages for mayhem, to Is not to enter a judgment on such verdict and

increase the damages given by the jury, though then reverse It on error, but he should move

the declaration was generally for an assault, either for a new trial or that the jury be di battery, and mayhem without any description rected to amend and complete the verdict, and

of the mayhem, but that the court must take If he goes on and enters judgment in his own

into consideration all the circumstances of the favor for such sum as the verdict finds, he can

case, and that where the plaintiff did not apnot then reverse it because the rest was not in-pear to have received great damage a verdict cluded. Newton v. Allis, 16 Wis. 198.

for £150 was enough where it appeared that The appellate powers of the court of common great provocation was given. pleas in New York with respect to appeals from So, in Cook v. Beal, 1 Ld. Raym. 176, 3 Salk. the general term of the marine court are similar | 115, it was held that in an action for a batto those of the court of appeals in cases of ap-tery if the wound was visible and the damages peals to that court, and the same rules must ob

are inadequate the court will increase them tain, and if the general term of the marine either after verdict or writ of Inquiry, though court sets aside a verdict upon the ground that

the wound was not technically described in the It was the result of a compromise, having the declaration as a mayhem, although in fact it power to do so lo the exercise of its discretion, was not one, provided the declaration partic. the court of common pleas can only considerularizes it, or the judge at nisi prlus makes a opon appeal the exceptions taken during the certificate of it either by Indorsement or by trial, and cannot correct the error of the jury. word of mouth, but not unless the plaintiff apKowe v. Comley, 11 Daly, 318.

pears in person, and the judge at nisi prius cap. So, refusal of the court below to grant a new l not increase the damages. trial opon the ground that the verdict was too This practice, however, seems to be obsolete in England. See English cases of more recent | the court on a motion for a new trial for indate set forth supra in this note. But it seems adequacy of damages may direct that a new trial to be the rule in Louisiana though that state will be allowed unless the defendant will conderives its jurisprudence from the civil, and sent that the verdict shall be raised to the not the common, law.

amount shown by the instrument sued on to be Thus, in Louisiana it is a matter within the due, and upon such consent being given may en. discretion of the court to increase the verdict ter judgment accordingly. James v. Morey, 44 of a jury when it is satisfied that the jury have Ill. 352. talled to do justice, though the court rarely And see Richards v. Sandford, 2 E. D. Smith, änds occasion to do so. Caldwell v. Vicksburg, 349, supra, IV. e, 2. 8. & P. R. Co. 41 La. Ann. 624, 6 So. 217 ; Sulli. And the defendant against whom a judgment van v. Vicksburg, S. & P. R. Co. 39 La. Ann. 800, was rendered may, on motion for a new trial 2 So. 586.

on the ground of inadequacy of damages, obAnd in Caldwell. v. Vicksburg, S. & P. R. Co. viate the error where the amount for which the 41 La. Ann. 624, 6 So. 217, a verdict in an ac- verdict should have been found can be ascertion for a personal injury for $1,000 was tained by computation by agreeing to increase amended by the court by increasing it to $2,- the verdict to the proper amount. Carr v. Min000 upon the ground that, considering the ex- er, 42 Ill. 179. penses and trouble incurred by the plaintiff And the supreme court may, on appeal, corfor medical attendance and in the necessary rect a judgment in an action for damages for prosecution of his legal right, the sum allowed the appropriation of land under the right of would leave him no compensation for his suffer. eminent domain, where it appears that interest ing and injury at all commensurate with their had not been allowed in the court below, where serious character.

It should have been, without reversing and reAnd in Sullivan v. Vicksburg, S. & P. R. Co. manding the case. Alloway V. Nashville, 88 39 La. Ann. 800, 2 So. 586, a verdict in an ac- Tenn. 510, 8 L. R. A. 122, 13 S. W. 123. tion for personal injuries for $100 was amended But the practice of directing a new trial unby the court by increasing it to $600, where the less the defendant will consent to an increase plaintiff was knocked senseless and his ear cut of the verdict to the proper amount should be in two, and he received a gash on his head, sparingly indulged in, and never adopted exand his face was bruised, and his leg severely cept in clear cases. Carr v. Miner, 42 III. 179. sprained, and he was laid up for several days As to the power of appellate courts to in. suffering great pain, and did not recover for terfere with verdicts for excessive damages, see some weeks, and incurred expenses for board note to Burdict v. Missouri P. R. Co. (Mo.) 26 and medical treatment.

L. E. A. 384.

F. H. B. In some, if not all, the other states, however,



Re Thomas A. MORGAN.

the United States, holding that an elght.

hour law of a certain state does not violate (........Colo.........)

the Federal Constitution, is not binding on

the courts of another state in favor of the 1. Regulations authorized by Const. valldity of such a law under the Constitution

art. 16, for the proper ventilation of of that state.
mines, for escapement shafts, "and such
other appliances as may be necessary to pro-

(July 17, 1899.) tect the health and secure the safety of the workmen therein," embrace only such reasonably necessary mechanical appliances as pus to obtain the release of petitioner will secure the end in view, and do not in- from custody to which he had been com

clude other kinds of health regulations. mitted for violation of a statute regulating 2. statute making it unlawful to the hours of labor in mining occupations.

work more than eight hours per day lo Petitioner discharged.
minés or smelters is in violation of Const. art.
2, § 3, guaranteeing liberty and the right to

Statement by Campbell, Ch. J.:
acquire, possess, and protect property.

At a preliminary examination before a it is for the courts to determine justice of the peace upon a charge of con. what are the subjects upon which the police power is to be exercised, and the reasonable tracting to labor in a smelter in excess of ness of that exercise.

eight hours per day, the defendant was Legislation to protect citizen

committed to jail, in default of giving the against the consequence of his own required bail, and, to secure his liberty, has acts is not within the constitutional eser- tiled in this court his petition for a writ of cise of the police power.

habeas corpus.

The prosecution was under 8. A decision of the Supreme Court of l$ 2 of "An Act Regulating the Hours of

NOTE.-As to statutory limitation of bours of 108; and Short v. Bullion, B. & C. Min. Co. labor, see People v. Phyte (N. Y.) 19 L. R. A. (Utah) 45 L. R. A. 603. 141, and note; also note to State V. Loomis, As to statutory provisions to secure health (Mo.) 21 L. R. A. on page 706; Low v. Rees and safety of employees, see State v. Hoskins Printing Co. (Neb.) 24 L. R. A. 702 ; Ritchle v. (Minn.) 25 L. R. A. 759, and note; Consoll. People (III.) 29 L. R. A. 79 ; State v. McNally dated Coal & Min. Co. v. Floyd (Ohio) 25 L. B (La.) 36 L. R. A. 533 ; Holden v. Hardy (Utah) | A. 848, and note; and People v. Smith (Mich.) 87 L. R. A. 103 (Afirmed in 169 U. S. 366, 42 32 L. R. A. 853, and note. L. ed. 780); State v. Holden (Utah) 37 L. R. A.


See also 47 L. R. A. 380.


Employment in Underground Mines, and innor v. Gascoigne, 11 Tex. 455; Giblin v. Jor. Smelting and Ore Reduction Works, and dan, 6 Cal. 418. Providing Penalties for Violations Thereof," The supreme court of a state will “cer. passed by the twelfth general assembly, the tainly not reverse itself but for an material provisions of which are embraced whelming conviction that it has committed in the first two sections:

a serious and palpable error." “Sec. 1. The period of employment of Atchison, T. & S. F. R. Co. v. Farrow, 6 working men in all underground mines or Colo. 498; People es rel. Bentley v. Le Fevre, workings shall be eight (8) hours per day, 21 Colo. 218, 40 Pac. 882; Harrow v. Myers, except in cases of emergency, where life or 29 Ind. 469; Carver v. Louthain, 38 Ind. property is in imminent danger.

530; Lindsay v. Lindsay, 47 Ind. 283; Seale "Sec. 2. The period of employment of v. Mitchell, 5 Cal. 403. working men in smelters, and in all other Where an individual is of full age and institutions for the reduction or refining of sound mind, the attempt to assert paternal. ores or metals, shall be eight (8) hours per ism over him is an invasion of the personal day, except in cases of emergency, where rights reserved to him by the Constitution. life or property is in imminent danger.” Re House Bill No. 203, 21 Colo. 27, 39

Section 3 makes the violation of the fore- Pac. 431; Re Eight Hours Bill, 21 Colo. 29, going provisions a misdemeanor, and pro- 39 Pac. 328; Low v. Rees Printing Co. 41 vides the penalty therefor. Sess. Laws Neb. 127, 24 L. R. A. 702, 59 N. W. 362; Ro 1899, chap. 103. The following sections of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Ritchthe Constitution are referred to in the opin. ie v. People, 155 IIl. 98, 22 L. R. A. 79, 40 ion:

N. E. 454; Com. v. Perry, 155 Mass. 117, 14 Article 2:

L. R. A. 325, 28 N. E. 1126; Godcharles v. “Sec. l. That all political power is vested Wigeman, 113 Pa. 431, 6 Atl. 354; State v. in and derived from the people; that all Goodwill, 33 W. Va. 179, 6 L. R. A. 621, 10 government, of right, originates from the S. E. 285; Braceville Coal Co. v. People, people, is founded upon their will only, and 147 Ill. 66, 22 L. R. A. 340, 35 N. E. 62. is instituted solely for the good of the A law such as the one under considera. whole."

tion is in violation of 8 25 of the Bill of “Sec. 3. That all persons have certain Rights, which declares "that no person shall natural, essential, and inalienable rights, be deprived of life, liberty, or property among which may be reckoned the right of without due process of law.” enjoying and defending their lives and lib. It is for the courts, and the courts alone, erties; that of acquiring, possessing, and to decide what are the proper subjects for protecting property, and of seeking and ob- the exercise of the police power, and the taining their safety and happiness." province, and only province, of the legisla

"Sec. 28. The enumeration in this Consti- ture is to determine whether the exigency tution of certain rights shall not be con exists which calls for the exercise of police strued to deny, impair, or disparage others power, retained by the people.”

Tiedeman, Pol. Power, 1886, § 3, pp. 12, Article 5:

13; Toledo, W. & W. R. Co. v. Jacksonville, “Sec. 25. The general assembly shall not 67' Ill. 37, 16 Am. Rep. 611; Lake View v. pass local or special laws in any of the fol. Rose Hill Cemetery Co. 70 Ill. 192, 22 Am. lowing enumerated cases, that is to say: Rep. 71. · [Subdivision 23] Granting to any

That police power can only be exercised corporation, association, or individual any to prohibit things which are hurtful to the special or exclusive privilege, immunity, or health, safety, and welfare of society,the franchise whatever." [Subdivision 24°' In public at larges-and cannot be exercised for all other cases, where a general law can be the sole and special benefit of individuals made applicable, no special law shall be en

or any special class or classes of individuacted."


Tiedeman, Pol. Power, § 1, p. 4; 18 Am.

& Eng. Enc. Law, 1st ed. p. 739. Ir. Charles H. Toll, with Messrs. Wol- Mr. John M. Waldron, also for peticott & Vaile, Charles W. Waterman, tioner: and William W. Field, for petitioner: The supreme court of this state clearly

The unconstitutionality of this law is concedes the existence of personal immuni. stare decisis in Colorado.

ties, fully reserved to the people at large. Re House Bill No. 203, 21 Colo. 27, 39 Packer v. People, 8 Colo. 365, 8 Pac. 564. Pac. 431.

No department of the government posWhen a question is once clearly and posi- sesses unlimited power under a Constitutively decided in a certain way, the general tion like ours. public conform themselves to the law as laid Greenwood Cemetery Land Co. v. Routt, down in that decision, and a repudiation of 17 Colo. 163, 15 L. R. A. 369, 28 Pac. 1125; that decision, and the rendering of one di. People ex rel. Connor v. Stapleton, 18 Colo. rectly contrary thereto, would destroy and 583, 23 L. R. A. 787, 33 Pac. 167 ; Citizens' unsettle all the rights arising under, and sav. & L. A880. v. Topeka, 20 Wall. 662, 22 all the acts taken in reliance upon, the for. L. ed. 461; State ex rel. Atty. Gen. v. mer decision.

Moores, 55 Neb. 480, 41 L. R. A. 624, 76 N. Broom, Legal Maxims, 7th ed. 147; Syd- W. 175; Von Holst, Constitutional History

« AnteriorContinuar »