the trial court charged the jury that "the plaintiff (defendant in error) had a right to assume that the pole upon which he was ordered to work in cutting away the dead wire was safe and suitable, and of sufficient strength to support the wires and cable suspended thereon, together with his weight, and it was not Loomis' duty, when sent to cut away dead wires, to inspect the pole. Upon an appeal from a judgment in favor of Loomis, Judge Snodgrass, in giving the opinion of the supreme court, with reference to the portion of the charge above quoted, said: "The objection to this is twofold: First, it assumes as a matter of fact, and so decides, that Loomis was not the employee who should have served as inspector for the company, which was a disputed question of fact."

BILLS AND NOTES NOTE TO JOINT PAYEES -TRANSFER of Interest · LIABILITY.—The Supreme Court of Indiana decides in Bond v. Hollaway, 47 N. E. Rep. 838, that an assignment in writing on the back of a note whereby one of two joint payees assigns his interest to his copayee, will operate as a mere transfer of the assignor's interest, and is not such an indorsement as will render him liable as an indorser. The court says:

The only question for our decision is, is the appellee, Holloway, liable as an indorser by reason of his assignment of his interest in the note to his copayee, Saffell? This exact question has never been decided in this State, and, in fact, we are unable to find any authority directly in point. The question, therefore, must be decided on principle. On the part of the ap pellee it is contended that by his assignment of his interest in the note to Saffell he did not assume the liability of an indorser, and was not chargeable as such. On the contrary, appellant claims that appellee's indorsement of the note was an unqualifie 1 one, and that he is liable thereon. Appellant, in his brief, announces two propositions: (1) That the appellee is prima facie liable by reason of his indorsement; and (2) that it is a question of fact, and not one of law, whether the appellant's testator was chargeable with notice of limitations or restrictions of appellee's indorsement to Saffell. We are not favored by any argument on behalf of the appellant. Some authorities are cited, but no argument is attempted. In support of their first proposition, counsel for appellant have cited the following cases: Groves v. Ruby, 24 Ind. 418; Russell v. Swan, 16 Mass. 314; Goddard v. Lyman, 14 Pick. 268. In Groves v. Ruby, supra, the only question decided which is pertinent here is that one of the two joint payees of a note may assign his interest therein to a third person, and that such assignee, together with the remaining payee of the note, may proceed jointly against the maker to collect. It was there held that by such assignment the equitable interest of the assignee passed to the assignor. No question is presented or discussed touching the liability of the assignor as an indorser. In Russell v. Swan, supra, appellee executed a note to Jeffrey & Russell, and they indorsed the note to Joseph Jeffrey, one of the firm, and the only question decided was that such indorsement vested in the indorsee the full title to the note. In Goddard v. Lyman, supra, it was held that a negotiable note, payable to three payees jointly, may be legally transferred by an indorsement by two of them to a third payee and a stranger. After

careful examination of the authorities cited by the appellant in support of his first proposition, we ar constrained to say they are not in point, and have re bearing upon the question at all. As the point ter decision is a new one, and of a general commercis interest, we have considered it with much care, with the end in view of reaching a correct conclusion upon principle. The common-law rule was that, where two or more persons, not partners, were the payeti in a promissory note, an indorsement by all of them was necessary to pass title. 2 Pars. Bills & N. 4. The rule, however, has been somewhat modified, and it now the settled law in many jurisdictions that a part of a written contract may be assigned, and such assignment vests in the assignee the assignor's interest in the contract, in equity. Groves v. Ruby, sup Wood v. Wallace, 24 Ind. 226; 2 Story Eq. Jur. I 1841. But it has nowhere been held that such an assignment is an unqualified indorsement, and that the assigner is liable to the holder on his indorsement. On the contrary, it has been held, and, we think, upon soun principle, that, where one of two joint payees of a promissory note assigns to his copayee all of his right, title, and interest therein, such copayee and assignee cannot maintain an action against the assignor on his indorsement. 1 Daniel, Neg. Inst. p. 629, § 701a; Car vick v. Vickery, 2 Doug. 653, note; Foster v. Hill, N. H. 526; Chit. Bills, 57. Mr. Daniels bases the do trine of such assignor not being chargeable as an is dorser upon the ground that such assignment only passes an equitable interest in the note. 1 Danie Neg. Inst. p. 629, § 701a. As such an assignment therefore, only passes an equitable interest, and the assignor not being liable to his original copayee as indorser, the interesting question presents itself, upon what principle can such assignor be liable as an idorser to a subsequent assignee of the instrument? I being everywhere held that such an assignment only passes an equitable interest, we think it comes with: the meaning of restricted indorsements, under the mercantile law. In the case under consideration, ap pellee's indorsement was as follows: "Dec. 26, 18 On the above date I sine over my interest on the within note to Orlando C. Saffell." This, we think must be held to be merely a transfer of appellee's terest in the note to his copayee, Saffell, and his inter est therein was the one-half of the note, and his right of action against the maker alone. Hailey v. Falcone. 32 Ala. 536, is very similar to the case at bar. Thes dorsement of the payee was as follows: "For vale received, this 28th day of February, 1850, I transfer unto John H. Hailey all my right and title in the within note, to be enjoyed in the same manner as have been by me." The Supreme Court of Alaba speaking by Rice, C. J., said: "The indorsement here relied upon by the plaintiff is not in the commer form, but substantially different therefrom. Any words in an indorsement which clearly demsstrate the intention of the indorser to make it a g ified one will have the effect to make it such. It is well settled that where there are general word alone in an indorsement they shall be taken mest strongly against the indorser. But it is a general s reasonable rule that mere general words in an indorse ment shall be restrained by other expressions, mare limited, in the same instrument, and for the purp of ascertaining the intent every part and word of the instrument is to be considered." And in the c from which we have just quoted it was held that there could be no recovery upon the indorsement, either s common law or commercial law. See, also, Jack v. Stackhouse, 1 Cow. 126; Lyman v. Clark, 9 Ma

were, like legislative enactments, subject to executive approval or veto. In the leading case of State v. Mason, the amendment submitted was the renewal under certain terms and conditions of the Louisiana Lottery Company's charter. On mandamus to compel the secretary of State to make publication of the proposed amendment as by law required, the secretary set up among numerous other objections that the amendment was not legally submitted because vetoed by the governor and that the amendment failed to pass over his veto. The court held that executive approval was unnecessary, that the veto was an idle and vain ceremony, and that the vote cast thereafter to pass the amendment over the veto was manifestly superfluous; and that this was true even though the amendment might contain provisions which were confessedly matters of legislation. The court say: "The veto of an executive officer can only be exercised when his assent is necessary to perfect a law. A proposition to amend the constitution is not a law, and cannot become a law, until adopted by the vote of the people. The people, in their sovereign capacity, acting by units or individuals, amend their constitution just as they did when they adopted it. If the legislature had been authorized and empowered by the people in the organic law to amend the constitution, then, as a part of the law-making power of the government, the governor would necessarily be empowered to approve or to veto the proposed amendment. But the people have reserved to themselves the right of adopting or rejecting a proposed amendment. The sovereignty of the people has its first expression in the convention called to form a constitution for their government. The convention represents the constructive power of the people in the formation of the constitution. It is the assertion of the will of the people in the ordination and institution of government. The power existent in it is not withdrawn, but continually exists in it, and never expires *** and the legislature in proposing amendments does so just as the convention would do if in session, as the sovereign people would do, recognizing no other authority than themselves."'4

3 State ex rel. Morris v. Mason, 43 La. Ann. 590, 9 South. Rep. 776.

4 Concurring opinion of McEnery, J., in State v. Mason, 43 La. Ann. 590, 9 South. Rep. 776, and see

7

5. Amendment to Have But One ObjectThe direction in a constitution requiring sep arate amendments to be so submitted as to enable the electors to vote on each amend ment separately has been construed to mean amendments having different objects and par poses in view, not dependent upon or con nected with each other. Tested by this rule. it was held in State v. Timme, that the several propositions embodied in a amendment submitted to the electors changing the sessions of the legislature from annual to biennial sessions and regulating the tenure of office and compensation of members contained but one amendment. And in State v. Mason, supra, the proposed amend ment was the extension of the Louisiana Lottery Company's charter for twenty-five years in consideration of the payment, quarteryearly, into the State treasury of the sum of $31,250,000 for the benefit of the publ schools, levees, charities, pensions and drain age of the State. It was urged that the prop osition contained the subject matter of more than one amendment, in this, that the ch ter of a company was an independent matte and that the stipulations as to consideration were not germane thereto, but the court hel that the conditions of payment and the des Cooley's Const. Lim. 40, 41; State ex rel. Winema Dahl (N. Dak. 1896), 68 N. W. Rep. 418. And this been and is the practice of congress. Jameson's stitutional Conventions (4th Ed.), §§ 556-502.

5 State ex rel. Woods v. Tooker, 15 Mont. 8, 37 P Rep. 840. It should be noted however, that the Montana constitution declares that its provisions mandatory. But for all that such a provision sho be held to be mandatory, see In re Constitutio Convention, 14 R. I. 649.

6 State ex rel. v. Torreyson v. Grey, 21 Nev. 573,2 Pac. Rep. 190. Upon the reasonableness of a legisa tive regulation requiring publication, see State Davis, 20 Nev. 220, 19 Pac. Rep. 894.

7 State ex rel. Hudd v. Timme, 54 Wis. 318,11 Rep. 785. With reference to the control of the liq traffic, see In re Senate File, 25 Neb. 864, 41 N.. Rep. 985. And see State v. Herried (S. Dak. 1997), * N. W. Rep. 93, on regulating the control of certa State educational institutions.

tination of the payments were essential to the organization of the company and necessary to its continued corporate existence.

8

6. Enjoining Submission of.—The submission to the electors of a proposed constitutional amendment will not be arrested by the courts. In State v. Thorson, it was sought to enjoin the secretary of state from certifying to the county auditors as a proposed constitutional amendment the joint resolution submitted by the legislature repealing the prohibition article of the constitution. The court held it to be the duty of the secretary to certify the proposed amendment as that was the only means by which the action of the legislature could be communicated to the electors; that under our system of government the electors were alone clothed with the power to modify the organic law and that until they shall have acted the proceeding was incomplete. And in Edwards v. Lesueur,9 which was a proceeding to restrain the secreary of State from submitting an amendment or the removal of the State capitol, the court said that its power to arrest the submission of an amendment to the people, was coupled with far more serious responsibilities than its right to declare a statute void; that it was a serious question for the courts to come between the people and their authorized and accredited agents, and arrest their will in respect to what the organic law should be.

7. Vote Necessary to Adopt.-Where proposed amendments are required to be approved by a majority vote, considerable conflict of opinion exists, due largely to difference in the phraseology of the constitutions, whether a majority voting on the amendment is sufficient, when not a majority voting at the election. In the late case of Green v. Board of Canvassers,10 which involved the construction of the words "if a majority of the electors shall ratify the same," that is, an amendment extending the equal right of suffrage to women, the court held that the amendment was ratified if it received a majority of all the votes cast upon it, although not a majority of the votes cast at the election, thus affirming the American policy to be that when

8 State v. Thorson (S. Dak. 1896), 68 N. W. Rep. 202. 9 Edwards v. Lesueur, 132 Mo. 410, 33 S. W. Rep. 1180. But see contra: Livermore v. Wait, 102 Cal. 113, 36 Pac. Rep. 424.

10 Green v. Board of Canvassers (Idaho 1897), 47 Pac. Rep. 259, 44 Cent. L. J. 383, and note.

ever a question is submitted to the decision or action of a majority of the electors, "the meaning is the decision or action of a majority of those persons qualified to vote and who do in fact vote upon the question or proposition submitted, unless some different intention is clearly expressed in the act or instrument providing for the submission, or plainly to be inferred therefrom."'11

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8. Declaring Result. Where a constitutional amendment is submitted at a general election without any special provision for casting or canvassing the votes thereon or promulgating the result, the question has arisen does the failure to so provide render invalid the vote thereon. This point received the very careful consideration of Mr. Justice Brewer in the Prohibitory Amendment Cases. He held that notwithstanding the silence of the statute, when an amendment was submitted at a "general election," without further words or designation, the entire statutory machinery for a general election was meant to be appropriated for the purpose of voting upon and determining the question submitted; that an election actually held under such circumstances came clearly within the judicial cognizance and that courts would take judicial notice of the ascertained result, stating in conclusion that it was the election and not the canvass that made the change. The action of the governor in proclaiming the adoption of an amendment, where his promulgation is required, is con

12

11 Dixon, Ch. J., in Sanford v. Prentice, 28 Wis. 358, 362, affirming Gillespie v. Palmer, 20 Wis. 544, which involved the interpretation of a similar amendment granting negro suffrage. And to similar effect as the text see Dayton v. City of St. Paul, 22 Minn. 400; State v. Barnes, 3 N. Dak. 319, 55 N. W. Rep. 883. In State ex rel. v. Langlie (N. Dak. 1896), 67 N. W. Rep. 958, it was held that "two-thirds of the votes polled" on the relocation of a county seat was sufficient. That the majority of all the votes cast at the election is the true criterion, see State v. Babcock, 17 Neb. 188, 22 N. W. Rep. 372; State v. Foraker, 46 Ohio St. 697, 23 N. E.Rep. 491; Stebbins v. Judge Superior Court (Mich. 1896), 66 N. W. Rep. 594, which was on the sufficiency of the vote cast bonding a municipality. See Cooley's Const. Lim., pp. 42, 748.

12 Prohibitory Amendment Cases, 24 Kan. 700. And see Lovett v. Ferguson (S. Dak. 1897), 71 N. W. Rep. 765. And to like effect see Hays v. Hays (Idaho, 1897), 47 Pac. Rep. 732; Gillespie v. Palmer, 20 Wis. 544. The Supreme Court of Louisiana in commenting on this point in the Kansas decision in State v. Mason, infra, where the omissions complained of in the Kansas case had been supplied, say that "had the test of the amendment been made prior to the election, it is reasonably sure they would have invalidated it."

clusive on all departments of the State government, as well as upon the federal courts.13

9. Time of Taking Effect.-The question what effect the adoption of an amendment has upon the old order of things, and the time when the amendment goes into operation, in other words, whether an amendment is self-executing or not, is always a question of intention to be determined by the language used and the surrounding circumstances. In the late case of Hays v. Hays, 14 the relator had been appointed county attorney under an amendment adopted at the preceding general election abolishing the office of district attorney for each judicial district and substituting therefor the office of county attorney for each county. On mandamus to compel the admission of relator to the use and enjoyment of the office, the court held the amendment to be inoperative because it was provided therein that the county attorney should "perform such duties" as may be prescribed by law," and that until the duties of the office had been "prescribed by law," it was an office without duties and the old district attorney continued in office until the expiration of his term. 15 But in Re Advisory Opinion,16 it was held that a provision in an amendment that the costs and expenses in criminal cases, where the defendant was insolvent or discharged, should be paid by the counties where the crime was committed "under such regulations as shall be prescribed by law," did not postpone the operative effectiveness of the amendment until legislative regulation of the manner in which such payments should be made, but that it became operative, eo instanti upon its approval by the people. 17 Where the amendment itself provides that the existing state of things shall continue, of course that controls. 18 The validity of a "franchise act,"

13 Worman v. Hagan, 78 Md. 152, 27 Atl. Rep. 616; Smith v. Good, 34 Fed. Rep. 204.

14 Hays v. Hays (Idaho, 1897), 47 Pac. Rep. 732. 15 And see Blake v. Board of Commrs. (Idaho, 1897), 47 Pac. Rep. 734.

16 17 South. Rep. (Fla. 1895) 410.

17 And to similar effect, see Chittenden v. Wurster, 43 N. Y. Sup. 1035; Cooley's Const. Lim. p. 75; Seneca Mining Company v. Secretary of State, 82 Mich. 573, 47 N. W. Rep. 25; People v. Supervisors, 100 Ill. 495. 18 See In re Oliverez, 21 Cal. 415; Gillis v. Barnett, 38 Cal. 393; People v. Horton, 59 Barb. 169. In Texas it is expressly provided that an amendment shall not

Supreme Court of Nebraska, Sept. 22, 1897.

A municipal corporation is not liable for the inju ries sustained by a person who falls into a pond, which is on private ground and not in dangerous proximity to a public highway.

RYAN, C.: This action was brought in the district court of Douglas county by Fannie E. Bow man, as administratrix of the estate of Albert D. Bowman, for the recovery of damages sustained by the estate of the intestate by reason of his death. The deceased, it was alleged in the petition, was about seven years of age when he was drowned in a pond of water which plaintiff in error negligently had permitted to accumulate, and be and remain in, over, and by the side of Davenport street, in the city of Omaha. There were a verdict and judgment against the city in the sum of $1,000. The accident happened on June 15, 1892. The evidence showed that about six years before the date just named the city had constructed an embankment on Davenport street which interfered with the flowing of water from certain lots abutting on said street. The pond in question was caused by this water. The sidewalk was about seven feet from the water, and quite a distance above the water level. There seems to be no dispute in the evidence that to reach the water from the street it was necessary that a person should cross an intervening strip of private prop erty at least six feet in width. A few days before the date of the accident some boys tore up a part of the sidewalk, and launched it upon the pond. Albert D. Bowman and some juvenile friends took possession of this piece of sidewalk, and were using it for a raft, when young Bowman fell off and was drowned. The mere fact that he was thus drowned was alleged in the petition and admitted in the answer. There was no effort to show whether the deceased reached the pond, si he might have done, by passing from his home, near by, over private property, or by way of the