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ness of the amount with which the admin- dog shall be liable to the person aggrieved as istrator is chargeable. aforesaid, for all damages sustained * any such action, to prove that the owner or and it shall not be necessary, in order to sustain keeper of such dog knew that such dog was accustomed to do such damage."

The exceptions of the administrator are overruled, and the case is remitted to the superior court for further proceedings.

(39 R. I. 31)

WHITTET v. BERTSCH. (No. 4920.) (Supreme Court of Rhode Island. April 12, 1916.)

1. ANIMALS 68-DOGS-"INCLOSURE."

Under Gen. Laws 1909, c. 135, § 3, declaring that if any dog shall assault or bite any person out of the inclosure of the owner, the owner shall be liable for all damages sustained, a dog chained on the unfenced premises of the owner is not within an inclosure within the statute; the term "inclosure" importing land surrendered by some visible obstruction, and so the owner is liable for any injury of the dog. [Ed. Note.-For other cases, see Animals, Cent. Dig. §§ 225, 226; Dec. Dig. 68. For other definitions, see Words and Phrases, First and Second Series, Inclosure.] 2. ANIMALS 68 DOGS OWNER.

LIABILITY OF

In an action under Gen. Laws 1909, c. 135, § 3, for injuries received when defendant's dog bit her, the character of the dog at a period somewhat remote from the injury is not admissible, for the statute makes the owner liable, regardless of his knowledge of the animal's evil propensities.

[Ed. Note.-For other cases, see Animals, Cent. Dig. §§ 225, 226; Dec. Dig. 68.] 3. ANIMALS 74(9)—INJURY BY DOG-FIND INGS SPECIAL ISSUES.

In an action where plaintiff sought to recover. for injuries inflicted by defendant's dog, which defendant contended was chained in his yard, which was not inclosed, a request for a special finding whether the evidence showed the dog was chained to a doghouse used by him as a yard at the time of the accident is meaningless and properly rejected, the court offering to submit the question whether the affair took place in defendant's yard and whether the dog was chained.

[Ed. Note. For other cases, see Animals, Cent. Dig. § 273; Dec. Dig. ~74(9).]

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Trespass by Ada Whittet against Christian M. Bertsch. There was a verdict for plaintiff, and defendant excepted. Exceptions

overruled, and case remitted, with directions to enter judgment on verdict.

George J. Sheehan, of Providence, for plaintiff. Daniel P. Macdonald, of Providence,

for defendant.

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The declaration of the plaintiff is in two counts. The first count alleges that a dog kept by the defendant assaulted and wounded the plaintiff while the plaintiff and said dog were "upon an open lot of land adjoining the property of the defendant and while said dog was out of the inclosure of its owner, the said defendant." The second count alleges that the defendant "did keep on his premises a dog, well knowing that the said dog was vicious and of such a nature as to bite mankind," and because of the negligence of the defendant in failing to secure and fasten the said dog it assaulted the plaintiff "while she was on the defendant's land, which was not inclosed."

At the trial the plaintiff testified that while she was playing with one of the children of the defendant upon an open lot, near to or adjoining the defendant's premises, she was assaulted and bitten by the defendant's dog. She is corroborated to some extent by the doctor, who attended her and probed her wounds, and who testified that such wounds were in his opinion made by the teeth of a dog. Testimony was offered by the defendant to the effect that the plaintiff came upon his premises, and, while there, her feet, through the natural movements of the dog, became entangled in a chain some 10 or 15 feet in length, with which the dog was secured to a doghouse, and was thrown down, and that her injuries resulted from her contact with some broken glass on the ground. The defendant does not claim that on May 19, 1914, the date of the alleged injury, his premises were inclosed by a fence or any other device designed to bar access thereto or exit therefrom.

The jury returned a verdict for the plaintiff for $150. A motion for a new trial was denied by the trial judge, and the case is now before us upon the defendant's exceptions.

The defendant in his brief has considered his exceptions numbered 5, 6, and 7 together, and we think that they may properly be so considered by this court as they involve substantially the same questions.

The fifth exception is to certain portions of the charge of the trial judge in which, after referring to the statute before quoted, he instructed the jury that:

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"The question in this case is simply whether the dog bit the little girl, regardless of whether it was on the open lot, or whether it was on this his land and that the dog was chained up, you man's land. Assuming that it was on will remember that there wasn't any fence or any protection from the highway or from the adjoining land; in that case, if the little girl went on there, and the dog bit her, as I understand the law, Mr. Bertsch would be liable for the

damage which followed, and I so charge you. its willingness to submit to the jury specially A man in this state keeps a dog at his the question whether the occurrence comperil, unless he keeps him in an inclosure. An inclosure is land which is surrounded plained of took place in the yard of the deby some sort of a fence or hedge, or something of fendant and whether the dog was chained at that kind." the time; but this offer of the court the de

The sixth exception is to the refusal of the fendant declined to accept. We think that court to charge the jury that:

"If they find from the evidence that the dog was chained on that part of the defendant's land used by him as a yard, they must bring in a verdict for the defendant."

the special finding in the form as submitted by the defendant was meaningless and was properly rejected by the court.

The third and eighth exceptions of the defendant, the one to the refusal of the trial

court to direct a verdict and the other to the

The seventh exception is to the refusal of the trial court to charge the jury that: "If they find from the evidence that the dam-denial of the motion for a new trial, now age complained of took place on that part of the remain, and in view of the conclusions aldefendant's land used by him as a yard, they ready reached, require but brief consideramust bring in a verdict for the defendant." tion.

[1] The first question which arises is: Can The testimony as to the place where the the premises of the defendant, although not injuries were inflicted and as to whether the surrounded by any fence, ditch, or hedge, same were caused by the bite of the dog or be considered as an inclosure within the pur- by falling upon broken glass is conflicting, view of the statute? We do not think it can and we cannot say that the conclusions reachbe so considered. In the case of Peck v. Wil-ed by the jury and later by the trial court liams, 24 R. I. 583, 54 Atl. 381, 61 L. R. A. were erroneous. 351, this court said:

"The word inclosure,' in its ordinary legal signification, imports land inclosed with something more than the imaginary boundary line; that is, by some visible or tangible obstruction, such as a fence, hedge, ditch, or an equivalent object for the protection of the premises against encroachment.'

To the same effect see, also, Dudley v. McKenzie, 54 Vt. 685; Appeal of Hall et al., 112 Pa. 42, 3 Atl. 783; Smith v. Williams, 2 Mont. 195; Miller v. Chicago & N. W. R. Co., 133 Wis. 183, 113 N. W. 384; Tapsell v. Crosskey, 7 M. & W. 441; 22 Cyc. 62.

[2] The first and second exceptions of the defendant relate to the same matter; that is, the exclusion of evidence regarding the character of the dog some six months or more after the time when it is alleged the injuries were inflicted upon the plaintiff. We think this ruling of the court was without error. The character of the dog was not material. The question related to a period subsequent to and somewhat remote from the alleged injuries, and besides the previous good character of the dog, if shown, would not exempt the owner or keeper from liability if the injury to the plaintiff was established. The statute has enlarged the liability at common

law, and evidence that the dog had always been peaceable prior to the infliction of the injuries would not be admissible. Pressey v. Wirth, 3 Allen (Mass.) 191. Even where the injury is done in play the defendant has been held liable. Hathaway v. Tinkham, 148 Mass. 85, 19 N. E. 18.

[3] The fourth exception of the defendant is to the exclusion of the following special finding:

"The defendant requests the jury to answer the following question: Does the evidence show that the dog was chained to a doghouse used by him as a yard at the time of the accident?"

The defendant's exceptions are all overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict.

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INTOXICATING LIQUORS 59(2)—LICENSES—
PLACE "BUILDING."

Gen. Laws 1909, c. 123, § 2, providing that no license shall be granted for the sale of intoxicating liquors in any building or place, except taverns licensed on May 22, 1908, within 200 feet, measured by any public traveled way, of prohibits a license for sale in any part of a the premises of any public or parochial school, building, any part of which is within 200 feet of a school; and structures on the same lot of the same owner, though placed one against another, were distinct buildings, and a new structure carrying the number for which a license was sought built against a partition wall of a shed so as to incorporate a shop on the first nection with the shed, no part of which was set floor of a dwelling house without interior conwithin 200 feet of a school, was entitled to a license.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 59; Dec. Dig. 59(2). For other definitions, see Words and Phrases, First and Second Series, Building.]

bert A. Rice, Attorney General, on the relation of William A. Prince, against the Board of Police Commissioners of City of Woonsocket. Petition denied and dismissed.

Petition for a writ of certiorari by Her

Quinn & Kernan, of Providence, for petitioner. E. J. Daignault, of Woonsocket (Hugo A. Jarret, of Woonsocket, of counsel), for respondent commission.

SWEETLAND, J. This is a petition for The court refused to allow this special a writ of certiorari brought in the name of finding in the form submitted, but signified the Attorney General at the relation of Wil

liam A. Prince, a citizen and taxpayer of the city of Woonsocket, against the board of police commissioners of Woonsocket.

The respondents are empowered to grant licenses for the sale of intoxicating liquors within Woonsocket. The writ of certiorari is sought to compel the members of said board to certify the records relating to their action in granting the application of one Moise Gagnon for a second-class liquor license for the sale of spirituous and intoxicating liquors at a building or place numbered 349 Diamond Hill road in Woonsocket, and in issuing a license to said Gagnon to sell spirituous and intoxicating liquors at the building or place so numbered, and, further, that the record may be reviewed by this court and said action of the respondents quashed for illegality.

The illegality complained of is that said license was issued by the respondents in violation of the provision contained in section 2, chapter 123, Gen. Laws 1909, that no license shall be granted for the sale of spirituous or intoxicating liquors—

"in any building or place, except taverns that were licensed on the twenty-second day of May, nineteen hundred eight, within two hundred feet, measured by any public traveled way, of the premises of any public or parochial school." Said license to Moise Gagnon was issued by the respondents on November 23, 1915. It is claimed by the petitioner that said building or place numbered 349 Diamond Hill road was not a tavern licensed on the 22d day of May, 1908, and that said building or place is and was on November 23, 1915, within 200 feet, measured by a traveled way, of the premises of the Pothier School, a public school of the city of Woonsocket. The premises of said Pothier School are situated on the westerly side of Social street about 120 feet from its intersection with Diamond Hill road. The building or place numbered 349 Diamond Hill road is on land of one Lachapelle, which land of Lachapelle is situated on the southeasterly corner of the intersection of Social street with Diamond Hill road. Just before November 1, 1915, the buildings on said land of Lachapelle consisted of the following structures: On the southeasterly corner of Social street and Diamond Hill road placed on the land at the lines of the streets, was a 21⁄2 story dwelling house, containing a shop on the first floor. Adjoining said dwelling house with a portion of its roof attached to the easterly outer wall of said dwelling house was a one-story shed located on the street line of Diamond Hill road and extending easterly about 45 feet along said Diamond Hill road. East of said shed, and separated from it, was a small building located on the street line of Diamond Hill road and entirely occupied by the shop of a shoe repairer. On November 1, 1915, said Lachapelle began to build a one-story structure on his land. He com

unbroken partition running north and south across said shed, about 14 feet from the easterly end of said shed. He then cut off all of said shed which was east of said partition, leaving said partition as the easterly wall of said shed. Against this easterly wall he then built said structure extending it up to, around, and over the shop of the shoe repairer, incorporating said shop in the new structure. On November 23, 1915, this new structure was nearly completed, and at that time contained at its easterly end the shop of the shoe repairer and in the remaining portion another shop with a door numbered 349 Diamond Hill road.

The distance from the northeasterly corner of the premises of said Pothier School, diagonally across Social street, to the northwesterly corner of said dwelling house of Lachapelle is about 132 feet. From the same point on said school premises along Social street and Diamond Hill road to the nearest point of said shed is about 164 feet, and from said point on the school premises to the center of the door of said shed is about 187 feet. From said point on the Pothier School premises along Social street and Diamond Hill road, in the most direct line, to the nearest point of the new structure built by Lachapelle, the distance is 205.8 feet.

In an opinion given to the Governor by the judges of this court, contained in Re Liquor Locations, 13 R. I. at page 736, the following statutory provision was construed: of such liquors in any building or place within "Nor shall any license be granted for the sale four hundred feet of any public school."

The judges said that the prohibition contained in the provision"covers the entire space around any public school for four hundred feet, so that a 'building or place' is within four hundred feet of a school, whenever, measuring in a straight line, any part of it is within four hundred feet of any part of the school."

We agree with said opinion and consider it applicable to the statutory provision, quoted above, which is now under consideration. We construe that provision as intending to prohibit the granting of a license for the sale of spirituous or intoxicating liquors in any part of a building in case that or any other part of such building is within 200 feet, measured by any public traveled way of the premises of a public or parochial school, unless said license be for the sale of such liquors in a tavern that was licensed on the date named in said provision.

The petitioner contends that under this construction of said provision the action of the respondents, now under consideration, was illegal because it was the granting of a license for the sale of such liquors in a building a portion of which was within 200 feet of the Pothier School measured by a traveled way. This claim of the petitioner is based upon his construction of the evidence,

on the land of Lachapelle, above mentioned, constituted one building. The petitioner further urges that if we do not find the shop numbered 349 Diamond Hill road to be of the same building as said dwelling house, we must find that it is of the same building as the reconstructed shed, a part of which, by the public traveled way, is within 200 feet of the Pothier School. We do not think that the evidence supports either of these claims of the petitioner.

in the manner in which the power is delegated by the Legislature.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 60; Dec. Dig. 28.1

2. ELECTIONS 10%-ELECTORS-RIGHT TO
VOTE.
ticle 7 of the amendments, giving certain per-
Under Const. art. 2, as amended by ar-
sons the right to vote for all civil officers, the
right applies only to those officers whose elec-
tion is required by law.

[Ed. Note.-For other cases, see Elections, Dec. Dig. 101⁄2.]

The structures which we have named, although owned by said Lachapelle and placed 3. ELECTIONS 102-RIGHT OF SUFFRAGE— one against another, are three distinct build- TOWN MEETINGS CONSTITUTION. ings. The new structure containing the shop create a financial council in the town of WarHouse Act No. 255, entitled "An act to numbered 349 Diamond Hill road is clearly wick," provides in section 1 that there shall be not a part of the shed. It was built at a a financial council of ten members, and that different time, upon a different plan, and for all power and authority theretofore by law conferred upon, vested in, or exercised by the elec a different purpose. There is no interior tors upon any proposition to impose a tax or connection or means of passage between the for the expenditure of money in financial town two. The claim of the petitioner must be meeting shall be vested in and exercised by the based entirely upon the circumstances that financial council, but that the town council shall continue to exercise all powers conferred by genthe new structure is placed beside and against eral and special laws. Section 4 declares that the shed, and that some of its outer parts electors of the town qualified to vote on any are attached to the outer wall of the shed. proposition to impose a tax or for the expenditure of money shall vote for members of the Those conditions alone do not establish the financial council, who shall be elected bienially. petitioner's contention. It frequently occurs, Const. art. 2, as amended by article 7 of amendespecially in our cities, that distinct build-ments, declares that every male citizen of the ings belonging to the same or different own-dence, etc., who is possessed of real property of United States having the qualifications of resiers are separated merely by a party wall to the value of $134, shall have a right to vote which parts of each building are attached. in the election of all civil officers and on all From the testimony we find that no part of questions in all legal town or ward meetings so long as he continues qualified, that every such the building in which the store numbered 349 citizen who has registered and who shall have Diamond Hill road is situated is within 200 paid a tax assessed upon his property, valued at feet, measured by a traveled way, of the least at $134, shall have a right to vote, and that every such citizen who has registered, but premises of said Pothier School. has not paid the required tax, shall have a right to vote in the election of all civil officers and on all questions in all legally organized of the city council of any city or on any proptown or ward meetings, except in the election osition to impose a tax or expend money. Preceding legislation beginning in 1702 showed that the town meeting was a creature of legisstitution, this being shown by Gen. Laws 1909, lative origin, originating long before the Concc. 47, 48, and Pub. Laws 1915, cc. 1210, 1211. Held that, as the Constitution does not regulate the method of imposing taxes or expending shall be a town meeting, certain persons shall money, but merely provides that, in case there be entitled to vote, the Legislature might le gally dispense with the town meeting and thus deprive such persons of any right to vote. Dec. Dig. 102.] [Ed. Note.-For other cases, see Elections,

The petitioner further claims that at the time said license was granted said shed was numbered 349 Diamond Hill road, and that said number was then attached to the outer door of the shed. There was some testimony presented at the hearing that at one time said number had been upon the outer door of the shed; but we do not find that it was there at the time of said application for licensé or at any time subsequent thereto. We find from the testimony that from the time said application for license was made said number was continuously displayed at the place where the shop, now numbered 349 Diamond Hill road, was being constructed, and that before said license was granted said number was placed upon the door of said shop where it now is.

957(4)—

4. MUNICIPAL CORPORATIONS TOWN MEETINGS-TAXES-ELECTION. As the purpose of a proviso is to limit rathThe petition for a writ of certiorari is de er than extend, the proviso in Const. art. 2, nied and dismissed.

(39 R. I. 1)

In re OPINION OF JUDGES. (Supreme Court of Rhode Island. April 7, 1916.)

1. TAXATION 28-POWER OF TAXATIONRIGHT TO EXERCISE.

The power of taxation is vested primarily in the state and may be lawfully exercised by subordinate political bodies only in so far and

as amended by article 7 of the amendments, that no person shall at any time be allowed to vote upon any proposition to impose a tax or for the expenditure of money in any city or town unless he shall have paid certain taxes, does not enlarge the rights of personal property voters so as to render House Act No. 255, creating a financial council for the city of Warwick, invalid as depriving such electors of their guaranteed right of voting on assessment of taxes, etc.

[Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. §§ 2020, 2021; Dec. Dig. 957(4).]

-

"CIVIL OFFICER”

5. ELECTIONS 10%
RIGHT TO VOTE FOR.
While House Act No. 255, § 4, limits the
right to vote for members of the financial coun-
cil of the city of Warwick to electors qualified
to vote on any proposition to impose a tax or
for the expenditure of money in the town, it is
not invalid as depriving registered voters of
any rights given them or of their right to vote
for all civil officers, for, while a civil officer is
distinguished by the characteristics of tenure,
of a definite term, of general duties, of right to
emoluments, and of qualification by oath, the
term, in view of preceding legislation, is lim-
ited only to those civil officers required by law
and the Constitution to be elected by such

voters.

[Ed. Note.-For other cases, see Elections, Dec. Dig. 101⁄2.

For other definitions, see Words and Phrases, First and Second Series, Civil Officer.]

Submission by the House of Representatives of the question of the constitutionality of House Act No. 255, §§ 1, 4, of the January Session, A. D. 1916. Opinion rendered pursuant to Constitution, art. 12, § 2, as amended.

We have received from your honorable body a resolution requesting our opinion upon the following question:

"1. Is section 1 of House Act No. 255, January Session, A. D. 1916, entitled 'An act to create a financial council in the town of Warwick,' a copy of which is appended hereto and made a part hereof, taken in connection with the provisions of section 4 of said proposed act which provides for the election of the members of said financial council inconsistent with the provisions of article 2 of the Constitution of the state of Rhode Island, as amended by article 7 of the amendments thereto?"

These sections are as follows: "Section 1. There shall be a financial council consisting of ten members in and for the town of Warwick. All power and authority heretofore by law conferred upon, vested in, or exercised by the electors of the town of Warwick qualified to vote upon any proposition to impose a tax or for the expenditure of money in financial town meeting assembled, are hereby conferred upon and vested in and shall be hereafter exercised by said financial council.

"The town council of the town of Warwick shall continue to exercise all the powers and authority conferred upon the same by the general and special laws, and nothing shall be herein construed so as to derogate from or limit said powers and authority."

elections as herein before provided shall be governed by the provisions of chapter 10 and chapter 11 of the General Laws, and all amendments and additions thereto: Provided, however, that the nomination of candidates for said financial council in caucus or convention or by nomination papers shall be made only by the electors of said town qualified to vote on any proposition to impose a tax or for the expenditure of money in said town. Special ballots containing the nominations for members of the financial council in addition to the nominations for officers which can be voted for by voters qualified to vote by registry at any biennial election of town officers, shall be printed for the use of such electors only as are qualified to vote upon any proposition to impose a tax or for the expenditure of money in said town. Said special ballots shall be printed on paper of a different color from that of the other official ballots or the specimen ballots, and shall have printed on the back and outside the additional words 'financial council,' and shall be given by the supervisors to such electors only as are qualified to vote on any proposition to impose a tax or for the expenditure of money in said town.

"When from any cause there shall be a failure to elect any member of the financial council at any biennial election, the polls shall be re-opened on the seventh day after said election, and like proceedings shall be had until an election takes place."

Article 2 of the Constitution, as amended by article 7 of Amendments, enumerates the various classes of voters under the Constitution. They are generally as follows:

(1) Every male citizen of the United States having the qualifications of residence, etc., in the state and town or city, who is possessed in his own right of real estate of the value of $134, "shall thereafter have a right

to vote in the election of all civil officers and on all questions in all legal town or ward meetings so long as he continues so qualified."

(2) Every such citizen who has registered under the law and who shall within the year next preceding have paid a tax assessed upon his property therein, valued at least at $134, "shall have a right to vote in the election of all civil officers, and on all questions in all legally organized town or ward meetings."

(3) Every such citizen who has registered under the law, but has not paid the required tax, "shall have a right to vote in the election of all civil officers and on all questions in all legally organized town or ward meetings," except "in the election of the city council of any city, or upon any proposition to impose a tax or for the expenditure of money in any town or city."

Two questions seem to be raised for consideration:

"Sec. 4. After the special election held as hereinafter provided, the electors of the town of Warwick qualified to vote on any proposition to impose a tax or for the expenditure of money shall at the biennial election in November, 1918, and quadrennially thereafter, give in their votes in their respective voting district for five members of the financial council, who shall hold their respective offices for the term of four (1) Does section 1 of the proposed act, years, and until their successors are elected and wherein it vests in said financial council all qualified; and at the biennial election in November, 1920, and quadrennially thereafter, the powers exercised by the taxpaying voters in electors of the town of Warwick qualified to financial town meeting assembled, deprive the vote upon any proposition to impose a tax or real and personal property voters of any for the expenditure of money, shall give in their votes for five members of the financial council right given to them under said article 2 of who shall hold their respective offices for the the Constitution, and is it inconsistent with term of four years and until their successors the power given them to vote "on all quesare elected and qualified. "The nomination and election of members of tions in all legally organized town or ward the financial council at the regular biennial meetings"?

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