nounced is criminal, it is so equally all over the State, in localities where the temperance cause is strong, and where it is weak; if the enactment is to be applicable at all, it must be so wherever the right hand of the law can reach to enforce it. It is, therefore, and from its nature must be, general legislation in the broadest and most generic sense of the term. And from this it follows necessarily that it can not be operative in one locality and nugatory in another. This conclusion is predicated not less on correct notions of modern legislation than upon the plain command of the Constitution of Ohio, which provides in section 26 of article 2, "All laws of a general nature shall have a uniform operation throughout the State; nor shall any act, except such as relates to public schools, be passed to take effect upon the approval of any other authority than the General Assembly, except as otherwise provided in this Constitution."

Now the Constitution not only nowhere else provides for entrusting liquor legislation to the electors of the State or of any part thereof, but, as we have already seen by section 18, supra, that subject is placed in the special charge of the General Assembly. And the Supreme Court in construing the legal effect of section 26, in the case of Kelley v. State, 6 Ohio, St. 269, say: "The act of the General Assembly of April 9, 1856, to restore to the court of common pleas the jurisdiction of minor offenses in certain counties of the State, being general in its nature, and yet limited in express terms to a part of the counties of the State, is in conflict with the 26th section of the second article of the Constitution, which requires that all laws of a general nature shall have a uniform operation throughout the State." And again on page 272: "They," (i. e. general laws) "can not be withdrawn from the operation of the plain constitutional prohibition, unless by an exemption contained in the same instrument. And that exemption, to be effectual should be as explicit as the instrument itself. It must be found in express terms, or at least, arise by implication fair and necessary." The obvious and certain effect of the submission of a local option law to the electors, would be its adoption in some localities and its rejection in others, for therein consists the advantage claimed for it, and no difference is perceived between this effect and the naming of certain localities in which the law shall be operative to the exclusion of others not so named; and this again would bring the proposed enactment squarely within the decision above quoted. And not only so, but the contingency upon the happening of which the proposed legislation is to become either a criminal law in full vigor, or an utter nullity, is made to depend upon a vote of the people on the very subject which the people themselves have already by section 18, supra. intrusted to the General Assembly. The duty thus laid upon that body is not satisfied by a relegation of it to the people by piecemeal. The legislature can not so avoid the responsibility cast upon them by the organic law of the State; nor can the public so assume an authority which does not belong to it. Before the citizens of Ohio

can be made amenable to the sanctions of a general law, they have the right to know that such law is the product of the aggregate wisdom of the State in its representative form, expressed in the constitutional mode and accountable to its great constituency, the people. In this view, the proposed fragmentary legislation, by isolated locali ties, and of partial application, would be mere usurpation and wholly subversive of the representative system of government. The attempt finds its prototype in the action of the Demos of Athens, by which the command of the army at Sphacteria was given to Kleon the leather dresser. In the case of People v. Collins, 3 Mich. 416, the court say: "Public opinion will prevail, but it will be enlightened, deliberate, permanent and organically expressed public opinion. It is this opinion alone which the Constitution designed should govern. Such a government secures deliberation and responsibility in legislation, and affords protection against the despotism of official rules on the one hand, and of irresponsible numerical majorities on the other. It has been appropriately termed the 'flower of modern civilization." Nothing could better express, by way of contrast, the essential infirmity of the sought for law. See also Maize v. State, 4 Ind. 342. Mr. Justice McKinstry, in rendering the opinion of the Supreme Court of California in the case of Ex parte Wall, 48 Cal. 279, a case in which the local option statute of that State was before the court, says: "The statute under consideration simply permits a species of plebiscitum with reference to a particular subject in which the only option of the people of a township is to say 'yes' or 'no' to a complicated project." And again he says: "The legislature can not transfer to others the responsibility of deciding what legislation is expedient and proper, with reference either to present condition or future contingencies. To say that the legislators may deem a law to be expedient, provided the people shall deem it expedient, is to suggest an abandonment of the legislative function by those to whose wisdom and patriotism the Constitution has intrusted the prerogative of determining what is or is not expedient." And in Barto v. Himrod, 8 N. Y. 492, Chief Justice Ruggles says: "If the legislature can not delegate to an individual the authority to determine by the mere exercise of his judgment whether a statute ought to take effect or become a law, it follows as a necessary consequence that they can not delegate it to the whole people. The Constitution has no more authorized it in the latter case than in the former. The people have limited the exercise of their own power to the modes pointed out in the Constitution. And although they hold the ultimate sovereignty of the State, they are subject like other sovereigns to established fundamental law." In the same case Mr. Justice Willard says: "If this mode of legislation is permitted and becomes general, it will soon bring to a close the whole system of representative government which has been so justly our pride. The legislature will become an irresponsible cabal, too timid to assume the responsibility of law givers,

and with just wisdom enough to devise subtle schemes of imposture to mislead the people. All the checks against improvident legislation will be swept away; and the character of the Constitution will be radically changed." So the Supreme Court of New Jersey in the case of State v. Morris, Common Pleas, says: "The will of the legislature must be expressed in the form of a law by their own act. If it is left to the contingency of a popular vote to pronounce whether it shall take effect it is not the will of the law-makers, but the voice of their constituents which moulds the rule of action. If the vote is affirmative, it is law; if it is negative it is not law; the vote makes or defeats the law, and thus the people are permitted unlawfully to resume the right of which they have divested themselves by a written constitution, to declare, by their own direct action, what shall be law." An eminent writer on political science says: "The system of special legislation from top to bottom. is based on a supposed necessity, which is taken for granted as existing, that privilege may be conceded to one or a few which it is not safe or politic to concede to all. Nature never acts in this way, nor will thoroughly enlightened governments do so, when such exist. It is unnecessary to dilate upon the nature of this abuse, which may safely be set down as the greatest danger to which any system of government is liable; it may almost be said to be the root of all political ills. Legislation should know nothing of individuals. All modern thought tends to the conclusion that the universe is controlled by general laws; and a belief in special providences is entertained only by the most superstitious. A sound system of government should recognize individuals no more than the laws of nature recognize them. The law should apply to all, without discrimination for or against." Says Cooley, in his work on Constitutional Limitations, p. 122: "If the decision of this question is to depend upon the weight of judicial authority up to the present time, it must be held that there is no power to refer the adoption or rejection of a general law to the people of the State, any more than there is to refer it to any other authority. The prevailing doctrine in the courts appears to be that, except in those cases where by the Constitution the people have expressly reserved to themselves a power of decision, the functions of legislation can not be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration." The proposition that the power of general legislation can not, under a constitutional form of government, be transferred to the people is supported by the following authorities: Santo v. State, 2 Iowa, 203; Geebrick v. State. 5 Id. 492; Rice v. Foster, 4 Harr. 479; Meshmeier v. State, 11 Ind. 482; Houghton v. Austin, 47 Cal. 646; Thorne v. Cramer, 15 Barb. 112; Bradley v. Baxter, Id. 123; Bank etc. v. Brown, 26 N. Y. 472; State v. Copeland, 3 R. I. 33; People v. Stout, 23 Barb. 349: Peterson v. Society etc., 4 Barb. 385; State v. Swisher, 17 Tex. 441; Parker v. Commonwealth, 6 Penn. St. 507: State v. Beneke, 9 Iowa, 203. Now it is not contended that a valid law may

not be placed upon the statute book, the going into effect of which shall be conditioned upon the happening of some event in futuro. But such a law must be a completed rule of action when it leaves the State house door. The happening of the event may be the circumstance decisive of whether the power of the law shall be exercised or not; but the vitality of the enactment, the question of it being law or no law, is in Ohio the province of the legislature and not of the electors. This distinction is well recognized in the books: Cass v. Dillon, 2 Ohio St. 607; Thompson v. Kelley. Id. 647; Trustees v. Cherry, 8 Ohio St. 568; State v. Com. of Perry County, 5 Ohio St. 497.

Again, it must be conceded that the legislature may with propriety, by statute, bestow upon townships or municipalities, as distinct entitiesas local governments, acting through the media of boards of trustees or municipal councils-the power to make police or other regulations relating to their internal economy, in the form of by-laws or ordinances, which may in any particular locality have the force and effect of positive law. The right of the legislature to confer such power of internal police is the necessary implication from section 6 of article 13 of the Constitution of Ohio. See case of Burckholter v. Village of McConnellsville, 20 Ohio St. 308, in which the validity of the celebrated McConnellsville ordinance was sustained; Bliss v. Kraus, 16 Ohio St. 54; Fox v. Fox, 24 Ohio St. 335; Haughton v. Austin, 47 Cal. 646. The same result is reached by the warrant of immemorial practice both in this country and in England. But such power must be exercised only by the organized authority to which it is intrusted; it can not be re-delegated at the will of the trustee to any other body and much less to the body of the people; and this rule is to be held in all strictness and is not to be in any degree relaxed by implication: Hopple v. Brown Township, 13 Ohio St. 324; Dunham v. Rochester, 5 Cow. 465; Reed v. Toledo, 18 Ohio, 161; Douglass v. Placerville, 18 Cal. 643; Savannah v. Hartridge, 8 Ga. 23; Thompson v. Shermerhorn, 6 N. Y. 92; Clark v. Washington, 12 Wheat. 54. And it may at any time be resumed or terminated by the legislative body which was the author of the grant in the first instance: State v. Graves, 19 Md. 51; Goszler v. Georgetown, 6 Wheat. 597; Coates v. Mayor, 7 Cow. 605. The power, then, is never beyond immediate legislative control and accountability, and it may be gathered up without resort to the consent of the electors. And granting this exercise of police legislation in its largest significance, still the fact is in no conflict with the position that the electors acting in their individual capacities, can not by their votes give vitality to an enactment, which but for such votes would be devoid of binding force; and especially is this true when it is remembered that the electors of Ohio have, by the positive terms of section 18, supra, expatriated themselves from the entire domain of the liquor traffic legislation.

Various local option laws, so-called, presumably essentially the same as the measure pro

posed for Ohio, have already been before the courts of last resort of their respective States, where their constitutional sufficiency has been tested. One of these is passed upon in the case of State v. Weir, 33 Iowa, 134, of which the syllabus is, "The legislature has no power to make the operation or repeal of a law dependant upon a vote of the people. Therefore, held, that an act prohibiting the sale of ale. wine, etc., the operation of which is made dependent upon the vote of the people in each county, was unconstitutional.” In this case the court follow the express authority of Geebrick v. State, cited supra. Ex parte Wall, 48 Cal. 279, is to the same effect; the syllabus is: "The power to make laws can not be delegated by the legislature to the people of the State, or to any portion of the people; nor can the legislature enact that a law shall take effect provided the people of the State, or of a district, shall vote in favor of it. A statute empowered townships to decide by a popular vote whether or not the sale of spirituous liquors should be allowed within their precincts, such vote to be taken at a special election, to be called, on petition, by the board of supervisors of the county: Held, unconstitutional. Semble, that the legislature could delegate to a duly formed town government the power to regulate or prohibit the sale of spirituous liquor within the town;" and in the concluding clause of the opinion in that case the court say: "We think, therefore, this statute is void, because it did not become a law when it left the legislature, but was to take effect only when it should be approved by a majority of the people of a township, and then only in the township where thus approved; second, that this statute is not a law conferring upon towns any governmental or police powers. Let the petitioner be discharged."

On the other hand, a law similar to the one now under consideration, except that the option submitted to the popular vote was "license" or "no license," was held in the case of State ex rel Sanford v. Morris Common Pleas, 36 N. J. 72, to be not "in conflict with that article of the State Constitution which provides that the legislative power shall be vested in a Senate and General Assembly." But this conclusion was reached on the express ground that the law was a mere police regulation, coming within the purview of the powers of the legislature to grant the exercise of the functions of the local government to municipalities, since the option was to be determined by a vote of the people in that peculiarly deliberative body known to the older States-"the annual town meeting." Whether this distinction can be successfully maintained (and the court in ex parte Wall, supra, denied that it could), is perhaps immaterial now, for the question of the legislature thrusting back upon the people a duty enjoined by the people upon the legislature, viz., that of dealing with this whole subject, obviously did not arise in that case. A similar decision was reached in Locke's Appeal, 72 Penn. St. 491, and also in Commonwealth v. Bennett, 108 Mass. 27, and upon similar reasoning. In neither, however, was the question raised by section eighteen of the

schedule of the Ohio Constitution involved; the courts seem to have passed only upon the general question of delegation of legislative authority.

It will not escape notice that the carefully chosen language of section eighteen is that, "the General Assembly may, by law, provide against the evils, etc."—not by mass meeting, not by petitions pregnant with declamation, not by appeal to the proletariat, but by law! Here is plainly contemplated a class of pervasive legislation, to be vouched for by the associated wisdom and responsibility of the law making branch of the State government, and not enactments which shall come into a precarious existence through the spasmodic efforts of a temporary popular majority in isolated districts, acting upon impulse and accountable to no one. Indeed, it may be fairly questioned whether that section admits of the inference that may be made the vehicle for passing, either directly, or by conveying its potency over to the voters, a strictly prohibitory law, since it only authorizes the power to provide against the evils resulting from the traffic, presupposing the existence of the traffic as the source of the evils.

No one can doubt that the liquor enactments in Ohio are far more stringent than the execution of them. Whether such lax enforcement of laws confessedly beneficial in their purpose is due to a low grade of public sentiment in regard to them, or to a want of moral stamina in the officers charged with their execution, we need not stop to inquire. But we have a right to ask whether the promoters of the proposed legislation will be likely to have the partial and fragmentary ordinances of petty communes enforced with any more courage or vigor than general laws, passed to remedy the very same mischiefs, of which an abundance now slumber within the lids of our statute books, practically inoperative, and which represent the power and dignity of a great State in its entirety. The answer unfortunately is to be found in the application of the words of the acute historian of the Roman republic: "What Demosthenes said of his Athenians was justly applied to the Romans of this period, that people were very zealous for action so long as they stood round the platform and listened to proposals of reform; but when they went home no one thought further of what he had heard in the market place." Whether we look at this question in the light of the overwhelming analogy furnished by the decided weight of judicial authority in this and other States, or whether we confine it to the plain text of the Constitution of Ohio, it seems difficult to reach any conclusion other than that the scheme of local option as it is now urged upon the legislature and the public of the State, wil be found radically and fundamentally defective when brought to the decisive test of judicial scrutiny. If this be true, the present agitation of the matter is to be deprecated as untimely and inconsiderate. The multiplication of repressive laws, passed only to be suffered to fall into desuetude and to remain unexecuted, can have no other effect than to beget in the people an habitual disrespect for all law, than which nothing can well be more pernicious.

COMMON CARRIERS-"ARTICLE OF GREAT VALUE"-FAMILY PORTRAIT-MEASURE OE DAMAGES.

GREEN v. BOSTON, ETC. R. CO.

Supreme Judicial Court of Massachusetts, November Term, 1879.

1. In an action against a railroad company for the loss of a case containing a portrait of the plaintiff's father, which was delivered to it for transportation, statements and letters of the defendant's freight agent made after their loss and in relation thereto are admissible and competent.

2. Upon the cross-examination of such agent, who was produced as a witness for the plaintiff, the question whether "he had any authority to take such goods as this case contained" was rightly excluded.

3. A portrait is not an "article of great intrinsic or representative value," within the meaning of a treight contract requiring a representation of the value, and a special agreement for the transportation thereof.

4. The true measure of damages for the loss of a family portrait having no market value is its actual value to its owner, and his testimony that he had no other portrait of the same person would bear upon the question of its actual value to him and would be competent.

5. Evidence that the case together with other household furniture filling two cars was delivered to the defendants at Lawrence to be transported to Providence, whence it was to be carried by the Clyde Line to Philadelphia; that the two cars were received by the agents of the Clyde Line from the detendants "unopened and just as they were received from the North," and were kept carefully watched and guarded until the goods were transferred to the steamer, and that on unloading the cars it was found that the case was not in either car, would justify the jury in finding that the said portrait was lost while in the possession of the defendants.

Contract to recover the value of an oil painting, the portrait of the plaintiff's father.

The evidence introduced by the plaintiff tended to prove that the portrait was delivered to the defendants, boxed in a rough board box or case, to be carried with household furniture over the defendants' road and other roads connecting with them at Providence, R. I. The plaintiff testified that he never received the portrait, and also that about two months after said goods were delivered to the defendants he saw Mr. Rolfe, the freight agent of the defendants, at Lawrence, and had a conversation with him in regard to the lost case; that Mr. Rolfe said they had been trying to find it, but so far were unable to do so: "We or the Clyde Line will have to pay for it." He also said “We have delivered it to the Clyde Line." This conversation was admitted against the defendants' objection. The plaintiff also introduced letters from said Rolfe and from one Lincoln, the general freight agent of the defendants, in regard to said loss, against the defendants' objection. The other evidence and the rulings of the court sufficiently appear in the opinion.

A. C. Stone, for the plaintiff; D. & C. & C. G. Sunders, for the defendant.

MORTON, J., delivered the opinion of the court: The bill of exceptions does not show any error in the admission in evidence of the plaintiff's conversation with Rolfe. He was the freight

agent of the defendant and who made the contract with the plaintiff, and was the person to whom the plaintiff might properly apply to account for the missing case. Statements made by him in the course of investigating the loss would be declarations within the scope of his agency, and admissible against the defendants. Lane v. Boston, etc., R. Co., 112 Mass. 455.

The defendants contend that the statement made in the conversation that "we or the Clyde Line will have to pay for it" was not within this rule, because it was a mere admission of the liability of the defendants. But it was accompanied by a statement that "we have delivered it to the Clyde Line," and was thus a denial of the defendants' liability. It contained an implied admission that the case had been delivered to the defendants, and in this view was competent even if it had been an admission of their liability. For the same reasons the letters of Rolfe and of Lincoln were properly admitted.

The said Rolfe was produced as a witness by the plaintiff, and upon cross-examination the defendant asked him "if he had any authority to take such goods as this case contained." This question was rightly excluded by the court. Rolfe was the freight agent of the defendants at Lawrence, held out to the world as authorized to receive goods and to make contracts for their transportation. There is nothing to show that the plaintiff had notice of any limitation of his authority. He had the right to assume that Rolfe had the general authority implied by his position, and is not affected by any private instruction limiting that authority.

The contract between the parties contains the following provision: "No responsibility will be admitted under any circumstances to a greater amount upon any single article of freight than $200, unless upon notice of such amount and a special agreement therefor. Specie, drafts, bank bills and other articles of great intrinsic or representative value will only be taken upon a representation of their value and by a special agreement assented to by the superintendent." The defendants asked the court to rule that as the plaintiff had not given notice of the value of the lost case and had made no special agreement as to its transportation assented to by the superintendent he could not recover. The plaintiff admitted that the first clause of this provision applied to this case, and claimed and recovered only a verdict for $200. The other clause does not specify portraits as articles which will be taken only upon a representation of their value and a special agreement. It specifies "specie, drafts and bank bills." In determining the meaning of the words "other articles of great intrinsic or representative value," the rule noscitur a sociis applies; the general words following the particular enumeration must be held to include only articles of the like kind. A portrait is not an article of great intrinsic or representative value like specie or drafts or bank bills, and therefore the court rightly refused to rule as requested in the second and third prayers of the defendants.

The defendants asked the court to rule that "the plaintiff can only recover a fair market value of the article lost." The general rule of damages in trover and in contract for not delivering goods undoubtedly is the fair market value of the goods. But this rule does not apply where the article sued for is not marketable property. To instruct a jury that the measure of damages for the conversion or loss of a family portrait is its market value would be merely delusive. It can not with any propriety be said to have any market value. The just rule of damages is the actual value to him who owns it, taking into account its cost. the practicability and expense of replacing it, and such other considerations as in the particular case affect its value to the owner. Stickney v. Allen, 10 Gray, 352. The court properly refused to give the instruction requested, and we are to presume gave proper instructions instead thereof. This being the rule of damages, the testimony of the plaintiff that he had no other portrait of his father would bear upon the question of its actual value to him and was competent.

The defendants requested the court to rule that there was no evidence of the loss of the case between Lawrence and the depot at Providence. But there was evidence that the case, together with other household furniture filling two cars, was delivered to the defendants at Lawrence to be transported to Providence, whence it was to be carried by the "Clyde Line" to Philadelphia; that the two cars were received by the agents of the "Clyde Line" from the defendants "unopened and just as they were received from the North," and were kept on their wharf carefully watched and guarded until the goods were transferred to the steamer, and that on unloading the cars it was found that the case containing the portrait was not in either car. It was the exclusive province of the jury to judge of the credit and weight of this testimony. If it satisfied them that the case was not lost after the cars reached Providence the necessary inference was either that it was not put into the cars at Lawrence or that it was lost between Lawrence and Providence. The instruction requested was therefore rightly refused.

The court also rightly refused to instruct the jury as requested in the fifth prayer that "the mere fact that the goods were not received by the Clyde Line of steamers from Providence is not evidence that the goods were lost before they arrived at the depot in Providence." The court was not required to instruct the jury as to what might be the effect of one fact taken separately. when it was accompanied and connected with other facts tending to establish the main issue. Packer v. Hinckley Locomotive Works, 122 Mass. 484.

We have thus considered all the points upon which the defendants now insist, and find no reason for setting aside the verdict. Exceptions overruled.

INJURIES TO CHILDREN-CULPABLE NEG

LIGENCE.

CENTRAL BRANCH, ETC. R. CO. v. HENIGH.

Supreme Court of Kansas, February, 1880.

Where a railroad company constructs a certain switch track 667 feet in length on its own land near a small vil. lage, making the grade of 280 feet thereof at the rate of eighty feet to the mile, and afterwards for several years operates its railroad and switch-track, and then in accordance with its usual custom places a flat car on said switch-track and grade and properly fastens the same with an ordinary hand brake, and on the next day a small boy, four years, eight months and a few days old, goes to said car, without any right or authority so to do, and without the knowledge or consent of the railroad company, and not accompanied by any person, and climbing upon said car and unfastening the brake, and the car then by its own weight moves down said grade, and the boy either jumps off or falls off in front of said car and is run over by the car and killed: Held that the company is not guilty of any culpable negligence toward said boy, nor liable for damages on account of his death.

VALENTINE, J., delivered the opinion of the

court:

This was an action brought in the District Court of Atchison county by the defendant in error as administrator of the estate of Charles W. Henigh, deceased, against the plaintiff in error, to recover the sum of $10,000 damages alleged to have been sustained by reason of the death of said Charles W. Henigh, an infant of the age of four years, eight months and and a few days, which death is alleged to have been caused through the negligence of the plaintiff in error. The petition of the plaintiff below, defendant in error, sets forth the facts supposed to constitute the alleged negligence of the defendant below, plaintiff in error, the said death of the said Charles W. Henigh, which occurred June 24, 1877, and the appointment of the plaintiff below, David Henigh, as the administrator of said Charles W. Henigh's estate. The answer of the defendant below denies negligence on the part of the defendant, sets up negligence on the part of said Charles W. Henigh and his father and mother, said David Henigh and Mrs. Henigh, and denies the authority of the said David Henigh to act as administrator or to sue in this action. This last denial was duly verified by affidavit. The plaintiff replied to the defendant's answer by filing a general denial. The action was tried upon these pleadings before the court and a jury. The jury returned a general verdict in favor of the plaintiff and against the defendant, and assessed the damages at $600, and also made numerous special findings in answer to special questions submitted to them. The court rendered judgment in accordance with the general verdict of the jury, and to reverse this judgment the defendant, now as plaintiff in error, brings the case to this court. The various questions presented to this court were raised in the court below by the defendant below, plaintiff in error, as follows: By objecting to the plaintiff's evidence and portions thereof, by demurring to the plaintiff's evi