judgment of judicial officers as to when and in what cases the statutory heir is entitled to inherit would be substituted for a legislative determination of that question. Judgment affirmed.

LEWIS, J. According to our statute, when committed with a premeditated design to effect death, the killing of a person is murder in the first degree. When the killing is intentional, but the element of premeditation is absent, it is murder in the second degree. Murder in the first degree necessarily implies a plan, deliberation, and motive, and when the party perpetrating the crime will acquire property as a result it should be considered conclusive that such was the motive behind the crime.

I am of the opinion that the statute of descent was never intended to apply to a case such as Wellner v. Eckstein. When a statute may be construed in accordance with reason, and a strict reading of the language leads to a result abhorrent to reason, the rule of implied exception should apply. In the application of this rule to cases of murder in the first degree, I can see no infringement of the legislative power, nor danger of conflict between the co-ordinate branches of the government. According to the construction given the statute by the majority, it becomes an inducement for the commission of murder. Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819; Perry v. Strawbridge, 209 Mo. 621, 108 S. W. 641, 16 L. R. A. (N. S.) 244, 123 Am. St. Rep. 510; 7 Michigan Law Review, p. 160. But I admit that the rule of implied exceptions cannot apply when it does not conclusively appear that the murder was committed for the purpose of acquiring the property of the party murdered. In the present case, Mrs. Gollnik was indicted and convicted of murder in the second degree, and there was an absence of premeditation or plan, and although she killed her husband intentionally, it does not follow that the motive was the acquisition of his property.

men, from St. Paul to place certain steel arches in the Capitol at Pierre, S. D. The foreman had control of the men and was the defendant's sole representative on the work. During the progress of the work the foreman negligently ordered the plaintiff from a place of safety to work upon an unsafe scaffold, with the construction of which he had nothing to do A plank on the scaffold broke, whereby he was thrown down and injured. Held, that the foreman in giving the order was a vice principal, and that whether the plaintiff assumed the risk and was guilty of contributory negligence were questions of fact.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 449-474, 1068-1132; Dec. Dig. §§ 190, 288, 289.*]

Appeal from District Court, Ramsey County; Hascal R. Brill, Judge.

Action by Charles Johnson against the St. Paul Foundry Company. Verdict for plaintiff. From an order denying judgment notwithstanding the verdict or a new trial, the court refused the motion and reduction by

plaintiff of the verdict, and defendant appeals. Affirmed.

P. J. McLaughlin, for appellant. Samuel A. Anderson, for respondent.

START, C. J. The defendant had a contract for the furnishing and putting in place of certain steel arches in the Capitol at the city of Pierre, S. D., and sent its foreman, Nelson, with two of its employés, the plaintiff and a man by the name of Anderson, to execute the work. The foreman had charge of the work and control of the men, and was the sole representative of the defendant on the work, but he also engaged with the other two employés in manual labor. The plaintiff was a laborer and had been in the employ of the defendant 22 years as a helper, during which time he had assisted in building scaffolds. The first work they did after arriving at Pierre was in the interior of the dome of the Capitol standing upon a swinging scaffold built by them. No accident occurred while this work was being done, and the scaffold used in doing the work was entirely separate from the one from which the plaintiff fell, as hereafter stated. this work was done, it was necessary to fit and place in position certain channel irons at the base of the dome and at a height of about 30 feet from the first floor of the building. There was a delay of two weeks in getting the material from St. Paul, during which time the men were idle, with opportunity to observe what was going on in and about the building. The general conJOHNSON v. ST. PAUL FOUNDRY CO. (Supreme Court of Minnesota. Nov. 11, 1910.) fold for the use of his men working on the tractor for the building constructed a scafbuilding which was used by the other perMaster and Servant (§§ 190, 288, 289*)-IN- sons engaged in the construction of the buildJURY TO SERVANT- VICE PRINCIPAL- As-ing. It was built in the usual way and was SUMPTION OF RISK-CONTRIBUTORY NEGLI- composed of 16 levels, each 6 or 7 feet high. The defendant sent three of its employés, The evidence is not entirely harmonious as one of whom was the plaintiff, and one its fore- to when it was completed; but there was

For this reason, I concur in the result.

JAGGARD, J. I respectfully dissent. The reasons, to be found in Judge Elliott's opinion, and allied considerations not there developed, apply to murder in the second degree as well as to murder in the first degree.

GENCE.

(Syllabus by the Court.)

After

to assist him at the time and under the circumstances disclosed by the evidence, was a vice principal or merely a fellow servant. If it conclusively appears from the evidence as a matter of law that the defendant owed the plaintiff no duty as to his safety under the circumstances, then it was not guilty of any actionable negligence, and the requested instruction should have been granted; otherwise not.

This case must not be confused with those which hold the master not liable where the injured employé actively participates with his co-employés in the construction of the instrumentality whereby he is injured. Such cases are the reverse of the one at bar, where the plaintiff was ordered by the representative of the defendant on the work from a

evidence to sustain a finding that it was com- The contention of the defendant is that pleted when the plaintiff first commenced to the trial court erred in not granting the rework on the building, or within two or three quested instruction, for the reason that there days thereafter, and that the plaintiff neither was no evidence tending to show that it was assisted in its construction nor saw it in guilty of any actionable negligence in the process of construction, nor did he have any premises, that the plaintiff's injuries were notice or knowledge that it was in any re- due to the negligence of a fellow servant, spect unsafe until after the accident. There that the plaintiff assumed the risk, and that were loose planks scattered about on the he was guilty of contributory negligence. different levels of this scaffold which the The real question is whether the foreman, employés of the general contractor shifted in ordering the plaintiff upon the scaffold from one part of the level to another as it became necessary so to do; but the evidence is far from conclusive that the plaintiff had prior to the accident any knowledge of such fact or of the condition of the scaffold at the place of the accident. The plaintiff and Johnson worked the day before the accident on the opposite side of the building from where the accident occurred, and they there arranged the planks to suit themselves. There was evidence tending to show that the de fendant by its foreman adopted this scaffold built by the general contractor as its own for the purpose of putting in the channel iron. On the afternoon of August 13, 1909, the foreman went upon a single plank of the scaffold with, an iron weighing 70 pounds in his hands intending to put it in place. The plaintiff was at this time on the concrete | place of safety to work upon an unsafe scaffloor picking up material. The foreman directed him to come and assist him. The plaintiff obeyed and stepped upon a plank of the scaffold upon which the foreman was standing. The plank, as a subsequent examination disclosed, had in it two knots near the middle, and it was, even if it had been sound, insufficient to sustain the weight of the two men and the iron. There should have been at least two sound planks. An inspection of the plank would have disclosed its defective and unsafe condition. There was no evidence tending to show that the foreman made any inspection. When the plaintiff stepped upon the plank and took hold of the iron to assist the foreman, the plank broke, and he was thereby thrown from the scaffold and seriously injured. He brought this action in the district court of the county of Ramsey to recover damages on the ground that the injuries were caused by the negligence of the defendant. At the close of the evidence the defendant asked for an instructed verdict in its favor. It was denied. The jury awarded the plaintiff damages in the sum of $10,000. The trial court made its order denying the defendant's motion for judgment notwithstanding the verdict, but granted its alternative motion for a new trial unless the plaintiff would consent to a reduction of the verdict to $7,500. did so, and the defendant appealed from the order. The only substantial question presented by the record is whether the trial court erred in denying the defendant's request for an instructed verdict.

He

fold, with the construction of which neither he nor his fellow servants had anything to do. The defendant owed to the plaintiff the absolute duty of exercising due care to furnish him a safe place in which to work, and its foreman in selecting the scaffold already prepared and in ordering the plaintiff upon it to work was its representative; that is, a vice principal. His negligence was its negligence. Hagerty v. Evans, 87 Minn. 435, 92 N. W. 399; Merrill v. Pike, 94 Minn. 186, 102 N. W. 393; Johnson v. Lindahl, 106 Minn. 382, 118 N. W. 1009.

The evidence sustains the finding of the jury that the foreman was guilty of negli gence. Whether the plaintiff assumed the risk or was guilty of contributory negligence were questions of fact and were properly submitted to the jury. The defendant was not entitled to a directed verdict. We find no reversible errors in the rulings of the trial court on the admission of evidence nor in its instructions to the jury. Order affirmed.

STATE ex rel. STOLTENBERG v. BROWN,
City Comptroller.
(Supreme Court of Minnesota. Nov. 11, 1910.)

(Syllabus by the Court.)

1. SCHOOLS AND SCHOOL DISTRICTS (§ 79*) POWERS OF SCHOOL BOARD-PHYSICAL EXAMINATION OF PUPILS.

A school board may employ a suitable person to ascertain the physical condition of the

pupils in attendance upon the public schools of the district.

[Ed. Note.-For other cases, see Schools and School Districts, Dec. Dig. § 79.*]

(Additional Syllabus by Editorial Staff.) 2. WORDS AND PHRASES-"EDUCATION."

"Education" of a child means much more than merely communicating to it the contents of a book. The physical and mental powers of the individual are so interdependent that no system of education would be complete which ignored bodily health.

[Ed. Note.-For other definitions. see Words and Phrases, vol. 3, pp. 2316, 2317; vol. 8, p. 7647.]

Appeal from District Court, Hennepin County; Andrew Holt, Judge.

| casion to consider the organization of that body, and held that in its general purposes and characteristics it did not differ from the other school districts of the state. The purpose of the corporation is to maintain efficient, free, public schools within the city of Minneapolis, and, unless expressly restricted, necessarily possesses the power to employ such persons as are required to accomplish that purpose. Education of a child means much more than merely communicating to it the contents of text-books. But, even i the term were to be so limited, some discre tion must be used by the teacher in determining the amount of study each child is capable of. The physical and mental powers of the individual are so interdependent that no system of education, although designed solely to develop mentality, would be com

Application by the State, on the relation of Margaret Stoltenberg, for writ of mandamus to Daniel O. Brown, City Comptroller of Minneapolis. Judgment for relator, and deplete which ignored bodily health. And this fendant appeals. Affirmed.

Frank Healy and Wm. H. Morse, for appellant. Lind, Ueland & Jerome, for respondent.

O'BRIEN, J. Relator obtained an alternative writ of mandamus directing the defendant, D. C. Brown, as comptroller of the city of Minneapolis, to countersign a warrant for salary claimed to be earned by her as an employé of the board of education of the city of Minneapolis. A motion to quash, interposed upon behalf of the comptroller, was denied. He elected to stand upon his motion, and thereupon judgment was entered for a peremptory writ. The allegations of the petition are therefore to be taken as true, and, if sufficient to show the relator entitled to relief, the judgment must be affirmed.

On December 14, 1909, the board of education of Minneapolis, pursuant to a previously adopted resolution recommending the employment of a suitable graduate nurse for one month to make an inspection of the physical condition of the pupils of certain named schools, appointed the relator to make such inspection at a salary of $60 for the month's services. The relator performed those services for the period named, and was placed upon the pay roll as entitled to the sum of $60. A warrant for that sum was drawn and signed by the president and secretary of the board; but, when presented to Mr. Brown, the comptroller of the City of Minne apolis, he refused to countersign the warrant. By the motion to quash the alternative writ, the authority of the board of education to employ the relator for the purpose named is challenged, and there is presented for consideration that single question.

The board of education of the city of Minneapolis is a corporation, organized under certain special laws, which it is unnecessary to give in detail here. In the recent case of Jackson v. Board of Education, 127 N. W. 569, filed August 26, 1910, we had oc

is peculiarly true of children whose immaturity renders their mental efforts largely dependent upon physical conditions. It seems that the school authorities and teachers coming directly in contact with the children should have an accurate knowledge of each child's physical condition, for the benefit of the individual child, for the protection of the other children with reference to communicable diseases and conditions, and to permit an intelligent grading of the pupils. All of these considerations, as well as many others unnecessary to mention, convince us that the conclusions of the learned trial judge were entirely right.

Judgment affirmed.

STATE ex rel. PEACOCK v. VILLAGE COUNCIL OF OSAKIS et al. (Supreme Court of Minnesota. Nov. 11, 1910.) (Syllabus by the Court.) 1. ATTORNEY GENERAL (§ 4*) - DUTIES — APPEARANCE FOR STATE.

The Attorney General may appear and contest proceedings in mandamus, when the object sought is to compel the performance by a public officer of an official act in connection with the police laws of the state.

[Ed. Note. For other cases, see Attorney General, Cent. Dig. § 4; Dec. Dig. § 4.*] 2. ISSUE OF LIQUOR LICENSE.

It is doubted that mandamus will lie to

compel the issuance of a liquor license, after a resolution of a village council granting the license, but before the acceptance of the fee and approval of the bond.

local option as to the sale of intoxicants, and superseded section 48, c. 145, Gen. Laws 1885. [Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 25.*]

5. INTOXICATING LIQUORS (§ 35*)-GRANT OF

LICENSE-ELECTION.

When the question of issuing licenses to sell intoxicating liquors is duly submitted to the voters of a municipality, a majority in favor thereof of all the votes cast at the election is necessary to authorize the granting of such license by the municipal authorities.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. § 35.*] Appeal from District Court, Douglas County; L. L. Baxter, Judge.

Application by the State, on the relation of William A. Peacock, for a writ of mandamus to the Village Council of the Village of Osakis and others. Judgment for a peremptory writ of mandamus, after the entry of which the Attorney General, in the name of the State, appealed. Reversed.

George T. Simpson, Atty. Gen., Geo. W. Peterson, Asst. Atty. Gen., and Constant Larson, Co. Atty., for the State. Donohue & Stephens, for respondent. Gunderson & Leach, for defendants.

record shows the appearance, apparently without objection, of Mr. Constant Larson upon behalf of the state. Upon a hearing the allegations of the petition were found to be true, and judgment entered directing a peremptory writ as demanded. After the entry of judgment, the Attorney General, in the name of the state, appealed to this court.

1. Relator has moved for a dismissal of this appeal upon the ground that the state is not a party to and has no interest in the proceedings. The motion must be denied. The state, in its governmental capacity, has a

direct interest in the enforcement of its laws

regulating the sale of intoxicating liquors. The duty of securing the proper interpretation and enforcement of those laws has been confided to the administrative public officers

in the state. Of these the Attorney General is the highest law officer, and to his discretion has been confided the part the state shall take in its governmental capacity in any specific case in which a police law of the state may be called in question. This proceeding is brought in the name of the state, and it would be strange if the relator were permitted to use the name of the state as plaintiff in a proceeding brought to compel the performance by a public officer of an official duty, and the highest law officer of the state were not permitted to take part and by a proper appeal bring the question before this court for final adjudication. State v. Robinson, 101 Minn. 277, 112 N. W. 269, 20 L. R. A. (N. S.) 1127; State v. Village of Kent, 96 Minn. 255, 104 N. W. 948, 1 L. R. A. (N. S.) 826; State v. Standard Oil Co., 126 N. W. 528.

O'BRIEN, J. This was a proceeding in mandamus, instituted upon the relation of Wm. A. Peacock, to compel the council of the village of Osakis to issue and deliver to him a license to sell liquors in the village. The members of the village council and the recorder were made parties respondent. At the village election in March, 1910, the question whether or not liquor licenses should be granted by the village was duly submitted. The poll list contained 260 names, and that seems to have been the number of persons who actually voted at the election, Of this number, however, only 250 voted upon the license question; 130 voting in favor, and 120 | voting against, licensing the sale of intoxicating liquors. The election officers certified the result, and no contest was ever instituted. The relator subsequently applied to the village council for a license, and after notice and a hearing it was resolved by the council that the application be granted, and that relator be licensed to vend intoxicating liquors in the village for the year commencing April 1, 1910. Thereafter the relator tendered the license fee and offered to furnish a bond; but, as alleged in the petition, "said council and treasurer of said village refused to receive said license money and said bond upon the sole and only ground that said village council is in doubt as to whether, under said vote at said election, they have the legal power and authority to grant said license." It was further alleged in the petition that two illegal votes were cast at said election, both against license. The respondents answered, admitting most, if not all, the allegations of the petition. The

2. It is, to say the least, very doubtful whether the petition states any ground for relief. It is, of course, well settled that such relief will only be granted to one who has a legal right to have the action taken which it is sought to compel; also that the courts will not attempt to control the exercise of the discretion vested by law in a public officer. It cannot be claimed that relator had a vested right to obtain the license, even after the adoption of the resolution by the village council. Until he had received the license, paid the fee, and performed the conditions required of him, there is no doubt the village council could have rescinded its action and refused to issue the license. But, assuming that the discretion of the council had been fully exercised, and nothing remained to be done except the ministerial act of delivering the license, it is necessary to consider the other questions presented by this appeal.

3. The election officers having canvassed the votes cast and duly made a return showing the result, that return is conclusive, except in a proceeding brought directly for the purpose of challenging it. The certificate of those officers attached to the petition in this case is as immune from collateral attack as

the return of any other board of election of- | which it could not surrender, so as to preficers or canvassers. McConaughy v. Sec. of State, 106 Minn. 392, 119 N. W. 408; State v. Churchill, 15 Minn. 455 (Gil. 369). The result of the election as certified by the election officers was, therefore, not open to question in this proceeding. We do not understand this to be in conflict with the views of the learned trial judge before whom this proceeding was brought. The allegations of the petition were all found to be true; but in the memorandum filed in connection with the findings the conclusion seems to be based upon the theory

that, a majority of the votes cast upon the (Supreme Court of Minnesota. Nov. 11, 1910.) question being in favor of license, the result authorized the issuance of licenses by the council.