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letter of the statute was evidently done, not but expressly continued in force by the Re. to avoid the imprisonment of the defend- vised Statutes then in effect, provided: "An ant, but to secure a trial before the county accessory to a murder or felony committed judge

.. The evidence in this case shall be examined by the court of that counshows conclusively that the surrender of the ty and tried by the court in whose jurisdicprisoner to the jailer was merely formal, and tion he became accessory, and shall answer merely with the design to give the quarter- upon his arraignment, and receive such judg. ly judge jurisdiction, and not for the safe ment, order, execution, pains, and penalties keeping of the prisoner, or because he was as is used in other cases

of feleither unable to give bail or unwilling to do ony.” But the saving clause contained in so, except for the purpose of bringing his the Revised Statutes, which continued the case within the statute.” Of all this the practice provided by the act of 1796, is not court said: “It is to be treated as if the in the present statutes or Code of Practice. prisoner had procured himself to be accused, Section 3 of the present Criminal Code of arrested, and tried, and then attempted to Practice reads: "All laws coming within the plead the judgment thus obtained in bar; purview of this act shall become repealed for, although he had been regularly indicted, when this act goes into effect, except as he procured a trial in the quarterly court provided in the preceding section." (The by a fraud upon the statute giving that preceding section relates alone to prosecucourt jurisdiction." In applying that de tion begun before January 1, 1877.) The cision to this case, it follows, a fortiori, that Criminal Code of Practice regulates the trial one accused of a crime cannot procure him- of all criminal prosecutions. · But it does self to be arrested and bound over under not contain the provision from the act of form of law to give jurisdiction to a coun- 1796 just quoted. Section 1128, Ky. Stat. ty of his preference, in fraud of the right of 1903, provides: "In all felonies, accessories the prosecuting officers acting in good faith before the fact shall be liable to the same to fix it elsewhere, if they choose to do so punishment as principals, and may be prosein the interest of a fair trial. The position cuted jointly with principals, or severally, of this court on this subject appears to be in though the principals be not taken or tried, harmony with the trend of authority else- unless otherwise provided in this chapter.” where. State v. Colvin, 11 Humph. 599, 54 This section is found under the title of Am. Dec. 60; Watkins v. State, 68 Ind. 427, Crimes and Punishments, in Kentucky stat34 Am. Rep. 273; Com. v. Dascom, 111 Mass. utes (Barbour), which this court declared 404; State v. Simpson, 28 Minn. 66, 41 Am. in Buchannon v. Com. 95 Ky. 334, 25 S. W. Rep. 270, 9 N. W. 78. No reflection can be 265, “to be a complete system of statutory indulged against the judge and prosecuting law relating to crimes and punishments, and, attorney of the Breathitt circuit court. Their as a consequence, to supersede or repeal all fitness and willingness to enforce the law is existing statutes on that subject.” If accesin no sense involved. This case, as made up sories before the fact can be indicted jointly on the trial, has to do solely with what oc- with principals, and if the principals could curred before the prosecution took any form be indicted in Fayette, the accessory before in the Breathitt circuit court. In view of the fact could also be indicted and tried the language of § 24 of the Criminal Code of Practice, the case is resting upon the there, although his act may have been combona fides of the alleged prior arrest in mitted elsewhere. It follows that the presBreathitt county. If that was not, properly ent statute and the act of 1796 are incomspeaking, an arrest of the accused, then, as patible in their provisions, and the latter the Fayette circuit court first indicted them must of necessity supersede the former. In for the offense of murdering James Cockrill. Com. v. Parker, 108 Ky. 673, 57 S. W. 484,

The accessory it took jurisdiction of the matter by virtue this precise question arose.

whose sole connection with of § 24 of the Criminal Code of Practice, to before the the exclusion of the Breathitt circuit court. the crime was shown to have been in Kenton

The final contention of the plaintiffs is county, was indicted and tried in Jefferson that they are charged as accessories before county. The court said: “We do not desire the fact to the murder of Cockrill, and, as to go further than is necessary to decide the their alleged acts are admitted to have been question here presented; i. e., that an accesdone in Breathitt county, under the author. sory before the fact, who devises in one counity of Tully v. Com. 13 Bush, 142, that ty a scheme to commit a crime in another, county alone has jurisdiction to try them. thereafter actually committed, or who in one Tully was accused as accessory after the fact county procures the commission of a crime to a murder committed in Scott county. The in another, is, under $ 21 of the Code, propScott court was held to be without jurisdie- erly triable in either county." tion, as the act of 1796 (1 Stat. Laws, 530), The court is of opinion that the Favette held in that case not to have been repealed, 'circuit court has now exclusive jurisdiction

to try the case made by the indictment re-writ of prohibition against the judge of the
turned by the grand jury, and that the pro- Fayette Circuit Court is consequently de-
ceedings before Justice of the Peace Edwards nied. The temporary writ heretofore is
are a nullity in so far as they attempt to sued is discharged.
confer jurisdiction

upon the courts of
Breathitt county. The application for the Cantrill, J., did not sit.




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Messrs. Medlenka & Taylor, for ap

pellant: M. ELLSWORTH, Appt.

Before any lawful business can be prohib

ited or regulated by a municipal corpora(........La.. .......)

tion, it must first be shown to be and deOn an appeal coming to this court clared to be a nuisance. solely under the grant of jurisdiction Waters-Pierce Oil Co. v. New Iberia, 47 to this court over suits involving the con La. Ann. 863, 17 So. 343; Dill. Mun. Corp. p. stitutionality or legality of a fine or penalty

454. imposed by a municipal corporation, the question of whether the facts were sufficient to

A particular law is not repealed by a genjustify the conviction of the appellant can. eral law, unless the two are so repugnant not be considered.

that they cannot stand together under any 2. An ordinance is not informal or il-circumstances. legal because the cause or reasons of its

State v. Callac, 45 La. Ann. 27, 12 So. enactment are not given, nor because it 119; Cooley; Const. Lim. last ed. p. 216; punishes as a nuisance what neither by it Dill. Mun. Corp. § 87; Bond v. Hiestand, 20 nor by another ordinance is expressly declared to be such.

La. Ann. 140; State ex rel. Carcass v. First 8. An ordinance which applies alike Dist. Judge, 32 La. Ann. 723; Concordia v.

to all persons, firms, or corporations en Natchez, R. River & T. R. Co. 44 La. Ann. gaged in the business legislated against is 613, 10 So. 809; Johnston v. Pilster, 4 Rob. not discriminatory.

(La.) 77. 4. Authority to a municipal corpora

Where the law enables a corporation to tion to regulate the storage of combustible and inflammable materials in.

make by-laws or ordinances in certain cases cludes authority to prohibit the storage of and for certain purposes, its power of legis. refined and other explosive oils within the lation is limited to the cases and objects corporate limits; and an ordinance so pro- specified, all others being excluded by imviding is not unreasonable.

plication. 5. A special ordinance granting to a

New Orleans v. Philippi, 9 La. Ann. 44; particular person permission store refined oils within the corporate Crowley v. West, 52 La. Ann. 531, 47 L. R. limits of a town is repealed by a subsequent | A. 652, 78 Am. St. Rep. 355, 27 So. 53; 1 general ordinance, applicable to all persons Dill. Mun. Corp. | 379. alike, making such storage of olls a criminal In order to hold an officer or agent crimioffense.

nally liable individually for an offense com6. Though ordinance prohibiting

the storage of explosive olls in large mitted by the corporation, or by its officers quantities within the corporate lim



or agents, it must be shown that he had its happens to have the effect of putting an some actual, personal connection with the end to a business, and of rendering valueless illegal acts charged. certain structures used in connection with the

21 Am. & Eng. Enc. Law, 2d ed. p. 896. business, its enforcement will not constitute

The power vested by legislation in a cora depriving of property without due process of law. when the circumstances justified its poration to make ordinances for its own adoption as a police regulation.

government does not give the power to en

large, diminish, or vary its powers by its (February 27, 1905.)

ordinances. PPEAL by defendant a

Thompson v. Roe, 22 How. 422, 16 L. ed.


him of violating a municipal ordinance. L. ed. 453; New Orleans v. Ursuline Nuns, Affirmed.

2 La. Ann. 611. The facts are stated in the opinion. Mr. Thomas R. Smith, for appellee: *Headnotes by Provosty, J.

Officers, directors, or agents of a corpora.

tion participating in a violation of law in ХТЕ. -As to ordinances regul ng the stor

the conduct of the company's business may age of oil within corporate limits, see also, in

be held criminally liable individually therethis series, Richmond v. Dudley, 10 L. R. A. 187, 13 L. R. A. 587.


21 Am. & Eng. Enc. Law, 2d ed. p. 896; His first contention is that the city auClark, Crim. Law, p. 102.

thorities have hold of the wrong man; One indicted for a nuisance cannot defend that he is a mere employee executing orders, on the ground that he acted as the agent of and therefore not responsible. With this another in maintaining the nuisance. defense this court has nothing to do. The

21 Am. & Eng. Enc. Law, 2d ed. p. 712; case comes here under the provision of the Williams v. Hendricks, 115 Ala. 277, 41 Constitution granting appellate jurisdiction L. R. A. 657, 67 Am. St. Rep. 32, 22 So. 439. to this court of "suits involving the con

Under power to pass an ordinance if stitutionality or legality of any. necessary, the necessity for its enactment, fine or penalty imposed by a municipal corbeing implied from its mere passage, need poration;" and no question can be inquired not be recited in the ordinance, nor averred into except that as to which jurisdiction is in proceedings to enforce it.


specially conferred. Burguieres v. Dill. Mun. Corp. p. 395, note 2.

Sanders, 111 La. 109, 35 So. 478. An ordinance need not recite the authori- Defendant claims that the ordinance unty under which it is enacted.

der which he has been prosecuted and fined Elliott, Mun. Corp. p. 183.

is unconstitutional for six reasons, which The mere fact that an ordinance, general we now proceed to consider in regular or. in its application, injures in a peculiar way der. a particular individual, will not authorize First. That no grounds are assigned as the courts to presume that it was executed a cause for passing the ordinance, and that, for the purpose of annoying him and de- although the storage of oil of an explopriving him of his rights, and, for that rea- sive nature in quantities greater than two son, to declare it void.

barrels is not a nuisance per se, the ordi17 Am. & Eng. Enc. Law, 2d ed. p. 253. nance punishes it as a nuisance without

The regulation of petroleum and other in having declared it to be such. flammatory substances is not the taking of The first branch of this objection is private property without due process of clearly without merit. Clearly, a legislalaw; nor is it in restraint of trade.

tive body does not have to give any reasons Waters-Pierce Oil Co. v. New Iberia, 47 for its enactments; not though such reaLa. Ann. 863, 17 So. 343; 17 Am. & Eng. sons “were plentiful as

blackberries in Enc. Law, 2d ed. p. 249, note; Dill. Mun. June.” Dill. Mun. Corp. 3d ed. § 318, note Corp. 4th ed. p. 396, note 2; Elliott, Mun. 2; Elliott, Mun. Corp. p. 183. Corp. p. 202.

The second branch is no better than the

first. An ordinance which makes an act Provosty, J., delivered the opinion of the unlawful, by necessary implication declares court:

it of a noxious character, and any further The defendant is the local agent of the declaration on the subject would be mere Waters-Pierce Oil Company, of Missouri, useless tautology. which company does a wholesale oil busi- Second. “The said ordinance is discrimness in the city of Crowley. In April, inatory, unreasonable, arbitrary, and un1898, said company obtained permission equal in its operation and effect, for the from the city council "to construct and reason that it is confined exclusively to reerect three iron storage tanks” at a desig- fined oils handled by the Waters-Pierce Oil nated place within the corporate limits, "for Company, when in truth and in fact, to the purpose of storing illuminating, lubri- the express knowledge of the city of Crowcating, and other oils for the sale and ley, other oils of an explosive nature are supply of the demand in the town of Crowley stored in large quantities within the city and vicinity.” In July, 1904, the city limits of Crowley, by other persons, firms, council adopted an ordinance providing that and corporations.” "hereafter it shall be unlawful for any The ordinance applies alike to all per. person, firm, or corporation to keep on their sons, firms, or corporations engaged in the premises or in storage tanks within the business legislated against, and is certain. corporate limits of the city of Crowley, at ly not discriminatory. The discrimination any one time, more than two barrels of is said to consist in that the ordinance gasoline, coal oil, or other refined oils of applies only to refined oils, and not to an explosive nature," and punishing by crude oils. Conceding that this discriminafine of not less than $5, nor more than $100, tion in favor of crude oils would be fatal or hy imprisonment in the city jail for not to the ordinance if crude oil were shown less than two nor more than thirty days, to be equally explosive as refined oil, the any violation of the ordinance. Defendant evidence fails to show that fact, and every was prosecuted and convicted in the city presumption is in favor of the fairness of court for a violation of the ordinance, was

the ordinance. Elliott, Mun. Corp. p. 202. fined $100, and he has appealed.

Third. “That the city of Crowley ex:






ceeded its chartered authority as conferred | as for all others. To such a case the rule upon it by paragraph 9, § 16, of act No. as to a special statute not being repealed 136 of 1898, p. 232, in excluding (which by a general has no application. exclusion is an absolute prohibition of con Sixth. “That the said ordinance is further ducting of the wholesale oil business in the illegal and unconstitutional, and deprives said city from its limits) the storage of the Waters-Pierce Oil Company of its propreflned oils of an explosive nature in quan- erty without due process of law, without tities greater than two barrels; the said compensation or indemnity, and violates ordinance not regulating, but absolutely the Constitution and the laws of the United prohibiting, the Waters-Pierce Oil Com- States and of this state, and more particpany from carrying on its business.” ularly the 4th, 5th, and 14th Amendments

The “chartered authority" thus referred of the United States Constitution, articles to is conferred in the following terms: 1, 2, 166, and 167 of the Constitution of “The following additional powers are con- Louisiana, and article 497 of the Civil Code ferred upon the mayor and aldermen of of Louisiana.” cities and towns:

Ninth. To regu This exact point was passed on in the late the storage of powder, pitch, turpen-case of the same Waters-Pierce Oil Co. v. tine, rosin, hemp, hay, cotton, and all other New Iberia, 47 La. Ann. 863, 17 So. 343. combustible and inflammable materials.

Judgment affirmed.
In the case of the same Waters-Pierce
Oil Co. v. New Iberia, 47 La. Ann. 863, 17
So. 343, a similar ordinance was sustained
by this court, although the authority to

Rochbert P. RICHARD
pass it was not so clearly conferred as
in the present case.

SPRINGFIELD FIRE & MARINE INSURFourth. “That the said ordinance is un

ANCE COMPANY. reasonable, and in restraint of a lawful and legitimate business carried on and

(........La....... ..) rounded with the greatest precaution

Where a nonresident ire insuragainst danger of fire, explosion, or acci- *1.

appointed local dent likely to entail the loss of life or prop

agent in this state, and supplied him with erty."

blank policies signed by the president and Clearly, an ordinance prohibiting the secretary of the company, to be filed up, storage of oils of an explosive nature with countersigned, and issued as occasion may rein the built-up parts of the city would not quire, such agent will be considered as havbe unreasonable. Inasmuch as the ordi

ing the powers of a general agent as

policies issued by him under such circumnance is made to apply to the entire corporate limits, the inference is that there 2. An agent authorized to issue polis no place within the corporate limits icies binds the company by all waivers, where, in the judgment of the council, it representations, or

acts within the would be safe to store the inflammable and scope or requirements of his business, unless

the insured has notice of the limitation of explosive substance mentioned in the ordi

his power. nance. The evidence shows that there are

agent the apparent buildings within dangerous proximity to

3. Such

power to waive, prior to a loss, a breach the storage tanks of which the defendant is

of the iron-safe clause by him attached to the in charge.

policy, resulting from the failure of the inFifth. That the ordinance is unconsti sured, through illness, to make a complete tutional in so far as it affects the em

inventory of stock within 30 days from the

date of the issuing of the policy. ployer of defendant, because it does not repeal the former ordinance granting per

(May 8, 1905.) mission to the said employer of defendant to erect tanks, etc. The question here raised is that of re

PPLICATION by plaintiff for a writ to A

review a judgment of the Court of Appeal vel non, and therefore, at best, of the peals for the Third Circuit, which reversed legality of the fine, and not of the constitu- a judgment for the Parish of St. Landry in tionality, vel non, of the ordinance. Surely, the first ordinance, in so far as

*Headnotes by LAND, J. it may authorize the doing of anything

NOTE.- As to power of general agent of inwhich the second prohibits and punishes as surance company to waive condition in policy, a crime, is inconsistent with it, and there see also, in this series. Smith v. Niagara F. fore repealed. The manifest intention of the Ins. Co. 1 L. R. A. 216, and cases in note,

Lamberton v..Connecticut F. Ins. Co. 1 L. R. A. second ordinance is that the storing of ex

222; German Ins. ('o. v. Gray, 8 L. R. A. 70; plosive oil in large quantities shall be un

and Carey v. German American Ins. Co. 20 lawful for defendant's employers as well 'L. R. A. 267.






his favor in an action brought to recover | St. Paul F. & M. Ins. Co. 43 Wis. 108, 28 the amount alleged to be due on a fire in Am. Rep. 535; Bennett v. Council Bluffs surance policy. Reversed.

Ins. Co. 70 Iowa, 600, 31 N. W. 948. The facts are stated in the opinion. Unless instructions limiting the Messrs. Lewis & Lewis, for applicant: thority of a general agent of an insurance

Notice given to an agent relating to busi. company, whose powers would otherwise be ness which he is authorized to transact, and coextensive with the business intrusted to while actually engaged in transacting it, him, are communicated to the party with will inure as notice to the principal. whom he deals, the company is bound to the

McEwen v. Montgomery County Mut. Ins. same extent as though such special inCo. 5 Hill, 101; American Ins. Co. v. Galla-structions had not been given. tin, 48 Wis. 36, 3 N. W. 772; Mattocks v. Southern L. Ins. Co. v. McCain, 96 U. S. Des Moines Ins. Co. 74 Iowa, 233, 37 N. W. 84, 24 L. ed. 653; Murphy v. Royal Ins. Co. 174; Ætna Ins. Co. v. Eastman (Tex. Civ. 52 La. Ann. 778, 27 So. 143. App.) 80 S. W. 255.

The agent, though representing his prinKnowledge of an agent authorized to cipal in a particular locality, or within a countersign, issue, and deliver policies of limited territory, and therefore called “loinsurance, and collect the premiums there cal agent,” is in fact a general agent. He for, is knowledge imputable to the company. is supplied with blank policies, properly

1 May, Ins. 617, | 294 E; May, Ins. p. signed by the company, which he is author130, 11 70a, 131, 132, 143, 152, p. 247; Kerr, ized to fill up, countersign, and deliver to Ins. pp. 218 et seq.; Clement, Ins. p. 415, the assured. rule 11; Elliott, Ins. p. 91; Wood, Fire Ins. Continental Ins. Co. v. Ruckman, 127 II). If 372–374, 435; Richards, Ins. p. 25; 364, 11 Am. St. Rep. 121, 20 N. E. 77; Stage v. Home Ins. Co. 76 App. Div. 509, 78 Elliott, Ins. Cases, p. 156; Pitney v. Glen's N. Y. Supp. 555; Brooks v. Erie F. Ins. Co. Falls Ins. Co. 65 N. Y. 6; Georgia Home 76 App. Div. 275, 78 N. Y. Supp. 748; Ben- Ins. Co. v. Kinnier, 28 Gratt. 98; Viele v. nett v. Union Cent. L. Ins. Co. 203 Ill. 439, Germania Ins. Co. 26 Iowa, 9, 96 Am. Dec. 67 N. E. 971; Hunt v. State Ins. Co. 66 83; Carroll v. Chadter Oak, Ins. Co. 40 Barb. Neb. 121, 92 N. W. 921; German-American 292; Ætna Ins. Co. v. Maguire, 51 Ill. 342; Ins. Co. v. Paul (Ind. Terr.) 83 S. W. 60; 1 May, Ins. | 126, p. 235; Post v. Ætna Ins. Continental F. Ins. Co. v. Cummings (Tex. Co. 43 Barb. 351; Ruggles v. American Civ. App.) 78 S. W. 378; Carnes v. Farm-Cent. Ins. Co. 114 N. Y. 415, 11 Am. St. ers' F. Ins. Co. 20 Pa. Super. Ct. 634; Born Rep. 674, 21 N. E. 1000. v. Home Ins. Co. 120 Iowa, 299, 94 N. W. An agent's authority to alter or modify a 849; State Ins. Co. v. Hale, 1 Herdman policy by oral or written agreement may be (Neb.) 191, 95 N. W. 473; Union Assur. inferred from a course of dealing acquiesced Soc. v. Nalls, 101 Va. 613, 99 Am. St. Rep. in by the principal, even though the policy 923, 44 S. E. 896; Modern Woodmen v. Cole- provided to the contrary. man, 64 Neb. 162, 89 N. W. 641; derson Kerr, Ins. | 100, p. 223; Knickerbocker L. v. Manchester F. Assur. Co. 59 Minn. 182, Ins. Co. v. Norton, 96 U. S. 234, 24 L. ed. 28 L. R. A. 609, 50 Am. St. Rep. 400, 60 | 689; Powell v. Factors' & Traders' Ins. Co. N. W. 1095, 63 N. W. 241.

28 La. Ann. 19. If the insurer receives a premium with The assured was not required to keep full knowledge, through its agent, of the books of account until the taking of the infacts constituting a breach of one of the

ventory. conditions of the policy, the right to insist

St. Landry Wholesale Mercantile Co. v. that the policy is forfeited for the cause

Springfield F. & M. Ins. Co. (La.) 37 So. Elliott, Ins. p. 129; Mutual Ben. L. Ins. 988; St. Landry Wholesale Mercantile Co.

v. Teutonia Ins. Co. 113 La. 1053, 37 So. Co. v. Daviess, 87 Ky. 541, 9 S. W. 812 ; Dunbar v. Phenix Ins. Co. 72 Wis. 492, 40 Neb. 348, 83 N. W. 81; Citizens' Ins. Co. v.

967; Continental Ins. Co. v. Waugh, 60 N. W. 386; Continental Ins. Co. v. Pearce, 39 Kan. 396, 7 Am. St. Rep. 537, 18 Pac. Sprague, 8 Ind. App. 275, 35 N. E. 7:20; 291; Pickel v. Phenix Ins. Co. 119 Ind. 291, McCollum v. Niagara F. Ins. Co. 61 Mo. 21 N. E. 898; Cotten v. Fidelity & C. Co. 41 App. 352; Bayless v. Merchants' Town Mut. Fed. 506; Reynolds v. Iowa & N. Ins. Co. Ins. Co. 106 Mo. App. 684, 80 S. W. 289. 80 Iowa, 563, 46 N. W. 659; Manhattan F.

Messrs. Clegg & Quintero and KenIns. Co. v. Weill, 28 Gratt. 389, 26 Am. neth Baillio, for respondent: Rep. 364; Germania F. Ins. Co. v. Hick, 125 The burden of proof as to all the facts Ill. 361, 8 Am St. Rep. 384, 17 N. E. 792 ; going to establish a waiver is upon the asAnderson V. Manchester F. Assur. Co. 59 sured. Minn. 182, 28 L. R. A. 609, 50 Am. St. Rep. Wood, Ins. 2d ed. p. 71, note; New York 400, 60 N. W. 1095, 63 N. W. 241; Gans v. L. Ins. Co. v. Fletcher, 117 U. S. 529, 29 L.

is gone.

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