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they issue diplomas to those taking a full ! pellation in a medical sense to his or her course; that the degree of ophthalmology is name, or shall profess publicly to be a phyconferred; that he received a regular course sician surgeon,

[he or she) diploma, and graduated in ophthalmology, shall be regarded as practising within the the fitting of glasses; that the degree of doc- meaning of this act.” The evidence seems tor of ophthalmology was conferred upon to be uncontradicted that the plaintiff in him, and that he had a diploma, which he error did, upon a sign in front of his office. produced; that no disease was treated by and in the notice published, prefix to his him by the use of medicine; that they were name the letters “Dr.,” and it is quite clear not instructed to treat any disease by the from the evidence that they were used in a use of medicine in that college; that the medical sense, and we are of the opinion course of education in that college was pure that the jury were fully justified in so rely nonmedical; and that they learned to cor- garding them. rect errors in refraction by test. On cross- The legislature evidently intended, in enexamination he stated that he took the acting the law, to prevent persons not propcourse of a graduate, a two-weeks course, -erly educated in the science of medicine a little over two weeks. He also testified from assuming to act as a physician, and that he studied anatomy and physiology of to protect the public, and it has deemed it the eye for about two years; that previous proper that every person assuming to act to going to the school he studied for about as a physician or surgeon should be propa year in Iowa; that he was in a doctor's erly licensed. In carrying into effect this office, where he made a specialty of refrac- | law, it was competent for the legislature to tion. Chapter 176, p. 202, of the Laws of define, as it has assumed to do in § 21, 1903, provides for creating a board of medi- what evidence shall be deemed sufficient to cal examiners, defines their duties, empow. constitute a practitioner within the meaners them to grant licenses to qualified ap- ing of the act. In view of the testimony plicants, and prescribes penalties for prac. of the physicians as to the proper definitising without such a license. Section 21 tion of ophthalmology, it is quite clear from provides as follows: “When a person shall the advertisement of the plaintiff in error append or prefix the letters ‘M. B.', or ‘M. that he had assumed to hold himself out D.', or the title ‘Dr.' or 'Doctor or any other as a physician within the meaning of the sign or appellation in a medical sense to his act. And it is not only clear from the lanor her name or shall profess publicly to be a guage of the advertisement itself, which physician or surgeon, or who shall recom- would be generally understood as an mend, prescribe, or direct for the use of any sumption on his part of being a regular person any drug, medicine, apparatus, or physician, or at least a specialist in that other agency for the cure, relief, or pallia- branch of medicine treating of ophthalmoltion of any ailment or disease of the mind ogy, but the legislature has declared that or body, or for the cure or relief of any prefixing the term “Dr.,” to his name shali wound, fracture, or bodily injury, or deforni- be so regarded. The law should not be so ity after having received or with the in- construed as to deprive the people of the tent of receiving therefor, either directly or benefits intended by the act, but such a conindirectly, any bonus, gift, or compensation, struction should be given it as to carry in[he or she] shall be regarded as practising to effect the evident intention of the legis. within the meaning of this act.” It will be lature. See 22 Am. & Eng. Enc. Law, p. observed that it is provided by the above 786, and cases there cited. section that, "when a person shall append Finding no error in the judgment of the or prefix the letters 'M. B.', or ‘M. D., or the Circuit Court, the same is affirmed. title 'Dr.' or 'Doctor' or any other sign or ap.


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from the club does not prevent a suit club, which is a scheme by which a certain number of persons pay

a small

sum per week, and choose by lot each week one of the number who shall receive a suit of clothes worth much more than such weekly payment, upon receipt of which he ceases to be a member of the club, from being a lottery.

(April 21, 1905.)

The fact that each member is entitled

to trade out the amount he has paid in whenever he chooses to withdraw

NOTE.-As to what constitutes a lottery,, 7 L. R. A. 599, and note; Ballock v. State, 8 see also, in this series, People v. Elliott, 3 L. L. R. A. 671; State y. Boneil, 10 L. R. A. 60 ; R. A. 403, and notc; Yellowstone Kit v. State, State es rel. Kellogg v. Kansas Mercantile

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tence to a ruling of the Circuit Court St. 283, 52 L. R. A. 530, 83 Am. St. Rep. for Chippewa County directing a verdict of 754, 60 N. E. 220; United States v. Mcguilty in a prosecution for conducting a Donald, 59 Fed. 563, 12 C. C. A. 339, 24 U. S. lottery. Afirmed.

App. 25, 63 Fed. 426; People v. Elliott, 74 The facts are stated in the opinion, Mich. 264, 3 L. R. A. 403, 16 Am. St. Rep.

Mr. Clyde Hayden, with Messrs. Holden : 640, 41 N. W. 916; United States v. Fulker& Holden, for exceptant.

son, 74 Fed. 619; Re National Indemnity & Mr. John P. Conrick, for the People: E. Co. 142 Pa. 450, 21 Atl, 879; State v.

A lottery is “a scheme by which a result is New Orleans Debenture Redemption Co. 51 reached by some action or means taken, and La. Ann. 1827, 26 So. 586; McLaughlin v. in which result man's choice or will has no National Mut. Bond & Invest. Co. 64 Fed. part, nor human reason, foresight, 908; Peltz v. Supreme Chamber, 0. of F. U. sagacity, or design, enable hiin to know or (N. J. Eq.) 19 Atl. 668. determine such result until the same has ! been accomplished."

Ostrander, J., delivered the opinion of People v. Elliot, 74 Mich. 264, 3 L. R. A. the court: 403, 16 Am. St. Rep. 610, 41 N. W.916. At the conclusion of the testimony in this

Where skill or judgment is exercised in case, counsel on both sides asserted that determining the result there is no lottery, there was no issue of fact to be determined, but where pure chance determines we have and requested the court to direct a verdict one of the elements of a lottery.

either of conviction or acquittal, according Barclay v. Pearson [1893] 2 Ch. 154; to his opinion of the law. The court inCaminada v. Hulton, 17 Cox, C. C. 307; structed the jury that, under the testimony, Stoddart v. Sagar (1895] 2 Q. B. 474; People they should render, and they did render, a ex rel. Laurence v. Fallon, 152 N. Y. 12, 37 verdict of guilty as charged, and the case L. R. A. 227, 57 Am. St. Rep. 492, 46 N. E. comes here upon exceptions before sentence. 296 ; Re Dwyer, 14 Misc. 204, 35 N. Y. Supp. Respondent is charged in the information 884; Reg. v. Dodds, 4 Ont. Rep. 390 ; Reg. v. with setting up and promoting a lottery for Jamieson, 7 Ont. Rep. 149; Hudelson v. merchandise, and that he did dispose of merState, 94 Ind. 426, 48 Am. Rep. 171. chandise by way of lottery and gift en

A lottery is a scheme for distributing terprise, contrary to the form of the statute. prizes by lot or by chance.

He is a merchant tailor doing business at 19 Am. & Eng. Enc. Law, 2d ed. p. 588; the city, of Sault Ste. Marie, and, in conState v. Clarke, 33 N. H. 329, 66 Am. Dec. nection with, or as a part of, the regular 723; Wilkinson v. Gill, 74 N. Y. 66, 30 Am. business, he conducted what is known as a Rep. 264; People v. Noelke, 94 N. Y. 137, 46"tailor suit club," or "suit club." This suit Am. Rep. 128; State v. Willis, 78 Me. 73, 57 club had 30 members, who each paid to reAm. Rep. 784, 2 Atl. 848; Com. v. Sullivan, spondent $1 a week. Respondent gave re146 Mass. 142, 15 N. E. 491; Equitable Loan ceipts for the money, dated, and in the fol& Security Co. v. Waring, 117 Ga. 599, 62 lowing form: “$1.00. Received of L. R. A. 97, 97 Am. St. Rep. 177, 44 S. E. one dollar, club dues. M. J. McPhee.” To 3:20; United States v. Wallis, 58 Fed. 942; each members a number was allotted by the United States v. McDonald, 59 Fed. 563; members themselves. These were put in a United States v. Fulkerson, 74 Fed. 627. cigar box, thoroughly mixed and shaken, and

A scheme where inequality in payment or a drawing was made from this box by one distribution is to result from chance is a of the members according to some plan lottery.

agreed upon among themselves. The drawDunn v. People, 40 Ill. 465; Meyer v. ings took place each Saturday night, and Stale, 112 Ga. 20, 51 L. R. A. 496, 81 Am. some member, as a result of the drawing. St. Rep. 17. 37 S. E. 96; United States v. received for whatever he had paid in a Wallis, 58 Fed. 942: Ballock v. State, 73 Md. suit of clothes or an overcoat valued at and 1, 8 L. R. A. 671, 25 Am. St. Rep. 559, 20 worth $20, made to order by respondent. If Atl. 184; United States v. Politzer, 59 Fed. a member won, he drew out of the club, and 273; Horner v. United States, 147 U. S. 419, a new member was taken in. It might oc37 L. ed. 237, 13 Sup. Ct. Rep. 409; Reg. v. cur that one who had paid in but $1 would Harris, 10 Cox, C. C. 352; Sykes v. Beadon, get the suit of clothes or overcoat, and it L. R. 11 Ch. Div. 170; State ex rel. Atty. might occur that a member would pay $20 Asso, 11 L. R. A. 430 ; Long v. State, 12 L. R. Sav. Invest. Co. 52 L. R. A. 530 : State er rel. A. S9, and note. 12 L. R. A. 423; Thornhill v. Prout v. Nebraska llome Co. 60 L. R. A. 448: O'Rear, 31 L. R. A. 792 ; Lynch v. Rosenthal, Equitable Loan & Security Co. v. Waring, 62 31 L. R. A. 835; l'eople er rel. Lawrence v. L. R. A. 93; W’inston v. Beeson, 65 L. R. A. Fallon, 37 L. R. A. 2:27: Meyer v. State, 51 167 ; l'eople ex rel. Ellison v. Lavin, 66 L. R. A. L. R. A. 496; State or rel. Sheets y. Interstate 001.

and participate in 20 drawings without se- state prison not more than three years, or curing either as a result of the drawing. It by imprisonment in the county jail not more was a part of the agreement, however, and than one year. was the practice, to permit a member of the The single contention of counsel is that, club to withdraw at any time, and upon such inasmuch as there was no chance for a memwithdrawal he was entitled to receive from ber of the club to sustain a loss, respondent respondent clothing of the value of the money was not conducting a lottery. We have he had contributed to the club, or let the been referred to many definitions of the word sum of money he had paid in stand as a "lottery,” some of them made by lexicogracredit and as part payment for clothing pur- phers, some by judges, and particularly to chased of respondent. That is to say, if a one given in the third edition of Bishop on member had paid $1 a week for twenty Statutory Crimes, which counsel say supweeks, he had a credit of $20. If he had paid ports their contention, and which is: “A but six weeks, he had a credit of $6, which lottery may be defined to be any scheme he could use with the respondent in the pur- whereby one, on paying money or other valchase of garments.

uable thing to another, becomes entitled to Counsel for respondent say that the only receive from him such a return in value, or question involved is whether, upon this state nothing, as some formula of chance may deof facts, a verdict of guilty was properly termine.” We do not understand how this directed, or, to put it in another way, wheth- definition aids respondent. It is well known er respondent was conducting a lottery or that in most lottery schemes some of those gift enterprise, within the meaning of our who pay get nothing. It is difficult to see statute. The statute in question is § 11,344 how a definition intended to be general, and of the Compiled Laws of 1897, and is the to describe the results to participants in a first section of chapter 316, entitled, “Of Of- lottery, could well omit language indicating fenses against the Public Policy.” It pro- that the result might be nothing. But the vides that “every person who shall set up | learned author does not mean that, to be or promote, within this state, any lottery or classed as a lottery, the scheme must have gift enterprise for money, or shall dispose blanks. This is evidenced by the context of any property, real or personal, goods, and by cases cited. $ 952. In another place chattels, or merchandise or valuable thing, the same author says that the word has not by the way of lottery or gift enterprise, and yet been defined in a manner which is both every person who shall aid, either by print- inclusive and exclusive. Our statute does ing or writing, or shall in any way be con- not define the word. Nor need we attempt cerned in the setting up, managing, or draw- a definition. Like similar statutes in other ing of any such lottery or gift enterprise, or of the states, our own has a general purwho shall in any house, shop, or building pose, and this purpose is not alone evidenced owned or occupied by him or under his con- by the language of the statute. In a large trol, knowingly permit the setting up, man majority of the states, including Michigan, aging, or drawing of any such lottery or gift there is a constitutional limitation upon the enterprise, or the sale of any lottery ticket power of the legislature to authorize lotor share of a ticket, or any other writing, teries. Few definitions are directly or incertificate, bill, goods, chattels, or merchan- directly attempted. These various constidise, token or other device purporting or in- tutional inhibitions in effect recognize and tended to entitle the holder or bearer or affirm the rule stated in Stone v. Mississippi, other person to any prize or gift, or to any 101 U. S. 814, 25 L. ed. 1079, that lotteries share of, or interest in, any prize or gift, to are not in the legal acceptation of the term be drawn in any such lottery or gift enter- mala in se, but may properly be made mala prise, or who shall knowingly sufl'er money prohibita. Such a provision has been held or other property to be raffled for in such to be so far self-executing as to warrant and house, shop, or building, or to be there won require the court, in the absence of penal by throwing or using dice, or by any other or other statutes upon the subject, to degame or course of chance, shall for every clare the charter of a private corporation, such offense be punished by a fine not ex- whose scheme and plan of business was ceeding $2,000, or by imprisonment in the within the constitutional inhibition, to be county jail not more than one year.” A sub- forfeited. State ex rel. Kellogg v. Kansas sequent section of the same chapter provides Mercantile Asso. 45 Kan. 351, 11 L. R. A. that if any person shall, after being con- 430, 23 Am. St. Rep. 727, 25 Pac. 984. In victed of any offense mentioned in this sec- the case mentioned it was said that the word tion, commit the like offense, or any other “lottery” must be construed in the popular of the offenses therein mentioned, he shall, sense, with the view of remedying the misin addition to the fine provided therefor, be chief intended to be prevented, and to supfurther punished by imprisonment in the press all evasions for the continuance of the

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mischief. The word “lottery” is generic.fle,” or “gift enterprise," or by any other No sooner is it defined by a court than in- name. The court held the term “lottery" genuity evolves some scheme within the mis- to have no technical meaning; but under the chief discussed, but not quite within the let- statute it was to be construed in the poputer of the definition given. This is made lar sense, and with the view to remedy the very apparent in the large number of cases mischief intended to be prevented. “The which we have examined in which various statute is intended to reach all devices which methods of distributing money or goods by are in the nature of lotteries, in whatever chance are examined and discussed. It is form presented, and the courts will tolerate said by counsel for respondent in their brief no evasions for the continuance of the misthat this court, in People v. Elliott, 74 Mich. chief. Of the fact that the holder had the 264, 3 L. R. A. 403, 16 Am. St. Rep. 640, option to receive in goods the amount he had 41 N. W. 916, laid down a definition which paid, it was said that it would probably did not include a possibility of loss. In that operate only as an additional incentive to case, as in others, the language of the opin- aid the lottery scheme. “It does not take ion is addressed to the facts before the the scheme out of the statute. They were court, and the contentions presented for de- not bought in order to get their face value cision. We approve the language used in

in goods. The vicious element still inheres the opinion in Ballock v. State, 73 Md. 1, 8 L. R. A. 671, 25 Am. St. Rep. 559, 20 Atl. in the transaction. ... The sale of a 184, where it is said: "Our statute does

ticket gave the purchaser the chance to obnot justify a court

in deciding a

tain something more than he paid for, and thing is not a lottery simply because there that became an extra inducement for the can be no loss, when there may be very large purchase.” Counsel for respondent say that contingent gains, or because it lacks some

the Minnesota statute differs from ours, and element of a lottery according to some par: not,-a statutory definition of the word

that the court had before it what we have ticular dictionary's definition, it has all the other elements, with all the lottery.” The definition, however, is very pernicious tendencies which the state is broad, and cannot be said to contain any seeking to prevent.” In that case it was

language which would make the decision on contended that no blanks were drawn, and that account inapplicable here. Upon the the scheme considered provided for the ulti- facts and the construction placed by the mate return of the entire investment, with court upon the statute, the case is decisive. interest; the time of such return to certain

It cannot be denied that the respondent holders of the bonds depending upon chance, sought to, and presumably did, increase his and the inducement for investment being the business by a device or scheme, the feature possibility of getting a bonus, also de- of which, so far as securing patrons and custermined by chance. See also State ex rel. tomers was concerned, was the chance to Atty. Gen. v. Interstate Sav. Invest. Co. 64 obtain $20 worth of clothing for some sum of Ohio St. 283, 52 L. R. A. 530, 83 Am. St. money less than $20. It was calculated to, Rep. 754, 60 N. E. 220; Den ex dem. Wooden and did, appeal to the gambling propensity v. Shotwell, 23 N. J. L. 465; United States of men, was within the mischief at which the v. Olney, 1 Abb. (U. S.) 275, Fed. Cas. No. legislation is aimed, was within the terms of 15,918; State v. Mumford, 73 Mo. 647, 39 the statute, and, in our opinion, a disposi. Am. Rep. 532; MacDonald v. United States, tion of property by way of lottery. We are 12 C. C. A. 339, 24 U. S. App. 25, 63 Fed. referred by counsel to no case which sustains 426; Reg. v. Harris, 10 Cox, C. C. 352. For their contention. a considerable collection of cases and gen- We have not lost sight of the fact that the eral discussion, see Equitable Loan & Se-charters of various cities permit ordinances curity Co. v. Waring, 117 Ga. 599, 62 L. R. forbidding lotteries and punishing promoters A. 93, 97 Am. St. Rep. 177, 44 S. E. 320. of them, treating them as minor offenders, The case of State v. Moren, 48 Minn. 555, nor that the statute before us warrants the 51 N. W. 618, is in its essential facts pre- imposition of a considerable penalty, and cisely like the case at bar. The only ques- makes a second offense a felony. The statute tion considered by the court was whether the is general, as it must be, and applies to big evidence was sufficient to bring the case and to little lotteries. The extent of the within the condemnation of the statute. mischief done by respondent is not a considThe Minnesota statute defines a lottery to be eration which ought to affect our determinaa scheme for the distribution of property hy tion. chance among persons who have paid, or We are of opinion that the court below agreed to pay, a valuable consideration for was right, and the conviction is therefore af. the chance, whether called a “lottery,” “raf-firmed.

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BIBB BROOM CORN COMPANY, Respt., Jones v. Minneapolis & St. L. R. Co. 91 Minn.

229, 103 Am. St. Rep. 507, 97 N. W. 893. ATCHISON, TOPEKA, & SANTA FÉ

The test of liability is not whether the RAILWAY COMPANY, Appt.

company used such particular foresight as

is evident, after the accident happened, (........Minn.........)

might have averted it had the danger been •1. It is the duty of a common carrier known, but whether it used that degree of whom goods

delivered for transportation to forward them prompt

care and prudence which a very cautious and ly, and without unreasonable delay, to their prudent person would have used, under the destination.

apparent circumstances of the case, to pre2. If he fails to do so, and negligently and vent the accident, without reasonable knowl

carelessly delays the shipment, and the goods edge that it was likely to occur. are overtaken in transit, and damaged by an Libby v. Maine C. R. Co. 85 Me. 34, 20 L. act of God which would not have caused the R. A. 812; 26 Atl. 943; American Exp. Co. damage had there been no delay, he is liable, even though the act of God could not rea

v. Smith, 33 Ohio St. 511, 31 Am. Rep. 561. sonably have been anticipated. The negli

The negligent delay of defendant in forgence and

unreasonable delay is such a warding plaintiff's goods, but for which such proximate or concurring cause as renders a goods would not have been damaged, does carrier liable.

not, as a matter of law, create any liability 3. This rule applies whether the goods in

on the part of the defendant. their nature are perishable or nonperish

Gilson y. Delarare & H. Canal Co. 65 Vt. able. (February 24, 1905.)

213, 36 Am. .St. Rep. 838, 26 Atl. 70; Norris v. Savannah, F. & W. R. Co. 23 Fla. 182,

A . . ,

the Municipal Court of Minneapolis de- 1. M. & S. R. Co. v. Commercial Union nying an alternative motion for judgment Ins. Co. 139 U. S. 223, 35 L. ed. 154, 11 non obstante veredicto, or for a new trial Sup. Ct. Rep. 554; Hoadley v. Northern after verdict in plaintiff's favor, in an action Transp. Co. 115 Mass. 304, 15 Am. Rep. brought to recover damages to property 106; McClary v. Sioux City & P. R. Co. while in defendant's possession for transpor-3 Neb. 44, 19 Am. Rep. 631; Daniels v. Baltation. Affirmed.

lantine, 23 Ohio St. 532, 13 Am. Rep. 264; The facts are stated in the opinion. Dubuque Wood & Coal Asso. v. Dubuque, 30

Messrs. Belden, Hawley, & Jamison, Iowa, 176; International de G. N. R. Co. v. for appellant:

Bergman (Tex. Civ. App.) 64 S. W. 999; Concurring negligence which, when com- Lamont v. Nashville & C. R. Co. 9 Heisk. bined with the act of God, is actionable, 58; Clark v. Pacific R. Co. 39 Mo. 184, 90 must be such as is in itself a real, produc- Am. Dec. 458; McVeagh v. Atchison, T. & ing cause of the injury.

S. F. R. Co. 3 N. M. 327, 5 Pac. 457; Reid v. Baltimore & 0. R. Co. v. Sulphur Spring Evansville & T. H. R. Co. 10 Ind. App. 385, Independent School District, 96 Pa. 65, 42 53 Am. St. Rep. 391, 35 N. E. 703; Davis v. Am. Rep. 531.

Central Vermont R. Co. 66 Vt. 290, 44 Am. The character and magnitude of this flood St. Rep. 852, 29 Atl. 313; Gleason v. Virare conceded to have been unprecedented, ginia Midland R. Co. 5 Mackey, 356; Michiand such as have been denominated an act of gan O. R. Co. v. Burrows, 33 Mich. 6. God, properly so called.

Mr. Arthur W. Selover, for respondent: Davis v. Wabash, St. L. & P. R. Co. 89 This flood, or one substantially as great, Mo. 340, 1 S. W. 327; Libby v. Maine C. R. ought to have been anticipated by defendant Co. 85 Me. 34, 20 L. R. A. 812, 26 Atl. 943; in a reasonable view of all the conditions. Blythe v. Denrer & R. G. R. Co. 15 Colo. 333, Beede v. Wisconsin C. R. Co. 90 Minn. 36, 11 L. R. A. 615, 22 Am. St. Rep. 403, 25 Pac. | 101 Am. St. Rep. 390, 95 N. W. 454; Fox v. 702; People v. Utica Cement Co. 22 Ill. App. Boston & M. R. Co. 148 Mass. 220, 1 L. R. 159; Smyrl v. Niolon, 2 Bail. L. 421, 23 Am. | A. 702, 19 N. E. 222; Smith v. Western R. Dec. 146; Faulkner v. Wright, Rice, L. 107; Co. 91 Ala. 455, 11 L. R. A. 619, 24 Am. St. Pearce v. The Thomas Newton, 41 Fed. 106; Rep. 929, 8 So. 754; Chicago, B. & Q. R. Co.

v. Manning, 23 Neb. 552, 37 N. W. 462; La*Headnotes by Browx, J.

mont v. Nashville & C. R. Co. 9 Heisk. 58; NOTE.-As to liability of carrier for loss Adams Exp. Co. V. Jackson, 92 Tenn. 326, caused by its ncgligence combined with an act 21 S. W. 666. of God, see also cases in note to Blythe v. Den- A common carrier is bound to take notice ver & R. G. R. Co. 11 L. R. A., on page 616; of the signs of approaching danger, and, if Lang v. Pennsylvania R. Co. 20 L. R. A. 360 ; Wald v. Pittsburg, C. C. & St. L. R. Co. 35 they are such as reasonably to awaken apL. R. A. 356.

prehension of danger, is bound to use all

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