Imagens das páginas

v. Raleigh & G. R. Co. 111 N. C. 236, 16 S. E. of safety, and not attempt to pass in front 4; Birmingham R. & Electric Co. v. Bowers, of the train, "he cannot rest on such an as110 Ala. 328, 20 So. 345 ; Raines v. Chesapeake sumption so long as to allow his engine to & O. R. Co. 39 W. Va. 50, 24 L. R. A. 226. reach a point where it will become impossible 19 S. E. 565; Pittsburgh, C. C. & St. L. R. for him to control his train or give warning Co. v. Judd. 10 Ind. App. 213, 37 N. E. 775 : in time to prevent injury to the traveler, supCleveland, C. C. & St. L. R. Co. v. Miller, 149 posing the traveler to continue in his course." Ind. 490, 49 N. E. 445.

Heddies v. Chicago & N. W. R. Co. 77 Wis. 228, This seems a harsh rule, and cannot be said 20 Am. St. Rep. 106, 46 N. W. 115. to meet the requirement that ordinary care must Likewise, persons operating an engine are not be used to avoid the consequences of another's permitted to speculate as to the identity of an negligence. Indeed, it comes perilously near object on the track until it is too late to stop to authorizing the wanton killing of persons the train, when by the exercise of ordinary care discovered upon a railroad track, whether at they might discover that it is a child. Isabel crossings or elsewhere. Accordingly, the con. v. Hannibal & St. J. R. Co. 60 Mo. 475. curring opinion of Martin, Ch. J., in the case "Upon discovering one upon the track, the of Campbell y. Kansas City, Ft. S. & M. R. engineer should give the proper alarm ; and if, Co. 55 kan. 536, 40 Pac. 997, supra, construes in a reasonable time after doing so, the person the "last moment to mean "the last moment does not leave the track, and the engineer has in which it would, or ought to, seem practi l'easonable ground to think he is not going to cable to stop the train" before collision; and do so, then, if he can by the use of all reasonthat for a slight error of judgment on the part able means stop the train and save the man, he of the engineer, the railroad company ought not must do so." Wren v. Louisville, St. L. & T. to be held responsible. Thus qualified, the rule R. (o. 14 Ky. L. Rep. 324, 20 S. W. 215. seems both reasonable and humane, and is sup. When it is discovered that an aged man walkported by authority. Georgia R. & Bkg. Co. ing on a railroad track, and making every effort v. Daniel, 89 Ga. 463, 15 S. E. 538; Savannah, to get out of the way of an approaching train, T. & I. of II. R. Co. v. Bryan, 94 Ga. 632, 21 will not effect his escape in time to avoid inS. E. 57; St. Louis, I. M. & S. R. Co. v. Wil. jury, it is the duty of the engineer to stop, or kerson, 46 Ark. 513; Sibley v. Ratliffe, 50 Ark. sufficiently slacken the speed of the train, so 477, 8 S. W. 686; Clark v. Wilmington & W. as to give him more time to get entirely out of R. Co. 109 N. C. 430, 14 L. R. A. 749, 14 S. E. danger. Missouri P. R. Co. v. Weisen, 65 Tex. 43; Callaway v. Walters, 63 Ill. App. 562. 443. Affirmed in 164 III, 560, 45 N. E. 1068; Orr Where a boy trespasser, blinded by the smoke v. Cedar Rapids & M. C. R. Co. 94 Iowa, 423. and cinders from a passing train, is discovered 431, 62 N. W. 851 ; Purcell v. Chicago & N. W. backing upon a railroad track before an apR. ('0. 109 Iowa, 628, 631, 77 Am. St. Rep. 557. proaching train, it is the duty of those in 80 N. W. 682; Omaha & R. Valley R. Co. v. charge of the train to give warning, and to Cook, 42 Neb. 577, 60 N. W. 899, 37 Neb. 435. stop the train as soon as possible. If, however, 55 N. W. 943; Heddles v. Chicago & N. W. such person is not discovered in time to stop R. Co. 77 Wis. 228, 20 Am. St. Rep. 106, 46 the train before a collision, the railroad comN. W. 115.

pany is not liable for his injury. Masser v. The qualification of the rule is aptly ex Chicago, R. 1. & P. R. Co. 68 Iowa, 602, 27 pressed in Galveston City R. Co. v. Hewitt, 67 N. W. 776. Tex. 473, 480, 60 Am. Rep. 32, 3 S. W. 705. But it is apparent that the "last moment" where it is said that the presumption may be rule can have no application where the person indulged "so long as danger does not become in danger is obviously lacking in capacity to imminent, but no longer."

care for his own safety, or is known to be And, as applied to cases where such dis suffering from some disability. or is in a situaability is not previously known, “the last mo tion, which prevents him from hearing the ment" to which the presumption can be in. warnings given him, or disables him from act. dulged is when, from all the circumstances. ing upon them if heard. Such a situation de there is such an indication of bodily infirmity. mands immediate resort to the means at hand or of disabled condition, or of imminent peril. to avoid injury, and the omission of such that to a person of ordinary prudence the in effort is culpable negligence, if not wilful wrongfliction of injury seems probable, if proper ef doing. International & G. N. R. Co. v. Smith, fort is not made to avoid it. Shearm. & Redf. 62 Tex. 2:54: Deans v. Wilmington & W. R. Co. Neg. 4th ed. $99; St. Louis, 1. M. & S. R. 107 N. C. 686, 22 Am. St. Rep. 902, 12 S. E. 77 ; Co. v. Wilkerson, 46 Ark. 513; Mobile & 0. Smith v. Norfolk & S. R. Co. 114 N. C. 728, R. Co. v. Stroud, 64 Miss. 784, 2 So. 171 : Cin 25 L. R. A. 287, 19 S. E. 863, 923; Pickett v. cinnati, H. & D. R. Co. v. Murphy, 17 Ohio C. Wilmington & W. R. ('o. 117 N. C. 616, 30 C. 223; Heddles v. Chicago & N. W. R. Co. L. R. A. 257, 53 Am. St. Rep. 611, 23 S. E. 77 Wis. 228, 20 Am. St. Rep. 106, 46 N. W. 264 ; Oinaha & R. Valley R. Co. v. Cook, 42 115; Murch v. Western N. Y. & P. R. Co. 78 Neb. 577, 905, 60 N. W. 899; St. Louis, 1. M. Hun, 601, 29 N. Y. Supp. 490 ; Meeks v. South & S. R. Co. v. Wilkerson, 46 Ark. 513: Donahoe ern P. R, Co. 56 Cal. 513, 38 Am. Rep. 67 ; v. Walash, St. L. & I'. R. Co. 83 Mo. 543; Seaboard & R. R. Co. v. Joyner, 92 Va. 354, 23 Kenyon v. New York C. & II. R. R. Co. 5 Ilun, S. E. 773; Fast Tennessee & G. R. Co. v. St.

479. John, 5 Sneed, 524, 73 Am. Dec. 149; Gulf,

If a person seen lying on the track is asleep C. & S. F. R. Co. v. Hill (Tex. Civ. App.) 58 or drink, or known to be insane, or otherwise S. W. 255 ; Bump v. New York, N. II. & H. R. insensible to danger, or unable to avoid it, it Co. 38 App. Div, 60, 55 N. Y. Supp. 962.

is the duty of the engineer of a train to reWhile a locoinotive engineer, seeing a child solve all doubts in favor of the preservation of approaching the track in broad daylight with

life, and immediately use every available means, the apparent purpose of crossing it, has the

short of imperiling the lives of passengers on right to presume that he will stop in a place l his train, to stop. Deans y. Wilmington & W.

R. Co. 107 N. C. 686, 22 Am. St. Rep. 902., tuke precautions to avoid injury that sub12 S. E. 77; Clark v. Wilmington & W. R. Co. sequent developments show to have been neces103 N. C. 430, 14 L. R. A. 749, 14 S. E. 43 : sary, the railroad company will be liable for its Seaboard & R. R. Co. v. Joyner, 92 Va. 354, failure to stop the train until too late to avoid 365, 23 S. E. 773; Campbell v. Kansas City | injury. Louisville & N. R. Co. v. Vanarsdell, Ft. S. & M. R. ('o. 55 Kan, 536, 40 l'ac. 997 : 25 kg. L. Rep. 1432, 77 S. W. 1103. Garza v. Texas Mexican R. Co. (Tex. Civ. App.)' Naturally, a directly opposite view to the last 41 S. W. 172; Norfolk & W. R. Co. v. Dumn cited case is taken by those authorit es holdaway, 93 Va. 29, 24 S. E, 698; Wren v. Louis ing that the only duty owing a trespasser is to ville, St. L. & T. R. Co. 14 Ky. L. Rep. 324, 20 refrain from wilful or wanton injury. AccordS. W. 215.

ingly, in Indiana, where that rule obtains, it is It is the imperative duty of a locomotive en weld that a complaint alleging that defendant's gineer to endeavor to stop his train upon dis employees saw tlie person injured on a trestle covering a person upon a high trestle from 13 feet high, and 100 feet from the end, and which it is obviously out of his power to escape trying to effect his escape, at a distance of 2,000 except by going forward to the end. Such a feet, and in suflicient time to stop the train, situation does not Warrant the presumption and avoid injury, but failed to stop until that the person will be able to take care of after running such person down and killing himself. Atlanta & C. Air Line R. (0. V. him, does not state a cause of action, since Gravitt, 93 Ga. 369, 408, 26 L. R. A. 553, 44 the engineer had the right to presume that such Am. St. Rep. 145, 20 S. E. 550; l'eirce v. Wal. person would get off the trestle, and the right to ters, 164 11. 560, 45 N. E. 1068, Aflirming continue that presumption until the point mak63 ni. App. 362; St. Louis S. W. R. Co. v. ing it perilous to continue was reached; and the Bolton (Tex. Civ. App.) 81 S. W. 123.

complaint failed to state at what point the peril A locomotive engineer who discovers a tres became reasonably manifest, or that at such passer upon a trestle in front of his train is point the engineer failed to make every possible not permitted to speculate is to such person: effort to stop the train. And the court says: chances of reaching the end before the train “If the engineer acted on the presumption that does, or whether he will jump, or lie down, or the deceased could and would get to a point of in some other manner get out of harm's way. safety, and so acted until it became too late, by a moment after it becomes evident that he is the use of the means within his control, to avoid insensible of his danger, or incapable of pro running upon him, such reliance could not be viding for his safety. Central R. & Bkg. Co. considered wilfulness." Ullricb v. Cleveland, C. v. Vilughan, 93 Ala. 209, 30 Am. St. Rep. 50 C. & St. L. R. Co. 131 Ind. 338, 31 N. E. 95. 9 So. 408; Purcell v. Chicago & N. W. R. Co And where a man on a railroad trestle had 109 Iowa, 628, 77 Am. St. Rep. 537, 80 N. W. knowledge of the approach of a train, and was 682.

so near the end that he could, if he chose, step "The true test of the engineer's duty is in- off to a place of safety, but, after starting back, volved in the question whether he has reason. turned and attempted to run across in the face able ground to believe, with all the knowledge of the train, and the engineer thereupon did all of tlie surroundings which due diligence re he could to stop the train,-it was held, that quires of him, that the life of a fellow-man is in "if, at the time the actual circumstances, peril, and that the danger to his person can brought to the knowledge of the engineer, made only be averted by stopping, or reducing the it apparent to him that the deceased did not inspeed of, the train." When an engineer sees a tend to leave the trestle, it was then too late man on a trestle or bridge, so that he can no to apply successfully the preventive means at more get off the track than one who is lying hind to avoid the injury, wilfulness and wanon it in an apparent stupor, except by exposing tonness, equivalent to an intention or willing. himself to danger, he is not warranted in mak ness to inflict Injury, cannot be imputed from a ing a hurried calculation as to the relative speed failure to stop the engine." And it is said that of the man and the train, and in omitting to proof of such gross negligence as amounts to check the speed of the train, in the belief that wantonness and lecklessness is necessary to the man will reach the end o! the bridge before overcome the effect of the contributory neglihe is overtaken, Clark v. Wilmington & W. R. gence of the injured party, and authorize a reCo. 109 N. C. 430, 14 L. R. A. 749, 14 S. E. 43. covery Southern R. Co. v. Bush, 122 Ala. 470.

Even though the railroud employees believe 20 So. 168. that a person seen on a trestle will be able to

N. B. R. make his escape, and for that reason fail to


Frank FRENCII et al.


SENATE of the State of California.

ercise by the legislature of its consti.

tutional power to expel a member. 2. Allegations in a petition by persons



expelled from a state legislature to secure reinstatenient, that they were er pelled without hearing or opportunity for defense, will not be taken as true, even against a demurrer, where the record of the proceedings, of which the court takes judicial notice. shows that charges were preferred, referred to a committee which reported an

1. The court cannot supervise the ex

NOTE.-As to power of house of representatives to reinove its speaker from office, see, in this series, He Speakership, 11 L. R. A. 241.


PETITION for a writ of mandamus to

Investigation, and that the charges were true. Gaines v. Thompson, 7 Wall. 347, 19 L. ed. and that the report was taken up and considered by the body, at which time petitioners United States) 9 Wall. 298, 19 L. ed. 579;

62; The Secretary v. McGarrahan (Cox v. had an opportunity to be heard in their own behall.

United States ex rel. Dunlap v. Black, 128 3. The state legislature has power

U. S. 40, 32 L. ed. 354, 9 Sup. Ct. Rep. 12; to adopt any procedure for the expulsion of United States ex rel. Redfield v. Windom,

members, and to change it at pleasure. 137 U. S. 636, 34 L. ed. 811, 11 Sup. Ct. 4. A member of the legislature has, in Rep. 197; United States cx rel. Boynton v. the absence of constitutional pro

Blaine, 139 U. S. 306, 35 L. ed. 183, 11 vixion, no right to a trial and opportunity to be heard upon charges made, before being Sup. Ct. Rep. 607; Berryman v. Perkins, expelled therefrom.

55 Cal. 483; Smith v. Ilyers, 109 Ind. 7, 58 5. A meniler of the state legislature is | Am. Rep. 380, 9 N. E. 692.

not protected by the Federal Constitution This court will not interfere with either from the exercise by that body of its con of the co-ordinate departments of the gove stitutional right to remove him therefrom.

ernment in the legitimate exercise of their 6. The title to a public office is held

jurisdiction and powers. subject to the constitutional provision giving the right of removal.

Ex parte Echols, 39 Ala. 698, 88 Am. 7. The constitutional power of the

Dec. 749; State ex rel. Davisson v. Bolte, state legislature to expel a member 151 Mo.

362, 74 Am. St. Rep. 542, in not restricted by the further provisio" | 52 S. W. 262; Mayor v. Morgan, 18 Am. that a member who accepts a bribe is guilty

Dec. 238, note, 7 Mart. N. S. 1; Kimball of felony, upon conviction of which he shall

V. Union Water Co. 44 Cal. 173, 13 Am. be forever disqualified from holding any of fice or public trust : and therefore conviction Rep. 157; People ex rel. Cooley v. Fitzgeris not a prerequisite to his expulsion from ild, 41 Mich. 2, 2 N. W. 179. the legislative body.

Where, by the Constitution, the legis. 8. A resolution expelling member lative, judicial, and executive departments from the legislature is not a bill of at

are made distinct and independent, neither tainder forbidden by the Constitution.

is responsible to the other for the perform

:ince of its duties, and neither can enfor (April 28, 1903.)

such performance by the other.

Des Moines Gas Co. v. Des Moines, 44 compel the Senate of the State of Cal. Towa, 505, 24 Am. Rep. 756. ifornia to restore petitioners to membership

Mandamus will not issue where it is not therein. Denied.

effectual and beneficial. The facts are stated in the opinion.

People v. Chicago, 106 III. App. 72; Alessrs. George D. Collins, H. v. State ex rel. Collins v. Lewis, 111 La. 693, Morehouse, J. E. Alexander, F. C. 35 So. 816; People ex rel. Billings v. BisJacobs, and William F. James for peti- sell, 19 III. 229, 68 Am. Dec. 594; Michtioners.

igan City v. Roberts, 34 Ind. 471; HarpenMr. U. S. Webb, Attorney General, for

ding v. Haighi, 39 Cal. 208, 2 Am. Rep. 432.

A writ of mandamus will never issue to respondent:

The supreme court of the state of Califor control the discretion of the lawmaking nia has no jurisdiction to issue a writ of branch of the government. mandamus in this proceeding. The juris

People ex rel. McDonald v. Keeler, 99 diction of the supreme court over the sub

N. Y. 477, 52 Am. Rep. 49, 2 N. E. 615; ject-matter of the action is to be deter:

People ex rel. Drake v. Mahaney, 13 Mich.

481. mined by express statutory en:ictment.

The senate of the state of California has And jurisdiction goes no further than the wording of the statute or Constitution al.

certuin powers and privileges which are lows.

necessary to its legislative functions; and People v. Stoll, 143 Cal. 692, 77 Pac. 818:

these powers and privileges will never be

interfered with by the courts in a direct People ex rel. Brodericle v. Morton, 156 Y.

proceeding. Y. 136, 41 L. R. A. 231, 66 Am. St. Rep.

Crosby's Case, 3 Wis. 199; Ex parte 547, 50 N. E. 791.

IcCarthy, 29 Cal. 404. Mandamus will not lie from one branch of

The senate of the state of California hus the government to a co-ordinate branch, for full power to preserve its own honor, digneither is inferior to the other, and such

nity, purity and efliciency by the expulsion proceeding would amount to the sovereign

of an unworthy, or the discharge of an inissuing a mandamus to himself.

competent, member; and this court will Ke Dennett, 32 Me, 508, 54 Am. Dec. 602;

not review that act of expulsion. Com. ex rel. M’Laughlin v. Philadelphiu

Ex parte McCarthy, 29 Cal. 404; FrankDist. Judges, 5 Watts & S. 275; Alarbury

lin v. State Examiners, 23 Cal. 173; People V. Madison, 1 Cranch, 137, 2 L. ed. 60;

ex rel. McCullough v. Pacheco, 27 Cal. 223; Hiss v. Bartlett, 3 Gray, 468, 63 Am. Dec. Since then they have not been allowed to sit 768; Hovey v. Foster, 118 Ind. 508, 21 N. as members of the senate nor to participate E. 39; Re Falvey, 7 Wis. 630; State ex rel. in its proceedings. It is alleged in the petiWerts v. Rogers, 56 N. J. L. 480, 23 L. R. tion that in the proceedings expelling the A. 354, 28 Atl. 726, 29 Atl. 173; State v. petitioners the senate did not give them Gilmore, 20 Kan. 554, 27 Am. Rep. 189; a hearing, nor afford them a trial upon the Auditor General v. Menominee County, 89 charges made, nor permit them to make any Mich. 567, 51 N. W. 483; People ex rel. defense thereto; that the charges of bri'ery Drake v. Mahaney, 13 Mich. 481; Re Gunn, upon which they were expelled are false; 50 Kan. 155, 19 L. R. A. 519, 32 Pac. 470, ud that neither of them has been convicted 948; Lusher v. Scites, 4 W. Va. 17.

of such crime. The words “due process of law” refer to Even if we should give these allegations that law of the land in each state which their fullest force in favor of the pleader, derives its authority from the inherent and they do not make a case justifying the inreserve powers of the state, exerted within terposition of this court. Under our form the limits of those fundamental principles of government the judicial department has of liberty and justice which lie at the base no power to revise even the most arbitrary of all our civil and political institutions. and unfair action of the legislative de

Hurtado v. California, 110 U. S. 516, 28 partment, or of either house thereof, taken L. ed. 232, 4 Sup. Ct. Rep. 111, 292; Re in pursuance of the power committed exKemmler, 136 U. S. 448, 34 L. ed. 524, 10 clusively to that department by the ConstiSup. Ct. Rep. 930.

tution. It has been held by high authority Const. art. 4, § 9, gives to the senate the that, even in the absence of an express power of expulsion, and this power is in provision conferring the power, every legispart judicial, and the manner of its exer- lative body in which is vested the general cise is to be determined by the senate. In legislative power of the state has the imthe manner of exercise of this constitu- plied power to expel a member for any tional power the senate is beyond the con- cause which it may deem sufficient. In trol of the judiciary.

Hiss v. Bartlett, 3 Gray, 473, 63 Am. Dec. People ex rel. Broderick v. Morton, 156 768, the supreme court of Massachusetts N. Y. 136, 41 L. R. A. 231, 66 Am. St. says, in substance, that this power is inRep. 547, 50 N. E. 791; Re Dennett, 32 herent in every legislative body; that it Me. 508, 54 Am. Dec. 602; Com. ex rel. is necessary to enable the body "to perform M’Laughlin v. Philadelphia Dist. Judges, its high functions, and is necessary to the 5 Watts & S. 275; Marbury v. Madison, i safety of the state;” that it is a power of Cranch, 137, 2 L. ed. 60; Gaines v. Thomp- self-protection, and that the legislative son, 7 Wall. 347, 19 L. ed. 62; The Secre- body “must necessarily be the sole judge of tary v. McGarrahan (Cox v. United States) the exigency which may justify and re9 Wall. 298, 19 L. ed. 579; United States quire its exercise.” In this state the power ex rel. Dunlap v. Black, 128 U. S. 40, 32 does not depend on implication; it is exL. ed. 354, 9 Sup. Ct. Rep.' 12; United pressly given; or, as the power would exStates ex rel. Redfield v. Windom, 137 u. ist without the express grant, perhaps it S. 636, 34 L. ed. 811, 11 Sup. Ct. Rep. 197; is more accurate to say that it is expressly United States er rel. Boynton v. Blaine, recognized and limited. The Constitution 139 U. S. 306, 35 L. ed. 183, 11 Sup. Ct. provides that the senate “shall determine Rep. 607.

the rule of its proceeding, and may, with

the concurrence of two thirds of all the Shaw, J., delivered the opinion of the members elected, expel a member.” Arcourt:

ticle 4, § 9. If this provision were omitThis is an original proceeding in minda- ted, and there were no other constitutional mus to compel the senate of the state of limitations on the power, the power would California to admit the petitioners as nevertheless exist, and could be exercised members thereof. The case was submitted by a majority. The only effect of the proto this court upon a general demurrer to vision is to make the concurrence of two the petition, and the writ denied.

thirds of the members elected necessary to The petitioners were duly elected senators its exercise. In all other respects it is abof the state from the respective districts solute. The legislature is a co-ordinate dewhich they represent, and each duly quali-partment of the state government. By arfied and acted as a member of the senate at ticle 3 of the Constitution it is proviiled the thirty-sixth regular session until the that one department of the state shall not · 27th day of Februrry, 1905, when they were exercise the functions of either of the other by the senate expelled therefrom for mal departments, except as in that instrument feasance in office, consisting of taking a expressly directed and permitted. There bribe to influence their conduct as senators. is no provision authorizing courts to control, direct, supervise, or forbid the exercise | rer, but are to be treated as a nullity. 12 by either house of the power to expel a Enc. Pl. & Pr. p. 1; 1 Chitty, Pl. 215; member. These powers are functions of Mullan v. State, 114 Cal. 581, 34 L. R. A. the legislative department, and, therefore, 262, 46 Pac. 670; Ohm v. San Francisco, in the exercise of the power thus committed 92 Cal. 449, 28 Pac. 580. The courts take to it, the senate is supreme. An attempt judicial notice of the public and private by this court to direct or control the leg. official acts of the legislative department of islature, or either house thereof, in the the state. Code Civ. Proc. § 1875, subd. 3; exercise of the power, would be an attempt Mullan v. State, 114 Cal. 581, 34 L. R. A. to exercise legislative functions, which it 262, 46 Pac. 670; Davis v. Whidden, 117 is expressly forbidden to do.

Cal. 623, 49 Pac. 766. Among these official Even if the court should attempt to usurp acts are included the proceedings by which this legislative function, there is no means the petitioners were expelled and which whereby it could carry its judgment into are entered upon the journal of the senate. effect and give the relief demanded. The We are therefore bound to take notice that thirty-sixth session of the legislature has charges were preferred against the petitionadjourned sine die; it is a thing past, and ers in the senate, and were referred by it cannot be reconvened upon the mandate to a committee for investigation; that the of the judicial power. Const. art. 3. The committee reported that it had made the senate could not reinstate the petitioners investigation, and that the charges were as members of that session except when law- true, and recommended that the petitioners fully in session. Nor can the body which be expelled; that this report was taken up composed the thirty-sixth session be again and considered by the senate; that the peticalled together except in special session and tioners, being then members, had upon such at the behest of the governor. Const. art. consideration an opportunity to present, or 4, § 2, art. 5, $ 9. The next regular ses. have presented arguments in their behalf; sion of the senate will be composed of dif- and that the resolution expelling them was ferent persons and will be a different body regularly offered and adopted by the senfrom that now supposed to be before tlie ate. There being no direct allegation to the court. The court is without power to is contrary, we must presume that the petisue its final process against a body not law- tioners had notice of these proceedings, and fully served with its original process, and that they were allowed as members to parwhich has not submitted itself to its ju- ticipate therein. In view of these facts, risdiction. Moreover, before the next ses- we cannot consider the allegations of the sion convenes, the terms of all the petition- petition as imputing to the senate the arbiers except Wright will have expired. The trary and unfair treatment of the peticourt cannot issue any effective mandate tioners which might be inferred from the to reinstate the petitioners as members of language used, but will rather consider the senate.

them as a statement of the conclusion of We think it is proper to say further, out the pleaders that the proceedings taken, of of respect to a co-ordinate department of the which we take judicial notice, did not congovernment, that, notwithstanding the ar- stitute a trial or hearing, and did not give bitrary action apparently charged against them the opportunity to be heard in their the senate by the language of the petition, own behalf, which they believe they were we cannot give the statements therein con- entitled to have. tained their full force. Ordinarily, when There is no averment that the manner of a case is submitted on a demurrer, all the the proceeding was contrary to the rules esfacts stated in the pleadings demurred to tablished. And even if it were as abrupt are taken as true. To this rule there are as the interpretation of the pleading most some exceptions, one of which is importunt favorable to the petitioners would imply, here. Only those facts are admitted by a the matter would be immaterial. The sendemurrer which it is necessary to allege ate has power to adopt any procedure, and in the pleading. It is not necessary to to change it at any time and without notice. allege facts of which the court will take It cannot tie its own hands by establishing judicial notice. Such facts will be consid- rules which, as a matter of power purely, ered by the court although not pleaded. 12 it cannot at any time change and di-re. Enc. Pl. & Pr. p. 1; 1 Chitty, Pl. 215, 217. gard. Its action in any given case is the 218; People ex rel. Drake v. Mahaney, 13 only criterion by which to determine the Mich. 481; Mullan v. State, 114 Cal. 591, rule of proceeding adopted for that case. 34 L. R. A. 262, 46 Pac. 670; Bliss, Code | There is no constitutional provision giving Pl. 177, 194. Those allegations of a plead to the petitioners the right to have a trial ing which are not necessary, and which are and opportunity to be heard upon the contrary to the facts of which judicial no charges made against them in the senate tice is taken, are not admitted by a demur- I other than that which they have received.

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