v. Raleigh & G. R. Co. 111 N. C. 236, 16 S. E. 4; Birmingham R. & Electric Co. v. Bowers, 110 Ala. 328, 20 So. 345; Raines v. Chesapeake & O. R. Co. 39 W. Va. 50, 24 L. R. A. 226. 19 S. E. 565; Pittsburgh, C. C. & St. L. R. Co. v. Judd, 10 Ind. App. 213, 37 N. E. 775: Cleveland, C. C. & St. L. R. Co. v. Miller, 149 Ind. 490, 49 N. E. 445. This seems a harsh rule, and cannot be said to meet the requirement that ordinary care must be used to avoid the consequences of another's negligence. Indeed, it comes perilously near to authorizing the wanton killing of persons discovered upon a railroad track, whether at crossings or elsewhere. Accordingly, the concurring opinion of Martin, Ch. J., in the case of Campbell v. Kansas City, Ft. S. & M. R. Co. 55 Kan. 536, 40 Pac. 997, supra, construes the "last moment" to mean "the last moment in which it would, or ought to, seem practicable to stop the train" before collision; and that for a slight error of judgment on the part of the engineer, the railroad company ought not to be held responsible. Thus qualified, the rule seems both reasonable and humane, and is supported by authority. Georgia R. & Bkg. Co. v. Daniel, 89 Ga. 463, 15 S. E. 538; Savannah. T. & I. of H. R. Co. v. Bryan, 94 Ga. 632, 21 S. E. 57; St. Louis, I. M. & S. R. Co. v. Wil kerson, 46 Ark. 513; Sibley v. Ratliffe, 50 Ark. 477, 8 S. W. 686; Clark v. Wilmington & W. R. Co. 109 N. C. 430, 14 L. R. A. 749, 14 S. E. 43; Callaway v. Walters, 63 Ill. App. 562. Affirmed in 164 Ill. 560, 45 N. E. 1068; Orr v. Cedar Rapids & M. C. R. Co. 94 Iowa, 423. 431, 62 N. W. 851; Purcell v. Chicago & N. W. R. Co. 109 Iowa, 628, 631, 77 Am. St. Rep. 557. 80 N. W. 682; Omaha & R. Valley R. Co. v. Cook, 42 Neb. 577, 60 N. W. 899, 37 Neb. 435. 55 N. W. 943; Heddles v. Chicago & N. W. R. Co. 77 Wis. 228, 20 Am. St. Rep. 106, 46 N. W. 115. The qualification of the rule is aptly expressed in Galveston City R. Co. v. Hewitt, 67 Tex. 473, 480, 60 Am. Rep. 32, 3 S. W. 705. where it is said that the presumption may be indulged "so long as danger does not become imminent, but no longer." And, as applied to cases where such disability is not previously known, "the last mo ment" to which the presumption can be indulged is when, from all the circumstances. there is such an indication of bodily infirmity, or of disabled condition, or of imminent peril. that to a person of ordinary prudence the in fliction of injury seems probable, if proper ef fort is not made to avoid it. Shearm. & Redf. Neg. 4th ed. § 99; St. Louis. I. M. & S. R. Co. v. Wilkerson, 46 Ark. 513; Mobile & O. R. Co. v. Stroud, 64 Miss. 784, 2 So. 171; Cincinnati, H. & D. R. Co. v. Murphy, 17 Ohio C. C. 223; Heddles v. Chicago & N. W. R. Co. 77 Wis. 228, 20 Am. St. Rep. 106, 46 N. W. 115; March v. Western N. Y. & P. R. Co. 78 Hun. 601, 29 N. Y. Supp. 490; Meeks v. Southern P. R. Co. 56 Cal. 513, 38 Am. Rep. 67: Seaboard & R. R. Co. v. Joyner, 92 Va. 354, 23 S. E. 773; East Tennessee & G. R. Co. v. St. John, 5 Sneed, 524, 73 Am. Dec. 149; Gulf, C. & S. F. R. Co. v. Hill (Tex. Civ. App.) 58 S. W. 255; Bump v. New York, N. H. & H. R. Co. 38 App. Div. 60, 55 N. Y. Supp. 962. While a locomotive engineer, seeing a child approaching the track in broad daylight with the apparent purpose of crossing it, has the right to presume that he will stop in a place of safety, and not attempt to pass in front of the train, "he cannot rest on such an assumption so long as to allow his engine to reach a point where it will become impossible for him to control his train or give warning in time to prevent injury to the traveler, supposing the traveler to continue in his course." Heddles v. Chicago & N. W. R. Co. 77 Wis. 228, 20 Am. St. Rep. 106, 46 N. W. 115. Likewise, persons operating an engine are not permitted to speculate as to the identity of an object on the track until it is too late to stop the train, when by the exercise of ordinary care they might discover that it is a child. Isabel v. Hannibal & St. J. R. Co. 60 Mo. 475. "Upon discovering one upon the track, the engineer should give the proper alarm; and if, in a reasonable time after doing so, the person does not leave the track, and the engineer has reasonable ground to think he is not going to do so, then, if he can by the use of all reasonable means stop the train and save the man, he must do so." Wren v. Louisville, St. L. & T. R. Co. 14 Ky. L. Rep. 324, 20 S. W. 215. When it is discovered that an aged man walking on a railroad track, and making every effort to get out of the way of an approaching train, will not effect his escape in time to avoid injury, it is the duty of the engineer to stop, or sufficiently slacken the speed of the train, so as to give him more time to get entirely out of danger. Missouri P. R. Co. v. Weisen, 65 Tex. 443. Where a boy trespasser, blinded by the smoke and cinders from a passing train, is discovered backing upon a railroad track before an approaching train, it is the duty of those in charge of the train to give warning, and to stop the train as soon as possible. If, however, such person is not discovered in time to stop the train before a collision, the railroad company is not liable for his injury. Masser v. Chicago, R. I. & P. R. Co. 68 Iowa, 602, 27 N. W. 776. But it is apparent that the "last moment" rule can have no application where the person in danger is obviously lacking in capacity to care for his own safety, or is known to be suffering from some disability, or is in a situation, which prevents him from hearing the warnings given him, or disables him from acting upon them if heard. Such a situation demands immediate resort to the means at hand to avoid injury, and the omission of such effort is culpable negligence, if not wilful wrongdoing. International & G. N. R. Co. v. Smith, 62 Tex. 254: Deans v. Wilmington & W. R. Co. 107 N. C. 686, 22 Am. St. Rep. 902, 12 S. E. 77; Smith v. Norfolk & S. R. Co. 114 N. C. 728, 25 L. R. A. 287, 19 S. E. 863, 923; Pickett v. Wilmington & W. R. Co. 117 N. C. 616, 30 L. R. A. 257, 53 Am. St. Rep. 611, 23 S. E. 264; Omaha & R. Valley R. Co. v. Cook, 42 Neb. 577, 905, 60 N. W. 899; St. Louis, I. M. & S. R. Co. v. Wilkerson, 46 Ark. 513: Donahoe v. Wabash, St. L. & P. R. Co. 83 Mo. 543; Kenyon v. New York C. & H. R. R. Co. 5 Hun, 479. If a person seen lying on the track is asleep or drunk, or known to be insane, or otherwise insensible to danger, or unable to avoid it, it is the duty of the engineer of a train to resolve all doubts in favor of the preservation of life, and immediately use every available means, short of imperiling the lives of passengers on his train, to stop. Deans v. Wilmington & W. R. Co. 107 N. C. 686, 22 Am. St. Rep. 902, 12 S. E. 77; Clark v. Wilmington & W. R. Co. 103 N. C. 430, 14 L. R. A. 749, 14 S. E. 43: Seaboard & R. R. Co. v. Joyner, 92 Va. 354, 365, 23 S. E. 773; Campbell v. Kansas City. Ft. S. & M. R. Co. 55 Kan. 536, 40 Pac. 997: Garza v. Texas Mexican R. Co. (Tex. Civ. App. )' 41 S. W. 172; Norfolk & W. R. Co. v. Dunn away, 93 Va. 29, 24 S. E. 698; Wren v. Louis ville, St. L. & T. R. Co. 14 Ky. L. Rep. 324, 20 S. W. 215. It is the imperative duty of a locomotive en gineer to endeavor to stop his train upon dis covering a person upon a high trestle from which it is obviously out of his power to escape except by going forward to the end. Such a situation does not warrant the presumption that the person will be able to take care of himself. Atlanta & C. Air-Line R. Co. V. Gravitt, 93 Ga. 369, 408, 26 L. R. A. 553, 44 Am. St. Rep. 145, 20 S. E. 550; Peirce v. Walters, 164 I. 560, 45 N. E. 1068, Affirming 63 Ill. App. 562; St. Louis S. W. R. Co. v. Bolton (Tex. Civ. App.) 81 S. W. 123. A locomotive engineer who discovers a tres passer upon a trestle in front of his train is not permitted to speculate as to such person's chances of reaching the end before the train does, or whether he will jump, or lie down, or in some other manner get out of harm's way. a moment after it becomes evident that he is insensible of his danger, or incapable of pro viding for his safety. Central R. & Bkg. Co. v. Vaughan. 93 Ala. 209, 30 Am. St. Rep. 50. 9 So. 468; Purcell v. Chicago & N. W. R. Co 109 Iowa, 628, 77 Am. St. Rep. 557, 80 N. W. 682. "The true test of the engineer's duty is involved in the question whether he has reasonable ground to believe, with all the knowledge of the surroundings which due diligence re quires of him, that the life of a fellow-man is in peril, and that the danger to his person can only be averted by stopping, or reducing the speed of, the train." When an engineer sees a man on a trestle or bridge, so that he can no more get off the track than one who is lying on it in an apparent stupor, except by exposing himself to danger, he is not warranted in mak ing a hurried calculation as to the relative speed of the man and the train, and in omitting to check the speed of the train, in the belief that the man will reach the end of the bridge before he is overtaken. Clark v. Wilmington & W. R. Co. 109 N. C. 430, 14 L. R. A. 749, 14 S. E. 43. Even though the railroad employees believe that a person seen on a trestle will be able to make his escape, and for that reason fail to take precautions to avoid injury that subsequent developments show to have been necessary, the railroad company will be liable for its failure to stop the train until too late to avoid injury. Louisville & N. R. Co. v. Vanarsdell, 25 Ky. L. Rep. 1432, 77 S. W. 1103. Naturally, a directly opposite view to the last cited case is taken by those authorit.es holding that the only duty owing a trespasser is to refrain from wilful or wanton injury. Accordingly, in Indiana, where that rule obtains, it is held that a complaint alleging that defendant's employees saw the person injured on a trestle 15 feet high, and 100 feet from the end, and trying to effect his escape, at a distance of 2,000 feet, and in suflicient time to stop the train, and avoid injury, but failed to stop until after running such person down and killing him, does not state a cause of action, since the engineer had the right to presume that such person would get off the trestle, and the right to continue that presumption until the point making it perilous to continue was reached; and the complaint failed to state at what point the peril became reasonably manifest, or that at such point the engineer failed to make every possible effort to stop the train. And the court says: "If the engineer acted on the presumption that the deceased could and would get to a point of safety, and so acted until it became too late, by the use of the means within his control, to avoid running upon him, such reliance could not be considered wilfulness." Ullrich v. Cleveland, C. C. & St. L. R. Co. 151 Ind. 358, 51 N. E. 95. And where a man on a railroad trestle had knowledge of the approach of a train, and was so near the end that he could, if he chose, step off to a place of safety, but, after starting back, turned and attempted to run across in the face of the train, and the engineer thereupon did all he could to stop the train,-it was held, that if, at the time the actual circumstances, brought to the knowledge of the engineer, made it apparent to him that the deceased did not intend to leave the trestle, it was then too late to apply successfully the preventive means at hand to avoid the injury, wilfulness and wantonness, equivalent to an intention or willingness to inflict injury, cannot be imputed from a failure to stop the engine." And it is said that proof of such gross negligence as amounts to wantonness and recklessness is necessary to overcome the effect of the contributory negligence of the injured party, and authorize a recovery. Southern R. Co. v. Bush, 122 Ala. 470, 26 So. 168. N. B. R. 1905. FRENCH V. SENATE. Investigation, and that the charges were true. and that the report was taken up and considered by the body, at which time petitioners had an opportunity to be heard in their own behalf. 3. The state legislature has power Gaines v. Thompson, 7 Wall. 347, 19 L. ed. to adopt any procedure for the expulsion of United States ex rel. Redfield v. Windom, 4. A member of the legislature has, in 5. A member of the state legislature is constitutional power of the state legislature to expel a member is not restricted by the further provisio that a member who accepts a bribe is guilty of felony, upon conviction of which he shal be forever disqualified from holding any of fice or public trust and therefore conviction is not a prerequisite to his expulsion from the legislative body. 8. A resolution expelling a from the legislature is not a bill of at tainder forbidden by the Constitution. (April 28, 1905.) 137 U. S. 636, 34 L. ed. 811, 11 Sup. Ct. This court will not interfere with either Ex parte Echols, 39 Ala. 698, 88 Am. Where, by the Constitution, the legismember lative, judicial, and executive departments are made distinct and independent, neither is responsible to the other for the perform ance of its duties, and neither can enforce such performance by the other. PETITION for a writ of mandamus to compel the Senate of the State of Colifornia to restore petitioners to membership therein. Denied. The facts are stated in the opinion. v. Messrs. George D. Collins, H. Morehouse, J. E. Alexander, F. C. Jacobs, and William F. James for peti tioners. Mr. U. S. Webb, Attorney General, for respondent: The supreme court of the state of Califor nia has no jurisdiction to issue a writ of mandamus in this proceeding. The jurisdiction of the supreme court over the subject-matter of the action is to be deter mined by express statutory enactment. And jurisdiction goes no further than the wording of the statute or Constitution allows. People v. Stoll, 143 Cal. 692, 77 Pac. 818: People ex rel. Broderick v. Morton, 156 N. Y. 136, 41 L. R. A. 231, 66 Am. St. Rep. 547, 50 N. E. 791. Mandamus will not lie from one branch of the government to a co-ordinate branch, for neither is inferior to the other, and such proceeding would amount to the sovereign issuing a mandamus to himself. Des Moines Gas Co. v. Des Moines, 44 Iowa, 505, 24 Am. Rep. 756. Mandamus will not issue where it is not effectual and beneficial. People v. Chicago, 106 Ill. App. 72; State ex rel. Collins v. Lewis, 111 La. 693, 35 So. 816; People ex rel. Billings v. Bisigan City v. Roberts, 34 Ind. 471; Harpensell, 19 Ill. 229, 68 Am. Dec. 594; Michding v. Haight, 39 Cal. 208, 2 Am. Rep. 432. A writ of mandamus will never issue to control the discretion of the lawmaking branch of the government. People ex rel. McDonald v. Keeler, 99 N. Y. 477, 52 Am. Rep. 49, 2 N. E. 615; People ex rel. Drake v. Mahaney, 13 Mich. 481. The senate of the state of California has certain powers and privileges which are necessary to its legislative functions; and these powers and privileges will never be interfered with by the courts in a direct proceeding. Crosby's Case, 3 Wis. 199; Ex parte McCarthy, 29 Cal. 404. The senate of the state of California has full power to preserve its own honor, dignity, purity and efficiency by the expulsion of an unworthy, or the discharge of an incompetent, member; and this court will Re Dennett, 32 Me. 508, 54 Am. Dec. 602; | not review that act of expulsion. Com. ex rel. M'Laughlin v. Philadelphia Ex parte McCarthy, 29 Cal. 404; FrankDist. Judges, 5 Watts & S. 275; Marbury 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. 768; Hovey v. Foster, 118 Ind. 508, 21 N. E. 39; Re Falvey, 7 Wis. 630; State ex rel. Werts v. Rogers, 56 N. J. L. 480, 23 L. R. A. 354, 28 Atl. 726, 29 Atl. 173; State v. Gilmore, 20 Kan. 554, 27 Am. Rep. 189; Auditor General v. Menominee County, 89 Mich. 567, 51 N. W. 483; People ex rel. Drake v. Mahaney, 13 Mich. 481; Re Gunn, 50 Kan. 155, 19 L. R. A. 519, 32 Pac. 470, 948; Lusher v. Scites, 4 W. Va. 17. The words "due process of law" refer to that law of the land in each state which derives its authority from the inherent and reserve powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292; Re Kemmler, 136 U. S. 448, 34 L. ed. 524, 10 Sup. Ct. Rep. 930. Const. art. 4, § 9, gives to the senate the power of expulsion, and this power is in part judicial, and the manner of its exercise is to be determined by the senate. In the manner of exercise of this constitutional power the senate is beyond the control of the judiciary. People ex rel. Broderick v. Morton, 156 N. Y. 136, 41 L. R. A. 231, 66 Am. St. Rep. 547, 50 N. E. 791; Re Dennett, 32 Me. 508, 54 Am. Dec. 602; Com. ex rel. M'Laughlin v. Philadelphia Dist. Judges, 5 Watts & S. 275; Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60; Gaines v. Thompson, 7 Wall. 347, 19 L. ed. 62; The Secretary v. McGarrahan (Cox v. United States) 9 Wall. 298, 19 L. ed. 579; United States ex rel. Dunlap v. Black, 128 U. S. 40, 32 L. ed. 354, 9 Sup. Ct. Rep. 12; United States ex rel. Redfield v. Windom, 137 U. S. 636, 34 L. ed. 811, 11 Sup. Ct. Rep. 197; United States ex rel. Boynton v. Blaine, 139 U. S. 306, 35 L. ed. 183, 11 Sup. Ct. Rep. 607. Shaw, J., delivered the opinion of the court: | Since then they have not been allowed to sit as members of the senate nor to participate in its proceedings. It is alleged in the petition that in the proceedings expelling the petitioners the senate did not give them a hearing, nor afford them a trial upon the charges made, nor permit them to make any defense thereto; that the charges of bribery upon which they were expelled are false; and that neither of them has been convicted of such crime. Even if we should give these allegations their fullest force in favor of the pleader, they do not make a case justifying the interposition of this court. Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the Constitution. It has been held by high authority that, even in the absence of an express provision conferring the power, every legislative body in which is vested the general legislative power of the state has the implied power to expel a member for any cause which it may deem sufficient. In Hiss v. Bartlett, 3 Gray, 473, 63 Am. Dec. 768, the supreme court of Massachusetts says, in substance, that this power is inherent in every legislative body; that it is necessary to enable the body "to perform its high functions, and is necessary to the safety of the state;" that it is a power of self-protection, and that the legislative body "must necessarily be the sole judge of the exigency which may justify and require its exercise." In this state the power does not depend on implication; it is expressly given; or, as the power would exist without the express grant, perhaps it is more accurate to say that it is expressly recognized and limited. The Constitution provides that the senate "shall determine the rule of its proceeding, and may, with the concurrence of two thirds of all the members elected, expel a member." Article 4, 9. If this provision were omitted, and there were no other constitutional This is an original proceeding in mindamus to compel the senate of the state of limitations on the power, the power would California to admit the petitioners as members thereof. The case was submitted to this court upon a general demurrer to the petition, and the writ denied. The petitioners were duly elected senators of the state from the respective districts which they represent, and each duly qualified and acted as a member of the senate at the thirty-sixth regular session until the 27th day of February, 1905, when they were by the senate expelled therefrom for malfeasance in office, consisting of taking a bribe to influence their conduct as senators. nevertheless exist, and could be exercised by a majority. The only effect of the provision is to make the concurrence of two thirds of the members elected necessary to its exercise. In all other respects it is absolute. The legislature is a co-ordinate department of the state government. By article 3 of the Constitution it is provided that one department of the state shall not exercise the functions of either of the other departments, except as in that instrument expressly directed and permitted. There is no provision authorizing courts to con trol, 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 acts are included the proceedings by which the petitioners were expelled and which are entered upon the journal of the senate. We are therefore bound to take notice that charges were preferred against the petitioners in the senate, and were referred by it to a committee for investigation; that the committee reported that it had made the investigation, and that the charges were true, and recommended that the petitioners be expelled; that this report was taken up and considered by the senate; that the petitioners, being then members, had upon such consideration an opportunity to present, or have presented arguments in their behalf; and that the resolution expelling them was regularly offered and adopted by the senate. There being no direct allegation to the contrary, we must presume that the petitioners had notice of these proceedings, and that they were allowed as members to participate therein. In view of these facts, we cannot consider the allegations of the petition as imputing to the senate the arbitrary and unfair treatment of the petitioners which might be inferred from the language used, but will rather consider them as a statement of the conclusion of the pleaders that the proceedings taken, of which we take judicial notice, did not constitute a trial or hearing, and did not give them the opportunity to be heard in their own behalf, which they believe they were entitled to have. Even if the court should attempt to usurp this legislative function, there is no means whereby it could carry its judgment into effect and give the relief demanded. The thirty-sixth session of the legislature has adjourned sine die; it is a thing past, and cannot be reconvened upon the mandate of the judicial power. Const. art. 3. The senate could not reinstate the petitioners as members of that session except when lawfully in session. Nor can the body which composed the thirty-sixth session be again called together except in special session and at the behest of the governor. Const. art. 4, § 2, art. 5, § 9. The next regular session of the senate will be composed of different persons and will be a different body | from that now supposed to be before the court. The court is without power to is sue its final process against a body not lawfully served with its original process, and which has not submitted itself to its jurisdiction. Moreover, before the next session convenes, the terms of all the petitioners except Wright will have expired. The court cannot issue any effective mandate to reinstate the petitioners as members of the senate. We think it is proper to say further, out of respect to a co-ordinate department of the government, that, notwithstanding the arbitrary action apparently charged against the senate by the language of the petition, we cannot give the statements therein contained their full force. Ordinarily, when a case is submitted on a demurrer, all the facts stated in the pleadings demurred to are taken as true. To this rule there are some exceptions, one of which is important here. Only those facts are admitted by a demurrer which it is necessary to allege in the pleading. It is not necessary to allege facts of which the court will take judicial notice. Such facts will be considered by the court although not pleaded. 12 Enc. Pl. & Pr. p. 1; 1 Chitty, Pl. 215, 217. 218; People ex rel. Drake v. Mahaney, 13 Mich. 481; Mullan v. State, 114 Cal. 581, 34 L. R. A. 262, 46 Pac. 670; Bliss, Code Pl. 177, 194. Those allegations of a plead ing which are not necessary, and which are contrary to the facts of which judicial notice is taken, are not admitted by a demur There is no averment that the manner of the proceeding was contrary to the rules established. And even if it were as abrupt as the interpretation of the pleading most favorable to the petitioners would imply, the matter would be immaterial. The senate has power to adopt any procedure, and to change it at any time and without notice. It cannot tie its own hands by establishing rules which, as a matter of power purely, it cannot at any time change and di-regard. Its action in any given case is the only criterion by which to determine the rule of proceeding adopted for that case. There is no constitutional provision giving to the petitioners the right to have a trial and opportunity to be heard upon the charges made against them in the senate other than that which they have received. |