Imagens das páginas

The 14th Amendment to the Constitu- , is given to remove an officer "for cause” tion of the United States does not affect the without requiring any previous notice or case, nor have its provisions been violated any hearing, such notice must nevertheless by the action of the senate. While it is be given and a hearing had, have been distrue that, so far as private persons are con approved in this state. Re Carter, 141 Cal. cerned, the right to hold a public office duly 319, 74 Pac. 997. But, in any event, they conferred upon an individual has many clearly have no application to the presof the attributes of private property, and is ent case, where the power to remove is, protected by the law of the land, yet, as as we have seen, inlierent and necessary to between the office holder and the sovereign the exercise of the functions of the body power, such right is not violated when the possessing it, and are given without lim. proper governmental authority, acting in itation or restriction. pursuance of a power expressly given to it It is claimed that the power to expel by the fundamental law, has removed such for bribery is, by $ 35, art. 4, limited to person from the office. Re Carter, 141 Cal. those cases in which the membăr has been 319, 74 Pac. 997. The sovereign power convicted of the crime defined in that secwhich created the office can also fix the tion. The section provides that any memterms upon which it is held, and can dele- ber of the legislature who is influenced in gate the power of removal. The title is his official action by any reward or promise held subject to the conditions thus imposel. thereof is guilty of a felony, and that upon The relations between the body politic and conviction he shall be forever disqualified its officers are not in this particular essen from holding any office or public trust. tially different from those existing between It is obvious that this section was not ina private person and his servants. Al tended to have any effect whatever upon the though there may be a difference as to the power to expel members of the legi-lature liability for damages for a dismissal with given by $ 9 of the same article. The two out cause, the right or power to dismiss provisions are entirely independent, and are always exists. The senate having expelled made for different objects and purposes. the petitioners in the manner prescribed by The power to expel is given to enable the the Constitution, in the exercise of the legislative body to protect itself against power therein given, it is not true that participation in its proceedings by persons they have been deprived of the riglit to whom it judges unworthy to be members the office without due process of law. thereof, and affects only the riglits of such

With respect to the possible abuse of persons to continue to act as members. The such power, the case is analogous to that of provision of $ 35 defines a certain crime, the President of the United States with and prescribes the effect of a judgment of respect to officers of the United States sub. conviction thereof upon the subsequent ject to arbitrary removal by lim. In re status as a citizen of the person found gard to this the Supreme Court of the Unit-guilty. A resolution of the senate expel. ed States says that the only restraint upon ling a member, whether for bribery or for the abuse of the power “must consist in some other offense, or improper conduct, the responsibility of the President, under is not the equivalent of the conviction of his oath of ollice, to so act as shall be for the person of the crime set forth in the the general benefit and welfare." Shurt. charges against him. leff v. United States, 189 U. S. 317, 47 L. The proposition that a resolution or ed. 832, 23 Sup. (t. Rep. 535. The same other action of the senate resulting in the is true of the power of the senate here un expulsion of a member is in substance a der consideration. The oath of each indi: bill of attainder, and therefore a violition viduul member of the senate, and his duty of $ 16, art. 1, of the state Constitution, an:] under it to act conscientiously for the gen of $ 10, art. 1, of the Constitution of the eral good, is the only safeguurd to the fel United States, is scarcely worthy of notice. low members against an unjust and cause. The charges upon which a member is er. less expulsion. This is the only practicul pelled may or may not constitute a charge rule that can be adopted as to those un of crime, but the resolution expelling him restricted governmental powers which are las not the force of law, and it cannot necessary to the exercise of government'l by any stretch of construction be denomifunctions, and which must be lodged some nated a bill of attvinder. At common law where. Each department of the state is "a bill of attainder was a legislative connecessarily vested with some power whic' viction for an alleged crime, followed by is beyond the supervision of any other de prescribed punishment therefor, with judg. partment; and in such cases the only protec. ment of death.” And, even where a milder tion against abuse is the conscience of the punishment was inflicted, its effect was an individual in whom the power is vested. extinction of civil and political rights and The decisions holding that, where a power capacities. Cooley, Const. Lim. 7th ed. 368.

The resolution of expulsion has no effect cation of the petitioners can be supported, upon the rights of the member expelled and we are of the opinion that the writ was further than to terminate his right to sit properly denied. as a member of the legislative body, and it bears no just resemblance to a bill of We

Beatty, Ch. J.; Van attainder.

Dyke, J.; Henshaw, J.; Angellotti, We find no ground upon which the appli. I J.; Lorigan, J.




Sarah L. STANLEY et al.

Reasonable care is care proportioned to

the danger. Howard M. STEELE, Appt.

Dexter v. McCready, 54 Conn. 172, 5 Atl.

855; Knowles v. Crampton, 55 Conn. 344, (77 Conn. 688.)

11 Atl. 593; 19 Am. & Eng. Enc. Law, 2d ed.

pp. 433, 434. 1. Livery-stable keepers are not with

This defendant cannot rely, for his dein the rule that coinmon carriers of pas

fense here, on his dealer or manufacturer. sengers are bound to exercise extraordinary care for the safety of their passengers.

Where the negligence of two or more per2. Whether or not a livery-stable keep- sons, acting independently, concurrently re

er is liable to a patron for an injury sults in injury to a third, the latter may due to a defect in the neck yoke of the car maintain his action for the entire loss riaye furnished by him depends upon wheth. | against any one or all of the negligent parer it was discoverable by the exercise of such

ties. care as is usually exercised by persons of

21 Am. & Eng. Enc. Law, 2d ed. p. 496, ordinary prudence in the conduct of such business.

and note; Perham v. Portland General

Electric Co. 33 Or. 451, 40 L. R. A. 804, 72 (April 20, 1903.)

Am. St. Rep. 730, 53 Pac. 14; Carterville v.

Cook, 129 111. 152, 4 L. R. A. 721, 16 Am. A . ; &

of the Superior Court for Hartford Proc. pp. 618, 619; 5 Am. & Eng. Enc. Law, County in plaintiff's' favor in an action 2d ed. p. 527. brought to recover damages for personal injuries alleged to have been caused by de- Hall, J., delivered the opinion of the fendant's negligence. Reversed.

court: The facts are stated in the opinion.

This is an appeal by the defendant from Messrs. William F. Henney and Henry a judgment in favor of the plaintiff's for C. Gussman for appellant.

$750 for injuries received by the plaintiff Messrs. John H. Kirkham and James Sarah L. Stanley from the overturning of a E. Cooper, for appellees:

carriage hired of the defendant. The In any business involving the personal amended complaint alleges that the defendsafety and lives of others what is due ant was a livery-stable keeper; that he let, care, -reasonable diligence ? Clearly noth- to the plaintiff's a carriage and a pair of ing less than the most watchful care and horses, with a driver; that the carriage and the most active diligence. Anything short its appliances were defective, in that the of this is negligence and carelessness, and pole, neck yoke, and pole straps were of would furnish clear ground of liability if insufficient strength and out of repair, and an injury was thereby sustained.

that the driver was incompetent; that the Hadley v. Cross, 34 Vt. 586, SO Am. Dec. neck yoke became detached from the collar 699; Ingalls v. Bills, 9 Met. 1, 43 Am. Dec. of one of the horses, and the driver lost con346; Erickson v. Barber Bros. 83 Iowa, 372, trol of the team, and the pole broke, and 49 N. W. 838; Horne v. Meakin, 115 Mass. the carriage was overturned; that the acci. 331; Ray, Negligence of Imposed Duties, p. dent was caused by the unskilful handling 22; Grand Rapids & 1. R. Co. v. Iluntley, of the horses, and by the failure of the de31 Am. Rep. 324, note, 38 Mich. 537; Cope- fendant to exercise due and proper diligence land v. Draper, 157 Mass. 558, 19 L. R. A. in furnishing a safe driver and safe har. 283, note, 34 Am. St. Rep. 314, 32 N. E. nesses and appliances. 944.

The facts showing the cause of the acci

dent are these: NOTE.--As to warranty of horse or vehicle

A part of the harness or kept for hire, see also, in this series, note to appliances furnished by the defendant was Copeland v. Draper, 19 L. R. A. 283.

a neck yoke, consisting of a wooden bar

about 3 feet long, which, by a leather loop | nothing less than the most watchful care at the middle, is attached at right angles to and the most active diligence; anything the end of the carriage pole. Fitted to short of this is negrigence and carelessness, each end of the neck yoke is a metal cap and would furnish clear ground of liability or thimble, through a slot or opening on the if an injury was thereby sustained.' ” surface of which a strap passes around the An examination of the evidence shows neck yoke and is connected with the horse that the plaintiff's endeavored to prove at collar, and by this attachment to the pole the trial that the defect in the neck yoke the carriage is held back and turned. On was that the thimble which came off had the underside of each of said thimbles is a not been fastened to the neck yoke at all, small hole, countersunk for a screw to go and that the plaintiffs' witnesses who examthrough into the neck yoke, to prevent the ined the neck yoke after the accident testithimble from slipping off. The head of the fied that there was no screw in the end of screw upon the right-hand thimble was too the neck yoke where the thimble had come small for the countersink, so that, when off. After the neck yoke and thimble had screwed down, the top of the screw head been produced in court, showing the screw was below the outer surface of the thimble, still in it, and the broken screw head, the and only the outer edge of the screw head court says that it had “grave doubts" whethheld the thimble. While driving down a er that was really the yoke in question. It slight grade a part of this screw head broke having veen proved to be the yoke in use at off, and the thimble slipped over the broken the time of the accident, the case evidently screw head and off the neck yoke, and the turned upon the question of whether due pole was thereby let down; and the carriage, care upon the part of the defendant required coming against the horses, frightened them him to so carefully inspect the neck yoke as and they ran away, throwing the plaintiff to discover that the head of the screw from the carriage and seriously injuring through the underside of the thimble was so her.

small as to be insufficient to hold the It is claimed, among the reasons of ap- thimble on, and that the screw head was peal, that the trial court, in deciding that liable to break, and allow the thimble to the defendant was negligent in not having slip over it and off the yoke. The defendant discovered the defect in the neck yoke which endeavored to prove that the pole and neck was the cause of the accident, erred in hold- yoke were new, were purchased by him from a ing him to too high a degree of care, and reputable dealer, were examined by him in also erred in finding and in refusing to find the usual and proper manner, and that such certain facts. A statement of the evidence a slipping of the thimble from the neck yoke and rulings in the case is made a part of was very unusual, and to prove by several the record, as provided by § 797 of the witnesses, among whom was the defendant's General Statutes of 1902.

foreman, that the defect in the fastening of Concerning this defect from the small the thimble was not discoverable upon an ness of the screw head in the thimble, the ordinary inspection of the neck yoke. From trial judge says in the finding: “A casual the evidence before us upon this apparently observer might not have seen it, but a person controlling question in the case, the trial whose duty it was to exercise due care to judge, in deciding it, evidently gave considsee that the harness and carriage were in a erable weight to what he in effect says in safe condition, so that the security of his the finding was the testimony of the defendpassengers might be preserved, would have ant's foreman, namely, that the screw in the seen it, and ought to have seen it. Said thimble was so small that any person who defect was not hidden, but it was plain to could see would have discovered the defect. be seen by the eye, and could have been It is conceded by the plaintiff's counsel, seen by the defendant, who was present and it appears from the eviden:e before us, when said team was furnished the plain that the defendant's foreman did not so tiff, if he had used ordinary care in exam. testify. On the contrary, it appears that he ining the equipment.” The finding states testified that the defect was not apparent that "the defendant testified that, had he upon inspection of the pole and yoke. The noticed the screw, he never would have only witness who used language at all simiused the yoke, while his foreman testified lar to that ascribed in the finding to the the screw was so small a blind man coull defendant's foreman was one Dunbar. He see that.” As to the degree of care was called by the defendant to identify the quired of the defendant, the trial judge neek yoke produced in court as the one says in his finding: Hadley v. Cross, 31 which he brought back to the stable after Vt. 586, 80 Am. Dec. 699, states the rule the accident. His remark on cross-examinawhich I adopt: 'In any business involving tion, after he had identified the yoke by the personal safety and lives of others, what the screw which was in it, “A blind man can is due care,-reasonable diligence? Clearly, I see that,” was evidently his statement of


how readily anyone could see the screw in | protection which is not exacted of those who the yoke after the accident, and contra- do not hold themselves out as serving the dicted the plaintiffs' witnesses that there public in that capacity. 6 Cyc. Law & Proc. was no screw to be seen in the yoke when p. 534; Seaver v. Bradley, 179 Mass. 329, 88 they examined it after the accident. When Am. St. Rep. 384, 60 N. E. 795. And while testifying as to the appearance of the yoke the proprietors of stage-coaches, hacks, and when it was put onto the carriage, this omnibuses, who hold themselves out to the witness said there was nothing to indicate public as general conveyers of passengers the defect that the screw head was too small from place to place for hire with their own for the countersink, and that it would not drivers, may be included in the class known be seen. The trial court therefore erred in as public or common carriers of passengers, considering as evidence, in deciding a ma- livery-stable keepers, whose business it is to terial question in the case testimony which care for the horses and carriages of others, was not in fact given.

and to let their own horses and carriages We are also of opinion that by the rule either with or without drivers, are not comadopted the trial court held the defendant

mon carriers of passengers, within the legal to too high a degree of care upon the ques- meaning of that term. Cooley, Torts, $ 633; tion of whether he ought to have dis- Payne v. Halstead, 44 Ill. App. 97; Siegcovered the defect in the fastening of the rist v. Arnot, 86 Mo. 200, 56 Am. Rep. 424 ; thimble to the neck yoke. In the case of Erickson v. Barber Bros. 83 Iowa, 367, 49 N. common carriers of passengers, the highest W. 838; Copeland v. Draper, 157 Mass. 558, degree of care which a reasonable and pru- 19 L. R. A. 283, 34 Am. St. Rep. 314, 32 dent man would use in that business is re.

N. E. 944. By merely carrying on such a quired. As to a common carrier of passen | livery-stable business the proprietors of it gers by stage-coach, this rule "applies alike do not hold themselves out as undertaking, to the character of the vehicle, the horses for hire, to carry indiscriminately any perand harness, the skill and sobriety of the driver, and to the manner of conducting the sons who may apply, either to certain places, stage under every emergency or difficulty,”

or to such places as they may desire to be

carried to. Furthermore, those who hire and the stage owner is held liable "for the smallest negligence in himself or his driver.” carriages from livery-stable keepers are not Derwort v. Loomer, 21 Conn. 245, 253 ; necessarily conveyed by the vehicles, horses, Stokes v. Saltonstall, 13 Pet. 181, 10 L. el. and drivers chosen by the proprietor, but 115. Hadley v. Cross, 34 Vt. 586, 80 Am. may, in a measure, protect themselves by Dec. 699, referred to by the trial court as

selecting the particular carriage, horse, and laying down the correct rule as to the de- driver they wish to hire. The rule of law gree of care required of the defendant, was

which requires "the strictest and highest dean action against a livery-stable keeper for gree of diligence of a public carrier of pasan injury caused by a defect in a wagon sengers" is not applicable to a mere livery hired of the defendant; but the rule of dili. stable keeper. “Such livery-stable keeper," gence adopted in that case was that appli says the court in Payne v. Halstead, 44 Ill. cable to common carriers of passengers. App. 97, “is not a common carrier, The opinion states that it was conceded that and does not assume the duties and obligathe rule of duty and diligence to be applied tions of such a carrier. He is at most i was that applicable “to coach owners or private carrier for hire.

Such a other passenger carriers” who furnished one undertakes to possess the skill adequate drivers as well as teams; the plaintiff claim to the undertaking, and promises to exering that the defendant was liable for a decise due diligence and care in its performfect which was not visible, and could not be ance, but ordinary skill, diligence, and prudiscovered by the most careful examination, dence are all that the law exacts from him. and the defendant that he was only liable:

The highest degree of diligence is for the want of due care. The court points the rule as to public carriers of passengers, out the difference between the liability of and public policy forbids its relaxation; but common carriers of passengers and of goods, and says that the former is only liable for himself from liability for accident by show

a private carrier for hire may discharge the want of due care, but that that term,

ing that he exercised the usual skill, care, when applied to carriers of passengers, means the same as the terms "extraordinary

and diligence ordinarily exercised by those care” and “the highest diligence,” and cites engaged in the same pursuit, to furnish a as settling the law on the subject the case

safe coach, harness, and horses, and a comof Ingalls v. Bills, 9 Met. 1, 43 Am. Dec. petent and careful driver.” 346, which was an action against a common In determining in the present case the carrier of passengers. But public carriers question of the liability of the defendant owe to their passengers a degree of care and for the accident resulting from the defective

fastening of the thimble to the neck yoke. nary prudence in the conduct of such liverythe proper inquiry was, was such defect stable business? discoverable by the defendant by the exer: There is error, and a new trial is ordered. cise of ordinary care,—that is, by such cure as is usually exercised by persons of ordi The other Judges concur.



City Council of AUGUSTA et al., Plffs. in and thoroughfare in the city. SeventyErr.,

five feet of the street in width and 4 blocks

in length will be occupied by the tents, Joseph S. REYNOLDS, Solicitor General. buildings, and structures of the fair. The

fair will consist of tents, inclosing shows (........ Ga.........)

and exhibitions, structures, stands, Ferris *1. A fnir occupying 75 or so feet in wheels, merry-go-rounds, "shoot the chutes,"

width and 4 blocks in length of an the “loops,” and various and sundry devices important business street in a city, and constructions and obstructions, and and consisting of numerous tents. inclosing will monopolize the portion of the street shows and exhibitions, in front of which are in which it is placed. These obstructions stationed men blowing horns and talkins will seriously interfere with the use of the through megaphones to attract attention, to gether with various other stands, booths. street by the public for traslic, travel, and structures, Ferris wheels, inerry-go-rounds. business, and will occasion greut hurt and and other devices for amusement of the pub annoyance to the citizens in general. The lic and profit to the owners; which fair a

carnival will consist of a large number of company of the state militia is permitted to station on the street for a week. -is a public separate shows and exhibitions, each in a nuisance of a most aggravated nature.

separate tent or inclosure, besides numerous 2. There is nothing in the charter of stunds or booths for the sale of articles of

the city of Augusta which permits the merchandise. Criers or “spielers” will be city authorities to grant the use of its streets stationed in front of each tent, show, stand, for the operation of an enterprise of the

or booth, who, by the use of horns, meganature above indicated. 3. A court of equity has jurisdiction. phones, bells, drums, and similar instruat the instance of the solicitor general, to

ments, will attempt to attract crowds of restrain by injunction the erection of a public people in the street to each place. Adinisnuisance.

sion will be charged by the proprietors to (May 10, 1905.)

the said shows and exhibitions. It is al

leged that the city council of Augusta has E RROR to the Superior Court for Rich

no authority, under its charter, to permit mond County to review a judgment in such an obstruction of its streets as will be favor of plaintiff in a suit to enjoin the made by the carnival; that, the nuisance alleged obstruction of a public street. not being completed, the statutory reniedy Affirmed.

for the abatement of nuisances is not ap

plicable, and that a separate proceeding Statement by Cobb, J.:

An information was filed in behalf of the would have to be instituted to abate each state by the solicitor general of the Augusta show or exhibition; and that for these reacircuit, upon the petition of named pirties, sons, a court of equity has jurisdiction to complaining of the city council of Augusta enjoin the erection of the obstructions comand Jolin D. Twings, Jr., as captain of the posing the fair. The prayer was for such Oglethorpe Infantry, a company of the state an injunction. The case was heard on demilitia. The petition alleged, in substance.

murrer to the petition. The judge granted as follows: For several years past it has

an interlocutory injunction, and the defendbeen customary from time to time to hold ants excepted. street fairs or carnivals in the city of Augusta. The city council has granted the de

Jessrs. C. Henry Cohen and Austin fendant Twiggs permission to hold one o Branch, for plaintitis in error: such fairs during the first week in May.

The structures which it is alleged were 1905, on Broad street, which is 180 feet about to be erected were not of a character. wide, and is the principal business street extent, and duration, nor for a purpose,

which would constitute them nuisances per *leadnotes by COBB, J.

se, and only nuisances per se should be enNUTE. --As to power to authorize obstruction joined at an interlocutory hearing. of highway, see also, in this series, note to

The right of the public in a street is a Spencer v. Andrew, 12 L. R. A. 115.

relative, and not an absolute, one, and

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