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is given to remove an officer "for cause" without requiring any previous notice or any hearing, such notice must nevertheless be given and a hearing had, have been disapproved in this state. Re Carter, 141 Cal. 319, 74 Pac. 997. But, in any event, they clearly have no application to the present case, where the power to remove is, as we have seen, inherent and necessary to the exercise of the functions of the body possessing it, and are given without limitation or restriction.
It is claimed that the power to expel for bribery is, by § 35, art. 4, limited to those cases in which the member has been convicted of the crime defined in that section. The section provides that any member of the legislature who is influenced in his official action by any reward or promise thereof is guilty of a felony, and that upon conviction he shall be forever disqualified from holding any office or public trust. It is obvious that this section was not intended to have any effect whatever upon the power to expel members of the legislature given by § 9 of the same article. The two provisions are entirely independent, and are made for different objects and purposes. The power to expel is given to enable the legislative body to protect itself against participation in its proceedings by persons whom it judges unworthy to be members thereof, and affects only the rights of such persons to continue to act as members. The provision of § 35 defines a certain crime, and prescribes the effect of a judgment of conviction thereof upon the subsequent status as a citizen of the person found quilty. A resolution of the senate expelling a member, whether for bribery or for some other offense, or improper conduct, is not the equivalent of the conviction of the person of the crime set forth in the charges against him.
The proposition that a resolution or other action of the senate resulting in the
With respect to the possible abuse of such power, the case is analogous to that of the President of the United States with respect to officers of the United States subject to arbitrary removal by him. In regard to this the Supreme Court of the United States says that the only restraint upon the abuse of the power "must consist in the responsibility of the President, under his oath of office, to so act as shall be for the general benefit and welfare." Shurtleff v. United States, 189 U. S. 317, 47 L. ed. 832, 23 Sup. Ct. Rep. 535. The same 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 violation vidual member of the senate, and his duty of § 16, art. 1, of the state Constitution, and under it to act conscientiously for the gen of 10, art. 1, of the Constitution of the eral good, is the only safeguard to the fel- United States, is scarcely worthy of notice. low members against an unjust and cause. The charges upon which a member is exless expulsion. This is the only practical 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 has not the force of law, and it cannot necessary to the exercise of governmental by any stretch of construction be denomi functions, and which must be lodged some-nated a bill of attainder. 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-a prescribed punishment therefor, with judg partment; and in such cases the only protecment 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 14th Amendment to the Constitution of the United States does not affect the case, nor have its provisions been violated by the action of the senate. While it is true that, so far as private persons are concerned, the right to hold a public office duly conferred upon an individual has many of the attributes of private property, and is protected by the law of the land, yet, as between the office holder and the sovereign power, such right is not violated when the proper governmental authority, acting in pursuance of a power expressly given to it by the fundamental law, has removed such person from the office. Re Carter, 141 Cal. 319, 74 Pac. 997. The sovereign power which created the office can also fix the terms upon which it is held, and can delegate the power of removal. The title is held subject to the conditions thus impose. The relations between the body politic and its officers are not in this particular essentially different from those existing between a private person and his servants. Al though there may be a difference as to the liability for damages for a dismissal with out cause, the right or power to dismiss always exists. The senate having expelled the petitioners in the manner prescribed by the Constitution, in the exercise of the power therein given, it is not true that they have been deprived of the right to the office without due process of law.
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 attainder.
We find no ground upon which the appli- J.; Lorigan, J.
CONNECTICUT SUPREME COURT OF ERRORS.
Sarah L. STANLEY et al.
Howard M. STEELE, Appt.
(77 Conn. 688.)
1. Livery-stable keepers are not with-
Messrs. John H. Kirkham and James E. Cooper, for appellees:
We concur: Beatty, Ch. J.; Van Dyke, J.; Henshaw, J.; Angellotti,
In any business involving the personal safety and lives of others what is due care,―reasonable diligence? Clearly nothing less than the most watchful care and the most active diligence. Anything short of this is negligence and carelessness, and would furnish clear ground of liability if an injury was thereby sustained.
Hadley v. Cross, 34 Vt. 586, 80 Am. Dec. 699; Ingalls v. Bills, 9 Met. 1, 43 Am. Dec. 346; Erickson v. Barber Bros. 83 Iowa, 372, 49 N. W. 838; Horne v. Meakin, 115 Mass. 331; Ray, Negligence of Imposed Duties, p. 22; Grand Rapids & I. R. Co. v. Huntley, 31 Am. Rep. 324, note, 38 Mich. 537; Copeland v. Draper, 157 Mass. 558, 19 L. R. A. 283, note, 34 Am. St. Rep. 314, 32 N. E. 944.
NOTE. AS to warranty of horse or vehicle kept for hire, see also, in this series, note to Copeland v. Draper, 19 L. R. A. 283.
Reasonable care is care proportioned to the danger.
Dexter v. McCready, 54 Conn. 172, 5 Atl. 855; Knowles v. Crampton, 55 Conn. 344, 11 Atl. 593; 19 Am. & Eng. Enc. Law, 2d ed. pp. 433, 434.
This defendant cannot rely, for his defense here, on his dealer or manufacturer. Where the negligence of two or more peracting independently, concurrently results in injury to a third, the latter may maintain his action for the entire loss against any one or all of the negligent parties.
21 Am. & Eng. Enc. Law, 2d ed. p. 496, and note; Perham v. Portland General Electric Co. 33 Or. 451, 40 L. R. A. 804, 72 Am. St. Rep. 730, 53 Pac. 14; Carterville v. Cook. 129 111. 152, 4 L. R. A. 721, 16 Am.
St. Rep. 248, 22 N. E. 14; 9 Cyc. Law & Proc. pp. 618, 619; 5 Am. & Eng. Enc. Law, 2d ed. p. 527.
Hall, J., delivered the opinion of the court:
This is an appeal by the defendant from a judgment in favor of the plaintiffs for $750 for injuries received by the plaintiff Sarah L. Stanley from the overturning of a carriage hired of the defendant. The amended complaint alleges that the defendant was a livery-stable keeper; that he let to the plaintiffs a carriage and a pair of horses, with a driver; that the carriage and its appliances were defective, in that the pole, neck yoke, and pole straps were of insufficient strength and out of repair, and that the driver was incompetent; that the neck yoke became detached from the collar of one of the horses, and the driver lost control of the team, and the pole broke, and the carriage was overturned; that the accident was caused by the unskilful handling of the horses, and by the failure of the defendant to exercise due and proper diligence in furnishing a safe driver and safe harnesses and appliances.
The facts showing the cause of the accident are these: A part of the harness or appliances furnished by the defendant was a neck yoke, consisting of a wooden bar
nothing less than the most watchful care and the most active diligence; anything short of this is negigence and carelessness, and would furnish clear ground of liability if an injury was thereby sustained.'"
An examination of the evidence shows that the plaintiffs endeavored to prove at the trial that the defect in the neck yoke was that the thimble which came off had not been fastened to the neck yoke at all, and that the plaintiffs' witnesses who examined the neck yoke after the accident testified that there was no screw in the end of the neck yoke where the thimble had come off. After the neck yoke and thimble had been produced in court, showing the screw still in it, and the broken screw head, the court says that it had "grave doubts" whether that was really the yoke in question. It having been proved to be the yoke in use at the time of the accident, the case evidently turned upon the question of whether due care upon the part of the defendant required him to so carefully inspect the neck yoke as to discover that the head of the screw through the underside of the thimble was so small as to be insufficient to hold the thimble on, and that the screw head was liable to break, and allow the thimble to slip over it and off the yoke. The defendant endeavored to prove that the pole and neck
It is claimed, among the reasons of appeal, that the trial court, in deciding that the defendant was negligent in not having discovered the defect in the neck yoke which 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 also erred in finding and in refusing to find certain facts. A statement of the evidence and rulings in the case is made a part of the record, as provided by § 797 of the General Statutes of 1902.
about 3 feet long, which, by a leather loop | at the middle, is attached at right angles to the end of the carriage pole. Fitted to each end of the neck yoke is a metal cap or thimble, through a slot or opening on the surface of which a strap passes around the neck yoke and is connected with the horse collar, and by this attachment to the pole the carriage is held back and turned. On the underside of each of said thimbles is a small hole, countersunk for a screw to go through into the neck yoke, to prevent the thimble from slipping off. The head of the screw upon the right-hand thimble was too small for the countersink, so that, when screwed down, the top of the screw head was below the outer surface of the thimble, and only the outer edge of the screw head held the thimble. While driving down a slight grade a part of this screw head broke off, and the thimble slipped over the broken screw head and off the neck yoke, and the pole was thereby let down; and the carriage, coming against the horses, frightened them and they ran away, throwing the plaintiff from the carriage and seriously injuring her.
Concerning this defect from the smallness of the screw head in the thimble, the trial judge says in the finding: "A casual observer might not have seen it, but a person whose duty it was to exercise due care to see that the harness and carriage were in a safe condition, so that the security of his passengers might be preserved, would have seen it, and ought to have seen it. Said defect was not hidden, but it was plain to be seen by the eye, and could have been seen by the defendant, who was present when said team was furnished the plain tiff, if he had used ordinary care in examining the equipment." The finding states that "the defendant testified that, had he noticed the screw, he never would have used the yoke, while his foreman testified the screw was so small a blind man could see that." As to the degree of care required of the defendant, the trial judge says in his finding: "Hadley v. Cross, 34 Vt. 586, 80 Am. Dec. 699, states the rule which I adopt: 'In any business involving the personal safety and lives of others, what is due care,―reasonable diligence? Clearly,
reputable dealer, were examined by him in the usual and proper manner, and that such a slipping of the thimble from the neck yoke was very unusual, and to prove by several witnesses, among whom was the defendant's foreman, that the defect in the fastening of the thimble was not discoverable upon an ordinary inspection of the neck yoke. From the evidence before us upon this apparently controlling question in the case, the trial judge, in deciding it, evidently gave consid erable weight to what he in effect says in the finding was the testimony of the defendant's foreman, namely, that the screw in the thimble was so small that any person who could see would have discovered the defect. It is conceded by the plaintiff's counsel, and it appears from the evidence before us, that the defendant's foreman did not so testify. On the contrary, it appears that he testified that the defect was not apparent upon inspection of the pole and yoke. The only witness who used language at all similar to that ascribed in the finding to the defendant's foreman was one Dunbar. He was called by the defendant to identify the neck yoke produced in court as the one which he brought back to the stable after the accident. His remark on cross-examination, after he had identified the yoke by the screw which was in it, "A blind man can 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 contradicted the plaintiffs' witnesses that there was no screw to be seen in the yoke when they examined it after the accident. When testifying as to the appearance of the yoke when it was put onto the carriage, this witness said there was nothing to indicate the defect that the screw head was too small for the countersink, and that it would not be seen. The trial court therefore erred in considering as evidence, in deciding a material question in the case testimony which was not in fact given.
We are also of opinion that by the rule adopted the trial court held the defendant to too high a degree of care upon the question of whether he ought to have discovered the defect in the fastening of the thimble to the neck yoke. In the case of common carriers of passengers, the highest degree of care which a reasonable and pru
Ident man would use in that business is re
do not hold themselves out as serving the
quired. As to a common carrier of passengers by stage-coach, this rule "applies alike to the character of the vehicle, the horses and harness, the skill and sobriety of the driver, and to the manner of conducting the stage under every emergency or difficulty," and the stage owner is held liable "for the smallest negligence in himself or his driver." Derwort v. Loomer, 21 Conn. 245, 253; Stokes v. Saltonstall, 13 Pet. 181, 10 L. el. 115. Hadley v. Cross, 34 Vt. 586, 80 Am. Dec. 699, referred to by the trial court as laying down the correct rule as to the degree of care required of the defendant, was an action against a livery-stable keeper for an injury caused by a defect in a wagon hired of the defendant; but the rule of diligence adopted in that case was that applicable to common carriers of passengers. The opinion states that it was conceded that the rule of duty and diligence to be applied was that applicable "to coach owners or other passenger carriers" who furnished drivers as well as teams; the plaintiff claim ing that the defendant was liable for a decise due diligence and care in its performfect which was not visible, and could not be discovered by the most careful examination, and the defendant that he was only liable for the want of due care. The court points out the difference between the liability of common carriers of passengers and of goods, and says that the former is only liable for the want of due care, but that that term, when applied to carriers of passengers, means the same as the terms "extraordinary care" and "the highest diligence," and cites as settling the law on the subject the case of Ingalls v. Bills, 9 Met. 1, 43 Am. Dec. 346, which was an action against a common carrier of passengers. But public carriers owe to their passengers a degree of care and
ance, but ordinary skill, diligence, and prudence are all that the law exacts from him.
... The highest degree of diligence is the rule as to public carriers of passengers, and public policy forbids its relaxation; but a private carrier for hire may discharge himself from liability for accident by showing that he exercised the usual skill, care, and diligence ordinarily exercised by those engaged in the same pursuit, to furnish a safe coach, harness, and horses, and a competent and careful driver."
In determining in the present case the question of the liability of the defendant 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 discoverable by the defendant by the exercise of ordinary care,—that is, by such care as is usually exercised by persons of ordi
There is error, and a new trial is ordered.
The other Judges concur.
GEORGIA SUPREME COURT.
City Council of AUGUSTA et al., Plffs. in and thoroughfare in the city. Seventyfive feet of the street in width and 4 blocks in length will be occupied by the tents, buildings, and structures of the fair. The fair will consist of tents, inclosing shows and exhibitions, structures, stands, Ferris wheels, merry-go-rounds, "shoot the chutes," the "loops," and various and sundry devices and constructions and obstructions, and will monopolize the portion of the street in which it is placed. These obstructions will seriously interfere with the use of the street by the public for traffic, travel, and business, and will occasion great hurt and annoyance to the citizens in general. The carnival will consist of a large number of separate shows and exhibitions, each in a separate tent or inclosure, besides numerous stands or booths for the sale of articles of merchandise. Criers or "spielers" will be stationed in front of each tent, show, stand, or booth, who, by the use of horns, megaphones, bells, drums, and similar instruments, will attempt to attract crowds of people in the street to each place. Admis sion will be charged by the proprietors to the said shows and exhibitions. It is alleged that the city council of Augusta has no authority, under its charter, to permit such an obstruction of its streets as will be made by the carnival; that, the nuisance not being completed, the statutory remedy for the abatement of nuisances is not applicable, and that a separate proceeding would have to be instituted to abate each show or exhibition; and that for these reasons a court of equity has jurisdiction to enjoin the erection of the obstructions composing the fair. The prayer was for such an injunction. The case was heard on demurrer to the petition. The judge granted an interlocutory injunction, and the defendants excepted.
Joseph S. REYNOLDS, Solicitor General.
(........... Ga....... .)
*1. A fair occupying 75 or 80 feet in width and 4 blocks in length of an important business street in a city. and consisting of numerous tents, inclosing shows and exhibitions, in front of which are stationed men blowing horns and talking through megaphones to attract attention, to gether with various other stands, booths. structures, Ferris wheels, merry-go-rounds. and other devices for amusement of the pub lic and profit to the owners; which fair a company of the state militia is permitted to station on the street for a week.-is a public
nuisance of a most aggravated nature.
2. There is nothing in the charter of the city of Augusta which permits the city authorities to grant the use of its streets for the operation of an enterprise of the nature above indicated.
3. A court of equity has jurisdiction, at the instance of the solicitor general, to restrain by injunction the erection of a public
(May 10, 1905.)
Statement by Cobb, J.: An information was filed in behalf of the state by the solicitor general of the Augusta circuit, upon the petition of named parties. complaining of the city council of Augusta and John D. Twiggs, Jr., as captain of the Oglethorpe Infantry, a company of the state militia. The petition alleged, in substance. as follows: For several years past it has been customary from time to time to hold street fairs or carnivals in the city of Augusta. The city council has granted the defendant Twiggs permission to hold one of such fairs during the first week in May, 1905, on Broad street, which is 180 feet wide, and is the principal business street
*Headnotes by COBB, J.
NOTE. As to power to authorize obstruction of highway, see also, in this series, note to Spencer v. Andrew, 12 L. R. A. 115.
Messrs. C. Henry Cohen and Austin Branch, for plaintifts in error:
The structures which it is alleged were about to be erected were not of a character. extent, and duration, nor for a purpose, which would constitute them nuisances per se, and only nuisances per se should be enjoined at an interlocutory hearing.
The right of the public in a street is a relative, and not an absolute, one, and