scribed in the particular act.

Clearly theity) for wrongful acts done in what is termed road with which we are here concerned was their private or corporate character, and not within the purview of either of them. from which they derive some special or imTherefore it is, that if duty rested on the mediate advantage or emolument, but not as prison board to make these repairs, it must to such acts done in their public capacity as be found in the Act of May 25, 1907 (P. L. governing agencies, in the discharge of duties 247), relating to the employment of prison imposed for the public or general (not corpolabor, and there only. This act creates a rate) benefit." Dillon on Municipal Corpoprison board in each county, composed of rations, § 966. Since the condition of the the sheriff and the county commissioners, public roads was not a matter of county "for the employment of persons in jail," and (corporate) concern, it is impossible to see gives to such prison boards "full power and how any advantage or emolument could reauthority to compel the said male prisoners sult to the county as a corporation from the to work on the public highways outside the improvement that was made in this instance limits of said jails and workhouses, and with- by the prison board. It is manifest that the in their respective counties." It would improvement could neither increase the reveseem that the power here conferred is to en- nue of the county nor lighten its burdens. ter upon any of the highways within the That it contributed to the ease and comfort county. But be that as it may, in any case of the general public is doubtless true, but it is a power the employment of which that is aside from the question. What we is left wholly in the discretion of the board. are to look for is private or corporate advanIts exercise is not a duty enjoined. "Where tage, and surely there was none here. Not any person has a right to demand the exer- only so, but we can discover no purpose in cise of a public function, and there is an the act of May 25, 1907, authorizing the emofficer or set of officers authorized to exer- ployment of jail labor, to benefit the councise that function, there the right and the au- ties as counties. The act declares its sole thority give rise to the duty; but where the purpose to be to provide for the better emright depends upon the grant of authority, ployment of prisoners and improvement of and that authority is essentially discretion- the highways of the commonwealth. Whethary, no legal duty is imposed." Carr v. er the prisoners in jails shall be compelled to Northern Liberties, 35 Pa. 324, 78 Am. Dec. labor, is a matter of public concern, not af342. So it necessarily results, that even fecting the counties in any way. The same though authority existed for the prison board is true, as we have seen, in the matter of to improve this particular road, such work the improvement of the highways. Neither of repairs was not the performance of a duty of these objects is a proper and legitimate required of the board by any statute. "A subject for county regulation. Both are municipal corporation is not impliedly liable matters of state policy. In electing to exto an action for damages either for the non-ercise the power given it by the act, the prisexercise of, or for the manner in which in on board became a governing agency for the good faith it exercises, discretionary power performance of duties imposed for the pubof a public or legislative character." Dillon lic or general good. In so acting it repreon Municipal Corporations, § 949. sented the state, and inasmuch as the principal is exempt from liability, the same exemption attaches to the subordinate. The doctrine of respondeat superior cannot in such case apply.

But, it is argued, a liability exists for acts done in the discharge of a self-imposed duty, not enjoined by law, and that when this prison board elected to exercise the power given it by this statute, a duty resulted which was attended with the same obligations as would have been incident had the duty been positively enjoined. Even assuming the prison board to have been a county agency, the principle here asserted could apply only in case it appeared that the work done by the board was for the benefit and advantage of the county in its corporate capacity. In the matter of liability for negligence the law makes a clear distinction between municipal corporations proper, such as cities and boroughs, and such subdivisions as are only quasi corporations, as counties and townships. "But the distinction, whatever its grounds, or precise boundaries, or difficulties in its application, is well established; and the latter class of corporations (quasi) is considered to be impliedly liable (unless the legislation negatives such liabil

We are of opinion the case called for binding instructions for the defendant, and the judgment is accordingly affirmed.

Hills

FRENCH et al. v. LAWRENCE et al. (Supreme Court of New Hampshire. borough. Nov. 1, 1910.) PARTITION_(§ 32*)-DUTIES OF ADMINISTRATOR -REAL PROPERTY.

Ordinarily an administrator has no duty to perform regarding real estate, and has nothing to do with the partition of real estate between the legatees entitled thereto.

[Ed. Note.-For other cases. see Partition, Cent. Dig. 86; Dec. Dig. § 32.*]

Petition by Robert A. French, as administrator, and others, against Louisa I. Lawrence and others, for the construction of the will of Gideon Hardy. Case discharged.

H. 463, 480, 49 Atl. 638; Bailey v. McIntire, 71 N. H. 329, 52 Atl. 446; 2 Per. Tr. § 719. Case discharged. All concurred.

BER CO.

Nov. 1, 1910.)

1. MASTER AND SERVANT (§ 125*)—INJURY TO SERVANT DEFECTIVE MACHINERY -MASTER'S KNOWLEDGE.

After a gift of all the residue of the estate to the testator's wife, to be expended by her for her comfort and necessities as she might choose, the will contained the following: "At my said wife's decease, if any property is left after paying funeral expenses and liabilities, I desire the same to be divided into CALDON v. MEREDITH SHOOK & LUMfour parts, one-fourth to the First Congregational Church of Nashua, one-fourth to the (Supreme Court of New Hampshire. Belknap. feeble Congregational churches of New Hampshire, one-fourth to George Phelps, and onefourth to Barney Phelps." The testator's wife survived him, dying in 1910. The property remaining consists of three dwelling houses in a continuous row on Chestnut street, in Nashua, with appurtenant land. George and Barney Phelps both died before the testator's wife, and their sole heir is the defendant Lawrence. The advice of the court is asked as to the duty of the administrator to cause a division of the property by proceedings for sale or partition, and as to the construction and proper execution of the gift to the feeble Congregational churches of New Hampshire.

George B. French, for plaintiffs.

PARSONS, C. J. In the absence of argument or brief from any of the parties to the proceeding, it is not impossible that the case may have been misunderstood. From the record upon which the case has been submitted, it is inferred that all the property involved is real estate, as to which an administrator has ordinarily no duty to perform. Nothing is perceived, as the allegations of the petition are understood, to take the case out of the ordinary rule. The administrator is therefore advised that he has no duty to perform as to the partition of the remaining real estate between the legatees entitled.

mill, while passing through a passageway in Plaintiff, an engineer in defendant's lumber the discharge of his duties, was injured by being struck by the sharp edge of an edging thrown theretofore a post had been set up on the mafrom an edging machine. About two weeks chine bench about two feet behind the saw and only four inches out of line with it, for the purpose of supporting overhead planks, which It was necessary for the operator of the macould have been supported in some other way. chine to draw the edging back past the post in order to throw it aside after sawing it, and in doing so the end fell on the back part of the saw and was thrown against plaintiff; but it could have been pushed aside without contact with the saw, had the post not been there, it increasing the possibility of edgings being thrown off by the saw, which frequently happened. Plaintiff was not acquainted with the operation of such machines, and did not know that sticks were liable to get on the saw and be thrown back, and had not been warned of the danger therefrom. Held, that defendant was chargeable with the knowledge of the existence of the post on the saw bench and of the danger caused thereby.

[Ed. Note.-For other cases, see Master and 125.*1 Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 2. MASTER AND SERVANT (§ 278*)—INJURIES—

NEGLIGENCE.

A finding that the defendant was negligent in erecting and maintaining the post where it was, was justified.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954-972; Dec. Dig. § 278.*]

TION OF RISK-JURY QUESTION.

injured, as he was, was at most a question for the jury, especially in view of the fact that he had not been warned of the danger.

Whether plaintiff assumed the risk of being

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*]

4. MASTER AND SERVANT (§ 201*)-MASTER'S LIABILITY CONCURRING NEGLIGENCE OF

FELLOW SERVANT.

It is not alleged that the First Congrega-3. MASTER AND SERVANT (§ 288*) - ASSUMPtional Church is one of the feeble Congregational churches of New Hampshire. It is assumed that it is not. There appears to be no question that the First Congregational Church owns one-fourth of the real estate involved, and the defendant Lawrence onehalf. The only question is as to the title to the remaining fourth. If the New Hampshire Home Missionary Society was intended by the testator to be made trustee, or can be appointed trustee upon the facts alleged it would be entitled to advice as to the proper disposition of the fund. But its title to the fund as trustee has not yet been determined. If the court might in this proceeding properly express an opinion as to the validity of the devise to the feeble Congregational churches of New Hampshire, it will not do so, in the absence of the heirs of Gideon Hardy, who would own one-fourth of the estate, should the devise fail for lack of a trustee, because of its indefiniteness. Haynes v. Carr, 70 N.

Even if the operator of an edging saw was careless in operating the saw, when plaintiff was injured by a piece of edging brought in contact with the saw being thrown back and striking him, the employer might still be liable for negligence in erecting a post on the saw of the edging coming in contact with the saw. bench, which unnecessarily increased the danger

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.*]

5. MASTER AND SERVANT (§ 270*)-INJURIESACTIONS-ADMISSION OF EVIDENCE.

juries claimed to have been caused by a piece In an action by a sawmill employé for inof edging brought in contact with the back of

a revolving saw being thrown back and striking | ing, he might not always be able, in the him, evidence was admissible as to the length due performance of his work, to prevent the of the edging, the way it was held by the op- other end from striking the saw; and in erator when it touched the saw, the way the edging broke off, and the part of the saw it that case it was liable to break, and the distouched, together with other relevant facts, for connected part would then be liable to be the purpose of showing whether the accident was caused by the edging being thrown side-thrown off by the saw. The post was no

ways, as claimed by plaintiff.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 270.*]

Transferred from Superior Court, Belknap County; Chamberlin, Judge.

Action by William O. Caldon against the Meredith Shook & Lumber Company. Verdict for plaintiff. Case transferred from the superior court on defendant's exceptions. Exceptions overruled.

Alvin F. Wentworth and Martin & Howe, for plaintiff. Owen & Veazey, Stephen S. Jewett, and Charles B. Hibbard, for defendant.

part of the machine, and, moreover, it was an unnecessary appliance, since the plank above, as appears from the evidence, could way. But it had been there for two weeks easily have been held in place in some other mill; and the defendant was chargeable as a part of the permanent structure of the with knowledge of its existence (Disalets v. Company, 74 N. H. 440, 444, 69 Atl. 263), and of the special hazard it produced. It follows that the jury were warranted in finding that the defendant was in fault in having such an appliance in close proximity to the passageway, which was in frequent use by its employés. Even if the jury believed that the operator was careless, the defendant might still be liable for its want of ordinary care in maintaining an appliance which unnecessarily increased the danger of sticks coming in contact with the saw. Vaisbord v. Company, 74 N. H. 470, 69 Atl. 520. But it does not conclusively appear that the fellow servant was negligent. It was competent for the jury to find otherwise.

The defendant's contention that the acci

WALKER, J. The plaintiff's evidence tended to prove the following facts: At the time of his injuries the plaintiff was employed in the defendant's mill as an engineer, and had been so employed for many years; and while rightfully passing through a passageway by an edging machine in operation, an edging was thrown from the saw, the sharp end of which struck him upon one of his legs and caused a wound which ren-dent did not happen in the way suggested by dered amputation necessary. Some two weeks before, a post or joist had been set up on the bench of the sawing machine about two feet in the rear of the saw and within four inches of the line of the saw. The purpose of the post was to support a plank a few feet overhead. The operator of the saw testified that he had sawed off an edging some eight or nine feet long, that in order to throw it onto the pile of edgings it was necessary to draw it back past the post, and that while doing this work the end of the edging got onto the back part of the saw and was thrown against the plaintiff. If the post had not been there, the edging could have been easily pushed off the bench and away from the saw. It frequently happened that edgings were thrown off by the saw, and this liability was increased by the post. The plaintiff was unacquainted with splitting machines, and did not know that sticks were liable to get onto the saw in such a way as to be thrown into the mill; nor had he been warned that it was dangerous on this account to use the passageway.

the operator, because, if it did, the stick would have been thrown upward, and not in a lateral direction against the plaintiff, is not conclusive. While one might expect that a stick coming in contact with the back of a revolving splitting saw would probably be thrown upward, it is evident it might be thrown in some other direction. This would depend upon the combination of forces that were effective at the time. The length of the edging, the way it was held by the operator when it touched the saw, the way the end broke off, and the part of the saw it came in contact with, and perhaps many other attending facts, would each have some influence upon the direction the stick would take. And these facts were all competent for the consideration of the jury upon that question.

Nor can it be held upon the evidence that the plaintiff assumed the risk of the injury he suffered. If the jury believed his testimony, as they had a right to do, their finding that he was not chargeable with a due appreciation of the peculiar risk incident to It is apparent that the post made it more walking by the machine, enhanced by the exdifficult for the operator of the machine to istence of the post, cannot be disturbed. It throw aside the edgings after they had been cannot be said that an ordinary man of his sawed from the board, and that it increased experience would have known, under the the danger of edgings getting onto the saw; circumstances, that he was liable to be hit for it made it necessary for the operator to by a stick thrown off by the saw. At most, pull them back between the post and the saw the question is one upon which reasonable before he could throw them aside. Having men might not agree, and it was therefore hold of one end of the narrow, bending edg-properly submitted to the jury. Especially

cannot be upheld by legislation enacted in the
exercise of the police power of the state.
[Ed. Note. For other cases, see Commerce,
Cent. Dig. §§ 107-109; Dec. Dig. § 68.*]

Report from Supreme Judicial Court, Androscoggin County, at Law.

Jacob Bornstein was convicted of violating an ordinance of the city of Auburn, and appealed to the Supreme Judicial Court. Facts stipulated, and case reported to the law court. Defendant discharged.

that the foregoing ordinance is invalid for two reasons: First, because it discriminates in terms against foreign-grown fruit, and is therefore an attempt on the part of the city to regulate foreign commerce; and, second, because it is in effect, if not in terms, an attempt on the part of the city to raise revenue from an occupational tax, by the exercise of a power not given to the city, either by the charter or by the general law.

It is provided by the Constitution of this state (article 4, pt. 3, § 1), that "the Legislashall have full power to make

ture

The defendant was arrested on a warrant issued by the municipal court of Auburn for an alleged violation of an ordinance of the and establish all reasonable laws and regucity of Auburn, relating to the sale of "for-lations for the defense and benefit of the peoeign-grown fruit from any vehicle in any ple of this state, not repugnant to this Conpublic street or place" in said city. The destitution nor that of the United States." fendant pleaded not guilty, but upon hearing was found guilty and fined $10 and costs. The defendant then appealed to the Supreme Judicial Court. An agreed statement of facts was filed in the appellate court, and the case then reported to the law court for determina

tion.

The case is stated in the opinion.
Argued before EMERY, C. J., and WHITE-
HOUSE, SAVAGE, SPEAR, CORNISH, and
KING, JJ.

And by section 93 of chapter 4 of the Revised Statutes cities and towns are authorized to make and enforce ordinances for the numerous purposes specified in the 13 paragraphs comprised in that section. But it is manifest, upon an examination of these several provisions of the statute, that the ordinance in question, prohibiting the sale of foreigngrown fruit in any public street of the city, was not enacted for any of the purposes enumerated in this section of the statute, but primarily for the benefit of tradesmen. It

Frank A. Morey, Co. Atty., for the State. can only be upheld, if at all, by legislation H. E. Holmes, for defendant.

WHITEHOUSE, J. This is a complaint against the defendant for a violation of that part of one of the ordinances of the city of Auburn which provides that "no person

* * shall sell or offer for sale any foreign grown fruit from any vehicle in any public street or place of the city" unless by virtue of a written permit so to do from the board of mayor and aldermen or from some person by them duly authorized to grant the same, and that "any person" so licensed shall pay as a fee therefor the sum of $20, the same to be paid to the city treasurer for the use of the city.

enacted in the exercise of the police power of the state, as necessary to provide for and promote the safety, peace, health, morals, and general welfare of the people. But while the general power of the state to impose taxes in the form of licenses upon different pursuits and occupations within its limits is not controverted, like all other powers it must be exercised in obedience to the requirements of the federal Constitution. As stated by the federal court in Welton v. State of Missouri, 91 U. S. 275, 23 L. Ed. 347: "Where the business or occupation consists in the sale of goods, the license tax required for its pursuit is in effect a tax upon the goods themselves. If such a tax be within the power of the state to levy, it matters not whether it be raised directly from the goods or indirectly from them through the license to the dealer; but if such tax conflict with any power vested in Congress by the Constitution of the United States, it will not be any the less invalid because enforced through the form of a personal license." That case involved the question of the validity of a statute of Missouri discriminating in favor of goods and merchandise which were the growth or product of that state and against those which were the growth or product of other states or countries, by requiring the payment of a license tax from vendors of the latter class of goods and requiring no such license from vendors of the former class. The statute is held to be in conflict with the power vested in Congress to regulate commerce with forIt is contended in behalf of the defendanteign nations and the several states. In the

The case is reported to the law court upon the agreed statement of facts, in which it is stipulated that, if the foregoing ordinance is constitutional and valid, judgment shall be rendered for the state; otherwise, judgment to be rendered for the defendant.

It appears from the agreed statement of facts that the defendant was engaged in the business of peddling from his cart in the streets of Auburn certain foreign-grown fruit, to wit, bananas, without having obtained the permit or license mentioned in the foregoing ordinance. Upon a complaint charging him with a violation of the ordinance, he was found guilty by the judge of the municipal court and sentenced to pay a fine of $10 and costs. From this judgment and sentence the defendant appealed to the Supreme Judicial Court.