sence of an explicit imposition of power and duty would permit the enactment of laws to govern the subject, cannot narrow or impair the positive declaration of the people's will that this power is vested solely in the Senate and House respectively. It is a prerogative belonging to each House, which each alone can exercise. It is not susceptible of being deputed. As was said by Chief Justice Gray in Peabody v. School Committee of Boston, 115 Mass. 383, at 384: "It cannot be doubted that either branch of the Legislature is thus made the final and exclusive judge of all questions, whether of law or of fact, respecting such elections, returns or qualifications, so far as they are involved in the determination of the right of any person to be a member thereof." elec But The Constitution confers upon each branch of the Legislature by necessary implication, the power to determine for itself the procedure as to settlement of controversies touching the election and qualification of its own members, and the ascertainment of all facts relative thereto, and to change the same at will. That established by one branch might differ from that adopted by the other. the statute so long as it stands, imposes upon both branches uniformity of procedure so far as concerns this particular matter. One branch cannot ignore it without repeal of the statute. A repeal can be accomplished only by affirmative vote by both branches and approval by the Governor. Yet the Constitution plainly gives to each branch of each successive Legislature an untrammeled power to proceed in its own manner and according to its own judgment without seeking the concurrence or approval of the other branch, or of the executive. This discretion to determine the method of procedure cannot under the Constitution be abrogated by action taken by an earlier Legislature. [2] The only way open to either branch of the Legislature under the Constitution to obtain the assistance of the judicial department of government in the performance of the duties reposed in it by the Constitution, is under part the second, chapter 3, article That goes no further than to enable either branch to secure the advice of the Justices of the Supreme Judicial Court "upon important questions of law and upon solemn occasions." It does not extend to the determination of questions of fact. It does not authorize the imposition upon the courts of functions vested by the Constitution exclusively in other departments of government. Case of Supervisors of Elections, 114 Mass. 247, 19 Am. Rep. 341; Boston v. Chelsea, 212 Mass. 127, 98 N. E. 620. If the statute should be construed as conferring upon the three judges of the superior court final jurisdiction to pass upon the issue whether a successful candidate had been guilty of corrupt practices, it would be in derogation of the express grant of the Constitution because it would deprive each branch of the Legislature of the unlimited right to be "the judge of the tions and qualifications of its own members." No legislative body can be the sole judge of the election and qualifications of its members when it is obliged to accept as final a decision touching the purity of the election of one of its members made by another department | 2. of the government in an inquiry to which that legislative body is not a party and which it has not caused to be instituted. The proceeding created by the instant statute does not emanate from either branch of the Legislature. It is set in motion only by the initiative of five or more voters. It may result in sending to the legislative branch, to which the defendant has been elected, a decree setting forth the determination of the judges that a corrupt practice has been committed. That decree may be ignored by the branch of the Legislature to which it is sent. There is no legal compulsion resting upon that branch to take action respecting such decree. Only its sense of self-respect and duty to the whole commonwealth to purge itself of a member unworthy his office would impel it to pay heed to the decree. If action should be taken, it still would be open for that branch of the Legislature to exercise its constitutional prerogative and to examine the whole issue for itself and to decide whether the election and qualification of the member were such that he ought to be expelled and the election declared void. That decision, when made by the branch of the Legislature concerned, would stand as final and could not be disputed or revised by any court or authority. Coffin v. Coffin, 4 Mass. 1, 34-36, 3 Am. Dec. 189; Opinion of Justices, 10 Gray, 613, 623; Hiss v. Bartlett, 3 Gray, 468, 472, 475, 63 Am. Dec. 768. Such decision would nullify the efficacy of the finding of the facts set forth in the decree of the three judges of the superior court. [3, 4] The statute cannot be supported by article xi of the same section (chapter 1, § 3) of the Constitution. Its final paragraph is: "And the Senate and House of Representatives may try and determine all cases where their rights and privileges are concerned, and which, by the Constitution, they have authority to try and determine, by committees of their * * * members, or in such other way as they may respectively think best." It is still the "Senate and the House of Representatives" which must hold the trial and make the decision. The Senate or House of Representatives of any particular Legislature to which the question may be presented has the power to decide whether to try such cases by "committee of their own members or in such other way as they may respectively think best." This grant of absolute power cannot be fettered by the opinion of both branches of some preceding Legislature expressed in a statute. Each branch of the Legislature may try and determine the question as to violation of the corrupt practice act by a committee of its own mem [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1314; Dec. Dig. 318(9).] 2. EVIDENCE 77(1) — PRESUMPTIONS — ABSENCE OF WITNESS. bers or doubtless by a committee otherwise | due to the negligence of the motorman in acting constituted. But it cannot require the judi- without signal. ciary as a co-ordinate department of government to hold a trial and render a decision which in its nature must be purely tentative or advisory and wholly subject to its own review, revision, retrial, or inaction. This would be imposing upon the judicial department of government the investigation of a matter not resulting in a judgment, not finally fixing the rights of parties, and not ultimately determining a state of facts. It would subject a proceeding arising in a court to modification, suspension, annulment or affirmation by a part of the legislative department of government before it would possess any definite force. Manifestly this is in contravention of the article 30 of Bill of Rights which marks the entire separation of the legislative and judicial departments of the government. Denny v. Mattoon, 2 Allen, 361, 379, 79 Am. Dec. 784; Opinion of Justices, 201 Mass. 609, 612, 89 N. E. 174, 24 L. R. A. (N. S.) 799. [5] The statute cannot be upheld upon the ground which supports the appointment of commissioners to perform duties lying close to the line between the legislative and judicial faculties, but partaking chiefly of the latter nature, illustrated by Boston, Petitioner, 221 Mass. 4CS, 474, 109 N. E. 389, and cases there collected; Northampton Bridge Case, 116 Mass. 442; Brayton v. Fall River, 124 Mass. 95; County Commissioners, Petitioners, 140 Mass. 181, 5 N. E. 490; In re Metropolitan Park Commissioners, 209 Mass. 381, 95 N. E. SC6, and similar cases. In all those cases the Legislature reserves no power of revision, but the whole matter proceeds to a final judgment in the courts. For these reasons we are constrained to hold that so much of section 10 of chapter 783 of St. 1914, as undertakes to impose upon the courts the duty of simple inquiry into corrupt practices in connection with the election of members of the General Court is contrary to the terms of the Constitution. No opinion is intimated as to the validity of other parts of the act. It is unnecessary to consider the other questions reported. It follows that the first question, so far as relates to the proceeding at bar, must be answered in the negative. So ordered. (223 Mass. 475) FITZPATRICK v. BOSTON ELEVATED (Supreme Judicial Court of Massachusetts. 1. CARRIERS 318(9)-INJURIES TO PASSENGERS EVIDENCE. In an action for injuries to passengers from the sudden starting of a car while they were alighting, evidence held sufficient to sustain findings that the starting signal was given by the conductor, or that the movement of the car was In an action for injuries to a passenger, where the motorman has twice testified in the case for defendant and once for plaintiff, and there is no evidence that he is in the control of plaintiff or defendant, no inference can be drawn against either plaintiff or defendant from the failure to produce him, and it is error to leave the question whether such inference can be drawn to the jury. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 97; Dec. Dig. 77(1).] Exceptions from Superior Court, Suffolk County; Frederic H. Chase, Judge. Actions by Catherine Fitzpatrick against the Boston Elevated Railway Company, and by Margaret E. Fitzpatrick p. p. a. against the same defendant. Judgments for plaintiffs, and defendant excepts. Sustained. Geo. H. Mellen and Wilton L. Currier, both of Boston, for plaintiffs. E. P. Saltonstall, C. W. Blood, and R. S. Pattee, all of Boston, for defendant. PIERCE, J. At the close of the evidence the defendant asked the court to rule: "1. Upon all the evidence in the cases the plaintiffs are not entitled to recover. "2. There is no evidence in these cases that the conductor of the car gave the signal for the car to start at the time the plaintiffs were alighting. "3. There is no evidence in these cases that any negligence of the defendant, its agents or servants caused the car to start or jerk even if the jury should find it started or jerked. "4. Upon all the evidence in these cases, no tiff or the defendant for the failure to produce inference can be drawn against either the plainthe motorman of the car." [1] In its aspect most favorable to the plaintiffs' contention, the evidence warranted the jury in finding the facts to have been substantially as follows: the plaintiffs, mother and eight year old daughter, were passengers upon an inbound box car of the defendant. The car stopped, upon the signal of the mother, at the corner of Cambridge street and Grove street. After the car had stopped, the mother and daughter walked out through the aisle of the car side by side. They came to the edge of the platform, were in the "motion of stepping out" when two bells were rung and "the car gave a sudden jerk." The mother testified: "I made another effort to catch the handle of the car and the second jerk came so quickly, the two jerks just came one after the other, like that-the second jerk threw the both of us out from the top platform to the rock pavings below." Direct and inferential testimony, warranted, if it did not require, the jury to find that the bell was not rung by any person other than the conductor, and, because of the elimination of all other agency, justified the conclusion that the conductor did so. Killam v. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Wellesley & Boston St. Ry., 214 Mass. 283, 101 N. E. 374. Moreover, the jury might find that the car started or jerked after it had come to a full stop for passengers to alight, and while the plaintiffs were alighting, and that such movement of the car was due to the negligence of the motorman in acting without signal. McDermott v. Boston Elev. Ry., 208 Mass. 105, 94 N. E. 309. Exceptions "1", "2", and "3", are overruled. Exceptions from Superior Court, Suffolk County; Jabez Fox, Judge. Petition by Harry Freedman to establish the truth of exceptions taken in the superior court in an action against Bessie Lipman and others. Petition allowed, and exceptions overruled. See, also, 222 Mass. 179, 110 N. E. 161. Sawyer, Hardy, Stone & Morrison and [2] The request numbered "4" should have Stone, of Boston, of counsel), for plaintiff. Joseph Michelman, all of Boston (Edward C. been given. The absent witness, the motor-Stoneman, Gould & Stoneman, of Boston, for man of the car, was not in the employ of the defendants. defendant. He had testified in this case twice for the defendant and once for the plaintiff. There was no evidence that he was in the control of plaintiff or defendant, or even that he was alive. There was, therefore, no room for inference that his testimony, if given, would favor the contention of either party, or that the failure of either party to produce him was due to fear that his testimony might injure their cause. RUGG, C. J. [1] This is an action of con. tract to recover upon a promissory note. At the trial, the plaintiff contended that the consideration for the note was money, but the defendants contended that it was part of an agreement between the plaintiff, who was the tenant, and the defendants, who were his lessors, whereby the tenant promised to improve the demised premises by an expenditure of not less than $2,800, and the defendants promised to give to the plaintiff the note. The defendants offered in evidence an unsigned draft of an agreement setting out the terms of the bargain substantially in accord The presiding judge after fully and clearly instructing the jury as to the law applicable to such a situation, left to it the question whether any inference against the defendant should be drawn. This was error, and the exception must be sustained. McKim v. Fo-ance with their contention, together with ley, 170 Mass. 426, 428, 49 N. E. 625; Jones v. Boston & Northern St. Ry., 211 Mass. 552, 555, 98 N. E. 506; Scovill v. Baldwin, 27 Conn. 316, 318. So ordered. testimony that this draft was delivered to the plaintiff and retained by him several days. An attorney testified that he made the draft agreement at the request of one of the defendants, "and after a talk with the plaintiff." The paper was admitted against the plaintiff's exception. It is conceivable that in some aspects of the trial, the fact that such an agreement, drawn under the circumstances here disclosed, and put for a time in the plaintiff's possession, might be competent. Nichols v. Commercial Travel1. APPEAL AND ERROR 1032(2) ers' Ass'n, 221 Mass. 540, 547, 109 N. E. 449. DICE BY ADMISSION OF EVIDENCE-BURDEN It is for the excepting party to show that he OF PROOF. (223 Mass. 471) FREEDMAN v. LIPMAN et al. (Supreme Judicial Court of Massachusetts. Suffolk. April 6, 1916.) PREJU The party excepting to the admission of evidence must show that he was prejudiced. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4048, 4049; Dec. Dig. 1032(2).] 2. APPEAL AND ERROR 701(2) MATTERS NOT NECESSARY TO DECISION. Where there is nothing in the bill of exceptions to indicate that there was any evidence to which requests for rulings were applicable, the Supreme Judicial Court need not determine whether such requests were sound in law. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2934; Dec. Dig. 701(2).] 3. EXCEPTIONS, BILL OF 55(4) PETITION TO ESTABLISH. On petition to establish the truth of exceptions, the matters open are in substance only those set forth in the bill as presented to the judge and disallowed by him, and a motion asking that a copy of the charge be annexed to the record, made under St. 1913, c. 716. § 3. touching the power of the full bench of the Supreme Judicial Court to amend, is inappropriate. [Ed. Note. For other cases, see Exceptions, Bill of, Cent. Dig. § 93; Dec. Dig. 55(4).] has been prejudiced by the admission of Worrell [2] The plaintiff requested the judge to give two rulings.1 There is nothing in the bill of exceptions to indicate that there was any evidence to which these requests were applicable. It is not necessary to determine whether they are sound in law. [3] The plaintiff has presented a motion under St. 1913, c. 716, § 3, asking that a copy of the judge's charge be annexed to the rec ticed upon the indorsers A. Lipman and Ginsberg the plaintiff is entitled to recover as against them. 11. In the absence of any evidence of fraud prac 2. The plaintiff also requested the judge to rule: If the jury believe that some fraud may have been practiced upon the defendant Mrs. Lipman, and if they find that no fraud was practiced upon her husband. Mr. Lipman, and the indorser Ginsberg, the plaintiff may recover against them. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ord. This is not an appropriate instance for by the record. Petition to establish exceptions allowed. (223 Mass. 473) POPE et al. v. BERRY et al The article in the warrant at the special town meeting called for consideration of the question whether "a combination motor pump, chemical and hose carriage to take the place of the hose wagon now located at Danversport" should be purchased, or whether "any other action thereon agreeable to William Coleman and others" should be taken. While a committee was duly appointed "to investigate the proper type of machine and the cost of the same and report at some future meeting," no report was ever made. And at the adjournment of the annual town meeting under an article to hear and act on the report of the committee on fire apparatus, the committee was discharged. A committee was thereupon appointed to purchase a fire pump, and “that the matter be referred to the finance committee," said special committee to report at the adjournment of this meeting. At the (Supreme Judicial Court of Massachusetts. Es- adjourned meeting on recommendation of the sex. April 5, 1916.) TOWNS 30- FIRE ENGINEERS Under Rev. Laws, c. 32, § 45, giving the board of fire engineers of a town the exclusive care and superintendence of the engines, fire hose, fire hooks, ladder carriers, and ladders, the buildings, fixtures, and equipments, and of all pumps, reservoirs of water, and apparatus owned by the town and used for extinguishing fires, where a town meeting voted to buy a motor pumping fire engine, without any designation of any part of the town where the engine should be placed and used, the engine, when purchased, became the property of the town, and the board of fire engineers could station it, in their discretion, at a particular fire station of the town. finance committee an appropriation was made for the purchase of "a motor pumping engine," and the special committee was authorized to buy, in behalf of the town. The committee acting under this vote bought the engine, which after certain tests was accepted, and placed in the possession and management of the respondents who are the lawfully constituted board of fire engineers. The subject before the town was the purchase of the engine, and the vote to buy with the necessary appropriation therefor, but without any designation of any part of the town where the engine should be placed and used was valid. Torrey v. Millbury, 21 Pick. 64, It accordingly became the property of the [Ed. Note. For other cases, see Towns, Cent. 68; Hunneman v. Grafton, 10 Metc. 454, 456. Dig. § 53; Dec. Dig. 30.] Report from Supreme Judicial Court, Es-town and we find nothing in the proceedings sex County. Petition for writ of mandamus by Isaac D. Pope and others against William A. Berry and others. On report for the determination of the full court. Petition ordered dismissed. Wm. E. Clapp, of Boston, for petitioners. Benj. F. Crowley, of Salem, for respondents. which curtails the powers of this board as defined in R. L. c. 32, s. 45, giving to them the exclusive care and superintendence of the engines, "hose, fire hooks, ladder carriages and ladders, the buildings, fixtures and equipments, and of all pumps, reservoirs of water and apparatus owned by the town and used for extinguishing fires." The vote of the board placing the engine at a fire staBRALEY, J. The petitioners ask us to tion other than Danversport having been decide whether the board of fire engineers within their statutory authority, the petition of a town can designate the fire station or for a writ of mandamus "commanding them engine house at which an engine forming to locate, keep, maintain and care for said part of the fire apparatus of the town shall combination motor pumping engine at the be kept, notwithstanding the vote of the fire station on River street, Danversport, and town, when authorizing the purchase of the not elsewhere," must be dismissed. Bowers engine, directed and required that it should| v. Needham, 216 Mass. 422, 103 N. E. 906, be placed and used in a different station or and cases cited. locality. But this question is not presented So ordered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (184 Ind. 643) the cause was tried by a jury, which, on HEDEKIN LAND & IMPROVEMENT CO. September 19, 1913, returned a verdict for V. CAMPBELL. (No. 22957.) (Supreme Court of Indiana. April 6, 1916.) 1. PLEADING 201 DEMURRER TO COмPLAINT MEMORANDUM. - The insufficiency of a complaint for want of allegations of facts is waived, except as to jurisdiction of the subject-matter, by a demurrer, whose memorandum does not, as required by Acts 1911, c. 157, specifically point out the defects. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 473-479; Dec. Dig. 201.] 2. APPEAL AND ERROR 193(9)-ERRORS ASSIGNABLE-SUFFICIENCY OF COMPLAINT. Failure of the complaint to state sufficient facts cannot be assigned as error, this being to raise the question for the first time on appeal, not permissible as a result of Acts 1911, c. 157. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1232-1236; Dec. Dig. 193(9); Pleading, Cent. Dig. § 1363.] 3. JUDGMENT 263(3) ARREST INSUFFICIENT FACTS IN COMPLAINT. Failure of complaint to allege sufficient facts, being, under Acts 1911, c. 157, waived by absence of proper demurrer, cannot be raised by motion in arrest. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 470, 471; Dec. Dig. 263(3).] 4. NEW TRIAL 119 TIME OF MOTION STATUTE. Motion for new trial not being filed in 30 days after verdict, as required by Burns' Ann. St. 1914, § 587 (Acts 1913, c. 320), cannot be considered. [Ed. Note.-For other cases, see New Trial, Cent. Dig. § 243; Dec. Dig. 119.] Appeal from Circuit Court, Allen County; J. W. Eggeman, Judge. Action by Margaret Campbell against the Hedekin Land & Improvement Company. Judgment for plaintiff, and defendant appeals. Transferred from Appellate Court under section 1405, Burns 1914. Affirmed. Albert E. Thomas and Howard L. Townsend, both of Ft. Wayne, for appellant. John H. Aiken, Ray McAdams, and Lee J. Hartzell, all of Ft. Wayne, for appellee. appellee. Appellant filed a motion for a new trial on October 21, 1913, which was overruled, and on the same day appellant moved in arrest of judgment, which motion was overruled. Thereupon the court rendered judgment on the verdict. Appellant has assigned as errors here, and on which it relies, the following: (1) Overruling demurrer to complaint; (2) insufficiency of complaint to state a cause of action; (3) overruling motion in arrest of judgment; and (4) overruling motion for a new trial. In its brief appellant has expressly waived a consideration here of the matters set out in its memorandum to the demurrer, and of its first cause of demurrer, and says: "There is no defect or omission in the complaint herein, if the right of recovery can be based upon chapter 47 of the Acts of 1909.” [1] Whether appellee's complaint stated a cause of action under such statute depends on the sufficiency of the facts stated in the complaint, and appellant failed to specify, either in the body of its demurrer for want of facts, or any appended memorandum, any defect in reference thereto. The General Assembly of 1911, by chapter 157, amended sections 1, 85, and 89 of an act concerning proceedings in civil cases, approved April 7, 1881 (Acts 1881, c. 38). Acts 1911, p. 415; sections 344, 348, Burns 1914. By sections 2 and 3 of this Act, the Legislature provided a remedy for a serious evil of long standing. Theretofore, through the medium of general demurrers for insufficiency of facts, questions were actually presented here for the first time on the sufficiency of pleadings, and judgments were regularly reversed be cause of some technical defect in a pleading, which, if pointed out in the court below, Would have been promptly corrected by could, and often did, deliberately conceal amendment. Under such procedure counsel from the trial court the real defect in the pleading on which they expected to rely in MORRIS, C. J. Action by appellee for the appellate tribunal, by suggesting other damages for her minor child's death, alleg- and trivial objections. The result of such ed to have been caused by appellant's neg-practice was the frequent granting of new ligent violation of certain provisions of chap- trials, with the attendant evils of increased ter 47 of the Acts of 1909 (Acts 1909, p. expense and long delay in the final hearing of 108). Appellant demurred to the complaint just causes, and burdening the taxpayers of as follows: the state with the expense of two trials instead of one. Very soon after this act took effect, in State ex rel. v. Bartholomew (1911) 176 Ind. 182, 95 N. E. 417, Ann. Cas. 1914B, 91, it was construed, and the court said: "Said defendant demurs to the complaint for the following reasons: First, because said plaintiff has not legal capacity to sue; second, because said complaint does not state facts sufficient to constitute a cause of action. "Thomas & Townsend, Attys. for Defendant. "Memoranda. "(1) The complaint does not challenge that plaintiff is the administratrix of the decedent, Thomas Campbell, for whose alleged death suit is brought. (2) The complaint shows that said decedent was emancipated." The demurrer was overruled, and, on the issues formed by an answer of general denial, "Under the proviso in section 2 * * the defects in a complaint, not specifically stated murrer, are waived by the demurring party, and in the memorandum, which is a part of the dehe cannot thereafter question the sufliciency of the complaint for any defect not so specified." To the same effect, see Pittsburgh, etc., R. Co. v. Farmers' Trust, etc., Co., 183 Ind. 287, 108 N. E. 108; Spiro v. Robertson, 57 Ind. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-7 |