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NOTES OF CASES.
case of a defective locomotive moving through the
country and scattering desolation among those to N State v. Smith, Iowa Supreme Court, June 17, whom its proprietors owed the duty of a care corre
sponding to its dangerous nature; but it was a case prosecution for bastardy, not error to allow the al- of private employment, whereby the proprietors of leged bastard child, two years old or more, to be the engine were solicited to send it upon the private exhibited to the jury, and permit them to determine business of the employers into a place where the as to the family resemblance between such child and latter well knew, and had for a long time known the alleged putative father. Statements of counsel and understood, it was likely to do mischief. If calling attention to certain alleged points of resem- there was negligence on the part of the railroad blance, held, if erroneous, to be without prejudice.company, it was to be found in consenting to be The statement of counsel was as follows: “I only thus employed. There is just the same and no wish to call the attention of the jury to what any reason for plaintiffs to complain of it, that one can see plainly, with half an eye, that the eyes of there would have been had they hired the owner of this exhibit (the child) are hooked, and that also the a vicious animal, known by them to be such, to eyes of the defendant are hooked, and that the eyes bring him for their purposes upon their premises, of Reka Helm are not." The court said: “The de- and then been injured by him, as they should have fendant claims that any resemblance, if it should be anticipated they might be. That which one conthought to exist between such a child and a man sents to, and invites, he cannot complain of in the alleged to be its father, is too unreliable to consti- law as an injury. Motz v. Detroit, 19 Mich. 495; tute legal evidence of the alleged paternity. It is Maxwell v. Bridge Company, 41 id. 453.” On the a well-known fact that resemblances often exist be- other point, the court said: “When there is a tween persons who are not related, and are wanting promise to repair immediately, or within a fixed between persons who are. Still, what is called fam- time, and a party relies upon its having been done, ily resemblance is sometimes so marked as scarcely and is injured because of such reliance, he has a to admit of a mistake. We are of the opinion, right to complain; but this is no such case. The therefore, that a child of the proper age may be ex- promise was wholly indefinite, and plaintiffs never hibited to a jury as evidence of alleged paternity. relied upon it except as a probable future event. Precisely what should be deemed the proper age we They knew the repairs had not been made when need not determine. It was held in State v. Dan- | they employed the engine on the day of the fire, forth, 48 Iowa, 43; 8. C., 30 Am. Rep. 387, that it was and they deliberately and most carelessly took the error to allow a child three months old to be exhib- risks of what actually happened.” ited. That case is relied upon by the defendant in this. But a child which is only three months old has that peculiar immaturity of features which char
In Dells v. Kennedy, Wisconsin Supreme Court, acterizes an infant during the time it is called a
June, 1880, 6 Northw. Rep. 246, it was held that a babe. A child two years old or more has to a large registration law, in so far as it prohibits a duly qual extent put off that peculiar immaturity. In allow
ified elector from voting at an election, unless he ing a child of that age to be exhibited we think the
has been registered before the election, or becomes court did not err, especially under the instruction qualified after the last day for completing the regisgiven, to which we shall hereafter refer." This de- try, and before the election, is unconstitutional and cision seems to us about as bad as can be, and not void, the electoral qualifications being laid down in much helped by the instruction that if the jury the Constitution, and the Constitution conferring "did not clearly see such resemblance they should
no authority upon the legislature, directly or indidisregard all claims of resemblance on the part of rectly, to change, impair, add to or abridge them. the State."
The same had been substantially decided in State ex
rel, v. Baker, 38 Wis. 71, and in Page v. Allen, 58 In Marquette, etc., Railroad Co. v. Spear, Michigan Penn. St. 346. In the latter case it was said: Supreme Court, June 23, 1880, 6 Northw. Rep. 202, " These are the constitutional qualifications necesthe owner of a warehouse owned a railroad track, sary to be an elector. They are defined, fixed and running on his own premises near it, and employed | enumerated in that instrument.
In those who posa railroad company to send an engine to draw cars sess them is vested a high, and to a freeman, sacred over it for his accommodation. The engine threw right, of which they cannot be divested by any but off sparks badly, and this he observed and com- the power which establishes them, viz., the people, plained of, but nevertheless continued to make use in their direct legislative capacity. This will not of it for a long time. At last the warehouse was be disputed. For the orderly exercise of the right set on fire and burned from the sparks emitted by resulting from these qualifications it is admitted it. Held, that the owner had no redress against the that the Legislature must prescribe necessary regularailroad company for the burning. It is immaterial tions as to the places, mode and manner, and whatthat the railroad company, on repeated application ever else may be required to insure its full and free made that it should repair the engine, had promised exercise. But this duty and right inherently imply to do so "sometime,” the use continuing thereafter, that such regulations are to be subordinate to the with the knowledge of the plaintiff, and on his own enjoyment of the right, the exercise of which is application. The court said: “This was not the regulated. The right must not be impaired by the regulation. It must be regulation purely, not de- In Webber v. Townley, Supreme Court of Michistruction. If this were not an immutable principle, gan, June, 1880, 11 Cent. L. J. 6, it was held that elements essential to the right itself might be in- a person has no right, at common law, to a copy or vaded, frittered away, or entirely exscinded, under abstract of the entire records of a public office, in the name or pretense of regulation, and thus would which he has no special interest but which he dethe natural order of things be subverted by making sires to obtain for speculative purposes. After the principle subordinate to the accessory. To enumerating the intolerable inconveniences which state is to prove this position. As a corollary of the converse of this proposition would cause, the this, no constitutional qualification of an elector can court observe: "These and many other embarrassin the least be abridged, added to, or altered, by ing questions must arise if this right is found to legislation or the pretense of legislation. Any such exist. It would not, however, end here. This beaction would be necessarily absolutely void and of ing a right which we might term one not coupled no effect.” In the principal case, in answer to the with an interest, must apply equally to the records argument that no elector need lose his vote except of each and every public office. True, the copies or by his own default or neglect, the court say: “ If abstracts from each of the several public offices this were a correct statement of the effect of this might not be so profitable to the parties making the law, then it might not be obnoxious to objection in same as would those from the register's office, but the particular, which, in our opinion, renders it un- this would not go to the right to make the abstract. constitutional and void. By the effect of this law May, then, parties in no way interested, other than the elector may, and in many cases must and will, as are these relators, insist upon the right to inspect lose his vote, by being utterly unable to comply with and copy or abstract the records of our courts, of this law by reason of absence, physical disability, or the treasurers of our counties, of the several county non-age, and an elector can lose his vote without his offices; and, indeed, why with equal propriety may own default or negligence in these particulars." | it not be extended to a like right in each of the “ The law disfranchises a constitutionally qualified several State offices ? The right once conceded elector, without his default or negligence, and there is no limit to it, until every public office is exmakes no exception in his favor, and provides no hausted. The inconveniences which such a system method, chance or opportunity for him to make would engraft upon public offices; the dangers, proof of his qualifications on the day of election, both of a public and private nature, from abuses the only time, perchance, when he could possibly which would inevitably follow in the carrying out do so." "No registry law can be sustained which of such a right, are conclusive against the existence prescribes qualifications of an elector additional to thereof." The court observe, in respect to the statthose named in the Constitution, and a registry law ute giving the right to inspect public records and can be sustained only, if at all, as providing a rea- make transcripts: “The language of the act resonable mode or method by which the constitutional | ferred to does not in clear and unmistakable terms qualifications of an elector may be ascertained and include a case like the present, and such an one determined, or as regulating reasonably the exercise should not be conferred by construction. The obof the constitutional right to vote at an election. ject of the act was to enable persons having occaIf the mode or method, or regulations, prescribed sion to make examination of the records for any by law for such purpose, and to such end, deprive | lawful purpose, and what would be we have already a fully qualified elector of his right to vote at indicated, to have suitable facilities therefor, to an election, without his fault and against his point out their rights and limitations therein, and will, and require of him what is impracticable the right and duty of the official custodian of the or impossible, and make his right to vote de records in connection therewith. This was right pend upon a condition which he is unable to per- and proper, in order to define the respective rights form, they are as destructive of his constitutional and prevent conflict or confusion, but clearly this right, and make the law itself as void, as if it act does not extend to a case like the present." In directly and arbitrarily disfranchised him with Ferry v. Williams, 12 Vroom, 332, it was held that out any pretended cause or reason, or required of an a citizen who desires to inspect recommendations elector qualifications additional to those named in filed with the collector of taxes as the basis for issuthe Constitution. It would be attempting to do in- ing pending liquor licenses, in order to ascertain directly what no one would claim could be done whether the provisions of the law have been obdirectly.” Taylor, J., dissented. It should be served, and to secure obedience of the law, is entinoted that our own Constitution provides that tled to mandamus to compel the exhibition of such “laws shall be made for ascertaining by proper letters. proofs the citizens who shall be entitled to the right of suffrage hereby established.” Whether the Wis- WHAT CONSTITUTES A MAJORITY OF consion Constitution contains an equivalent provis
ELECTORS? ion, we are not aware, but even under this provision the decision in question would seem to hold that a
E lately promised our readers a review of the registry like our own is unconstitutional. The valid- authorities on the point just decided by the ity of ours has never been questioned, but was
Indiana Supreme Court, in respect to the adoption assumed in People ex rel. Frost v. Wilson, 62 N. Y.
of the constitutional amendments, The question 186.
is, what constitutes “a majority of the said electors
of the State"? The amendments in question were elector to attend and vote at such general election, Foted upon at town elections, and although they re- and that the law presumes that every citizen does ceived a majority of the votes cast upon the partic- his duty, they hold, that in the eye of the law, ular questions, they did not receive a majority of those present and voting at such election, not on all the votes cast at the same time for town officers. any such question then submitted, but on any quesThe majority of the court held that they must at tion then to be voted on, constitute the electors of least receive a majority of all the votes cast at the the county, in the sense in which art. XI, $ 1 of the same election. The following are the authorities in Constitution, uses those words; that is to say, that point:
body, the adoption by a majority of whom of such Taylor v. Taylor, 10 Minn. 107, held that the con- a law as is there referred to would be the adoption stitutional provision, art. XI, § 1, that all laws pro- thereof by a majority of the electors of the county.” viding for changing county seats shall be submitted Stress is laid upon the fact that while section 1 to the electors of the county at the next general requires a majority, upon the particular question, of election, and "adopted by a majority of such elect- all those voting at the general election, section 2 ors," simply requires a majority of the electors pres-only requires a majority of those voting upon the ent and voting at such election. It did not appear particular question. The court observe: “A matein this case that the law in question did not receive a rial link in the chain of reasoning by which the majority of all the votes cast on any subject at that majority of the court in Taylor v. Taylor et al. arelection, but it did appear that it did not receive a rived at their conclusion is, that as it is the duty majority of all the legal voters of the county. The of every elector to attend and vote at such general court said: "The plaintiff claims that this section election, the law, which presumes that every one requires an absolute majority of those qualified to does his duty, presumes that he did so attend and vote in the county at the time of the election. This vote. Granting, however, not only that it is his construction is perhaps in accordance with the letter duty so to attend and vote on those questions then of the Constitution, but it leads to such practical arising under the general law, in which every citiinconvenience, hardship, and absurdity, we cannot zen is alike interested; but also on matters like that believe it to be in accordance with the spirit and before us, of purely local interest, which by any meaning of that instrument." The court rely on special law are then to be submitted; (a proposition, Tennessee and Illinois decisions, which we shall no- which, as at present advised, appears to us to be tice below, Berry, J., dissented. State v. Mayor, untenable;) still, the further presumption that he 37 Mo. 270, and State v. Binder, 38 id. 450, hold did vote on such particular question could not the same doctrine as to measures submitted at spe- arise in the face of the provision of the law now becial elections.
fore us, that it shall take effect if adopted by a ma
1 In Bayard v. Klinge, 16 Minn. 249, it was held jority of those voting thereon, for the law of itself that under the provision in art. XI, § 1 of the Con- contemplates herein the existence of electors who stitution, that all laws for removal of county seats will not vote at all on the questions submitted by shall, before taking effect, be submitted to the elect- it; and of course, no such presumption could arise ors of the county, at the next general election after in any case, in which the record, as in the case the passage thereof, and be adopted by a majority above supposed, showed on its face that they did of such electors, it is not competent for the Legisla- not so vote. It is suggested, however, that though ture to provide that such a law shall take effect and it should appear by the record that all the electors be in force after its submission to the electors of have not voted on the question, those who have not said county at the next general election after the will be deemed to acquiesce in the action of the passage thereof, and its adoption by a majority of majority. The principle upon which such a presuch electors voting thereon, unless that majority is sumption is to be based is not stated, and we cannot also & majority of all the votes cast. The court perceive that there is any. The respondent says, hold that the words in the Constitution, “a major- indeed, that a man's inaction is not to be counted ity of such electors” cannot be construed to mean as a vote with the minority, but that is no reason simply a majority of those voting upon the particu- why it should be counted with the majority. It is lar question. The court distinguish Taylor v. Tay- only another way of saying that it should be.” The lor as follows :
court rely on State v. Winkelmeir, infra, and distin"The majority of this court, as then constituted, guish Gillespie v. Palmer, on account of the differheld in that case, that inasmuch as a literal construc- ent wording of the constitutional provision. This tion of the constitutional provision above quoted, holding was followed in Everett v. Smith, 22 Minn. would in their opinion involve great hardship and 53. absurdity, they were therefore to deviate a little In State v. Winkelmeir, 35 Mo. 103, an act of the from the received sense, and literal meaning of the Legislature gave permission to municipal corporawords, and interpret it in accordance with what ap- tions in St. Louis county to allow the sale of repeared to be the intention of its framers. Hence, freshments on any day in the week, when authorized considering that the Constitution requires such law by a majority of the legal voters of the respective to be submitted to the electors at a general election; cities. A vote for such permission received 5,000 that the returns would show the actual number of affirmative to 2,000 negative votes out of a vote of persons present at such election, voting on any ques- 13,000 cast for city officers on the same day. Held, tion; that as a general rule it is the duty of every that the measure had not received a majority within
the intent of the law. No authorities were cited, giving effect to the affirmative vote, when such and the court simply observed: “The act expressly affirmative vote is by a majority of the legal voters requires a majority of the legal voters; that is, of all of the county. The Legislature may have assumed, the legal voters of the city, and not merely of all and doubtless did, that all would vote upon the those who might at a particular time choose to vote question, and such is the practical effect if we count upon the question.”
the votes in the negative, which are silent on the Louisville & Nashville R. R. Co. v. County Court | subject. In this mode alone can the law be susof Davidson County, 1 Sneed, 637, was cited in and tained authorizing township organization, which has strongly resembles Taylor v. T'aylor. The point been in operation in most of the northern counties decided is, that on a vote as to whether a county of the State since the adoption of the Constitution. will take stock, under a law requiring a majority of It is a question of no small difficulty to determine in the voters of the county, a majority of those attend- what mode it shall be ascertained who are the voters ing and voting is conclusive. The court said: of the county, so as to determine whether a major“ How can we know how many legal voters there ity have voted in favor of a relocation. The same are in a county at any given time? We cannot ju- difficulty arises under the law authorizing township dicially know it. If it were proved that the vote organization. This portion of the Constitution were much larger than in the last preceding politi- must receive a practical construction. We undercal election, or by the last census, by the official re- stand it to assume -- and such we believe was the returns, or the examination of the witnesses, it understanding of its framers — that the voters of would be only a circumstance, certainly not conclu- the county referred to were the voters who should sive. But we put our decision of that question vote at the election authorized by it. If we go beupon a more fixed and stable ground. When a yond this, and inquire whether there were other question or an election is put to the people, and is voters of the county who were detained from the made to depend on a vote of a majority, there can election by absence or sickness, or voluntarily abbe no other test of the number entitled to vote but sented themselves from the polls, we should introthe ballot-box. If in fact there be some or many duce an interminable inquiry, and invite contests in who do not attend and exercise the privilege of elections of the most harassing and baneful characvoting, it must be presumed that they concur with ter, if we did not destroy all of the practical benethe majority who do attend, if indeed they can be fits of laws passed under these provisions of the known at all to have an existence. Certainly it Constitution. We hold therefore that a majority of would be competent for the Legislature to prescribe the legal votes cast at this election is sufficient to a different rule. But when they simply refer a ques- determine the question of a relocation of the county tion to the decision of a majority of the 'voters of a seat. See 1 Sneed, 692." This decision therecounty,' it cannot be understood that they mean any fore is like that in Taylor v. Taylor, and is there thing more than those who see fit to exercise the cited as authority, while the dicta are in harmony privilege. Great inconvenience would result from with the principal case. Of this decision, the court the opposite rule.” This decision is therefore not say in Bayard v. Klinge: “As to the Supreme in point, but the language has some force as a dictum, Court of Illinois, it decides in so many words, that for the argument respecting those who stay away a majority of the legal votes cast at the election, from an election is perfectly applicable to those who not a majority of those voting on any particular attend but do not choose to vote on the particular question, is a constitutional majority of the voters of question.
the county; thus counting those who do not vote, People ex rel. Mitchell v. Warfield, 20 Ill. 159, de- in the negative, instead of with the majority.” cides that on the question of relocating a county On the other hand, in Gillespie v. Palmer, 20 Wis. seat, where the law only authorizes the clerk to can- 544, it is held that a legislative act, extending the vass the votes cast on the question of relocation, right of suffrage to colored persons, and conditioned and certify the result, without regard to other votes to become a law on receiving “a majority of all the cast at the same election, he cannot give a certificate votes cast at the next general election," is adopted which will afford legal evidence that the county seat upon receiving a majority of all the votes cast on has been changed in conformity with the require that subject at such election. The constitutional ments of the Constitution. This was an application provision was that the right of suffrage might be for mandamus to compel the issue of a marriage extended on being “submitted to a vote of the peolicense. The law in question applied only to Saline ple, at a general election, and approved by a majorcounty. The Constitution required a majority of ity of all the votes cast at such election.” This is a the voters of any county to effect such a change. much stronger decision than any of those which we The election in question was a special election. The have cited above, for the Constitution expressly recourt said: “The statute itself cannot be sustained, quires, for the adoption of the subject specially under the Constitution, if we adhere to its literal designated, “a majority of all the votes cast at such expressions, for it requires, in order to relocate the election,” and this is construed to mean a majority county seat, but a majority of the votes cast on the of all the votes cast on that particular subject. The subject of relocation, whereas the Constitution goes court said that two other and different contentions farther, and requires a majority of the voters of the were urged: first, that it meant a majority of all county. The law may be sustained by reading it the votes on all subjects and for all officers; and in the light of the Constitution, and construed as second, a majority of all the voters voting. The
first was said to be manifestly absurd. As to the JURISDICTION OF ACTIONS FOR INJURIES second, it involved the construction that "votes"
TO LANDS SITUATED IN A and " voters” are synonymous; but even if the
FOREIGN STATE. word were “voters,” the same conclusion must be
"The law is unknown to him who knoweth not the reached. The court said: “Under the provisions
reason thereof." of our Constitution, as well as of other Constitutions, persons are elected to a particular office who
We purpose to show that the courts of New York have a majority of the votes cast - not for the can
State have jurisdiction of actions for injuries to land
situated in a foreign State or country. For this purdidates for some other office, but for the candidates
pose it is necessary to trace the common law of venue for that office. Measures or laws are also declared to its fountain-head: “from the first rough sketches adopted or rejected according as they receive or to more perfect draughts; from the first causes or ocfail to receive each a majority of the votes cast for
casions that produced them, through all the effects, or against it. To declare a measure or law adopted good and bad, that they produced.”
It is very curious and instructive to trace the proor defeated — not by the number of votes cast dis
gress of the English law respecting the locality of acrectly for or against it, but by the number cast for tions. During the earliest ages juries were selected and against some other measure, or for the candi- for the very reasons which would now argue their undates for some office or offices not connected with
fitness, namely, their personal acquaintance with the the measure itself — would not only be out of the parties and the merits of the cause; and hew rules of
law were enforced with greater strictness than those course of ordinary legislation, but so far as we
which required that the venue, visne, or vicinetum, in know, a thing unknown in the history of constitu- other words, the neighborhood whence the juries were tional law.” The foregoing is from the opinion of to be summoned, should be also that in which the Downer, J. Dixon, C. J., says that without the
cause of action had arisen; in order that the jury who words, "at such election,” “no one could hesi
were to determine it principally from their own pri
vate knowledge, and who were liable to be attainted if tate," and these words he explains as intended “to
they delivered a wrong verdict, might be persons likely exclude the idea that a majority of votes cast at to be acquainted with the nature of the transaction any other than a general election should suffice.” which they were called upon to try. In order to effect He continues: “But in neither case, in my judg- this end the parties litigant were required to state in ment, does the addition afford the slightest ground
their pleadings with the utmost certainty, not merely
the county, but the very venue, i. e., the very district, for saying that the framers intended that votes cast
hundred, or will, within that county, where the facts at the same election upon other subjects should be that they alleged had taken place, in order that the counted either for or against the law for extending sheriff might be directed to summon the jury from the the right of suffrage. Such a provision in the Con- proper neighborhood in case issue should be taken on stitution of a State would be an anomaly in our sys
any of such allegations. It followed, of course, that a
new venue was desiguated as often as the allegations of tem of government. It would be contrary to the the parties litigant shifted the scene of the transaction fundamental American idea, which is that in all from one part of the country to another. This was, popular elections the will of a majority of the voters however, soon found to produce great inconveniences, voting upon any subject or question submitted shall for in mixed transactions, which may happen partly in prevail." No authorities are cited.
one place and partly in another, it was extremely diffi
cult to ascertain the right venue, and as the number of Judge Cooley, in “Constitutional Limitations,"
these transactions increased with increasing civilization, in a note, citing the above cases, without further
these difficulties about determining the place of trial consideration, says: “ This must be understood to became of constant occurrence and soon induced the mean a majority of those voting at the election on courts, in order to relieve themselves, to take a disany question."
tinction between transitory matters, such as a conThe principle of Taylor v. Taylor is expressly ap
tract which might happen anywhere, and local ones,
such as a trespass to the realty, which could only happroved in County of Case v. Johnston, 95 U. S. 360,pen in one particular place, and they established as a which holds, in regard to a township subscription rule that in transitory matters the plaintiff should for railroad stock, that a majority of those voting have a right to lay the venue where he pleased and the at a special election satisfies the requirement of the
defendant should be bound to follow it, unless indeed Constitution that such measures must receive the
his defense consisted of some matter in its nature
local and which must therefore, ex necessitate rei, be vote of two-thirds of the qualified voters of the
alleged to have taken place where it really happened. town, etc. In regard to State v. Winkelmeir, But where a matter alleged in pleading was of a local the court said: “Taking the opinion as a whole, it description, the venue for the trial of such matter is apparent that there was no intention of deciding could be nowhere but at the very place where it was that resort must be had elsewhere than to the
alleged in pleading to have happened. 1 Smith's Lead. records of the election at which the vote was taken
Cas. 781. to ascertain whether the requisite majority had been
Independently of some legal fiction, the jurisdiction obtained." Mr. Justice Bradley dissented, and his
of a common-law court could never extend to a cause opinion must be ranked on the side of the principal running of its writs. This will be sufficiently evident
of action accruing beyond the limits assigned to the
if we reflect, that while the common law requires that It thus appears that the Indiana decision is sup
the truth of every material fact traversed should be ported by a majority of the authorities on the point tried by a jury of the place where it is alleged to have in question. It may well be doubted that it has the
happened, the rules of pleading equally demand that better foundation in principle. There seems to be such an 'allegation of place should accompany every no logical escape from the reasoning of the Wiscon- material averment. In order to obviate this difficulty sin court, and we prefer that doctrine.
the English courts permitted the plaintiff, in certain