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child. It is contended that this acknowledg. proval. It is thought by appellant that ment in writing must be made for the pur- these cases can be distinguished from the pose on the part of the parent of admitting case at bar, but we think they are exactly in the illegitimate child to heirship, and that point; and the question raised by the appela collateral acknowledgment in writing of lant here as to the formality of the acknowl. this kind does not comply with the require- edgment and the intention of the parent is ments of the statute. We do not think such especially noticed by the court in Blythe v. a construction can be placed upon the stat Ayres, 96 Cal. 532, 19 L. R. A. 40, 31 Pac. ute. The object of the legislature undoubt- 915, in the following language: “I also edly was the protection of the illegitimate think it a wholly unauthorized construction child, to enable it to inherit its father's es- of the statute to hold that the acts of rectate whenever there was proof of its pater: ognition, acknowledgment, etc., necessary to nity, and, to make certain that which would legitimize a natural child, should be perbe difficult to determine by any other testi- formed with the express intention on the mony, the law prescribes this character of part of the father of accomplishing that obproof; and we cannot think that the desireject. If the acts are in themselves such as of the father, in making such a statement, the statute prescribes, I think they confer that the child should inherit his estate, is legitimacy, without any reference to the inthe controlling idea of the statute. It tent with which they are performed.” In might be that the father would desire to rec- the case at bar the undisputed testimony ognize his child for many other reasons, and, shows that the respondent is actually the if such recognition were made for any rea- daughter of the deceased. The appellant son, it ought to be sufficient to enable the himself testifies that he believes she is. The child to heir the estate, and to place it, so requirements of the statute have been met, far as the estate is concerned, on an equal and the judgment of the court was correct. ity in law with the legitimate children. Affirmed. This question has really been decided in Ro Gorkow, 20 Wash. 563, 56 Pac. 385, where Gordon, Ch. J., and Fullerton and the case of Blythe v. Ayres, 96 Cal. 532, 19 Reavis, JJ., concur. L. R. A. 40, 31 Pac. 915, was quoted with ap


BON HOMME COUNTY, Appt., while an inmate of a hospital for the insane.

Friedrich BERNDT, and His Guardian,

The facts are stated in the opinion.

Afr. W. T. Williams, for appellant:

Upon being adjudged incompetent, Fried(........S. D.........)

rich Berndt was entitled to have his prop

erty devoted to his comfort and mainteA statnte providing that the estates of nance; and upon being appointed his guaripsane persons who have no heirs dian, it was the duty of Theodore Berndt to within the United States dependent upon apply the property of his ward to his maintheir esiates for support shall be chargeable tenance and support. with the expense incurred by any county for the treatment and maintenance of such in- Comp. Laws, $$ 6002, 6003. sa ne persons in a hospital for the insane, but If he should neglect to do so, a stranger not imposing such liability upon the estates may supply the wants of the lunatic, and of those who have heirs in the United States have the same made a charge against his esdependent on such estates for support, does tate in the hands of the guardian. not violate constitutional provisions against private or special laws or laws granting to

Woerner, American Law of Guardianship, ang citizen or class of citizens privileges or $ 138, p. 453; Creagh v. Tunstall, 98 Ala. immunities which, upon the same terms, shall | 249, 12 So. 713. not equally belong to all citizens.

A privilege is a right. The proviso in the

law of 1895 does not grant any right to any (June 20, 1900.)

citizen or class of citizens.

An immunity is an exemption from the the Court Bon Homme Coun- zens to perform. ty in favor of defendants in a proceeding to 1 Bouvier, Law Dict. 684. recover for the care of defendant Friedrich

No special privilege or immunity being NOTE.—As to liability to pay for support of granted to an individual, and no immunity relative, see Albany v. McNamara (N. Y.) 6 L. being granted to any citizen or class of citi. R. A. 212: Rowell v. Vershire (Vt.) 8 L. R. A. zens, by the terms of the proviso in § 1 of the 708 ; McCook County v. Kammoss (S. D.) 31 law of 1895, which upon the same terms L R. A. 461 ; and People use of Peoria County would not belong to all citizens, such proviso 1. Hill (III.) 36 L. R. A. 634.

As to liability of estate to reimburse county is not obnoxious to any inhibition of constifor support of person as a pauper, see McNairy tutional law, and is therefore a valid provi. County v. McCoin (Tenn.) 41 L. R. A. 862.

sion of the statute.

A phe Circuit plaintiff of Bron a undermentumt same fouter Forish the law requires other citi

Fortain v. Smith, 114 Cal. 494, 46 Pac. | the treatment and maintenance of the said 381.

Friedrich Berndt at said hospital for the inThe meaning of the act is clear, and in no sane, and demand payment of such sum; way involved in doubt or obscurity; nor is that afterwards said county presented to it uncertain or ambiguous. Hence, the in- said Theodore Berndt, as guardian, a duly. tention of the legislature must be deter- verified bill for the amount so paid out and mined from the act itself, as illustrated by expended by this plaintiff, which said bill the legislative history of the state on this said defendant then and there refused to subject, and resort cannot be had to the title pay, wherefore this plaintiff demands judg; to restrict a positive provision in the body ment against said Friedrich Berndt and of the act.

Theodore Berndt, as guardian, for the said Cohn v. People, 149 Ill. 486, 23 L. R. A. sum, with interest at 7 per cent from Janu821, 37 N. E. 60.

ary 1, 1899, and that said Theodore Berndt Where part of a statute is unconstitution pay to the plaintiff, out of the property, al, the remainder will not be so declared if the moneys, and credits in his hands as guar. two are distinct and separable, so that the dian, the said sum, with interest, besides the latter may stånd though the former becomes costs and disbursements of this action. To of no effect.

this complaint the defendants interposed a Ritchie v. People, 155 Ill. 98, 29 L. R. A. demurrer upon the ground, among others, 79, 40 N. E. 4; Cooley, Const. Lim. 5th "that the co laint does not state facts saffi. ed. p. 211; People cx rel. Fowler v. Bull, 46 cient to constitute a cause of action against N. Y. 57, 7 Am. Rep. 302; Bailey v. State, the defendants, or either of them.” 30 Neb. 855, 47 N. W. 208; Wadsworth v. Counsel for the appellant contends that Union P. R. Co. 18 Colo. 600, 23 L. R. A. under the provisions of an act entitled “An 812, 33 Pac. 515; McPherson v. Blacker, 92 Act Providing for the Reimbursement of Mich. 377, 16 L. R. A. 475, 52 N. W. 469. Counties for the Expense of Maintenance of

Messrs. Elliott & Stilwill for respond - Insane Persons in Certain Cases," approved ents.

March 11, 1895 (being Laws 1895, chap. 98),

the plaintiff is entitled to maintain this acCorson, J., delivered the opinion of the tion. Section 1 of that act reads as folcourt:

lows: "The amount incurred by any county This is an appeal from an order sustain of this state for treatment and maintenance ing a demurrer to the complaint. It is al- of any insane person in the hospital for the leged in the complaint that the defendant insane shall be a charge against the estate Friedrich Berndt is an insane person, mental. of such insane person: provided, that the inly incompetent to manage his property, and sane person has no heirs within the United has been such since the 16th day of January, States dependent on said estate for support, 1889; that on the 22d day of January, 1889, and that no real property shall be sold durthe defendant Theodore Berndt was duly ap- ing the life of the insane person; and furpointed guardian of the person and estate ther provided, that no personal property of the defendant Friedrich Berndt; that on shall be sold under five years from the date the 16th day of January, 1889, defendant of the sending of such insane person to the Friedrich Berndt was, and ever since has asylum, unless by order of the court upon been, and now is, an unmarried person, and the death of the insane person or when such has no children or heirs within the United property is liable to deteriorate in value durStates dependent upon his estate for sup- ing the time above specified, and when sold port; that on the 21st day of May, 1889, as above the county judge shall safely insaid Friedrich Berndt was, at the request of vest the proceeds thereof for the benefit of his guardian, the above-named defendant the insane person.” The facts as alleged in Theodore Berndt, duly ordered to be taken to the complaint bring this case clearly within the hospital for the insane at Yankton, the provisions of the act, and this seems not where he has ever since been, and now is, an to be controverted by counsel for the reinmate. receiving treatment and mainte. spondents, but they insist that the act is unnance therein; that on the last-mentioned constitutional, for the reason that it does date said Friedrich Berndt had and owned not make the estates of all insane persons property in Bon Homme county, in this liable, but only in exceptional cases, vic, state, consisting of 480 acres of farm land, those named in the proviso, which reads as of which he has ever since been, and now is, follows: “Provided, that the insane person the owner in fee, and that said estate is unhas no heirs within the United States de encumbered and is worth the sum of $7,000; pendent on said estate for support.”—and that the plaintiff county has paid out for and granting immunity to every other insane on account of the defendant Friedrich person, and the privilege of treatment, etc., Berndt, at the request of his guardian above in the insane asylum free of expense, as pronamed, for his care, treatment, and support vided by chapter 68, Laws 1885 (being in the hospital for the insane since the 1st Comp. Laws, Š 248). They insist that said day of July, 1891, the sum of $1,568; that proviso is in conflict with § 23, art. 3, and on the 28th day of January, 1898, the board § 18, art. 6, of the state Constitution. Secof county commissioners of the plaintiff tion 23, art. 3, reads as follows: "The leg county instructed its county auditor to pre- islature is prohibited from enacting any prisent to the defendant Theodore Berndt, guar- vate or special laws in the following cases: dian as aforesaid, a bill for the amount so

(9) Granting to an individual, asincurred and paid out by the plaintiff for 'sociation, or corporation any special or exclusive privilege, immunity, or franchise ! within the class designated, is clearly within whatever.” In our opinion, the act of 1895 the legislative power. The legislature is is not a private or special law, within the constantly passing acts applicable to particmeaning of that section. It is a general ular classes of persons, such as minors, marlaw, in terms applicable to all persons with ried women, indigent and infirm persons havin the designated class, viz., those having no ing no means of support, and insane persons. heirs within the United States dependent Will it be claimed that these laws are unconon such estate for support; and it does not stitutional because all of the citizens of the grant or purport to grant to an individual, state are not included, or because the classes association, or corporation any special or ex- are subdivided for proper reasons ? Can it clusive privilege, immunity, or franchise. be said that such laws grant to citizens, or a Section 18, art. 6, provides: “No law shall class of citizens, privileges or immunities be passed granting to any citizen, class of which, upon the same terms, shall not equal. citizens, or corporation, privileges or inumu- ly belong to all citizens? We apprehend nities which upon the same terms shall not not. As

we have seen, the law of 1895 makes equally belong to all citizens or corpora- all insane persons having no heirs dependent tions." The act of 1895 does not grant or upon their estates equally liable to counties purport to grant to any class of citizens priv- which may contribute to their support as inileges or immunities which, upon the same mates of the hospital for the insane. It is terms, do not equally belong to all citizens. true that it does not make all insane persons

It is certainly competent for the legisla. thus provided for liable, but this fact constiture to provide that certain insane persons, tutes no objection to the law that could not riz. those possessing estates with no heirs be made to the law providing that minors depending upon said estates for support, over fourteen may nominate their own guarshould be responsible for the expenses in- dian, while minors under that age are denied curred in their care and treatment at the that privilege (Comp. Laws, $ 5984), or the hospital for the insane, while another class law providing that counties shall relieve and of insane persons, viz. those having heirs de support all poor and indigent persons when pendent upon said estates for support, they shall stand in need thereof, while all should be relieved from that liability. This other citizens must provide for their own court has often said that it will only declare support. Comp. Laws, $ 2143. Here it will an act of the legislature unconstitutional be noticed that the class of indigent persons, when it is clearly in conflict with some pro- only, is provided for, while other citizens are vision of the state or national Constitution. not entitled to be supported at the expense If the question is in any manner doubtful, of the county. In the case at bar it might the doubt will be resolved in favor of the as consistently be claimed that privileges legislative action. The legislature, in the and immunities were granted to insane peraet referred to, divides insane persons, for sons not granted to other citizens of the the purposes of the act, into two classes; state, and that the law providing for their and it provides that persons belonging to support is unconstitutional. the class having no dependent heirs shall be It is hardly necessary to pursue this disliable for their support at the hospital for cussion further, as the power of the legislathe insane, and leaves in the second class ture to provide laws applicable to particular insane persons having dependent heirs, who classes of citizens is too well established to are not made so liable. It will be observed require the citation of authorities. If the that all persons belonging to the first class law had provided that certain insane perare made liable. No discrimination is made sons, not having heirs dependent upon their as to any person in that class. Mr. Cooley, estates for support, should be liable, while in his work on Constitutional Limitations, other insane persons similarly situated says: “Laws public in their objects may, should not be liable, of course the law would unless express constitutional provision for- be objectionable, as conflicting with the probids, be either general or local in their ap- visions of the Constitution, as there would plication. They may embrace many sub- be privileges and immunities granted to cerjeets, or one, and they may extend to all tain citizens which were denied to others. citizens, or be confined to particular classes, similarly situated. But in this act the disas minors or married women, bankers or tinction between the two classes is clearly traders, and the like. The authority that and wisely drawn. The legislature has very legislates for the state at large must' deter- properly said that insane persons having no mine whether particular rules shall extend heirs within the United States dependent to the whole state and all its citizens, or, upon their estates for support should be liaon the other hand, to a subdivision of the ble to reimburse the counties for moneys exstate, or a single class of its citizens, only. pended for their support and maintenance

If the laws be otherwise unobjec- and, it is said, on the other hand, that intionable, all that can be required in these sane persons having heirs dependent upon cases is that they be general in their applica- their estates for support shall not be liable. tion to the class or locality to which they Such a law is clearly within the legislative apply, and they are then public in charac- power. We are unable to discover any proter; and of their propriety and policy the vision in the Constitution that inhibits such legislature must judge." Cooley, Const. legislation, and it certainly seems just and Lim. 5th ed. pp. 482, 483 [6th ed.] 479- proper that a single man, having an estate 481. The law in question, therefore, mak- valued at $7,000, should be required to reiming no discrimination in favor of any person burse the county for the expenses incurred in his support as an insane patient, while it opinion that the learned circuit court took might, on the other hand, be a great hard- an erroneous view of the law of 1895, and ship to require one having a wife and depend that it should have overruled the demurrer ent children to so contribute to his suprort to the complaint. in his unfortunate condition. We are of the The order of the Circuit Court is reversed.


own name.

W. R. CARTER, Piff. in Err., Mary Carter. She owned them, and I had

the goods in my charge as her agent." There SOUTHERN RAILWAY COMPANY. being no further evidence for the plaintifi,

the court, upon motion of defendant's coun(........Ga.........)

sel, granted a nonsuit on the ground that

the goods alleged to have been damaged did *A person who, having in charge, as not belong to the plaintiff, but to his wife.

agent, the goods of another, makes To this judgment the plaintiff excepted. The with a common carrier a contract to ship question, therefore, presented for decision is such goods, in which the agency is not dis- whether or not the plaintiff could maintain closed, may maintain an action in his own the action in his own name. name for a breach of such contract.

It is an ele. mentary principle that the action on a con(June 5, 1900.)

tract must be brought in the name of the party in whom the legal interest is vested,

and that the legal interest in a contract is E IRROR to the Superior Court for Telfair in the person to whom the promise is made,

County to review a judgment in favor and from whom the consideration passes of defendant in an action brought to recover 4939. In the present case the plaintiff, al.

15 Enc. Pl. & Pr. 499, 500; Civil Code, S damages for the breach of a shipping contract. Reversed.

though in reality he occupied the relation of The facts are stated in the opinion.

agent of his wife to take charge of the goods Mr. E. D. Graham for plaintiff in error.

shipped, was named both as the consignor Messrs. DeLacy & Bishop for defendant and consignee in the contract of shipment. in error.

with no reference whatever therein to the

fact of his agency. Under such circumCobb, J., delivered the opinion of the stances the action could be maintained in his court:

Generally, it is true, an agent Carter sued the railroad company for dam- has

no right of action upon a contract made ages resulting from the breach of a contract with his principal, but he has a right of acof shipment which the defendant had entered tion in his own name “where the contract is into with the plaintiff. On the trial the made with the agent in his individual name, plaintiff introduced in evidence a receipt though his agency be known.” Civil Code. signed by an agent of the defendant, of which $ 3037.(3). Certainly, the action could be the following is a copy: “Received from W.

maintained where the fact of agency and R. Carter the following articles in apparent by the agent. In such a case the agent is

the name of the principal are both concealel good order, contents and value unknown, as per coupon attached, to be transported to w. in contemplation of law, the real contract R. Carter, McRae, Ga.,”-setting forth the ing party, to whom the promise of the other articles shipped. The plaintiff testified that party was made, and who is entitled to enthe distance from the point from which the force it. Mechem, Agency, § 755; Story goods were shipped to their destination was

Agency, 9th ed. § 393. But the plaintili 30 miles; that they should have been de contract was made with him, and he is pri

was the consignor of the goods shipped. The livered in twenty-four hours, which was a reasonable time; that the goods were new, The carrier dealt with him as the owner of

marily liable for the transportation charge: and in good condition, when delivered to the the goods, and could not, in an action by the defendant; that they were not delivered by it at the point to which they were shipped title unless the title of the real owner was

plaintiff to recover the goods, dispute the until twenty-five days had elapsed from the time they were delivered to the defendant; sought to be enforced against the carrier.

In the case of Haas and that, when delivered, some of the goods Civil Code, $ 2286. were in such a damaged condition that they

Kansas City, Ft. S. & G. R. Co. were rendered worthless, and all of them 81 Ga. 792, 7 S. E. 629, suit were more or less damaged. Just before brought by Haas upon a contract leaving the witness stand, the plaintiff bill of lading made by the defendant with one stated: “The goods belonged to my wife, Ayres. It was held that, “the bill of lading

for the flour not having been indorsed to *Headnote by COBB, J.

plaintiff by the party in whose favor it was

issued, the former could not maintain an arNOTE.--As to agent's right to maintain action on contract made for principal, see also tion against the company upon it.” It apWolfe v. Missouri P. R. Co. (Mo.) 3 L. R. A. pears from the record in that case that

Ayres was the consignor, and Haas the con





signee. The present chief justice says in / signed by his agent, he cannot say to the the opinion: "The record does not show shipper they have no interest in the goods, that this bill of lading was assigned or in- and are not damnified by his breach of condorsed by Ayres to Haas. This being true, tract. I think the plaintiffs are entitled to Haas, under our Code, could not bring suit recover the value of the goods, and they will on the contract made between the railroad hold the sum recovered as trustees for the company and Ayres."

real owner.” In Dunlop v. Lambert, 6 The courts of both this country and Eng. Clark & F. 600, the House of Lords held: land are now, with a few exceptions, all “Though, generally speaking, where there is agreed that, where the consignor makes the a delivery to a carrier to deliver to a concontract of shipment with the carrier, he signee, the latter is the proper person to may bring an action for loss of or injury bring the action against the carrier, yet, if to the consignment, although he may not be the consignor make a special contract with the actual owner of the property. In such the carrier, such contract supersedes the nea case the privity of contract between the cessity of showing the ownership in the carrier and the consignor is a sufficient foun- goods, and the consignor may maintain the dation on which to base the action. It is action, though the goods may be the property also well settled by the authorities that of the consignee.” The “special contract” where a consignor, who is himself not the referred to in the above quotation was simreal owner, recovers damages from the ply a bill of lading declaring that the goods carrier for a breach of the contract of carri- were to be delivered to Matthew Robson, age, the recovery inures to the benefit of “freight for the said goods being paid by the owner, and the consignor is regarded | William Dunlop & Co.," the plaintiffs. The simply as the trustee of an express trust. case of Dawes v. Peck, 8 T. R. 330, is some. It would seem to follow necessarily from times cited as authority for a contrary rule. this that a recovery by the consignor for a That case is thus commented upon and disbreach of the contract would be a bar to an tinguished by Judge Turley in the case of action by the owner in tort for the injury Carter v. Graves, 9 Yerg. 446, 450: In that done him. The English courts have, so far case “an action on the case was brought by as we are aware, uniformly adhered to the a consignor against a common carrier for rule that an action for a breach of a con- not safely carrying, according to his undertract of carriage made with the consignor taking, in consideration of a certain hire may be maintained by 'him. In Davis v. and reward to be therefor paid, two casks of James, 5 Burt. 2680, à decision rendered in gin from London to one Thomas Aday at 1770, it was held that “action lies against Hillmorton, in Warwickshire. The court carrier in name of consignor, who agreed determined that, if a consignor of goods dewith him and was to pay him." The ques. liver them to a particular carrier by the or. tion was squarely made in that case, and der of a consignee, and they be afterwards the court reached the conclusion above indi-lost, the consignor cannot maintain an accated. Lord Mansfield said, in the opinion tion against the carrier, and that the action which he rendered in that case: “This is can only be maintained by the consignee. In an action upon the agreement between the this case there is no contract with the conplaintiffs and the carrier. The plaintiffs signor by the carrier for the delivery of the were to pay him. Therefore the action is articles; the freight is not paid by him; properly brought by the persons who agreed the property is delivered to a carrier speciwith him and were to pay him.” This de- fied by the consignee; and, more than all, cision, as above stated, was uniformly ad- the court, in the opinions delivered, refer to hered to by the English courts, and, there the cases of Daris v. James, 5 Burr. 2680, being in this state no statute law to conflict and Moore v. Wilson, 1 T. R. 659, and recog. with the rule therein announced, it became, nize them as sound authority.” A leading by force of our adopting statute, the law of American case is Blanchard v. Page, 8 Gray, this state. In Moore v. Wilson, I T. R. 659, 281, where, after an elaborate review of the the doctrine announced in the case just re- authorities, Chief Justice Shaw reached the ferred to was reaffirmed, and the court held conclusion that “the shipper named in a bill further that it was immaterial whether the of lading may sue the carrier for an injury hire was to be paid by the consignor or the to the goods, although he has no property, consignee, as the former was, in law, liable general or special, therein." The reasonto the carrier for the hire. In Joseph v. ing upon which this ruling is based seems Knor, 3 Campb. 320, it was held that an ac- to be unanswerable, and the decision ought tion by the consignor would lie. The opin- to be accepted as decisive of this question. ion was rendered by Lord Ellenborough, who It must not be lost sight of that the present said: “I am of opinion that this action action was based upon a contract. If the well lies. There is a privity of contract es. action had been based upon the tort of the tablished between these parties by means of carrier in delivering the goods in a damaged the bill of lading. That states that the condition, then a question entirely different goods were shipped by the plaintiffs, and from that involved in the present case would that the freight for them was paid by the be raised. In such a case it would seem that plaintiffs in London. To the plaintiffs, there the right of action is to recover for the infore, from whom the consideration moves, jury to the interest or right in the property, and to whom the promise is made, the de and the shipper, if not the owner, could not fendant is liable for the nondelivery of the bring such an action. The distinction begoods. After such a bill of lading has been tween such a case and one like the present

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