GALLAGHER V. CITY OF ST. PAUL.
ceives from the government a salary as a full compensation for the performance of all services and duties which he may lawfully be required to perform for the government, whether at the usual place or elsewhere. If he is sent away for any public object, the government pays his necessary expenses. If he is sent away as a witness, those expenses are to be "audited and paid," toat is to say, by the proper executive department or officer. .. Audited" is not used to designate the taxation of costs by a court. And the statute peremptorily forbids t,he allowance to him of any mileage or other compensation in addition to his salary. In short, the United States, when they send one of their clerks to testify as a witness for the government, do not, on the one hand, oblige him to payout of his own pocket the expense to which he is thereby put, nor, on the other hand, permit him to receive, or compel the adverse party to pay him, any fees for the benefit either of the witness or of the United States. It follows that nothing can be taxed in the bill of costs for the travel or attendance of the government clerks. l'axation modified.
t1. CITY OF
(Cilrcuit Court, D. Minne8ota.
MUNICIPAL CoRPORATION-OBSTRUOTION IN STREET-NEGLIGENOE.
A city will be liable for injury caused by an obstruction in a thoroughfare used by the public without dissent from the city, although there has been no official action, resolution, or ordinance opening it as a public street.!
SAME-INJURY FROM AOCIDENT AND DEFEOT IN STREET-LIABILITY OF CITY.
Where an injury results from an accident for which the person injured is not responsible, and a defect in a street, the city is liable.
Motion for New Trial. Erwin, Ryan [vea, for plaintiff. William P. Murray, for the City.
NELSON, J. This case was fairly presented to the jury, and the evidence warranted the verdict rendered, provided there was no error of law committed by the court. It appeared from the evidence that there was a pile of lumber near the center of Chestnut street, in the city of St. Paul, at a point between the crossing of several railroad tracks and the Mississippi river. The plaintiff's intestate, driving a horse and wagon on this street, towards the river, had passed the tracks, when his horse, frightened by the whistle of a locomotive, became unmanageable, and, coming in contact with this pile of lumber, the wagon was overturned, and the driver thereof burt and in1
Bee note at end of case.
jured, so that he died within a few hours. It is charged that the injury was the combined result of the negligence of the city government in not keeping Chestnut street at this point in a safe condition for travel, and an accident for which neither the deceased nor the defendant is responsible. It is urged by the city attorney that Chestnut street, at the place where lumber was piled, was· not opened so as to impose any duty upon the municipal government of St. Paul to keep it safe for travel, and that the public were not invited to use this part of the street; also, that the instruction given the jury, that where an injury results by reason of the combined result of an accident and a defect in the street., the city is liable, was erroneous. I think the instructions given correct. 1. In regard to the duty of the municipal government, the court instructed the jury as follows: .
gist of the action is the alleged negligence of the city of St. Paul, which .cRused the death of plaintiff's intestate, and it is charged that an obpermitted to remain upon a public street was negligence upon the part of the city. * * It is indispensable that plaintiff satisfies you by competent evidence that Chf'stnut street was a public thoroughfare. open and under control of the city at the place where the lumber was piled, so as to impose the duty upon the city authorities of kf'eping it in a safe condition for travel. It is admitted by thecityattorney that Chestnut street was in fact a graded street, open for travel. '" . * but urged that at the point where the injury occurred it was not open for travel, * * * and that any person who IIsed it did so at his own peril. Now. that isa question for you to determine upon the evidence produced before you. It is not necpssary that there should be any formal acceptance of this street as a public street. '" * .Il< It is not necessary that there should be official action of the city by resolution .or ordinance opening it as a public street. If there was any user permitted by the. city upon this street; if the public were all invited. without any dissent by the city. to use it as a public street,-then the city would be required. urider its charter and ordinance. to put it in a reasonably safe condition. according to the character of the street and the amount of travel upon it. The supreme court of this state well said in the case of Phelps v. City of Man· kato, 23 Minn. 276: 'It is immaterial how a public street in the city became such. whether by forIT)al acceptance and official action of the city, or bya(}o ceptance and user by the public, so far as regards the duty of the city to keep it in safe condition.' So that it [the liability of the city] depends upon the evidence introduced before you whether this street, at the point where the deceased was injured. was a public street over which the city had control. and was required to keep in a safe condition."
2. The court also instructed the jury:
"The injury it is claimed was the result of an accident for which neither deceased nor defendant was responsible. and the allpged negligence of the city. In passing over railroad tracks. the steam escaping frorna locomotive frightened the hors<:", and, becoming unmanageable. he ran upon this obstruction in the street. If the obstacle had not been there, the illj ury would not have occurred. Where an injury occurs from the combined result of such accident and negligence, the party who is negligent is liable."
The court further instructed the jury that if they should determine that the pile of lumber was an obstruction which should have been
GALLAGHER V. Cl'fY (H' ST. PAUL.
removed by the city, and of the existence of which the city had notice, and that this part of the street was rendered unsafe in consequence of such obstruction .remaining there, and the plaintiff's intestate was not at fault, plaintiff was entitled to recover. I have examined the evidence carefully, and analyzed the charge of the court, only a part of which is quoted here, and find no error of law. Motion for new trial denied.
NOTE. MUNICIPAL CoRPORATIONS-STREETS-DEFECTS-NoTICE. It is tbe duty oftbe city, and not of .. passers-by," to notice defects in streets and sidewalks, and repair them. Squires v. City of Chillicothe, (Mo.) 1 S. W. Rep. 23. In an action against a municipal corporation for injuries sustained by reason of the defecti ve condition of II sidewalk, it is 110t necessary that the evidence should show actual notice to the city. It is the duty of a city to keep its streets and sidewalks in II reasonably safe condition for persons to travel upon, and when II sidewalk gets out of repair, so that it is unsafe to travel upon, and so remains for a considerable time, notice oftbe defective condition of the walk will be presumed. City of Chicago v. DaIle, (Ill.) 5 N. E. Rep. 578. III an action to recover damages against a city for injuries caused bl a defective sidewalk, where the proofsbows that the sidewalk was defective at the tIme of the injury, and had been so for a long time prior thereto, of which defect the street commissIOner had actual notice, and that such defect caused the injury, the verdict will not be set aside as being against the weight of evidence. City of Lincoln v. Woodward, (Neb.) 27 N. W. Rep. 110. While II town will be bound by II notice of a defect in a sidewal k communi'cated to II member of the town council, such notice must relate to the defects which caused the injury sued for, and notice to the councilman of defects which havE' been repaired before the accident occurred will not charge the town with notice of those which caused the injury, although they occurred at the place where the repairs had been made. Carter v. 'fown of Monticello, (Iowa,) 26 N. W. Rep. 129. It is for the jury to determine, under all the circulllstances of the case, how long a defect in a sidewalk or roadway must have existed in order to charge the city with constructive notice. Sheel v. City of Appleton, (Wis.) 5 N. W. Rep. 27; Colley v. Inhabitants of Westbrook, 57 Me. 181. A defect of three weeks' standing is sufficient to charge the municipal officers with constructive notice, and render city liable. See Sullivan v. City of Oshkosh, (Wis.) IS N. W. Rep. 468. Proof of existence of defect for a day is not sufficient to fix liability without also showing actual notice. Sheel v. City of Appleton, (Wis.) 5 N. W. Rep. 27. It was said in Dotton v. Albi<m, (Mich.) 15 N. W. Rep. 46, that where a party has been injured by a defect in a sidewalk, it is not necessary that there should be evidence that the authorities had express notice of the condition of the walk. If there existed a state with which was not compatible, except upon the assumption of tailure to exercise reasonable official care, then there is sufficient ground for presuming notice. Evidence that for a considerable time the sidewalk at and near the place where the injury was sustained was generally in bad condition, is competent to prove notice of the l'articular defect. Glide v. City of Mankato, (Minn.) 15 N. W. Hep. 175. Notice will be presumed where the defect was open and notorious. Kelleher v. City of Keokuk, (Iowa,) 15 N. W. Rep. 280. It is said in Ruggles v. Town of Nevada, (Iowa,) 18 N. W. Rep. 866, that to charge a town with constructive notice of a defective plank in a sidewalk, by reason of which an injury has been sustained, it is necessary to show that the identical defect which led to the accident was open and visible. The supreme court of the United States sayin District of Columbia v. Arms, 2 Sup. Ct. Rep. 840, that in an action against a city to recover damages for injuries received from a fall caused by a defective sidewalk, evidence that other accidents had happened at that place is admissible, as it tends to show the dangerous character of the sidewalk, and as publicity was necessarily p;iven to the accidents, that such dangerous character was brought to the attention of the city authorities. It was held in Citv of Delphi v. Lowery, 74 Ind. 520, that in an action against a city for an injury occasioned by a defect in a street, evidence is competent to show previous similar accidents at the same point, and the records of the common council are com-
petent to show the report of a committee appointed by them, and their action thereon, respect to the defect ill question. In an action against a city to recover for an injury sustained from a defect in a highway, it must be shown that the publIc auth(lrities had notice ofthe defect, or that it was of such a nature, and had existed for such a length of time, that knowledge on their part must be presumed. Goodnough v. City of Oshkosh, 24 Wis. 549. It was said in Requa v. City of Rochester, 45 N. Y. 129, where a traveler was injured, without fault on his part, in consequence of the removal of planks from a bridge by unkuown persons, that the city. being bound to keep the bridge in repair, will be liable, although 1:0 actnal notice of the defect is given, sufficient time having elapsed to render the condition of the bridge notorious. Where the statute imposes upon a municipal corporation the duty of heeping in repair a bridge within its limits, and a traveler is injured from the giving way of such bridge in consequence of latent defects, and such latent defects could have been discovered by carefnl examination, by skilled persons employed by the authorities, the corporation will be chargeable with notice of such defects, and liable in damages. Rapho, etc., v. Moore, 68 Pa. St. 404; It is saJd in Weisenberg v. City of Arpleton, 26 Wis. 56, where a pedestrian received personal inj uries arising from a defectlVe plank in a sidewalk of the city and the officers of such city knew at the time the accident occurred that the gE.'nerai condition of the walk was snch that from mere decay such an accident liable to happen at any moment, that the city was liable for such injuries, and chargeable with negligence in omitting to repair, without bringing home to the authorities actual knowledge of the looseness of the particular plank which occasioned the injuries. It a def(lct in a street be occasioned by accident, or by the wrongful and unanthorized act of a third person, the liability of the city does not begin until it has notice of . the defect, or uutil it has existed for such a length of time that ignorance of its existence is inexcusable. Russell v. Town of Columbia, 74 Mo. 480. Notice to a councilman of a defect in a street of the city is notice to thl> city, although the councihnan is not at the time engaged in any official act. City of Logansport v. Justice, 74 Ind. 378. Where the police are charged with the duty of removing nuisances from the streets, the knowledge by a policeman of II dangerous and unauthorized obstruction in the street is n"tice to the city. Rehberg v. Mayor, etc., of City of New York. 91 N. Y. 137. In Sherwood v. District of Columbia, 3 Mackey, 276, the authorities of the District of Columbia covered II well iu II highway, in which there was a public pump, with a wooden l))atform, and laid on that a brick pavement conforming to the For uine year,; they made no repairs nor examination. While the plaintiff was using the 1l\1l1lP the platform gave way, and he sustained injury, and the district was held liab e.
(District Oourt, D. Oregon. August 14, 1886.)
OPIUM-ILLEGAL SALE-CONSTITUTIONAL LAW-TITLE AND BunmcT OF ACT.
The subject of an act which forbids the sale or gift of opium to anyone but a druggist or practicing physician, except on the prescription of a practicing physician, is sufficiently expressed in the following title: "An act to regulate the sale of opium, and suppress opium dens." Such act does not prohibit the disposition of opium, and thereby destroy Us value as a medicinal agent, that being the only use of the drug which is generally considered proper in this country.
SAME-EFFECT OF ACT.
Petition for a Writ of Ha7Jeas (JorpulJ. Edward B. Watson, for petitioner.
EX PARTE YUKG JON.
G. C. Israel and W. Scott Beebe, for the State.
DEADY, J. This is an application for a writ of habeas corpus. The petitioner is a subject of the emperor of China, and a resident of this state. It appears from the petition that the petitioner is confined in the penitentiary of the state, in pursuance and satisfaction of It sentence and judgment of the state circuit court for the county of Baker, for the alleged crime of selling and giving away opium to one B. F. Caldwell, in violation of section 1 of the act of November 25, 1885, (Sess. Laws, 33,) entitled "An act to regulate the sale of opium, aud to suppress opium dens," which is alleged to be null and void because (1) the provisions thereof relate wholly to a subject not expressed in the title of the act; and (2) it deprives persons of their property in opium without compensation, and without due process of law, contrary to the constitution of both the state and the United States. It is also alleged in the petition that at the passage of this act the opium in question was a part of a large amount owned by the petitioner and others, within the state, for the purpose of being sold at retail therein as merchandise, for which purpose it was and is of great value; and that by the operation of said section the sale of said opium as ordinary merchandise is prevented, and its value greatly diminished. On the filing of the petition the court directed that notice of the application be given to the prosecuting attorney for Baker county, who appeared and was heard in opposition thereto. The law of the United States governing the procedure by habeas corpus is set forth by sections 751 to 766 of the Revised Statutes, and the cases in which this court may issue the writ are prescribed in section 753. The provision in that section, under which it is claimed this court has jurisdiction to issue the writ in this case, is as follows: "The writ of habeas corpus shall in no case extend to a prisoner in jail, unless when he · · · is in custody in violation of the constitution, or a law or treaty of the United States." If this section of this act is void for any reason, of course the petitioner is deprived of his liberty without due process of law, contrary to the fourteenth amendment; and this court has power to deliver him from the restraint complained of. Ex parte Wan Yin, 10 Sawy. 538; S. C. 22 Fed. Rep. 705; Ex parte Lee Tong, 9 Sawy. 383; S. C. 18 Fed. Rep. 253. In Ex parte Royall, 117 U. S. 241, S. C. 6 Sup. Ct. Rep. 734, the .supreme court has finally determined thA jurisdiction of the circuit and district courts in the premises in accordance with the action of . the court in the above-entitled cases. The ruling is, in short, such courts have jurisdiction to discharge from custody a person who is restrained of his liberty in violation of the constitution of the United States, although he may be held at the time under state process for trial on a charge of crime, or on a conviction thereof; but the court may, in its discretion, subol'dinate to any circumstances requiring
immediate action, refuse the writ in advance of the trial in the state court, or even after conviction, and before the case has been heard on error in such court. The section in question of the state statute reads as follows: "It shall be unlawful to sell or give away opium, or any preparation of
which opium is the principal medicinal agent, to any person except druggists and practicing physicians, except on the prescription of a practicing physician, written in the English or Latin language: and tile druggist filling such prescription shall keep the same on file for one year, subject to be inspected by any public officer of the state."
Sections 2, 3, and 4- of the act relate to smoking opium, and section 5 prescribes a rule of evidence in trials for the violation thereof. Section 6 prescribes the punishment for any violation of· the act, which may be by imprisonment in the penitentiary not more than two years, nor less than six months; or in jail for not more than six months, nor less than one; or by a fine of not more than $500, nor less than $50. Section 20 of article 4 of the constitution of the state requires that an "act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be ex:pressed in the title," only so much of the same shall be void. It is claimed by counsel for the petitioner that section 1 of this act is, in substance and effect, a prohibition of the sale of opium, while the subject expressed in the title is only the 'regulation of such sale. And from this premise the deduction is made that the section is void, because (1) the subject of prohibition is not expressed in the title; and (2) a prohibition to sell the opium in the hands of the petitioner, and others within the state at the date of the passage of this act, is in effect to deprive him and them of their property therein without compemmtion or due process or law. In support of the first deduction counsel cite In re Paul, 94 N. Y. 497, in which the Wl)rd "tenement.houses" in the title of an act was held not brbad enough to include the subject of "dwellings," mentioned in the body of the act; and Town v. Sainer, 59 Iowa, 26, S. C. 12 N. W. Rep. 753, where a town ordinance was held void because the title ran, "Regulating the uee and sale of intoxicating liquors," while the body of it was "entirely prohibitory." In support of the second deduction counsel cited Wynehamer v. People. 13 N. Y.378, in which it was held that an act forbidding any one to sell, or keep for sale, intoxicating liquors, except for mechanical, medicinal, or sacramental purposes, was, as to such liquors then owned by persons in the state, null and void, because it deprived them of their property therein without due process of law, contrary to the constitution of the state; and State v. Walrujf, 26 Fed. Rep. 178, in which it was held, in the circuit court for the district of Kansas, that the Kansas constitutional prohibition against the manufact. ure of beer in the state after 1880, except for medicinal, scientific,
EX PARTE YUNG JON.
<l!Hl sacramental purposes, was void as to brewery property erected <lnd in use in the state prior to that date, on the ground that Ruch prohibition destroyed the value of suoh property largely, and the owner was thereby so far deprived of the same without oompensation or due prooess of law, oontrary to the fourteenth amendment. On tbispoint counsel also cited In re Jacobs, 98 N. Y. 98; People v. Marx, 99 N. Y. 377. Upan the case made by the petitioner, it is admitted that it must, at least, appear that the section is, in substance and effect, prohibitory of the sale of opium before he is entitled to the writ. And whether an act is prohibitory of the sale of an artiole in that sense must depend on circumstances, and particularly the character of the article, and the uses and purposes to which it has generally been applied in the oommunity. A law limiting the sale or disposition of bread and meat to druggists and praoticing physioians, unless perscribed by a physician in the course ·of his praotice, would, considering the universality of the need and use of these articles in the oommunity, be regarded as prohibitory in its character. But opium is a , medicinal drug, and has never been used, and has no claim to rank, as a necessary of life. Its use has been mainly in an anodyne; and. it is classed by science among the active poisons. III the East it has been used for centuries, by smoking and mastication, to produce a kind of intoxication; but, until lately, such use has been unknown in the United States, and is now chiefly confined to the Chinese. In the American (verbum "Opium") it is said to Le a vice "less easy of detection than alooholic intoxication, which it is said to replace where law and custom have made the latter disreputable. Its evil effe"cts are IIlost manifest upon the nervous and digestive systems," and its final results resemble delirium tremens. The sale or disposition of an article which is an active poison, and has no legitimate use except in medicine, may be regulated accordingly. In my judgment, the act does not in effect prohibit the disposition of tM drug, but allows it under such circumstances, and on such condit.i.ons, as will, according to the general practice and opinions of the country, prevent its improper and harmful use. True, we permit the indiscriminate use of alcohol and tobacco, both of whic-h are classed by seience as poisons, and doubtless destroy many lives annually. But the people of this country have been accustomed to the manufacture and use of these for IIlany generations, and they are produced and possessed under the common and long-standing impression that they are legitimate articles of property, the owner is entitled to dispose of without any unusual reo straint; and even now it is pretty well settled that the legislature may absolutely prohibit the future manufacture and use of these arin hano., ticles, and may also prohibit the sale and use of the on making compensation to the owners for the loss occasioned thereby. On the other hand, the use of opium, otherwise t4all as this act
allows, as a medicine, has but little, it any, place in the experience or habits of the people of tbis country, save among a few aliens. Smoking opium is not our vice, and therefore it may be that this legislation proceeds more from a desire to vex and annoy the "Heathen Chinee" in this respect, than to protect the people from the evil habit. But the motived of legislators cannot be the subject of judicial investigation for the purpose of affecting the validity of their acts. It is the duty of the law-maker, as far as his power extends, to enact laws for the conservation the morals of society, and to promote the growth of right thinking and acting in all matters affecting the physical or mental well-being of its members. In the exercise of this power, and the discharge of this duty, this act to regulate the disposition and use of opium, considered as a dangerous drug, which the weak and unwary, unless prevented, may use to their physical and mental ruin, appears to have been passed. The subject of the act is sufficiently expressed in the title, and the use of the article is not thereby restrained, so as to destroy its value as a medicine or remedial agent, the only-use of which is generally considered and accepted as a proper one in this country. State v. Ah Ohew, 16 Nev. 50. The application for the writ is denied.
THE ALAMO. 1 RUSSELL and others v. THE ALAMO.
(Oircuit Oourt, 8. D. Florida. April 28, 1886.)
Compensation allowed for salvage services rendered to a vessel aground on the Florida reef.
Admiralty Appeal. Bethel f£ Patterson, for libelants. Treadwell Oleveland and W. o. Maloney, for claimants. PARDEE, J. This cause came on to be heard on the transcript and evidence, and was argued, whereupon the court finds the following as the facts of the case:
(1) The facts as propounded in the amended libel, and in the several intervening libels, .are practically admitted by the claimants' answer, and said ",Uegations of fact are therefore taken to be true, and to the extent to which they go they are the facts in the case.
by Joseph P. Hornor, Esq., of the New Orleans bar