94 FEDERAL REPORTER.
nlaying in the yard of the. ;parents' house; and that a the family, a full-grown man,was at work in the same yard where the childreJ;J. were at play. The child seepls,to .have escaped, nnobserved, and .gone on the .railroad track,sonie 256 feet from the house. On this state of facts, we are uJ;J.willing to say, as law, considerlIlg the station in life which these plaintiffs a appeflJ' to. have occupied, .that they were guilty of contributory negthe others, was properly one ·ligence. We think that this issue, for the jury. The judgment of the circuit court is therefore reversed, . and the case is remanded for a new trial.
BOARD OF EDUCATION 011' CITY OF HURON, S. D., v. NATIONAL LIFE INS. CO. OF MONTPELIER, VT. SAME v. PEASLEE. SAME ·v.:MONADNOCK SAY. BANK OF EAST JAFFREY, N. H.
(Circuit Court of Appeals, Eighth Circuit. April 3, 1899.) Nos. 1,118, 1,119, and 1,132.
The board of education of the city of Huron, organized under Laws DlLk. 1887, c. 47; is a body corporate, separate and independent from the oity ·of Huron, and, in determining whether bonds issued by it increase . tl:\ewrporate indebtedness beyond. the prescribed limit, its debts, and not ·tbedebts of the city, are to be computed. Compo Laws Dak.1887; §§ 1149, 1150, providing that the limit of bonded indebtedness that may be Incurred by a city or other municipal corporation shall'be based on its assessed valuation for the year preceding the incurrtp.g of the indebtedness, do not apply to QQards of education created under Laws Dak. 1887, c. 47, Is complete in itself,and restricts the power .of boards of education to issue bonds to an amount not exceeding 3 per cent. of their assessed valuation; though it is silent as to what assessment shall be used in the computation. Under Laws Dak. 1887, c. 47, restricting the power of boards of education to issue bonds to an amol\nt not exceeding 3 per cent. of their assessedvaluation, the computation must be based on the last completed assessment before the bonds were Issued. I
8.SAME,...,.COMPUTATION OF ASSESSED VALUATION.
In Error to the Circuit Court of the United States for the District of South Dakota. John 1.. Pyle (Henry C. Hinckley and H. S. Mouser, on brief), for plaintiff in error. A. B. Kittredge (N. T. GuernseY,on brief in case No. 1,118), for defendants in error. Befor,e CALDWELL, SANBORN, and THAYER, Circuit Judges. mAYER, Circuit Judge. These are suits which were brought separately by three different holders of coupons detached from municipal bonds which were issued by the board of education of the city of Huron, in the state of South Dakota, the plaintiff in error, hereafter termed the "board of education." The bonds from which the were are of the same issue as those that were in-
BOARD OF EDUCATION V. NATIONAL LIFE INS. CO.
volved in the cruse of National Life Ins. Co. of Montpelier v. Boord of Education of City of Huron (decided by this court at May term, 1894) 27 U. S. App. 244, 10 O. C. A. 637, and 62 Fed. 778, and for a full statement of the facts attending the issuance of the bonds, and the law under which the board of education acted, we refer to our statement and opinion in the former case. The National Life Insurance Company, Robert J. Peaslee, as assignee of the New Hampshire Trust Company, and the Monadnock Savings Bank of East Jaffrey, the deI fendants in error, who were the plaintiffs below in the respecti ve . cases, are confessedly bona fide holders of the coupons on account of which they respectively sue, having bought the bonds from which they were detached, in good faith, for value, and prior to maturity. To the complaints which were filed in the three cases the board of education filed answers, which were in substance the same, wherein it pleaded the same defenses, that were adjudged insufficient by this court in the former suit. Id. Demurrers to the several answers were interposed by the respective plaintiff·s, which were sustained, and final jUdgments were thereupon entered in favor of the plaintiffs below. It is unnecessary to discuss any of the questions which were Considered and decided on the former occasion, and we shall refrain from doing so, as we have no doubt that the conclusions then announced were right, and as the facts pleaded in the present cases in no wise change the point of view from which any of the questions formerly considered were decided. It is claimed, however, on the present occasion, and the point must be regarded as new, that the bOard of education is not a separate and independent corporation, but a mere adjunct or department of the corporation known as the "City of Huron," and that in view of such fact all of the city indebtedness, as well as the indebtedness of the board of education, should be taken into account in determining whether the bonds in question, which aggregated altogether $60,000, being 120 bonds of the denomination of $500 each, when issued, increased the corporate indebtedness beyond the limit allowed by law. This contention we regard, however, as untenable. The board of education appears to have been organized under and in accordance with chapter 47 of the laws of the then territory of Dakota for the year 1887. This act appears in the Compiled of Dakota of 1887, the most material provisions being fomid in sections 1808,1810-1818,1820, and 1824 of the Compiled Laws. Without setting out these sections in hrec verba, it will suffice to say that section 1808 provided that all cities thereafter organized under the general law for the incorporation of cities, to which class the city of Huron belongs, should be governed by the provisions of the act; that section 1810 provided that territory outside of the boundaries of any organized city or town, but adjacent thereto, might be attached to the city or town for school purposes upon application to the board of education of such city by a majority of the electors of the adjacent territory; that section 1811 declared, in substance, that the organization effected in pursuance of the provisions of the act should be a "body corporate," and should possess the usual powers of a corporation for public purposes, under the name of the board of educa-
ti?n of the citY,W:';tPr)VD. ,to'Yhich in that name might S1)e 0\, &uep'Q!1p-Q be capable,,O£ and, being con,aqq..';of i pqlding andco;Uveying real atid personal by will ,?ther"1s or that ! nug'llt be purchase9of the l:l.:itt ' SectIOn, 1812 oUhe ,act inimbstan¢e,tnat the respgctive b,qards of education might requirE) the pity or town to Which 'they flppertained to COllVff: ,the P?3-rd prop'erty such city 01' SeptlOn the members of th.ebqltrd should bee,lectedat a,nannua,IielectlOn, ellch ward of ,elect niany ,of the board as It had, memllers m the, cIty counCIl but that ,no:member or the " a,r"d,""o,,',f.i,1,w."",1)C#iOnSho,',Uljd,'P, " er,of the,CU, it,' and, that no, member pf fl.le board, qf educatlOJ;J. shoVld be f,l ,trustee of lil town towl1ich the board t'i;> which was ,appertained, of, havep9,wer to', fill ,l;lny vaand calley in its l:>Ody. 181'6 pro· videq? IJ;J.. the o,f educatiOij shoVld power to elect Its own officers, except the treasurer, and to make Its own regulations,a,.p.d that at a regu,lar of each board, to be held, in M,J;tyof each Year, ea,ch, board should organize by the a PFeflidentmd, vice memQeh>, ,wh'o: ,should holdo'ffice,'foJ;" one year their"s1iccessors' were and'thateachbpard, should illso,elect 3; clerk, bold' hisofficedudng tlie pleasure o(fhe board. Section it the Q.ufy of the to at, all meetings of appoint aU and to sign all warrants for the; , money ,ordereqby the poard to be drawn upon for school moneYs. SectiQU,1820 made it, the duty ,of the ,to keep an accuratl? 'jcJ<urnal of the, of, ;t];J,eboard,to, tall:e charge of its books, and docunients, ap,q.i c,omItersignall warrants Jar money which Were drawn, ,on the treasurer by ,orfl-er' of. the ,Section 1824 theboilrd oteduGation to levy ataxior the support of the of the corporatiori' for the fiscal yeall nexfensUing, not to exceeq..,in one,year 30mills Qnthe dollilJ:,which levy, however, wasre;quire:!l tope approved, by the ei,ty council of the City to which the boa:rd, a.QpertaineQ., when there was one. 'O,:\¢' cl,erk of the board to clerk the of the tax levied when It was thp.s approved, and the county clerk! on receipt of the eertjfj.c,ate; ,was requ,irel;l to place ,the tax olltlle tax roll of the count be colloected byJb,e the cou,nty as otber taxes. H IS manifest, we thin,k,Jrom an provisiolls oUhe' fl-ctllnder which wa$ organized, that it iain faet what section. ),811. of tl).e in UUlllistakable language declares it to be, namely; a "bqdy corporat,e," or, in other word,S, ,fl- "distinct legal.entity," hf\ving powersupd functions to be exercise« separate I.\:qd frbin the city of Huron. , The praetice of creating such within the territorial limits, of other municipfll, corporations, like, cities and towns, for purpose placing of schools and, school property in the hands of persoJ;J.s who are not municipal .officers .01' concerned in the
BOARD OF EDUCATION V. NATIONAL LIFE
management of municipal affairs, is quite common, and we have no doubt that the act now in question was passed for that purpose. The claim that the issue of bonds was excessive, in view of the amount of the corporate indebtedness, is founded altogether upon the assumed identity of the two corporations,-that is to say, the city of Huron and the board of education,-and, as the assumption is false, it follows that the issue cannot be deemed excessive for that reason. It is next insisted in behalf of the board of education that, in determining whether the issue of .bonds was excessive, the assessment roll for the year 1889 must be consulted, rather than the assessment for the year 1890. The answer filed by the board of education alleged that the assessed valuation of property within the city of Huron for the year 1889 was $1,575,001, that the assessed valuation for the year 1890 was $3,365,008, and that the equalization of taxes for the year 1890 had been completed by the state board of equalization be· fore the issuance of the bonds in question. The act creating boards of education, under which the plaintiff in error was organized, provided, with respect to issuing bonds for school purposes section 1832, Comp. Laws 1887), that "no corporation shall issue bonds in pursuance of this act in any sum greater than three per cent. of its assessed valuation." In view of the allegation of the answer last mentioned, showing that the assessment for the year 1890 had been completed before the bonds wete issued, and the amount of that assessment, it is not denied that they were within the limit of indebtedness fixed by law, if section 1832 is. controlling. It is urged, however, by the plaintiff in error, that another section of the Compiled Laws, namely, section 1149, is applicable to the case. This latter section of the Compiled Laws of 1887, and the one following (section 115,0), are sections 1, 2, and :3 of an act that was passed by the territorial legislature of Dakota, in the year 1887, with reference to "bonds of municipal corporations," which act was designed, apparently, to set a limit to the bonded indebtedness that might be contracted by a city or other municipal corporation of that kind, to wit, a town or village. It provided, in substance (vide section"! 1149, 1150, Compo Laws· Dak. 1887), that the bonded indebtedness of any city or municipal corporation should not exceed 4 per cent. of its assessed valuation, as shown by the returns of the ass sor for the year next preceding the time 'when the indebtedness should be incurred, and that the bonds therein referred to should be issued bv the common council or board of trustees of anv city or municipal corporation only upon a majority vote of the qualified electors of such city or corporation at an election called for that purpose. The claim is that the phrase "municipal corporation," as used in this act, includes boards of education of the class to which the plaintiff in error belongs, and that when, on October 4, 18HO, the board issued the bonds in suit, it should have been governed by the assessment roll of 1889, that being the assessment of the preceding year, rather than by the assessment of 1890, although the latter assessment was completed before the bonds were issued. vVe entertain a different view. We are of opinion that the act under which the
plaintiff in error was Qrganized is complete in itself; that its powersandduties, as well as the limitations upon its power to issue bonds, are contained in the act under Which it became a body corporate; and that, whenseotion 1832 of that act restricted the power of boards of education to iBsue bonds to, an amount not exceeding 3 per cent. of their "assessed valuation," it was intended that the computation should be based on the last completed assessment before the bonds were issued, which in the case at bar was the assessment of 1890. Sections 1149 and 1150 expressly provide that the by the common councils bonds therein referred to shall be or boards of trustees of cities or municipal corporations, no refermade to boards of education, like the ;plaintiff in error, ence which are expressly empowered to issue bonds for school purposes in their own name. Vide Compo Laws 1887, § 1832. In view of this fact, it seems clear that sections 1149 and 1150 were only intended to apply to those municipal corporations, such as cities or villages, which were governed by common councils or boards of trustees. If these two acts are thus construed as independent measures relating to different subjects, the one to boards of education, and the other to the bonded indebtedness of cities and villages, they are consistent in their several provisions, and neither act limits or controls'the other. If the board of education is subject to the limitation found in section 1149, that computations for the purpose of issuing bonds must be based on the assessment "for the year next preceding the time" when they are issued, then we percei ve no reason why it ma,y not with equal reason be claimed that it was subject to other limitations found in the same section, in which event it was entitled to issue bonds to the extent of 5 per cent. of the assessed valuation for the year 1889, instead of 3 per cent., or, in other words, to issue bonds to the amount of $78,750, since section 1149 was amendedby an act approved on February 27, 1890, by raising the limit from 4 per cent. of the assessed valuation to 5 per cent. Vide Sess. La,ws So D. 1890, c. 59. In this aspect of the case the result would be tha,t the plaintiffs below were clearly entitled to recover. They were innocent purchasers of the bonds faT value. The bonds showed on their face that the total issue was less than $78,750, and, not having actual knowledge of any other or greater, indebtedness, the pla,intiffs were entitled to rely on the recital, which each bond contained, "that the total amount of this issue of bonds, together with all other outstanding indebtedrress of said board of education, does not exceed the statutory or constitutional limitation." Board Com'rs Gunnison Co. v. E. R. Rollins & Sons (recently decided by the supreme court of the United States) 173 U. 8.255, 19 Sup. Ct. 390; Id., 49 U. S. App. 399, 411,412,26 C. C; A. 91, and 80 Fed. 692; Chaffee Co. v. Potter, 142 U. S. 355, 12 Sup. Ct. 216. Without pursuing the subject at greater length, it is snffident to say that we are sati8fied that the judgments below were for the right party, and they are therefore affirmed.
WESTERN COAL & MINING CO. V. BERBERICH.
WESTERN COAL & MINING CO. v. BERBERICH. (Circuit Court of Appeals, Eighth Circuit. April 10, lS99.)
The court will not review the verdict of a jury where there is some evidence to sustain it, althougb it rna;\, be against the apparent weight of evidence. An objection to the opinion of a witness as irrelevant and incompetent is too general and indefinite.
SAME-OPINION EVIDENCE-SUFFICIENCY OF OIIJECTION.
EXPERT TESTIMONy-HYPOTHETICAl, QUESTION,
'Vhere a question asked an expert witness is framed on the assumption of certain facts, counsel may assume the facts in accordance with his theory of them.
. An expert may be asked a question involving a point to be decided by the jury.
5. TRIAL-HEQUESTS TO CHARGE.
'Where the charge in cIrief was a clear and accurate statement of the law, covering every aspect of the case, it was proper to refuse special requests. The court properly refused requests to charge that singled out and gave undue prominence to particular items of evidence.
SAME-SINGLING OUT PARTICULAR EVIDENCE.
DUTY OF MASTER-'-OPERATION OF MINES.
H is the duty of a 'master operating 11. mine to use all appliances readily attainable, known to science, for the prevention of accidents arising from the accumulation of gas or other explosive substances.
In Error to the Circuit Court of the United States for the Western District of ArkansaS.
This action was brought by Joseph Berberich, plaintiff below, against the Western Coal & Mining Company, defendant below, to recover damages for personal injuries sustained by tbe plaintiff, while working for the defendant as a coal miner in its coal mine, by reason of an explosion of gas in the mine. The cause of action if! thus stated in the complaint: "That prior to the 18th day of December, 1893, defendant employed and engaged plaintil1' to work in said coal mine of defendant at Denning, Franklin county, Arkansas, as a miner to dig and mine coal; that by reason of said employment plaintiff was defendant required to go down in said mine a great distance in the earth. and plaintiff says that, reason of defendant's so employing him to work in said mines as aforesaid, It then and there became and was the duty of defendant to furnish plaintiff a reasonably safe place to work In said mine as said miner; yet plaintiff says that defendant wholly disregarded Its duty towards plaintiff in that behalf, and tbat on the said 18th day of December, 1893. while plaintiff was engaged at work for defendant as such miner in one of the rooms of said mine at Denning, Arkansas, the defendant. by and through its agents and servants, so carelessly, negligently, and wrongfully conducted and managed said room in said mine, in this, that defendant failed to prov!dp a sufficient amount of fresh ail' in said mine and room to keep them free from gas, fire damp, or other combustible matter unknown to plaintiff, and by reasoB of his failure aforesaid allowed the same to accumulate in said room and mine. wblch the defendant then well knew, or by the exercise of ordinary care awl diligence, on the part of defendants and its agents, should have known: and that on the said 18th day of December, 1893, without any fault 01' negligeuc'p on plaintiff's part whatever, the said gases, fire damp, and combustible mattpr exploded, and by reason of said explosion plaintiff was burned. wounded. crippled, disfigured, and maimed for life."