Central Law Journal.

ST. LOUIS, MO., NOVEMBER 19, 1897.

The case of France v. State, recently decided by the Supreme Court of Ohio, involves constitutional questions of special interest to medical practitioners. The case involved the validity of an act of the legislature known as the Medical Registration and Examination Law, establishing a State medical board, by which medical practitioners must be licensed and under whose provisions unlicensed practitioners are liable to prosecution and punishment. The principal ground of objection to the act, was that it conferred judicial powers upon ministerial officers and discriminated in favor of resident and against non-resident practitioners. The court, however, was unanimous in upholding the constitutionality of the act. This conclusion is in accord with most of the State courts wherein statutes of a similar character have been attacked.

On another page of this issue we have called attention to the recent opinion of United States Judge Clark, in Nashville, Chattanooga & St. Louis Railway Co. v. McConnell, involving the right of railroad com. panies to restrain the brokerage in railway tickets. The defendants were ticket scalpers, engaged in buying Tennessee Centennial Exposition tickets from the holders, and in reselling them in violation of the contract contained therein. Acting upon the principle that one who wrongfully interferes in a contract between others, and for the purpose of gain to himself, induces one of the parties to break it, the court held that a continued interference may be ground for an injunction where the resulting injury will be irreparable. It was also held to be no objection to the jurisdiction of a court of equity to grant an injunction, because the enjoined act is also a violation of the criminal law, or that it might properly be made the subject of criminal legislation, which the law-making power has not seen fit to provide. The question involved in this case is new, or, to speak more correctly it is a new application of old principles, and the case will, therefore, attract more than ordinary interest.

That the governor of a State has inherent power, independent of any statute, to revoke his warrant issued for the surrender of an alleged fugitive from justice, at any time before he is taken out of the State, appears from the recent case of State v. Toole (Sheriff), 72 N. W. Rep. 53, decided by the Supreme Court of Minnesota. The court there decided that if in a proceeding in habeas corpus on behalf of the alleged fugitive, it appear that the executive warrant has been revoked he must be discharged and the grounds of such revocation cannot be inquired into. The court shows that such authority on the part of governors has been heretofore generally recognized and acted upon; that a number of judicial opinions concur in the position now taken by the Minnesota court; and that the views of the text writers are to the same effect. The principal argument of counsel against the existence of the power of the governor to revoke a warrant once issued was that under the constitution of the United States, in the case of interstate extradition, the duty of the governor to issue a warrant on the production of the requisition in due form is imperative and ministerial, and not discretionary and judicial. The court say as to this that "it is unquestionably true that when a case is presented which is clearly one contemplated by the federal constitution, the governor has no discretion, but it is bis imperative duty to issue the warrant. That duty, however, is one of imperfect obligation, for, if the governor refuses to perform it, we know of no power, State or federal, to compel him to do so. But we are not prepared to assent to the proposition that in determining whether a case contemplated by the constitution is presented, the governor upon whom the demand is made is vested with no discretion, even where the papers are on their face sufficient and in due form. We all know as a matter of fact that governors do exercise a discretion in such cases, and if they are satisfied that the demand is made for sone ulterior and improper purpose-as, for example, the collection of a private debt-they refuse to issue a warrant. If a governor may exercise such a discretion in regard to issuing the warrant, we do not see why he may not exercise the same discretion in regard to revoking it; and, if he does revoke it, his reasons for so

doing can no more be inquired into than his reasons for refusing to issue it in the first instance. The existence of the power to revoke would seem necessary, in order to prevent great abuses and wrongs. A warrant is, of necessity, almost always issued ex parte, and the governor is liable to be imposed upon by those demanding it, or, for some other cause, to issue it improvidently. It would seem that in such cases the same officer who had the exclusive power to issue the warrant should have the power to remedy the wrong by revoking it."

NOTES OF RECENT DECISIONS.

CRIMINAL TRIAL VIEW BY JURY CONVERSATION WITH PASSERBY.-The action of trial court in granting or refusing & view by jury is in most of the States, a matter of discretion with the trial judge. There are some States in which express statutes have been passed recognizing the right to grant a view by the jury. But the authority inherent inheres in the courts, in the investigation of truth, to call in this and other aids and rests in the discretion of the judge in the absence of constitutional or statutory prohibition. In the celebrated trial by Prof. Webster for the murder of Dr. Parkman, the jury was permitted to see the place where the crime was committed (Com. v. Webster, 5 Cush. 295), and this was also done on the trial of Cluverius (Com. v. Cluverius, 81 Va. 787), in both instances there being no statute to authorize it. The accepted modern doctrine is that the jury should be permitted to visit the scene of the res gestæ in criminal as well as civil cases, whenever such visit appears to the court important for the elucidation of the evidence, but the visit must be carefully guarded to prevent tampering by or conversation with third parties. In accordance with this doctrine, the Supreme Court of North Carolina, in the recent case of State v. Perry, reversed the lower court for the reason that the jury in making a view interrogated a passerby as to the identity of a house whose distance from the scene of the crime was material, and thus elicited other evidence than that offered on the trial. The court says that while there is a difference between the authorities as to

whether or not the prisoner must accompany the jury on their inspection of the premises (Thomp. Trials, §§ 886, 887), all concur tha: evidence cannot be taken on such occasions: the object being merely to present to the jury the scene more vividly than is possible by the description of witnesses, so that the jury may with a better comprehension apply the evi dence of the witnesses, which must be taken only in open court and in the presence of the prisoner. Under the settled practice, showers are appointed by the court to point out the localities, merely, and no more, so the jury may apply the evidence received on the trial. Thomp. Trials, § 914; Bailey, Prac. 22; Archb. Cr. Prac. (6th Eng. Ed.) 407; State v. Lopez, 15 Nev. 407. For a still stronger reason it was error for the jury to receive evidence on this occasion, since in fact it was a view by the jury of the premises not under authority of the court. It ought rather, there fore, to be considered as a charge of miscon duct by the jury. There are decisions that the bare fact of the jury having visited the scene of a capital offense, with whose tris they are charged, though made without leave of the court, is not, per se, ground for a new trial, but that some prejudice must appear. People v. Hope, 62 Cal. 291. But we are not called upon to pass on that point, as to whiel authorities conflict, for the interrogation of the passerby was misconduct calculated to prejudice the prisoner. Hayward v. Kuspp. 22 Minn. 5; State v. Lopez, 15 Nev. 407: State v. Tilghman, 33 N. C. 513.

INJUNCTION-RESTRAINING BROKERAGE N RAILWAY TICKETS.-In Nashville, C. & St. L Ry. Co. v. McConnell, 82 Fed. Rep. 65, be fore the United States Circuit Court, Middle District of Tennessee, it appeared that the managers of the Tennessee Centennial Exposi tion at Nashville secured from railroads the is suance of special round-trip tickets to such Er position at greatly reduced rates. Such ticke's were receivable for return transportation over different roads from those issuing them, bet were not transferable, providing by the terms that they should be void if presented by person other than the original purchaser, st such purchaser was required to identify hir self before validating agents appointed fo that purpose at the Exposition. Defendants were ticket brokers or "scalpers" engaged

falling while the linemen were at work upon the same; that said rule and custom was known to the plaintiff, and he supposed and believed that said pole had been properly tested by the defendant company before ordering him to climb the same, and that plaintiff had no knowledge that said pole was rotted and defective at its base; that the defendant wholly failed to test said pole, as had been its custom and rule prior to that time; that said pole was not guyed by wires or ropes in any way; and that the defendant knew, or by the exercise of due care could have known, that said pole was rotted at its base, and that the same was incapable of sustaining any weight upon it." There are no facts stated in the complaint which indicate that any special mechanical skill was required to discover the defect in the pole, or that the linemen, of whom the plaintiff was one, were not competent persons to inspect and test the poles, or that any of the officers or other employees of the defendant possessed superior qualifications or had better means or opportunities than the plaintiff to ascertain whether the condition of the old poles was such as to render it safe for the workmen to climb them. The plaintiff made no examination of the base of the pole which fell. He knew that it was not guyed or supported in any manner. He says that, by the exercise of ordinary care, its decayed condition could have been detected, but that, from his knowledge of the rule and custom of the defendant to inspect and secure the old poles before linemen were sent to work upon them, he believed that this pole had been properly tested and found to be safe, and for that reason made no examination himself. The complaint makes these facts the basis of the defendant's alleged liability.

As the testing and supporting of the old poles, from the nature of the work, might, either by the terms of the contract of employment, or from other facts and circumstances, have been either a duty of the employer or one of the duties of the plaintiff, and as the plaintiff could not, in an action at law, recover compensation for an injury resulting from his own negligent failure to perform a duty which he was employed to perform, it was essential to the plaintiff's case that he should set forth in his complaint the facts showing why this duty devolved upon the defendant, and why the exercise of due care did not require the plaintiff to examine the pole in question. Whether in this case the plaintiff's injury resulted from his own or from the defendant's negligence depended, therefore, upon the truth or falsity of these averments, and the determination of the question of whether it was the rule and custom of the defendant, as alleged, to inspect and secure the old poles before they were climbed by the linemen, or whether it was one of the duties of the linemen to themselves test the poles, and if found unsafe to secure them, became decisive of the plaintiff's alleged right to rely upon his belief that the poles had been tested by the defendant, and found to be safe. These allegations of fact upon which the averments of duty and of negligence upon the part of the defendant depend were contested upon the hearing, and having been decided, as appears by the finding, adversely to the plaintiff, the question of negligence has thus been determined as a question of fact.

The trial court has found that it was not the rule and custom of the defendant to inspect and test the poles, but that it was the rule and custom, in this branch of the work, that "each lineman should look out for his own safety in climbing poles;" that each lineman should inspect and test the poles for himself,

and judge of their safety; and that suitable appliances were at hand for testing and securing poles. That the plaintiff knew this rule, and understood that testing and inspecting were a part of his duties, must be presumed from the fact that he was a lineman of 14 years' experience, and in that capacity had formerly been in the employ of the defendant. The finding of the trial court is thus conclusive upon the question of negligence. It shows that the plaintiff, with a knowledge, when he was ordered to climb the pole in question, that it was the duty of no one but himself to decide whether it was safe, and that, if he doubted its safety, he was at liberty to support it by appliances furnished by the defendant for that purpose, chose rather to rely upon the safe appearance of the pole and the assurances of his fellow-workman, and to take the risk of the pole being sound without making a proper examination himself. If the accident occurred from the negligence of any person, it was through the plaintiff's own fault. He was the person employed by the defendant to examine the poles, and see that they were safe to work upon. As he was able to perform both the work of inspecting and climbing, the defendant ought not to be required to employ some other person than the lineman to test the poles.

We have no occasion, upon the facts found, to consider whether the foreman, Phelps, was a fellowservant of the plaintiff-a question discussed in the briefs of counsel. The accident did not occur from the negligence of Phelps. It is true he directed the plaintiff to climb the pole, and in answer to the latter's inquiry, truthfully said, as might any other lineman who had tested the pole for himself, that he had been up the pole, and expressed his opinion that it was safe. But the plaintiff knew that it was not a part of the duty of the foreman to instruct an experienced lineman as to the safety of a pole he was about to climb; and, from the facts found, we must assume that he knew that notwithstanding that, in obedience to the order of the foreman, he was required to do the work upon the pole, yet he was to rely upon his own judgment in determining whether it was safe to climb it without testing it or supporting it, and that it was his right to secure the pole before climbing it if he doubted its safety. It cannot be laid down as a proposition of law, as seems to be claimed by plaintiff's counsel, that the linemen of telegraph and telephone companies have a right to rely upon the soundness and safety of the poles upon which they are working, and that it is the duty of such companies to inspect and test poles, and support such as are insecure, before permitting their linemen to climb them. Whether it is incumbent upon the master or the sei vant to perform such a duty is usually a question of fact depending upon the terms of the contract of employment, the servant's knowledge of the hazards of the work in which he is engaged, his ability and opportunity to discover the dangers to which he is exposed and to avoid them, and upon other circumstances. Employers have a right to decide how their work shall be performed, and may employ men to work with dangerous implements and in unsafe places without incurring liability for injuries sustained by workmen who know, or ought to know, the hazards of the service which they have chosen to enter. Hayden v. Manufacturing Co., 29 Conn. 548; Dixon v. Telegraph Co., 68 Fed. Rep. 630; Greene v. Telegraph Co., 72 Fed. Rep. 250; Flood v. Telegraph Co., 131 N. Y. 603, 30 N. E. Rep. 196; Telephone Co. v. Loomis, 87 Tenn. 504, 11 S. W. Rep. 356. In the last named case, which was an action for damages for an injury sustained by the fall of a telephone pole