tract with the builder precisely as the builder himself is bound. They cannot be permitted to be ignorant of his limitations or to plead such ignorance as an excuse for insufficient performance; and the reason for it all is most manifest. They are bound to do just what their principal was bound to do, because they assumed to perform his contract with the owner, to the extent of their undertaking, and of course they must perform according to his express limitations. In other words they necessarily have notice of the terms and stipulations of his contract with the owner, and that means not a part, but all, of those terms and stipulations. Upon the plainest legal principles applicable in all other cases, they cannot have the benefits of the builder's contract without accepting the conditions upon which those benefits are conferred. If they could, they would defeat the explicit contract of the owner upon a point without which, it may easily be, he would never have consented to it. If the law would tolerate this method of dealing with building contracts, it would only be necessary for the original contractor to sublet his contract by portions to different persons, and the prohibition against liens would be utterly destroyed and a contract would be enforced against the owner to which he never consented. There is no hardship to sub-contractors in enforcing a provision prohibiting liens against them, because they are bound to know, by necessity, all the terms of the contract made by their principal in any event, and they therefore, know of the prohibition. But the owner has no opportunity of protecting himself because he cannot know to what persons the contract or portions of it may be sub-let. He has done all he could by prohibiting liens in plain terms in his written contract, and of that prohibition all sub-contractors are bound to know and may abstain from contracting on such terms if they choose. We know of no good reason for giving such an extraordinary privilege to sub-contractors as the right to repudiate one of the most important terms to which their contracts are subject, or of taking away from an owner the right to insist upon the performance of his contract according to its literal terms. We take away houses and lands from their owners by means of some secret lien or trust of which they know nothing, by applying the doctrine of constructive notice, and it would be passing strange for us that the right of a sub-contractor for part of a building is of so sacred a character that it shall not be bound by the express limitations of a written contract under which and by force of which his own contract must be performed. His right of lien has no existence at common law or in equity. It is a creature of statute alone, but the statute confers upon him no special prerogative to transcend the most familiar principles of the law and to claim privileges which are denied to all other citizens in the determination of their contract rights. Let it be granted that a contractor as well as the owner has power to bind the building by a lien for work and materials, we have never yet held that he may confer that right upon a merc sub-contractor under him when, by the terms of his own contract, he does not possess the right himself. The question is one of first impression. Heretofore it has never been before us. It is with us now, and we are at liberty to decide it in accordance with our views of right and justice, and with those principles of the interpretation and administration of contracts between citizens which we unfailingly apply in all other cases. In an old case decided many years ago by the District Court of Allegheny County (Campbell v. Scaife, 1 Phila. 187) the same conclusion we have reached was expressed and applied. The decision is of no binding authority upon this court, but the reasoning of the opinion is of such clearness and force that some of it may well be repeated here. The learned court says: "The owner contracts with the builder to erect a house on certain terms, and the builder makes a sub-contract with a materialman to supply the materials. The chain of relationship consists of two links, the second of which hangs by the first, and will bear no greater weight. The sub-contractor comes in by reason of his direct contract relation to the builder, and the right of lien of the former for his claim is, pro tanto, substitutionary to that of the latter. As against the owner, the terms of the original contract, and as against the builder, the terms of the sub-contract, limit and qualify the lien of the sub-contractor, so as to prevent his claim from abating the terms of either contract. The allowance of any lien at all to a sub-contractor is a special privilege granted only in case of buildings; and it is not unreasonable to require him to look at the principal contract, to ascertain whether it is such as to justify him in becoming a contractor under it. The argument that the law and the principal contract make the builder the agent of the owner proves nothing. Suppose the fact to be so, still his agency is only special, limited by the terms of the contract. He is to employ men to build the house in the manner and on the terms there indicated. For anything beyond that he exceeds his authority, and does not bind his principal.' In the case of Dickinson College v. Church, 1 Watts & S. 462, Mr. Justice Rogers in delivering the opinion of this court said: "It is a great mistake, which cannot be too soon corrected, if any suppose that when a person undertakes to furnish lumber to a contractor on the credit of a building, that he is relieved from inquiring into the nature of the building he trusts, whether it is brick or frame, whether it is a one or three story house, or whether it is large or small; that in short he can furnish materials enough to complete a three-story house of the largest dimensions, when the materials are intended for a house of the most inferior description. The very fact that he credits the building and does not depend altogether on the personal responsibility of the contractor should, it would seem, suggest the propriety of making the necessary inquiries as to the size, materials and nature of the intended erection." In the State of California it has been held by their court of last resort in two cases that the right of the sub-contractor to lien is controlled by the terms of the original contract, and he | third, fourth, fifth and sixth assignments of is presumed to have notice of the terms of that error. contract. Shaver v. Murdock, 36 Cal. 298; Henley v. Wadsworth, 38 Cal. 356. Entertaining these views, we sustain the Judgment reversed. Williams and Mitchell, JJ., absent. NEW YORK COURT OF APPEALS. PEOPLE of the State of New York, ex rel. | vation of life without due process of law by William KEMMLER, Appt., v. Charles F. DURSTON, Agent and Warden of Auburn Prison, Respt. (....N. Y.....) reason of such illegal sentence and judgment of the court. The writ was duly served upon the respondent, who made return thereto that he detained the relator in his custody as agent and warden of the prison by virtue of the judgment of the court of oyer and terminer, held in the County of Erie, whereby the relator 1. The Legislature has power to change was duly convicted of the crime of murder in the manner of inflicting the penalty of death. the first degree, and also by virtue of a war2. The testimony of expert or other wit- rant duly delivered to him under the hand and nesses is not admissible to show that in carry-seal of a justice of the supreme court presiding ing out a law enacted by the Legislature some provision of the Constitution may possibly be violated. 3. Whether the use of electricity as an agency for producing death constitutes a more humane method than hanging for executing the judgment of the court in capital cases is a question for the determination of the Legislature. The determination of that question in the affirmative, after careful deliberation, is conclusive upon the courts, and therefore such method, when adopted, cannot be declared a violation of the constitutional provision against cruel and unusual punishment. (March 21, 1890.) APPEAL by relator from an order of the The case fully appears in the opinion. Mr. Charles F. Tabor, Atty-Gen., with O'Brien, J., delivered the opinion of the court: The respondent is the agent and warden of the state prison of Auburn, and the relator, being in his custody, applied for a writ of habeas corpus to inquire into the cause of detention, which was made returnable by the officer granting it before the County Judge of Cayuga County. The relator, in his petition for the writ, stated that the cause or pretense of the imprisonment complained of was that after his indictment and trial for the crime of murder in the first degree and his conviction thereof in the court of oyer and terminer he was sentenced by that court to undergo a cruel and unusual punishment for that crime, contrary to the Constitution of this State and of the United States, and was threatened with depri at the said court of oyer and terminer where the relator was convicted, which recited the indictment, trial, conviction and sentence of the relator and directed the respondent to carry the same into effect in these words: "Now, therefore, you are hereby ordered, commanded and required to execute said sentence upon him, the said William Kemmler, otherwise called John Hort, upon some day within the week commencing on Monday, the twenty-fourth day of June, in the year of our Lord one thousand eight hundred and eighty-nine, and within the walls of Auburn state prison, or within the yard or enclosure adjoining thereto, by then and there causing to pass through the body of him, the said William Kemmler, otherwise called John Hort, a current of electricity of sufficient intensity to cause death, and that the application of such current of electricity be continued until he, the said William Kemmler, otherwise called John Hort, be dead." This command and direction to the warden was in accordance with the sentence actually passed upon the relator after conviction, in these words: "The sentence of the court is, that within the week commencing on Monday, the twenty-fourth day of June, in the year of our Lord one thousand eight hundred and eighty-nine, and within the walls of Auburn state prison, or within the yard or enclosure adjoining thereto, the defendant suffer the punishment of death, to be inflicted by the application of electricity, as provided by the Code of Criminal Procedure of the State of New York, and that in the mean time the defendant be removed to, and until the infliction of such punishment be kept in solitary confinement in, said Auburn state prison." On the return day of the writ, the relator and the respondent appeared by counsel before the county judge, and by agreement of counsel the production of the relator, pursuant to the command of the writ, was waived. Counsel for the relator then offered to prove that the infliction of the penalty named in the sentence, namely, death by the application of electricity, is a cruel and unusual punishment within the meaning of the Constitution, and cannot therefore be lawfully inflicted. The attorney general objected, on the ground that the court | intended as a check upon the power of Par- It is not denied that the court had such jurisdiction, providing that the Legislature had power under the Constitution to enact chap. 489 of the Laws of 1888, entitled "An Act to Amend 491, 492, 503, 504, 505, 506, 507, 508, 509 of the Code of Criminal Procedure in Relation to the Infliction of the Death Penalty, and to Provide Means for the Infliction of Such Penalty." Prior to the passage of this Statute, the punishment by death in every case was to be inflicted by hanging the convict by the neck until he was dead. This provision of law was changed by the Amendments of the Code above referred to, and now the section (505) reads as follows: "The punishment of death must in every case be inflicted by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict is dead." The only question involved in this appeal is whether this enactment is in conflict with the provision of the State Constitution which forbids the infliction of cruel and unusual punishment. Const. art. 1, § 5. The history of the times in which this provision assumed the form of a law shows that it was, after all, intended to be little more than a declaration of the rights of the subject. The English people were about to place upon the throne, made vacant by revolution, a foreign prince, whose life had been spent in military pursuits, rather than in the study of constitutional principles and the limitations of power as then understood in the country he was to govern. This was considered a favorable opportunity to enact, in the solemn form of a statute, a declaration of the principles upon which the people desired the government to be conducted. But whatever the purpose of this Statute was in the country where it originated, we think that its presence in the Constitution of this State confers power upon the courts to declare void legislative Acts prescribing punishments for crime, in fact cruel and unusual. This is the power that is invoked against the amendments to the Code of Criminal Procedure above referred to, by the learned counsel for the relator, in an argument addressed to us interesting on account of its great political and scientific research. We entertain no doubt in regard to the power of the Legislature to change the manner of inflicting the penalty of death. The general power of the Legislature over crimes, and its power to define and punish the crime of murder, is not and cannot be disputed. The amendments prescribed no new punishment for this offense. The punishment now, as before, is death. The only change made is in the mode of carrying out the sentence. The infliction of the death penalty in any manner must necessarily be accompanied with what might be considered in this age some degree of cruelty, and it is resorted to only because it is considered necessary for the protection of society. The Act on its face does not provide for any other or additional punishment. This provision was borrowed from the English Statute, passed in the first year of the reign of William and Mary, being chapter 2 of In behalf of the relator this legislation is the Statutes of that year, entitled An Act assailed in no other way than by attempting to Declaring the Rights and Liberties of the Sub- show that the new mode of carrying out a ject, and Settling the Succession of the Crown," death sentence subjects the person convicted to usually known as the Bill of Rights. It enacts, the possible risk of torture and unnecessary among other things, that "excessive bail ought pain. This argument would apply with equal not to be required, nor excessive fines imposed, force to any untried method of execution, and, nor cruel and unusual punishment inflicted." when carried to its logical results, would proWhen this Statute was made part of the Con- hibit the enforcement of the death penalty at all. stitution of the United States, the word "shall" Every Act of the Legislature must be prewas substituted for the word "ought," and in sumed to be in harmony with the fundamental this form it first appears in the Constitution of law until the contrary is clearly made to apthis State, adopted in 1846. It is not very pear. Metropolitan Board of Ercise v. Barrie, clear whether the provision as it stands in our 34 N. Y. 666, 668; People v. Briggs, 50 N. Y. Constitution was intended as an admonition to 553, 558; People v. Home Ins. Co. 92 N. Y. 328, the Legislature and the judiciary, or as a re- 344; People v. Albertson, 55 N. Y. 50, 54; Peostraint upon legislation inflicting punishment ple v. Gillson, 109 N. Y. 389, 397, 12 Cent. Rep. for criminal offenses. When the Statute re- 616; People v. King, 110 N. Y. 418, 1 L. R. ferred to was enacted in England, it was not A. 293. If it cannot be made to appear that a law is relator as an unauthorized expression of the in conflict with the Constitution by argument, | legislative will. The Legislature proceeded to deduced from the language of the law itself or change the mode of executing the sentence of from matters of which a court can take judi- death with care and caution and unusual delibcial notice, then the Act must stand. The tes-eration. It would be a strange result, indeed, timony of expert or other witnesses is not ad- if it could now be held that its efforts to devise missible to show that in carrying out a law a more humane method of carrying out the enacted by the Legislature some provision of sentence of death in capital cases have culmithe Constitution may possibly be violated. nated in the enactment of a law in conflict with People v. Albertson, supra; People v. Draper, the provisions of the Constitution prohibiting 15 N. Y. 532; Re New York Elevated R. Co. 70 cruel and unusual punishments. Whether the N. Y. 327. use of electricity as an agency for producing death constituted a more humane method of executing the judgment of the court in capital cases, was a question for the determination of the Legislature. It was a question peculiarly within its province, and the means at its com mand for ascertaining whether such a mode of producing death involved cruelty, within the meaning of the constitutional prohibition, were certainly as satisfactory and reliable as any that are consistent with the limited functions of an appellate court. The determination of the Legislature of this question is conclusive upon this court. The Amendment to the Code of Criminal Procedure changing the mode of inflicting the death penalty does not upon its face, nor in its general purpose and intent, violate any provision of the Constitution. The testimony taken by the referee, while not available to impeach the validity of the legislation, may, we think, be regarded as a valuable collection of facts and opinions touching the use of electricity as a means of producing death, and for that reason as part of the argu ment for the relator, but nothing more. If the Act upon its face is not in conflict with the Constitution, then extraneous proof cannot be used to condemn it. The history and origin of the enactment we are now considering may very properly be referred to to test its validity, aud ascertain its true intent and proper interpretation. It has been said that courts will place themselves in the situation of the Legislature, and by ascertaining the necessity and probable objects of the passage of a law, give effect to it, if possible, according to the intention of the lawmakers, when that can be done without violating any constitutional provision. People v. Columbia Co. 43 N. Y. 130. Chapter 352 of the Laws of 1886, entitled "An Act to Authorize the Appointment of a Commission to Investigate and Report to the Legislature the Most Humane and Approved Method of Carrying into Effect the Sentence of Death in Capital Cases," provided for the appointment of a commission consisting of three eminent citizens, who were named therein, and required them to investigate and report to the Legislature on or before the fourth Tuesday of January, 1887, the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases. To enable this commission to make its investigation most thorough, the Legislature extended the time for it to report for a year longer by chapter 7 of the Laws of 1887. This commission early in the legislative session of 1888 made its report accompanied with a proposed bill which the Legislature afterwards, and dur ing the same session, enacted, and this is the Statute which is now attacked in behalf of the We have examined this testimony and can find but little in it to warrant the belief that this new mode of execution is cruel, within the meaning of the Constitution, though it is cer tainly unusual. On the contrary, we agree with the court below that it removes every reasonable doubt that the application of electricity to the vital parts of the human body, under such conditions, and in the manner contemplated by the Statute, must result in instantaneous, and consequently in painless, death. The order appealed from should be affirmed. All concur. (February 20, 1890.) APPEAL by defendant from a judgment of the Circuit Court for Oakland County in 1. A statute requiring existing railroad companies to build, at their own expense, a crossing for any individual whose residence is separated by the railroad from a pub-favor of plaintiffs in an action to recover the lic highway is, if such crossing is to be considered statutory penalty for refusal to erect a residence as for a public use, unconstitutional in taking crossing. Reversed. the property of the company for public use without compensation. 2. A railroad company cannot be compelled to erect and maintain crossings at its own expense for persons whose residences The facts are fully stated in the opinion. Messrs. E. W. Meddaugh and George Jerome, for defendant, appellant: The Act infringes § 14, art. 18, of the Constitution of Michigan, which provides that "the A railroad corporation is not subject to any other or different rule respecting its duty to either individuals or the public than a natural person would be, in the same conditions. Grand Rapids, N. & L. S. R. Co. v. Grand Rapids & I. R. Co. 35 Mich. 273. If the owner of land has the right to a crossing, the jury should take into account the expense of constructing and maintaining such crossings in awarding damages for the taking of the right of way. Atchison & N. R. Co. v. Gough, 29 Kan. 94; Kansas Cent. R. Co. v. Allen, 22 Kan. 285. The right of crossing, in the absence of a statutory grant existing at the inception of the railroad company's title, is open to question. Jackson v. Rutland & B. R. Co. 25 Vt. 159. Messrs. S. V. R. Trowbridge, Atty-Gen., and George W. Smith, Pros. Atty., for plaintiffs, appellees. Grant, J., delivered the opinion of the court: The people bring their suit under Act No. 165, Laws 1889, to recover a penalty for the failure of the defendant to provide an open, unobstructed residence crossing, suitably guarded, in front of the residence buildings of one Henry Fall, in the Township of Bloomfield, Oakland County. Judgment was rendered against the defendant for $140, and it appeals. The following facts were stipulated, and constitute all the evidence that was introduced upon the trial, viz.: roads, the Honorable John T. Rich, on the 16th day of November, A. D. 1889, made an examination, finding and order on complaint of said Fall, all substantially as alleged in the declaration, a copy of which order was duly served upon the defendant Company as alleged, requiring it, in pursuance of the provisions of 15, art. 4, of Act No. 198, Sess. Laws 1873, as amended by Act No. 165, Sess. Laws 1889, within ten days from said date, to construct an open, unobstructed residence crossing, suitably guarded, substantially as provided for highway and street crossings, and thereafter to efficiently maintain the same, so as to give Henry Fall a near, safe and convenient outlet or passageway from his residence or real property over defendant's track to the highway running in front of the same, to wit, at the place of residence of said Henry Fall, on the line of defendant's railway as aforesaid. (7) That defendant has neglected and refused, and still neglects and refuses, to comply with such order, substantially as alleged in plaintiff's declaration." That portion of Act No. 165, above mentioned, imposing upon railroad companies the duty to provide and maintain these crossings, reads as follows: "And in cases where a railroad is immediately adjacent to or laid upon a highway, . open, unobstructed residence crossings, suitably guarded, substantially as are provided for highway and street crossings, shall be provided and maintained by the railroad corporation operating said railroad: provided, the same shall be so ordered by the railroad commissioner." The defendant contends that this provision infringes section 14, art. 18, of the Constitution of Michigan, which provides that "the property of no person shall be taken for public use without just compensation therefor." poses additional burdens and expense upon railroad companies. It requires them to construct and maintain residence crossings at their own expense, in addition to highway and farm crossings. Except as imposed by statute, no obligation exists on the part of a railroad company to give a right of way over its road to private individuals. While it is a quasi public corporation, still, in the holding and use of its land, it is entitled to the same protection as are natural persons. The argument for plaintiff is: (1) It is an ex"(1) That the defendant is a corporation, and ercise of the general police power over railowns and operates a railroad between the City roads. (2) It is an exercise of the police power of Detroit and the City of Grand Haven, in the regulating the special duties imposed upon State of Michigan, which runs through the railroad companies. It is apparent that this Township of Bloomfield, in the County of Oak-provision of the Statute, enacted in 1889, imland, in said State. (2) That at a point on defendant's road about one mile northerly of the Village of Birmingham, in said County of Oakland, one Henry Fall owns a farm on the northerly side of said road, and has his residence there adjacent to the said railroad, and the railroad is between his residence and the usually traveled public highway, and immediately adjacent to said road, and is parallel to said road. (3) That said Henry Fall has a farm crossing, which was provided and is maintained by the defendant Company, with suitable openings and gates thereto, affording him ingress and egress across defend- 1. The police power of the State over railant's road, between his residence and the high- roads includes all those regulations which are way. (4) That the defendant and said Henry necessary for the safety and protection of perFall derived title to their said real properties sons and property in transit over them, or crossindependently from the same common remote ing them upon the public highways. The State grantor, the said Fall having purchased since may therefore require the use of air-brakes, the defendant's right of way was obtained and its erection of fences and cattle-guards, the stoproad constructed. (5) That the defendant Com-ping of trains at the crossings of other railroads, pany has been in possession of the right of way through said Township of Bloomfield, adjacent to said Fall's farm and residence, and in operation of its railroad, for more than forty years last past. (6) That the commissioner of rail The following propositions can be regarded as well settled: the use of bells and whistles, and many other things which will readily suggest themselves. This principle is commended by good sense, and is too well established to require the citation of authorities. |