Said Act 92 of 1908 reads as follows: "An act "To amend Act No. 35 of 1894 entitled 'An act to amend and re-enact section 3925 of the Revised Statutes of Louisiana, and to repeal Act No. 98 of 1888 entitled "An act to amend and re-enact section 3925 of the Revised Statutes of the State of Louisiana," It is null, he says, in that it purports to amend a statute which had been repealed, and was therefore nonexistent, and, as such, insusceptible of amendment; and it is unconstitutional in point of form, he says, in that. first, it creates a crime without having expressed in its title the purpose of so do approved July 12, 1888,' by making provisioning; second, it has several objects; third, it for a standard measure for oysters arriving in sacks at the different ports and cities in the state of Louisiana of more than 50,000 inhabitants, and for the inspection of such oysters and the fees for such inspection. "Section 1. Be it enacted by the General Assembly of the state of Louisiana, that section 3925 of the Revised Statutes be and the same is hereby amended and re-enacted so as to read as follows: "There shall be in this state a dry measure to be known under the name of barrel which shall, except for the purchase and sale of oysters contain three and one-quarter bushels according to the American standard, and shall be divided into half and quarter barrels. But for the sale of oysters baskets shall be used which shall contain one-halt of the standard barrel, which standard barrel contains three and one-quarter bushels according to this section, said basket to be stamped according to law, provided that all oysters arriving in sacks at any port or city in the state of Louisiana of more than fifty thousand inhabitants, from any other port, city or place within or without the state of Louisiana shall be inspected by the inspector of weights and measures for the respective districts or parishes where said oysters arrive if there be any such inspector at said port or city, and in the parish of Orleans by the inspector of the district where said oysters are unloaded, and each sack must contain one-half of the standard barrel mentioned in this section, and after inspection, if found correct, shall be stamped by such inspector, for which inspection and the stamping the inspector making the inspection shall be entitled to charge and collect from the buyers of said oysters a fee of one-quarter of one cent per sack, payable immediately after such inspection and stamping, and the inspector shall issue a certificate of inspection which shall be 'prima facie' evidence of such inspection and of the correct measurements of the oysters arriving in sacks in accordance with the provisions of this act. "Sec. 2. Be it further enacted, etc., that any buyer or seller importer or exporter of oysters in sacks or any other person guilty of violating any of the provisions of this act shall be deemed guilty of a misdemeanor and shall be punishable by fine not exceeding twenty-five dollars or imprisonment not exceeding thirty days or both at the discretion of the court having jurisdiction. "Sec. 3. Be it further enacted, etc., that the respective inspectors of weights and measures throughout the state now or hereafter appointed or elected in accordance with law shall have the power to appoint or employ one or more assistants at their own cost and expense, such assistants to be vested with the same powers and subject to the same obligations as the inspectors themselves, provided said inspectors shall be responsible for the acts of their assistants in the performance of their public du ties. "Sec. 4. Be it further enacted, etc., that Act No. 98 of 1888, entitled 'An act to amend and re-enact section 3925 of the Revised Statutes of the state of Louisiana,' approved July 12, 1888, and all laws or parts of laws in conflict or inconsistent herewith, be and the same are hereby repealed." The relator assails the validity of this seeks to amend Act 35, p. 38, of 1894 by mere reference to its title; fourth, it is a special and local law, and yet no notice of the intention to apply for its passage was published. The act, he says, is unconstitutional in point of substance, in that, first, it fixes a standard of measures different from that which has been fixed by Congress; and, second, it deprives him of his right to the equal protection of the laws and of his right to liberty and the pursuit of happiness. The prosecution does not deny that a statute purporting to amend a repealed statute— that is to say, which undertakes to do an impossible thing, to amend something that does not exist—is null, but denies that Act 35 of 1894, which this statute purports to amend, was ever repealed. There can be no serious question but that, in so far as Act 35 of 1894 has reference to oysters, it was repealed by Act 153, p. 274, of 1902. Exactly and precisely the same ground that is covered by it, in so far as having reference to oysters, is covered by section 17 of said Act 153 of 1902; and the latter act contains a repealing clause which repeals all laws on the same subject-matter. In so far, however, as not having reference to oysters, Act 35 was not repealed, but remained a perfectly valid statute and could be amended. The title of our Act 92 expresses the intention of amending it "by making provision for a standard measure for oysters arriving in sacks." It does not express the intention of amending it in any other particular. It does not express the intention of amending it by making provision for a standard measure for the buying and selling of oysters. Those provisions, therefore, in the body of the act, which relate to a standard measure for the buying and selling of oysters, do not respond and are, for that reason. null and void, and to anything expressed in the title of the act, as if not written. This, however, does not necessarily entail the nullity of the provision for a standard measure for oysters arriving in sacks. The rule is that a statute may be valid in part and invalid in part, and that the invalid part may be disregarded altogether, and the other part constitute a valid statute, if the two parts are not so intimately connected as to raise a presumption that the Legislature would not have enacted the one without the other. 26 A. & E. E. 595. In the present instance the part which corresponds with the title and which it is claimed is valid was intended to be an BREAUX, C. J. (dissenting). The object expressed in the title was the adoption of a standard measure for oysters. The other expressions in the title are subordinate and incidental to the object. They are related to the object. They relate mainly to the inspection and to the fees of inspection. They relate, also, to the repeal of prior acts named. The title indicates a specific purpose irrespective of prior acts which it purports to amend. The reference to the amendment of a prior act, which was not amendable, is the merest brutum fulmen. The words of the title are: "By making provision for a standard measure for oysters arriving in sacks." That is, the provision made in the act in question would have the effect of amending Act 35 of 1894, if it had not been repealed, and it repeals Act 98, p. 157, of 1888. The first-cited act above was not an ex the act as a proviso to it. The Legislature Reference to it leaves intact the independent provision for standard measure for oysters, mentioned in the title. The fact that incidentally the lawmaking power refers to a repealed act does not militate against that part of the title which is complete in itself and independent of all idea of repeal. Passing from the title to the act: Eliminating from the first section of Act 92 of 1908 the reference to the asserted amendment, which was not an amendment, the act remains expressive of the legislative intent. The reference amounts to nothing. It has no effect, and should not be given an effect only to destroy a statute. An act may be legal in part and illegal in part. We have noted that the illegal and void part in this instance is entirely separate and There was at the time of the adoption of distinct from the purpose of the act. this Act 92 of 1908, and there is to-day, no law establishing a standard measure for the buying and selling of oysters. Act 153 of 1902, which repealed Act 35 of 1894, in so far as having reference to oysters, was itself expressly repealed by Act 52, p. 113, of 1904, and the latter act made no provision for a standard measure for the buying and selling of oysters. We might mention here that Act 63, p. 88, of 1902, re-enacting Act 35 of 1894, was repealed, in so far as having reference to oysters, by Act 153 of 1902, in the same way precisely, and for the same reason, as was Act 35 of 1894. Act 153 was a later law than Act 63, and it repealed all laws on the same subject-matter. It is therefore ordered, adjudged, and decreed that the judgments appealed from be set aside, and that the relator be released without day, or, if under bond, that his The act is not in all respects broader than its title. There is enough in the title to justify the main provisions of the statutes. In other words, it is broad enough to in clude the main purpose of the act, which is "provision for a standard measure of oysters arriving in sacks," and incidentally extend ed so that they shall not be sold in deficient measure. The standard measure referred to includes the necessity of complying with the statute regarding the standard measure which must be observed in bringing the oysters in the port for sale. The majority opinion has not decided the point raised by defendant that the act creates a crime without having expressed in its title the purpose of so doing, except to the extent that it is inferable by the conclusion reached. As in this case the penalty in the body of the act rendered effective the terms of the statute. See State v. Ackerman, 51 La. Ann. 1223, 26 South. 80. The act was rendered effective by fixing a penalty for its violation; otherwise, it would have been a useless statute. The appellate court of Kentucky, in a well-considered opinion (in Kentucky there is a law similar to ours; that is, that the object shall be expressed in the title) held that: "It should receive a reasonable construction, looking to the evil intended to be removed, and should be applied to such acts of the Legislature alone as are obviously within its spirit. None of the provisions of a statute should be regarded as void under said section, where they all relate directly or indirectly to the same subject, having a natural connection and not foreign to the subject expressed in its title." Phillips v. Bridge Co., 2 Metc. (Ky.) 219. The construction should be reasonable, and not too technical. Johnson v. Higgins, 3 Metc. (Ky.) 566. A number of decisions are referred to in the Century Digest (under title "Statute") to the same effect. I dissent. On the State's Application for a Rehearing. PROVOSTY, J. We deem it unnecessary to add anything to what is said in the opinion with regard to whether or not the valid and invalid parts of the statute in question, are, or are not, so intimately connected as to be severable. To the contention that the title of the act would be sufficient if it read simply, "An Act to amend Act 35 of 1894," we answer that no one could doubt it after the decisions of this Court in State v. Brown, 41 La. Ann. 771, 6 South. 638, and other cases; but that the title does not read in that way. It reads: "To amend" &c. "by" &c.,-specifying the particular amendment proposed to be made. This announcement of the intention to make a particular specified amendment disclaims impliedly the intention of making any other. If we suppose that a statute regulating the police of cattle is desired to be amended by requiring cows to be branded, the title of the amending act would answer, if reading simply: "An act to amend" the statute in question; but not if reading: "An Act to amend" the statute in question "by adding a provision for the branding of sheep." By the latter title an intention to add a provision for the branding of cows would not only not be expressed, but would be impliedly disclaimed. Rehearing refused. Where, in an action for wrongful death of plaintiffs' ancestor, the court sustained a demurrer to the count charging ordinary negli gence, leaving only a count charging gross, willfailure to use ordinary care, was willful and ful, and wanton negligence, an instruction that wanton negligence, was error. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 13; Dec. Dig. & 11.*] Appeal from Circuit Court, Clay County; J. T. Dunn, Judge. Action by Juanita Free and others against the Southern Railway Company in Mississippi to recover for the wrongful death of their ancestor, Monroe Free, who was run over and killed by defendant's train while on the track. Judgment for plaintiffs, and defendant appeals. Reversed and remanded. Plaintiffs' amended declaration contained two counts, which concluded as follows: (1) "Plaintiffs therefore charge that the servants of the defendant in charge of said train, by which said Monroe Free was so killed, were guilty of gross, willful, and wanton negligence in the running of said train which did the killing, at the time of said killing, and that such gross, willful, and wanton negligence of said servants was the direct cause of the injury which resulted in his death." (2) "Plaintiffs therefore charge that the servants of the defendant in charge of said train, by which said Monroe Free was sokilled, were guilty of negligence in the running of said train which did the killing, at the time of the killing, and that such negligence of said servants was the direct cause of the injury which resulted in his death." There was a demurrer to the amended declaration, which was overruled as to the first count and sustained as to the second. So the trial was had upon the first count, to which two pleas were filed; the first being a plea of the general issue, and the second plea charging that deceased contributed to the injuries that caused his death by gross and reckless negligence and failed to exercise reasonable caution while walking on the tracks of the defendant. The case was tried, and resulted in a verdict of $1,000 for the plaintiffs. On appeal, the granting of instruction No. 1, which charges the jury that "it was the duty of said servants to use ordinary care to see said Monroe Free, and to use ordinary care to prevent his injuries by the running of said train, and if the jury further believes from the evidence that said servants did not use such ordinary care to discover said Free, and to protect him from injury, they are guilty of willful and wanton negligence," was assigned as error. Catchings & Catchings, for appellant. Critz, Kimbrough & Critz, for appellees. to furnish him with transportation over its lines at the same rate and under the same conditions that it furnished same to the general public. Permitting a minister of the gospel, or any person, to travel at a rate lower than that given the general public is a mere gratuity, which appellant can withhold at its pleasure, and even a custom so to do imposed upon it no obligation to give such permission. of action, and the judgment of the court The declaration, therefore, states no cause below is reversed, and the cause dismissed. SMITH, J. After sustaining a demurrer to the second count of appellee's amended declaration, thereby holding that the appellant would be liable for the death of Monroe Free only in the event his death was caused by the willful or wanton negligence of ap pellant, the correctness of which ruling is not now before us, the court very singularly charged the jury that, if appellant's employés failed to use ordinary care on the occasion in question, such failure would constitute willful and wanton negligence. A failure to use ordinary care and willful and wanton neg (Supreme Court of Mississippi. Oct. 25, 1909.) ligence are very different things, and are not equivalents of each other. For the error in this instruction, the judgment of the court below is reversed, and the cause remanded. (95 Miss. 749) (96 Miss. 109) SORIA v. HARRISON COUNTY. (No. 13,988.) 1. DEEDS ( 155*)-CONDITION SUBSEQUENT— CREATION-REVERSION. To create a condition subsequent, the breach of which will cause the land conveyed to revert, it must clearly appear that such the grantor's intention. was [Ed. Note. For other cases, see Deeds, Cent. Dig. 88 488-495; Dec. Dig. § 155.*] ILLINOIS CENT. R. CO. v. DUNNIGAN. 2. DEEDS (890*)-CONSTRUCTION-PARTIOU (No. 13,957.) (Supreme Court of Mississippi. Oct. 18, 1909.) CARRIERS (§ 249*)-CARRIAGE OF PASSENGERS -FARES-MINISTERS OF THE GOSPEL. Permitting a minister of the gospel, or any person, to travel at a rate lower than that given to the general public, by a carrier, is a mere gratuity, which the carrier can withhold at its pleasure, and even a custom to allow a lower rate imposes upon it no obligation to give such permission. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 999; Dec. Dig. § 249.*] LAR WORDS. Words in a deed are to be taken most strongly against him who uses them. [Ed. Note.-For other cases, see Deeds, Cent. Díg. § 235; Dec. Dig. § 90.*]' 3. DEEDS (8 155*)-CONDITION SUBSEQUENT REVERSION-SUFFICIENCY OF LANGUAGE. for the The provisions of a deed that "the lands hereinafter described shall be kept by the said board of police for the use of a courthouse and jail, for the benefit of said county," and "to have and to hold the same * use of said county as aforesaid," do not create a condition subsequent, so as to cause the land to revert on the county removing the courthouse and jail and exposing the property for sale. [Ed. Note.-For other cases, see Deeds, Cent. Action by Sam Dunnigan against the Ill-Dig. §§ 488-495; Dec. Dig. § 155.*] nois Central Railroad Company. Judgment Appeal from Chancery Court, Harrison for plaintiff, and defendant appeals. Re- County; T. A. Wood, Chancellor. versed and dismissed. Suit by Harrison County against Margaret Appeal from Circuit Court, Panola County; W. A. Roane, Judge. Mayes & Longstreet, for appellant. Shands Soria to quiet title to land. From a decree & Montgomery, for appellee. for complainant, defendant appeals. Affirmed. V. A. Griffith, for appellant. W. G. Evans and T. M. Evans, for appellee. SMITH, J. It being the custom of appellant to give ministers of the gospel a permit to travel over its lines at the reduced rate of two cents per mile, appellee, being a minister of the gospel of the Colored Methodist Episcopal Church of America, applled to appellant for such a permit, which appellant refused to give him, assigning no reason therefor. Thereupon this suit was instituted by appellee to recover damages for such refusal; the declaration alleging that the same was a willful, wanton, oppressive, and unlawful discrimination against him. From a judgment awarding damages to appellee, this appeal is taken. The declaration is challenged on the ground that it shows no cause of action. The only duty which appellant owed to appellee was SMITH, J. In 1845 appellee, being in possession of the land in controversy and having built thereon a courthouse and jail, obtained from W. H. Tegarden the following deed to his interest therein: "This indenture, made and entered into this 31st day of March, A. D. 1845, between William H. Tegarden, of the first part, and the board of police of Harrison county, state of Mississippi, of the second part, witnesseth: That the said Tegarden, for and in consideration of the sum of one dollar in hand paid by the said board of police, and in further consideration that the land hereinafter described shall be kept by said board of police for the use of a courthouse and jail for the benefit me. The foregoing views are supported by many authorities, among which is First M. E. Church v. Old Columbia Public Grant Company, 103 Pa. 608, approved by the Supreme Court of the United States in Stuart v. Easton, 170 U. S. 401, 18 Sup. Ct. 657, 42 L. Ed. 1084, wherein the court said: "Whatever words are relied on as creating a condition must not only be such as of themselves would create a condition, but must be so connected with the grant as to qualify or restrain it. Laberee v. Carleton, 53 Me. 211. It was said by Mr. Chief Justice Bigelow in Packard v. Ames, 16 Gray (Mass.) 327: 'We know of no authority by which a grant declared to be for a special purpose, without other words, can be held to be a condition. On the contrary, it has always been held that such a grant does not convey a conditional estate, unless coupled with a clause for the payment of money or the doing of some act by the grantee, on which the grant is clearly made to depend.' To make the estate conditional the words must clearly show such intent. Cook v. Trimble, 9 Watts (Pa.) 15. Turning to the writing executed by Wright, we see that he absolutely and un of said county, hath bargained and sold, and | feiture, to maintain on the land for all time by these presents does hereby grant, bar- a courthouse and jail. Since, under the maxgain, sell, and convey, to the said board of im "Verba fortius accipiuntur contra proferpolice, in trust as aforesaid, all his right, entem," we must construe the words of this title, and interest in and to the north half deed most strongly against the grantor, it of square two hundred and thirty-two (232), follows that no condition subsequent, the in Mississippi, to have and to hold the same breach of which would cause a reversion, to the said board of police, and their suc- was thereby created. cessors in office, for the use of said county as aforesaid, for and from me, my heirs, and all persons claiming through, by, or under In testimony whereof, the said Tegarden hath hereunto set his hand and seal the day and date first above written. W. H. Tegarden. [Seal.]" Appellee continued to use and occupy this land, maintaining thereon a courthouse and jail, until the year 1903, when it removed its courthouse and jail therefrom, ceased to use the land for any county purpose, and offered same for sale. This sale was prevented by appellant asserting title by reversion under the deed from W. H. Tegarden to a four-fifths undivided interest therein. Thereupon appellee filed its bill of complaint in the court below, praying that it be decreed to be the owner of the land and that appellant be enjoined from asserting any claim thereto. Appellant filed an answer and cross-bill, alleging in effect that the deed from Tegarden conveyed the land to appellee upon condition that it be used for a courthouse and jail, and that upon its ceasing to be so used the title would revert to the said Tegarden. She further alleged that she was the owner of this reversion, alleged to be an undivided four-conditionally covenanted to convey the premfifths interest, under a deed to the land in ises in fee simple, clear of all incumbrances, controversy, executed and delivered to her to the vendees, their heirs or assigns, whenby Tegarden in 1876, and prayed for a parti- ever requested by them. No restraint was tion. From a decree dismissing the cross-imposed on an alienation of the land. No bill, decreeing that appellee was the owner of the land, and enjoining appellant from asserting any claim thereto, this appeal is taken. This deed does not contain any language such as is usually employed to create a condition subsequent, the breach of which would cause the land to revert to the grantor, such as an express provision to that effect, or apt technical words, such as "provided," "so long as," "until," etc. In order that a condition subsequent may be created, the breach of which will cause the land conveyed to revert to the grantor, it must clearly appear that such was the grantor's intention. Thornton v. Natchez, 88 Miss. 1, 41 South. 498. The words in this deed, "that the land hereinafter described shall be kept by said board of police for the use of a courthouse and jail for the benefit of said county," and the words "to have and to hold the same construction of a reservoir, nor any work on the ground, was required to precede the right to demand a deed. No clause provided for a forfeiture or termination of the estate in case the land ceased to be used as a reservoir. No right of re-entry was reserved by the grantor on any contingency. No technical word to create a condition was used. No other words were used equivalent thereto, or proper to create a condition. The authorities show that the recital of the consideration and a statement of the purpose for which the land is to be used are wholly insufficient to create a conditional estate." Affirmed. (95 Miss. 872) QUACKENBOSS et al. v. INSURANCE CO. OF NORTH AMERICA, OF PHILADELPHIA. (No. 13,906.) (Supreme Court of Mississippi. Oct. 25, 1909.) 1. INSURANCE (§ 402*)-MARINE INSURANCECONTRACT-"EXTERNAL VIOLENCE." * for the use of said county as aforesaid," are quite as consistent with an intent to repose a trust and confidence as they are with an intent to impose a condition which would compel the county, on pain of for The "external violence" intended by a marine policy, exempting the insurer from liability for loss occasioned by the bursting of the boil |