trusted by the defendant with the duty of seeing that the ways, works, machinery, or plant were in proper condition."

Count 4: Same as 3, down to and including the statement of the wounds and injuries, and the allegation is that the ladder was defective on and down which plaintiff was endeavoring to descend, and that the defect arose from or had not been discovered and remedied, etc.

Count 5: Same as the third count, down to and including the list of injuries, with the allegation that the injuries were caused by reason of a defect in the condition of the ways, works, etc., and the defect consisted in the fact that the ladder down which plaintiff had to descend was not braced so as to prevent its slipping and falling, with the allegation that the defect arose from or had not been discovered through negligence, etc., as in count 3.

The tenth ground of demurrer to the first count is that said count does not allege any negligence on the part of this defendant in failing to provide a reasonably safe ladder for the purpose of its said business. The sixth ground was as follows: "Because, for aught that the said count shows, the falling of said ladder was caused by extraneous circumstances or the acts of other parties." The eighth ground is because said count does not show that the ladder was provided by this defendant. (11) "Because said count does not show any negligence proximately causing the injuries complained of." The first ground of demurrer is that the counts do not show that the injury was caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the defendant.

Non

in consequence of the falling of the ladder. the count does not, expressly or by averment of facts, connect the falling of the ladder with the alleged defective condition thereof. constat, though defective, it might have fallen from other cause or causes than its defective condition. It is the pleader's duty to at least trace his injury, for proximate cause, to the event and the negligence producing the injury. Had it been averred, in a proper manner, that the falling of the ladder resulted from the defective condition thereof, the objections pointed out by the sixth and eleventh grounds of demurrer would not have been well taken. These should have been sustained.

In order to bring an act or omission of a master within the breach of the duty declared on in the first count, it is obviously essential that the instrumentality alleged to have been out of order, unsafe, or unfit should be one furnished or provided by the master. Construing the count most strongly against the pleader, it was, in this particular, not certainly averred that the ladder in question was one furnished or provided by the master. It cannot be left equivocal and yet withstand appropriate demurrer. It does appear that ladders were a part of defendant's business appliances, etc., and that the duty was to furnish them; but when the pleader came to deal with this particular ladder, complained of as being defective, the means of expression employed was that "a ladder in said business" fell to plaintiff's hurt. The ladder may have been furnished or provided by another than the master, or the master may have been ignorant of its presence, and still the ladder may have been "in said business" on the occasion plaintiff was injured. The eighth ground of demurrer pointed this objection, and it

R. W. Stoutz, for appellant. Fitts & Leigh, should have been sustained. for appellee.

MCCLELLAN, J. The first count is not drawn to declare a liability under the liability act. It is for a breach of the common-law duty in respect of furnishing instrumentalities employed in the business of the master. 1 Labatt, §§ 22a, 23, and notes; Ryan v. Miller, 12 Daly (N. Y.) 77. It is sufficient in its general averments-practically conclusions of negligence. Laughran v. Brewer, 113 Ala. 509, 21 South. 415, among many others. While sufficient in this particular, it is deficient in other particulars. The measure of the master's duty in this regard is not to furnish good and safe instrumentalities, but that he shall furnish instrumentalities reasonably safe and suitable, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances. 1 Labatt, §§ 22a, 23, 24, and authorities cited in notes; Meriweather v. Sayre Min. Co., 49 South. 916. This count declares too high a degree of duty in the premises. The tenth ground of demurrer should have been sustained.

Other grounds assailing the first count seem to proceed on the theory that the count was a declaration under the liability act (Code 1907, §§ 3910-3913), and were, hence, inapt.

Count 2 was withdrawn. The remaining counts, 3, 4, and 5, were all intended, as appellee asserts, to charge liability under subdivision 1 of the liability act. Code 1907, § 3910.

The chief question raised by the demurrers to these counts is whether a ladder connected with or used in the business of a contractor engaged at the time in constructing a building is a part of the ways, works, machinery, or plant of such contractor's business. The plaintiff seems to rest the soundness of his pleading, in this particular, upon the proposition, alone, that the ladder was a part of the "plant," in effect granting that it was not a part of the ways, works, or machinery. The inquiry, then, narrows to this: Whether the ladder was a part of the "plant” of the defendant. If not, the demurrer should have been sustained; otherwise, was well overruled.

diligence required of the master, it cannot be held that the condition described in count 3 was per se, as matter of law, a defect in the plant of the master. Not being per se a defect, the pleader's obligation was to show by averment that in the employment of such an instrumentality, as count 3 describes, the degree of care and diligence required was not met. That which, as described, may not be a defect, cannot be pronounced a defect simply because the pleader denominates it a de

Ala. 220, 12 South. 36, Brooks' Case, 84 Ala. | lack of exercise of the prudence and care and 138, 4 South. 289, Clements' Case, 127 Ala. 166, 28 South. 643, Moore's Case, 128 Ala. 435, 29 South. 659, and Burton's Case, 97 Ala. 240, 12 South. 88; all save the last being adjudications mentioned and expressly doubted in soundness in the more recent announcement made in S.-S. S. & I. Co. v. Mobley, 139 Ala. 425, 36 South. 181. It is evident that our previous decisions, discussed in the Mobley Case, if followed, would have led to a ruling on the demurrer to the sixth count opposed to that pronounced proper therein. Infect. The condition described refutes the short, both the Mobley Case, on the one hand, and the Gross Case and the others mentioned, on the other hand, cannot stand. They are opposed. We therefore conclude, on this question, in accord with the latter, and as appears to us, with the sounder, doctrine of the Mobley Case. A ladder, used by a master in pursuit of his business as a contractor engaged in the construction of a building, is a part of such contractor's plant. See 2 Labatt, § 668e and note; Id. § 671d, and note.

The third count avers that the defect in the ladder consisted in its being "round at the ends," and, in consequence, that said ladder was liable to slip and fall, and that it was not braced to prevent it from slipping and falling. The first ground of the demurrer challenges the count as showing a defect. The degree of care and diligence due from the master, in this connection, is no greater than at common law. 2 Labatt, § 672. Whether the averment is too uncertain in ascribing the defect to the ladder alone, or to the manner of its use, or to both, might or might not be a question; but the demurrer does not raise it, and it is not considered.

Common knowledge suggests that a ladder with round ends may or may not be unsafe or unsuitable, and its employment in the business of a building contractor a breach of his duty. It might be unsafe and unsuitable when rested, at the bottom, on one character or condition of support, and safe and suitable, within duty, when rested on another; or the former, rather than the latter, when arranged with greater angle to the level of its base; or the latter, when set at a perfect right angle to the level of a base parallel with the ground-any one of the alternatives being, as of course, immediately affected by the fact whether the rest, bottom, of the ladder was a smooth, sleek, rough, or sloping surface. Other conditions of suitableness and safety might be instanced. Those stated will suffice to indicate our view that the degree of care and diligence required may be entirely met, even though the ladder's ends are rounding, and though it was not braced to forestall its liability, under some circumstances, to slip and fall. In short, in the absence of averment showing that the ladder, with rounding ends, was so placed, in respect of angle and rest and the character thereof, as to indicate a

conclusion the pleader draws. Furthermore, no fact is averred wherefrom it must be concluded that a duty to brace the ladder arose on this occasion. If that duty was alone expected and intended to be predicated upon the rounding ends of the ladder, that must, as we have seen, depend upon circumstances, of which there is not proper averment. These considerations lead to the conclusion that the first ground of demurrer should have been sustained, not only to count 3, but also to count 5. Ground 10 of the demurrer was, in consequence, likewise well taken as to counts 3 and 5.

Other points of objection, taken by the demurrers, need not necessarily be now considered, since a reformation of the complaint must be had before another trial. Count 4, wherein the defect was not undertaken to be described, seems to be, in this particular, within the ruling of Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 South. 445.

This court has so often written in reference to the essentials in pleas of assumption of risk and of contributory negligence, there is no necessity to treat the pleas in this instance. Previous decisions will point the way to good pleading of these defenses, from defendant's view point.

For the errors indicated, the judgment is reversed, and the cause is remanded. Reversed and remanded.

DOWDELL, C. J., and SIMPSON and MAYFIELD, JJ., concur.

(163 Ala. 425) MICHAEL v. STATE ex rel. WELCH et al. June 30, 1909. (Supreme Court of Alabama. Rehearing Denied Dec. 16, 1909.) 1. OFFICERS (§ 1*) WHAT CONSTITUTES "PUBLIC OFFICER.'

Every one who is appointed to discharge a public duty, and receives compensation, in what ever shape, is a "public officer," and if a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, it is very difficult to distinguish such a charge or employment from an office, or the person who holds it from an "officer."

[Ed. Note.-For other cases, see Officers, Cent. Dig. § 4; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 8, pp. 7772, 7773; vol. 6, pp. 4933-4951: vol. 8, p. 7737.]

•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

2. OFFICERS (§ 1*)—WHAT CONSTITUTES “OF-[ficers pursuant to sections 17 and 33 (Acts 1907, FICE." pp. 799, 811; Code 1907, §§ 1067, 1171), proAn "office" is a public charge or employ-viding that until validly repealed the offices proment, and the term comprehends every charge vided for should exist, to be filled by each sucor employment in which the public is interested. ceeding administration, carried on its face an [Ed. Note.-For other cases, see Officers, Cent. intent to form a permanent rule of government Dig. 1; Dec. Dig. § 1.* until repealed, and until such time continued in force.

For other definitions, see Words and Phrases, vol. 6, pp. 4921-4931; vol. 8, p. 7736.] 3. QUO WARRANTO (8 11)-TRIAL OF TITLE TO OFFICE-OFFICE OF CITY TREASURER AS "PUBLIC CIVIL OFFICE."

The office of a city treasurer, appointed by the mayor pursuant to Municipal Code Act (Acts 1907, pp. 799, 811) §§ 17, 33 (Code 1907, 88 1067, 1171), providing for the determination by ordinance of the officers of a city, their salary, manner of election, and terms of office, and an ordinance thereunder fixing the office of treasurer, defining his duties, requiring him to make bond, etc., is a "public civil office," the title to which may be tried by quo warranto proceedings under Code 1907, § 5453.

[Ed. Note.-For other cases, see Quo War ranto, Cent. Dig. § 13; Dec. Dig. § 11.*] · 4. MUNICIPAL CORPORATIONS (§ 126*)—OrganIZATION UNDER GENERAL LAW-POWERS OF OLD COUNCIL-DETERMINING NEW OFFICERS APPOINTMENT OF CITY Treasurer — VA

LIDITY.

-

Municipal Code Act (Acts 1907, p. 791) § 2 (Code 1907, § 1047), after fixing the day for the election of city officers, etc., provides that till the officers elected at the general municipal election on the third Monday in September, 1908, assume their duties, the corporate organization shall remain as provided by law; but section 199 (Acts 1907, p. 892; Code 1907, § 1048) provides for organizing under the Code "at once," if desired, by ordinance, and provides that the then existing governing body shall elect such other officers as are required by the act and not provided by the charter, etc. Section 17 (Acts 1907, p. 799; Code 1907, § 1067) provides that in cities of less than 6,000 the council shall elect a clerk, and may elect a recorder, and fix their salary and term of office, and determine by ordinance the other officers, their salary, manner of election, and term of office. Section 33 (Acts 1907, p. 811; Code 1907, 8 1171) provides that cities may, by ordinance, provide for the election at any regular municipal election, or for the appointment, of such officers as are deemed needful or proper, fix their terms, compensation, etc. Held that, where a city of less than 6,000 organized under the act by passing an ordinance under section 199, it might exercise all powers provided for in the act, unless expressly or plainly prohibited, and the old council might anticipate the incoming council in passing an ordinance determining new officers, under the power conferred on the "council" by sections 17 and 33, and so render valid the appointment of a treasurer pursuant thereto.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 298; Dec. Dig. 126.*]

6. MUNICIPAL CORPORATIONS (§ 97*) - ORDINANCES PASSAGE BY LEGAL MAJORITY OF COUNCIL.

An ordinance was passed at a meeting of a city council, in absence of the mayor and chairman pro tempore, so that only four members participated, and four votes were cast therefor, including that of the councilman appointed to preside. Held, that the presiding councilman was entitled to vote, and was not stripped of his right by his appointment to preside in place of the mayor, who could only vote on a tie; and hence the ordinance was passed by a legal majority, pursuant to Municipal Code Act (Acts 1907, p. 831) § 81 (Code 1907, § 1252).

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 207; Dec. Dig. 8 97.*]

Appeal from Circuit Court, Marengo County; John T. Lackland, Judge.

Quo warranto by the State, on the relation of W. H. Welch and others, against George J. Michael. From a judgment for relators, respondent appeals. Affirmed.

Wilson & Wilson and C. K. Abraham, for appellant. Pettus, Jeffries & Pettus and Henry McDaniel, for appellees.

DENSON, J. This is an action under the statute (Code 1907, 5453), brought in the name of the state, on the relation of W. H. Welch and others, against George J. Michael, to oust him from the office of treasurer of the city of Demopolis, and to declare and fix the right of the relator. to said office. The circuit court granted the relief prayed, and the respondent has appealed.

Demopolis, a city of less than 6,000 but more than 2,000 inhabitants, was incorporated by an act of the General Assembly approved December 9, 1896. Acts 1896-97, p. 161. By section 3 of the charter, it was provided that the "government" of the city should consist of a mayor and six councilmen, to be elected on the first Monday in May, 1897, and on the 1st day of May every two years thereafter. By section 17 of the charter it was provided that the board of mayor and councilmen might appoint a clerk, a treasurer, a tax assessor, a tax collector, a marshal, a city Municipal Code Act (Acts 1907, p. 831) § 81 (Code 1907, § 1252), provides that no ordi- attorney, and such other officers as might be nance intended to be of permanent operation deemed necessary for the good government shall become a law unless on its final passage of the city. It was also provided by the charthe majority of the members elected to the counter that the board should prescribe the duties cil, including the mayor, of cities of less than 6,000, shall vote in its favor. Held that, generally speaking, a permanent statute or ordinance is understood to continue in force till repealed, and that this was the obvious sense to be accorded to the word "permanent" as used therein, and hence an ordinance determining of

5. MUNICIPAL CORPORATIONS (8 97*) ORDINANCE DETERMINING OFFICERS-TIME OF OPERATION "PERMANENT ORDINANCE."

and liabilities of such officers, and fix their compensation. The charter further provided that, before entering upon their respective duties, the mayor, marshal, tax collector, tax assessor, and treasurer should enter into

town as had been fixed in the ordinance of April 2d, but providing that they should be elected by the city council of Demopolis, and as soon after the members of said council should take the oath of office as practicable, with the reservation that the city health officer and sanitary officer provided for in the ordinance should be appointed by the mayor. It was provided that the ordinance should go into effect immediately upon its passage, and should be and remain of effect only until the first Monday in October, 1910, and until the successors of such officers should qualify. The ordinance purported to repeal all ordinances and resolutions and parts of ordinances and resolutions in conflict therewith. At the meeting at which the ordinance was passed there were present the newly elected mayor and the five newly elected councilmen. Three of the councilmen voted for the passage of the ordinance, and two against it. This ordinance has never been published. After the passage of the ordinance, but at the same meeting of the council, as the record shows, George J. Michael, the incumbent of the office of treasurer, was elected to that office by a majority vote of the councilmen, three constituting a majority.

bond, etc. The power was also given the which the mayor was inducted into office, board to remove the designated officers at there was introduced an ordinance prescribpleasure "the mayor excepted." It was furing the same officers and employés for the ther provided that the officers should be appointed at the first regular meeting of the newly elected board, "or as soon thereafter as practicable." Section 18 of the charter provided that the treasurer should receive commissions on the receipts and disbursements, and fixed the amount thereof; and section 43 provided that the treasurer should publish semiannual statements of the receipts and disbursements of the "city government." The record shows that the office of treasurer was established by the "city government," as provided by the charter, and that the respondent was the incumbent thereof, holding it under appointment by the board of mayor and councilmen elected on the first Monday in May, 1907, and that under the law his term of office did not expire until the first Monday in May, 1909, which was the date of the expiration of the terms of the mayor and councilmen by whom he was appointed. The record further shows that on the 13th day of March, 1908, the city council (as authorized by section 199 of the Municipal Code law [Acts 1907, p. 892; Code, 1907, 1048]) passed an ordinance whereby the city government became organized under the provisions of that law. It also appears from the record that on the 2d day of April, 1909, at a regular meeting of the city council, an ordinance was adopted, entitled "An ordinance to provide officers and employés for the city of Demopolis, prescribe how they shall be appointed, and fix their term of office and compensation." This ordinance provided that "the officers and employés of the city of Demopolis, not otherwise prescribed by law, should be tax collector, tax assessor, collector of water rents, chief of police, chief of fire department, superintendent of waterworks, two policemen, health officers, sanitary officers, city attorney, and city treasurer." The ordinance had been introduced at a previous meeting of the council held in October, 1908. It provided that each of said officers should be appointed by the mayor as soon after he should take the oath of office as practicable, and that the tenure or term of office of each should be coextensive with that of the mayor conferring the appointment, unless he should be sooner removed as provided, and until his successor was appointed and qualified. The ordinance has a repealing clause, whereby all laws and ordinances in conflict with its provisions are repealed. This ordinance was duly published as required by law. The information shows that by virtue of said ordinance the mayor, on the 3d day of May, 1909, and after his installation in office, appointed relator to the office of treasurer; that he qualified by taking the required oath and making the required bond. Subsequent to the appointment of the relator by the may

The first question presented for determination is one preliminary to the main issues involved. It is: Is the office of city treasurer of Demopolis a "public civil office," within the meaning of section 5453 of the Code of 1907, providing this action in the nature of quo warranto for ousting an usurper of a public civil office? In Henly v. Lynne, 5 Bing. 91, Lord Chief Justice Best, defining who is a public officer, said: "Every one who is appointed to discharge a public duty, and receives compensation, in whatever shape, from the crown or otherwise, is a public officer." See, also, Bac. Abr. tit. "Offices and Officers," A. Chief Justice Marshall, in United States v. Maurin, 2 Brock. 102, said: “If a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, it seems very difficult to distinguish such a charge or employment from an office, or the person who holds it from an officer." An office is a public charge or employment, and the term seems to comprehend every charge or employment in which the public is interested. Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169; People v. Hayes, 7 How. Prac. (N. Y.) 248; State v. Valle, 41 Mo. 29; 2 Cow. (N. Y.) 13, 29, note "b"; People v. Bedell, 2 Hill (N. Y.) 196; People v. Lee, 28 Hun (N. Y.) 469; Carthew's R. 479. It would seem that these definitions should suffice to show that the office in question is a public civil office within the purview of the statute.

But the statutes (Code 1907, §§ 1069, 1171),

ject.

They provide that "the council shall | upon the happening of which it should go inelect a clerk, and may determine to operation in the town or city so ordaining by ordinance the other officers of such city or in the method stipulated in that section at an town, their salary, the manner of their elec- earlier date. Section 199 should be read as a tion, and the term of office." Both ordinan- proviso to section 2 of the Municipal Code ces, if valid, fix the office of treasurer, define act; and, when so read, the provision of the his duties, require him to make bond, etc. If latter section that the corporate organizathese things do not make an office, and consti- tions 'shall be and remain as now provided tute the person appointed or elected to fill it by law' is qualified to the extent section 199 a public officer, within the meaning of the prescribed." statute, then it would be hard to conceive of a case within the statute where it has not expressly declared the offices and officers who come within its terms. The court concludes that the office in question is a public civil office, and that the title thereto may be tried by quo warranto proceedings under the statute.

The next and principal contention of respondent is that, notwithstanding the "city government" of Demopolis-in virtue of the adoption of the ordinance of March 13, 1908, by its "governing body," in pursuance of section 199 of the Municipal Code act (Code 1907, § 1048)-became duly organized under the provisions of that act, yet neither the ordinance, nor any of the provisions of the act by the ordinance made applicable, conferred upon the then existing "governing body" of the city the power to determine the officers of the city. In other words, that the power conferred upon the "council" by sections 17 and 33 of the act (sections 1067, 1171, of the Code of 1907), could be exercised only by the council elected on the third Monday in September, 1908, and inducted into office on the 3d day of May, 1909, and, therefore, that the ordinance of April 2, 1909, under which the relator received his appointment, is void.

It will be observed that in the codification of the act section 2 was made section 1047, and that section 199 immediately follows, as section 1048 of the Code of 1907. It is well understood that the event referred to was the passage of the ordinance, provided for in section 199, to bring the city government at once under the provisions of the act. So it would seem clear that, after the passage of the ordinance of March 13, 1908, the city government of Demopolis became organized under the provisions of the municipal act. But according to the terms of that part of section 2, herein above set out, its corporate organization-mayor, six councilmen, and subordinate officers-remained the same until their successors were elected and qualified. This is emphasized by section 199, wherein it is provided that "the then existing governing body [that existing at time of adoption of the ordinance] shall proceed to elect such other officers as are required by this act and not provided by the charter of such city or town," etc. Ward v. State ex rel. Parker, supra.

It is difficult to see what advantage could inure to a municipal corporation from organizing its city government "at once" under the provisions of section 199 of the act, if during the time intervening the date of such organization and the installation of the officers elected on the third Monday of September, 1908, it could exercise none of the powers specified in the act. The court is of the opinion that, unless expressly or by plain impli

er coming in under section 199, might exercise all the powers provided for in the act.

Section 2 of the municipal act (Code 1907, 1047), after fixing the day for the election of city and town officers, etc., continues: "Until the officers elected at the general municipal election on the third Monday in September, 1908, shall have assumed their duties|cation prohibited, municipal corporations, aftof office, the corporate organization of the several cities and towns of the state shall be and remain as now provided by law, and such The question then arises: Was the council municipal corporations shall have the powers clothed with the power to pass the ordinance and exercise the authority herein conferred, of April 2, 1909, determining the officers of unless prohibited in express terms by the re- the city? The court is not dealing with the spective charters of the several cities and question of the propriety of the old council's towns, or when, by their nature, they may not anticipating the incoming council in passing be exercised by such municipalities as now the ordinance, being concerned merely with organized." This section of the act, of itself, the legal phase of the question. Section 1067 conferred no right or power upon the old of the Code of 1907 (a part of section 17 of council to adopt an ordinance determining the the act) provides: "In cities having a popuofficers of the city, as provided by sections 17, lation of less than six thousand and in towns, 33, of the act (Code 1907, §§ 1067, 1171); but the council shall elect a clerk, and may elect in this case we must read section 199 of the a recorder, and fix their salary and term of act (Code 1907, § 1048) in connection with sec- office, and may determine by ordinance the tion 2 (Code 1907, § 1047) as a proviso there other officers of such city or town, their salto. Ward v. State ex rel. Parker, 154 Ala. ary, the manner of their election, and the 227, 45 South. 655. We said, in the case just term of office, but there shall be no recorder cited: "The Municipal Code act is a com- in towns." Section 1171 of the Code of 1907 plete law, which by its terms shall become (section 33 of the act) provides: "Cities and operative in September, 1908; and the only towns may, except as aforesaid, by ordinance,