2. The resolution authorizes the expendi ture of the public moneys of the state for a purely private purpose. It is a mere gratuity, for which the state received nothing, but, on the contrary, incurred expense, by reason of his arrest, trial, and imprisonment. Bourn v. Hart, 93 Cal. 321, 15 L. R. A. 431, 28 Pac. 951; Conlin v. San Francisco City & County Supers. 99 Cal. 17, 21 L. R. A. 474, 33 Pac. 753. Section 45, art. 4, of the Constitution is as follows: "The assent of two thirds of the members elected to each house of the legislature shall be requisite to every bill appropriating the public money, or property, for local or private purposes." The resolution did not receive a twothirds vote of the members of the senate. This provision is mandatory, and cannot be evaded by calling a bill a "joint resolution." The above provision of the Constitution is too clear and too valuable to be thus frittered away. Burritt v. State Contract Comrs. 120 III. 322, 11 N. E. 180; Cushing, Law & Practice of Legislative Assemblies, 930.

and authority to establish a court of appeals, | mony in behalf of the people is gone, will aside from constitutional courts to deter- pass upon and believe the testimony which mine the guilt or innocence of a convicted an ex-convict can introduce, he may be criminal? Petitioner had his day in court, awarded such a sum out of the state treaswas defended by counsel, was given an op- ury as the legislature may see fit to allow, portunity to introduce testimony, and, in or the persons to whom such power is delebrief, was furnished all the safeguards gated may allow. The bare statement of which the Constitution throws around one the proposition is enough to condemn it as charged with crime. He was convicted. He unconstitutional, and bad in law, morals, did not appeal. Presumably, there was no and equity. It is unnecessary to hunt for error upon the trial. Nine years after- authorities which condemn it. wards the legislature makes the board of state auditors an appellate court to determine whether he was guilty or innocent, and, if they should find him innocent, to allow him damages for the wrongful conviction and imprisonment. The preamble recites that his innocence was demonstrated, but to whom or how it was demonstrated is not stated. It is not stated that the governor pardoned him because he believed him innocent. The executive of the state is not made an appellate tribunal to determine that question. When one has been convicted and sentenced by a court of competent jurisdiction, from which he takes no appeal, and has not been granted a new trial, the only method provided by our Constitution by which he can be relieved from the penalty imposed is by a pardon by the governor. The governor may pardon with or without good reason, with or without investigation. He is not limited by the Constitution to any reason for exercising the pardoning power. Consequently his act in pardoning and his reasons therefor have no bearing whatever upon his guilt or innocence. The legislature possesses no authority to organize any tribunal for the trial of persons charged with crime other than the judicial ones authorized by the Constitution. The payment by the board is conditioned upon the establishment of his innocence, which means nothing less than a determination by this board that the court which tried him erred in its judgment, and that twelve men found him guilty upon false testimony, or for some reason erred in their conclusion. It is a violation of the plain provisions of the Constitution,-establishing courts, and conferring the exclusive jurisdiction upon them to try civil and criminal cases. Few criminals confess their guilt. The result of sustaining the validity of this resolution would be an open door for raids upon the public funds.

As already shown, the pardon is not essentrial to the maintenance of such claims, for the executive is not vested with power to review the judgment of courts. It would, therefore, result that, after a convict has. served his sentence, five, ten, fifteen, or twenty years after his conviction, he may go to the legislature, assert that he was innocent, that he can prove it, and it may be referred to the board of state auditors, or any other number of men, public officers or private citizens, to determine whether he had a fair trial, and was properly convicted. Nor is this all, but every person who is arrested and acquitted may also make his claim against the state for the wrongful arrest and detention. If such persons, when the testi

3. Section 4, art. 8, of the Constitution provides that "the secretary of state, state treasurer, and commissioner of the state land office shall constitute a board of state auditors to examine and adjust all claims against the state, not otherwise provided for by general law." The jurisdiction conferred upon this board by this provision of the Constitution clearly means claims resting upon some legal basis. "Claim" is defined to be "a demand of a right or alleged right; a calling on another for something due or asserted to be due; as, a claim of wages for services." Century Dict. The legislature can only authorize this board to pass upon claims such as are contemplated by the Constitution. It cannot authorize the board to consider requests, petitions, or claims for appropriations which are merely gratuities, or which may be based upon sentimental or moral grounds. It is conceded by counsel for petitioner that he has not the semblance of any legal claim. The sole apology offered for such resolution is that it is based upon sentimental or moral grounds. Fortunately, the people, through their Constitution, have closed the door to such sentimental and unjust claims. The people, through their Constitution, have committed to the courts the sole jurisdiction to try persons charged with crime, and have made their judgments final, and have also prohibited their public funds to be squandered in mere gratuities of this character.

The writ is denied.

The other Justices concur.

MARYLAND COURT OF APPEALS.

Henry P. TALL, Appt.,

BALTIMORE

1.

v.

STEAM PACKET
PANY.

possible for them to so reproduce it as to enable anyone hearing his description to COM- form an intelligent conclusion from what he is able to relate, the witness may, after stating the facts, be allowed to state his own opinion or the conclusion he has formed from the facts within his knowledge.

The rule that a carrier is charged with the highest degree of care consistent with the nature of his undertaking as between him and his passenger, in respect

to the acts or omissions of the carrier and

his servants, does not extend to the matter of the carrier's liability for injuries to passengers by acts of fellow passengers strangers.

or

2. A carrier's liability for the misconduct of a passenger because of injury to another passenger arises only when the carrier or his servants could have prevented the injury but failed to interfere to avert it, with knowledge, or upon facts which ought to have imparted knowledge, that the injury was threatened.

8.

4.

The opinion of a witness to the effect that an injury by one passenger to another would have been averted if the captain had

Underhill, Ev. pp. 268, 269.

The law requires the highest degree of care, which is consistent with the nature of the carriers' undertaking.

Baltimore & O. R. Co. v. State use of Hauer, 60 Md. 449.

Towards a passenger there is the superadded obligation arising from contract and confidence, and the utmost vigilance and care is to be observed.

Baltimore & O. R. Co. v. State use of Miller, 29 Md. 252, 96 Am. Dec. 528; Simmons v. New Bedford, V. & N. S. B. Co. 97 Mass. 367, 93 Am. Dec. 99.

Where the nature and attributes of the act relied on to show negligence contributing to the injury can only be correctly determined by considering all the attending and surrounding circumstances of the transac tion, it falls within the province of the jury to pass upon and characterize it, and it is in the smoking room of a steamboat, in not for the court to determine its quality

acted with appropriate promptness is not competent evidence.

Allowing passengers to play cards

violation of a rule of the carrier, does not make the carrier liable for the injury to another passenger who is shot during a quarrel which occurs during the game.

(December 6, 1899.)

APPEAL by plaintiff from a judgment of
the Superior Court of Baltimore City
in favor of defendant in an action brought
to recover damages for the negligence of de-
fendant in permitting a shooting affray to
take place on one of its boats on which plain-
tiff was a passenger which resulted in plain-
tiff's receiving a gun-shot wound. Affirmed.
The facts are stated in the opinion.
Messrs. Fielder C. Slingluff, William
T. Donaldson, and R. Lee Slingluff, for
appellant:

The court should have admitted the evidence of the violation of the rule against card playing, as the plaintiff was unquestionably entitled to the benefit of the failure on the part of the company and its servants to enforce this rule, as evidence before the jury.

Baltimore & O. R. Co. v. State use of Chambers, 81 Md. 384, 32 Atl. 201.

Where a witness has adequate means of observing a transaction, but where it is im

NOTE. For duty of carrier to protect passenger from assault by fellow passenger, see Il

linois C. R. Co. v. Minor (Miss.) 16 L. R. A. 627, and note; also Richmond & D. R. Co. v. Jefferson (Ga.) 17 L. R. A. 571; and West Memphis Packet Co. v. White (Tenn.) 38 L. R.

A. 427.

For liability of carrier on account of negll

gence of passenger injuring other passenger, see Sullivan v. Jefferson Ave. R. Co. (Mo.) 32 L.

R. A. 167.

as matter of law.

Cooke v. Baltimore Traction Co. 80 Md. 558, 31 Atl. 327; Baker v. Maryland Coal Co. 84 Md. 19, 35 Atl. 10; Baltimore & O. R. Co. v. Keedy, 75 Md. 329, 23 Atl. 643; Central R. Co. v. Coleman, 80 Md. 337, 30 Atl. 918.

The carrier is always liable for the assaults on a passenger by a fellow passenger or crew, when such assault could have been prevented by the carrier or its servants, by the exercise of proper care.

5 Am. & Eng. Enc. Law, 2d ed. pp. 555, 556; West Memphis Packet Co. v. White, 99 Tenn. 256, 38 L. R. A. 427, 41 S. W. 583.

The presumption of negligence always arises when the relation of carrier and passenger exists, and the passenger is injured by some defect or abnormal condition in transportation.

Baltimore & P. R. Co. v. Swan, 81 Md. 400, 31 L. R. A. 313, 32 Atl. 175.

An accident which furnishes no cause of action is an inevitable occurrence not to be foreseen and prevented by vigilance, care, and attention, and not occasioned or contributed to in any manner by the act or omission of the company, its agents, employees, or servants.

Washington, C. & A. Turnp. Co. v. Case, 80 Md. 46, 30 Atl. 571; Carroll v. Staten Island R. Co. 58 N. Y. 126, 17 Am. Rep. 221.

This is a case where the doctrine of res ipsa loquitur applies, there being proof, not only of the injury, but also evidence showing how the injury happened.

Howser v. Cumberland & P. R. Co. 80 Md.

148, 27 L. R. A. 154, 30 Atl. 906; Baltimore & O. R. Co. v. Worthington, 21 Md. 275, 83 Am. Dec. 578; Bryne v. Boadle, 2 Hurlst. &

C. 728; Consolidated Traction Co. v. Thalheimer, 59 N. J. L. 474, 37 Atl. 132.

Whether or not there was this proper care exercised by the defendant's servants in this case, was a question of fact for the jury.

Holly v. Atlanta Street R. Co. 61 Ga. 215, 34 Am. Rep. 97.

| and struck the appellant, who was standing some distance away. It lodged in his elbow and severely wounded him. For the injury thus inflicted the appellant brought this suit against the steamboat company.

The gravamen of the narr.-the sole ground upon which a right to recover is

Messrs. J. S. Lemmon and C. B. Clot-based-is the alleged negligence and want of worthy for appellee.

McSherry, Ch. J., delivered the opinion of the court:

There are several questions relating to rulings on the admissibility of evidence, and one in regard to the granting of an instruction taking the case from the consideration of the jury, included in the only bill of exceptions which the record contains.

care on the part of the defendant's servants and agents in failing to preserve order and to exercise proper control over its passengers.

Before adverting to the legal principles which lie at the foundation of the case, it will be necessary to state with a little more particularity the facts immediately surrounding and just preceding the shooting; and we then determine, first, whether, as submitted to the jury, the facts created a liability on the part of the defendant; and, secondly, whether the rejected evidence was admissible, and if admissible whether, had it been admitted, it would have furnished any better ground for a recovery than existed after its exclusion.

This is an unusual and an erroneous way to present such essentially distinct propositions. The ruling on each question should form the subject of a separate exception. "We are," says this court in Ellicott v. Martin, 6 Md. 517, "of opinion that each distinct exception which embraces an Going back to the point of time when Merindependent proposition of law should be ritt returned to the smoking room with his signed and sealed by the court below, before hand on his hip pocket-this being after Batit can be regarded as a valid exception. ten had applied to him an opprobrious epiThis remark does not apply to a series of thet-the events that followed in rapid succonsecutive prayers offered by the counsel. cession are thus described by Mr. Beacham, In such a case the ruling of the court, in one of the plaintiff's witnesses, and his deeither granting, rejecting, or modifying the scription is not materially varied by the prayers, may be regarded as a single act, and others who testified. Directly Merritt came one exception, if properly taken and execut-in the witness looked over to Captain Bohaned, may embrace the whole." Passing by this irregularity, though by no means intending thereby to establish a precedent which will be followed hereafter, we come to the case as we find it.

The defendant below-the appellee here is a corporation owning a line of steamboats, which ply between Baltimore and Norfolk. The plaintiff below-the appellant herewas in March, 1898, a passenger on the Alabama, one of the appellee's boats. After getting his supper he went into the smoking room of the steamer, where some twenty or more men passengers were smoking and conversing. In the room there were several small tables and a number of chairs for the use of passengers. Shortly after the appellant went into the smoking-room Captain Bohannon, who was in command of the vessel, also entered and remained there in conversation with some of the passengers until the occurrences now to be briefly narrated took place.

At one of the tables in the smoking room passenger named Batten and another named Merritt were playing a game of cards for money, while others were looking on. A dispute arose between the two players and Batten applied to Merritt a vile epithet. The latter then arose and left the room. In a few minutes he returned, having his hand on his hip pocket, and going up to Batten said something which was heard by only one witness. Instantly Batten struck Merritt a heavy blow, knocking him down, the captain sprang forward simultaneously and intervened, but Merritt drew a revolver from his pocket and fired; the bullet missed Batten

non and said, "Come here! come here, quick!" and as he looked back at the affair and long enough for him to forget the fact that he had called the captain, and while his attention was entirely fixed upon what was going on, he heard a voice saying, "What is it? What is it?" and he replied, "There is going to be a fight." Just at that very moment Batten reached up with his right hand and knocked Merritt down.

When he, witness, heard a voice saying "What is it?" he turned, and it was Captain Bohannon. The captain had asked him that question, and he immediately pointed over, showing towards Merritt's back, which was turned towards him, and said to the captain, "There is going to be a fight," and that very moment Batten struck up and struck Merritt with his right, and the captain jumped right into it, and Batten then sprang over the chairs towards the bar-room, and Merritt immediately fired into the crowd in the direction of where the lamplighter is.

The witness was then asked: "After you called the captain, did the shooting take place before he came?" and he replied: "Oh, no! the shooting took place after he came, after he responded, after he answered me; at least after he called my attention, at least made the remark, 'What is it? What is it?" and after that the shooting occurred, but it was very quick work; after he answered me, just at that moment, the man Batten raised up and struck Merritt, and I suppose the captain saw that part of the fracas also at the same moment, for he jumped right into the midst of it, but he was a little too late, and the pistol went off.”

The duty of the carrier in such instances is, consequently, relative and contingent, not absolute and unconditional. It springs The duty to protect the passenger against from a condition, not of the carrier's but of a an assault by a fellow passenger being, then, third party's creation, coupled with a knowl- a qualified duty, and the responsibility for a edge by the carrier's servants that the con- failure to perform that duty arising only dition exists, and with time enough inter- after the servant has neglected to act upon vening between the acquisition of the knowl- the knowledge, or upon the facts which edge and the infliction of the injury to en- ought to have imparted knowledge, that the able the servants of the carrier to protect the injury was threatened, do the facts in evipassenger from the third party's misconduct. dence bring this case within that rule? It The negligence for which in such cases the seems to us quite clear that they do not. carrier is responsible is not the tort of the The affray was a sudden one. It undoubtfellow passenger or the stranger, but it is edly grew out of the use of abusive language. the negligent omission of the carrier's serv- But as soon as the attention of the capants to prevent that tort from being com-tain of the boat was called to the conduct of mitted.

would develop into an affray in which a many persons on board. One of the passendeadly weapon would be used, and the steam-gers, while handling a repeating gun, acciboat company cannot be said to have been dentally exploded a shell and injured the negligent because its servants failed to fore- plaintiff, a fellow passenger. Among the persee that a pistol would be fired into a crowd sons standing near the man who had of passengers, when the firing of a pistol was, by no means, a necessary, or even a probable, result of the trouble between the two men, who had then ceased to play cards. It would stretch the liability of a carrier far beyond established limits, if he were accountable for an unexpected injury inflicted by one passenger upon another passenger, and if he were so held accountable solely because the servants in charge of the boat, or the train, or the coach, upon which the injury happened, failed to anticipate or infer from the fact of a quarrel between two persons that one of them would recklessly fire a pistol and injure another passenger who was not concerned or involved in the quarrel at all. And yet that is precisely what must be laid down as the law, if in this case the plaintiff is entitled to recover.

the repeating gun was Couch, the party who advertised the excursion, and was a general officer of the company and was in charge of the excursion. "The evidence" said the court, "shows that not only he had not endeavored to stop the firing, but he had encouraged it by actively participating in it." He had time to stop this perilous and indiscriminate shooting which caused alarm to the passengers, was obviously dangerous and very likely to result in accidents; but instead of interfering to suppress it he actually encouraged it and participated in it. Of course, when an injury did result under these conditions the company became answerable.

This is not a case to which the doctrine of res ipsa loquitur applies. We discussed that doctrine in Benedick v. Potts, 88 Md. Captain Bohannon obviously had no 52, 41 L. R. A. 478, 40 Atl. 1067, and need knowedge that the shooting of a pistol was not now repeat what has been so recently likely to occur at least, it was not shown said in respect to it. The injury sued for in that he had such knowledge-and the wit- this case is traceable to an act of a third ness who called his attention to the hostile party, and whether the carrier is responsible attitude of the parties indicated or suggested for the consequences of that act depends upno such probability. That a deadly weapon on whether its agents could have prevented would be used was not a thing he was bound it. There is a difference between the physito assume. He acted with great and com-cal act of a third person, and the omission of mendable promptness, and interfered before the shot was fired, and there was no evidence to show that he could have done more than he did do to quell the disturbance.

The fact that in spite of what he did do the pistol was fired, does not show that he did not do all that, under the circumstances, it was his duty to do. The carrier's liability does not, in such cases, depend upon the naked fact that an injury happened; if it did, as already remarked, the measure of his duty would be that of an absolute insurer. But it depends on the fact of an injury, and the concomitant fact that the negligence of the carrier's servants in omitting to prevent the doing of the act which produced the injury actually caused the injury.

Proof there must be of both of these constituent elements of the plaintiff's cause of action, but there was a total failure of evidence in the case at bar to support the latter of them: Indeed, the evidence adduced by the plaintiff negatives the idea that the company's servants were negligent.

The case of West Memphis Packet Co. v. White, 99 Tenn. 256, 38 L. R. A. 427, 41 S. W. 583, so much relied on in the appellant's brief, is in strict accord with the doctrine of the cases referred to in an earlier part of this opinion.

It is true a recovery was had in that case, because the facts justified it and brought the defendant within the scope of the rule as to the carrier's qualified liability. One of the general officers of the company, having charge of the excursion boat, permitted a number of passengers, who were armed with guns and pistols, to fire indiscriminately at objects in the water, to the great alarm of

the company which failed to prevent the doing of the act that caused the injury. The carrier's liability arises only when there is evidence of a fact distinct from and forming no part of the act done by the third person.

In no sense, therefore, can the act of the fellow passenger or of a stranger speak for or characterize the other and different thing; it cannot define the negligent omission, which must be proved as an independent proposition before the carrier's liability begins.

There was, for the reasons we have given, no error in the ruling which took the case from the jury on the evidence in the case. Ought the proffered evidence, which was excluded, to have been admitted, or, if it had been admitted, would it have changed the result?

The witness, Beacham, was asked this question: "How long was it after you called the captain when the captain came?" And he replied: "It is a difficult matter to fix that. I lost sight of the fact almost that I had called the captain's attention at all when I heard this fuss; but if the captain had responded promptly, I don't believe the affair would have occurred." Upon motion, the last clause of the answer, giving the belief of the witness, was stricken out.

The witness, Stiefel, was asked: "Was there a game between Merritt and Batten of sufficient violence and loudness to have attracted the attention of anyone in any part of the room who was not giving attention to what was going on in the room?" and he answered: "If the captain had paid attention to it, it would have prevented the quar