Still another reference was to The People v. Gardner (1871), 45 N. Y. 812, affirming s. c. 59 Barb. (N. Y.) 198. The Supreme Court was called upon to construe a constitutional provision respecting the judiciary which was to be in force "from and including the first day of January, next after its adoption by the people," in connection with another provision affecting judges "in office at the adoption of this article." Following an earlier decision in Real v. The People (1870), 42 N. Y. 270, the Court of Appeals distinguished these two provisions through the use of the words "by the people" in one of them, so that where these words were omitted, "the adoption of this article" meant no more than "the time when this article took effect," but where the full phrase "adoption by the people" was used, that meant an earlier day, namely, when the votes had been completed. That is, constitutional provisions have force and effect as soon as their own words indicate. As this New York decision, in respect to the time when the people adopted, or expressed their will in respect to the proposed constitutional provision, appears to be similar to the older Pennsylvania case (ante, page 247), an extract from the opinion will be interesting in connection with the principal case. "The rule of the common law is, that every law takes effect from its passage, unless some other time is therein prescribed for that purpose: 1 Kent's Com. 458; Sedgwick's Stat. and Const. Law, 82 [2 ed. p. 66].” The opinion then proceeds :-"The result of the election, showing the adoption of this article by a majority of the votes cast, must, within the meaning of this rule, be deemed its passage. The canvass of the votes cast by the various boards of canvassers, as required by law, and announcing the result, and certifying the same as required by law, is as much a part of the election as the casting of the votes by the electors. The election is not deemed complete until the result is declared by the canvassers, as required by law. When the result was declared by the State board of canvassers, the article was adopted, and under the rule became operative at once, unless from the nature of the provisions themselves, or those of some other law, it appears that it was to take effect at some future period, or unless it clearly appears that the intention of the framers of the article, and of those by whom it was adopted, was, that it should not take ef fect until some definite future time:" GROVER, J., Real v. The People (supra). The attentive reader will already have observed that the Courts have not yet decided what is the earliest time when a constitutional provision takes effect. In the principal case, the enabling Act rendered a decision on this point unnecessary: equally so in the Texas case (page 245). In a subsequent case in Texas (page 246), and in earlier ones in Pennsylvania and New York (pages 247, 249-50), the time was fixed as soon as the fact of a majority of votes in favor of the constitutional provision had been ascertained, upon a complete canvass of the votes. The announcement of the result of the election was not the earliest period of time, because the officials might not make the announcement. Whether the counting of the votes in each precinct, and before these results of the election were officially aggregated, would be held to be an instant when the constitutional provision had been adopted, may be doubted, though any failure of election officials to secure the completion of the counting of the votes might urge the Court to fix so early a period as election day itself (see page 247). The sum of the matter is, that a constitutional provision takes effect from the instant the will of the people has been ascertained. JOHN B. UHLE. Supreme Court of Nebraska. PULLMAN PALACE CAR CO. v. LOWE. Sleeping-car companies, are liable to the same responsil ilities and ol ligations as innkeepers, in respect to passenger's goods. Such a rule is required for the security of travelers and their protection against dishonesty, as well as negligence. Error from District Court of Douglas County. Howard B. Smith, for plaintiff. A. Stecre, Jr., for defendant. MAXWELL, J., Dec. 17, 1889. This action was brought by the defendant in error against the plaintiff in error, to recover the value of an overcoat, which, it is alleged, was lost or stolen from a Pullman car in which the defendant in error was a passenger, on the Wabash Railway, from St. Louis to Council Bluffs. The Court was requested to make special findings in the case, which it did, as follows: "I find, as the facts proven on the trial of this case, that on the 18th day of April, 1887, the plaintiff took passage at St. Louis for Council Bluffs on the Wabash & St. Louis Railroad, and purchased a sleeping-car ticket from the defendant's agency at St. Louis, entitling him to a lower berth in the sleeping-car attached to the train which left St. Louis on the evening of that day. That the train left St. Louis at 8:25 P. M. That a short time before the train left plain:iff entered the sleeping-car, and, upon doing so, delivered his coat to the porter of the car, who took it, and placed it in the vacant upper berth of the section of which plaintiff had secured the lower berth. That, shortly after the train started, the sleeping-car conductor passed through the car, and took up the ticket which had been purchased by the plaintiff, and gave him in exchange therefor another ticket, known as a 'berth-ticket,' which was in turn taken up by the porter soon afterwards, when he prepared the sleeping berth for occupation by the plaintiff. That the next morning, when the plaintiff arose, he took out from the upper berth a portion of his clothing, and then saw his overcoat there, where it had been placed the evening before by the porter, and where he (the plaintiff) left it. That plaintiff was last to leave his berth, and, with the exception of a gentleman and lady, the the last of the passengers to leave the car for breakfast that morning. That plaintiff went out to breakfast at the regular breakfast station, which occupied him about fifteen minutes, and that after breakfast he stood on the rear platform of the sleeper about ten minutes, smoking a cigar, and then went to his berth in the car, the same having been made up, and then discovered that his overcoat was missing. That he immediately called the attention of the conductor of the sleeping-car to the fact, who, after first disclaiming any responsibility for the care of the coat, after a time caused a search to be made through the car, in company with the porter, for it, but without fnding it, and the coat has been entirely lost to the plaintiff, and was of the value at the time of the loss of $50. I also find that the conductor left the car at the breakfast station, and went to his breakfast at the same time as the passengers, including the plaintiff, were at their breakfast, and that during the interval of about twenty-five minutes' absence of plaintiff from his berth in sleeping-car, between the time when he left the car for breakfast and the time when he returned into it, his berth was made up, and his overcoat abstracted. "Conclusion of Law: I find, as a conclusion of law, that defendant was guilty of negligence in not properly guarding and taking care of property of plaintiff during his necessary absence from defendant's car, and that plaintiff was not guilty of negligence in the matter. I therefore find that defendant is liable to the plaintiff for the value of the overcoat, to wit, $50, with interest thereon from April 20, 1887, to the first day of this term, $3.75." The rules of the company were also introduced in evidence in its behalf, but, as the defendant in error had no notice of them, they do not enter into the case. The question presented, therefore, is the liability of a sleepingcar company for the loss of necessary wearing apparel of one who had paid the necessary sleeping-car charges, and was lawfully riding in one of its cars, which apparel had been placed in the care of the employes of the company. We find no case exactly in point, and as the question is a new one, not only in this State, but, to a great extent, in the other States of the nation, we are practically without precedents to aid us, and must adopt such rule as may seem just and equitable. It may be well to consider what the company undertakes to perform, and also what it does not undertake. The latter proposition will be considered first. It does not undertake to furnish the railway for its cars to run upon, nor the motive power to propel them, and hence is not entitled to compensation for the ordinary carriage of passengers. It does invite for hire all passengers holding first-class tickets to occupy its cars. In effect, it says to all such passengers: "We will furnish you safe, pleasant, commodious cars, with all possible facilities to prevent weariness and fatigue, with comfortable sleeping accommodations, and the necessary toilet facilities, if you pay the price demanded in addition to the ordinary fare." The nature of this undertaking is the question for consideration. On the one hand, it is claimed that, so far as the company holds itself out as performing the duties of an innkeeper, so far it should be charged with the strict liability of the same. On the other, it is sought to make the liability of the company merely that of a lodging-house keeper. In the very able and carefully prepared briefs of the attorney for the plaintiff in error, we find the following objections to charging the company with the liability of an innkeeper. He says: It undertakes (1) to furnish accommodations to "firstclass" passengers exclusively; (2) to furnish toilet accommotions to such passengers; (3) to furnish a certain specified seat or bed to such a passenger; (4) to furnish a servant who will respond to all proper demands on his service by such passengers, promptly and politely; but to do these four things for a limited time, which is agreed upon between it and each passenger in advance. It does not make even this agreement with all those who travel by rail. It makes this agreement with first-class passengers exclusively. The distinction between an innkeeper and a lodging-house keeper is set forth in many cases, but is very well drawn in the case of Cromwell v. Stephens (1867), 2 Daly (N. Y.) 15, from pages 21 to 26, inclusive. After quoting the definition of an "inn," as given by Chief Justice OAKLEY in Wintermute v. Clark (1851), 5 Sandf. (N. Y.) 247, to wit: "Where all who come are received as guests, without any previous agreement as to the duration of their stay or as to the terms of their entertainment.” And from Willard v. Reinardt (1853), 2 E. D. Smith (N. Y.) 148, in which the distinctions between a boarding-house and an inn were declared to be this: "In a boarding-house, the guest is under an express contract, at a certain rate, for a certain period of time, but in an inn there is no express engagement; the guest, being on his way, is entertained from day to day, according to his business, upcn an implied contract." And from Carpenter v. Taylor (1856), 1 Hilt. (N. Y.) 195, as follows: "Mere eating-houses cannot be considered as inns. They are wanting in some of the requisites necessary to constitute them inns." It will be seen that a distinction is attempted to be drawn between the sleeping-car company and an inn-keeper, because only a certain class can occupy such cars, viz., persons holding first-class tickets, whereas, at an inn, all who conduct themselves properly may be entertained. There is great confusion in the decisions as to what constitutes an "inn." In Calye's Case (1584), 8 Coke, 32, it was held that inns were instituted for passengers and wayfaring men. In another case, an "inn" is defined to be a house where the traveler is furnished all he has occasion for while on the way: Thompson v. Lacy (1820), 3 Barn. & Ald. 283. Bouvier defines "innkeeper" to be "The keeper of a common inn for the lougment and entertainment of travelers and passengers, their horses and attendants, for a reasonable compensation.” The innkeeper is bound to take in and receive all travelers and wayfaring persons, and entertain them, if he can accommodate them, and the same is true of a sleeping-car company, as to all passengers holding a first-class ticket. The fact that persons holding second or third-class tickets agree, in effect, in consideration of lower fare, to waive their right to enter a sleeping-car, does not enter into the case, any more than that a traveler who, to avoid the expense of an inn, should stop at a private house. In any event, the company which sells sleeping-car tickets to all first-class passengers that may pay the price, to that extent stands in the same relation as an innkeeper who must for hire entertain those asking for entertainment. A more difficult question is to properly define the word guest" at an hotel. Parsons defines a "guest" to be one who comes without any bargain for time, remains without one, and may go when he pleases: 2 Pars. Cont. 151. This is not sufficiently comprehensive to be a proper definition. In Walling v. Potter (1868), 33 Conn. 183, s. c. 9 AMERICAN LAW REGISTER N. S. 618, the Supreme Court of Connecticut defines the word "guest" as follows: But is said that none but a "A guest is one who patronizes an inn as such." traveler can be a guest at an inn, in a legal sense. We do not suppose that the court intended, in the definition above quoted, to lay stress upon the word 'traveler.' It is used in a broad sense, to designate those who patronize inns. In Wintermute v. Clark (1851), 5 Sandf. (N. Y.) 247, the Court say that, in order to charge a party as an innkeeper, it is not necessary to prove that it was only for the reception of travelers that his house was kept open; it being sufficient to prove that all who came were received as guests, without any previous agreement as to the time or terms of their stay. A public house of entertainment, for all who choose to visit it, is the true definition of an inn. These definitions are really in harmony with |