to care and protection by the company, would be unreasonable and oppressive."

In Brown v. L. & N. R. R. Co., 97 Ky., 228, the deceased was killed within the corporate limits of the city of Louisville, but at a point where the territory had not been laid off into streets, and where there was no density of population. There was evidence that the train was not properly manned or equipped, and by reason of this the man was killed. This court holding that the peremptory instruction to the jury was proper, said:

"We think the better doctrine is, that simple acquiescence on the part of a railroad company in the use of its track in this way does not confer authority or right, nor amount to license so to use; that decedent being a trespasser and a wrongdoer at the time of his injury, had no right to complain of the size or weight of the train, nor of its speed (further than it should not be run in a city at a reckless and dangerous rate), nor of its machinery or brakes, that they were insufficient, nor that it was not properly manned."

The rule laid down in these cases has been followed in many subsequent cases. In Oatts v. C., N. O. & T. P. R. R. Co., 15 R., 87, the injury occurred at Burnside station. Oafts was standing on the railroad track trying to arrange some horses which he had loaded on a car on the side track. A car was pushed down the track by an engine without warning by bell or whistle, and injured him. The peremptory instruction which was given by the circuit court was sustained. In Hoskins v. L. & N. R. R. Co., 17 R., 78, the deceased was killed within the corporate limits of Pineville, in what was called Wasaota, by a train running very rapidly and giving no warning of its approach. A peremptory instruction was given the jury by the circuit court, and this, on appeal, was affirmed. In Gherkins v. L. & N. R. R. Co., 17 R., 201, the intestate was killed at Highland Park, a ştation a few miles south of Louisville by a hand car running very rapidly up behind him without warning while a freight train was passing on the other track. The court said:

"It is manifest that the deceased was at the time he was injured, a trespasser, in a legal sense, upon the property of appellee, to the exclusive use of which it was entitled, and that there was no public crossing at or near the place where the accident occurred. It is the settled doctrine of this court that nothing short of a failure on part of the company to exercise reasonable diligence in

avoiding the accident after discovery of the danger to the trespasser will make the company liable."

In L. & N. R. R. Co. v. Wade, 18 R., 549, the injury occurred at the station of Woodburn in Warren county, a much larger place than Four Mile. The plaintiff while walking along the railroad track in Woodburn, was struck by a piece of timber projecting from a passing freight train, and injured. On the authority of the cases above cited it was held that there being no proof to show that the servants of the railroad company knew of the dangerous condition of the timber or the peril of the plaintiff, the court should have instructed the jury peremptorily to find for the defendant. In Lyons' Admr. v. I. C. R. R. Co., 59 S. W., 507, the intestate was killed at a late hour of the night near Mayfield, Kentucky. Affirming a judgment dismissing the plaintiff's petition, we said:

"There was no reason for appellee's employes in charge of the train anticipating the presence of anybody at this remote point at that time of night."

In Hoback v. Louisville, et al., R. R. Co., 99 S. W., 241, which was a similar case, we again said:

"Even though appellee knew that its track, at the place in question, was used by people in that locality, and had been so used in passing from their homes to the neighboring villages, yet this use, so far as the proof shows, had been confined principally to Sundays and to reasonable hours in the day time, and appellee would certainly have no right to expect nor be required to be on the lookout for trespassers upon its track at the dead hour of midnight."

In Gregory v. L. & N. R. R. Co., 79 S. W., 238, the plaintiff was hurt at Artemus by being struck by a train on a foggy morning, when, as he claimed, no lookout was maintained. In C. & O. R. R. Co. v. See, 79 S. W., 253, the injury occurred at Normal, where the land had been laid out in streets but had not been built up; in both of these cases under the previous rulings of the court, it was held that there could be no recovery. In Brackett v. L. & N. R. R. Co., 111 S. W., 710, we had before us an injury occurring at this same station of Four Mile. In that case there were two cuts of cars standing on the loading track with a space of about three feet between them, very near the point where the deceased here was killed. While the intestate was passing through this space, a train backed in on the side track, and ran against

one of the cnts of cars, causing it to close up the space, thus catching and killing her. It was held that there could be no recovery as the space was not left for people to pass through and she was a trespasser.

We do not see that this case can be distinguished from those cited. If the railroad company did not owe the deceased a lookout duty, it violated no duty which it owed him. If it owed him a lookout duty, it owed a like duty at all points in its yard, or near its yard; for under the evidence we do not see that a line could be drawn anywhere and it could be said that a lookout duty existed on one side of the line and not on the other. At this late hour of the night, it can not be said that the railroad company was under a duty to anticipate the presence of persons on its tracks, and under the evidence the court should have instructed the jury peremptorily to find for the defendant.

Judgment reversed and cause remanded for further proceedings consistent herewith.

Whole court sitting.

East Tennessee Telephone Co. v. Board of Councilmen of City of Frankfort.

(Decided February 22, 1911.)

Appeal from Franklin Circuit Court.

IRA JULIAN for appellant.

SCOTT & HAMILTON, G. H. BRIGGS and T. HITER CROCKETT for appellee.

RESPONSE TO MOTION TO FILE PETITION FOR REHEARING.

The opinion was delivered January 17th. The petition was tendered February 21st, and was in time if January 17th is not to be counted. By section 760 of the Code the decision does not become final "until after thirty days, excluding Sundays, from the day on which the decision is rendered." The rule is that when the time is counted from a day the day is not counted. (Beard of Council v. Farmers Bank, 105 Ky., 811, and cases cited.)

The petition is, therefore, in time. Motion sustained.

Render v. City of Louisville, et al.

(Decided February 22, 1911.)

Appeal from Jefferson Circuit Court
(First Chancery Division).

1. Legislative Act-Not Required to Have Provision of Constitution Incorporated-Sufficient if not in Conflict.With.-It is not required that an act of the legislature shall have incorporated in it any provision of the Constitution bearing on the matter therein made the subject of legislation; it is sufficient that it does not in terms or meaning conflict with any provision of the Constitution, and in determining whether the act conforms to that instrument it is to be tested by and in the light of its provisions.

2.

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Municipality—Incurring Indebtedness-Constitutional ProvisionMeaning of Provision-Assent of Two-thirds of Those Voting.The meaning of section 157 of the Constitution is that the assent of two-thirds of the electors whose votes are cast on the question of incurring the indebtedness, is all that is necessary; otherwise, the Constitution would have required the legislature to indicate by statutory enactment some means of ascertaining the entire number of legal voters in the municipality.

Hospital Commissioners-Appointment Equally From Democratic and Republican Parties-Not Violative of Bill of Rights. The act of the legislature in providing that two of the members of the hospital commissioners shall be appointed by the mayor from the Democratic, and two from the Republican party, is not violative of section 3 (Bill of Rights) of the Constitution. Such provision is designed to secure in the action of the board impartiality and freedom from political bias and violates no provision of the Constitution. The Democratic and Republican parties are the two dominant parties in the city of Louisville, and in the State, but if in the future other political parties should get in the ascendency, it would do no violence to the meaning of the statute, to the rights of the city, or to the holders of the hospital bonds, for the mayor to appoint the members of the commission equally from the two leading, or dominant political parties, whatever may be the names under which such parties exist.

TRABUE, DOOLAN & COX for appellant.

CLAYTON B. BLAKEY and HUSTON QUIN for appellees.

OPINION OF THE COURT BY JUDGE SETTLE-Affirming.

This action was instituted in the court below by appellant, a taxpayer of the city of Louisville, against the appellees, city of Louisville, its mayor and the persons composing the commissioners of hospital of the city

of Louisville, to enjoin the issuance by the city of $1,000,000 of bonds for use in erecting and furnishing a city hospital.

The city of Louisville claims the right to issue the bonds under authority conferred by an act of the General Assembly of the Commonwealth of Kentucky, approved March 14th, 1910, entitled "An act to enable cities of the first class to construct a public hospital;" which provides that in order to obtain money for the construction and furnishing of such hospital, the general council of a first class city may adopt an ordinance submitting to the voters thereof, at the November election, 1910, the question of whether the bonds of the city should be issued for that purpose; and that such ordinance should specify the total number and amount of the bonds to be issued, not exceeding $1,000,000, the date and maturity thereof, the rate of interest they should bear and how payable. Also that the ordinance should contain the necessary details in reference to the execution and delivery of the bonds, their denomination, interest coupons to be attached, tax to be levied to pay the interest thereon, and create a sinking fund to retire the bonds at maturity.

The act empowers the mayor of a city of the first class, having in contemplation the issuance of bonds for the construction of a hospital, to appoint four personstwo from the Democratic party and two from the Republican party--who with the mayor as an ex-officio member, shall constitute the commissioners of hospital of such city, with capacity as such to contract and be contracted with, sue and be sued; and provides that to these commissicners shall be entrusted the control of the work of constructing and maintaining the hospital; also the duty of fixing the price of the bonds, selling the same and receiving the proceeds; but with the proviso that none of them shall be sold for less than par and that any premium obtained from their sale shall constitute a part of the sinking fund for their ultimate retirement.

It appears from the averments of the petition that the general council of the city of Louisville, pursuant to the authority conferred upon it by the act mentioned, adopted such an ordinance with respect to the holding of the required election, issuance of bonds and other steps, as is by the act prescribed; and that the mayor duly appointed, with the approval of the general council, the four persons, two from each of the parties named, who are to act as commissioners of hospital. It

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