way Co. v. Harris, 28 Kan. 206; In re Railway Co., 20 Amer. & Eng. R. Cas. 196; Sapp v. Railway Co., 51 Md. 115. Again, under the great weight of authority, neither the defendants nor the county commissioners of Wyandotte county could open or construct a public highway parallel with the track of the railway on the right of way granted by congress. Pierce, R. R. 155, states the law as follows: "Thus, if a railroad is authorized between certain points, and if necessarily, or in the usual and convenient course, it will cross highways or other railroads, it may be laid across them, even without any express preference to them in the authority. Such crossing, being necessary to the enjoyment of the second grant, and not essentially impairing the first, is presumed to be authorized. But, on the other hand, the right to take exclusively the location made under the first grant, or any part of it, or to lay tracks longitudinally for a considerable distance upon it, ought to be expressly conferred or implied only where otherwise effect could not be given to the second grant." Mills, Em. Dom. § 46, says: "Under a general authority to condemn lands for streets, a street may be laid out across a railroad, but not longitudinally on the railroad track. Under general laws, property cannot be taken, where the appropriation will destroy or impair the exercise of the franchises of another corporation, unless the power to take is given in express terms, or arises from a necessary implication. The right to lay a street across a railroad track arises from a necessary implication." Lewis, Em. Dom., also says: A general authority to lay out highways and streets is sufficient to authorize a lay-out across the right of way of a railroad. * * * An authority to lay out a highway across the track of a railroad company is authorit to cross all the tracks at any place. But under a general authority to lay out highways a part of the right of way of a railroad cannot be taken longitudinally; nor can the way be laid through depot grounds, shops, and the like, which are devoted to special uses in connection with the road, and necessary to its operation, and in constant use in connection therewith." Section 266. 66 The record does not show that the proposed highway cannot reasonably be built without appropriating the right of way already granted to the use of the railway company; and the petition which was presented to the board of county commissioners for the location of the highway did not ask that it should be established upon the right of way of the Union Pacific Railway Company, but only as near to the right of way of the company as a good road could be made. When the track of the railway company was first built, and the business of the company was limited, all of its grant was not necessary for a right of way; but in giving such an extensive right of way it is evident that congress intended it might be enjoyed or used by the railway comv.23p.no.2-8 pany whenever its business or necessities demanded. In the brief filed by the defendants it is alleged that there is a defect of parties because the board of commissioners of Wyandotte county is not joined as a defendant. We think the county of Wyandotte might very properly have been made a defendant at the instance of either party or of the court; but as no demurrer was filed to the petition, and as the alleged defect was not taken advantage of by answer, the defendants have waived the same. Section 91, Civil Code; Poirier v. Fetter, 20 Kan. 47. Upon the findings of fact, the judgment will be reversed and the cause remanded, with direction to the court below to grant the injunction prayed for; all the justices concurring. 2. Where one of the issues to be tried is whether the person injured was in the exercise of ordinary care, and there were eye-witnesses as to his conduct at the time of the injury, the opinions of experts as to whether he was generally a careful and skillful man is not competent evidence. 3. Evidence of the practice and usage of others in climbing the ladder of a box-car when a train is in motion, such as deceased fell from, is not admissable to prove due care on his part at the time of the accident. (Syllabus by the Court.) Error from district court, Franklin county; A. W. BENSON, Judge. George R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error. H. P. Welsh and John W. Deford, for defendant in error. JOHNSTON, J. On June 30, 1886, John F. Patterson was employed in the service of the Southern Kansas Railway Company, as a passenger conductor. At that time a Sunday-School assembly was in session at Ottawa, and the railway company were running excursion trains from several points in the state to that place. On the morning of the day mentioned Patterson went from Ottawa to Lawrence in charge of a passenger train, where it was loaded with excursionists bound for the assembly at Ottawa. On the return trip he stopped at Baldwin City, where there were a number of people intending to join the excursion to Ottawa, and, being short of passenger cars to accommodate them, the company had placed two cabooses and a boxcar, temporarily arranged for passengers, on a side track, and directed Patterson to attach them to the rear of his train, for the use of passengers. There is testimony to the effect that Patterson was directed to place the cars in his train in the same order that they were standing,-first a caboose, then the box-car, and then another caboose; and this was the order in which they were attached to the train. After the train left Baldwin City, Patterson proceeded to collect fares, beginning at the front, and passing towards the rear, of the train. When he had completed taking fares in the first caboose, he passed out of the rear door, and proceeded to climb over the box-car, in an effort to reach the other caboose, in which there were passengers. There were no doors in the ends of the car, nor any platforms on the ends of the same, and the only way to get over the car was to climb up a ladder on the side and near the corner of the car, made of iron rods, called "hand-holds" or "rungs," which were screwed to the side and top of the car. These rods were about a foot apart, and extended out from the side of the car about three inches. While he was in the act of ascending this ladder, the train was running at a rapid rate, and just as it passed over a bridge he in some way fell from the car, and was fatally injured. The witnesses who saw the occurrence state that he had nearly reached the top of the car, when he appeared to grasp with one hand for a rung which should have been upon the top of the car, but probably was not, and at the same time let go his hold upon the top rung on the side of the car with the other hand, when he reeled back, and fell from the train. He was found lying in the angle of two braces of the bridge, his skull fractured, and his left leg broken. He was unconscious when found, and remained so until his death, which occurred the day of the accident. This action is brought by the representative of the deceased, to recover damages for the benefit of the widow and child, it being alleged that his life was lost in consequence of the negligence of the railway company. The company alleged and contended that Patterson was guilty of negligence contributing to the accident. The plaintiff prevailed, and recovered a judgment for $5,500. | sition. The taking of a deposition at another place than that stated in the notice, in the absence of the opposing party, is a sufticient objection to the deposition; but the irregularity was cured by the voluntary ap pearance of the defendant's counsel at the place where the deposition was taken, and his participation in the proceeding. It is important that the deposition should be taken at the place mentioned in the notice; but the notice is only given to furnish the opposing party an opportunity to appear, and therefore the appearance waives a defect in the notice or the irregularity of a change in the place of taking the deposition. None of the objections to the deposition can be sustained. The A witness was asked, and over objection was permitted to state, whether the deceased was a careful and skillful railroad man. This was clearly erroneous. question whether Patterson exercised due care in this particular instance was an important issue. It was alleged that he was guilty of negligence, and it was contended that the absence of the hand-hold on the top of the car was an obvious danger, and apparent to any one, and that to ascend a perpendicular ladder in the manner in which he did, by letting go his hold of the rung on the side of the car before laying hold of the rung on the top of the car, was negligence. The issue of his want of ordinary care was before the jury, and there was much test mony submitted concerning his conduct at the time of the injury. There were eye-witnesses present who at the trial described the manner in which he ascended the ladder, and the care which he exercised at the time the accident occurred; and hence there was no necessity nor propriety in admitting the opinion of an expert as to whether he was generally a careful and skillful man. The determination of whether he was exercising due care when he fell from the car does not depend upon the care exercised by him at other times, or whether he was usually careful in the performance of his duties as a railroad man, but does depend upon his conduct at the time of the accident. The witness who gave the testimony was a conductor on the same railroad, had been acquainted with him for a year, and claimed to have the means of knowing as to whether he was a careful railroad man, and his testimony may have had much weight with the jury in determining that the deceased was in the exercise of due care. With the evidence before them as to the care he used at the time, the jury could determine better than any expert whether or not he was neg Errors are assigned here upon the rulings of the court in admitting evidence. The deposition of a witness was received that was not taken in the exact place stated in the notice. The notice named the office of Winslow P. Hyatt, Colorado street, Pasadena, Los Angeles county, Cal., as the place of taking the deposition; but, as he had moved about a block away on another street, the notary met the plaintiff's attorney at that place at the proper time, and adjourned the taking of the deposition to another office, on anoth-ligent; and the fact that he was generally er street in Pasadena, and there the deposition was continued, completed, sealed up, and properly addressed. In the afternoon of that day, the attorney for the defendant was found, and informed what had been done, and, by consent, the deposition was then opened, and the witness was recalled and cross-examined by defendant's attorney. The court properly refused to suppress the depo careful would be unavailing if the testimony showed that his negligence in this instance contributed to the injury. Testimony of this character is no more admissible than an offer by the railroad company to show his want of care at the time of the accident by proving that he was negligent at other times, or generally careless. Exceptions are made in some cases where there are no eye-witnesses of the accident, and better evidence cannot be obtained as to whether the injured person exercised due care; but all the authorities hold such testimony to be inadmissible where the testimony of persons who witnessed the accident is available. Bryant v. Railroad Co., 56 Vt. 710; Dunham v. Rackliff, 71 Me. 345; Hays v. Millar, 77 Pa. St. 238; Tenney V. Tuttle, 1 Allen, 185; McDonald v. Savoy, 110 Mass. 49; Chase v. Railroad Co., 19 Amer. & Eng. R. Cas. 356; Morris v. Town of East Haven, 41 Conn. 252; Baldwin v. Railroad Co., 4 Gray, 333; Railroad Co. v. Roach, 64 Ga. 635; Railroad Co. v. Clark, 108 III. 113; Elliot v. Railroad Co., 41 N. W. Rep. 758; 1 Greenl. Ev. § 84. Neither was the testimony introduced in regard to how railroad men should and do ascend the ladder of a box-car relevant nor competent. The practice followed by others throws no light on the care used by Patterson in this case. It is not claimed that the opinions of experts are necessary in the case, and to allow testimony as to how others climbed the ladder would be to create collateral issues as to the prudence of their conduct, and to unnecessarily protract the trial. The question of whether Patterson was guilty of such negligence as would preclude a recovery was an issue before the jury, and the practice or usage of others would not tend to prove care on his part, and such testimony should not have been received. Railroad Co. v. Clark, supra; Lawrence v. Hudson, 12 Heisk. 671; Railroad Co. v. Moranda, 108 Ill. 576; Railway Co. v. Evansich, 61 Tex. 3; Bryant v. Railroad Co., supra; Bailey v. Northampton Co., 107 Mass. 496; Koons v. Railroad Co., 65 Mo. 592; Crocker v. Schureman, 7 Mo. App. 358; Cleveland v. Steam-Boat Co., 5 Hun, 523; Lawson, Usages & Cust. 328. ther was he competent to state what causes operated on the mind of Patterson that led him to ascend the ladder with great speed and haste. The admission of the incompetent testimony was error, for which the judgment will be reversed, and the cause remand. ed for a new trial; all the justices concurring. (2 Idaho [Hasb.] 658) TERRITORY 0. EVANS. (Supreme Court of Idaho. Feb. 24, 1890.) CONSTITUTIONAL LAW-INTERSTATE COMMERCE — EXPORTATION OF FISH. Section 7193, Rev. St. Idaho, prohibiting the exportation of fish from this territory, being in conflict with section 8, art. 1, of the constitution of the United States, providing for the regulation by congress of commerce between the states, is void. (Syllabus by the Court.) Appeal from district court, second district; C. H. BERRY, Judge. Hawley & Reeves, for appellant. R. Z. Johnson, Atty. Gen., for the Territory. BEATTY, C. J. The appellant, Thomas Evans, was indicted with George Rae for a violation of section 7193 of the Revised Statutes of Idaho, which, as amended by act of the fifteenth legislative assembly, reads: "It is unlawful for any person in this territory to make any dam, or use any nets, seines, fishtraps, or any similar device or measures for catching fish, or to ship the same out of this territory for speculative purposes." The appellant, Evans, alone, was tried upon this charge, and from the judgment rendered against him upon his conviction thereof he has appealed to this court. While the record contains various specifications of alleged error, the appellant has in his argument of the cause referred to but two, viz.: That the statute does not prohibit the exportation of fish, and, if it does, it is in violation of section 8, art. 1, of the Constitution of the United States. As To account for the fall, a witness, who was not present at the time, gave the following testimony: "Question. You say you have passed over this road a great many times? It is true, the statute does not read as Answer. I have. Q. And over this bridge? it undoubtedly was intended it should, and A. Yes, sir. Q. Now, can you state to the it is surprising that it passed unchallenged jury, under the circumstances which sur- the ordeal of six readings in the presence rounded Mr. Patterson there, whether or of careful legislators. Construed as it reads, not there was any cause why he should have it prohibits the exportation from this terascended that car with great speed and haste, ritory only of dams, and the use of nets, and, if so, what that cause was? Explain to fish-traps, and other devices for catching the jury. A. Well, the way that man started fish, and not the fish themselves. in to go up the side of the car, he couldn't see dams cannot be shipped, and the use of a the bridge when he started; and at the speed thing is an incorporeal right, this statute, if the train was running, and him climbing up construed by its words, undertakes to prethe side of the car, by the time the engine vent the performance of an impossibility, struck the bridge, he would be towards the hence, in effect, is void. Conceding, howtop, and, when he heard the thundering noise ever, that it may be construed to prohibit the that the engine makes when it strikes a exportation of fish, as the legislature unbridge, he hurried to get on top of the car." doubtedly designed it, is it in violation of the This testimony was given over the objection section referred to of the supreme law of the of the plaintiff in error. The witness was the land? This question was involved in the court conductor of another train, who was far below, in the demurrer to the indictment, on away when Patterson fell from the box-car. the exceptions to the instructions, and in the He did not know and could not state whether motion for arrest of judgment, and is saved Patterson could see the bridge when he start- by appellant's exception to the ruling of the ed to ascend the ladder, nor how far he had court in those matters. The provision of ascended when the bridge was reached; nei-section 8, art. 1, of the Constitution of the * ** United States, that "congress shall have power to regulate commerce with foreign nations and among the several states," having been so frequently and fully considered by the ablest, including the highest, courts in the nation, it will not be expected we shall, to any length, now attempt its discussion. It is clearly settled and conceded by all, that the above provision of the constitution confers upon congress the exclusive power to regulate commerce between the states, and any statute which attempts to prohibit the shipment into or out of a state of any lawful commodities or articles of commerce or trade is in conflict therewith, and necessarily void. To each state is reserved the power of regulating commerce within its borders, but not that extending across its boundary lines. The state may also, under its police power, enact such laws as are necessary to the protection of the lives, the health, and comfort of its citizens, and for the promotion of good order within its limits. But whenever, under the pretense of an exercise of its police power, the state enacts any statute which operates to prevent the free exchange between the states of lawful articles of trade, it is void because in conflict with that constitutional provision. This is clearly illustrated in a number of recent and interesting cases. Railroad Co. v. Husen, 95 U. S. 468, is a case in which the state of Missouri, under the claim of exercising its police prerogative, and to prevent the spread of contagious cattle disease in the state, enacted a statute forbidding the unloading of Texas cattle within the state, but allowing their passage through it on board of cars or vessels. The court held that cattle were subjects of lawful commerce, and could not be excluded, except when diseased; that the statute practically operated, not in the exclusion of diseased cattle alone, but of all Texas cattle, and was void. The business of butchering cattle, and shipping the dressed fresh meat into the surrounding states from the place of slaughter, has in recent years become an important pursuit, but one which came in conflict with local dealers. To pre vent this, statutes were enacted in several of the western states, purporting to be in pursuance of their police power, and to promote the health of their inhabitants by preventing the importation of diseased meat. They required that all animals should be inspected within 24 hours before their slaughter, and the sale of meat of animals not so inspected should be prohibited. The courts have uniformly held that such statutes are not within the police power of the state, and that, whatever their design, they operate as a prohibition to the importation of dressed meat, which is a lawful article of trade, and whenever these statutes have come before the courts for consideration, they have been held void. The following cases on this subject will be found of interest, and in them the whole subject is fully reviewed: Swift v. Sutphin, 39 Fed. Rep. 630; In re Barber, (Cir. Ct. U. S. D. Minn.) Id. 641; In re Christian, (State Dist. Ct. Minn.) Id. 636: Harvey v. Huffman, (State Cir. Ct. Ind.) Id. 646; Ex parte Kieffer, (Cir. Ct. U.S. D. Kan.) 40 Fed. Rep. 400. In the state of Indiana a statute prohibiting the exportation of natural gas from the state through pipes has, upon the same principle, recently been held void. The state of Kansas has had a statute to prevent the shipment therefrom of fowls and other game. For a violation of this, an express agent was indicted for shipping to Chicago four prairie chickens. The act only prevented the exportation of chickens, and did not prevent their capture and use by the denizens of Kansas, but seemed rather to preserve them for their exclusive use and comfort. It was held void in State v. Saunders, 19 Kan. 128. By the law of this territory we recognize fish as a lawful article of trade. The statute only attempts to preserve them for us, and to deprive our neighbors of their use, which, in the light of the authorities, we must conclude is in violation of the constitutional provision referred to, and therefore void. It follows that the demurrer to the indictment above referred to should be sustained, and it is therefore ordered that the judgment appealed from be set aside, and the indictment dismissed. BERRY, J. i concur that the act, so far as it prohibits the shipping of fish out of this territory for speculative purposes, is unconstitutional. I think the statute is not against the shipping of dams, etc., but is against shipping of fish only. SWEET, J., concurs. (2 Idaho [Hasb.] 651) TERRITORY v. NELSON. (Supreme Court of Idaho. Feb. 24, 1890.) Appeal from district court, Bear Lake county. Smith & Smith, for appellant. R. Z. Johnson, Atty. Gen., for the Territory. BEATTY, C. J. This cause involves the same question disposed of in Territory v. Evans, ante, 115, and both causes were heard and considered together. Upon the authority of the other case, it is ordered the judgment in this be set aside, and the indictment be dismissed. BERRY and SWEET, JJ., concur. (82 Cal. 607) PEOPLE. NAYLOR. (No. 20,569.) (Supreme Court of California. Jan. 27, 1890.) PERJURY-INFORMATION-INSOLVENCY-FALSE INVENTORY. 1. An information from which it appears that an insolvent is charged with committing perjury in this: that as part of his assignment he made an inventory in compliance with Civil Code Cal. § 3461, which requires the inventory to show all the insolvent's creditors; that the insolvent collusively and willfully omitted one of his creditors therefrom; and that he then made an affidavit, in com pliance with section 3462, that the inventory was "just and true, " well knowing that what he swore to was false and corrupt,-is sufficient to give the insolvent to understand that he is charged with willfully, corruptly, and falsely swearing to a matter material in the assignment proceedings. 2. Under Pen. Code Cal. § 123, which provides that in a prosecution for perjury it is sufficient to show that the false statement might have been used to affect the proceeding in which it was made, an information for perjury which charges that an agreement was entered into between an insolvent and one of his creditors in pursuance of which the creditor's name was omitted from the insolvent's inventory, to which the insolvent afterwards swore as "just and true," is good. Commissioners' decision. Department 1. Appeal from superior court, San Diego county; JOHN R. AITKEN, Judge. Hunsaker & Britt and George A. Johnson, Atty. Gen., for the People. Luce, McDonald & Torrance and Geo. W. Hardacre, for respondent. FOOTE, C. The defendant was accused by an information of perjury. A demurrer was interposed on the ground that the information did not substantially conform to sections 950-952 of the Penal Code; that it did not state facts sufficient to constitute a public offense. The demurrer was sustained and from the judgment rendered the people appeal. The sections of the Code with which it is alleged the information does not comply contain a few plain rules tending to simplify the method of charging offenses by information or indictment. The information in question, taking it in its entirety, seems to charge that the defendant has committed perjury by corruptly and collusively, through an agreement with a certain creditor named Foss, omitting such creditor from the inventory which the law required him to make as a part of his assignment as an insolvent, under title 3. pt. 2, div. 4, of the Civil Code, which inventory was filed in the proper public office, and sworn to by affidavit, in due form, before the proper officer, which was attached to the inventory, and filed with it, and which affidavit was false in that the defendant swore in it that his inventory was "just and true" when he well knew it to be false and corrupt. The law required that all creditors of the insolvent should be shown by the inventory, and that the oath that it was "true and correct" should be taken, annexed to, and filed with the inventory. If, then, such an inventory was prepared, which purported to show all the defendant's creditors, and it was sworn to as "just and true," annexed, and filed as required, and a collusive agreement had been entered into by which the creditor was omitted from the inventory, and the oath was false, it would appear that the defendant was charged properly with perjury, if it was further charged that the false oath was as to a material matter. It is charged that the matter falsely sworn to was material; but the defendant claims that the fact that Foss was a creditor, and was omitted from the inventory by his consent, would render the omis sion immaterial; that Foss could not profit by it as against other creditors; and that they would not suffer by reason of such omission. It may be remarked, in passing, that this kind of argument admits that the information shows that there were other creditors named in the inventory; and this nullifies the defendant's contention, viz., that it does not appear from the information that he is charged with having made such an inventory as purported to show all his creditors, as the law requires, because from the information it does not appear that he had any other creditor than Foss. But conceding, without deciding, that the matter about which the false oath was taken is not alleged in the information as in itself alone material to affect the proceeding, yet it does appear in the pleading that it might affect such proceeding, because, if a creditor collude with the insolvent to have his name omitted from the inventory as a creditor, it would probably appear upon the trial that he did so because the debtor was concealing some of his property, which this creditor was aware of, and the agreement to omit might be shown to carry with it, and include, a promise to pay the creditor in full if he would permit the assignment as to other creditors to become effectual and the debtor released by paying them a part only of their debts; or the taking of any other such unjust advantage, might be shown to be in contemplation, the unfairness and fraud of which would defeat the assignment. In this point of view, the allegation is sufficient to be within the provisions of section 123 of the Penal Code. In all necessary respects, we think there can be no doubt but that the information is sufficiently full in its allegations. It does not appear from it that it is not within the power of the defendant easily to understand and appreciate that he is accused of perjury, in this: that he filed an inventory which purported to comply in all respects with a certain law, (Civil Code, § 3461,) which law requires, among other things, that the inventory shall show all his creditors; that such showing in the inventory omitted therefrom a creditor, one Foss; that this omission was willfully and collusively done; that the defendant then filed the inventory containing this false statement in the proper public office, with an affidavit attached, in which he swore that the inventory was "just and true," (Id. § 3462,) well knowing that what he swore to was false and corrupt. This, we think, was amply sufficient to make him know and understand that he was charged with willfully, corruptly, and falsely swearing to a matter which was material in the proceedings of his assignment as an insolvWe think the information was sufficient, and advise that the judgment be reversed. ent. |