ing the selection of jurors in the county of Cuyahoga, was held not to be a law of a general nature, within the meaning of this section. In State v. Hoffman, 35 Ohio St. 435, an act providing for the relief of W. M. Corry from an assessment under public improvement in the city of Cincinnati, in Hamilton county, is held to be an act of local and temporary nature, and that the relief was not of the character which should necessarily be granted by general law. In State v. Commissioners, 35 Ohio St. 458, it is held that an act providing for the improvement of a certain designated county road was local in its nature, and not in conflict with this section. In State v. Board, 38 Ohio St. 3, it is held that an act requiring the board of education of a city to release the sureties of a county treasurer from liability for school funds of the board which came to the hands of the treasurer for disbursement was not a general act. In State v. Powers, 38 Ohio St. 54, an act to consolidate the territory comprising the township of New London, Huron county, into a special school district, was held to be in conflict with the section in question, on the ground that the public schools in the state of Ohio, and their conduct and management, were matters of a general nature. The case of State v. Powers, in this regard, was expressly overruled in the case of State v. Shearer, 46 Ohio St. 275, 20 N. E. 335, in which it was held that the subject of dividing territory into school districts is in its nature local, and hence the formation of a special school district from territory within the limits of a township, by special act, was not in conflict with section 26, art. 2, of the constitution. The first paragraph of the syllabus in the Shearer Case, which, in Ohio, states the law of the case, is as follows:

"(1) A law is not necessarily of a general nature by reason simply of its being upon a general subject. (2) Special legislation upon a subject-matter in its nature local is not prohibited by section 26 of article 2 of the constitution, notwithstanding the subject-matter is the subject of a general law.”

The case of State v. Shearer was cited approvingly in the case of Metcalf v. State, 49 Ohio St. 586, 31 N. E. 1076.

In Hart v. Murray, 48 Ohio St. 605, 29 N. E. 576, it was held that an act providing for compensation for justices of the peace in certain cities of the second grade of the first class in the state, in lieu of fees, was not a law of a general nature, but was local in its character, and did not come within the constitutional inhibition. In State v. Kendle (decided in 1895) 52 Ohio St. 346, 39 N. E. 947, it was held that the act of the general assembly requiring common pleas judges in the several subdivisions of the common pleas districts of the state to appoint jury commissioners was not in conflict with the section under consideration, although it did not operate in six counties of the state. On the other hand, it has been held, under the same section, in Ex parte Falk, 42 Ohio St. 638, that a statute providing punishment for an act which is malum in se wherever committed, being a law of a general nature, cannot be made local on the ground that the inhibited act is of greater evil in a large city than in other parts of the state. In State v. Winch, 45 Ohio St. 663, 18 N. E. 380, it was held that an act passed April 12, 1876, to prevent gambling and the selling of intoxicating liquors on or within a certain dis

tance of Chippewa Lake, in the county of Medina, was a law of a general nature, and invalid. In State v. Ellet, 47 Ohio St. 90, 23 N. E. 931, it was held that an act to require the county commissioners of a certain county to provide a depository for the county funds was a law of a general nature, for the reason that the funds there deposited were part of the state funds, and concerned the people of the state. In Commissioners v. Rosche, 50 Ohio St. 103, 33 N. E. 408, it is held that an act to provide for refunding of taxes erroneously paid under section 2742 of the Revised Statutes in counties containing a city of the first grade of the first class was legislation of a general character, not having uniform operation, because there could be no reason why a taxpayer of Hamilton county should have any more speedy remedy for the recovery of illegally paid taxes than the taxpayer of any other county of the state.

These cases show the condition of the law down to the time when the bonds in the present case were issued and paid for. It seems to me that a consideration of this act shows clearly that its object was of a local and temporary nature. At this time townships were not authorized by general law to refund their indebtedness. It might very well be (and we must assume in support of the law that it was the case) that the indebtedness of this township was of such a character that it could not be paid off readily by taxation, and needed to be refunded in long-time obligations. The law does not apply to the future indebtedness of the township, but only to that which was in existence at the time of the passage of the act. Now, while it is true that the refunding of township indebtedness may be provided for by general laws, this, under the decisions already quoted, and especially that in State v. Shearer, 46 Ohio St. 275, 20 N. E. 335, is not a reason for holding that the subject-matter of the special law is necessarily general. In accordance with these decisions, it seems to me clear that at the time these bonds were issued the result of judicial construction of the constitution was that particular township indebtedness, as well as particular county indebtedness, might be provided for by special act. Any other view cannot be reconciled with Cass v. Dillon, 2 Ohio St. 607, and State v. Trustees, 8 Ohio St. 394. It is true that in two decisions some years subsequent to the issuing of these bonds, to wit, in Hixson v. Burson, 54 Ohio St. 470, 43 N. E. 1000, and State v. Davis, 55 Ohio St. 15, 44 N. E. 511, the operation of section 26, art. 2, of the constitution, has been given a much broader effect, and the subject-matter of an act authorizing a particular county to build a county road, and a particular county to build a county bridge, and issue bonds therefor, has been declared to be of a general nature, and so invalid, because not having uniform operation. These decisions, however, expressly overrule the decision of the supreme court in State v. Commissioners, 35 Ohio St. 458, and are undoubtedly to be regarded as a change in the judicial construction of this section by the highest court of the state. I do not think it necessary to consider the question whether, even under these decisions, the legislation under discussion might not still be regarded as of a local nature, though the fact that the power might be conferred by a general act would seem, under

those decisions, to render the special act conferring it invalid. It is quite sufficient to hold, in favor of a bona fide purchaser for value, that, under the judicial construction of the constitution in force at the time the bonds were issued, this act was not to be regarded as an act of a general nature, and was not, therefore, invalid. This principle is so well established that a reference need only be made, without discussion, to the cases. See Douglass v. Pike Co., 101 U. S. 677, 25 L. Ed. 968; Loeb v. Trustees (C. C.) 91 Fed. 37.

3. Reliance is had upon section 7 of article 10, whereby it is provided that the commissioners of counties, trustees of townships, and similar boards, shall have such power of local taxation for police purposes as may be prescribed by law. It is said that this limits the power of the trustees of townships to incur any indebtedness except for police purposes, because it is implied that the township cannot contract debts except for purposes for which it may levy a tax. This contention cannot be reconciled with the language of Judge Thurman in the case of Cass v. Dillon, 2 Ohio St. 607, 622, already referred to. But it is immaterial, in this case, whether the township has power to contract debts for other than police purposes, because there was nothing on the face of the bonds to show that the existing indebtedness was contracted for anything but police purposes.

The act under which the bonds were issued being valid, for the purposes of this suit by the plaintiff, the question next arises whether, in the face of the recitals of the bonds, the defendant is entitled to. show that there was no valid existing indebtedness at the time the bonds were issued, and that the real purpose of issuing the bonds was to obtain money with which to comply with another act of the legislature authorizing the township to issue bonds for railroad purposes, a purpose plainly in violation of the constitution of Ohio. The act contains no express provision as to who shall determine what was the amount of the present existing, outstanding indebtedness. The bonds, however, were to be issued by the trustees of the township. They were the officers of the township properly charged with the duty of incurring the indebtedness of the township, and therefore with the duty of determining, primarily at least, what was its valid indebtedness, in fixing the tax rate for its payment. There is no provision in the act referring to a public record of the indebtedness, and no requirement that such a record should be kept in the act itself. The second section does contain a provision that the bonds shall contain a recital that they are issued under and by authority of this act. It seems to me clear that this provision intends to confer upon the trustees of the township, in issuing the bonds, power to make a recital which shall show that the bonds have been duly issued under the act, and therefore that the limit of indebtedness prescribed by the act has not been exceeded in their issue. In other words, the act confers, by implication, upon the township trustees, the power to recite the fact which they do recite in the bond, to wit, that the valid outstanding indebtedness of the township is such as to justify the issue of the bonds in order to refund it. The case therefore comes clearly within the decision of the supreme court of the United States in Commissioners v. Rollins, 173 U. S. 255, 19 Sup. Ct. 390, 43 L. Ed.

689; and not within the cases of Chaffee Co. v. Potter, 142 U. S. 355, 12 Sup. Ct. 216, 35 L. Ed. 1040; Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. 315, 28 L. Ed. 360; and Lake Co. v. Graham, 130 U. S. 674, 9 Sup. Ct. 654, 32 L. Ed. 1065. It comes, also, within the case of City of Cadillac v. Woonsocket Institution for Savings, by the circuit court of appeals for this circuit (7 C. C. A. 574, 58 Fed. 935), and within the case of City of Huron v. Second Ward Sav. Bank, 30 C. C. A. 38, 86 Fed. 272, and the cases there cited.

It is plain that it was not the legislative intention to refer the purchasers of these bonds to the records of the township, from which it might be possible to make out the liabilities of the township accruing from time to time; but it was intended by the recital on the face of the bonds to save the purchaser from this necessity, and to justify him in relying upon the honesty of those recitals, which were to be made, it may be observed, by the same officers of the township who, under the law, would contract that indebtedness, and must provide for its payment.

These views lead me to the conclusion that the plaintiff is, in this case, entitled to a judgment for the full amount of the bonds and coupons sued upon, with interest, as claimed in the petition.

S. B. Bailey, for plaintiff in error.

Wm. H. Harris, for defendant in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

PER CURIAM. For the reasons stated in the opinion of the judge in deciding this case at the circuit, the judgment is affirmed.

(106 Fed. 987.)

FARRELL v. CONTINENTAL IRON WORKS.

(Circuit Court of Appeals, Second Circuit. March 12, 1901.)

No. 123.

NEGLIGENCE-ACTION FOR PERSONAL INJURY-SUFFICIENCY OF EVIDENCE. Libelant contracted to carry a cargo of coal on his canal boat, and deliver the same to respondent, as consignee, and to tend the guy while the cargo was being discharged by respondent. While holding the guy rope in the performance of such duty, it came untied from the chain to which it was fastened, and in consequence libelant fell and was injured. The rope had been tied in the morning by an employé of respondent, but the knot was examined by libelant, who was competent to judge of its sufficiency, and he testified that it was sufficient and could not have come untied. Held, that he assumed the risk of its sufficiency, and could not recover on the ground of the negligence of respondent's servants; the preponderance of evidence showing that none of such servants had disturbed the knot since it was first tied.

Appeal from the District Court of the United States for the Eastern District of New York.

Suit to recover for personal injury on the ground of negligence. Libelant appeals from a decree dismissing the libel.

The opinion filed below, and here reprinted from 102 Fed. 514, was in full as follows:

THOMAS, District Judge. The libelant, who was the owner and captain of the canal boat Lizzie Farrell, entered into a contract with Coxe Bros. & Co., whereby the libelant agreed to carry on his boat certain coal from Perth Amboy, N. J., and deliver the same to the Continental Iron Works, the respondent, and receive therefor the sum of 20 cents per ton alongside; and the libelant also agreed to tend the guy during the discharge of the boat. For the purpose of tending the guy, the libelant stood on one side of his vessel and held a rope, which from his hands ran to and fastened to the chain connecting the bucket with the fall. Some person, who seems to have been connected with the drawing away of the coal, tied the guy rope to the ring in the chain, in the presence of the libelant, and the latter tended the guy rope thus fastened from about 7 in the morning until 12 noon. After an interval of an hour he resumed his work, and continued until about half past 3 o'clock, at which time the end of the rope fastened through the ring became untied, causing the libelant to lose his balance and fall back upon a load of coal in a canal boat behind him, and receive the injuries which are the subject of the present action.

In whatever legal relation the libelant stood to the respondent, the same degree of care was required of the latter, and the question is whether such care was exercised. The libelant testifies that before starting work in the morning he noticed how the guy rope was fastened; that there were 12 or 14 inches hanging over on the short end, and that, as long as it was fastened as he found it in the morning, it was impossible for it to become untied; that the reason he did not notice it in the afternoon was because he thought it was the same fastening as in the morning. The evidence of the libelant is explicit that he knew what the tie was in the morning, and that it was suffi cient. Therefore, by whosesoever hand it was made, it must be concluded that the respondent, or somebody acting in its behalf, had exercised the reasonable care required to secure the safety of the libelant, so far as the manner of fastening the guy rope was concerned. The result shows that the tie was not secure, but the libelant had opportunity to see, and did see. He had the knowledge of an expert, which capacitated him to pass upon the sufficiency of the knot, and he did pass judgment upon it. The respondent was not an insurer, nor bound to the highest care in adjusting the knot, and the judgment of the libelant is conclusive evidence that the respondent used the care imposed upon it. If there was risk, the libelant had an opportunity to know what it was, and, whatever it was, he assumed it. But the libelant urges that the fastening of the morning was not the fastening of the afternoon. He states that he thought it was the same. Therefore to his eye there had been no change. It appears that at the noon hour the fall was changed, by the rope of which it consisted being renewed in whole or in part. But, whatever was done, it was not necessary to untie the guy rope. Nor is it apparent what useful purpose would have been effected by untying it. But