so bad in Rome that it was considered an honor during her lifetime for a woman to have but one husband. A model epitaph on the grave of a Roman matron set forth that her life was "pious and exemplary, and that she had only one husband." Juvenal tells us how a lady could change her husband eight times in five years; and St. Jerome relates the spectacle could be witnessed at Rome of a woman who died, having had twenty-two husbands. The good father might have added, her last bridegroom had been divorced twenty-one times; the State paid the expenses of this curious marriage, and when the woman died she was decreed a public funeral.--Am. Law Review.

In California it has just been decided that where a telegraph company stipulates that it shall not be liable for mistakes occurring in transmitting messages, though the mistake is occasioned by the company's own negligence, unless the message is repeated, the stipulation is vcid and the company may be held to damages by the sender of the message (Hart v. W. U. Tel. Co., 24 Am. Law Reg., 164). In this State, in Camp v. Tel. Co., 1 Met., 164, a similar agreement was sustained and the company held not liable for the mistake, but the mistake in that case was considered as caused by atmospheric disturbances which affected the wires and which the company could not control, and not by its own negligence. This is the only telegraph case which the Kentucky Court of Appeals has ever had before it.

An architect employed to make drawings for a building, which drawings are not accepted, can not recover for his services a percentage of the estimated cost of the building, but only a reasonable compensation for the time expended in making the drawings. (Scott v. Maiied, 23 N. W. Rep., 218, Mich. Sup. Ct.)

A recent writer on Codification, Judge Sneed, of Tennessee, says: “In my judgment one of the greatest evils under the sun is the rapid accumulation of books of reports which contain no new doctrine. Just think of it. A hundred years ago there was not a book of reports on this side of the sea. Ninety years ago there were only two. And yet that was confessedly the Augustan age of great American lawyers. Now there are between three and four thousand, and they are accumulating in this country at the rate of about a hundred every year. It was found that there were not geese enough in all the world to supply the judiciary with quills to write opinions with, and an ingenius artisan at Sheffield invented steel pens and scattered them broadcast over the world, mainly to meet the demands of the cacoethes scribendi, which, like an epidemic, had smitten the common law and equity courts of England and America." He insists further, that judges should deliver oral and not written opinions.

It appears from recent jury lists that about one-sixth of the grand and petit jurors drawn in Washington Territory are

women.

Lord Bacon says: "Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. And above all things integrity is their portion and proper virtue, "

KENTUCKY COURT OF APPEALS.

COMMONWEALTH, FOR, &c. v. THE BOONE CO. CT. (Filed April 3, 1885.)

1. Statutory construction-A general statute and a local statute, subsequently passed, will both be upheld so far as they are not inconsistent with each other.

2. Erecting bridges-Discretion of county court-Mandamus-The county levy court having jurisdiction to order the erection of new bridges, and re

fusing even to consider an application for one, it may be compelled by mandamus either to refuse or to grant the application. But in passing on the question it has discretion, and should it refuse (even erroneously) the application, mandamus will not issue to compel it to act differently.

Appeal from Boone Circuit Court.

Opinion of the court by Judge Holt.

Chapter 28, article 16 of the General Statutes, says that the "county courts have jurisdiction to lay and superintend the collection of the county levy, erect and keep in repair necessary public buildings, bridges, and other structures, and superintend the same." Section 29, article 1, chapter 94, provides that "if, in the opinion of the surveyor, the task of erecting or repairing a bridge or causeway be too onerous to impose on his force, he may report the case to the county court, whose duty it shall be to provide by proper means for the necessity;" while section 35 reads thus: "When a bridge or causeway shall be necessary on a road, and the expense of erecting or repairing the same is too great to impose on the precinct, the county court of the county shall have the same erected or repaired, and levy the cost thereof on the county."

The provisions supra of the general law were not repealed, either expressly or by necessary implication, as to Boone county by the act of the legislature, approved January 29, 1874, entitled "An act relating to opening and repairing roads in Boone county," or by that approved March 30, 1882, entitled "And act to amend and reduce into one all the laws relating to opening, repairing, keeping in repair, and levying and collecting taxes for the benefit of public roads in Boone county;" ner was the general law as found in chapter 94 of the General Statutes, entitled "Roads and Passways," repealed as to said county by said two acts save so far as its provisions are in conflict with them. They expressly provide that "acts in conflict" with them are repealed. It is true that the one first above named provided that the general road laws of the State should remain in force entire as to Boone county until April, 1875; but this was because the act, if ratified by a majority of the

voters of the county at the succeeding August election (as it had to be to be operative), was not according to its provisions. to be put into operation until April, 1875; when, if so ratified, it repealed the general law to the extent that it conflicted. with it.

To show that this construction of the acts in question is correct but one illustration need Le given. The one approved March 30, 1882, provides that the surveyor of each road pre-cinct shall notify each person within it, "who is required by law to work upon public roads," of the time when and place where he must do so; and a penalty is provided against any person "liable to work upon public roads" who fails to comply with the notice; while the other requires that in the allotment of road districts each shall contain the same number of persons that are by law required to work on the roads; and also provides for the levy of a poll tax upon them; and yet neither act prescribes the persons who may be required to so work; and their provisions in the main are nugatory unless supplemented by the general law upon the subject so far as they do not conflict. Neither of them provides for the erection or original construction of bridges, and speak only of their repair.

The rule is well established that a statute is repealed only when a subsequent law expressly so provides, or by necessary implication; and the latter is not favored and is only effecttual when they are so inconsistent with each other as to be incapable of reconciliation; and when one is local in its application, and the other is general, they will both be upheld as a consistent whole so far as they are not absolutely inconsistent.

The appellants first presented a petition to the Boone county levy court, asking it to erect a bridge, at a cost of about $5,000, over Wolfer creek, about one and a fourth miles from where it empties into the Ohio river, and upon the county road leading from Bellevue to Petersburg, a distance of about seven miles. The creek being the line between two road precincts, the petition was accompanied by the reports of the surveyors of those precincts, stating that the erection of the bridge was necessary.

and that its construction by the two precincts would be too onerous upon them. The ground of the application was that the rise of water in the creek from freshets and the back water from the Ohio river often rendered travel over the road impossible. The court of claims refused to consider the matter. This suit was then brought to compel the levy court by mandamus to build the bridge. The demurrer to the petition and amendments to it admits as true the matters therein alleged: and when so considered they authorized the mandamus, if the county levy court had a mere plain duty to perform, which was absolutely enjoined by law, or was required to act ministerially only in a matter as to which it had no judicial discretion. The circuit court, acting doubtless upon the idea that the county court had such discretion, entered an order requiring it at a certain time to hear the matter, and make such order as it might then deem proper and expedient.

This action was proper if the belief of the court was correct as to the power of the county court, because it had refused to even hear the matter or exercise its discretion.

If an inferior tribunal has a discretion and proceeds to exercise it, then its discretion should not be controlled by mandamus; but if the subordinate public agent, whether it be invested with both judicial and ministerial functions, or only with the former, refuses to act in any way, or entertain a question as to which it has a discretion, and which the law has enjoined upon its consideration, then obedience to the law should be enforced by mandamus and the agent compelled to act, if there is no other legal remedy; but in such a case its discretion or judgment must be left free to act, and can not be controlled in a particular direction. The performance of a plain, positive duty may be compelled by mandamus, but where there is a discretion as to the result that may be arrived at, it can not be controlled. Thus if the judge of an inferior court captiously refuses to hold a court, he may be compelled to do so; and the rule applies equally to all officers, whether strictly judicial or not, if invested with a discretion. (Warren Co. Ct. v. Daniel,