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of bonds, and provides a full scheme of taxation to secure funds for their payment.
But it is contended by the plaintiff in error that the words found in section 3, authorizing the majority of the legal voters to "fix the amount and size of bonds," must be read in connection with the general law, and be supplemented by the words found in that law, namely, "not exceeding ten mills on the dollar on the taxable property of the township.' We are unable to agree with this contention of counsel, for the following reasons: First, the legislature, as already observed, undertook to provide a complete scheme to accomplish the desired purpose, and we should not presume, in the absence of a plain and clear intent to the contrary, that it meant what it did not say; second, the act in question is obviously the exercise of a power reserved to the legislature by the general law (sections 78, 79, c. 11, Gen. St. 1866) to permit, by special law, in exceptional cases, the creation of debts by towns in excess of the limit prescribed by the general law; third, the act of 1868, by clear and unmistakable language, authorizes each town in Freeborn county, among others, to issue bonds "as hereinafter provided," and then provides for an election, conferring upon the majority of the legal voters of the town power to "fix the amount of bonds to be issued." In other words, the legislature, being satisfied that the best interests of the towns justified them in extending aid to railroad construction in their counties, left it to the judgment of the majority of the legal voters to determine whether the towns should grant any aid, and, if so, to fix the amount of such aid. The whole matter relative to the amount of bonds to be issued was relegated to the judgment of the legal voters of the town, who, by self-imposed taxation, were required to make provision for the payment of the same.
The foregoing conclusions are in harmony with the views expressed by the supreme court of Minnesota in the case of State v. Town of Clark, 23 Minn. 422. The town of Clark was one of the towns in Faribault county which issued bonds in aid of a railroad, under the provisions of the act of March 6, 1868. In 1872 the constitution of Minnesota was amended so as to create an effectual inhibition against contracting any indebtedness by towns in excess of 10 per cent. of the value of their taxable property. It was contended by the town that the constitutional amendment abrogated. the act of 1868, so that no authority to issue bonds thereunder existed after the adoption of the constitutional amendment. The court in its opinion takes occasion to say:
"By Sp. Laws 1868. c. 24, as amended by Sp. Laws 1869, c. 44, and Sp. Laws 1870, c. 49. any town in the county of Faribault was authorized to issue bonds to aid in the construction of any railroad running into such County. No limit was placed upon the amount of bonds which might be issued by any town upon the determination of its voters. Prior to the taking effect of this [constitutional] amendment, the power of the legislature to authorize the issuing of bonds or the incurring of indebtedness [in aid of railroads] by any of the municipal corporations mentioned was unlimited as respected the amount of bonds and indebtedness. ** ** * At the time when the amendment was made [in 1872], the laws under which the town of Clark was authorized to issue the bonds in question had been
enacted and were in full force. They placed no limit upon the amount of bonds issuable, save such as might be fixed by the voters."
While it may be said that the real question now under consideration was not necessarily involved in that case, and therefore that the opinion expressed by the supreme court is not such an interpretation of local law as, under recognized principles, should control our judgment, it is nevertheless true that the supreme court in that case had the general subject before it, and expressed views in harmony with reason, and which commend themselves to our judgment.
In the case of State v. Routh, 61 Minn. 205, 205, 63 N. W. 621, 622, the supreme court had under consideration the rule governing the construction of statutes of Minnesota, and announced its conclusion as follows:
"When a general intention is expressed, and also a particular one which is inconsistent with the general one, the particular intention will be considered an exception to the general one; that is, where a special law which applies to a limited district, as a city, conflicts with a previous general law, the latter yields to the former."
In the case of Board of Com'rs of Seward Co., Kan., v. Ætna Life Ins. Co., 32 C. C. A. 585, 590, 90 Fed. 222, 227, the rule was laid down by this court thus:
"Privileges granted by special act are not affected by inconsistent general legislation on the same subject, but the special act and the general laws must stand together, the one as the law of the particular case, and the other as the general law of the land."
To the same effect also are the following authorities: Townsend v. Little, 109 U. S. 504, 512, 3 Sup. Ct. 357, 27 L. Ed. 1012; Gowen v. Harley, 6 C. C. A. 190, 56 Fed. 973; Felt v. Felt, 19 Wis. 193, 196; Ex parte Smith, 40 Cal. 419; Crane v. Reeder, 22 Mich. 322; Suth. St. Const. §§ 158, 159.
For the reasons hereinbefore stated, and on the authorities cited, we entertain no doubt that the trial court correctly ruled that the special act of 1868 conferred ample authority upon the town of Alden to incur the indebtedness represented by the bonds in question.
Our attention was called in the argument to several acts of the legislature of Minnesota passed in 1871, 1875, 1881, and 1883, recognizing the validity of the bonds in question, and also to the fact that the town of Alden had levied taxes to pay the interest on the bonds from year to year, beginning with 1871 and ending with 1897, and had actually paid the same without objection, and without any claim that the bonds were invalid; and it was argued with much force and persuasiveness that the acts of the legislature in question constitute a legislative recognition of the validity of the bonds, and that the acts of the town in levying taxes and paying the interest on the bonds for a period of nearly 30 years evince a construction of the statutes by the parties in interest in harmony with the contention of the defendant in error, and that these acts of the state and of the parties should be given force in the determination of the question now involved.
It is certainly true that, in cases of doubt concerning the true interpretation to be placed upon legislative enactments, resort may be had to contemporaneous, and even subsequent, legislation, to ascertain the true intent and meaning of that in question; and it has been held by this court in the cases of County of Washington v. Williams and Blair v. County of Washington (decided at its last May term; C. C. A.) III Fed. 801,1 that, even in cases involving the power of a municipality to aid in the construction of a railroad, a liberal interpretation should be placed upon the act claimed to confer the power when first brought in question after the lapse of many years of continuous recognition of the validity of the bonds issued thereunder. But, in the view we have taken of the legislation involved in this case, we find no occasion to resort to these extraneous aids. The act of March 6, 1868, for the reasons hereinbefore stated, conferred adequate power upon the town of Alden to issue the series of bonds in question.
Some other questions were discussed by counsel at the argument and in their briefs, but, as they are not based upon any assignment of error, they require no consideration at our hands.
The judgment of the circuit court is affirmed.
(113 Fed. 66.)
CANNEY v. WALKEINE.
(Circuit Court of Appeals, First Circuit. June 14. 1901.)
MASTER AND SERVANT-INJURY THROUGH NEGLIGENCE OF SUPERINTENDENT — MASSACHUSETTS STATUTE.
The provision of the Massachusetts employers' liability act which gives a right of action against an employer for a personal injury caused to an employé "by reason of the negligence of any person in the service of the employer, entrusted with and exercising superintendence, whose sole or principal duty is that of superintendence," is remedial in character, and not to be so artificially and narrowly construed that the fact, alone, that one given authority of superintendence works with his hands the greater part of the time, necessarily excludes him from being one whose "principal business is that of superintendence," nor do the decisions of the supreme judicial court of the state thereon require such a construction; and where a superintendent, although so working himself, is also during the same time that he is working actively exercising the duty of superintendence, that may be found, in a proper case, to be such "principal business."
In Error to the Circuit Court of the United States for the District of Massachusetts.
Walter T. Badger (Solomon Lincoln, on the brief), for plaintiff in
William A. Pew, Jr., for defendant in error.
Before COLT and PUTNAM, Circuit Judges, and BROWN, District Judge.
149 O. C. A. 621.
PUTNAM, Circuit Judge. In this case there were a verdict and a judgment for the plaintiff below, and the defendant below sued out this writ of error. It will be convenient to use the word "plaintiff" as indicating the plaintiff below, and "defendant" as indicating the defendant below.
The action rests on the provision in the employer's liability act of Massachusetts which gives a right of action for a personal injury caused to an employé, "by reason of the negligence of any person in the service of the employer, entrusted with and exercising superintendence, whose sole or principal duty is that of superintendence.” The defendant's proposition is as follows: One who labors the "most of the time with his hands" is not a superintendent, within the meaning of the statute. He puts it to the effect that the statutory word "principal" means principal in point of time, and that the idea that it means principal in point of importance has been expressly negatived. He maintains that this is an arbitrary rule applied by the supreme judicial court of Massachusetts to the construction of this statute, with reference to the circumstances which he claims the jury would have been justified in finding to have existed in the case before us, and he asked an instruction to the jury accordingly. This was not given.
The plaintiff was engaged in drilling in the defendant's granite quarry. While so employed he was struck from behind by a rope, and was thrown down and injured. The rope was in use to hold down the blocks of a derrick in the same quarry, and it was being tightened by the alleged orders of one Anderson when it struck the plaintiff. There was evidence tending to show that Anderson was negligent, and that his negligence caused the injury.
Anderson was employed by the defendant with the gang in which the plaintiff was working. The defendant testified that he had a man under him who acted for him when he was away,-one Edward Dyer; that he was sometimes there himself, and "then Dyer was there"; that he had four gangs of men (that is, one for each derrick); that there was one man to take charge of each of these gangs; that Anderson had charge of one of them, consisting of from six to seven men; that Anderson would go into the quarry in the morning, and put on the chalk line, and tell the men to cut that line; that he would see that the stone was all right; that, if he (the defendant) had an order for any particular dimension of stone, he would write it off on a card and give it to Anderson; that Anderson would get it out and hoist it up; that, when Anderson was not otherwise engaged, he would take his hammer and go to work with the rest of the gang, -"just the same as the rest of them"; and that he (the defendant) paid the quarryman from 14 to 17 cents an hour, and Anderson about 25 or 30 cents. Anderson testified that the superintendent told him what kind of stone he wanted, and that he did the rest; that he would make up his mind where he would get out stones, and took them wherever he pleased from the ledge on which he was directed to work; that he laid out the lines; that, after the stones were split and blown out, they were hoisted up on the bank, and were there put on a railroad train or wagons; that he had charge of the stones from
the time they were started in the pit until they left the quarry; that the man in charge of the derrick was under him, and also the engineer, the tool boy, and the signalman; and that he told them what he wanted done, and they did it. This evidence leaves it entirely plain that, although the plaintiff worked with Anderson and Anderson worked with the plaintiff, they were not wholly employed in the same class of labor, and that Anderson had under his charge men not engaged in drilling, and therefore men not engaged in precisely the same labor in which the plaintiff was engaged, although in the common work and in the same gang. It is not questioned that` Anderson was the "boss" of the gang, in the way in which that expression is commonly used, nor that the jury might properly have found that he was engaged, at least to some extent, in superintendence, with the meaning of the statute.
The plaintiff, referring to Anderson, testified, among other things, as follows:
A. Bossed the men.
"Q. What was he doing when you were at work? "Q. Was he doing that all the time? A. All the time. "Q. Was he present during every hour of the day, looking after the men and watching them? A. Yes."
It was testimony of this character to which the court referred when it said to the jury: "There is some evidence in this case that the man [Anderson], while at work, was also engaged in the line of superintendence; that, even if working with his hands, he was engaged in keeping an outlook upon the work, and giving directions to the men."
At the outset the court said to the jury:
"There is no arbitrary rule by which you can determine, or, rather, which I can state to you as a rule which should govern your determination of this question. I cannot say to you, and the statute does not mean, that because a man is engaged a fourth of the time in giving orders or directions or planning the work, or because he is engaged a half of the time in manual labor, the question should turn one way or the other, or three-fourths of the time or nine-tenths of the time, as has been stated in one of the decisions of the supreme court of Massachusetts. So it is an open and fair ques n for you to determine, upon your experience and understanding as to the way things are done, and upon the evidence, whether it was either the sole or principal duty of the man Anderson to superintend and direct."
Thereupon the defendant made the following request:
“I would want your honor to charge that, if the jury find that Anderson did labor most of the time with his hands, he was not a superintendent, within the meaning of the statute."
The court replied to this, "I should have to deny that, in that abstract form," but it reinstructed the jury as follows:
"There seems to be some misunderstanding, gentlemen, as to just what I said with respect to the consideration to be given to the situation if Anderson worked with his hands a fourth of the time, a half of the time, or threefourths of the time, or nine-tenths of the time. I did not intend to say to you that such expressions on the part of the witnesses would control, or, if you should find he did actually work a large porti n of the time, that the question of superintendence would necessarily turn upon that fact alone, for the reason that there is some evidence in this case that the man, while at work, was also engaged in the line of superintendence; that, even if working with his hands, he was engaged in keeping an outlook up n the work and