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the injury is immediate, pressing, and irreparable, and clearly established by the proofs, and not acquiesced in by the plaintiff; since an order directly compelling an abatement of the nuisance, or a removal of the obstruction, cannot be made upon interlocutory motion. The rule is fully estab

lished-at least by the English decisions, and is not controverted by American authoritythat in such cases, where the facts are clearly established, and the injury is real, and the plaintiff acted promptly upon his acquir ing knowledge of the defendant's proceeding, a preliminary mandatory injunction may be granted, although the act complained of was fully completed before the suit was commenced. It should be observed, however, that no other equitable remedy is more liable to be defeated by acquiescence, or by delay on the plaintiff's part, from which acquiescence may be inferred." Mr. High, in his work on Injunctions, says: "Mandatory injunctions are seldom allowed before a final hearing, though they may be granted on interlocutory applications; and, while a court of equity is always reluctant to grant a mandatory injunction upon an interlocutory application and before final hearing, it may yet do so in an extreme case, when the right is clearly established, and the invasion of the right results in serious injury." The establishment in question is one of a kind licensed by the law of the state. This court has in several cases passed upon matters relative to the licenses imposed on such establishments. The petition for injunction sets out a considerable volume of matter in pais, as to the manner of conducting the particular establishment in question. Cases may unquestionably arise in which the courts would have the power to prostrate a nuisance before trial. Yet, when the matter involves the absolute closing up, in advance of any hearing on the merits, of a business apparently authorized by law, it is manifest that the courts will act with caution, and only in clear cases. The business of no one would be safe if, upon an ex parte charge that it is a nuisance, and before an opportunity to disprove is afforded, a court, without first being satisfied that it is a case requiring an extraordinary remedy, were to close the business. The case presented, circumstanced as it is, does not appear to us to be such a one as warranted the rendering, in limine and ex parte, of a virtual decree of abatement. We distinctly say, however, that we are not to be understood as in any manner expressing or intimating an opinion as to the merits. The question for us now to decide is whether the modification of the order of injunction will cause irreparable injury to the relators, and whether, for that reason, they are entitled to a suspensive appeal from that order. We mean only that, after considering the facts stated in the petition for injunction, the order modifying the injunction, and the law, we are satisfied that

no irreparable injury can result to the relators from the order. We do not see how, during the time which will elapse until the case comes to us on appeal, the relators can be irreparably injured by the conduct of the business in accordance with the laws of the state and the ordinances of the city, and so as not to cause a nuisance to the relators. We agree with the district judge that, pendente lite, the alleged nuisance may be properly controlled and regulated under the modified order. The relators are not entitled to the relief sought by them. The court being of opinion that the relators have not shown sufficient grounds for the allowance of the writs of mandamus, prohibition, and certiorari herein prayed for, and that the relators are not entitled to said writs, the application for the same is hereby refused, and the provisional order herein granted is set aside.

YERBY, County Treasurer, v. COCHRANE. (Supreme Court of Alabama. Dec. 20, 1893.)

STATUTES-TITLE-SUBJECT-MATTER.

Act No. 418 of 1892-93, (Acts 1892-93, pp. 934-936,) entitled "An act to provide for and regulate the pay of state witnesses in T. county," and setting apart one-half of all fines collected in the courts of the county to the pay. ment of witnesses for the state in criminal prosecutions in said courts, clerk of the circuit court, and sheriff, who shall be required to appear in criminal prosecutions, violates Const. art. 4, § 2, declaring that each law shall contain but one subject, which shall be expressed in its title, and is entirely void, its provisions being so dependent on each other.

Appeal from circuit court, Tuscaloosa county; S. H. Sprott, Judge.

Action by W. G. Cochrane against J. S. Yerby, as treasurer of the county of Tuscaloosa, to recover the amount due on certain state witnesses' tickets that had been issued by the clerk of the county court of Tus aloosa county. Judgment for plaintiff. Defendant appeals. Reversed.

The plaintiff based his right to recover on an act of the general assembly entitled "An act to provide for and regulate the pay of state witnesses in Tuscaloosa county," and alleged in his complaint that said state witnesses' tickets had been regularly indorsed to him, and he was the owner thereof. The defendant demurred to the complaint on the ground that the said act of the general assembly, on which the plaintiff's demand was based, and on which the complaint counted, was unconstitutional and void, as violative of section 2, art. 4, of the constitution of Alabama, and that the subject of the act was not clearly expressed in the title, and that the said act contains more than one subject. This demurrer was overruled, and the defendant pleaded two special pleas. Plaintiff's demurrer to these pleas being sustained, the defendant declined to plead further, and there was judgment rendered for

the plaintiff upon a verdict being returned by the jury.

Foster & Oliver, for appellant. Wm. G. Cochrane and A. B. McEachin, for appellee.

MCCLELLAN, J. Act No. 418, passed at the session of 1892-93 of the general assembly, (Acts 1892-93, pp. 934-936,) is entitled "An act to provide for and regulate the pay of state witnesses in Tuscaloosa county." The subject of the enactment, thus expressed in its caption, is provided for in the body of the act; but, in addition to provisions cognate, germane, and properly referable to a scheme for the payment of state witnesses in said county, there are incorporated in the text of the act provisions and regulations for the payment of the fees of the circuit court clerk and the sheriff of that county, earned in criminal cases, of which, obviously, there is no intimation, much less an expression, in the caption. Thus, section 1 of the act provides "that one half of all the fines and forfeitures collected in the circuit or county courts, or any other courts of Tuscaloosa county, and all the proceeds of the hire of county convicts of Tuscaloosa county, is hereby set apart and appropriated to the payment of witnesses for the state in criminal prosecutions in said courts, clerk of the circuit court and sheriff who shall be summoned and required to appear in criminal prosecutions after the approval of this act. The remaining one half of the fine and forfeiture fund shall be held to pay present outstanding claims against said fund, as now provided by law." And by section 8 it is provided "that when any convict is sentenced to hard labor for the county to pay the fine and costs, the hirer of such convict shall pay to the proper officer the costs due the state's witnesses, and officers of the court, which accrued in such conviction in behalf of the state, in advance, and such sum shall be placed to the credit of the fine and forfeiture fund, and shall be disbursed by the treasurer, or person acting as such according to the provisions of this act." The italicization in these excerpts is ours. The purpose of the legislature to provide in this act for and regulate the payment of the costs due the clerk and sheriff is further accentuated by the requirement of section 7 that all fines and forfeitures should "be collected in lawful money of the United States, and none other," and that such money should be paid into the county treasury to the credit of the fine and forfeiture fund, so that the claims of officers could not be utilized by them in the payment of fines and forfeitures, as they might have been under the law theretofore existing; and also by reference to the provision of the first section quoted above, to the effect that the remaining onehalf of the fine and forfeiture fund shall be held to pay present, outstanding claims against said fund, as provided by existing

law; the conclusion being inevitable that the officers could receive nothing, except under this act, and it being equally manifest the legislature intended they should, in some way, receive payment of their claims. It is therefore clear that the body of this act contains, and undertakes to provide for and regulate, not only the subject-matter expressed in its caption, (the payment of "state witnesses in Tuscaloosa county,") but also a subject-matter (the payment of officers' costs accruing in behalf of the state) which is not expressed, or even hinted of, in the caption, and which is wholly separate and distinct from the subject expressed therein. It cannot be doubted that the text of the enactment is violative of the inhibition of section 2, art. 4, of the constitution, that "each law shall contain but one subject which shall be clearly expressed in its title," etc.. nor at least, in so far as the subject not expressed in the caption is attempted to be provided for-that the act is void. Ex parte Cowert, 92 Ala. 94, 9 South. 225; Montgomery v. State, 88 Ala. 141, 7 South. 51; Ballentyne v. Wickersham, 75 Ala. 533; Stein v. Leeper, 78 Ala. 517; Ex parte Reynolds, 87 Ala. 138, 6 South. 335.

Whether the whole enactment is void depends upon a further inquiry, namely, can the provisions in relation to the payment of officers' costs be separated from those in reference to the payment of state witnesses, so that the former may be stricken from the act, and leave an enactment "complete within itself, sensible, capable of being executed. and wholly independent of that which is rejected?" We do not think the provisions in question can be so separated. They are so interlaced, so dependent upon each other. that we feel great violence would be done to the legislative intent-indeed, to the letter in which that intent is expressed-by the emasculation of the provisions of the act, so far as they relate to officers, and the enforcement of those provisions in respect of witnesses. In reality, the provisions of chief importance in the enactment, with respect to these subjects, severally, are not, in form or substance, severable provisions, at all. For instance, section 1 sets apart and appropriates one-half of the fine and forfeiture fund, not to witnesses alone or to officers alone, but, jointly, to both classes. The act provides that witnesses shall receive a part, and a part only, of this moiety, and that court officers shall receive a part of it. To strike out the provision so far as it conferred a benefit on officers would be, not to eliminate a provision made separately for them, but to strike out in part the provision having reference to state witnesses, and to give them the whole of a fund which the legislature never intended, and has not provided, that they should have, except in common with the clerk and sheriff. The one set of beneficiaries cannot be deprived of the provisions attempted to be made for them with

out, at the same time, radically changing the provisions attempted and intended to be made for the other. If the act should stand at all, so far as it relates to witnesses, it would stand, not as it was enacted, but as it is changed, even in respect of such witnesses, by the judicial elimination from it of provisions which not only had relation to the costs of court officers, but which bore also upon the fund for the compensation of witnesses, and limited its amount. Moreover, while the legislature might, perhaps, have denied to officers all participation in the fine and forfeiture fund, it has most clearly evinced a contrary intention by this enactment; and this intention would be entirely defeated if this act is upheld as to the subject expressed in its title, and adjudged bad, as it must be, in respect of the clerk and sheriff; for with one moiety of the fund appropriated to witnesses, and the other to there is not, and could never be, any part of the payment of "present outstanding claims," it, or any other fund, available for the payment of officers' costs.

For these reasons.-and others, growing out of pre-existing law on the subject, might be given.-we conclude that the provisions of the statute in their application to officers and witnesses are not separable; that to strike out its references and attempted provisions for officers' costs would not leave the act to operate according to its terms and clear intent, even as to witnesses; and that, of consequence, the whole act is unconstitutional and void. Plaintiff expressly claimed under this void act. The complaint, in terms, counts upon the provisions of it which we have discussed. The demurrer raised the question of the constitutionality of the enactment. It should have been sustained. For the error committed in overruling the demurrer, the judgment of the circuit court must be reversed. Other questions presented by the record need not be considered. The cause is remanded. Reversed and remanded.

CITY COUNCIL OF SHEFFIELD v. HARRIS.

(Supreme Court of Alabama. Dec. 20, 1893.) MUNICIPAL CORPORATIONS-INJURIES TO EMPLOYE -NEGLIGENCE OF SUPERINTENDENT.

1. In an action against a municipal corporation for personal injuries sustained by a laborer employed by it, a complaint which alleges that defendant, through its agents and employes intrusted with the superintendence of the work, buried a dynamite cartridge at the place where plaintiff was set at work, without any notice or warning to him, and that it exploded while he was so at work, states a cause of action under Code, 2590, subd. 2, which renders an employer liable for an injury to his servant caused by the negligence of the person to whom the master has intrusted the superintendence of the work.

2. A city which has placed a superintendent in charge of a gang of laborers cannot be heard to deny the legality of his appointment,

in an action by one of the laborers for injuries through the superintendent's negligence.

3. A city is not liable to a laborer in its employ for injuries inflicted through the negligence of a coservant, but only for the negligence of such employes as it intrusts with the superintendence of the work, since its liability in such cases does not depend on the duties it owes the public, but on the principles applicable to master and servant.

Appeal from circuit court, Colbert county; H. C. Speake, Judge.

Action by Joe Harris against the city council of Sheffield for personal injuries caused by the alleged negligence of the defendant's officers, agents, or servants. There was judgment for the plaintiff, and defendant appeals. Reversed.

Joseph H. Nathan, for appellant. Kirk & Almon, for appellee.

STONE, C. J. The present case was in fact tried on the third or amended count. It avers that plaintiff, Harris, an employe, was injured April 16, 1889, while digging gravel for defendant corporation; "that prior to said date the defendant, [city of Sheffield,] through its agents and employes intrusted with the superintendence of said work, buried a dynamite cartridge at the place where said gravel was being dug, and left it there, unexploded, without giving notice or warning to any one that it was so buried, knowing it was dangerous to leave it in that hidden place, unexploded, and that it was endangering the lives of persons who might be engaged in digging gravel. Yet the defendant, its agents or employes, as above stated, carelessly and recklessly, and without having any regard for the safety of persons digging gravel at that place, left said dynamite so buried, without giving any sign or warning of danger, and suffered it so to remain. And on the 16th day of April, 1889, plaintiff was employed by defendant to work on said streets and avenues, and was required to dig gravel for that purpose, and instructed to dig where defendant had hid and buried said dynamite; and plaintiff, not knowing that dynamite was buried at said place, began digging gravel, and without seeing said dynamite cartridge, or knowing it was there, struck it, while digging gravel, and caused it to explode," etc. The plaintiff then sets out very serious personal injuries inflicted on him by the explosion. This count clearly sets forth a good cause of action under subdivision 2 of section 2590 of the Code, and the demurrer to it was rightly overruled. We will not consider the sufficiency of the other counts. Even if the court erred in overruling the demurrers to them,-a concession we must not be understood as making, or intending to make,-it would be, at most, error without injury.

Plaintiff received his injury while digging in a bank of gravel which was being used in filling up or coating the streets of Shef

field. No question is raised as to the service he was employed in. He was working for the city, being hired for the purpose. Nor is there proof of any negligence on his part, which led to the explosion and to the injury. There was no attempt to show that plaintiff was notified that an imperfectly exploded cartridge of dynamite had been left buried in the bank where he was put to work. He had not been in the employ of the city when, three days before, as is claimed, the cartridge was placed there and attempted to be exploded. There is conflict in the testimony | as to when or how the cartridge was placed there, and whether the city's authorities or employes had anything to do with it. The testimony for the defense denies all participation in the placing of the cartridge, or knowledge that it was there. If Howard's testimony be true, it would seem the dynamite must have been there before the city commenced working at that place under his superintendency. There is no pretense, however, that plaintiff was notified of its being there, or that he received any warning or caution in regard to it. So no fault is chargeable to the plaintiff. The testimony shows that Howard was in superintendence of the plaintiff and the other laborers who were engaged in digging the gravel. This is not denied, but it is contended that he (Howard) was not elected or appointed to that superintendency in the mode prescribed by law, and that consequently any injury caused by his negligence while serving, or assuming to serve, the city, cannot fasten a charge upon the municipality. There is nothing in this objection. If he served the city in the capacity of superintendent of this work, and the city authorities acquiesced in such service, and took the benefit of his skill and labor, the city will not be heard to deny the legality of his appointment, nor its responsibility for acts done by him within the scope of the service he was rendering. So far as the question affects its liability, he must be treated as if he were duly and legally appointed, until the city itself renounces and repudiates his acts. It cannot appropriate the benefit and repudiate the burden. Railroad Co. v. Kidd, 29 Ala. 221; Insurance Co. v. Peacock, 67 Ala. 253; Railroad Co. v. Hill, 76 Ala. 303; Reynolds v. Collins, 78 Ala. 94; Alabama G. S. R. Co. v. South & N. A. R. Co., 84 Ala. 570, 3 South. 286.

As we have said, there was conflict in the testimony as to the placing of the dynamite cartridge which caused the injury. Plaintiff's witnesses testified that on the Saturday last preceding the explosion on Tuesday, caused by plaintiff's pick, Howard himself superintended and directed the blast at the place where the plaintiff received his injury. Howard testified that he had done no work at that spot until the morning of the explosion and disaster, and that he had made no blast there. This left a conflict as to how, or at whose hands, the dynamite cartridge had

been placed. The court, at the instance of plaintiff, gave charge No. 3, as follows: "If the dynamite causing the plaintiff's injury was carelessly and negligently left buried by the defendant or its servants or agents, in the discharge of their duty, before the plaintiff was employed by the defendant, and the plaintiff could not, by the use of ordinary care and diligence or precaution, have discovered the danger, then I charge you that the defendant is liable in this action, and your verdict should be for the plaintiff for such amount as you believe from the evidence he was damaged, not exceeding $8,000." (The complaint claims $8.000 damages.) To this charge the defend. ant excepted. It will be observed that the hypothesis of this charge is that the dyna mite had been "carelessly and negligently left buried by the defendant, or its servants or agents, in the discharge of their duty." To be actionable under that part of the statute which controls this case, (Code, § 2590, subd. 2,) the injury must be caused by the negligence of some person in the service or employment of the master or em ployer, "who has superintendence intrusted to him, while in the exercise of such superintendence." To hold the master or employer liable under this provision, the negligence must be that of some agent or employe who is in the exercise of superintendence, and to whose negligence in such exercise the disaster is traced. To hold otherwise would be to fasten liability on the principal, to the employe, for that which is at most the negligence of a fellow servant, having no greater power or authority than the servant who complains of the injury. This the statute does not authorize. Cook v. Parham, 24 Ala. 21; Railway Co. v. Smith, 59 Ala. 245; Smoot v. Railway Co., 67 Ala. 13; Holland v. Railroad Co., 91 Ala. 444, 8 South. 524; Railway Co. v. Davis, 92 Ala. 300, 9 South. 252. The principles declared in Campbell v. City Council, 53 Ala. 530; City of Eufaula v. McNab. 67 Ala. 588; City Council of Montgomery v. Wright, 72 Ala. 411; and 2 Dill. Mun. Corp. (4th Ed.) § 968 et seq.,-relate to the duties and functions, properly so called, which municipal corporations owe to the public, and must perform for its well being. They are entirely unlike those presented by this reeord. This case presents only the relation of employer and employe, and must be determined on the principles which pertain to that relation.

Recurring to the first and second counts of the complaint, it may not be improper to remark that the record contains no testimony that Howard was incompetent for the duties assigned him, nor that the city au thorities had notice or knowledge that the dynamite cartridge was buried or imbedded in the gravel bank at which plaintiff was put to labor. For the single error pointed out above, the judgment of the circuit court must be reversed. Reversed and remanded.

MATTHEWS et al. v. STATE. (Supreme Court of Alabama. Dec. 21, 1893.) CRIMINAL LAW-INSTRUCTIONS-CREDIBILITY OF WITNESS.

On a criminal trial, an instruction tha the jury may take into consideration the fact that any of the state's witnesses are under indictment for the same offense in determining the weight of their evidence is a mere argument, which trial courts are under no duty to present to the jury, and which may be given or refused without error.

Appeal from circuit court, Chambers county; N. D. Denson, Judge.

Robert Matthews and Marshall Smith were indicted, tried, and convicted for arson in willfully setting fire to and burning the jail of Chambers county, which was, at that time, occupied by a person, and they appeal. Affirmed.

Defendants were jointly indicted for arson with one George Adair. On the trial of the cause, as is shown by the bill of exceptions, there was testimony introduced tending to show that they were guilty as charged in the indictment. George Adair, who was jointly indicted with the defendants, but who was not being tried with them, was introduced as a witness, and he testified that he saw the defendants strike matches to kindle a fire against the door of the jail. This was the only testimony of an eyewitness to that effect.

Wm. L. Martin, Atty. Gen., for the State.

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MCCLELLAN, J. The only exception reserved on the trial of this case challenges the circuit court's action in refusing to give the following instruction, requested by the defendants: "The jury may look to the fact, if it be a fact, that any of the witnesses for the state are under indictment for the same offense with which the defendants are charged in deciding what weight they will give to his evidence." The exception is without merit. The charge is a mere argument, which trial courts are under no duty to present to the jury, and which may be given or refused without error. Bancroft v. Otis, 91 Ala. 279, 8 South. 286, and authorities there cited; Brassell v. State, 91 Ala. 45, 8 South. 679; Brantley v. State, 91 Ala. 47, 8 South. 816; Potter v. State, 92 Ala. 37, 9 South. 402; Railroad Co. v. Sellers, 93 Ala. 9, 9 South. 375; Jackson v. Robinson, 93 Ala. 157, 9 South. 391.

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an appeal will lie, nor is there any statute in Alabama which authorizes an appeal from such an order.

2. The lien acquired by the appointment of a receiver of a debtor's property by the register of the chancery court, and by the taking of possession by the receiver, is not abrogated by the debtor's appeal to the chancery court and the execution of a supersedeas bond; and hence the levy of an attachment on the property by another creditor during the pendency of the appeal, without authority from the chancery court, is void.

Appeal from circuit court, Butler county; John P. Hubbard, Judge.

Charles W. Stanton and James M. McDonald each brought actions at law against George P. Heard, and sued out writs of attachment. From an order vacating and quashing the writs, plaintiffs appeal. Dismissed.

Gamble & Powell, for appellants. J. C. Richardson, for appellee.

STONE, C. J. These two cases are dependent on the same state of facts, record and otherwise. We will consider them together:

George P. Heard had been engaged in selling merchandise, having a stock of goods on hand. On January 5, 1891, he conveyed his said stock of merchandise to W. L. Tillman. This conveyance was in form an absolute sale. On January 10, 1891, Murray Dibbrell & Co. and O'Bryan Bros. filed a bill in chancery, against Heard and Tillman, in which they set forth that they, severally, were creditors of said Heard before January 5, 1891, and that their said demands were still unpaid. It was charged in said bill that the said conveyance of January 5th was voluntary, without consideration, and fraudulent, and they sought to set it aside as such. They prayed for the appointment of a receiver to take charge and possession of the goods; and on the same day, January 10th, without notice to defendants, the register of the court appointed one Pilley to be receiver of the merchandise, who took possession thereof. On January 13, 1891, Tillman appealed to the chancellor from the register's order appointing a receiver, and gave bond and sureties for the successful prosecution of the appeal. The merchandise was thereupon surrendered back to the possession of Tillman to await the chancellor's ruling on the appeal to him. On January 7, 1891, Charles W. Stanton and James M. McDonald each sued out original attachments at law against George P. Heard on debts sworn to be due from him to them severally. The ground of the attachments was that the said George P. Heard had fraudulently disposed of his property. These attachment writs were placed, January 8, 1891, in the hands of J. F. Brown, sheriff; and on January 14, 1891, he levied them on a part of the merchandise which had been conveyed by Heard to Tillman January 5, 1891. It will be borne in mind that this merchandise had been committed to the custody of Pilley, receiver, by the register's order made

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