element. A wharf is likewise public, if it is open to free public use. growth will enhance the prosperity and promote the welfare of the state and its people. If this conviction is well founded, it Moreover, a wharf which supplies the requires no argument to demonstrate that connecting link between a highway and a the port of Portland will enjoy a much great-line of common carriers by water is entitled er share of such growth and prosperity than will the state at large. It is not clear and 'manifest that the act imposes upon the district a tax burden which is disproportionate to the special benefits that will accrue to it. Are the Proposed Wharves to be Public? [10] Under the Constitution taxes may be imposed for public uses only. "Taxation, by the very meaning of the term, implies the raising of money for public uses, and excludes the raising if for private objects and purposes." Allen v. Jay, 60 Me. 127, 11 Am. Rep. 185; Perkins v. Milford. 59 Me. 318; State v. Telegraph Co., 73 Me. 526; Laughlin v. Portland, 111 Me. 490, 90 Atl. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734. The constitutional amendment of 1919 in authorizing the use of state funds for wharves, limits such use to the building and maintenance of "public wharves." [11] As thus implied and as determined by judicial authorities, wharves though commonly public may be private. "Piers or landing places, and even wharves, may be private, or they may be in their nature public, although the property may be in an individual owner; or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use; or he may be under obligation to concede to others the privilege of landing their goods, or of mooring their vessels there, upon the payment of a reasonable compensation as wharfage; and whether they are the one or the other may depend, in case of dispute, upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the nature and character of the structure." Dutton v. Strong, 1 Black, 33, 17 L. Ed. 32; Weems S. B. Co. v. Peoples S. B. Co., 214 U. S. 345, 29 Sup. Ct. 661, 53 L. Ed. 1024, 16 Ann. Cas. 1222; 30 A. & E. Ency. 472; 40 Cyc. 901. What test must be applied to determine the public character of a wharf? Not the meeting or displacing of tidal or public waters. Wetmore v. Gaslight Co., 42 N. Y. 384. Not merely ownership by, nor leasing for the benefit of, the state. A wharf that is a public utility under R. S. c. 55, § 15, is a public wharf, but chapter 55 makes compensation for use an essential to be classed as public, notwithstanding that it may be devoted exclusively to the business of such carriers. But, as determined by numerous authorities, some of which are above cited, a wharf may be private. The owner or lessee may— "have the right to the exclusive enjoyment of Ithe structure, and to exclude all other persons from its use." Dutton v. Strong, supra. [12] The directors of the port of Portland are by section 8 of chapter 84 empowered to lease wharves without limitation as to purpose; the statute by its broad unqualified terms authorizes or attempts to authorize leases to private persons for their own exclusive business or other purposes. If the statute were susceptible of two interpretations, we should adopt the interpretation which sustains rather than that which defeats it. If the statute were ambiguous, we might read into it a legislative intent not clearly found within its four corners. But the language of section 8 of the act is plain, clear, unambiguous, and unqualified. It authorizes the directors to lease "under such covenants and conditions as they may prescribe." It purports to authorize leasing for private as well as public uses. [13] In so far as section 8 authorized leasing for private purposes it contravenes the Constitution. This, however, does not renr the entire act void. It cannot be questioned that the primary intent of section 8 is to authorize leasing for public purposes. A reading of the entire act makes this intention manifest. Where an unconstitutional and invalid poition of a statute is separable from and independant of a part which is valid, the former may be rejected and the latter may stand. Packard v. Lewiston, 55 Me. 456; Cole v. County Commissioners, 78 Me. 538, 7 Atl. 397; Vial v. Penniman, 103 U. S. 714, 26 L. Ed. 602; Supervisors of Albany County v. Stanley, 105 U. S. 305, 26 L. Ed. 1044. This principle plainly and clearly applies to the facts in this case. The directors cannot lease wharves for private uses. They have power to lease for public purposes, and in furtherance of such powers bonds may be issued and taxes assessed and collected. The bill in equity, therefore, should not be sustained. Bill dismissed. (112 A.) WHITE v. EASTERN MFG. CO. et al. er, Me. He was also a member of the volunteer fire department of South Brewer, and received from that organization a salary of (Supreme Judicial Court of Maine. March 15, $65 per year, dependent upon his attendance 1921.) 1. Master and servant 375(2)—Injury to employee answering call as city fireman held not compensable as one "arising out of and in course of employment." Cleaner employed by manufacturing company at its mill, also a member of the volunteer fire department of the city receiving from the organization a salary of $65 a year, permitted by his employing company to leave his work for a fire without loss of pay, held not to have suffered an injury arising out of and in the course of his employment to entitle him to compensation under the Compensation Act, where on hearing the city fire alarm he left his work inside his employer's building, ran down a platform, and, on reaching a flight of steps at the end, jumped entirely over them, to the injury of his ankle. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Course of Employment.] 2. Master and servant 371 - Compensation Act does not make employer insurer against all injuries. Though the Workmen's Compensation Act should receive a liberal construction so that its beneficent purpose may be reasonably accomplished, its provisions cannot be extended to the degree of making the employer an insurer of his workmen against all misfortunes, however received, while they happen to be on his premises. Appeal from Supreme Judicial Court, Pe nobscot County, in Equity. Proceedings for compensation under the Workmen's Compensation Act by Albert E. White, the employee, opposed by the Eastern Manufacturing Company, the employer, and the American Mutual Liability Insurance Company, the insurer. From a decision of the chairman of the Industrial Accident Commission in favor of petitioner, the employer and insurer appeal. Appeal sustained, and compensation denied. Argued before CORNISH, C. J., and SPEAR, DUNN, WILSON, and DEASY, JJ. Andrews & Nelson, of Augusta, and W. T. Gardiner, of Gardiner, for appellants. Albert E. White, pro se. SPEAR, J. This case comes before the law court on an appeal from a decision of the chairman of the Industrial Accident Commission of Maine rendered and filed in the office of said Commission October 27, 1920. Statement of Facts. On August 3, 1920, the claimant was employed as a cleaner by the Eastern Manufacturing Company at their mill in South Brew at fires. It was the custom of the Eastern Manufacturing Company to allow their employees who belonged to the Municipal Fire Department to leave their work for the purpose of attending fires, and no deduction was made from their wages for time so lost. At 11 a. m. August 3, 1920, the city fire alarm sounded, and the claimant left his work inside his employer's building and started for the fire. He ran down a platform, and on reaching a flight of five or six steps at the end jumped entirely over the steps, receiving a slight injury to his ankle on striking the ground. He continued to the fire, but was incapacitated for his work at the Eastern Manufacturing Company for the next 13 days. His petition requested compensation for ap injury arising out of and in the course of his employment. Hearing was held on the same, and the Commissioner awarded com pensation for a period of 3 days commencing 10 days after the accident. At the hearing before the chairman of the Industrial Accident Commission there was no conflict of testimony or dispute as to the manner in which the accident occurred and the injury received. The decision of the chairman in favor of the petitioner is based upon the following finding in which it is said: "Universally compensation has been awarded an employee, injured accidentally while going to his work or leaving his work if he be still on the company's premises and conducting himself in a proper manner. In the case at bar Mr. White was leaving his work, as he had a right to do. Under such circumstances he was still on the company's premises. Had he been injured similarly on the way out to lunch or he would have been entitled to compensation." at the close of the day, there can be no doubt Upon the foregoing statement of facts, the finding of the chairman, the only question presented upon the appeal is whether or not upon the undisputed facts, as a matter of law, the accident arose "out of" and "in the course of" the employment. There is no doubt whatever that, when an accident occurs to an employee, conducting himself properly, upon the premises of the his work, such accident falls within the proemployer, while coming to or departing from visions of the statute, as it is absolutely go in order to engage in an employment at all. necessary that an employee must come and Consequently an accident happening to him under such conditions both arises "out of" and "in the course of" his employment. that is not the case at bar. But In Westman's Case, 118 Me. 133, 106 Atl. 532, it was decided that under the terms of the statute and the rules of evidence it was incumbent upon the claimant for compensation to assume the burden of proof that his injury occurred: (a) By accident. (b) That the accident arose out of the employment. It might with safety be said that, in order for the accident to "arise out of" the employment, the employment must have been the proximate cause of the accident. In Westman's Case it is said: "An injury is received in the course of the employment when it comes while the workman (c) That the accident arose in the course is doing the duty which he is employed to perof the employment. Then the opinion proceeds to differentiate between the meaning of the phrases "arises out of" and "in the course of" as follows: "Even if there be an accident which occurred in the course of the employment, if it did not arise out of the employment, there can be no recovery; and even though there be an accident which arose out of the employment, if it did not arise in the course of the employment, there can be no recovery." Under the above distinction, an accident must both "arise out of" and be "in the course of" the employment. The petitioner was employed to do certain work in the mill of the respondents. He was engaged in this work when the fire alarm sounded. At that moment he ceased to work for the respondents and started on the run from the mill to begin work in the pay of the fire department. The work in the fire department was no part of and had no connection with his duties of employment in the mill. It is perfectly evident that at some point and some moment his employment ended with the mill and commenced with the fire department. By no process of reasoning can the point of separation between these two employments be fixed, except at the time he left his employment for the respondent and began his employment for the fire company. He could not be working for both at the same time. The fact that he was upon the premises when the accident occurred can have no bearing upon the question unless the accident arose out of or in the course of his employment. The interpretation of the phrases "out of" and "in the course of" have been fully reviewed in Westman's Case, 118 Me. 133, 106 Atl. 532, and Mailman's Case, 118 Me. 172, 106 Atl. 606. * ** form." In Mailman's Case, 118 Me. 172, 106 Atl. 606, the court say: "Both of these elements must appear. The accident must have arisen out of and in the course of the employment. In other words, it must have been due to a risk to which the deceased was exposed while employed and because employed." We are of the opinion that in the present case the accident of which the petitioner complains did not arise "out of" nor "in the course of" his employment. It did not "arise out of" because when the petitioner dropped his broom in the mill he left his work for the time being for the respondents, and, when he started for the fire, began his work, for the time being, for the fire department. He was responding to the call of a different employer and on his way to engage in the new employment. His work in the mill did not at all require him to leave the mill at the time he started for the fire. It was because of the fire, and not because of his work in the mill, that he proceeded to leave the building. He happened to be in the mill when the alarm sounded, and hence had to leave the mill, not, however, in doing a mill duty, but a fireman's duty. The accident did not "arise out of" his employment, because there was no causal connection between the petitioner's work-what he was doing at the time of the accidentand the injury which he received. Not his employment in the mill, but his employment in the fire department in which he was engaged when leaping over the steps, was the proximate cause of the accident. Nor do we think the risk arose "in the course of" the employment. Westman's Case states the rule under this head as follows: "An injury is received in the course of the employment when it comes while the workman is doing the duty which he is employed to perform." The risk did not arise in the present case because the petitioner was "doing the duty which he was employed to perform." The risk was due to the call of the fire department. It would have been precisely the same, under the contract with the fire department had he been working in any other employHis In the former case the court say: "The great weight of authority sustained the view that these words 'arising out of' mean that there must be some causal connection between the conditions under which the employee worked and the injury he received. It excludes an injury which cannot fairly be traced to the employment as a contributing, proximate cause, and which comes from a hazard to which the workman would have been equally exposed apart from the employment." "The accidents arising out of the employment, whatever it might have been. are those in which it is possi-Work in the fire department had no connecble to trace the injury to the nature of the tion with his work in the mill. Wherever he employee's work or to the risks to which the was or whatever he was doing, at the sound ment * (112 A.) ployment and forthwith assume his duties The employer has rights as well as the emas a fireman. He happened to be in the mill at the time, but upon the alarm his duty by contract began with the fire department. Accordingly the risk to which the petitioner was exposed in going to the fire was not at all "because he was employed" by the defendant, but because he was employed by the fire department, in the important duty which that connection imposed upon him of at once leaving his regular work to engage in the fire department work in protecting the community against the ravages of fire. Analogous to the case at bar is Pierce v. Boyer-Van Kuram Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509, L. R. A. 1916D, 970, in which it is said: "There is no doubt, under the many authorities cited by both parties, that if the workman abandons his employment, even for a short time, and engages in play, or some occupation entirely foreign to his employment, he is not entitled to compensation for an accident by which he is injured while so doing." See, also, Urban v. Topping Bros., 184 App. Div. 633, 172 N. Y. Supp. 432; Inland Steel Co. v. Lambert, 66 Ind. App. 246, 118 N. E. 162; Rochford's Case, 234 Mass. 93, 124 N. E. 891. The rule seems to be well stated by the associate legal member of the Maine Industrial Accident Commission in Doughty v. Sargent Dennison Co., in a decision rendered March 18, 1920, as follows: "Clearly compensation is not recoverable where an employee is injured while doing something solely for his own benefit; where, although the injury arises from the risk of the occupation, it is received while the employee has turned aside from the employment for his own purpose." See, also, cases cited under the above decision. [1] We discover no rule of law or reason in view of which it can be said that the accident and the injury for which the petitioner claims compensation arose "out of" and "in the course of" his employment. This case is of little consequence in the amount involved ($6.43) either to the employer or to the employee, but it is important in arriving at a proper interpretation of the statute applicable to such a case. [2] In arriving at the above conclusion, we do not lose sight of the well-settled rule that the Compensation Act (Rev. St. 1916, c. 50) should receive a liberal construction so that its beneficent purpose may be reasonably accomplished. Its provisions, however, cannot be justly or legally extended to the degree of making the employer an insurer of his workmen against all misfortunes, however received, while they happen to be upon his premises. Such was not the intent of the statute. ployed. Their rights stand upon an equality in the eye of the law. Perversion of the law, either to benefit the employee or protect the employer, has the tendency only to bring the law into contempt. This Compensation Act therefore should be administered with great care and caution, with judicial discretion and impartial purpose, striving only to discover the spirit and the letter of the law, and to apply them without fear or favor. Appeal sustained. Compensation denied. In an action against manager of an inn to recover the value of dishes lost while in the hands of defendant manager under what plaintiff claimed was a contract of bailment, the burden of proving such contract rested upon the plaintiff. Report from Supreme Judicial Court, York County, at Law. Action by the Mitchell-Woodbury Company against N. P. M. Jacobs. Case reported. Judgment for defendant. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ. Sewall & Waldron, of Portsmouth, N. H., for plaintiff. John C. Stewart, of York Village, for defendant. PER CURIAM. The plaintiff company in 1916 sold to "Passaconaway Inn, Charles G. Magee, York Beach, Me.," a bill of goods consisting of crockery, china, etc., which goods were used at the inn during the season of 1916, but were never paid for. The inn was owned by Townley and Vermeule, and Magee was their manager. In 1917 the defendant was employed as manager. Quite a portion of the goods had survived the wear and breakage of the previous season and were at the hotel when the defendant took charge. In May, 1917, after the defendant had assumed the management of the hotel, the plaintiff caused an inventory of the remaining goods to be made. There was some talk at that time about taking the remaining goods back to the Boston store of the plaintiff, but it was suggested that the goods remain a short time until the defendant could confer with his employers, then at New 473-Rents accrued prior to possession in mortgagee applied to judgment creditor's lien in preference to taxes. York, with a view to possible purchase. The of the receiver by the mortgagor's judgment purchase not having been made, the goods creditor, such creditor is entitled to be paid were taken back to the Boston store, where the amount of her judgment. another inventory was made which showed a 5. Mortgages shortage between the latter inventory and the May inventory of $413.49. The plaintiff seeks to recover this sum, depending upon Rents accruing on mortgaged premises bewhat it alleges was a contract of bailment fore the mortgagee took possession on default, made by the plaintiff and defendant at the or before the equivalent of such possession, time of taking the May inventory. The bur- the appointment of receiver in foreclosure, den of proving this contract rested upon the should not be applied to taxes accumulated plaintiff, but a careful examination of the of the lien of the mortgagor's judgment credpendente lite in preference to extinguishment testimony fails to disclose that it has sus-itor who has garnished the funds in the hands tained this burden. The case is before us on of the receiver. report for a finding and final judgment. Judgment for the defendant. MYERS v. BROWN et al. (No. 43/75.) (Court of Chancery of New Jersey. Feb. 21, 1921.) 1. Mortgages 473-Lien of judgment creditor of mortgagor not impaired by receiver's possession. The lien of the judgment creditor of a mortgagor, otherwise perfect, upon a fund consisting of rents which had accrued, but were unpaid at the time of appointment of receiver in foreclosure of the mortgage, was not impaired by the fact that the fund was in custodia legis, being in the hands of such receiver at the time execution was levied. 2. Mortgages 199(1), 473-Mortgagee has no right to rents until in possession after default; receiver entitled only to rents accruing after appointment. A mortgagee has no right to the rents of the mortgaged premises, unless they are expressly pledged until he comes into possession after default, and a receiver in foreclosure is entitled only to rents accruing after his ap pointment. 3. Mortgages 199(1)-Mortgage conveying lands, with rents, etc., a lien on lands only. A mortgage conveying lands, together with the rents, issues, and profits, is a lien on the lands only, the words "together with the rents, issues, and profits" adding nothing to the security of the mortgage debt, because they mean only what the law allows; that is, the rents, after default, on the mortgagee's taking possession. To entitle a mortgagee to rents accruing before he takes possession, or, what is its equivalent, the appointment of a receiver in foreclosure, there must be an express pledge of the rents accruing before default and during the mortgagor's possession. Suit by Charles R. Myers to foreclose mortgage against Mildred J. Brown and others, in which Susanna B. Trap caused execution to be levied on certain moneys in the hands of receiver in foreclosure. Decree, in accordance with the opinion, for the levying judgment creditor. Bourgeois & Coulomb, of Atlantic City, for complainant. Martin V. Bergen, Jr., of Camden, for defendants. BACKES, V. C. The question presented is whether a mortgagee is entitled to rents which had accrued, but were unpaid, at the time of the appointment of a receiver in foreclosure, as against a judgment creditor of the mortgagor. The facts are agreed upon, and stipulated by counsel, and they appear to be as follows: The complainant filed his bill February 20, 1917, to foreclose a mortgage on the Brookhurst Hotel, Atlantic City, executed to him by Mildred J. Brown in 1914. The mortgage includes, in addition to the land, the "rents, issues and profits thereof." The property was sold and there is a large deficiency. On July 12, 1917, a receiver was appointed to collect "any back and future rents." The receiver collected from the tenant two installments of rent that had accrued, $500 on June 15th and $1,000 on July 10th, which are the subject of this litigation. Susanna B. Trap issued an execution out of the Supreme Court on a judgment of $799.92 recovered by her against Mildred J. Brown, the owner of the equity of redemption, and, June 19, 1918, the sheriff of Atlan tic county levied upon the moneys in the 4. Mortgages 473-Funds in hands of re-Act of 1915 (P. L. p. 182). Rents accruing before the mortgagee takes possession for default, or, the equivalent of such possession, before the appointment of a receiver in foreclosure, belong to the mortgagor, and, having been garnished in the hands [1] The judgment creditor's lien, otherwise perfect, is not impaired by the fact that the fund was in custodia legis at the time the execution was levied. If the mortgagee had no right to the rents, then they belonged to the judgment debtor, and as against |