263, and the court there held the assignment to be against public policy and void. Field v. Chipley, 79 Ky. 260, was a case involving the validity of an assignment of fees by a clerk, the fees being unearned, and the assignment was held to be void. There is no distinction in principle between the assignment of unearned fees and the assignment of unearned salary. Bliss v. Lawrence, 58 N. Y. 442. In State v. Hastings, 15 Wis. 75, the court held that a judge of a court could assign his salary before it was earned. So slight a consideration of the number of cases decided by courts of eminent ability shows that the court in that case did not give sufficient thought to the question involved to entitle the opinion to weight. In the case of Mulhall v. Quinn, 1 Gray, 105, which is sometimes referred to as authority for the validity of such assignments, the matter in dispute was neither fees nor salary of a public officer, but was for the price of work done for a city. Brackett v. Blake, 7 Metc. (Mass.) 335, is referred to, but in that case the question of public policy was not considered. Macomber v. Doane, 2 Allen, 541, was a case in which an officer had assigned his salary, but the only question considered was as to whether or not it was assignable, on account of its being a mere possibility. Public policy was not discussed or mentioned in the case. The case of State v. Hastings is the only case, except People v. Dayton, that we find sustaining any such assignment when the case was placed before the court on the ground of violation of public policy. We have seen that the latter case was overruled, which leaves the former alone to support the assignment of such claims. In the Missouri case first mentioned it was held also that a government employee who has made such an assignment and has been appointed agent of the assignee to collect it, is not guilty of larceny or embezzlement if he collects and appropriates it.

permitted, but not required, to ride in going up to and down from the stories in which they respectively worked. It was held, that while so riding they were employees, and not passengers, and the degree of care required of defendants was that required on the part of the master towards his servant, and not that imposed on a common carrier of passengers in respect to those carried by him. Gilfillan, C. J., says:

The appellants make several assignments of error, only one of which it is necessary to consider. The court instructed the jury: "If you find that this elevator described in the testimony was used, with their knowledge and consent, as a passenger elevator, in that case the defendants were bound to the exercise of the highest human skill, foresight, and prudence in making the elevator safe for the purpose of transporting human beings from one portion of the building to another. So much for the obligation resting on the defendants in case you find this to have been a passenger elevator." That is the degree of care required of a common carrier of passengers towards the passengers he carries. It is a higher degree than is required of a master towards his servant. That degree is stated in Cooley on Torts (page 567) thus: "The law does not require him to guaranty the prudence, skill, or fidelity of those from whom he obtains his tools or machinery, or the strength or fitness of the materials they make use of. If he employs such reasonable care and prudence in selecting or ordering what he requires in his business as every prudent man is expected to employ in providing himself with the conveniences of his occupation, that is all that can be required of him." See Gates v. Railway Co., 28 Minn. 110, 9 N. W. Rep. 579. The rules are general, and from considerations of convenience and public policy there are no exceptions. There are sound reasons for requiring a higher degree of care in one case than in the other. An obvious one is that, in the case of the passenger, he neither does known or can know, nor is he called on to inform himself, whether the carrier employs competent and careful servants and fit and proper machinery and means for performing the service, but he commits himself unreservedly to the care of the carrier; while the servant in most cases may know, and, if the matter is open to ordinary observation, is bound to know, whether the machinery and appliances employed by the master be fit and proper. As there cannot be two rules as to cases between master and servant, one applying to the use of one kind of machinery and another to another kind, it is evident that if the relation between plaintiff and defendants at the time of the injury was only that of master and servant, the instruction was wrong. We suspect the court below was misled by some indefi. niteness in the opinion in Goodsell v. Taylor, 41 Minn. 207, 42 N. W. Rep. 873, which was not a case of master and servant, but of innkeeper and guest; and it was said: "The relation between the owner and manager of an elevator for passengers is similar to that between an ordinary common carrier of passengers and those carried by him." That would not be applicable where a relation requiring a different degree of care exists, and the person is riding and being carried in that relation. The question comes, then, to this: Was plaintiff, in riding in the elevator from the lower to the fifth story of a building, doing so as

the defendants' servant, or was she riding as a passenger, being carried by them as a common carrier? We find no case precisely similar in which that question was distinctly passed on. Treadwell v. Whittier, 80 Cal. 574, 22 Pac. Rep. 266, was not a case of an employee, but of a customer, riding in an elevator. It was there. fore not unlike Goodsell v. Taylor, and the rule expressed in the latter case was applied. Wise v. Ackerman (Md.), 25 Atl. Rep. 424, was the case of an employee, and the court, treating the plaintiff as in the elevator as an employee, and not as a passenger, stated the rule: "But an elevator is in many respects a dangerous machine, and, though it may be primarily intended only as a freight elevator, yet, if the employees, in the course of their employment, are authorized or directed to use the elevator as a means of personal transportation, the employer controlling the operation of the elevator is required to exercise great care and caution, both in the construction and operation of the machine, so as to render it as free from danger as careful foresight and precaution may reasonably dictate." This is considerably short of the degree of care required of a common carrier of passengers and stated in the instruction of the court below,-"the exercise of the highest human skill, foresight, and prudence." It is but the expression, in different terms, of the degree required of a master towards his servant; for an ordinarily prudent man employing a dangerous machine where human life is risked will exercise great care and caution in respect to its construction and operation. The only cases nearly analogous in which the question whether the person injured was a passenger or employee was passed on were cases where a railroad company was accustomed to carry their em ployees, without charge, to and fro between the place where they lived or boarded and the place where they worked for the company, and one of them was injured while riding to and from the place of work. Of these cases Gillenwater v. Railroad Co., 5 Ind. 339, holds that the person so carried was a passenger. Fitzpatrick v. Railroad Co., 7 Ind. 436, cited by respondent to the same point, does not so hold; the court saying: "He was not, it is true, a mere passen. ger. His travel on the cars was an incident to the business in which he was employed; but, under an agreement with the defendants he was to be regularly conveyed to and from his work. This it seems to us is an implied engagement that they would convey him as safely and securely as if he really had been a passenger in the ordinary sense of the term." So far as that may mean that, though the person injured was not a passenger, but an employee at the time, there was such implied agreement, or any obligation of care other than that imposed by law upon a master towards his servant, the case stands alone; and we think the grounds on which the court made that remark were overruled in Railway Co. v. Arnold, 31 Ind. 174. State v. Western Maryland R. Co., 63 Md. 433, is an instructive case. The person killed was employed by the company as brakeman on a passenger train running in the morning from U B to B C, and returning in the evening, every day, except Sundays. On arriving at UB Saturday nights, the time was his own until Monday morning, when he was expected to be at U B to resume his duties. Sunday he took a train at U B to go to B C, where his family resided, traveling on a pass which the conductor of his train held for himself and crew, and on that trip the decedent was killed in a collision. It did not appear that by the terms of his employment he was to be carried Saturday evening or Sunday from UB to B C, and back again for Monday morning. The court re

viewed most of the decisions to that time, and held the decedent was a passenger when killed, and said: "In whatever else they may differ, these cases all agree upon one principle, and that is that if the plaintiff is not, at the time of the accident, engaged in the actual service of the company, or in some way connected with such service, the company is liable for the neg. ligence of its employees." O'Donnell v. Railway Co., 59 Pa. St. 239, held that a carpenter who was to be carried to and from his place of work was, while being so carried, a passenger. On the other hand, holding that in cases of the kind the person is carried as an employee, and not as a passenger, are Tunn v. Railway Co., L. R. 1 C. B. 291; Gillshannon v. Railroad Co., 10 Cush. 228; Seaver v. Railroad Co., 14 Gray, 466; Russell v. Railroad Co., 17 N. Y. 134; Ryan v. Railroad Co., 23 Pa. St. 384; and Railway Co. v. Salmon, 11 Kan. 83. Rosenbaum v. Railroad Co., 38 Minn. 173, 36 N. W. Rep. 447, is really to the same effect. The company transported the employees daily from the boarding car to their place of work and back again. The plaintiff, having returned to the boarding car, found he had left his coat at the place of work, got upon a gravel train to go back and get it, and while on it was injured. If he got on the car as a passenger, he was a trespasser, for the conductor had no authority to take passengers; but if he got on as an em ployee he was not, and the court held he was on the train as an employee. There is, therefore, a considerable weight of authority in support of the propo sition that in such cases the person is carried as an employee, and not as a passenger. And in a case like this reason would seem to point to the same result. State the matter to one not used to making hair-drawn distinctions but to judging by the dictates of the business common sense, and we do not think he would hesitate in arriving at that result. In our opinion, from the time plaintiff entered the building for the purpose of going to work she was there as employee, whether she walked up the stairs or rode up in the elevator.

HAVE ANIMALS RIGHTS?

An animal is "any animate being which is not human, endowed with the power of voluntary motion."1 The idea that they have rights was not recognized at common law;1 whether or not it is recognized under modern statutes, it is the purpose of this paper to disInjury to animals as property, like other malicious mischief, was always forbidden, and by the Black Act, the penalty was death to the offender; cruelty amounting to a public nuisance was also indictable at common law. But cruelty, as such, is punishable only by virtue of recent legislation.

cuss.

1 Bouv. Dict. 121.

2 Bish. Stat. Cr. § 1100.

3

89 Geo. I, ch. 22; 2 East P. C. 1072.

4 1 Bishp. Cr. L. § 597; U. S. v. Jackson, 4 Cranch, C. C. 483; U. S. v. Cross, Id. 603; see, 7 Rep. (N. S.) 88; cf. Bish. St. Cr., § 1100.

6

The Statutes Summarized.5-These statutes of the various States and England are substantially alike. The following are typical of all: By 39 & 40 Vict. ch. 77, § 6, the performance in public of painful experiments on living animals is absolutely prohibited. By other sections, such experiments may be performed only by a licensed person to advance physiological knowledge, or, when necessary, in court; the act not to apply to invertebrate animals. By 12 or 13 Vict. ch. 92, § 2, "if any person shall cruelly beat, ill-treat, overdrive, abuse or torture, or cause or procure to be cruelly beaten, ill-treated, overdriven, abused or tortured, any animal," he shall be liable to a penalty. The Illinois statutes? provides a penalty for any one "who shall willfully overdrive, overload, overwork, torture, torment, deprive of necessary sustenance, cruelly beat, mutilate or kill," or cause to be so treated any horse or other animal (the word "animal" as used in this act to mean any living creature), or who shall cruelly work any animal when unfit for work or abandon the same to die, or carry any animal in any vehicle in an unnecessarily cruel or inhuman manner; no railroad shall confine any animal in cars for more than twenty-eight consecutive hours, unless properly fed and watered on the car, without unloading for rest, water and feeding for at least five consecutive hours; any person who shall be connected in any way with any place kept or used for fighting or baiting any bull, bear, dog, cock, or other creature, shall be guilty of misdemeanor. This is practically the law in all the States. In New Yorks it is forbidden to use dogs for hauling for business purposes in any city or incorporated village, without a license; and vivisection can be performed "only under the authority of the faculty of some regularly incorporated medical college or university of the State of New York." In Delaware, causing death of animals by careless riding or driving is made a misdemeanor. In Massachusetts, 10 mutilation of a live lobster by severing its tail is punishable and possession of the tail is prima

9

5 First Statute, Mass. 1641; Old Colony Laws, p. 95; First English Statute, 1822, 3 Geo. IV. ch. 71.

6 Bish. Stat. Cr. § 1102.

7 Ill. Stats. Mar. 8, 1872.

8 Act April 12, 1867.

9 Laws 1891, ch. 267, p. 586.

10 Sts. 1891, ch. 122, p. 63.

facie evidence to convict. "Docking" a horse is a misdemeanor in Illinois." Trapshooting of live pigeons is punished in Vermont. 12 By act of Congress,13 the secretary of agriculture is authorized to prescribe rules for the accommodation and humane treatment of cattle exported.

Scope of the Statutes.-The general idea of these statutes seems to be the prohibition of such acts or omissions as will inflict pain upon or kill any living creature, willfully or needlessly. "Any living creature" is an astonishingly comprehensive term. It brings the impalement of a worm on a fish-hook, the eating of live oysters, or the boiling of cholera germs within the scope of the letter of the act even the word "animal" in its ordinary meaning, is exceedingly broad. The adjudications on this point are few and indirect,14 but doubtless the statutes would be confined within reasonable limits in their application by the courts, although when a legislature goes to the length of making the detachment of a living lobster's tail a crime it is rather hard to say where they mean to stop. This prohibition of cruelty is superior to the rights of ownership, and regardless of value,16 of the animal injured and of the privacy or publicity of the act.17

15

Theory of the Statutes.-Disregarding for a moment the law of the case, can animals be said as a matter of fact to have rights? Man

11 Sts. 1891, p. 101.

12 Sts. 1890, No. 70, p. 73.

18 Act Mar. 3, 1891, 26 Sts. at large, ch. 521, p. 833. 14 St. v. Bogardus, 4 Mo. App. 215; Grise v. St., 37 Ark. 456; "Domestic animal," Colam v. Paget, L. R. 12, Q. B. D. 66; Budge v. Parson, 3 Best & S. 382; St. v. Harriman, 75 Me. 562; Swartzbaugh v. People, 85 Ill. 457; St. v. Gould, 26 W. Va. 258; cf. 29 Abb. L. J. 204; "Animal," Reg. v. Brown, 61 L. T. 594; St. v. Giles (Ind.), 25 N. E. Rep. 159; 125 Ind. 124; St. v. Brunner, 111 Ind. 98; Com. v. Turner, 145 Mass. 296; Com. v. Lewis, 140 Pa. St. 261; "Dumb animal," McDaniel v. St.. 5 Tex. App. 475; "Beast of Burden," People v. Court of Special Session, 4 Hun (N. Y.), 341. A cock is an "animal," People v. Klock, 48 Hun, 275.

15 St. v. Avery, 44 N. H. 392; Grise v. St., 37 Ark. 456; Com. v. Whitman, 118 Mass. 458; St. v. Gould, 26 W. Va 258; Caldwell v. State, 49 Ala. 34; St. v. Brocker, 32 Tex. 611, overruling St. v. Smith, 21 Id. 748; Turner v. St., 4 Tex. App. 586; Darnell v. St., 6 ld. 482; Benson v. St., 1 Id. 6; Com. v. Lufkin, 7 Allen, 579; Com. v. McClellan, 101 Mass. 34; but if alleged. must be proved as laid, St. v. Brunner, 111 Ind. 98; Collier v. St., 4 Tex. App. 12; Rose v. St., 1 Id. 400.

16 Grise v. St., 37 Ark. 456; St. v. Gould, 26 W. Va. 258.

17 Grise v. St., 37 Ark. 456.

has a right to life and personal security because the recognition of this right in every individual is necessary for the progress and existence of the race, or because he is selfconscious, intelligent and free, and master of his own acts and destiny beyond the control of other individuals who are but his equals; and this right cannot be taken from him or infringed except by the joint act of the community. But no such considerations avail to establish rights to life or bodily security in animals, and no moral relationship between them and us can be admitted. They cannot be said to have rights in any true sense of that term. Yet the acts of men concerning animals, like all other human acts, have moral aspects, and these may properly be subject to legal regulation. Sodomy is a crime. In like manner the wanton killing of a dog may reasonably be made illegal not because the dog has a right to life but because such blood-thirstiness and brutality in man are destructive of that morality and humanity upon which all government is founded. So of the torture of any sensitive creature. There is a great deal of false sentiment upon this point. In the first place animals probably do not and cannot suffer nearly as much as is generally believed. They may writhe and groan but so might a senseless corpse under electric stimilus. Pain is in consciousness, not in the nerve-in the nerve it is only a mode of motion which is a different thing. As the brutes have not man's higher consciousness, so they have not his capacity for suffering. Moreover, in many instances, as for example the reported case of a man who poured acid in the eye of a mare, 18 the feeling excited in us which we take for sympathy with the suffering of the brute, is in reality more probably an instinctive revulsion from the hideousness of the act-akin perhaps to the sensation one feels at the sound of filing a saw, or at the sight of blood, or of a halfdissected corpse, or of any sickening spectacle. Let us not confuse subjective matters with the facts of animal sensation and suffering. Still brutes undoubtedly feel pain to some extent, and a man who takes pleasure in torturing them degrades his own nature and threatens the morality of society. "Upon religion, morals and education, society and the State itself rest. Therefore, within prac18 Queen v. Welsh, 1 Q. B. D. 23.

tical limits, yet not to the full extent which mere theory might indicate, the law protects them and holds to be indictable acts wrongfully committed to their detriment.' 19 Is this the theory of the foregoing statutes? They purport to forbid cruelty not injustice. They prohibit needless killing and willful injury. They therefore allow any man to kill or hurt an animal whenever it may be to his advantage or conducive to his reasonable pleasure to do so, and the possibility of such infringements is repugnant to the idea of a legal right to life or personal security. The statutes give no such right in express terms or by necessary implication, and being in derogation of the common law they must be strictly construed. In Grise v. St., 37 Ark. 456, an indictment for needlessly killing a trespassing hog, Eakin, J., said in part: These statutes "are the outgrowth of modern sentiment. They spring originally from tentative efforts of the New England colonies to enforce imperfect but well recognized moral obligations. They first had in view only to compel benevolence and mercy to useful animals wasting their lives in man's service. In our law they are made to embrace 'all living creatures.' It is obvious that laws of this class pushed to this extreme limit must be handled by the courts with great care. They must be rationally construed with reference to their true spirit and intention. They seem to recognize and attempt to protect some abstract rights in all that animate creation made subject to man by the creation, from the largest and noblest to the smallest and most insignificant. The peculiar legislation we are now called to discuss must be considered wholly irrespective of property or of the public peace, or of the inconveniences of nuisance."

"Society could not long tolerate a system of laws which might drag to the criminal bar every lady who might impale a butterfly, or every man who might drown a litter of kittens. Rationally considered this class of laws may be found useful in elevating humanity by enlargement of its sympathy with all God's creatures and thus society may be improved." "They seem to recognize abstract rights in all that animate creation made subject to man," says the court. This is rather non-committal, and the rest of the decision strongly favors the view 19 1 Bishp. Crim. Law, § 495.

that the intention of these statutes is merely to suppress degrading brutality in man. Commenting on the court's construction of the New Hampshire statute as reported in St. v. Avery, 44 N. H. 392, Mr. Bishop says: "This statute like all others on the subject, is based on the theory unknown to the common law that animals have rights which like those of human beings are to be protected. A horse under its master's hand stands in a relation to the master analogous to that of a child to a parent. The law must fix bounds to the right of discipline by blows in the one case the same as in the other, and no man can carry out a 'theory' contrary to the law without being punished for so doing."'20 St. v. Avery, was an indictment for maliciously beating a horse, the defense being that the beating was for the purpose of breaking in and training an unruly animal. "The law in question," said the court, "was designed to restrain the exercise of cruelty to animals and is founded upon a high moral principle which denounces the wanton and unnecessary infliction of pain even upon animals created for the use of man, as contrary alike to the principles of christianity and the spirit of the age." "If resorted to in good faith and for a proper purpose it would not be neccessarily malicious because it may be deemed to be excessive, but the undue severity should be carefully weighed by the jury in determining whether it was not in fact dictated by a malevolent spirit and not by any justifiable motive. It is not, however, like the case of a parent or master who has the right to inflict only reasonable and moderate chastisement and is liable to punishment if he exceed it, but under the law now in question, there is no liability for such excess unless it be found to be malicious. If the beating was for the single purpose of breaking the animal of a vicious habit, that was a complete answer to any charge of malice if he did not go beyond his own rule, but the jury might inquire if the beating was aggravated from the influence of any evil motive as from violent passion and at the interference and remonstrance of others against his severity, for any excess thus caused should be regarded as malicious." The decision is vague in some respects. A man may be in

*

20 Bishp. Stat. Cr. § 1101, 1st Ed., the passage is omitted in the 2d Ed.

dictable although he does not intend to be cruel. He need intendonly to commit the act which the law declares to constitute cruelty, or he may be criminally negligent. What motive will excuse him is also a matter for legal determination and is not left to his own judgment. But these fundamental principles of all criminal jurisprudence do not necessitate the inference, that the statutes forbidding cruelty to animals, confer rights upon them or make the relation between them and their owners like that between parent and child. A father chastises his child for the child's benefit, either directly or indirectly, but a man for his own benefit may make his horse suffer, though the result be the death of the brute. In Com. v. Lufkin, 7 Allen, 579, cited by Mr. Bishop in this connection, the difference between intention and motive is discussed. Hoar, J., said in part: "The jury were instructed that they must be satisfied that the defendant inflicted the blows upon the horse purposely, intentionally; and that it was immaterial what may have been his motive for so doing; and that they must also be satisfied that the blows caused excessive pain and suffering to the animal." "The motive of intending to inflict injury or suffering is not by the terms of the statute made an essential element of the offense. Cruel beating or torture for the purpose of training or correcting an intractable animal; pain inflicted in wanton or reckless disregard of the suffering it occasioned and so excessive in degree as to be cruel; torture inflicted by mere inattention and criminal indifference to the agony resulting from it, as in the case of an animal confined and left to perish from starvation; we can have no doubt would be punishable under the statute even if it did not appear that the pain inflicted was the direct and principal object. Severe pain inflicted upon an animal for the mere purpose of causing pain or indulging vindictive passion is cruel, and so it is if inflicted without any justifiable cause and with reasonable cause to know that it is produced by the wan

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21 As to intent under these statutes, see, People v. Brunnell, 48 How. (N. Y.) Pr. 436, 442, 443; St. v. Hackfath, 20 Mo. App. 614; Ross Case, 3 City Hall Rec. 191; Accident and knowledge, see, Com. v. Wood, 111 Mass. 408; Com. v. Flannigan, 137 Mass. 559; Tatun v. St., 66 Ala. 465; Small v. Warr, 47 J. P. 20; Elliott v. Osborn, 65 L. T. 378; People v. Brunnell, 48 How. Pr. 435.