In Degonia v. St. Louis, I. M. & S. Ry. Co., 224 Mo. 564, 123 S. W. 808, the syllabus in part is: the whistle or ring the bell, it was not negli- | is in the rural district and not near a public gence for which the defendant was responsible. crossing or a sharp curve, and there does not Both by the common law and by the law of the state of Connecticut, as we understand it to be appear to have been any law, rule, or custom under the decisions of that state which were requiring the defendant to ring a bell or sound put in evidence (the accident occurred in that a whistle at that point. The undisputed evistate), there is no evidence of negligence of the dence is that the trainmen did not see the defendant." plaintiff, and that they did not know of his presence on the track. There is no conflict in the evidence upon these points. Hence we hold that, under the facts shown by the evidence, it was not the duty of the defendant to give the plaintiff warning of the approach of the train by ringing the bell, sounding the whistle, or otherwise. If the defendant had known or had had notice of the presence of the plaintiff on the track, it would have been its bounden duty to ring the bell and sound the whistle and use all reasonable efforts to avoid injuring him. "A section hand killed on a track by a fast passenger train approaching a station and crossing was not entitled to rely on the giving of station or crossing signals, under Rev. St. 1899, requiring railroads to give certain signals at crossings, and making the railroad company liable for damages which any person might sustain 'at such crossing,' when the bell is not rung or the whistle sounded as required. In Blankenships' Adm'r v. Norfolk & W. Ry. Co., 147 Ky. 263, 143 S. W. 997, the court says: "We have been referred to no case, or authority of any kind, which holds that it is the duty of the company to give a track walker notice of the approach of trains. Evidently, from the very nature of the case, it would be unreasonable and impracticable, as well as unnecessary, to undertake such a duty. His work as a track walker necessarily placed Blankenship upon the tracks of the road, and it goes without argument that the duty was imposed upon him to take such reasonable care of himself, in the performance of his duties, as would prevent him from being injured by a passing train. In failing to do so in this case, he was guilty of the grossest negligence, for which he can blame no one but himself." In Keefe v. C. & N. W. Ry. Co., 92 Iowa, 184, 60 N. W. 504, 54 Am. St. Rep. 542, the court says: "The presence of the tracks, and the cars thereon, and the movement of engines, were constant warnings to him (who worked about the depot and yard) of danger. It is the duty of persons employed in such places to be reasonably diligent in guarding against accidents, and especially to observe and keep out of the way of moving engines and cars. They have no right to rely wholly upon the persons in charge of them to prevent accidents, but must use due care to avoid danger." See, also, Aerkfetz v. Humphreys, 145 U. S. 418 [12 Sup. Ct. 835, 36 L. Ed. 758]; Cincinnati, Indianapolis, St. Louis & Chicago Railway Co. v. Long, 112 Ind. 166, 13 N. E. 659; Van Dyke v. Missouri Pac. Ry. Co., 230 Mo. 259, 130 S. W. 1. [9] The burden of proof was upon the plaintiff to make out a prima facie case of negligence upon the part of the defendant. The evidence for the plaintiff showed that the train that struck him was going at a rate of speed not greater than 20 miles per hour. There is no conflict in the evidence on this point, and hence it is clear that that was neither a high nor a dangerous rate of speed at that point. The rules of the company permitted a maximum rate of speed of 60 miles per hour. The rate of 20 miles per hour at that point was not negligence. It was only one-third of the maximum rate allowed by the defendant's rules. It was dark and foggy, and the plaintiff was on neither track nor on the space be tween the tracks. According to his own evidence, he was walking on the ends of the ties west of the right-hand track, and hence he was not in a position to be seen as readily as he would have been if he had been on the track. He admits that he heard the train that struck him and knew it was approaching but contends that he thought it was approaching from the south, instead of from the north. The fact that he heard the train and knew that it was approaching him shows that he was properly warned of the train's approach by the noise of the train. [10] Ringing the bell and blowing the whistle would have added nothing to this warning, because he admits hearing the noise of the train and knowing that it was approaching him. This afforded him notice of the the danger, and it then became his duty to get out of the way of the train. This he failed to do. It was his duty to be on the alert for his own protection. He had had experience as a track walker, and knew the dangers incident to that occupation. When he began work as a track walker, he knew the dangers ordinarily incident to that calling, and assumed the risks ordinarily incident thereto. The defendant did not know that the plaintiff was on or near the track, and hence it was not guilty of negligence in that it did not sound the whistle or ring the bell. Furthermore the plaintiff admits that he heard the train and knew that it was approaching him, and hence he had sufficient notice and warning that the train was approaching him, and he had an opportunity to escape injury by jumping into the mud and water, but he refused to do so, because he was not willing to get wet and muddy. This tends to prove negligence on his part, but we do not find it necessary to decide whether he was negligent or not. The court below set aside the verdict and granted a new trial for want of evidence to by the officer with whom the petition is filed, shall be filled as provided by law, and authorizand in case the officer resigns that the vacancy ing such additional legislation as may aid the operation of the section, including provision for payment by the public treasury of the reasonofficer, is self-operating, except as to the proable special election campaign expenses of the vision for legislation for the payment of the campaign expenses of the officer. disputed evidence shows that the defendant | tion is filed a special election shall be ordered was not guilty of the negligence charged, and that there was no evidence to support the verdict. The burden of proof was upon the plaintiff to show that the defendant was guilty of negligence that was the proximate cause of the injury. The evidence showed that the plaintiff was seriously injured; but that is not sufficient. Some default on the part of the defendant must be shown. Beach on Contributory Negligence (3d Ed.) § 43, says in part: "The defendant must not be 'a forgotten man.' There must be a default on his part, a want of ordinary care, or the plaintiff cannot recover." We approve the order of the court below granting a new trial, and said order is affirmed. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 58; Dec. Dig. § 31.*] 5. CONSTITUTIONAL LAW (§ 29*)-CONSTRUCTION OF CONSTITUTIONAL PROVISIONS "SELF-EXECUTING." Constitutional provisions are "self-executing" where it is the manifest intention that they should go into effect and no ancillary legislation is necessary to the enjoyment of a right given or the enforcement of a duty or liability imposed. [Ed. Note.-For other cases, see ConstitutionMCBRIDE, C. J., and BURNETT and al Law, Cent. Dig. § 32; Dec. Dig. § 29.* MOORE, JJ., concur. A demurrer to the petition or complaint in quo warranto admits the allegations that are properly pleaded to be true. [Ed. Note.-For other cases, see Quo Warranto, Cent. Dig. § 57; Dec. Dig. § 52.*] For other definitions, see Words and Phrases, First and Second Series, Self-Executing.] 6. CONSTITUTIONAL LAW (§ 14*)-RULES OF CONSTRUCTION-INTENTION. Const. art. 2, § 18, authorizing the recall of officers, should be construed to give effect to the intention of its framers and electors who adopted it, and they should be taken to have intended what the language used means. al Law, Cent. Dig. § 11; Dec. Dig. § 14.*] [Ed. Note.-For other cases, see Constitution 7. CONSTITUTIONAL LAW (§ 31*)-CONSTRUCTION OF CONSTITUTIONAL PROVISIONS-SELF EXECUTING PROVISIONS. Under Const. art. 2, § 18, authorizing the 2. OFFICERS (§ 70%, New, vol. 17 Key-No. Se-recall of public officers, the failure of the Legries) RECALL CONSTITUTIONAL PROVI SIONS. -- Const. art. 2, § 18, authorizes the recall of officers and provides that there may be required 25 per cent., but no more, of the number of electors who voted in the district at the preceding election for Justice of Supreme Court to file their petition demanding recall, and au thorizes the legislative assembly or the people to make laws to aid the operation thereof. Held, that the section requires 25 per cent. of the electors to sign any petition for recall until the legislative assembly or the people provide for a petition signed by a less number. islature to provide for payment of campaign expenses of the officers subjected to the recall out of the public treasury as authorized by the section does not suspend the right of recall. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 58; Dec. Dig. § 31.*] In Banc. Original proceeding, on the relation of Andrew L. Clark, for quo warranto to W. A. Harris. Heard on demurrer to the petition or complaint. Demurrer overruled. C. E. S. Wood and G. F. Martin, both of 3. CONSTITUTIONAL LAW (§ 30*)-CONSTRUC- Portland, for plaintiff. M. L. Pipes and TION OF CONSTITUTIONAL PROVISIONS-SELF- Ansel R. Clark, both of Portland, for deEXECUTING PROVISIONS-"AID." In Const. art. 2, § 18, authorizing the recall of officers, the provision for such additional legislation as may aid the operation of the section does not hold the section in abeyance until such legislation is enacted, the word "aid" signifying to support, help, or assist. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 32; Dec. Dig. § 30.* For other definitions, see Words and Phrases, First and Second Series, Aid.] 4. CONSTITUTIONAL LAW (§ 31*)-CONSTRUCTION OF CONSTITUTIONAL PROVISIONS-SELFEXECUTING PROVISIONS. fendant. RAMSEY, J. This is an action in the nature of quo warranto brought in this court by the state of Oregon, on the relation of Andrew L. Clark, against the defendant, W. A. Harris, wherein it is contended that the defendant is guilty of usurping and unlawfully exercising the office of county judge of Columbia county. It is contended, also, that the relator, Andrew L. Clark, is the duly Const. art. 2, § 18, providing that every elected and qualified county judge of said public officer is subject to recall, and requiring county and entitled to said office, etc. The a petition for recall to be presented to and filed petition or complaint states the facts relied with the officer with whom the petition for nomination is required to be filed, providing that it upon by the plaintiff. The defendant filed shall not be necessary for petitions to be sign- a demurrer to the petition or complaint, aled by more than 25 per cent. of the legal voters, leging that said petition or complaint does requiring the reason for the recall to be stated in the petition, and that the officer be given five not state facts sufficient to constitute a cause days after its filing in which to resign, and that of action. This demurrer was argued in if he does not resign in five days after the peti- banc, some days ago by attorneys for the reFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes spective parties, and taken under advise-, enact a law providing the per cent. of the ment by the court. legal voters that shall be necessary to sign It is not necessary to state the facts in full, as the argument covered substantially but one question, to wit, whether section 18 of article 2 of the Constitution, relating to the recall of public officers, is self-executing. On and prior to September 22, 1914, the "Every public officer in Oregon is subject, as defendant was the duly elected, qualified, and herein provided, to recall by the legal voters of the state or of the electoral district from which acting county judge of Columbia county. On he is elected. There may be required twentyAugust 28, 1914, there was filed in the office five per cent., but not more, of the number of of county clerk of Columbia county a peti- electors who voted in his district at the pretion in proper form for the recall of the de- ceding election for Justice of the Supreme Court to file their petition demanding his recall by fendant, in accordance with the terms of the people. They shall set forth in said petisection 18 of article 2 of the Constitution. tion the reasons for said demand. If he shall This petition contained all that said section offer his resignation, it shall be accepted and 18 requires to be set forth in a petition for take effect on the day it is offered, and the vacancy shall be filled as may be provided by law. a recall. The defendant did not resign, and If he shall not resign within five days after the the county clerk duly ordered a special elec- petition is filed, a special election shall be ortion to be held in said county on September dered to be held within twenty days in his said electoral district to determine whether the peo22, 1914, to determine whether the people of ple will recall said officer. On the sample balsaid county would recall the defendant as lot at said election shall be printed in not more county judge of said county. Due notice of than two hundred words, the reasons for demanding the recall of said officer as set forth said election was given, and it was duly held. in the recall petition, and in not more than two Andrew L. Clark, the relator, was nominated hundred words, the officer's justification of his as a candidate for county judge, to be voted course in office. He shall continue to perform for at said election. At said recall election, the duties of his office until the result of said special election shall be officially declared. Othhe received, for the office of county judge, er candidates for the office may be nominated to 1,484 votes, and the defendant received only be voted for at said special election. The can1,249 votes; the former having received a didate who shall receive the highest number of votes shall be deemed elected for the remainder of majority of 235 over the defendant, and no the term, whether it be the person against whom person except said relator and the defendant the recall petition was filed, or another. The having received any votes at said election. recall petition shall be filed with the officer with The said vote was duly canvassed and said whom a petition for nomination to such office should be filed, and the same officer shall order relator was duly declared to have been elect- the special election when it is required. Νο ed county judge of said county at said elec- such petition shall be circulated against any oftion. A certificate of election was issued to ficer until he has actually held his office six the relator, and he immediately qualified as months, save and except that it may be filed against a senator or representative in the legcounty judge of said county by taking, sub-islative assembly at any time after five days scribing, and filing his oath of office as required by law. The relator was and is male citizen of the United States and of the state of Oregon and of Columbia county, and duly qualified to be elected county judge of said county. After the relator had so qualified as county judge of said county, he duly demanded of the defendant the possession of the books, papers, and insignia of said office; but the defendant refused to accede to said demand and continues to hold said office, and excludes the relator therefrom, etc. a [1] The demurrer admits the allegations of the petition or complaint that are properly pleaded to be true. The point contended for by the defendant upon the demurrer is that the recall of public officers provided for by section 18 of article 2 of the Constitution is not in force because said provision of the fundamental law is not self-executing, and no act of the legislative assembly or of the people has been passed to carry it into effect. If this contention is well founded, the recall election was unauthorized and consequently void. The counsel for the defendant contend that this section is in abeyance, and that it will continue to be in that state until from the beginning of the first session after his election. After one such petition and special against the same officer during the term for election, no further recall petition shall be filed which he was elected unless such further petitioners shall first pay into the public treasury which has paid such special election expenses, the whole amount of its expenses for the preceding special election. Such additional legislation as may aid the operation of this section shall be provided by the legislative assembly, treasury of the reasonable special election camincluding provision for payment by the public paign expenses of such officer. But the words, the legislative assembly shall provide,' or any similar or equivalent words in this Constitution or any amendment thereto, shall not be construed to grant to the legislative assembly any exclusive power of lawmaking nor in any way to limit the initiative and referendum powers reserved by the people." This section was adopted by a vote of the people on the first Monday in June, 1908. Three general sessions of the legislative assembly have passed since its adoption, but no act has been passed in relation thereto. This section is new, and it is now before this court for the first time for construction. The first sentence of said section of the Constitution is as follows: herein provided, to a recall by the legal voters "Every public officer in Oregon is subject, as of the state or of the electoral district from This provision subjects every state, dis-, with the officer with whom a petition of trict, county, and municipal officer to what nomination to such office is required to be has been designated as the "Imperial Recall." It provides a special remedy to oust from public office a corrupt, incompetent, unfaithful, or unpopular public servant. [2] 1. The first point made is that said section does not provide definitely what per cent. of the electors shall be required on petitions for a recall, and that this is left to be determined by county clerks or other proper officers with whom the petitions are required to be filed. But we cannot assent to this contention. The clause of this section relating to this matter is as follows: "There may be required twenty-five per cent., but not more, of the number of electors who voted in his district at the preceding election for Justice of the Supreme Court to file their petition demanding his recall by the people." This section authorizes the legislative assembly or the people to enact laws to "aid" the operation thereof, and it is competent for the legislative assembly or the people to provide by law that it shall be sufficient for a recall petition to be signed by 10 or 15 per cent. of the electors, or any per cent. thereof less than 25; but not more than 25 per cent. can be required. Until the legislative assembly or the people enact the contrary, every petition for a recall must be signed by not less than 25 per cent. of the electors of the county or election district. [3] 2. The second point contended for by the counsel for the defendant is that the following provision of said section 18 evinces an intention that said section shall remain in abeyance until certain legislation referred to therein shall be enacted: "Such additional legislation as may aid the operation of this section shall be provided by the legislative assembly, including provision for payment by the public treasury of the reasonable special election campaign expenses of such officer." This clause requires the legislative assembly to pass such legislation "as may aid the operation" of said section. This does not mean legislation to put said section in operation, but such as will aid its operation, It seems to imply that the section will be in operation before such legislation shall be enacted. "To aid" signifies "to support, help, or assist." [4] This section does not confer power upon the legislative assembly to provide for the recalling of officers. It is not a mere declaration of principles to be made operative by the legislative assembly. It provides that "every public officer, is subject as herein provided, to recall." Every officer is made, by this section, subject to recall as provided therein and not as the lawmaking department may provide. This provision speaks in the present tense, and declares that every public officer is subject to recall as provided in said section. It requires a petition demanding a recall to be presented to and filed filed; it provides that it shall not be necessary that such petitions be signed by more than 25 per cent. of the legal voters that voted for Justice of the Supreme Court at the preceding election; it requires the reasons for the recall to be stated in the petition; it requires also that the officer be given five days after the petition is filed in which to resign; it provides that if he does not resign in five days after the petition is filed, a special election shall be ordered to be held in 20 days to determine whether the people will recall him; it requires the election to be called by the officer with whom the petition is filed; it provides that if the officer resigns, his resignation shall be accepted, and that the vacancy shall be filled as provided by law; it provides that on the sample ballots for said election shall be printed, in not more than 200 words, the reasons for demanding the recall of the officer, and it also provides that there shall be printed on said ballot, in not more than 200 words, the officer's defense; it provides, also, that other candidates may be nominated to be voted for at said election for said office, and declares that the person receiving the highest number of votes for said office shall be deemed to be elected for the remainder of the term, whether it be the officer who is subjected to the recall or another, etc. This section sets forth a complete modus operandi for the recall. Nothing whatever is omitted that is necessary to effect the recall. Its provisions are absolute, not conditional. Its terms indicate an intention that it shall be operative as soon as it shall be adopted by the people. There is nothing to be done by the Legislature to put it in operation. It is clear from the terms of this section that its framers and the electors who adopted it did not intend that it should be in abeyance until the lawmaking power should pass some act in its aid. If they had intended to confer power on the Legislature to provide for a recall of public officers, they could have done so in a few words, and it would not have been necessary to use 500 words in conferring this power. It is evident from the wording of this section that its framers and the electors who adopted it desired to make it effective immediately. To make it dependent on the action of the Legislature would have been to make it subject to be defeated by the inaction of an unfriendly or negligent Legislature. [5] 3. Constitutional provisions are selfexecuting where it is the manifest intention that they should go into immediate effect and no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty or a liability imposed. 6 Am. & Eng. Cyc. of Law (2d Ed.) 912; 8 Cyc. pp. 752, 753; Cooley on Constitutional Lim. (7th Ed.) 121; Acme Dairy Co. v. Astoria, 49 Or. 523, 90 Pac. 153; Tuttle v. National Bank of Republic, 161 Ill. 502, 44 N. E. 984, 34 L. R. A. 750; Friedman v. Mathes, 8 Heisk (Tenn.) 498; Willis v. Mabon, 48 Minn. 150, 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626. 8 Cyc. supra, says: "A self-executing provision is one which supplies the rule or means by which the right given may be enforced or practiced, or by which a duty enjoined may be performed." duty in the premises. There is nothing in Justice Moore, in Acme v. Astoria, supra, to give effect to the intention of its framers, says: * "A section of the fundamental law is self-executing when it prescribes a rule, the application of which puts into operation the constitutional provision. The amendment quoted, having expressly authorized cities and towns to provide for the manner of exercising the initiative and referendum powers as to their municipal legislation, the provision is therefore self-executing in respect to the class of enactments specified." In Willis v. Mabon, supra, the Supreme Court of Minnesota says: "The question in every case is whether the language of a constitutional provision is addressed to the courts or to the Legislature does it indicate that it was intended as a present enactment, complete in itself as definitive legislation, or does it contemplate subsequent legislation to carry it into effect?" In Tuttle v. National Bank of Republic, supra, the Supreme Court of Illinois, says: "Where it is apparent that a particular provision of the organic law shall go into immediate effect without ancillary legislation, and this can be determined by giving full force and effect to all its clauses relating to the same subject, and the language is free from ambiguity, then it becomes the imperative duty of the judicial tribunals to declare it self-executing; and where the provision is unambiguous and the purpose of the provision would be frustrated unless it be given immediate effect, it will be held self-executing." Cooley on Constitutional Limitations, supra, says: "A constitutional provision may be said to be self-executing, if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced, and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law." The clause of the section of the Constitutiou under consideration which provides that such additional legislation as may aid in the operation of this section shall be provided by the legislative assembly, including a provision for payment, by the public treasury, of the reasonable special election campaign expenses of such an officer, is a direction to the Legislature to pass such act as may aid in the operation of said section, but the right to have an officer recalled, in accordance with the provisions of such sections, is not made dependent on the passage of such an act. It is the duty of the legislative assembly to pass such an act, but the right to recall an officer cannot be suspended or defeated and the electors who adopted it, and they should be taken to have intended what the language used means. Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, says: The framers of the "Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." Justice Lamar, in Lake County v. Rollins, 130 U. S. 670, 671, 9 Sup. Ct. 652, 32 L. Ed. 1060, says: "The object of construction, applied to a Constitution, is to give effect to the intent of its framers, and of the people in adopting it. This intent is to be found in the instrument itself; and when the text of a constitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its * * The meaning beyond the instrument. simplest and most obvious interpretation of a Constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption." Bearing in mind that this section provides a complete method of procedure for effecting a recall, and that its language indicates an intention that it should be operative immediately, we hold that it is self-executing as to all its provisions, except the clause that requires the Legislature to pass an act providing for the payment of the reasonable special election campaign expenses of the officer subAs to the latter provijected to the recall. sion, it is not self-executing, but the failure of the Legislature to pass such an act does not prevent the enforcement of the provisions for the recall. [7] To hold that the failure of the lawmaking department to enact a law requiring the payment of the reasonable campaign expenses of the officer subjected to the recall out of the public treasury operates as a suspension of the right to recall a public officer would, in our judgment, defeat the intention of the . electors who adopted said section 18. We believe that their intention was that the right to recall a public officer should exist as soon as said constitutional provision took effect. It is hardly necessary for us to say that we have nothing to do with the wisdom of the provision for the recall. Obviously, it can be abused. We hold that said section 18 of article 2 of |