52 Troom. Allen v. Board of Education of Passaic. The next objection urged is that the act cannot be sustained as the exercise of the taxing power of the state. answer, it may be said that the act is not intended to be, and is not in fact, an exercise of that power. Another alleged infirmity of the act is that it is special, violating article 4, section 7, paragraph 11 of the constitution, which provides that "the legislature shall not pass private, local or special laws" in any of certain enumerated cases. Under this point. counsel in his brief thus attacks the act: "Article XXV. of the act (Pamph. L. 1907, p. 365) which creates and provides for the Teachers' Retirement Fund grants to a corporation or association, The Board of Trustees of the Teachers' Retirement Fund,' exclusive privileges, immunities and franchises (sections 216, 217, 220), and also to certain individuals, those employed prior to January first, one thousand nine hundred and eight (section 221, IV.), certain exclusive privileges, among which is the right to receive his or her entire contractual salary, which right is denied to those employed or appointed after that date." The statute, of necessity, considered two classes, those employed before its enactment and those who assumed positions of employment after its approval. Of the former class, by reason of the contracts entered into by some before its enactment, upon the constitutional grounds stated in Ball v. Board of Trustees, supra, it was not possible to compel all teachers to be governed by the act. Yet the act in recognition of this state of affairs granted to such teachers an optional right to avail themselves of its privileges. The act contains no expression that its benefits are exclusively for those who become members of the fund after the enactment of the supplement. Where all objects, which can constitutionally be included in a class, are by legislation recognized by inclusion therein, such legislation will be general in the constitutional sense. See State Board of Health v. Diamond Mills Paper Co.. 18 Dick. Ch. Rep. 111; affirmed, 19 Id. 793. Still another attack is made by the assertion that the act confers corporate powers in violation of article 4, section 7, Allen v. Board of Education of Passaic. 81 N. J. L. paragraph 11 of the constitution, in creating "the board of trustees of the teachers' retirement fund" (section 213) with powers, among others, enumerated in section 220. The text of the constitution relating to this subject is "the legislature shall pass no special act conferring corporate powers, but they shall pass general laws under which corporations may be organized and corporate powers of every nature obtained, subject, nevertheless, to repeal or alteration at the will of the legislature." Const. 4, § 7, ¶ 11. As was said in Jersey City v. North Jersey Street Railway Co., 44 Vroom 175, "the soundness *of the position depends upon whether this statute is general or special." See, also, Delaware Bay, &c., R. R. Co. v. Markley, 18 Stew. Eq. 139. * The legislature is likewise prohibited by the constitution in the same paragraph from passing "private, local or special laws," "for the management and support of free public schools," and in the preceding paragraph 6 the constitution directs that "the legislature shall provide for the maintenance and support of a thorough and efficient system of free schools," &c. That the act under consideration is general, not special, I think must be conceded. It was enacted in obedience to the constitutional mandate, is in terms general, extends throughout the entire state and purports to deal with the single general subject of a system of free schools, "for the instruction of all the children in this state between the ages of five and eighteen years." Moreover, this provision has been held to apply only to private corporations, i. e., not to municipal corporations. Pell v. Newark, 11 Vroom 1; affirmed, Id. 550. If this be a corporation at all, it is of a political character: constituting an arm of the public service, to carry into effect public duties and powers; a corporate organization for such purpose, could not properly be created under the general corporation laws. What has been said on this topic is without intending to intimate that the retirement fund is in fact a corporation, and also without justifying an attack upon its existence if indeed it be such, by this method, for that must be accom 52 Vroom. Allen v. Board of Education of Passaic. plished by quo warranto. Howe v. Board of Education, 43 Vroom 161. The remaining objections of a constitutional character are that the object of the act as concerns the teachers' retirement fund is not expressed in the title and that the act embraces more than one object. A reference to the opinion of Mr. Justice Garrison in Moore v. Burdette, 33 Vroom 163, will make plain the distinction between the object of the law and those things which may be produced by the law. The former by the constitution must be single, but the latter. viz., "the product may be as diverse as the object requires and finds its expression in the terms of the enactment only." Contracts relating to the employment of teachers under a thorough and efficient system of instruction, if they could be divorced from the system, certainly are not improperly related to it. From these contracts becomes established a fund available for disabilities and infirmities of old age, and therefrom flow inducements for long and continued service, with its consequent enlarged experience and other numerous advantages readily recognized by every thoughtful person, making for efficiency and thoroughness. The title to the act expresses a single object, and the creation thereby of the "board of trustees of the teachers' retirement fund" is germane to, and one of the products of, the act. Newark v. Cemetery Company, 23 Vroom 539; affirmed, 29 Id. 168. These objections, therefore, cannot prevail and the nonsuit will be affirmed. The facts having been fully settled by stipulation in the court below in this case, judgment for the appellee will be ordered to be entered in this court, with costs. Blauvelt v. Erie R, R. Co. 81 N. J. L. JOHN BLAUVELT, DEFENDANT, v. ERIE RAILROAD COMPANY, PROSECUTOR. Argued November 1, 1910-Decided February 27, 1911. 1. Where proof of the negligence of a railway in failing to blow a highway crossing signal (Pamph. L. 1903. p. 663) consisted solely in the testimony of a witness who said that he did not hear it, coupled with a statement that on account of a strong wind one could scarcely hear any sound, and there being positive testimony of both engineer and fireman that the whistle was blown-Held, that there was no conflict of evidence requiring the submission of that fact to the jury. 2. Held, under the facts of the case, that the plaintiff was guilty of contributory negligence. On certiorari to Common Pleas. Before Justices GARRISON, SWAYZE and VOORHEES. For the prosecutor, Collins & Corbin. For the plaintiff, Joshua R. Salmon and Elmer King. The opinion of the court was delivered by VOORHEES, J. This writ of certiorari has removed for review a judgment entered for the plaintiff on the verdict of a jury, in the Court of Common Pleas on appeal from the Small Cause Court. The litigation was brought to recover damages for injuries to property received at a grade railway crossing. The alleged negligence of the defendant was the failure to give the statutory signals by bell or whistle. The statutory requirements (Pamph. L. 1903, p. 663) are in the alternative, either that the bell shall be rung or the whistle blown, not cumulative requiring both to be done. New York, &c., Railroad Co. v. Leaman, 25 Troom 202. If, therefore, the plaintiff failed to prove that both signals were omitted, he has failed in his proof. The proof that the 521 room. Blauvelt v. Erie R. R. Co. crossing signal by whistle was given was the subject of the positive testimony of both engineer and fireman. The plaintiff's evidence is, "I did not hear any bell or whistle. There was a very strong wind that morning from the west, that blew the sound away from me." And, on cross-examination, he repeated: "Yes there was a strong wind blowing." "Q. So that would confuse any sound? 4. Yes, you could not hear any sound scarcely." This constitutes the whole testimony concerning the giving the statutory signals by whistle. The plaintiff's testimony in rebuttal refers alone to the warning whistle just before the collision, not to that prescribed by statute. Undoubtedly, the condition of the wind described by the plaintiff made it unlikely that he could have heard the whistle had it blown. There was, therefore, no conflict of evidence requiring the submission of that fact to the jury. Eissing v. Erie, 44 Vroom 313; Holmes v. Pennsylvania Railroad, 45 Id. 469; Weiss v. Central Railroad, 47 Id. 348; Howe v. Northern Railroad, 49 Id. 683. The motion to direct a verdict for the defendant should have prevailed on this ground. But assuming that the defendant's negligence in the failure. to give the statutory signals by bell or whistle was sufficiently made out to carry the case to the jury, yet we think the proof clearly exhibits the concurring negligence of the plaintiff but for which the accident would not have occurred. The plaintiff approached the crossing with the nature and surroundings of which he was familiar, in the daylight, driving a horse and buggy, in which he rode, with its top up and side curtains down. The horse was going at a slow walk of three miles per hour. While sitting in the buggy he was unable to see on either side much more than ten or fifteen feet of the track. In order to see out at the side he had to lean forward. When he came to a point, which he places at twenty or thirty feet from the track, he got up off the seat and looked around the top and did not see any train, and then went on. He did not get off his seat again, but just looked around the top. There was a strong wind which blew the sound |