Stevens, etc. Co. v. Dunaney, et al.j 3. Sec. 428, Comp. Laws, 1909, Error from County Court Jefferson which provides, that, "A carrier of county. G. M. Bond, trial judge. persons without reward must use or Affirmed. Thos. Norman, for plaintiff dinary care and diligence for their in error. Bridges & Vertrees, and safe carriage," declares the law in the Devereux & Hildreth, for defendants absence of contract. If the plaintiff in error. Syllabus. by a valid contract expressly exonertes the carrier from liability for negligence and the carrier violates the 1. On a transcript of the record of state, it is only guilty of negligence for a case tried in the county court on whose damages the contract is a comappeal from a justice of the peace, plete defense. where no objections were made or exceptions saved in the county court, the S. L. & S. F. R. R. Co. v. Chas. P. only questions presented to this court Williams. for review, are: Did the trial court have jurisdiction to try the cause, and Ottawa county. Before W. Y. Quigley, if so. do the pleadings state facts suf- R. A. Kleinschmidt, for plaintiff in trial judge. Reversed. W. F. Evans, ficient to support the Judgment error. S. C. Fullerton, for defendant rendered. in error. 2. Pleadings in causes originating Syllabus. in justices' courts must be liberally 1. Statutes requiring railways to construed, and when their sufficiency fence their rights-of-way are passed in is raised for the first time in the pursuance of the police powers of the supreme court, it will be presumed state, and are or the benefit of the that what was defectively stated in whole public, and are not intended the bil of particulars was sufficiently merely for the protection of adjoining established on the trial. land-owners, unless it clearly appears from the language used that it was the intention of the legislature to protect 2. In the absence of statute or A. T. & S. F. Ry. Co. v. Minnie F. Smith. Error from District Court only such owners. Kay county. Wm. M. Bowles, trial judge. Reversed and remanded. Cot-greement to the contrary, a railroad tingham & Bledsoe and Chas. H. company must exercise Moss, Woods, for plaintiff in error. reasonable care to see that the gates or bars at private or farm crossings are kept closed, the duty being included in that of maintaining a sufficient fence of 1. In an action for damages for which the gates or bars constitute a personal injuries commenced against part. And if the gates or bars are a railway company, the waiver on the properly constructed and are left open back of a 'ree pass, executed and de- bv the land-owner or by strangers livered in a sister state, upon which without the knowledge of the company, the plaintiff was riding at the time it will not ordinarily be liable, the comthe injury occurred in this state, must pany being entitled to a reasonable re construed according to the laws of time to discover that they are o en this state. and to close them; but the company 2. A free pass issued by a railway will be liable if they have remained company does not constitute a con- open for such length of time that it tract between the person to whom should in the exercise of reasonabe such ass is issued and the railway care have discovered their condition. company. It is simply a direction to 3. Waere from the facts shown by its conductors to receive and trans the evider e, although undisputed. rort such person upon its trains. and reasonable men might draw different may be taken up any time, even in conclusions respecting the question of the course of a journey, and the hold- negligence. such questions are prop er required to pay fare. erly for the jury. G. C. & S. F. Ry. Co. v. State. Ap-be disturbed on appeal unless it appeal from Corporation Commission.pears tnat the court abused its disReversed. Cottingham & Bledsoe, for cretion. laintiff in error. Chas. West, Atty. 2. It is not error to refuse an Genl., and Chas. L. Moore, Asst. Atty. amendment which will permit the Genl., for defendant in error. party requesting the same to introduce evidence tending to establish an usage Syllabus. 1. Order No. 148 of the corporation or custom which contravenes a writcommission, insofar as it relates to ten contract upon which the cause of commn carriers engaged in interstate action is predicated. commerce, covers the same subject- 3. An appearance, in order to be matter embraced within certain sec-special, must be shown to be such by tions of the act of congress of March a proper designation and entitlement. 3, 1901, titled, "An Act requiring common carriers engaged in interstate commerce to make full reports of all First Nationa! Bank, Tisnomingo v. accidents to the interstate commerce Blair. Error from County Court Johncommission." Held, that the order of ston county. Before Nick Wolfe, trial the commission must yield, and is judge. Reversed and remanded. Horsuperseded by the federal act. ton & Smith, and G. C. Treadwell, for No brief for defendplaintiff in error. ant in error. 2. The right of a state to apply its police power for the purpose of regulating interstate common carriers en- Syl'abus. gaged in interstate commerce exists Where counsel for plaintiff in error, only from the silence of congress on in conformity with the rules of this the subject, and ceases when congress court, has prepared, served, and filed a acts on the subject or manifests its brief, in which, with other contentions, purpose to call into play its exclusive it is insisted that the judgmen and power. verdic appealed from are not reasonbly supported by the evidence, and there is no brief filed, and no reason Drennan Grain Co. v. Waburton. given for its absence, on the part of Error from District Court Alfalfa coun- the defendant in error, this court is ty. M. C. Garber, trial judge. Affirm- not required to search the record to ed. Everest, Smith & Campbell, for find som theory upon which the judgplaintiff in error. Geo. W. Partridge. ment below may be sustained, but, Talbot & Owen, for defendant in error. where the brief filed appears reasonSyllabus. ably to sustain the assignments of 1. Leave to amend pleadings at any error, the court may reverse the stage of the proceeding is largely in judgment in accordance with the the sound discretion of the trial court, prayer of the petition of plaintiff in and rulings on such questions will not error. THE OKLAHOMA LAW JOURNAL EDITED AND PUBLISHED MONTHLY BY D. H. FERNANDES, GUTHRIE, Oklahoma. VOL. 10. April, 1912. No. 10 THE RECALL OF JUDGES. By Hon. T. J. Walsh, of Helena, Montana. Address delivered before The Washington State Bar Association at its Annual Meeting. The public discussion of the suject of the recall of judges has served again to bring into the limelight how widely men differ in their estimate of the capacity of the people for self-government. Not a little of it has been more or less acrimonious. The Chief Executive of the Nation finds it an innovation of so pestilential a nature as to justify the exclusion from membership in the sisterhood of States of a Territory whose people, preparatory to their entry into the Union, framed a constitution recognizing the principle. It has even been advanced that such a constitution would operate to characterize the government to come into being under it as other than republican, the form which the United States, under their fundamental law, guarantee to every State in the Union. If this view be sound, it follows that it is incumbent upon the Federal Government to interfere in some manner in the case of any existing State that shall adop this reform, as it is denominated by its friends, until the obnoxious principle is eradicated. It is exceedingly difficult to understand why it is good business policy in every great corporation to retain, when it can, the right to dismiss its secretary, auditor, or treasurer at will, but is impol.ic for the people to retain the right to dismiss a county clerk cr a State treasurer when they see fit to do so. A business man or corporation is sometimes forced to enter into a long time contract in order to secure or retain the services of a valued servant, but it is avoided, for obvious reason, whenever unnecessary. Usually such contracts bind both parties. The public servant, performing similar services, has his employer bound, but he may escape the obligations of his service, at any time, by resigning. As to the legislative office, it affords such a check upon a career of corruption, regrettably not infrequent, particularly in municipal councils, as ought to commend it generally as to such. In this respect to such offices, a course of conduct extending over a considerable period of time may bring conviction of guilt to all intelligent observers that can not be resisted, and yet evidence sufficient to expel be entirely unavailable. And why should a member who has violated the pledges under which he was elected, repudiates the measures to secure the passage of which he was delegated, and outrages by his votes the convictions of his constituents on great public questions, continue, against heir will, as their alleged representative? In a neighboring State a member was lately elected to the higher branch of the legislature for a term of four years at an election at which the choice of a United States Senator was the paramount, not to say absorbing, question before the voters. He was returned largely because of his professions of allegiance to the popular candidate for that office, to whose cause he publicly and privately declared himself devoted. He voted for the local favorite for ten days or thereabout, and then desented to become the leader of the forces of his antagonist, a man of great wealth who had the support of a giant corporation, believed to be the master of the political destinies of the State, for whose legislative program the recreant member voted with striking consistence. He was overwhelmed with remonstrances from his constituents, and though they did not affect his course, he confided to some of his friends that he was opposed to the recall because if it prevailed he would be one of its first victims. If it should be regarded as wise to punish the error of judgment on the part of the people of his county in electing him, by denying to them the right of recall, why should the interests of the rest of the people of the State be imperiled by his retention? What ground is therefor making any distinction in reference to those public servants upon whom devolve the judicial function? The expression "public servants" is used advisedly in connection with judges, upon the au hority of the Supreme Court of the United States, which said, in Luther v. Borden: "Judges * * * must enforce such (Constitution) as the people themselves, whose judicial servants they are, have been pleased to put into operation." It is the theory of our Government that the whole body of the sovereign people, as though they were one sovereign, desire that justice should be administered and lawlessness punished. They employ and depute judges to perform the work for them. It is a speculation quite in keeping with the sacred character of the judicial office that regards the occupant of it, in a special manner, as the minister of divine justice, dispensing to each, with such feeble light as finite intelligence and judgment may, such measure as may be his due. If we were to conceive his appointment to come from the Infinite Wisdom, we must likewise conceive that the recall awaits his first lapse from rectitude. An error in judgment would be overlooked, not attributable to sloth or persistence in vices that cloud the reason. The decay of the faculties from advancing age or illness would call it into immediate action. The upright judge would have no occasion to fear its exercise until it would be merciful to employ it. Theorectically it is ideal, particularly in the case of judicial officers, if we assume that the majority of the people have the intelligence and virtue to use it aright. At the time the experiment in self-government was first tried on this continent, they were not considered as possessing either in sufficient degree to make a wise choice of judges possible or likely by popular vote, and accordingly, as stated, in not one of the thirteen original States, at the time of the adoption of the Federal Constitution, were judges elected by the people. Now, in thirty-four of the forty-eight States the judges are chosen by popular election. These include Georgia, which went to the elective system in 1798, the imperial State |