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tion of a hostile character, but so situated as to be CONSTRUCTION OF STATUTE EXEMPTING incapable of making it had he desired."

Pond v. The People, 8 Mich. 150, was a homicide in defense of one's self and his servant. The court said: "The only variety of excusable homicide (as contradistinguished from justifiable homicide at common law) which we need advert to, is that which is technically termed homicide se aut sua defendendo, and which embraces the defense of one's own life or that of his family or dependents within those relations, where the law permits the defense of the others as of one's self. * ** A man may defend his family, his servants or his master whenever he may defend himself. How much further this mutual right extends it is unnecessary in this case to consider. 4 Bl. Com. 184." Staten v. The State, 30 Miss. 619, was a killing in defense of a wife, and the statute of Mississippi expressly limited the principle to husband and wife, parent and child, master and servant.

United States v. Wiltberger, 3 Wash. C. C. 515, was strictly a case of self-defense. Washington, J., said: "As to this the law is that a man may oppose force to force in defense of his person, his family or property, against one who manifestly endeavors by surprise or violence to commit a felony, as murder, robbery or the like."

In Sharp v. The State, 19 Ohio, 379, a father wantonly made an assault on another, and the son, coming to the aid of the father, was held, under the circumstances, not to be justified on the ground of the relationship.

In Patten v. The People, 18 Mich. 314, the accused was living with his parents and killed one of a number of rioters who had assembled about the dwelling, and were so acting, it was claimed, as to endanger the life of the mother who was in delicate health.

In Parker v. The State, 31 Tex. 132, the prisoner, a negro, shot Green for beating a woman with whom Parker was living in a state of illicit cohabitation.

Dupree v. The State, 33 Ala. 380, was a case of alleged self-defense, and the homicide was sought to be justified upon the ground of threats against the prisoner.

In Bristow's case, 15 Gratt. 624, the accused inflicted a mortal wound on the deceased, who was engaged at the time in a fight with Bristow's father, aud a conviction was sustained by reason of evidence which showed malice in the son.

In Rex v. Harrington, 10 Cox, C. C. 370, a father inflicted a fatal blow on the husband of his daughter, on seeing her violently beaten by him.

It thus appears that Mr. Bishop is mistaken, if he has no other foundation for the statement under consideration than the authorities here presented; and doubtless no such authority can be produced. The indulgence of the law in allowing the doctrine of constructive self-defense is a concession to the infirmity, or rather to the strength of human feelings, and is wisely limited, with one exception, to those relationships which constitute the closest ties of mutual duty and affection. A line must be drawn somewhere, though a brother be excluded and a servant admitted. For if a brother might claim this privilege, so might any other collateral relative, and then an intimate friend, and then a bare acquaintance or a casual companion, and the consequence would be that what was intended primarily for indulgence would too often become license and the violence of unrestrained passion would be invoked to palliate what forbearance and self-control, with little effort, might avoid.

What the law prescribes however is one thing; what a verdict will be, is quite another; and therefore it may very reasonably be hoped that a jury would find out some way by which a person on trial for slaying the murderous assailant of his brother, would get the benefit of all the indulgence that could be afforded by the doctrine of constructive self-defense. SAM'L D. DAVIES.

RICHMOND COLLEGE, VA., Dec. 1881.

FROM TAXATION.

SUPREME COURT OF THE UNITED STATES, JANUARY 9, 1882.

BANK OF COMMERCE V. STATE OF TENNESSEE. The charter of a bank created by the State of Tennessee, provided that it might purchase and hold a lot of ground for use as a place of business, and at pleasure sell the same and might hold such real or personal property as might be conveyed to it to secure debts due it, and might sell the same. The charter also provided that the bank should pay to the State an annual tax of one half of one per cent on each share of capital stock, which should be in lieu of all other taxes. Held, that the exemptions from taxation could not be extended to real estate held by the bank beyond its actual wants in carrying out the purposes of its corporation, and that real estate purchased by it at sales, under trust deeds given it to recover debts, was taxable by the State.

Statutes imposing restrictions upon the taxing power of a State, except so far as they tend to secure uniformity and equality of assessment, are to be strictly construed.

IN

error to the Supreme Court of the State of Tennessee. Sufficient facts appear in the opinion. FIELD, J. The plaintiff in this case is a corporation created in 1856 by the Legislature of Tennessee, to engage in the business of discounting notes, buying and selling stock, dealing in exchange and gold and silver bullion, and receiving moneys on deposit. Its charter provides that it "may purchase and hold a lot of ground for the use of the institution as a place of business, and at pleasure sell and exchange the same, and may hold such real or personal property and estate as may be conveyed to it to secure debts due the institution, and may sell and convey the same." The charter also declares that the institution "shall pay to the State an annual tax of one-half of one per cent. on each share of capital stock, which shall be in lieu of all other taxes."

Previous to 1879 the bank purchased with a portion of its capital stock a lot of ground in the city of Memphis, with the improvements thereon, as a place of business, and has held the same ever since. The improvements consist of a three-story brick building, but the bank only uses the first floor for its business and leases out the cellar and the second and third stories to other parties for a money rent.

The

On the first of January, 1880, the bank was, and ever since has been, the owner of three other lots in the city of Memphis. It had previously made loans to different parties and taken, as security for their payment, a deed of the lots executed to a trustee. loans not being paid, the lots were sold under the deed and purchased by the bank. The purchase was made solely to secure a part of the debt; and the bank now holds the lots for sale, and will sell them when practicable to restore to its legitimate business so much of its capital as is invested in them.

In March, 1875, the Legislature of the State passed an act defining what property was exempt from taxation by the Constitution, what the Legislature had the power to exempt and did exempt, and what was taxable; and declaring that all other property should be assessed and taxed. In the list of property designated as exempt from taxation, that held by the Bank of Commerce was not mentioned, and the act repealed all inconsistent laws.

Under this act, the lot of ground in the city of Memphis, purchased by the plaintiff, with the building upon it, and used as a place of business, was assess ed and taxed, in the years 1879, 1880, and 1881, for State and county purposes. The three lots were also taxed in a like manner for the years 1880 and 1881. taxes were paid under protest and the bo

The

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menced the present suit to recover back the money. It appears to have been treated in the State court as a suit in equity, and the chancellor sustained a demurrer to the bill and dismissed the suit. The Supreme Court of the State reversed the decree in part, holding that the bank was not liable for the taxes on so much of the lot and building as was used for its business, but was liable for the taxes on the remainder and the three lots. From this latter decree the case is brought to this court by the bank, claiming exemption of the entire property from taxation under its charter.

That statutes imposing restrictions upon the taxing power of a State, except so far as they tend to secure uniformity and equality of assessment, are to be strictly construed, is a familiar rule. Against the power nothing is to be taken by inference and presumption. Where a doubt arises as to the existence of the restriction, it is to be decided in favor of the State. The restriction here, consisting in the declaration that a specific tax on each share of the capital stock shall be in lieu of all other taxes, is accompanied with authority to purchase certain real property, "for the use of the institution as a place of business." The bank had no express authority to invest its capital in real property not required for that use. And it is to be presumed that the exemption from other than the designated tax was in consideration that the capital would be employed for its legitimate purposes. It certainly would not be pretended that the corporation by turning its whole capital into real property and engaging in real estate business, could then, by force of the charter, escape liability to taxation for it under the general laws. But if the exemption could not be carried to that extent, it is difficult to fix any limit to the amount of real property which it may hold thus exempt, unless we take that prescribed by the charter. In our judgment, the limited exemption cannot be extended to property used beyond the actual wants of the corporation in carrying out the purposes of its creation. As well observed by the Supreme Court of the State, the contract of exemption, beyond the extent prescribed, ceased when taxable property was held for any other purpose.

appendages required to complete and maintain such a work and carry on such a business, such as suitable depots, car-houses, water-tanks, houses for switch and bridge tenders, and coal and wood yards for the fuel used in the locomotives; that these were within a fair construction of the exempting clause, because they were necessary and indispensable to the operations of the company and to the accomplishment of the objects of their charter, but that there must be a limit somewhere to the incidental power of the company to enlarge its operations and extend its property without taxation under the exempting clause, and the court concluded that the limitation must be fixed where the necessity ends and mere convenience begins; that the necessary appendages of a railroad and transportation company were one thing, and that those appendages which might be convenient means of increasing the advantages and profits of the company were another thing; that it might be advantageous for the company to purchase land and erect houses for their employees, and establish factories for making their own rails, engines and cars, and even to purchase coal mines and supply itself with fuel, but these are not among the necessary appendages of the company; and that the Legislature, in exempting the company from all other taxes except those mentioned, only intended to inciude so much property as was necessary and essential to a railroad and transportation business such as the corporation was created to construct and carry on. The court therefore sustained the validity of the taxes on the houses and lots in question. Numerous other cases to the same purport might be cited. State v. Newark, 1 Dutcher, 315-317; Vermont Central R. Co. v. Burlington, 2 Williams, 193; Railroad v. Berks County, 6 Barr, 70; Inhabitants of Worcester v. Western R. Co., 4 Metc. 564. The doctrine declared in them that the exemption in cases like the one in the charter before us, extends only to the property necessary for the business of the company, is founded in the wisest reasons of public policy. It would lead to infinite mischief if a corporation, simply by investing its funds in property not required for the purposes of its creation, could extend its immunity from taxation, and thus escape the common burden of government.

It is true that the capital stock of a corporation may in a general sense be said to be all the property in which the capital is invested, so that an exemption of the capital stock, without other words of limitation, may operate to exempt all the property of the corporation. Railroad Companies v. Gaines, 97 U. S. 707. But where the purposes for which a corporation may hold property is specified in connection with the exemption, the limitation of taxation designated must be held to apply only to property acquired for such purposes. This we consider to be the general doctrine established by the numerous cases cited by counsel. The case of State v. Commissioners of Mansfield, decided by the Supreme Court of New Jersey, is a leading one. There it appeared that the charter of the Camden and Amboy Railroad and Transportation Company, after reserving certain imposts, declared that "no other tax or impost shall be levied or assessed upon the said company." The charter conferred upon the company the general power to purchase, receive, and hold real and personal estate; and it had acquired certain houses and lots in the township of Mansfield, which it let to its workmen and employees. These houses and lots having been assessed for taxes by the authorities of the town, the corporation sued out a writ of certiorari to revise their action, claiming that houses and lots were exempt under the provisions of the charter stated. The court in deciding the case, said that the general power of purchasing, receiving and holding real and personaler. The opinion states the case. estate could only be exercised to effect the purpose for which it was conferred by the government; that the power to construct a railroad and establish transportation lines upon it necessarily included the essential

As to the property which was purchased by the bank upon the sale under the trust deed, there is less reason to contend for its exemption from taxation. The express authority conferred upon the corporation to hold real property, except that acquired for the use of the institution as a place of business, was limited to such as might be taken as security for debts; while held for that purpose it was subject to taxation as the property of the debtors. Its liability in this respect to bear its proportion of the common burden of government, was not lessened because the bank, deeming it might be more readily disposed of if freed from the debtor's right of redemption, thought proper to purchase in the title. Judgment affirmed.

BRIBERY AT MUNICIPAL ELECTION.

MAINE SUPREME JUDICIAL COURT, MARCH TERM, 1881.

STATE OF MAINE V. JACKSON. Bribery at a municipal election is a misdemeanor at common law.

An offer of money to an elector to induce him to vote at a municipal election is a criminal offense.

NDICTMENT against Charles A. Jackson för brib

LIBBEY, J. This is an indictment against the defendant for unlawfully and willfully attempting to influence a qualified voter to give in his ballot at a muni

cipal election in the city of Rockland, by offering and paying him money therefor.

The offense charged is not within R. S., ch. 4, § 67. Is bribery at a municipal election a misdemeanor at common law in this State? It is claimed by the learned counsel for the defendant, that it is not recognized as such in this country. We think it is. It was an offense at common law in England. 1 Russell on Crimes 154. Plympton's case, 2 Ld. Raym, 1377. Rex v. Pitt, 3 Burr, 1328.

The common law of England, upon the subject of bribery, fraud and corruption at elections, is generally adopted as the common law of this country. Commonwealth v. Silsbee, 9 Mass. 417; Commonwealth v. Hoxey, 10 id. 385; 1 Bish, Crim. Law, 355; Welsh v. People, 65 Ill. 58; State v. Purdy, 36 Wis. 224; State v. Collier, 72 Mo. 13; People v. Thornton, (N. Y. Sup. Ct.) Third Department, 24 Alb. L. J. 441; Commonwealth v. McHale (Penn. Sup. Ct.), 24 Alb. L. J. 412.

Bishop, in his work on criminal law, vol. 4, 922, says: "We see it to be of the highest importance that persons be elected to carry on the government in its various departments, and that in every case a suitable choice be made. Therefore, any act tending to defeat these objects, as forcibly or unlawfully preventing an election being held, bribing or corruptly influencing an elector, casting more than one vote, is punishable under the criminal common law."

Paxson, J., in the opinion of the court in Commonwealth v. McHale, supra, says: "We are of opinion that all such crimes as especially affect public society, are indictable at common law. The test is not whether precedents can be found in the books, but whether they affect the public policy or economy. It needs no argument to show that the acts charged in these indictments, are of this character. They are not only offenses which affect public society, but they affect it in the gravest manner. An offense against the freedom and purity of the election is a crime against the nation. It strikes at the foundation of republican institutions. Its tendency is to prevent the expression of the will of the people in the choice of rulers, and to weaken public confidence in elections. When this confidence is once destroyed the end of popular government is not distant. Surely if a woman's tongue can so far affect the good of society as to demand her punishment as a common scold, the offense which involves the rights of a free people to choose their own rulers in the manner pointed out by law, is not beneath the dignity of the common law, nor beyond its power to punish. The one is an annoyance to a small portion of the body politic, the other shakes the social fabric to its foundation."

We have no doubt that bribery at a municipal election is a midemeanor punishable by the common law of the State. An attempt to bribe or corruptly influence the elector, although not accomplished, will subject the offender to an indictment. State v. Ames, 64 Mo. 486. But admitting that attempting to bribe an elector at a municipal election is an offense at common law, it is claimed by the counsel for the defendant, that the indictment in this case does not properly charge such offense.

1. It is claimed that willfully and unlawfully attempting to influence an elector to give in his ballot by offering or paying him money therefor is not criminal. We think it is. What the law deems criminal and seeks to prevent, is the corrupting of the elective franchise. Every elector not only has the right to vote or not to vote, according to his own judgment of

by the corrupt payment of money, the ballot does not represent the free and unbiased act of the elector, but it represents the money paid for it, and when counted neutralizes the ballot of the honest voter. When such corrupt influences are used, the result of the election does not depend upon the honest uncorrupted judgment of the electors, but upon the amount of money paid to corrupt them. It is an offense against the people, and has been so regarded in England as well as in this country. Plympton's case, supra, was an information at common law, for offering an elector money to induce him to cast his vote for mayor.

*

*

The statute of 2 Geo. II., ch. 24, § 7, declares it an offense for any elector to ask, receive or take money, or other reward, by way of gift, loan, or other device, to give his vote or to refuse or forbear to give his vote in any such election, and any person who, by such means, shall corrupt or procure any elector to give his vote, or to forbear to give his vote in any such election, shall be equally guilty with the elector.

It was held that the statute was merely an affirmance of the common law, and did not take away the common-law crime. Rex v. Pitt, 3 Burr. 1335.

The statute of 5 & 6 Will. 4, ch. 76, § 54, in regard to the election of mayor, or of a councillor, auditor, or assessor, of any borough, uses terms similar to the statute of 2 Geo. II. The form of an indictment under the statute of Massachusetts given by Train and Heard (Precedents of Indictments 185), is the same upon the point under consideration as the indictment in this case.

2. It is further objected that it is not alleged in the indictment that a legal meeting of ward one in Rockland was held. Nor for what city one alderman and three councilmen were to be elected. Nor that Augustus Montgomery was a legal voter in the same ward one in which the meeting was held. But on a careful examination of the indictment, we think the allegations sufficient on each of these points. State v. Bailey, 21 Me. 62; State v. Boynton, 56 id. 512.

Exceptions overruled. Judgment for the State.

LIMITATION OF LIABILITY BY TELEGRAPH COMPANY.

OHIO SUPREME COURT, JANUARY TERM, 1881.

WESTERN UNION TELEGRAPH Co. v. GRISWOLD.* 1. While a telegraph company may, by special agreement, or by reasonable rules and regulations, limit its liability to damages for errors or mistakes in the transmission and delivery of messages, it cannot stipulate, or provide, for immunity from liability, where the error, or mistake, results from its own negligence. Such a stipulation, or regulation, being contrary to public policy, is void.

2. Where, in an action against the company for damages resulting from an inaccurate transmission of a message, such inaccuracy is made to appear, the burden of proof is on the company to show that the mistake was not attributable to its fault or negligence.

3. The plaintiffs' agent sent to them from Woodstock, Ontario, a message in these words:"Will you give one fifty for twenty-five hundred at London. Answer at once, as I have only till to-night." The court instructed the jury that the message was not in cipher or obscure, within the meaning of a stipulation in the agreement under which the message was sent, that the company "assumed no liability for errors in cipher or obscure messages. " Held, that the instruction was correct.

duty, but he has an interest that every other elector ERROR to the Court of Common Pleas of Cuyahoga

shall exercise the franchise in the same manner, without being influenced by the corrupt payment of money or other unlawful means. If the elector determines that under all the circumstances it is not his duty to vote; but is induced to cast his ballot in the election

county, reserved in the district.

The defendants in error, Griswold & Dunham, dealers in flaxseed, and manufacturers of linseed oil, at Cleveland, brought an action against the plaintiff in error. *To Appear in 37 Ohio State Reports.

The Western Union Telegraph Company, in November, 1872, to recover damages for the negligent transmission of a despatch from Buffalo to Cleveland, sent by the defendants' agent, S. W. Cowpland, from Woodstock, Ontario, upon which the defendants acted, and by reason of which negligence they suffered damages to the alleged amount of $1,163.70, for which sum, with interest thereon from December 23, 1871, they prayed judgment. The despatch sent was as follows:

"WOODSTOCK, ONTARIO, December 23, 1871. "Messrs. Griswold & Dunham:

"Will you give one fifty for twenty-five hundred at London. Answer at once, as I have only till night. "S. W. CoWPLAND."

The despatch as intended by Cowpland and understood by Griswold & Dunham, meant to inquire whether the latter would pay one dollar and fifty cents in gold for twenty-five hundred bushels of flaxseed, at London, Ontario, the parties having had a prior correspondence in reference to the purchase of flaxseed in Canada. The despatch was sent from Woodstock to Buffalo, over the lines of the Montreal Telegraph Company, and thence to Cleveland over the lines of the plaintiff in error.

The despatch delivered to Griswold & Dunham at Cleveland, was as follows:

"WOODSTOCK, ONTARIO, December 23, 1871. "To Griswold & Dunham:

Will you give one five for twenty-five hundred at London. Answer at once, as I have only till night. "S. M. CowPLAND."

To this despatch they made the following reply: 'Cleveland, OHIO, December, 23, 1871. "S. W. Cowpland, Woodstock, Ontario: "Yes, if seed is prime, and we can hold at London until spring. "GRISWOLD & DUNHAM."

Upon the receipt of this message Cowpland purchased for the defendant 2,407 bushels of flaxseed at $1.45 per bushel, and on January 22, 1872, shipped the same to Cleveland via. Detroit. The answer of the plaintiffs in error denied the allegation of negligence charged, and set up the fact, that the despatch was sent from Woodstock under a special agreement with the Montreal Telegraph Company which was as follows:

"MONTREAL TELEGRAPH COMPANY, FORM NO. 2. “(Terms and conditions on which this and all other messages are received by this company.)

"In order to guard against, and correct as much as possible some of the errors arising from atmospheric and other causes appertaining to telegraphy, every important message should be repeated, by being sent back from the station at which the message is received to the station from which it is originally sent. Half the usual price will be charged for repeating the message, and while this company in good faith will endeavor to send messages correctly and promptly, it will not be responsible for errors or delays, in the transmission or delivery, nor the non-delivery of repeated messages beyond two hundred times the sum paid for sending the message, unless special agreement for insurance be made in writing, and the amount of risk specified on this agreement and paid at the time of sending the message, nor will the company be responsible for any error or delay in the transmission or delivery, or for the non-delivery of any unrepeated message, beyond the amount paid for sending the same, unless in like manner specially insured, and amount of risk stated therein, and paid for at the time. No liability is assumed for errors in cipher or obscure messages, nor is any liability assumed by this company for any error or neglect by any other company over whose lines this message may be sent to reach its destination, and this company is hereby made the agent of the sender of this message to for

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It appeared from an answer to an interrogatory annexed to the plaintiff's reply, made by the superintendent of the telegraph company, that he had caused inquiry and search to be made for the original message received by the company at Buffalo, and that the same could not be found.

The court, among other things, charged the jury, in substance, as follows:

That if the message delivered to the defendant below by the Montreal company, was the same as the one delivered to it at Woodstock, and the mistake occurred in transmitting the same over the line of the defendant below, from Buffalo to Cleveland, and such mistake occurred through the carelessness and negligence of the defendant, the special agreement set up in the answer did not relieve the company from liability otherwise resulting from such negligence.

The court also charged the jury, that the delivery of the message to the plaintiffs differing from that received by the company was evidence of negligence, and left it to them to determine whether such evidence was sufficient to establish the fact of negligence.

The court further charged, that while the clause in the special agreement set up the answer exonerating the company from liability "for errors in cipher or obscure messages," was valid, the message was not obscure nor in cipher, within the meaning of that stipulation.

To these several points of the charge, and for refusing to give their converse to the jury, the defendant below excepted. Verdict and judgment for the plaintiffs below for $1,290.61. On error to the district court the cause was reserved for decision by this court.

R. P Ranney, for plaintiff in error.

Prentice & Vorce, for defendant in error.

BOYNTON, C. J. As we have reached the conclusion that the court below did not err in denying the motion for a new trial founded on the alleged insufficiency of the evidence to sustain the verdict, and as a review of the evidence would serve no useful purpose, it only remains to consider whether the court erred in the instructions given to the jury. The first question arises on the exception to that portion of the charge by which the jury were told that the special agreement under which the messago was sent did not relieve the company from liability for the damages resulting from the inaccurate transmission of the message, if the mistake in error occurred through the negligence of the company or its agents. There seems to be a want of harmony in the decided cases on the point of the correctness of this instruction, and this no doubt arises, in some measure at least, from the different views taken of the nature of the employment in which telegraph companies are engaged, and to some extent from different views taken of the nature of their rights and liabilities by courts who fully agree upon the nature of such employment, but differ as to the extent of the

duties and obligations that spring therefrom. In Parks v. Alta California Tel. Co., 13 Cal. 422, the obligations of telegraph companies were held to be the same as those of common carriers, and consequently that they were, in effect, insurers of the safe transmission of a message, unless the transmission was interfered with by the act of God or the public enemies. An early case in Englaud held the same doctrine. McAndrew v. Electric Tel. Co., 33 Eng. L. & Eq. 180. But the weight of authority, both English aud American, is clearly the other way. Ellis v. American Tel. Co., 13 Allen, 226; Leonard v. New York, etc., Tel. Co., 41 N. Y. 544; Breese v. United States Tel. Co., 48 id. 132; New York, etc., Tel. Co. v. Dryburg, 35 Penn. St. 298; Bartlett v. Western Union Tel. Co., 62 Me. 209; Birney v. New York, etc., Tel. Co., 18 Md. 341; Grinnell v. Western Union Tel. Co., 113 Mass. 299.

But that telegraph companies exercise a quasi public employment with duties and obligations analogous to those of a common carrier, is a proposition clearly settled. The statute confers upon them power of eminent domain, which no one will contend could be conferred upon them, consistently with the Constitution, if they were engaged in a mere private employment or occupation by which the public interests were not affected.

They are required to receive dispatches from individuals or corporations, including other telegraph companies, and transmit and deliver the same faithfully and impartially in the order received, except in a few specified cases, where from public considerations certain preference may be made. S. & S. 455. These provisions, as well as the nature of the employment itself, are entirely inconsistent with the theory that the business of conducting a line of telegraph is a mere private employment as distinguished from one carried on for the benefit of the public at large. Granting this, it is however contended that because the company is not an insurer of the safe transmission of a message, and is authorized to make or adopt such regulations and by-laws for the management of the business as it may deem proper (1 S. & S. 298, § 46), it cannot be made liable to the plaintiff below, beyond the amount paid for sending the message, in the face of the stipulation against liability for any error in an unrepeated message, notwithstanding such error resulted from the negligence of the company's agents by whom the message was sent over its wires. To this proposition we do not agree. It has long been the settled law of this State, that a common carrier cannot, either by special agreement with, or by notice brought home to the shipper, relieve himself from liability for the consequences of his negligence. Davidson v. Graham, 2 Ohio St. 131; Railroad Co. v. Carran, 19 id. 1.

In Graham v. Davis, 4 Ohio St. 377-a case involving the liability of a common carrier who claimed exemption therefrom by reason of a special contract with the shipper-it was said that "one of the strongest motives for the faithful performance of a public duty, is found in the pecuniary responsibility which the carrier incurs for its failure. It induces him to furnish safe and suitable equipment, and to employ careful and competent agents. A contract therefore with one to relieve him from any part of this responsibility reaches beyond the person with whom he contracts, and affects all who place their persons or property in his custody. It is immoral because it diminishes the motive for the performance of a high moral duty; and it is against public policy, because it takes from the public a part of the security they would otherwise have."

These considerations there referred to common carriers-apply with equal force to those who furnish the means of telegraphic communication to the public. Their employment is not only public in its nature, but it has become a necessity alike to the social and commercial world.

Hence it is true of them as of common carriers, that any stipulation or regulation that authorizes or enables them to secure exemption from liability for negligence, in the transmission or delivery of the message, reaches far beyond the person with whom they are dealing, and for whom the immediate service is being performed, and affects the entire public. The cases which hold that a common carrier may stipulate for immunity from liability for mere negligence, all agree that they are liable for "gross negligence." But just what this term means is not easily ascertained. There is authority for holding it to be equivalent to fraud or intentional wrong. Jones on Bailm. 8-46 et seq. But a majority of the cases would seem to hold it to be a failure to exercise ordinary care. In Wilson v. Brett, 11 Mees. & W. 113, it was said by Baron Rolfe that he he could see no difference between gross negligence and negligence; that it was the same thing with a vituperative epithet." In Hinton v. Dibbin, 2 Ad. & El. (N. S.) 644, Lord Denman remarked, that "when we find gross negligence made the criterion to determine the liability of a common carrier who has given the usual notice, it might perhaps have been reasonably expected that something like a definite meaning should have been given to the expression. It is believed however that in none of the numerous cases upon this subject is any such attempt made, and it may well be doubted whether between gross negligence and negligence merely, any intelligible distinction exists." See also, Beal v. South Devon R. Co., 3 H. & C. 337; Austin v. Manchester R. Co., 11 Eng. L. & Eq. 513; and comments of Parke, B., in Wyld v. Pickford, 8 M. & W. 443. In Duff v. Budd, 3 Brod. & Bing. 177, it was held by Dallas, C. J., that ", gross negligence is where the

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defendant or his servants have not taken the same care of the property as a prudent man would take of his own. And by Best, J., in Batson v. Denovan, 3 Barn. & Ald. 21, that "they must take as much care of it as a prudent man does of his own property."

In Grill v. General Iron Screw Collier Co., L. R., 1 C. P. 600, gross negligence was held to be a relative term and meant "the absence of the care that was requisite under the circumstances." It was the absence of such care as it was the duty of the defendant to use in the circumstances of the case.

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In Beal v. South Devon R. Co., supra, it was held in the case of a carrier that " gross negligence includes the want of that reasonable care, skill and expedition which may properly be expected of him." Crompton, J., remarking that for all practical purposes, the rule may be stated to be that failure to exercise reasonable care, skill and diligence, is gross negligence." To the same effect is Briggs v. Taylor, 28 Vt. 181, and Shearm. & Redf. on Neg., § 16; all substantially agreeing with Willes, J., in Lord v. Midland R. Co., L. R., 3 C. P. 344, that "any negligence is gross in one who undertakes a duty and fails to perform it." See also, Griffith v. Zipperwick, 28 Ohio St. 388; and Pennsylvania Co. v. Miller, 35 id. 549.

These authorities show a strong tendency in the adjudications to break down the impracticable distinction between what is termed gross negligence and ordinary negligence, which some of the cases hold to exist. The rule however in this State is well settle, that one exercising a public employment is liable for failing to bring to the service he undertakes that degree of skill and care which a careful and prudent man would, under the circumstances, employ; and that any stipulation or regulation by which he undertakes to relieve himself from the duty to exercise such skill and care in the performance of the service, is contrary to public policy, and consequently illegal and void. In our opinion telegraph companies fall within the operation of this rule; and in failing to exercise such care and skill in the transmission and delivery of messages, they become liable for the resulting conse

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