the findings of the trial court to the effect that
at the time of the accident and death com-
plained of the relation of employer and em-
ployé existed between defendant and decedent;
that the cause of death was accidental and
while decedent was engaged in the course of his
employment, and was not caused by decedent's
intoxication.
2. CONSTITUTIONAL LAW (§§ 80, 301, 329*)—
MASTER AND SERVANT (§ 162, New, vol. 16
Key-No. Series) - WORKMEN'S COMPENSA-
TION ACT-DUE PROCESS-APPEAL.

section with the branch ditch. To this point | 8202-8230]) it is held that the evidence supports of intersection the plaintiff was to extend a tile drain which was upon his quarter. The tile drain was not constructed by the defendant as agreed. The main drain did not reach the quarter line by some 18 or 20 feet. The branch drain did not reach the quarter line by some 6 or 8 rods. The plaintiff claims that the defendant filled in and obstructed the old ditch at the 18 or 20 foot space mentioned. The court found that he did not. Upon a careful review of the evidence we think that it must be held that he did. There was throughout an unconcealed purpose on the part of the defendant to prevent the plaintiff making beneficial use of the tile drainage. Although the court found to the contrary, and while not particularly important here, the evidence is quite cogent that the defendant ploughed his land to the east along the quarter line to prevent the surface waters coming from the plaintiff's land.

[2] 2. If the defendant failed to construct the substituted tile drainage the plaintiff was entitled to the use of the old ditch; and if the defendant filled in the southerly 18 or 20 feet of it, or otherwise obstructed the plaintiff's right to the flow of water through it, the plaintiff was entitled to injunctive relief. Baldwin v. Fisher, supra; Munsch v. Stelter, supra; Mueller v. Fruen, 36 Minn. 273, 30 N. W. 886.

Held, further, following Matheson v. Railway, 126 Minn. 286, 148 N. W. 71, that the statute is not obnoxious to the various constitutional provisions invoked by defendant.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 140, 143-147, 848-850, 857, 963; Dec. Dig. 88 80, 301, 329.*] 3. CONSTITUTIONAL LAW (§ 146*) - MASTER AND SERVANT (§ 872, New, vol. 16 Key-No. Series)-IMPAIRMENT OF CONTRACTS-WORKMEN'S COMPENSATION ACT.

The statute applies to the relation of employer and employé existing at the time of and which continued after its passage; and does not impair the obligations of the contract by

which the relation came into existence.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 456, 457, 495; Dec. Dig. § 146.*]

Certiorari from District Court, Meeker County; G. E. Qvale, Judge.

Certiorari by the State, on the relation of the Nelson-Spelliscy Company, against the District Court of Meeker County and others, to review proceedings brought against the relator for compensation under the Workmen's Compensation Act, wherein judgment was rendered for plaintiff. Judgment

affirmed.

Alva R. Hunt and L. K. Sexton, both of Litchfield, for appellant. Edward P. Peterson and Albert F. Foster, both of Litchfield, for respondents.

[3] 3. The court found that the plaintiff was entitled to have the main ditch and the branch ditch extended to the agreed points. We are not able to see that specific performance could be enforced of this parol agreement to construct a tile drainage system to take the place of the open drainage. Robinson v. Luther, 134 Iowa, 463, 109 N. W. 775. The case was not an action for specific performance, nor was it tried as such, nor was relief by way of specific performance given. If it were an action for specific performance, BROWN, C. J. Plaintiff's intestate, her the plaintiff was the prevailing party, and husband, was on October 27, 1913, accidentalwas entitled to disbursements, and the judg-ly killed by the overturning of an automobile ment was wrong in giving them to the defendant; and the defendant was not entitled to judgment against the plaintiff for his agreed portion of the cost of construction of the drain so long as it remained uncompleted. Judgment reversed.

which he was driving, and on the claim that he was an employé of the Nelson-Spelliscy Implement Company, a corporation, and that the accident and his death arose out of and in the course of his employment, she brought proceedings for the compensation provided for by part 2 of chapter 467, G. Laws 1913, (Gen. St. 1913, §§ 8202-8230) known as the "Workmen's Compensation Act." The mat

STATE ex rel. NELSON-SPELLISCY CO. v. ter duly came on for hearing in the district
DISTRICT COURT OF MEEKER
COUNTY et al. (No. 19127 [299].)
(Supreme Court of Minnesota. Jan. 15, 1915.)

(Syllabus by the Court.)

court, where findings of fact were made and judgment ordered for plaintiff in harmony with the provisions of that statute. Thereafter defendant brought the proceeding to this court for review by certiorari.

1. MASTER AND SERVANT (§ 250, New, vol. 16 Key-No. Series) - DEATH OF SERVANT [1] The principal issues of fact on the PROCEEDINGS UNDER WORKMEN'S COMPEN- trial below were: (1) Whether decedent was SATION ACT-SUFFICIENCY OF EVIDENCE. an employé of the company at the time of In proceedings for compensation under part 2 of the Workmen's Compensation Act the accident: and (2) whether the accident (chapter 467, G. Laws 1913 [Gen. St. 1913, §§ was caused by his voluntary intoxication.

which would extend his employment beyond the date of the accident. The trial was by the court, and though the evidence was perhaps incompetent, because a self-serving declaration, the admission thereof was clearly not prejudicial. Defendant further contends that because decedent proceeded to the point of destination over a route which took him beyond that generally traveled between the two points, he exceeded and went beyond and outside the scope of his employment, and assumed all risks encountered while so engaged. There can be no controversy about the general rule invoked, but it has no application to the facts here presented. At the time of the accident decedent was on the return trip to Litchfield, in the usually trav eled way, and was then within the scope of his employment. If he had been injured while driving the car beyond the point of destination a different situation would be presented. But his death did not occur at that time.

It appears from the record that defendant until the week following the conversation, is a corporation organized under the laws of this state, with its principal place of business at Litchfield, and at the time in question was engaged in buying and selling farm implements, wagons, carriages, and automobiles, repairing automobiles, and carrying passengers by automobiles for hire. Decedent entered the employ of defendant in July, 1912, and continued therein, according to plaintiff's contention, until the day of his death, which occurred on October 27, 1913. The duties of his employment consisted, among other things, in setting up and repairing automobiles and farm machinery, and operating and driving automobiles in defendant's auto livery business. Defendant contended on the trial that decedent was not in its employ on the day of the accident, and that his term of employment, though previously existing, ended and terminated by decedent's resignation the day preceding his death, and that he was not acting for defendant on the day in question. Also that the accident was caused by the intoxicated condition of decedent. The court found the facts in plaintiff's favor, and to the effect that decedent was, at the time of his death, in the employ of defendant, acting in the course of his employment, and that the automobile which he was driving was accidentally overturned, and that decedent was not intoxicated.

The assignments of error challenge the findings of the court, its refusal to amend and modify the same, the constitutionality of the statute upon which the proceedings and judgment are founded, and one ruling admitting certain evidence over defendant's objection.

None of the assignments require extended discussion. We find from a reading of the record evidence tending to support the claim of plaintiff to the effect that decedent continued in defendant's employ up to and including the day of the accident, as well as evidence tending to show that his relations with defendant ceased and were terminated prior thereto; we also find evidence tending to show that decedent was, at times, addicted to the excessive use of intoxicating liquors, that he drank of such liquors on the day in question prior to starting on the particular trip with the automobile, and also during the time thereof, and also evidence that he was not an habitual drinker, and was not intoxicated on this occasion. In this state of the record we are limited in our inquiry to the question whether the evidence, if satisfactory to the trial court, reasonably tends to support the plaintiff's contentions. We hold that it does. The evidence objected to and now complained of disclosed a conversation between decedent and the witness, a person not interested in the action, in which decedent stated that he was to remain in the employ of defendant

[2, 3] 2. The validity of the statute is challenged on various constitutional grounds, namely, that it deprives the parties of the right to a jury trial; that it deprives the employer of his property without due process of law; that it unlawfully encroaches upon the judiciary, depriving the parties of their right of appeal; and, if construed to apply to contract relations existing prior to its passage, that it impairs the obligations of such contracts in violation of both the state and federal Constitutions.

These questions do not require discussion. They were all presented in the case of Matheson v. Ry. Co., 126 Minn. 286, 148 N. W. 71, and were disposed of adversely to the present contentions. The reasons for our conclusions are clearly and fully stated in that opinion, and need not here be repeated. We are clear that the statute was intended to apply to relations of employer and employé existing at the time of its passage and continuing thereafter, and we so hold. But this does not render it obnoxious to the Constitution, as impairing the obligations of the contract, arising from such relation. As remarked in the Matheson Case, and held by the courts generally, no person has any vested right to a rule of law or form of procedure, except perhaps when some form of redress permitted by existing law is expressly stipulated for in the contract. Nor does the fact that the statute does not grant the right of appeal affect its constitutionality. McMillan v. State Board, 110 Minn. 145, 124 N. W. 828. The right of review by certiorari is open to both parties, by which all rights may be fully protected. In fact this method of reviewing is expressly given by the statute. Section 30.

This covers all questions requiring special mention and results in an affirmance. Judgment affirmed.

SEDGWICK, J. On the 7th day of April, 1914, at an election held for that purpose An ordinance, purporting to authorize the under the initiative and referendum statute, sale of intoxicating liquors, which contains no regulation as to "what officer or officers shall the voters of the city of Superior, in Nuckreceive, file, and give notice of the application" olls county, a city of the second class having

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

tion can be made and no other step taken." This ordinance does not appear to contain those things which are said, in the opinion referred to, to be absolutely necessary to the validity of the ordinance.

[3-5] It appears that the city council was in session within the 30 days after the filing of the petition for the election at which the second ordinance was adopted. The statute provides:

more than 1,000 and less than 5,000 inhabit- | due form, "and until so regulated no applicaants adopted an ordinance forbidding the licensing of saloons. Afterwards on the 22d day of May, 1914, at a special election held for that purpose, an ordinance was adopted relating to and regulating the sale of malt, spirituous, and vinous liquors in the city of Superior. Under this last ordinance, John A. Doerr applied for a license and filed with the clerk of the city his petition signed by more than 30 of the freeholders of the city. A remonstrance was filed, and upon the hearing the city council granted the license. The remonstrants appealed to the district court for that county, and by the judgment of the, court the action of the city council was affirmed. Remonstrants have appealed to this

court.

"If the mayor and city council be convened before such proposed ordinance can be legally submitted to a direct vote of the voters, the clerk aforesaid shall forthwith present to such body a certified copy of the proposed ordinance and the demand for the submission of the same on file in his office.”

It also provides that, if the proposed ordinance is not made a law by the mayor and council “within 30 days from the filing of the submit the same to the voters according to same with such clerk, the said clerk shall the provisions of this article." Rev. St. 1913, § 5232. If the section of the statute is complied with and the city council enacts the ordinance as proposed, the expense and deIt is a serilay of the election is avoided. ous question whether the clerk can disregard

this provision of the law and proceed with the election without submitting the ordinance to the mayor and council.

Section 5237, Rev. St. 1913, provides: "No ordinance for the government of any city aforesaid in this state, except as hereinafter provided, shall go into effect until 30 days after the passage of the same."

[1, 2] A number of curious, and some of them technical, questions are presented and discussed in the briefs. We find it necessary to notice only a portion of them. The first ordinance of April 7th orders that no saloon license shall be granted and that "no person, firm or corporation shall be licensed to sell malt, spirituous or vinous or intoxicating liquors within the corporate limits of the city of Superior." It makes an exception in the case of sales for "medical, mechanical or sacramental purposes." This ordinance accomplishes nothing that was not already the law of this state. No license for the sale of intoxicating liquors could be issued by the authorities of the city without first adopting an ordinance providing therefor and regulating the manner of issuing the license. This first ordinance is treated in the briefs as having some force or effect, and it does not appear to be necessary to determine that question. It is also a serious question whether the second ordinance of May 22d is valid. No license can be granted unless there is first an ordinance providing therefor, and until such ordinance is enacted no application for license can be made and no other step taken towards procuring such license. This was first decided in State v. Andrews, 11 Neb. 523, 10 N. W. 410, and was afterwards approved and affirmed in Hornberger v. State, 47 Neb. 40, 66 N. W. 23. From the Andrews Case it appears that the statute requires the ordinance for the purpose of determining the policy of the village as to whether it will, or will not, license saloons, and also for the purpose of regulating the issuance of the licenses. Unless the ordinance supplies those regulations which are not supplied in the stat- [6] The petition for the license did not ute no license can be issued. The opinion re- contain the allegation that the applicant is cites some of the regulations that the ordi- a man of respectable character and standing nance must contain. It must provide that a and a resident of this state. The statute exlicense can be granted, "what officer or offi- pressly requires this allegation in the peticers shall receive, file, and give notice of the tion. Rev. St. 1913, § 3844. It has been many application, * who shall take and times held by this court that the petition is approve the bond of the applicant, and sign | jurisdictional and that it must contain all and issue the license." And the opinion says of the allegations provided by the statute. that there are other important matters that State v. County Commissioners, 12 Neb. 54, can be regulated only by ordinance passed in 10 N. W. 571; Steinkraus v. Hurlbert, 20 Neb.

It is contended by counsel for the applicant that this section applies only to the passage of an ordinance by the mayor and council. But this section was a part of the original act providing for the initiative and referendum. Laws 1897, c. 32, § 12. Prior to that act there was no such provision in regard to ordinances enacted by the mayor and council, and in the act of 1897 there is no other provision than this in regard to the time when the ordinance adopted by the people shall take effect. If this ordinance did not take effect until 30 days after its adoption by the voters, it was not in force when the application and petition for the license were filed, nor was it in force ten days before the last publication of the published notice. And it would follow that for this reason the board was without jurisdiction to act upon the petition, even if we should consider that the ordinance in question is valid.

519, 30 N. W. 940; Maxwell v. Reisdorf, 90 Neb. 374, 133 N. W. 419. See, also, 23 Cyc. 125. The rule is perhaps technical, but it has been so long recognized as the rule in this state that to depart from it now would be legislation.

For these reasons, the judgment of the district court is reversed, and the cause remanded, with directions to cause the license to be canceled. Reversed.

EISENTRAUT v. MADDEN. (No. 17738.) (Supreme Court of Nebraska. Jan. 2, 1915.)

(Syllabus by the Court.)

1. TRIAL (§ 252*)-INSTRUCTIONS-EVIDENCE. Instructions to a jury in a lawsuit should be confined to and be in accord with the evidence submitted upon the trial.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 505, 596-612; Dec. Dig. § 252.*] 2. ASSAULT AND BATTERY (§ 11*)-CIVIL ACTION-DEFENSE.

The rule that when parties enter into a mu

LETTON, ROSE, and FAWCETT, JJ., did tual combat, and the victim in good faith with

not sit.

In re FREY.

EYRE et al. v. FREY et al.

(No. 18700.)

draws therefrom and is afterwards assaulted, he may recover damages for such assault, does not apply when one who is assaulted and severely beaten strikes his assailant immediately, in the heat of passion, upon escaping from his attack. [Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. §§ 23-25; Dec. Dig. § 11.*]

Appeal from District Court, Johnson Coun

(Supreme Court of Nebraska. Jan. 2, 1915.)
Appeal from District Court, Nuckolls County; Raper, Judge.
ty; Hurd, Judge.

Application of Andrew Frey for liquor license, to which John Eyre and others filed a remonstrance. From a judgment for applicant, remonstrators appeal. Reversed.

A. G. Wolfenbarger, of Lincoln, R. M. Proudfit, of Friend, J. H. Agee and S. R. Buck, both of Superior, and H. S. Lower, of Lincoln, for appellants. Bernard McNeny, of Red Cloud,

for appellee.

SEDGWICK, J. The proceedings in this case involve the same ordinances considered in Eyre v. Doerr, 150 N. W. 625. There is the same objection to the published notice, and other similar questions raised. For the reasons stated in that case, the judgment of the district court is reversed, and the cause remanded, with directions to cause the license to be canceled.

Reversed.

Action by Oscar Eisentraut against Charles Madden. From judgment for plaintiff, defendant appeals. Reversed and remanded.

E. B. Quackenbush, of Spokane, Wash., Frank L. Dinsmore, of Tecumseh, E. F. Warren, of Nebraska City, and Neal & Armstrong, of Auburn, for appellant. S. P. Davidson and Hugh La Master, both of Tecumseh, for appellee.

REESE, C. J. This is an appeal from a judgment of the district court for Johnson county, wherein plaintiff, Eisentraut, recovered a judgment against defendant, Madden, for the sum of $1,500 on account of personal injuries alleged to have been inflicted upon

LETTON, ROSE, and FAWCETT, JJ., did plaintiff by defendant by unlawfully, and

not sit.

In re ABBOTT.

EYRE et al. v. ABBOTT et al.

(No. 18702.)

(Supreme Court of Nebraska. Jan. 2, 1915.) Appeal from District Court, Nuckolls County; Hurd, Judge.

Application of Charles F. Abbott for liquor license, to which John Eyre and others filed remonstrance. From judgment for the applicant, remonstrators appeal. Reversed.

A. G. Wolfenbarger, of Lincoln, R. M. Proudfit, of Friend, J. H. Agee and Samuel R. Buck, both of Superior, and H. S. Lower, of Lincoln, for appellants. Bernard McNeny, of Red Cloud, for appellee.

SEDGWICK, J. The proceedings in this case involve the same ordinances considered in Eyre v. Doerr, 150 N. W. 625. There is the same objection to the published notice, and other similar questions raised. For the reasons stated in that case, the judgment of the district court is reversed, and the cause remanded, with directions to cause the license to be canceled.

Reversed.

without cause, striking plaintiff upon the back part of the head with a large, heavy, metal scoop shovel, whereby a lasting and permanent injury was suffered by plaintiff, the character and extent of the alleged injuries being fully set out in the petition, together with plaintiff's pain and suffering, physically and mentally. The amount sued for was $10,000. The petition also contains a second cause of action, by which the expenses of the sickness and ailments, consisting of physicians' treatment and medicine, are alleged to the amount of $300, making a total of $10,300 damages alleged to have been suffered. Defendant answered: (1) By a general denial; (2) alleging that plaintiff first made an unlawful assault upon him, that he resisted the same only in self-defense, and that he used only such necessary force as was required from the assault and beatings inflicted upon him by plaintiff; (3) that at the time mentioned in the petition plaintiff, without lawful excuse or provocation, assaulted defendant, striking him, knocking him down, beating him when down, and inflicting

LETTON, ROSE, and FAWCETT, JJ., did a permanent injury to his right eye, by which not sit.

the sight of his said eye was greatly and