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HENDERSON v. TRACTION Co.
what is a legitimate use of the streets by the railroad company. It was a command to those operating trains within the city limits, which it was their duty to obey, and a disobedience, either wilfully or negligently, is some evidence to be considered in determining the defendant's liability." The editor in his notes says that the weight of authority is to this effect.
This brings us to the question whether the failure to have a fender was a violation of the statute. Section 2, Chapter 743, Acts of 1901, provides "That all city and street passenger railway companies be and are hereby required to use practical fenders in front of all passenger cars run, manipulated or transported by them, and any company refusing or failing to comply with said requirement shall be subject to a fine of not less than $10 nor more than $100 for each day. The North Carolina Corporation Commission is hereby authorized to make exemptions from the provisions of this section in such cases as in their judgment the enforcement of this section is unnecessary." In the view which we take of the case, it does not become necessary to pass upon the constitutionality of that portion of the Act which confers upon the Corporation Commission the power to make exemptions from its provisions. The question was not presented or referred to in the argument. The right of the Legislature to confer upon any other governmental agency the power to exempt any persons or corporations from the operation of a statute, the violation of which is made a misdemeanor, is, to say the least, exceedingly doubtful. There is a marked difference between the power to make statutes of local application dependent upon a vote of the people and the power sought to be given the Corporation Commission in this instance. The statute here is complete, the duty is imposed, and the penalty for its violation fixed. A strict observance of the division of powers between the three co
HENDERSON v. TRACTION Co.
ordinate departments of the government is absolutely essential to the preservation and the harmonious working of our system of government. The Constitution confers upon the Legislature alone all legislative authority, and declares that the power of suspending the laws without the consent of the people ought not to be exercised. An interesting discussion of this question may be found in State v. Fields, 17 Mo., 529; 59 Am. Dec., 275, and Slinger v. Henneman, 38 Wis., 505. The extent of the power which may be conferred upon the Corporation Commission is set forth and discussed by Shepherd, C. J., in Express Co. v. Railroad Co., 111 N. C., 463; 18 L. R. A., 393; 32 Am. St. Rep., 805.
Conceding for the purpose of this opinion only that the portion of the Act in question is constitutional, we think by a proper construction of it the extent of the power conferred upon the Commission is one of exemption and not of suspension. The order made by the Commission exempts all street railway companies from the provisions of the Act, as to the fenders, until otherwise ordered by the Commission, thus applying to all street railways in the State, and of course operating, if within the power of the Corporation Commission to suspend the statute. This, we think, exceeds the power conferred by the statute and is therefore invalid, thus leaving the Act in force and the duty of the street railway companies to provide fenders as prescribed by the Act. The failure to do so was evidence proper to be submitted to the jury upon the question of negligence and as to the proximate cause of the injury. If the jury should find as a fact that the failure to have the fender was the proximate cause of the injury, that is to say, that the plaintiff would not have been injured if the defendant had provided its cars with fenders, and that the plaintiff was not guilty of contributory negligence, or, if guilty, that the defendant had the last clear chance to prevent the injury, the plaintiff would be entitled
RITCHIE v. FOWLER.
The question presented by the testimony in regard to the relative rights and duties of street railway companies and travellers passing along and across the streets, is discussed in Moore v. Street Railway Co., 128 N. C., 455. We simply decide, in this case, that the case should have been submitted to the jury under proper instructions. It is but just to the learned judge who tried the case to say that the question upon which this decision is based was not presented or argued before him or in this court. We have neither discussed nor passed upon the testimony bearing upon the second issue. His Honor having practically instructed the jury to find for the defendant upon the first issue, we confine our decision to his ruling in that respect. We must not be understood as expressing any opinion in regard to the other phases of the case. There must be a
RITCHIE v, FOWLER.
(Filed June 6, 1903.)
1. GRANTS Trusts-Cherokee Lands-Case on Appeal-The Code, Vol. 2, Ch. 11.
In an action to have a senior grantee declared a trustee for a junior grantee of public land, a bare statement in the case on appeal that the defendant claimed under the senior grantee does not authorize a decree that the defendants be declared trustees for the benefit of the plaintiffs.
2. LIMITATIONS OF ACTIONS-Grants-Trusts-The Code, Sec. 158. The registration of a grant is constructive notice to a junior grantee that a senior grantee claims the land included in the grant and an action to declare the senior grantee a trustee for the benefit of the junior grantee must be brought within ten years of said registration.
DOUGLAS, J., dissenting.
RITCHIE V. FOWLER.
ACTION by W. R. L. Ritchie against Frederick Fowler and others, heard by Judge M. H. Justice and a jury, at November Term, 1902, of the Superior Court of MACON County. From a judgment for the plaintiff, the defendants appealed.
S. L. Kelly, for the plaintiff.
Kope Elias and Shepherd & Shepherd, for the defendants.
CLARK, C. J. One Howard entered, under the law as to Cherokee lands (The Code, Vol. 2, Ch. 11), three tracts of land for 700 acres in June, 1855, and two other tracts for three hundred acres in June, 1853. The purchase money was thereafter duly paid. Subsequently (when, is not stated) these entries were duly surveyed, located and bounded. In February, 1870, grants for the above five tracts were issued to the assignees of Howard and registered in Macon County November, 1885, and said grantees conveyed to the plaintiff by deed duly registered.
In April, 1867, the same lands (as is admitted) were entered by one Herrin, who took out grants for the same in May, 1869, which were registered in Macon County in October, 1872. It is stated in the case on appeal that the defendants claim under Herrin, but it nowhere appears affirmatively that they have acquired Herrin's title. This is an action to have the defendants declared trustees for the plaintiff and to require them to convey to him such title and interest as they may claim. The defendants denied each allegation of the complaint and pleaded the ten years' statute of limitations and, further, that the entries under which the plaintiff claimed were lapsed and abandoned, and besides, that said entries were too vague and uncertain to give notice to a subsequent enterer or grantee. There was no possession shown by either party.
The only issue submitted was, "Is the plaintiff the equita
RITCHIE v. FOWLER.
ble owner of the lands described in the complaint?" defendants demurred to the evidence. The court instructed the jury, if they believed the above evidence, to answer the issue "Yes." Verdict and judgment accordingly, and appeal.
The exception is not very clearly stated to have been to the overruling of the demurrer to the evidence and to the instruction to the jury, but we so understand it, and it was so treated on the argument.
It was error to sustain the demurrer, or to so instruct the jury, for it nowhere appears that Herrin's title had passed to the defendants. The bare statement that they "claimed under Herrin" did not authorize the decree that the defendants "are declared trustees for the benefit of the plaintiff” of all said lands and directing a conveyance by them to him.
The registration of the Herrin grants in 1872 was constructive notice to the plaintiff and those under whom he claims, and in the absence of evidence showing that the statute did not run, by reason of coverture, infancy, etc., the plaintiff is barred by failure to take this action within ten years from October, 1872. The Code, Sec. 158.
Neither the entries of Howard or of Herrin are set out in the proof, nor admitted. They are set out in the complaint, and if in the form there stated, the entries of both parties are void for vagueness and uncertainty; but the answer specifically denies every allegation in the complaint. Kimsey v. Munday, 112 N. C., 816, and Gilchrist v. Middleton, 108 N. C., 705, relied on by the plaintiff, only bear upon the question of abandonment, as between the State and the enterer, and not upon the Statute of Limitations, between the junior grantee, who is seeking to convert the senior grantee into a trustee for his benefit, and compel a conveyance. New Trial.
DOUGLAS, J., dissents.