IN RE SUPERVISORS OF REGISTRATION.
227
and were by,th:everdictde.cidOO .the defendant. Upon 31'eview i dp the verdict to ,unsupported by sufficiE:mt legaleVldence, or contl1aI:Y t.Qthe instructions given. by the court. In the argument upon this motion the main reliance of the defend· ant seems to be upon the propoJ!lition that the failure of the de· ceased to promptly notify the conductor of the discomfort which "he liIuffered was D,flgligence on her PW,csufficient in law 'to preclude her from recovering damageE'l for any injury resulting from such discomfort. It is my opiniQu, however, that, in view of the circlUn· stances which the evidence tended to prove, it WM for the jUry ,to decide whether the failure of the deceased to complain was or was not negligence on her part. The question was suhmitted to the jury in the .chargegiven, and afterwards more speei.llcall;f in respouse to thll following inquiry made by the jur.v; "Are we, the jury. to understand by the instructions of the court that the fail· ure of the t>laintiff to call tbe attention of the railroad employes to the cold condition of the car before taking sick as being contributory negligence to the extent of precluding her from recovering damages in this case?"
The response expresses the opinion which I now entertain, and was in words aafollows: "I mean to tell you this, ,gentlemen: that if in any instance it was negligence for the plaintiff to keep still, and make no complaint, when she had an opportunity to make complaint, her failure to complain, if sbe did bave an opportunity to do so, would be contributory negligence, wllich would preclude her from recovering dam· Now it is for you to say, under all the circumstances of the case, whether, sItuated as she was, with the opportunities which she had, if any, to give informa· tion, if she kept still, and failed to make complaint when she could have made complaint, or ought to have made complaint, taking into account all the circumstances of the case, it was neglig-ence or not: because there may be circumstances under which a passenger would be guilty of no negligence whatever in not com· plaining to the conductor or tbe employes of the road, and. under other circumstances, a failure to complain would be negligence; for instance, if tbe officers or agents of the road were there and did not need to be informed, if they knew, with· out being told, that they were neglecting the car, and showed Ii disposition to disregard the comfort of the passengers. so that a passenger would deem it unnecessary to give the information, for tbe mere purpose of giving- information. it would not be regarded, under those circumstances, as being ntlgligence not to complain. If the car was left in charge of the brakeman. who was not attending to his duty, and the conductor was ignorant of that fact, and the passengers had an opportunity to tell this conductor, and call his attention to it, and ask for relief, but suffered him to remain in ignorance, and made DO complaint, then it would be such negligence as would preclude the passeng-er from any right to COmplain. Now I think you will understand that I am leaving the matter in your hauds, to decide on the evidence what the facts are, and whether. under these conditions. it was or was not negligence on the part of the plaintiff to not make complaint."
Motion denied. In re SUPEHVISORS OI!' (Circuit Court, D. New Hampshire. November 6, 1892.) ELEc'1'IONs-ApPOINTME:'\'1' OF' SUPERVISORS-JURIsDICTION-PETI'l'ION.
It is doubtful whether a federal circuit court has jurisdiction to appoint supervisors of rE'gistration for a city of less thau 20,000 inhabitants, constituting only part of a county, or to make such appointments in any case unless the petition is filed at least 10 days before the commencement of registration; and Where, on such a petition; the appointment wonld result
228
FEDERAL REPORTER,
vol. 53.
inlnterposlIlg1cderal j\lrlsdlcti0ll After the Clases,l).ad been partially heard bef9re theprop'er sta,teboarcls. fi!.e Co\u't will follow the general rule that, where' jttr1sdictlon is' doubtful, it shoUld not interfere with the ofticial duties of other properly constituted bodies. i
Petition ,for the Appointment :of Supervisors of Registration in City of Portsmouth, N. H. Denied.
ALDRICH, District JUdge. Under section 2011 of the Revised statutes· of the United States more 'than 10 citizens of Rockingham county'petition for the appointment offedel'al supervisors in the city of I PortBmouth. The petitioners do not ask to have the court opened for Rockingham. county, but for the city of Portsmouth only; nor do they ask to have the election to take place November 8th scrutinized and guarded, but the registration to take place November 2d and 4th only. The petition was first presented to Judge Putnam, ,one· 'of the circuit judges for the first, circuit, October 25th, by his certificate The statute in question has reterenM'to elections' at which reprfilsentatives in congress are to be chosen, and provides for the appointment of two citizens of each election: district or voting precinct, who shall be of different political parties, and whose duties, in short, are to witness the proceedings, of seeing the manner in which the registration is con· whether the vote and, count are fair. At an ,election whflre"federal officers are to be selected it would seem just and reaS(JD· federal ll,uthority mightin.terpose to this end. Ex parte U.,S. Id. 399; U. S.v. Gale, 109 U. Sup. Qt. Rep. 1., :aut thejucisdiction and authority of federal OO1ll'ts to interpose, rests upon the' petition. ,If the petition is in acc6rdan(le with the, provisions' .'the statum, relief follows, it would .seem, a matter.. of course, the court having very little, if any,discretion, except as to the selection of the supervisors; bu.t if tMpetition,intbne and substance, .doe'!! not conform. to the requiI'eIn.ellts of the statute, the.cou.rt is totally without authority, and powel'less to render the relief sought, however just and proper it may seem: creating the remedy by petition., provides that the petitIoners'.nay make their desire known in writing to the circuit judge, who,· within not less than 10 days prior to the registration, shall open the c4'l;l1l,itcourt, etc. Xt is a serious question whether this does nOl; mean 10 days prior. to the commencement of registration. The session of the city ward supervisors, under the laws of the state, must begin as early as November 2d, the Tuesday preceding the election, (pub. St. N. H. c. 46, § 2; Id. c. 32, § 6,) and, by special act relating to the city of. :Portsmouth, (Lawe 1876, p. 662, § 13,) may begin at any time within 14 days before election; and, as a matter of fact, according to the statement of the petitioners, who appeared before me, .the sessioI;lS, pursuant to duly-posted notice, did begin on the 28th day of October, in one view 7, and in the other 3, days only subsequent to the presentation of the petition to Judge Putnam, the purpose being, as stated, to bring in the federal supervisors at an seS,Sion. The statutory notice of civil process has
UNITED STATES V. MELLEN.
229
uniformly been held to have reference to the commencement of a term of court, and, if the same principles apply here, it results that a petition of this character should be presented at least 10 days before the commencement of the Sffision appointed for the purpose of hearing cases of applicants for registration. It might be fairly urged that the object of congress in placing the 10-days limit upon the petitioners was to have all parties seasonably notified, to the end that th selection of the supervisors and the scrutiny should be \ in all respects fair. Under the statutes of New Hampshire and of the other states, the hearings before the state boards are to be adjourned from day to day until all claims are heard and decided, and it would seem that a construction of the 10·days limit in the federal statute which would interpose federal supervision at a stage of the proceedings when cases had been partially heard would not be reasonable. Interposition at such a time would cause confusion and delay, and would not be effective in the direction of accomplishing the free and fair results intended by congress. Again, the petition for a part of Rockingham county only, and is for opening the for. the appointment of supervisors in the wards of Portsmouth, a city of less than 20,000 inhabitants, and in no other part of the county; and for this reason, if I were to follow the doctrine of the circuit court in the East St. Louis Case, 28 Fed. Rep. 840, it would result that the petitioners are not within the statute in this respect. These questions are both jurisdictional. They go to the power of the court to act. I do not undertake to decide. either of them, but merely to say that, under the petition, in my opiJ:!ion, jurisdiction is at least doubtful, and I must be governed by the general rule that, where jurisdiction is doubtful, the court should not interfere witb. the official duties. of other lawfully constitute(!. and constitutional bodies, and upon this ground only I am constrained to deny· the request, and to dismiss the petition; and it is so ordered. UNITED STATES v. MELLEN et a1. (District Court, D, Kansas. November 28, 1892.) No. 3.092.
1.
CARRIERS-INTERSTATE COMMERCE ACT-SHORT HAUL CLAUSE-JOINT AND LOCAL RATES.
Tile long and short haul clause of the interstate commerce act (scction 4) does not apply to a case where the short haul rate is the combined local rates of two connecting lines, and the lower long haul rate is a joint rate made bv the two lines acting together; and an indictment alleging such rates is bad. Railway Co. v. Osborne, 52 Fed. Rep. 912, followed. An indictment alleging that tbe sbare of a joint rate takcn by one company Is less than its local rate for a shorter haul, etc.· is ball. Railway Co. v. Osborne, 52 Fed. Rep. 912, followed. A count of the indictment wherein Kansas City is named as the point for the joint rate, by a typographical error, instead of Topeka, is bad.
2. SAME.
8. SAME.
.... SAME-COLLECTING. AGENT NOT INDICTABLE.
An agent of a railroad, who merely collects freights, and has nothing to do with fixing them. is not indictable. under the interstate commerce act, for collecting a greater rate for a shorter than for a longer banI, etc.
