the question propounded after he had testified that he was a graduate of a medical school and a licensed physician. thus showing a prima facie qualification."

Other errors are assigned, but not argued, nor do they appear material. The record disclosing no material error, the judgment of the court below should be affirmed.

(50 Or. 169)

FARRELL v. PORT OF COLUMBIA et al. (Supreme Court of Oregon. Sept. 3. 1907.) 1. STATUTES-GENERAL AND SPECIAL LAWSMUNICIPAL CORPORATIONS-CREATION.

plead and be impleaded in all suits or proceedings brought by or against it. The declared object of the corporation so formed is to promote the maritime shipping and conmercial interest of the Port of Columbia. For that purpose, it is given power and made its duty to own, operate, and maintain a towage service from the sea, at the entrance of the Columbia river, to all points upon the river extending as far inland as Tongue Point, near Astoria; to purchase, own, lease, control and operate tugs and pilot boats; to appoint and license pilots; to fix and collect charge for pilotage; to acquire, own, and dispose of real and personal property: to make any contracts the making of which is not in this act expressly prohibited; and to do all other acts and things which may be

act.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44. Statutes. § 89.]

2. SAME.

Laws 1907, p. 182. incorporating the Port of Columbia as a municipal corporation, is a public law. but not a general one; it being applicable only to a particular locality.

3. SAME PUBLIC LAWS-DEFINITION.

A public law is one not designated by the statute itself as private as provided by Const. art. 4, § 27, and of which court will take judicial notice.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes, § 79.]

4. SAME SPECIAL LAWS-MUNICIPAL CORPORATIONS.

Laws 1907, p. 182, incorporating the Port of Columbia as a municipal corporation, was in violation of Const. art. 11, § 2. as amended June, 1906, prohibiting the formation of corporations by special laws, and prohibiting the Legislature from enacting, amending, or repealing any charter or act of incorporation for a municipality, city, or town.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes. § 89.]

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Suit by Sylvester Farrell against the Port of Columbia and others. From a judgment in favor of defendants, plaintiff appeals. Reversed. Judgment for plaintiff.

J. M. Gearin, for appellant. Warren E. Thomas and S. B. Linthicum, for respondents. G. C. Fulton and F. J. Taylor, for Clatsop county.

BEAN, C. J. This suit involves the constitutionality of an act of the legislative assembly of 1907 to establish and incorporate the Port of Columbia. Laws 1907, p. 182. By this act the counties of Multnomah, Clatsop and Columbia are created a separate district, and the inhabitants thereof are constituted and declared to be a corporation by the name and style of the "Port of Colum bia." and as such to have perpetual succession; to hold, receive, and dispose of real and personal property; to sue and be sued.

ing out the powers conferred. For the purpose of acquiring tug and pilot boats, and providing the same with necessary appliances, the corporation is given power to issue, sell, and dispose of bonds not exceeding the aggregate sum of $400,000, and power and authority to assess, levy, and collect each year a tax upon all property real or personal, within its boundaries, which is by law taxable for state and county purposes, not to exceed a rate therein specified, to retire such bonds at maturity and the payment of interest thereon. The power and authority given to the corporation is to be exercised by a board of commissioners, and their successors in office to be appointed as in this act provided.

This law was evidently modeled after that creating the Port of Portland (Sess. Laws 1891, p. 791), and, if the Constitution had not been amended since the enactment of the latter statute, it could possibly be sustained. if otherwise valid, on the ground that it is a corporation created for municipal purposes. At the time of the passage of the Port of Portland act, the Constitution (article 11, § 2) provided that corporations may be formed under general laws, but shall not be created by special laws, except for municipal purposes, and it was held that the Port of Portland was a corporation formed for municipal purposes within the meaning of this provision. Cook v. Port of Portland, 20 Or. 580, 27 Pac. 263, 13 L. R. A. 533. In June, 1906, the section referred to was amended to read: "Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the state of Oregon." By this amendment the power to create corporations for municipal purposes by special act was not only eliminated, but the creation of a corporation by such an act is expressly prohibited, and it is no longer in the power of the

Statutes are often classified as public or general and private or special, a public statute being one of which the courts will take judicial notice, while a private statute must be pleaded. 1 Kent, *460; 1 Blackstone, *85. That this is a public law must be conceded, not only because it is one of which the courts will take judicial notice, but because the Constitution provided that every statute shall be a public law unless otherwise declared by the statute itself. Article 4, § 27. It does not follow, however, that because it is a public law it is a general one. "Public" and "general" as applied to statutes are sometimes synonymous, depending upon the context, but they are not so in all cases. Every general law is necessarily a public one, but every public law is not a general one. Thus an act incorporating a city is a public law, but it is not a general one, because it is applicable to a particular locality. Also an act authorizing a certain school district to issue bonds for the purpose of erecting a schoolhouse, and purchasing a site therefor. is a special law, and in violation of a constitutional provision that "the Legislature shall pass no special act conferring corporate power." Clegg v. School District, 8 Neb. 179; School District v. Insurance Co., 103 U. S. 707, 26 L. Ed. 601. And, again, laws amending a city charter in respect to making local improvements, or extending the limits of a particular city, are special acts, and held unconstitutional under a provision that "the Legislature shall pass no special act conferring corporate power." Atchison v. Bartholow, Kan. 124; City of Wyandotte v. Wood, 5 Kan. 603; State ex rel. Attorney General v. City of Cincinnati, 20 Ohio St. 18. When used as opposite to "private," and having reference to the subject-matter of a statute, the term "general" is equivalent to "public." When, however, it is used in reference to the territory embraced within a law, and in opposition to "local," it means operating over the whole jurisdiction of the lawmaking power. instead of a particular locality. And, when it is used in contradistinction to "special." it signifies relating to the whole community or all of a class instead of to a particular locality or a part of a class. In this latter sense a law is general when it operates equally and uniformly upon all persons, places, or things

ces for which it provided. But when it is applicable only to a particular branch or designated portion of such persons, places, or things, or is limited in the object to which it applies, it is special. Lippman v. People. 175 Ill. 101, 51 N. E. 872; Wheeler v. Pennsylvania, 77 Pa. 338; 26 Am. & Eng. Ency, of Law (2d. Ed.) 532: 1 Lewis, Sutherland. Stat. Con. § 195. It is in this sense that the terms "general" and "special" are used in the provision of the Constitution now under consideration. The object of the amendment was to deprive the lawmaking power of the right to create particular corporations, either public or private, and to require that all corporations be formed under a law, the provisions of which shall be applicable alike to all. A general law, within this section of the Constitution, is one by which all persons or localities complying with its provisions may be entitled to exercise the powers and enjoy the rights and privileges conferred. A special law, on the other hand, is one conferring upon certain individuals or citizens of a certain locality rights and powers or liabilities not granted to, or imposed upon, others similarly situated. The act creating the Port of Portland is clearly a special law as so defined, and cannot be upheld without doing violence to the expressed and plain language of the Constitution. The provision of article 4, § 23, prohibiting the passage of special and local laws on enumerated subjects, was under discussion in Allen v. Hirsch, 8 Or. 412, and Maxwell v. Tillamook Co., 20 Or. 495, 26 Pac. 803. What is there said in reference to the distinction between general and special laws must be understood as applying to the construction of that provision of the Constitution and has only a general bearing upon the present case.

The cases of Dunn v. State University, 9 Or. 357. and Liggett v. Ladd, 23 Or. 26-45, 31 Pac. 81, are cited as authorities supporting defendants' position. It is argued that the regents of the University and of the Agricultural College are not corporations for municipal purposes, and since at the time of the passage of the laws providing for their ap pointment and defining their duties the Legislature was inhibited from creating corporations by special law, except for such purposes, the court necessarily must have concluded in ruling that they are incorporations, and that the act providing for their appointment was a general one. Dunn v. University (which was cited in Liggett v. Ladd, as authority for holding that the regents of the Agricultural College are a body capable of taking and holding title to real property) was a suit to avoid a deed made to the regents. The defense was that they were agents of and held the property in trust for the state, and therefore could not be sued. The court considered this position unsound. The effect which the provision of the Constitution inhibiting the creation of corporations by special act had on the question for decision is not referred to or

mentioned by the court. It is said in the opinion, however, that the University itself is not a corporation, but that the regents are an incorporated body, although not made so by the Legislature. But after discussing this question it is finally concluded that, whether an incorporation or not, they were agents of the state, holding the legal title to the property then in controversy, and for that reason possessed no immunity for being sued, and that was the only point in the case. Its determination in favor of the plaintiff was sufficient for the purpose of the decision, and what is said about the regents being an incorporation may, with propriety, be deemed dicta. But, however that may be, the decision is not an authority supporting the act now under consideration. The regents of the University, if an incorporation, in the sense that they may take and hold title to property, and sue and be sued, are not a corporation in the ordinary meaning of that term. They are merely administrative agents of the state, charged with the control and supervision of one of its educational institutions, with no power to levy or collect taxes, or impose burdens upon the people of the state or any particular locality thereof.

Having reached the conclusion that the act under consideration is unconstitutional and void, because it is an attempt to create a corporation by a special law, it is unnecessary to consider the question as to whether a corporation of the kind sought to be created is a municipality, within the meaning of that portion of article 11, § 2, as amended, which prohibits the Legislature from enacting, amending, or repealing the charter or the act of incorporation of a municipality, city, or town. The decree of the court below will be reversed and one entered here in favor of plaintiff.

MOORE, J., did not sit in this case

(47 Wash. 42)

In re CITY OF SEATTLE. (Supreme Court of Washington. Sept. 5, 1907.) 1. MUNICIPAL CORPORATIONS - STREET IM

PROVEMENTS-ASSESSMENTS.

In making assessments on abutting property for a street improvement, the value of the different pieces of property may be considered. [Ed. Note.--For cases in point, see Cent. Dig. vol. 36. Municipal Corporations, § 1110.] 2. SAME.

ern avenue, in said city, in pursuance of Ordinance No. 11,704. From the judgment confirming the assessment roll, the Puget Sound Improvement Company and others appeal. Affirmed

Peters & Powell and Harold Preston, for appellants. Scott Calhoun and Elmer E. Todd, for respondent.

PER CURIAM. The city of Seattle established a street between Virginia and Pike streets in that city, calling the same "Pike Place." The cost of the improvement was $125,000. The statutory board of commissioners was appointed by the court to assess the costs of the improvement upon the property benefited. The commissioners charged to the city at large $15,000, and apportioned the balance upon private property, making return thereof as required by the order appointing them. At the hearing had on this return a number of property owners appeared and objected to the assessment made against their respective properties, contending, among other things, (1) that it was not made in accordance with benefits, but in proportion to its market value; and (2) that the assessments as made against their respective properties greatly exceed the benefits conferred. The trial court heard evidence on the objections, found therefrom that they were not well founded, and confirmed the roll. The objectors named in the title appeal, and assign as error the ruling of the court on the objections above cited.

With reference to the first objection, Commissioner Wateman did testify that one of the elements taken into consideration in estimating benefits was the value of the particular lot under consideration, and he pointed out that the reason why certain lots were assessed in excess of certain others lying in the same vicinity was because they exceeded in value the others; the excess in the amount of the assessment being due to the excess of value of the one over the other, the percentage of benefit being the same in each case. The appellants argue that this is assessing according to market value, and not according to benefits, the manner contemplated by the statute. We do not think, however, that this is a just criticism of the action of the commissioners. As we understand the evidence, the assessment was not based entirely upon values that is, the commissioners did not merely make an estimate of the values of the different lots thought by them to be benefited by the improvement, and then apportion the charge among the lots on a percentage basis

ment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1094.]

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

In re petition of the city of Seattle with reference to establishing and laying out West

of the elements taken into consideration in estimating benefits, that they not only considered this, but considered all such other elements as appeared to them to enter into the question. There can be no valid objection to this method of proceeding, as certainly the value of a given tract is proper to

be taken into consideration with other elements in determining what proportion of an assessment such tract shall bear. But, if this were not so, the question would not be very material. The commissioners are chargeable with the result of their work, and not with the manner by which they arrive at that result. If the return itself does not show that the premises of the objector are assessed more than they are benefited, and more than their proportionate share of the cost of the improvement, the objector is not injured, and hence it is of no moment to him what process the commissioners employed in order to arrive at the result reached by them.

On the question of the excessiveness of the assessment against the property of the objectors, we find the evidence irreconcilably conflicting. But, after a painstaking examination of it, we are unable to say that the roll as returned is inequitable or unjust, or that the objectors' properties have been assessed more than they have been benefited, or more than their just proportion of the cost of the improvement.

The judgment confirming the assessment roll should be affirmed; and it is so ordered.

(47 Wash. 48)

MEYERS v. SYNDICATE HEAT & POWER CO.

(Supreme Court of Washington. Sept. 5, 1907.) 1. MASTER AND SERVANT-INJURIES TO SERVANT-RELATIONSHIP-SAFE PLACE.

In an action for injuries to servant, evidence held to warrant a finding that one R. was employed as defendant's servant to perform the work, with authority to hire plaintiff to assist therein, rendering defendant liable for plaintiff's injuries by failure to provide a safe place to work.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 953.] 2. NEGLIGENCE-DANGEROUS

PREMISES - LI

Plaintiff, even if not defendant's servant, held a licensee on defendant's premises by defendant's invitation, and defendant was therefore responsible to plaintiff for failure to maintain the premises in a reasonably safe condition, so as not to expose him to hidden dangers of which he was not aware, and which were known to defendant.

[Ed. Note.--For cases in point. see Cent. Dig. vol. 37, Negligence, §§ 42, 44.]

3. TRIAL-SUFFICIENCY OF EVIDENCE-CHALLENGE EFFECT.

A challenge to the sufficiency of the evidence must be denied if the evidence makes a case against the challenging party, whether such case falls strictly within the pleadings or not.

4. SAME ISSUES AND PROOF-INSTRUCTIONS.

Plaintiff, in an action for injuries, alleged that he was defendant's servant, and that defendant was negligent in failing to provide a reasonably safe place to work. Proof disclosed that plaintiff was rightfully on the premises and was entitled to recover, though he was not defendant's servant, on the theory that defendant maintained an unguarded vat of hot water in a room on the premises, which was unknown to plaintiff. into which plaintiff fell. Held, that defendant having only challenged the sufliciency of the evidence, an instruction that the

| jury could not find for plaintiff unless they found that he was an employé of defendant, given at defendant's request, did not become the law of the case, so as to preclude the jury from rendering a verdict on the other thecry. defendant claiming that there was no evidence in the record to support the instruction. 5. MASTER AND SERVANT-ESTABLISHMENT OF RELATION-QUESTION FOR JURY.

In an action for injuries to plaintiff, who claimed to be working as defendant's servant. evidence as to whether plaintiff was defendant's servant or the servant of an independent contractor held for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1135.] 6. DAMAGES-INJURIES-EXCESSIVENESS.

Plaintiff, while employed on defendant's premises, stepped into an unguarded vat of hot water, and was badly burned. He suffered severely for some time, but his injuries were not entirely permanent. Held, that a verdict allow ing plaintiff $2,700 damages was excessive, and should be reduced to $1,700.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Damages, §§ 357-371.]

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by J. H. Meyers against the Syndi. cate Heat & Power Company. From a judg ment for plaintiff, defendant appeals. Affirmed on condition.

Fogg & Fogg, for appellant. Walter Christian and Chas. T. Peterson, for respondent.

FULLERTON, J. This is an action for personal injuries. In his complaint the respondent, who was plaintiff below, alleged, in substance, that he was employed by the appellant to work in and about a certain heat and power plant which the appellant was conducting in the basement of a building known as the "Washington Building," located in the city of Tacoma; that connected with the power plant was a toolroom maintained by the respondent, in which were kept the tools with which the respondent was to work: that beneath the floor of the toolroom, and opening therein, was a hot-water tank, filled with boiling water, which the appellant carelessly and negligently suffered to remain uncovered and unguarded: that the toolroom was insufficiently lighted, so that any one coming into or passing through the same was in grave danger of stepping into the water tank; that the respondent had never been warned of the existence of the tank; that in the course of his duties, while working under the direction of the appellant's foreman, it became necessary for him to go into the toolroom to get some tools; that, after passing into the room, the lights in the adjoining rooms went out, leaving the toolroom insufficiently lighted for him to see the water tank, and on his attempting to leave the room he stepped into the tank with his left foot, causing him great and permanent injuries, for which he demanded judgment. In its answer the ap pellant denied that the respondent was in its employ, or working under the direction of the foreman at the time he was injured,

and denied that it was necessary in the course of his duty or otherwise for the respondent to go into the room in which he was injured, and, while admitting that he did go into the room and step into the tank, denied that the tank was anywhere near the passageway of persons going into or through the room, and as an affirmative defense alleged contributory negligence on the part of the respondent. For reply the respondent denied the affirmative allegations of the appellant's answer. The case was tried to a jury, which returned a verdict in respondent's favor for $2.700. At the close of the evidence, the appellant moved the court to take the case from the jury and enter a judgment for the appellant, and, on the motion being overruled, requested the court to instruct the jury to return a verdict in its favor, which motion was also denied. After the return of the verdict, it moved the court for a new trial, on the ground, among others, that the verdict was excessive and given under the influence of passion and prejudice. This motion the court likewise denied. The several rulings on these motions constitute the errors assigned on this appeal.

The motion to take the case from the jury, and the motion for a directed verdict, raise but one question, namely, the sufficiency of the evidence to justify a verdict in favor of the respondent; and, since the jury found in favor of the respondent, we must accept as true, where the evidence is contradictory, that part most favorable to his contention. The evidence tended to show the following facts: The appellant operates a heat. light, and power plant in the basement of the Washington Building, in the city of Tacoma. That a fixture connected with its plant was an exhaust pipe which ran from the boiler room to near the center of the building, thence upwards, through a light well, to the roof. To accommodate certain alterations that were being made in the building, it became necessary to change this pipe to another part of the light well. One Charles Richardson was selected to do the work. The appellant's secretary called him down to the plant, showed him what was necessary to be done, and directed him to procure the necessary assistance, and move the pipe to the required position, telling him that the change must be made on the coming Sunday, as that would be the first day the fires would be out and the pipe cool enough to be handled. Richardson was a master steam fitter, maintaining a workshop in the city of Tacoma, where he kept all the necessary materials and tools to successfully carry on his trade. IIe also kept regularly in his employ a number of men, some of whom were master steam fitters, and others apprentices and helpers. The conversation between the appellant's secretary and Richardson occurred near the middle of the week, probably on Wednesday. After ascertaining what was to be done, Richardson sent a steam fitter by the name

of Diamond, with a couple of helpers, to the plant, directing them to do certain preliminary work found necessary to be done before the pipe could be moved. Diamond and the helpers went to the plant on Thursday, and continued working there during the remainder of the week. While working there, the tools used by them were kept by permission of the appellant in a room off the engine room towards the front of the building, called by the witness the "toolroom." This room contained a work bench, and certain tools belonging to the appellant used in the business of steam fitting, and appears to have been used by the appellant as a workshop for doing repair work. The hot-water tank mentioned in the pleadings was in this room. It was a receptacle into which was drained the water condensing from the steam within the steam pipes. The respondent, who was also a master steam fitter, was at this time in the employ of Richardson, working on a building in another part of the city. On Saturday preceding the Sunday it was expected to move the pipe. Richardson told the respondent of the fact and requested that he go down there the next morning and do the work, telling him at the same time in answer to inquiries that he would find the necessary tools and helpers there when he arrived. The respondent reached the plant shortly before 8 o'clock on Sunday morning, and found Diamond there in the engine room. They at once proceeded to change their street clothes for their working clothes, and, when they had finished, the respondent inquired of Diamond concerning the tools. Diamond told him they were in the toolroom off the engine room, and they started for them; the respondent leading. They passed through the door into the room, and had just reached the work bench when the lights in the building went out. Diamond remarked that he had a candle, and proceeded to light it with a match. He failed in his effort, and, not having another match, the respondent said he would go and get matches. He turned and took a step or two towards the door. when he stepped into the hot-water tank and received the injuries for which he sues. The tank was uncovered and unguarded, and the respondent had not been told of its being in the room by the appellant, nor did he know of its existence.

The facts as here stated seem to us to warrant a recovery, no matter what view may be taken of the relation existing between the appellant and respondent. If the respondent was an employé of the appellant, then the appellant was liable on the principle that it failed to provide him a reasonably safe place in which to work. On the other hand, if he was an employé of Richardson and Richardson was an independent contractor, it is liable to him on the principle that he was on the appellant's premises by special invitation, and appellant owed him the duty to maintain the premises in a reasonably safe