tioned, was considered negligence on his part.

The same rule holds here. According to the evidence for the plaintiff, he carried his car to the garage of the defendant, and asked him to put alcohol in its radiator to prevent it from freezing. The defendant had been accustomed to perform this service for the plaintiff. About one week after this time, the radiator of the plaintiff's car froze and it cost him $136.30 to repair the

It to put alcohol in the defendant. is true that the defendant denied that he had agreed to fill the radiator of the car of the plaintiff with alcohol, but this disputed question of fact was submitted to the jury under proper instructions, flicting evidence and, under our settled rules of practice, this court must uphold the verdict of the jury.

Appeal-con

-effect.

It is next insisted by counsel for the defendant that the court erred in refusing to submit his theory of the case in instruction No. 2, given to the jury over his objection, at the request of the plaintiff.

According to the evidence for the defendant, the alcohol would boil away if the car was used a great deal and it would be necessary to replace the alcohol at intervals, in order to prevent freezing. In the instruction complained of, the court told the jury that even if it should find that the defendant did put alcohol in the radiator of the car, if the quantity was insufficient to prevent freezing, the plaintiff would be entitled to recover, unless precluded by other instructions given to the jury. No specific objection was made to this instruction. It is a matter of common knowledge that the court cannot at all times submit the theories of both parties on the facts of the case in one instruction.

In the case at bar, when the instructions are read and considered

as a whole, it will be seen that this
theory of the de-
fendant was submit- mit theory of

ted to the jury in
other instructions
given by the court.

-failure to sub

case in all in

structions.

The verdict of

the jury was in favor of the plaintiff for the full amount sued for, and it is evident that the jury rejected the theory of the defendant that he had attempted in any wise. to comply with the request of the plaintiff to fill the radiator of the new Dodge touring car in order to prevent freezing.

It was next insisted that the court erred in the admission of evidence before the jury. G. H. Wright was a witness for the plaintiff. According to his testimony, he was foreman of the garage company which repaired the Dodge car in question after its radiator had frozen. According to his testimony, he examined the car minutely and saw what parts were needed to repair it. He gave the order to the mechanics in the shop for the necessary repairs and placed his initial, "W," on the written order. He oversaw the labor of repairing it. The itemized account of the repairs and the cost of making them was introduced in evi- evidence-abdence. Under the circumstances of the case, there was no error in this. The witness was satisfied from his own personal knowledge, after looking at the account, that the repairs mentioned were necessary to restore the car to its former condition. It is not claimed that the price charged was exorbitant.

-admission of

sence of error.

It will be noted that the witness placed his initial, "W," on the repairs necessary to be made. It was not necessary that the writing should have been made by the witness himself, and, while the better practice would be to have permitted the witness merely to use the writing for the purpose of refreshing his memory, as held in Bowden v. Spellman, 59 Ark. 251, 27 S. W. 602, still no prejudice, in this case, could have resulted to the defendant from

(171 Ark. 1029, 287 S. W. 168.)

the introduction of the account itself. As we have already seen, the witness had written down the repairs which were necessary to be made and had placed his initial,

"W," on the writing. No claim whatever is made that the price of the repairs is unreasonable.

It follows that the judgment must be affirmed.

ANNOTATION.

Duty and liability of garage keeper to owner of car.
[Garage, § 2.]

This annotation is supplemental to those in 15 A.L.R. 681, and 42 A.L.R. 135.

The cases found since those annotations are in harmony with the decisions therein.

Thus, in the reported case (WHITTAKER V. KIRCHMAN, ante, 316) it was held that failure of a garage keeper to place alcohol in the radiator of a car to keep it from freezing, he having been accustomed to do this service for the owner of the car, was negligence and made out a prima facie case against him.

Where the owner of an automobile had placed it in charge of a garage keeper, and had at no time authorized any employee of the garage keeper to take out his car, but in fact had given explicit directions that no one should be allowed to touch the car, or even to wash it, the negligence of the caretaker of the garage in allowing the car to be taken out, during which time it was damaged, must be imputed to the garage keeper as if it were the garage keeper's own act. Underberg v. Stewart (1925) 86 Pa. Super. Ct.

106.

on such evidence a nonsuit was properly denied.

And where one left his car in a garage, with a person unidentified, the presumption is that such person was the agent of the garage keepers, and authorized to accept the car for storage, and a subsequent sale of the car for storage by a purchaser of the garage without the statutory notice to the owner, who had given his address when he left, will render the garage keeper and his his purchaser guilty of conversion, and liable for the cost of the car. Herschenhart v. Mehlman (1925) 125 Misc. 887, 213 N. Y. Supp. 48.

And in Williams v. H. L. Weil Co. (1924) 1 La. App. 188, supra, it was held that a bailee or depositor could not, by a notice posted on the wall of his garage stating that cars and contents were stored at the owners'

risk, or, in fact, in any other manner, exempt himself from the responsibility for his own lack of care or prudence.

But a car owner who had the employee in charge of a garage drive him home, in the absence of evidence that this was done with either the knowledge, sanction or authority of the owner of the garage, accepted such service at his own risk, and while so acting the employee was the agent of the owner of the car, and not of the garage keeper, and the latter was not responsible for the subsequent loss of the car, there being no evidence that the car was ever returned to the garage. Williams v. H. L. Weil Co. (1924) 1 La. App. 188.

W. S. C.

(163 Minn. 439, 204 N. W. 534.)

Highways, § 20— right to damages for vacation.

power to vacate

proper consideration is whether the public interests will be advanced. If they will be, it is of no consequence that private interests may also be served.

Eminent domain, § 153 - highways, § 20 who entitled to damages for vacation.

1. The right to claim damages at common law resulting from the vacation of a street cannot be successfully asserted by landowners whose property neither abuts on the vacated portion of the street nor is left abutting upon a cul-de-sac, who have access to their property on all sides, and whose complaint is that highway communication in certain directions is less direct and convenient than it was before the street was vacated, in consequence whereof trade will be diverted to places more accessible. [See annotation on this question beginning on page 330.] Highways, § 14 streets. 2. The amendment of § 3369, Rev. Laws 1905, by chapter 503, Laws 1909, did not deprive the district court of jurisdiction to vacate streets in villages organized under chapter 145, Laws 1885. The word "charter" in the first proviso in § 6863, Gen. Stat. 1913, does not refer to the entire body of existing laws which provide for the organization and government of cities or villages, but is used as a synonym for "home rule charter." Constitutional law, § 75 - delegation of power vacation of streets. 3. In authorizing the district court to vacate plats and adjudge the title to streets, alleys, and public grounds to be in the persons entitled thereto, the legislature did not contravene article 3 of the state Constitution by delegating legislative powers to the judicial branch of the government. Highways, §§ 14, 16 vacation when permissible.

4. The evidence supports the finding that public interests will be promoted by vacating a portion of the plat of the village of Hibbing and the streets and

alleys therein. The finding could only be set aside if it appeared to be arbitrary, or the result of an abuse of discretion. In determining whether a public way shall be vacated, the only Headnotes by LEES, C.

5. The word "damaged" as used in § 13, art. 1, of the state Constitution, and in § 6863, Gen. Stat. 1913, refers to damage which could have been recovered at common law had the acts which caused the damage been done without constitutional or statutory authority. Under the Constitution and statute, to entitle a landowner to damages, he must show that he has suffered an injury different in kind from that suffered by the general public. Appellants were not specially damaged by the vacation of the plat of the town site of Hibbing; the injury they sustained was common to the public. [See 13 R. C. L. 73.]

Constitutional law, § 484-due proc

vacation of street without

(Dibell, J., dissents in part. )

APPEAL by certain property owners from an order of the District Court for St. Louis County (Dancer, J.) denying a motion to set aside a judg

(163 Minn. 439, 204 N. W. 534.)

ment granting an application for vacation of a portion of a village plat and to dismiss the proceeding. Affirmed.

The facts are stated in the Commissioner's opinion.

Messrs. H. V. Mercer, C. G. Anderson, Gannon, Strizich, & Farnand, Thomas Silliman, George Spear, and Fryberger, Fulton, Hoshour, & Ziesmer for appellants.

Messrs. Davis, Severance, & Morgan, Frank D. Adams, Elmer F. Blu, Crassweller & Crassweller, and D. T. Collins for respondents.

Lees, C., filed the following opinion:

The owners of the land embraced in the plat of the town site of the village of Hibbing, commonly known as the north 40, applied to the district court of St. Louis county for the vacation of the plat. The application was granted and property owners in Pillsbury and Southern additions, which lie south of and adjacent to the plat vacated, have appealed from the judgment, and from an order denying their motion to set it aside, and dismiss the proceeding for want of jurisdiction. statement of many of the pertinent facts, we refer to Reed v. Hibbing, 150 Minn. 130, 184 N. W. 842.

For a

The briefs cover nearly 600 pages and the discussion has taken a wide range. Out of it all, three points emerge, which go to the heart of the case, viz.: Did the court have jurisdiction to act upon the application? Was the court justified in granting the application? Can the appellants recover damages?

1. The statute (Gen. Stat. 1913, § 6863) authorizes the district court to vacate all or any part of a plat upon the application of an owner of land included in the plat, and to adjudge the title to all streets, alleys, and public grounds to be in the persons entitled thereto, but the court may not vacate a street or alley dedicated to the public use in or by the plat of any city, town, or village organized under a charter or special law which provides a method or procedure for the vacation of streets and public grounds by the municipal

authorities.

The trial court found that Hibbing

49 A.L.R.-21.

was not organized under a charter or special law containing such a provision and held that the court had jurisdiction. The question was raised at four different stages of the proceeding. On each occasion the court ruled against appellants, and these rulings are assigned as error.

Hibbing was organized as a village in 1893 under chapter 145, Gen. Laws 1885, which provides, in § 29, that "upon the petition in writing of all the owners of lots or land on any street or alley in such village and not otherwise, the board of trustees may discontinue such street or alley or any part thereof."

Appellants contend that chapter 145 is the charter of the village and, since it provides for the discontinuance of streets by the village authorities, the court was without jurisdiction.

The court's jurisdiction was first limited by chap. 503, Laws 1909. From an early date jurisdiction had been conferred in broad terms (Stat. 1866, §§ 12-14, chap. 29); and in 1904, in Townsend v. Underwood's Second Addition, 91 Minn. 242, 97 N. W. 977, it had been held cluded the power to vacate the that the power to vacate a plat instreets within the plat.

The 1909 act restricted the power, but did not entirely Highwayswithdraw it from power to vacate the court. If appel

streets.

lants' counsel correctly construe the act, not much is left of the power, for few special acts or home rule charters do not contain some provision for the vacation of streets by the municipal authorities. In support of their construction, they cite Balch v. St. Anthony Park West, 129 Minn. 305, 152 N. W. 643. That case

holds that the 1909 act withdrew the vacation of streets from the jurisdiction of the district court in mu

nicipalities coming within the scope of the act; that the charter of St. Paul, a home rule charter, provided a method for the vacation of streets

by the city authorities, hence the court could not vacate a street included in the plat vacated; but the meaning of the word "charter," as used in the act, was not considered.

The argument that every municipal corporation which has a home rule charter is organized under a special law goes too far. In a sense such a charter is a special law applicable to the municipality adopting it, but if "charter" and "special law" have the same meaning, the Legislature spoke at random, an inference not to be lightly drawn. If every home rule charter is a special law, and every general law under which a municipal corporation is organized is the charter of the municipality, the legislative intent would have been better expressed by omitting the words "charter or special." The first word is often used to signify the entire body of existing laws which provide for the organization and government of a particular city or village, but, since the adoption of $ 36, art. 4, of the state Constitution, the word is commonly used as a synonym for "home rule charter," and, in construing the 1909 act, the Attorney General gave it as his opinion that this is what the word referred to. Opinion No. 137, given in 1920 to the city attorney of Thief River Falls.

The district court came to the conclusion that this was the correct construction of the act for reasons tersely stated by Judge Dancer. He called attention to the fact that municipalities in this state have been organized in one of three ways: (1) By the adoption of home rule charters; (2) under special laws; and (3) under general laws. He thought the Legislature intended the 1909 act to apply to municipal corporations organized in either the first or second way, and intended to leave the original statute in effect as to those organized in the third way, because any other construction would make the words "special law" superfluous and meaningless. Referring to § 29, chap. 145, he said it did not permit the village authorities to vacate a

street unless every owner of abutting property signed the petition, hence, if one property owner arbitrarily refused to sign, the hands of the authorities were tied and there could be no vacation, however great the need might be, a result which could hardly have been intended by the Legislature. We think the district court interpreted the statute correctly, and hold that the court had jurisdiction.

2. The next contention is that § 6863 is invalid because it delegates legislative power to the courts in contravention of article 3 of the state Constitution. If this be true, a belated discovery has been made. The statute has been in existence as long as the state. Many plats have been vacated under it. Valuable buildings have been erected on land once occupied by streets or alleys. It would be an unexpected blow to the fancied security of titles, if, after all these years, this court should hold that the statute is unconstitutional and all proceedings under it void. So far as we know, no question as to its constitutionality has been raised in previous cases, and we might brush aside the contention by saying that to sustain it would disturb too many titles, but it is made with such earnestness that we will inquire into its merits.

The courts have frequently considered the constitutional provision for the division of the powers of the government into three distinct departments. Gradually the necessity of avoiding a narrow construction has been perceived, for it has proved to be impractical to view the provision from the standpoint of a doctrinaire. This and much more is well put in State ex rel. Jonason v. Crosby, 92 Minn. 176, 99 N. W. 636, and in State ex rel. Patterson v. Bates, 96 Minn. 110, 113 Am. St. Rep. 612, 104 N. W. 709. This court has upheld the statute authorizing the district court to establish judicial highways, in Re Fillmore & Houston Counties, 158 Minn. 302, 197 N. W. 741; Alexander v. McInnis, 129 Minn. 165, 151 N. W. 899;