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(Mo., 210 S. W. 874.)

by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition. But it is not entitled to damages for the interruption and inconvenience occasioned to its business; nor for the increased liability to damages from accidents; nor for increased expense for ringing the bell; nor for the risk of being ordered by the county commissioners, when in their judgment the safety and convenience of the public may require it, to provide additional safeguards for travelers crossing the railroad; nor for the expense of maintaining a flagman, alleged to be necessary to guard against the greater liability to accidents occasioned by the obstruction of the view along its

railroad, at the crossing of a highway, by means of the abutments of the new railroad of the other corporation."

We are of the opinion that the expense of installing and the cost of maintaining the electric bell mentioned clearly fall within the rule just announced, and, for that reason, the action of the court in refusing the instructions asked by the defendant were properly refused, and that those asked for by plaintiff were properly given.

This ruling applies to and disposes of all the other questions in the case.

For the reasons stated, the judgment of the Circuit Court is affirmed.

All concur.


Expense of flagmen, gates, and automatic signals as items of compensation to railroad company across whose tracks a highway is laid.

By the weight of authority, the expenses of gates and flagmen are imposed by the police power of the state, and are not an element of just compensation to a railroad company across whose tracks a highway is laid. Chicago, B. & Q. R. Co. v. Chicago (1897) 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581, affirming (1894) 149 III. 457, 37 N. E. 78 (see also Rose's Notes to this case); Chicago & N. W. R. Co. v. Chicago (1892) 140 Ill. 309, 29 N. E. 1109 (gates, power house, and gate tender); Lake Shore & M. S. R. Co. v. Chicago (1893) 148 Ill. 509, 37 N. E. 88 (gate house, machinery, and gate keeper); Lake Shore & M. S. R. Co. v. Chicago (1894) 152 Ill. 101, 37 N. E. 1029 (the same); Chicago & N. W. R. Co. v. Morrison (1902) 195 Ill. 271, 63 N. E. 96; Paris v. Cairo, V. & C. R. Co. (1911) 248 III. 213, 93 N. E. 729; Louisville & N. R. Co. v. Louisville (1908) 131 Ky. 108, 24 L.R.A. (N.S.) 1213, 114 S. W. 743 (stating the rule); Baltimore v. Cowen (1898) 88 Md. 447, 71 Am. St. Rep. 433, 41 Atl. 900 (stating the rule); Re Morris & E. R. Co. (1885) 9 N. J. L. J. 75; Mor

ris & E. R. Co. v. Orange (1899) 63 N. J. L. 252, 43 Atl. 730, 47 Atl. 363, overruling Patterson & N. R. Co. v. Newark (1897) 61 N. J. L. 80, 38 Atl. 689; Chicago, M. & St. P. R. Co. v. Milwaukee (1897) 97 Wis. 418, 72 N. W. 1118 (gates).

In Boston & M. R. Co. v. York County (1887) 79 Me. 386, 10 Atl. 113, the court said: "Railroads are constantly having imposed upon them additional duties with reference to safety of per"The state, sons and property. .

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in the exercise of its police power, may
the stationing of a
flagman at a highway crossing.
.' Pierce, Railroads, 462."
In Chicago, B. & Q. R. Co. v. Chi-
cago (1897) 166 U. S. 226, 41 L. ed.
979, 17 Sup. Ct. Rep. 581, supra, the
court said: "The plaintiff in error
took its charter subject to the power
of the state to provide for the safety
of the public, in so far as the safety
of the lives and persons of the peo-
ple were involved in the operation of
the railroad. The company laid its
tracks subject to the condition, neces-
sarily implied, that their use could be

so regulated by competent authority as to insure the public safety. And as all property, whether owned by private persons or by corporations, is held subject to the authority of the state to regulate its use in such manner as not to unnecessarily endanger the lives and the personal safety of the people, it is not a condition of the exercise of that authority that the state shall indemnify the owners of property for the damage or injury resulting from its exercise. Property thus damaged or injured is not, within the meaning of the Constitution, taken for public use, nor is the owner deprived of it without due process of law. The requirement that compensation be made for private property taken for public use imposes no restriction upon the inherent power of the state by reasonable regulations to protect the lives and secure the safety of the people. The expenses

that will be incurred by the railroad company in erecting gates, planking the crossing, and maintaining flagmen, in order that its road may be safely operated-if all that should be required-necessarily result from the maintenance of a public highway, under legislative sanction, and must be deemed to have been taken by the company into account when it accepted the privileges and franchises granted by the state. Such expenses must be regarded as incidental to the exercise of the police powers of the state. What was obtained, and all that was obtained, by the condemnation proceedings for the public was the right to open a street across land within the crossing that was used, and was always likely to be used, for railroad tracks. While the city was bound to make compensation for that which was actually taken, it cannot be required to compensate the defendant for obeying lawful regulations enacted for the safety of the lives and property of the people."

In Chicago, M. & W. P. R. Co. v. Milwaukee (1897) 97 Wis. 418, 72 N. W. 1118, supra, the court said: "Crossing signs, warning posts, cattle guards, wing fences connecting cattle guards with side fences, crossing gates, the

clearing of the approaches to render crossing signs visible, the maintenance of flagmen, building of flagmen's stations, ringing of engine bells, planking of tracks, and other things that might be mentioned, ordinarily required at railway crossings, especially in populous communities, are all matters pertaining to their safety for persons and property."

In holding that a railroad company was not entitled to compensation for constructing, maintaining, or protecting new streets opened across the right of way, the court said: "Railroad companies are required by statute to erect at some crossings safety gates, at others to keep flagmen, at others to erect sign boards, cattle guards, and fences, and yet at others to give reasonable warning of the approach of trains by sounding the whistle and ringing the bell; and have always been required to maintain crossings in suitable repair for public travel. It is generally considered that these duties, which are exacted in the exercise of the police power, a railroad company is not entitled to compensation for performing. They are imposed as a duty deemed essential for the protection of travelers upon other highways that have been set apart for public use, and exacted as a part of the consideration required for the right to exercise the power of eminent domain and the other franchises and privileges enjoyed." Louisville & N. R. Co. v. Louisville (1908) 131 Ky. 108, 24 L.R.A. (N.S.) 1213, 114 S. W. 743, supra.

In Southern Kansas R. Co. V. Oklahoma City (1902) 12 Okla. 82, 69 Pac. 1050, it was held that a railway company is not entitled to compensation for the expense or maintenance of gates and flagmen, where it is provided by statute that railway companies shall construct and continually maintain the crossing where any road or highway now is, or may be hereafter, laid out by proper authority.

But a railway company must be awarded compensation for the construction and maintenance of safety gates and gate houses where, by stat

ute, all expense incident to the construction and maintenance of a crossing is imposed upon the municipality; it is not, however, entitled, under such statute, to compensation for the expense incident to operating crossing gates, which is a necessary operation expense of the railway. Boston & A. R. Co. v. Cambridge (1893) 159 Mass. 283, 34 N. E. 382.

In line with the general rule in respect to flagmen and gates is the decision in the reported case (FRANKLIN COUNTY V. MISSOURI P. R. Co. ante, 133), holding that the expense of installing and maintaining an electric bell at the crossing does not constitute an element of damage.

In Old Colony & F. River R. Co. v. Plymouth (1859) 14 Gray (Mass.) 155, it was held that the railroad company was not entitled to damages, which it claimed, "for increased expense for ringing the bell as required by law," not stating whether the locomotive bell was referred to.

In Baltimore v. Cowen (1898) 88 Md. 447, 71 Am. St. Rep. 433, 41 Atl. 900, the court was perhaps referring to locomotive bells where it said: "Cattle guards, crossing gates, the maintenance of flagmen, ringing of bells, and other things ordinarily required at railway crossings, especially in populous communities


matters pertaining to the public safety, and are within the police power; and when the duty to construct them has been imposed on the railway company by statute, no compensation for erecting or maintaining them can be recovered."

In Michigan, the general rule does not apply, and it is held that if the jury are satisfied that gates or flagmen are necessary for the public, the rail

road company is entitled to compensation therefor. Parks & Boulevards v. Chicago, D. & C. G. T. Junction R. Co. (1892) 91 Mich. 291, 51 N. W. 934; Plymouth v. Pere Marquette R. Co. (1905) 139 Mich. 347, 102 N. W. 947 (stating the rule).

Thus, it is error to refuse to permit the jury to consider the question of allowing compensation for gates. Parks & Boulevards v. Michigan C. R. Co. (1892) 90 Mich. 385, 51 N. W. 447; Parks & Boulevards v. Detroit, G. H. & M. R. Co. (1892) 93 Mich. 58, 52 N. W. 1083.

This doctrine was foreshadowed in Grand Rapids v. Grand Rapids & I. R. Co. (1886) 58 Mich. 641, 26 N. W. 159, where the court said: "The damage done to a railroad by having a highway run across it must necessarily include all the additional expense entailed by such a crossing, which in a city may involve a considerable outlay in making the crossing safe, and providing guards against accident."

And if the undisputed testimony shows that a flagman was necessary, the jury is not entitled to disregard such testimony. Detroit v. Detroit, G. H. & M. R. Co. (1897) 112 Mich. 304, 70 N. W. 573.

In general, however, compensation for flagmen and gates cannot be allowed, where the jury has not found them necessary. Grand Rapids v. Bennett (1895) 106 Mich. 528, 64 N. W. 585.

And the company is not entitled to compensation for prospective expense maintaining of constructing and gates, towers, and flagmen, which may Re First or may not be incurred. Street (1887) 66 Mich. 42, 33 N. W. B. B. B.




DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT of the State of Nevada in and for the County of Elko et al.

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1. Conferring upon women the right to vote makes them eligible to act as members of the grand jury, under a statute providing that every qualified elector of the state with sufficient capacity and knowledge, and who has not been convicted of crime, is a qualified juror.

[See note on this question beginning on page 152.]

-effect of opinion formed.

2. That a member of the grand jury had heard a case which came before that body talked about, and had read a newspaper account of it, did not disqualify him under a statute providing that no person shall be disqualified as a grand juror for having formed an opinion upon a cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety, provided it satis

factorily appears that he will act im-
partially notwithstanding such opin-

[See 12 R. C. L. 1022.]
- effect.


improperly selected jury

3. An indictment will not be set aside because the jury was not selected by the proper body, if there was a substantial compliance with the statutory requirement in this respect. [See 12 R. C. L. 1016 et seq.]

(Coleman, J., dissents.)

PETITION for a writ of prohibition to restrain respondents from proceeding with the trial of relator under an alleged invalid indictment charging him with murder. Writ denied.

The facts are stated in the opinion Messrs. James Dysart and Curler & Castle, for petitioner:

The body which brought in the accusatory paper on which the court were to proceed to the trial of petitioner was not a legally constituted grand jury, in that it consisted of persons not qualified to act as grand jurors.

People ex rel. Wood v. Draper, 15 N. Y. 552; People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677; English v. State, 31 Fla. 340, 12 So. 689; Donald v. State, 31 Fla. 255, 12 So. 695; State v. Barker, 107 N. C. 913, 10 L.R.A. 50, 12 S. E. 115; Carpenter v. State, 4 How. (Miss.) 163, 34 Am. Dec. 116; Copp v. Henniker, 55 N. H. 179, 20 Am. Rep. 194; State v. Hartley, 22 Nev. 342, 28 L.R.A. 33, 40 Pac. 372; State v. McClear, 11 Nev. 39; Harland v. Territory, 3 Wash. Terr. 131, 13 Pac. 453; People v. Lensen, 34 Cal. App. 336, 167

of the court.

Pac. 406; Bradwell v. Illinois, 16 Wall. 142, 21 L. ed. 446.

If the proper officers fail to take part in selecting the persons to be summoned as grand jurors, or if such persons are not selected according to the provisions of the statutes, such body of persons constitutes an illegal body.

State v. McNamara, 3 Nev. 70; State v. Collyer, 17 Nev. 281, 30 Pac. 891; Burner v. Superior Ct. 92 Cal. 239, 28 Pac. 341; Viers v. State, 10 Okla. Crim. Rep. 28, 134 Pac. 80; Shepherd v. State, 89 Miss. 147, 42 So. 544, 10 Ann. Cas. 963.

Messrs. E. P. Carville, Chas. A. Cantwell, and Edwin E. Caine, for respondents:

The legislature have expressed, by their provision for exemption of married women from jury service, their asset to the service of women on juries.

(— Nev. —, 174 Pac. 706.)

26 Am. & Eng. Enc. Law, 712; Sutherland, Stat. Constr. § 237; Pomeroy v. Beach, 149 Ind. 511, 49 N. E. 370; Parks v. State, 159 Ind. 211, 59 L.R.A. 190, 64 N. E. 862; Re Locust Ave. 185 N. Y. 115, 77 N. E. 1012; People v. Weinstock, 117 App. Div. 168, 102 N. Y. Supp. 349; State ex rel. Durr v. Spiegel, 91 Ohio St. 13, 109 N. E. 523; Stiers v. Mundy, 174 Ind. 651, 92 N. E. 374; State ex rel. Moose v. Kansas City & M. R. & Bridge Co. 117 Ark. 606, 174 S. W. 248.

In making the motion to set aside the indictment, petitioner expressly avers that the twenty-four persons were selected, but makes no allegation of improper selection.

32 Cyc. 624-626; State ex rel. First Nat. Bank v. District Ct. 12 Wyo. 547, 76 Pac. 680; Baughman v. Superior Ct. 72 Cal. 572, 14 Pac. 207.

Mr. George B. Thatcher, Attorney General, also for respondents.

McCarran, Ch. J., delivered the opinion of the court:

This is a proceeding in prohibition. The petitioner was indicted by the grand jury of Elko county, eleven members of this body who participated in the finding of the indictment being men, the other members being women. As a primary contention, petitioner alleges that the indictment is invalid, because, under our Constitution and laws, women are not eligible to serve as members of a grand jury. Section 8 of article 1 of our Constitution provides: "No person shall be tried for a capital or other infamous crime

except on presentment or indictment of the grand jury, or upon information duly filed by a district attorney, or attorney general of the state."

It is contended by petitioner, and conceded on behalf of respondent, that at common law women were not qualified to sit on a grand jury, and that this rule obtained up to the time of the adoption of our Constitution. Conceding this does not, however, preclude us from inquiring as to the class of persons from whom grand jurors were selected at common law, and further inquiring as to how, if at all, we supplanted

this class when we adopted the grand jury system.

In 1 Chitty's Treatise on Criminal Law, p. 307, we are told that at common law all persons serving upon the grand jury inquest must be good and lawful men, "by which it is intended," says the author, "that they must be liege subjects of the King, and neither aliens, nor persons outlawed even in a civil action, attainted of any treason or felony, or convicted of any species of crimen falsi, as conspiracy or perjury, which may render them infamous." Hence we see that the class of persons from whom grand jurors could be selected at common law was those who were liege subjects of the King. By later statutes, the class from whom grand jurors might be selected was fixed as those possessing certain property or income qualifications in addition to their being liege subjects of the Sovereign. Section 27, art. 4, of our Constitution provides, inter alia: "Laws shall be made to exclude from serving on juries, all persons not qualified electors of this state."

Section 4929, Rev. Laws, being § 1 of an act entitled, "An Act Concerning Juries," provides: "Every qualified elector of the state, whether registered or not, who has sufficient knowledge of the English language, and who has not been convicted of treason, felony, or other infamous crime, and who is not rendered incapable by reason of physical or mental infirmity, is a qualified juror of the county in which he resides, or the county to which it is attached for judicial purposes."

Looking to the creation of a jury list, § 4937, Rev. Laws, provides: "The board of county commissioners in each county of the state of Nevada, shall, at its first meeting after the approval of this act, and thereafter at its first regular meeting in each year, by an order duly made and entered on its minutes, estimate as nearly as possible, the number of trial jurors that will be required for attendance on the dis

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