shows that no error was committed in re- means to warn travelers of danger, such fusing to direct a verdict for the defendant. means as will be equally efficient as the bell The court, having declined to give an in- or whistle warning in the case of an advanstruction requested by defendant's counsel, cing unreversed train." In Union Pacific an exception was taken to the refusal to Railroad Company v. Connolly, 77 Neb. 254, charge the jury as follows: "If you believe 269, 109 N. W. 368, 374, the defendant in erfrom the evidence that at the time plaintiff | ror having recovered $27,500 as damages for started to cross the railroad track of defend- the loss of his feet, which were severed by ant the car with locomotive attached was at the backing at night of an engine and four rest, and the defendant previous to starting or six cars over him at a crossing, the judgsaid car caused the bell on the engine to be ment was affirmed on appeal, the court sayrung as a notice that said car was about to ing: "That the rear car of that portion of move, but that notwithstanding such ringing the train displayed no lights, and that no of the bell the plaintiff started to cross said person was stationed thereon, or at the track in front of said car and so close to said crossing, to give warning of its approach to car that she was struck and knocked down the crossing, are facts conclusively establishas described in the testimony, I charge you ed by the evidence and practically conceded. that such act of plaintiff in attempting to The accident occurred in a populous comcross said track in such close proximity to munity and within the limits of a considerasaid car was an act of carelessness on her ble city. It occurred in the nighttime, and part which would prevent her recovering in at a crossing in common use at all hours, and this action, and your verdict must be for the where, as we have seen, the defendant comdefendant." The theory of plaintiff's coun- pany was charged with the duty of exercissel, as evidenced by the testimony sought to ing reasonable care to avoid injury to those be elicited at the trial, is that the engine was crossing its tracks. It is true, it seems to run forward southeast on North Front street be conceded that the bell was rung and the over the switch mentioned, and thence backed whistle sounded to give warning that the on the spur track to where the furniture car train was moving. But the mere fact that stood; that the first attempt to connect the the statute requiring such warnings was engine and car, which was made when the complied with does not of itself show that two young women were endangered, proved the defendant had discharged its full duty to unsuccessful because the automatic couplers those using the crossing. It was bound to were not properly opposed to each other in use reasonable care not to endanger those consequence of the curvature of the line of who might be lawfully upon its tracks at railway at that place; and that when the the crossing, and whether, in view of the plaintiff reached the spur track the engine time, place, and circumstances, precautions and car were stationary and unconnected, in addition to those prescribed by the statute but in making the second attempt to couple were required, was a question for the jury. them she was injured. It is conceded that the locomotive and car were at rest, as indicated in the request for the instruction, but nearly every other important fact stated therein is disputed. Taking for granted that none of the facts so controverted are assum-give warning of a freight train backing toed in the request, and that the phrase "if you believe" is understood as limiting each clause, it will be seen that the ringing of the engine bell is the important incident, which is undertaken to be emphasized by the language employed.

A noted author in discussing the obligations devolving upon railroad companies says: "The danger to the public at crossings or other places where the public have a right to be in common with the railway company, of backing its cars without having a man standing on the foremost car to look out, to give warnings to the engineer and to the endangered traveler, and to apply the brake, is so obvious as not to require discussion." Thomp. Neg. § 1571. In Bowles v. Chesapeake & Ohio Ry. Co., 61 W. Va. 272, 57 S. E. 131, a headnote is as follows: "It is negligence per se to back a train on a dark night over a public railroad crossing without warning, by blowing a whistle or ringing a bell or guard or light on the advancing

* *

The crossing was in common use

day and night. It was across tracks in constant use, and in a populous and busy community. That due care required more than ringing the bell and sounding the whistle to

ward and over such crossing in the nighttime is certainly not an unreasonable inference in view of all the facts and circumstances."

In the case at bar if, in the darkness, the light of the locomotive had been directed towards the plaintiff and no intervening object had obscured its gleams, the ringing of the bell, whether or not she heard it, might possibly have afforded such warning of the contemplated movement of the engine as the necessity demanded, for the illumination should have been sufficient to attract her attention, if she had given any heed thereto. When, however, the locomotive was headed from her, and, as she claims, not coupled to the furniture car which intervened, and there was no light or switchman thereon to warn her in the darkness that the car was to be backed, it was essential that she should have heard the bell, if it was rung, in order to charge her with contributory negligence in risking her life by attempting to cross the track. The instruction requested does not

ligence on her hearing the bell rung, but up-13. CONSTITUTIONAL LAW (§ 15*)-CONSTRUCon the mere ringing thereof. The language TION OF CONSTITUTION-Two CONSTRUCTIONS. suggested to the court was not, in our opinion, sufficient, under all the circumstances involved, and though the defendant was entitled to have its theory of the case submitted to the jury, the requested instruction

On motion to affirm judgment, and for ruary 12, 1909, by the Governor appointed rehearing. Motion denied.

For former opinion, see 104 Pac. 419. In support of motion, in the first instance, appeared A. M. Crawford, Atty. Gen., and J. H. Page, Dep. Dist. Atty. In opposition there was a brief over the names of Thos. O'Day, for appellant, and Martin L. Pipes, amicus curiæ. In opposition to the motion there was a brief, amici curiæ, over the names of the following counsel: A. E. Clark, Chas. H. Carey, S. B. Linthicum, M. G. Munley, Dan J. Malarkey, John F. Logan, W. W. Cotton, Platt & Platt, John P. Kavanaugh, James B. Kerr, S. B. Huston, Bauer & Greene, Arthur C. Spencer, Veazie & Veazie, John H. Hall, Franklin T. Griffith, Alex Bernstein, D. Solis Cohen, C. M. Idleman, Cole & Cole, W. T. Muir, Ralph W. Wilbur, Kollock & Zollinger, Graham, Cleeton & Davis, Roger B. Sinnott, Harrison Allen, Schuyler C. Spencer, Ralph E. Moody, Russell E. Sewall, Milton W. Smith, Conley & De Neffe, William Brewster, W. C. Benbow, John Manning, W. E. Thomas, Jerry Bronaugh, Gus C. Moser, John C. McCue, John H. Stevenson, W. W. Banks, Chas. J. Schnabel, W. P. La Roche, Allen R. Joy, J. H. Middleton, McAllister & Upton, John A. Collier, H. E. Collier, A. C. Emmons, J. Frank Shelton, James McCain, Frank W. Fenton, W. T. Vinton, B. A. Kliks, Joseph E. Hedges, E. B. Tongue, C. A. Hardy, John A. Carson, W. H. Holmes, W. M. Kaiser, N. L. Butler, Oscar Hayter, J. E. Sibley, Gale S. Hill, Walter L. Tooze, Jr., W. R. Bilyeu, J. K. Weatherford, Percy R. Kelly, J. J. Whitney, W. S. McFadden, J. F. Yates, E. R. Bryson, E. E. Wilson, Ed Horgan, George Denman, J. A. Buchanan, W. Lair Thompson, A. S. Bennett, C. E. Woodson, Stephen A. Lowell, J. P. Winter, Roscoe R. Johnson, Turner Oliver, William Miller, J. L. Rand, J. N. Hart, M. L. Olmsted, Samuel White, James R. Nichols, Brooke & Tomlinson, R. G. Wheeler, G. W. Hayes, C. H. Leonard, C. L. McNary, and John H. McNary. In reply, supporting the motion, there was a brief over the names of A. M. Crawford, Atty. Gen., Geo. J. Cameron, Pros. Atty., J. H. Page, Dep. Pros. Atty., and A. King Wilson, for respondent.

MCBRIDE, J. The Attorney General and one of the deputy district attorneys for Multnomah county, on behalf of the plaintiff, by a motion calling for the issuance of a mandate affirming the judgment of the trial court in the above cause, seek to question the constitutionality of chapter 50, p. 99, Laws 1909. This act increases the number of justices, comprising this court, from three to five, and provides for the immediate appointment by the Governor of two justices, in addition to those already in office, to hold until their successors are elected and qualified. Under its provisions Mr. Justice

justices of this court, took their oaths of. office, and, in the manner provided by the act, entered upon their duties, and have at all times since been acting in that capacity, recognized as such by their associates, as well as by the executive, and all other departments and officials of the state, including the Attorney General and district attorneys, as well as by all other counsel having business before this court.

The former opinion in this cause, being the one giving rise to this controversy, was prepared by Mr. Justice King and concurred in by Mr. Justice Slater and by the writer of this opinion, but dissented from in an opinion by Mr. Justice Eakin, in which dissent Mr. Chief Justice Moore concurred. See 104 Pac. 419. By the motion, and argument in its support, it is insisted that the lawfully constituted court consists of Chief Justice Moore, Justice Eakin, and the writer, who hold their respective offices under laws in force prior to the act brought in question, by reason of which it is contended that Chief Justice Moore and Mr. Justice Eakin constitute a majority of the legally constituted court, and that their opinion should be treated as the majority opinion, and the majority opinion as filed be deemed a dissenting opinion only.

A peculiar situation confronts us at the very threshold of this proceeding. The motion is not addressed to those members of this body, who, it is claimed by the plaintiff, are the constitutional judges, but is addressed to the court, consisting de facto of five persons; each claiming to be a justice. If the three first named are to pass on the question in the collateral and indirect manner in which it is presented, they must say to Justices King and Slater: "Gentlemen, we are the legitimate justices of this court, and you are intruders. You will therefore retire, while we proceed to discuss the question as to whether three or five justices constitute our legitimate membership." In other words, we would thus be required to decide the merits of the controversy before the hearing. Or if all five of the justices sit at the hearing, and one of them should agree with Justices King and Slater that the decision in State v. Cochran was properly rendered by a constitutionally organized court, the question attempted to be raised on this motion would still be unsettled, for, unless all three of the justices, excepting King and Slater, concurred in condemning the constitutionality of the act, a majority of the court de facto would be in favor of its validity, and the matter would resolve itself into a struggle as to who would be recognized by the officers of the court and the state officials. However, the gentlemen, whose tenure of office is indirectly attacked by this motion, have seen fit to submit its decision to that part of the membership of

son of which the contingencies here suggest- | Judicial power presupposes an established ed will not actually arise; but the fact that government capable of enacting laws and they might properly so arise furnishes some enforcing their execution, and of appointing justification for the theory, which we think, judges to expound and administer them. in view of a precedent (to which we will The acceptance of the judicial office is a later refer) of this court, it is unnecessary to recognition of the authority of the governadopt, that the question here presented be- ment from which it is derived; and, if the longs to the domain of legislation rather authority of that government is annulled than judicial determination, or at least that, and overthrown, the power of its courts and in the manner here presented, it is not prop- other officers is annulled with it; and if a erly before the court. state court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted, had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power."

If the question were before the court for the first time, we might hesitate to pass upon it, especially in the form here introduced. The points presented have seldom arisen in this country; but there is respectable authority to the effect that they are political, and therefore not subject to review by the courts, and, notwithstanding the views to follow, we deem it not inappropriate at this time, before proceeding with a discussion of the merits, to call attention to the opinions of some other courts relative thereto.

In the case of Brittle v. People, 2 Neb. 198, the right of a colored man to sit upon a jury was questioned, the outcome of which depended upon whether or not the Constitution of Nebraska was in force, in considering which Mr. Justice Crounse, at page 214 of 2 Neb., speaking for the court, after discussing the principles thereby involved, said: "This, then, is the legitimate conclusion, fairly stated as I believe, that must or may follow from any attempt on our part to treat as judicial those questions which are solely political. We are not only able to destroy an entire state government, but, at the same time, present the singular spectacle of a court sitting as a court to declare that we are not a court."

In the case of Luther v. Borden, 7 How. 1, 12 L. Ed. 581, a similar question was raised. In that case the people of the state of Rhode Island had become dissatisfied with their government. Rhode Island, when it entered the Union, did not adopt a Constitution, but continued its government under a charter received from Charles II. Its Legislature, under the charter government, delayed, or refused to authorize by law, the calling of a constitutional convention to adopt a new Constitution. A number of its citizens, claiming to be a majority, assembled, and, holding a constitutional convention, and subsequently, an election under the Constitution there adopted, elected executive, legislative, and judicial officers, and pretended to go into operation as a fullfledged government. The existing government resisted this as an insurrection and declared martial law, arresting the movers thereof and imprisoning them. In a case involving the authority of the charter government to make these arrests, it was contended that the new government was at the time the legitimate government, and that the charter government had been superseded. Afterwards the charter government called a constitutional convention, adopted a Constitution, and instituted courts thereunder. Before one of these courts, so instituted by the charter government, the contention was made that the very government from which it held its commission was not the legitimate government at the time of the acts referred to. If such a contention could be made in that court, necessarily the effect of the decision would have been to invalidate the authority of the government, and, accordingly, the court trying the cause. Con- in effect creates a circuit court in each councerning that question the Supreme Court of the United States, at page 40 of the opinion in 7 How. (12 L. Ed. 581), say: "Indeed, we do not see how the question could be

In Re Ah Lee (D. C.) 5 Fed. 899, 908, the court had under consideration some of the provisions of the Constitution here involved. It was a habeas corpus proceeding, and there argued that the circuit as well as supreme judges were not de facto officers. The contention was stated (and the same point is urged here) by the court as follows: "That a person cannot be considered an officer de facto unless the office he is said to be in legally exists, and, there being no such office as circuit judge or judge of the circuit court established by the Constitution, the person who acted as judge on the trial of the petitioner in the court below was not even a de facto judge." It will be remembered that the original Constitution did not create the office of circuit judge as such, but the Supreme and circuit courts were created, which were to be filled by the justices as there designated. The court answered the question, stated in the above language, as follows: "As to the third point, it is sufficient to say that the Constitution

ty to be held by a justice of the Supreme Court or a circuit judge, as the case may be, and such court is the office of the judge who holds it. A circuit judge's office is the cir