it, said, in effect, it would so consider the that act, imposing as it did a duty to block special message.

all switches, frogs, etc., not only upon railThe Governor thus called attention to sec-way companies, but upon all kinds of corpotion 14 of article 12 of the Constitution of rations "or other persons" owning any part 1875. This section was:

of a railroad, would reach the case of every "Railways heretofore constructed, or that private citizen owning a small track for his may hereafter be constructed in this state, own convenience, as well as the great railare hereby declared public highways, and road lines of Missouri; that the effect of the railroad companies common carriers. The second section would be to introduce a radiGeneral Assembly shall pass laws to correct cal innovation in procedure by the attempted abuses and prevent unjust discrimination elimination of contributory negligence as a and extortion in the rates of freight and pas- defense by the way of penalty for the violasenger tariffs on the different railroads in tion of the act in cases to which it might apthis state, and shall from time to time pass ply. The court said: "It has no fair relelaws establishing reasonable maximum rates vancy that we can discover to the subject of of charges for the transportation of passen- freight or passenger tariffs, or to abuses of gers and freight on said railroads, and en- corporate power by railways in the respects force all such laws by adequate penalties." alluded to in section 14, art. 12, of the Con

Thus treating the biennial message as a stitution. We conclude that the act does not part of the special message, the Governor fall within the range of the subjects subsaid: "I call your particular attention to the mitted to the Assembly for action by the following sections of article 12 of our state Governor in his proclamation and messages." Constitution : • Section 14, which It was therefore held void. declares railways to be public highways, and The provisions of the Constitution of Misthe companies operating them common car- souri concerning the limitation upon legisriers; it also directs the General Assembly lation passed under special call of the Govto pass laws to correct abuses, and to pre- ernor are as follows: "On extraordinary ocvent unjust discrimination and extortion, casions he may convene the General Asand to fix maximum rates of charges, and sembly by proclamation, wherein he shall enforce all such laws by adequate penalties.” state specifically each matter concerning

The Legislature passed under this call the which the action of that body is deemed act of June 16, 1887 (Acts (Extra Sess.] 1887, necessary.” Const. 1875, art. 5, $ 9. It was p. 14), “to provide for the prevention of ac- further declared by section 55 of the fourth cidents to railroad employés and others, by article of the same instrument that "the Genrequiring the switches, frogs and guard rails eral Assembly shall have no power, when to be properly blocked.” By its first sec- convened in extra session by the Governor tion it was declared that “all companies or to act upon subjects other than those specialcorporations, lessees or other persons own- ly designated in the proclamation by which ing or operating any railroad or part of a the session is called, or recommended by sperailroad in this state, are hereby required, cial message to its consideration by the Govon or before the first day of November, 1887, ernor, after it shall have been convened." to adopt and put in use the best known ap Jones v. Theall, 3 Nev. 233. The question pliances or inventions to fill or block all in this case was not whether a specific act switches, frogs and guard rails on their roads fell within the Governor's call, since it was in all yards, divisional and terminal sta- not mentioned therein, or in his special mes. tions, and where trains are made up to pre-sage to the Legislature after it had convenvent, as far as possible, the feet of employés ed, but whether under certain peculiar provior other persons from being caught therein.” sions of the Constitution of that state it was The second and last section declared in sub- automatically before that body as a part of stance that, in suits for damages growing the legislation to be considered under the out of noncompliance with the first section, special call. It appears that, when a certain the contributory negligence of the injured time has elapsed after the bill has been reparty would not relieve the defendant from ceived by the Governor, and the Legislature liability.

adjourns while it is in his hands, he may The Supreme Court of Missouri held that state his objections in writing after the adthe act did not fall within the scope of sec- journment, and file the bill with his obtion 14 of article 12 of the Constitution, jections in the office of the secretary of state, which was the special subject they were whose duty it then becomes to lay this bill called to pass a law or laws upon. The court with the objections "before the Legislature said that the words "to correct abuses” as at its next session in like manner as if it employed in section 14 referred to abuses had been returned by the Governor, and it having some relation to the freight or pas- the same shall receive the vote of two-thirds senger tariffs of railroads as public highways of the members elected to each branch of the and common carriers; that no reasonable Legislature upon a vote taken by yeas and interpretation of the language of section 14 nays to be entered upon the journals of each would suggest any constitutional command house, it shall become a law. The court said: for legislation of the kind appearing in the "To the special session of the Legislature act of June 16, 1887, above mentioned; that convened by the proclamation of the Gov.

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ernor a few days after the adjournment of , in the opinion that it is the purpose of the the general session, the secretary of state Constitution to forbid consideration of any returned this bill, which was taken up and but such business as the Governor may deem passed by a two-thirds' vote, and thus, it necessary to be transacted at such sessions ; is claimed, became a law. Upon these facts, but a reconsideration of all bills vetoed and it is urged on behalf of the defendant that filed by the Governor in the office of the secthe Legislature, at its special session, had retary of state after the adjournment of the po power to act on the bill, it not having been general session is not necessa rily business of called to its attention by the Governor, and such urgent importance as to make a special therefore that it never became a law.

session necessary, or such as to justify the "Such is also our opinion, and we think it attention of the Legislature if so convened. most clearly sustained both by the letter and Such bills might possibly be of the most trivspirit of the Constitution. Whilst the scope ial character. At least, if it were deemed within which the Legislature may act during important to have them reconsidered, it is the its general session is almost unlimited, it province of the executive to ask legislative is restricted at its special session to the con- action upon them.

What is meant sideration of such business as may be special by the words 'such other legislative business ly called to its attention. Section 9, art. 5, as the Governor may call to the attention of of the Constitution prescribes the limits of the Legislature while in session'? Clearly its power at such session in the following such business as the Governor may deem it language: “The Governor may on extraor- necessary for the Legislature to transact, and dinary occasions convene the Legislature upon which he may solicit action—the busiby proclamation, and shall state to both ness for which the special session is convenhouses, when organized, the . purpose for ed, or such other business as may be called which they have been convened, and the Leg- to the attention of that body by some mes. islature shall transact no legislative business sage coming from the Governor during the except that for which they were especially session, and upon which he may ask legislaconvened, or such other legislative business tive action. Many subjects may incidentally as the Governor may call to the attention of be referred to in the executive messages upthe Legislature while in session.'

on which no action whatever is required; "There is certainly no ambiguity in this but it will hardly be claimed that such inlanguage, and, unless we adopt the saying of cidental reference would authorize legislation Talleyrand—that words are given to con- upon all such subjects at a special session. ceal ideas there can be no difficulty in ascer- The evident object, it seems to us, is to retaining the object sought to be accomplished strict legislation at such session to those subby this section of the Constitution. The pow- jects which the Governor may deem it necesers of the Legislature at its special sessions sary to legislate upon. If such be not the are expressly and clearly limited to the trans- object, why was any restriction whatever action of the business for which it may be placed upon the Legislature at its special convened, or such other business as the ex- sessions, or any control over its power given ecutive may call to its attention while it is in to the executive? If we are correct in the session. If the Legislature can break construction which we place upon section 9, through this limit for one purpose, it may for above referred to, it cannot be said that the all purposes, and enter upon general legisla- Governor's objections to a bill filed with the tion.

If it may take up a vetoed bill to secretary of state before the convention of which its attention is not directed by the the special session is such a calling of atGovernor, it may frame and pass an entirely tention to the bill as to justify its connew bill upon a subject not referred to in sideration at such session. We are satisfied any executive message. It is either strictly that the Legislature, at a special session, limited to such special subjects as may be can only legislate upon such subjects as are called to its attention or it is not limited at specially called to its attention by the Gov. all. There is no mean between these ex- ernor, with a view to secure legislative actremes which can be adopted without a clear tion thereon." departure from the letter of the Constitution. We shall now proceed to state the subLet it be borne in mind that it is only upon stance of our own case of Mitchell v. Turnextraordinary occasions that a special ses- pike Company. sion is authorized to be called; such being In 1836, as stated in the opinion, at a the same, it is fair to presume that it was the called session of the Legislature (chapter 4, intention to allow none but urgent business, $ 2) it was provided that the commissioners and such as would admit of no delay, to be of any railroad, or turnpike company, might transacted at such a session. That ordinary make a survey, or resurvey, as far as to legislative business should not be transacted locate routes or make such changes as they at a session which can properly be convened might deem to the interest of said compaonly upon some extraordinary occasion, or nies. By authority of this provision the comwhen some great emergency makes it neces- missioners relocated the Franklin & Columsary, is so manifestly proper, and the transac- bia Turnpike Company's road so as to make it tion of such business would seem to be so run over Mitchell's farm. Damages were asmanifestly improper, that we are confirmed /sessed to him in the manner customary at

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that time; but, desiring to escape the burden He adds, with regard to the acts of Conof the road altogether, he attacked the act gress,

that 'its happy influence in providing for the relocation on the ground stimulating us to increased and vigorous that it was unconstitutional. We now quote exertions in the prosecution of our system of from the opinion what is said upon the sub- education and internal improvement must be ject:

extensively beneficial to the whole com“The alleged unconstitutionality of this munity.' At that time by the pre-existing provision is not supposed to arise from the laws the state was interested to the extent character of the provision itself, or the na- of one-third in all the turnpike companies, ture of the subject, for the Constitution, art. and we cannot say that the resurvey or 11, $ 9, declares that a 'well-regulated system change in the location of the routes of such of internal improvement is calculated to de public improvements would not constitute a velop the resources of the state, and promote step, and a very material step, to the judithe happiness and prosperity of her citizens, cious investment of the fund alluded to. therefore it ought to be encouraged by the “We cannot say, in view of the message, General Assembly.' But it is supposed to that it was not competent for the Legislature arise from the limited powers of the Legisla- 'to enter upon the business' thus submitted ture at a called session; their commission to their consideration, or that the provision at such time to legislate, so to speak, depend- in question is so remotely connected with ing upon the scope and extent of the Govern- that matter or business' as not properly to or's message, to be laid before them. Arti- spring out of the general subject. cle 3, § 9, of the Constitution provides that "The Governor or executive, with us, is in the Governor 'may, on extraordinary occa- no degree, or in any sense, a part of the Legissions, convene the General Assembly by proclature, and has not even at a called session lamation, and shall state to them when as the initiation of bills. At such session, when sembled the purposes for which they shall he submits a general subject, and the Legishave been convened, but they shall enter on lature 'enter upon the business' of legislating no legislative business, except that for which upon it, it will be found a difficult and inthey were especially called together.' This vidious task to secure the character and deundoubtedly is a very salutary provision, tails of their provisions so as to determine tending somewhat to check overlegislation, them of too remote affinity with the message and to render laws a little more stable, by from which they arise. In this case it is furnishing a period of two years during not necessary.” which they may be in some degree subjected [1-3] We have thus set out the cases very to the test of a brief experiment. And cases fully, with a view to more conveniently exmay sometimes arise, it is to be sincerely amining and comparing them, and deducing hoped but seldom, in which it may become conclusions from them. The illustrative the duty of the court to declare a law passed facts in each enable us better to apply the under such circumstances beyond the scope principles announced. of the legislative commission arising out of Comparing these cases we see no substanthis provision of the Constitution. Our pres- tial difference in the constitutional limitaent inquiry is whether this be one of such tions upon legislative power. They all procases. The message of Newton Cannon, Gov- vide that the Governor may confine the Legisernor of the state at the time in question, lature, called in special session, to such subcalls the attention of the Legislature to the jects of legislation as he may prescribe, survey of a route through the state for the which limitations he may make operative, in contemplated Louisville, Cincinnati & Charles- some by his proclamation alone, in others by ton Railroad, to the omission of a county a special message or messages after the body in a late electoral law, to the disputed bound is convened, in others still by both means. ary with the state of Mississippi, to the all the cases agree that, while the Governor treaty with the Cherokee Nation, to compen- may so limit the subjects of legislation, he sation of volunteer militia called into service cannot dictate to the Legislature the special under the requisition of the President of the legislation which they shall enact on those United States, and finally to the act of subjects. In all of them the inquiry is finalCongress entitled 'An act to regulate the dely reduced to the ascertainment of the subposits of the public money,' a copy of which ject or subjects embraced in the call, or mes. was transmitted to them, and with respect to sage, determined by an analysis and conwhich the Governor remarked that it pre- struction of that paper as in the case of any sented another subject demanding legislative other written instrument, and by a like analy. action during that session, and he adds that sis and construction of the legislation drawn the reception and judicious investment of in question for the purpose of deciding whethsuch sum or sums of money as may from er it is embraced within the call, or message. time to time be appropriated to our state It is agreed, so far as any of the cases speak under the provisions of the said act must be on the matter, and this view is undoubtedly regarded by all as a matter of paramount sound, that the presumption is always in importance, and that he had the fullest con- favor of the constitutionality of an act, and fidence that they would devote to it the most that any piece of legislation so under conmature consideration.'

sideration should be held within the call, if


it can be done by any reasonable construc- famount, or impose any terms as to the methtion. To these principles we agree, and we od or means of such maintenance. This now proceed to examine Governor Hooper's would be a matter for the Legislature only. call to ascertain the subjects of legislation | But this last observation must be restricted thereby proposed. For convenience we re- to the relations between the Governor and produce so much of it at this point as we the lawmaking body. The officers of the think necessary to facilitate the construc- state upon whom is imposed the duty of distion.

bursing the funds of the state have the right The Legislature, then,

called “toto have submitted to the courts the question make such appropriations of the public mon- whether the appropriation has been constieys as may be deemed necessary and prop-tutionally made. The courts in determining er to maintain the state's institutions, offices, this question will inquire whether the legisand departments."

lative act passed at a special session was [4] The general subject or purpose was "to within the Governor's call. But in the efmake appropriations

to maintain fort to reach a conclusion on this subject the state's institutions, offices, and depart- the courts will, as already said, give a libments.” It was not to make appropriations eral construction with a view to upholding in general to promote the welfare of the the act if it can be reasonably done. They state, but to make appropriations limited to will adopt a construction, even though not the maintenance of the state's institutions, the most obvious, if that construction is still offices, and departments; the power to make a reasonable one, and will sustain the legissuch appropriations being reposed in the lation. The same observation is true of the Legislature, and the duty imposed on them Governor's cáll as one of the necessary conby the same instrument. The call, then, was ditions of the legislation. to the discharge of a duty of the Legislature Now, in this view, what meaning should imposed by the Constitution, if not in terms, be ascribed to the word "maintain"? The still by necessary implication. Within the most obvious is, of course, direct support. liinits of this subject or purpose mentioned Another meaning somewhat more remote is the Legislature had power to enact any laws to aid. This may be given, and is best givthey might deem proper, any laws which en, usually, by direct appropriation. But it would be germane to such maintenance, or may also be given, as the writer thinks, by which would have a reasonably direct bear- holding up the hands of those who are doing thereon, and the Governor could not in ing the same work, that is, work which the any manner confine that power. But the special department of the state government Governor has power, under the Constitution, was created to do. It is in this view, he to limit the subjects which they may con- thinks, that the Constitution authorizes the sider, and in order to do this he may de Legislature to exempt certain charitable infine the subject so as to make it broad or stitutions from taxation, which exemption is narrow, according to his conception of his an indirect largesse. These institutions do public duty. He cannot, under the guise of work in helping the indigent and unfortunate a definition, impose his will upon the Legis- people of the state, which relieves the state lature as to the laws they shall pass, as it of the direct burden. So, according to the seems was attempted in the Colorado cases. description given of the complainant's work, But, we repeat, he can by bona fide defini- it was most largely and efficiently assisting tion limit the subject to be legislated on so in the work for which the agricultural deas to make that subject either broad or partment was designed. It was not inap

This narrowing by definition is ac- propriate, therefore, as the writer believes, complished, as in all other matters under that the state should endeavor to help forthe dominion of the laws of thought and the ward the work of that department by maklaws of expression in human language, by ing the appropriation in behalf of so able a the imposition of qualifying matter upon a coadjutor. By placing the appropriation ungeneral subject. Just as the general sub- der the head of the agricultural department, ject "animal” may by the addition of qual- | the Legislature showed, as it seems to the ifying limitations be reduced to the concept writer, that it understood it was thereby man, and this down further to some special assisting and, albeit indirectly, maintaining race, or class, or group of men. Each one that department. It goes without saying of these would in its turn be truly a sub- that such an appropriation was for a public ject of thought, and concerning which prop- purpose, and that money could not be apositions might be affirmed, or laws enacted. propriated for any other purpose. And there So here it was within the power of the is no doubt such an appropriation, as the Governor by definition, or the imposition or writer understands, might have been made addition of qualifying matter, to reduce the by a bill at any general session, since it was general subject of appropriations down to, for such public purpose. This special phase or restrict them to, those for the mainte- of the question was settled in the case of nance of the institutions, offices, aud depart. Shelby County V. Exposition Co., 96 Tenn. ments of the state for the ensuing two years 660, 36 S. W. 694, 33 L. R. A. 717. from March 19, 1913. He could not fix the The majority of the court, however, while


1. Homicide ($ 308*) – Issues – Second De- 07.

thoroughly approving the principles announc Appeal from Criminal Court, Knox Couned, are of the opinion that the writer has ty; T. A. R. Nelson, Judge. given to them an application which they do Preston Jones was convicted of first degree not support. The majority are of the opin. murder, and appeals. Reversed and remandion that the word "maintain" as used in the ed. Governor's call meant, if not direct maintenance by an appropriation to the agricul. Mynatt, all of Knoxville, for appellant. W.

J. A. Atchley, E. F. Walsh, and Gordon tural department to be received and used by W. Faw, Asst. Atty. Gen., and W. T. Lennerit, at least one under its own direction and control, and that it was not susceptible of ly, City Atty., of Knoxville, for the State. any other or additional meaning, and that its intent could not find true expression in

NEIL, C. J. The plaintiff in error was inan appropriation to a separate institution dicted and convicted in the criminal court of or corporation to be expended by such sep. Knox county for the murder of Samuel C. arate institution or corporation, although Hickey on the morning of June 1, 1913. He such separate organization might be en

was sentenced to death and has appealed to gaged in whole or in part in doing work for this court. Numerous errors are assigned by which the department was organized. The his counsel, but we need consider only one. majority believe that the call was to ap

[1] The assignment referred to is in subpropriate money to the support of the de- stance that the trial judge charged the jury partment itself, and not in any sense to aid only on the subject of murder in the first desome other in doing work of the same kind. gree, and self-defense, and matters relating

It results that the decree of the chan. thereto, and failed to instruct them on the cellor must be reversed, and the bill dis- crime of murder in the second degree. This missed, at relator's costs.

was reversible error. The sections of our

Code bearing on the subject are as follows: NEIL, C. J., dissenting.


"6438. If any person of sound memory and discretion, unlawfully kill any reasonable

creature in being, and under the peace of the JONES V. STATE.

state, with malice aforethought, either ex(Supreme Court of Tennessee. Nov. 29, 1913.) press or implied, such person shall be guilty

of murder. GREE MURDER.

"6439. Every murder perpetrated by means In view of Shannon's Code, $ 6441, requir- of poison, lying in wait, or by an other kind ing the jury to ascertain in their verdict wheth- of willful, deliberate, malicious, and premeder the offense is murder in the first or second itated killing, or committed in the perpetradegree, it was error, on trial of an indictment tion of, or attempt to perpetrate, any arson, for murder, for the court not to instruct on second degree murder.

rape, robbery, burglary, or larceny, is murder [Ed. Note.--For other cases, see Homicide, in the first degree. Cent. Dig. 88 642–647; Dec. Dig. $ 308.*] "6440. All other kinds of murder shall be 2. HOMICIDE (8 307*) — INSTRUCTIONS - DE- deemed murder in the second degree. GREES OF CRIME. It is the better practice to charge upon is tried, shall ascertain in their verdict

"6441. The jury before whom the offender all of the offenses embraced in the indictment, since failure to do so will be reversible if there whether it is murder in the first or second is any doubt that accused was prejudiced by degree; and if the accused confess his guilt, such omission. [Ed. Note. For other cases, see ttomicide,

the court shall proceed to determine the deCent. Dig. 88 638-641; Dec. Dig. $ 307.*]

gree of crime by the verdict of a jury, up3. HOMICIDE (8 340*) — APPEAL – HARMLESS

on the examination of testimony, and give ERROR-FAILURE TO INSTRUCT.

sentence accordingly." Failure to instruct on second degree murder Manifestly it was impossible for the jury so the the jury ould ascertain in its verdict to perform the duty imposed upon them in whether the offense was first or second degree murder, pursuant to Shannon's Code. $ 6441, the section last quoted, when the trial court was reversible error, notwithstanding Pub. Acts failed to submit to them the question wheth1911, c. 32, providing that no judgment shall er the prisoner's crime fell within the debe set aside for error in the charge, etc., un- scription of murder in the second degree. less it affirmatively appears that it affected the result.

His failure to charge upon this subject was [Ed. Note.-For other cases, see Homicide, equivalent to a specific instruction that plainCent. Dig. 88 715-717, 720; Dec. Dig. $ 340.*] | tiff in error was guilty of murder in the first 4. CRIMINAL LAW (8 1178*)-APPEAL-WAIV- | degree, or entitled to an acquittal under his ER OF ERROR.

plea of self-defense. He thus withdrew from The fact that counsel both for the state the jury a question which the Code specifiand for accused took the position that he was guilty of first degree murder or entitled to cally required should be submitted to them. acquittal on the ground of self-defense would not | The difference was vital, since the punishoperate as a waiver of accused's right to have ment for murder in the first degree is death, the question of second degree murder submitted. while that for murder in the second degree [Ed. Note.-For other cases,

see Criminal Law, Cent. Dig. $8 3011-3013; Dec. Dig. gis imprisonment in the penitentiary from 10 1178.*]

to 20 years. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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