"When a passenger is called upon to choose between two evils to which the neglect of the company has exposed him, one of which presents some degree of danger, but not such as he may not without imprudence encounter, if by adopting that alternative he suffers any injury, it is the proper subject for an action against the company." KELLY, C. B., in Siner v. Great Western Ry. Co. L. R. 3 Exch. 150.

It is impossible to hold that the facts disclosed by the plaintiff's witnesses bring his case within the rules announced. On the contrary, we think it affirmatively appears from his own evidence that the want of due prudence upon his part was the proximate cause of the injury complained of. The motion for nonsuit, therefore, should have been sustained. Behrens v. Kansas Pac. Ry. Co. 5 Colo. 400. When the testimony on the part of the defendant is considered, the circumstances are still more unfavorable to the cause of the plaintiff. The train-men all concur that the swinging of the lantern was not seen at all, and that no stop signal was sounded, such a signal being two short blasts of the steam-whistle. They further state that Divide, up to that time, was used as a flag station, and not as a regular passenger station. The conclusion upon the whole case is inevitable that the plaintiff, knowing the danger of his position, failed to exercise ordinary prudence, and for that reason is not entitled to recover. Even if recovery could be sustained, the damages awarded are manifestly excessive, and the judgment would have to be reversed for that reason alone. As to the instructions, it is only necessary to say that in so far as they are inconsistent with the views above announced they are held to be erroneous.

Judgment reversed.

(8 Colo. 175)

HUFFSMITH V. PEOPLE.

Filed February 20, 1885.

TIPPLING-HOUSES-KEEPING OPEN ON SUNDAY-ACT OF FEBRUARY 13, 1883, REPEALS GENERAL LAW BY IMPLICATION.

The grant of exclusive power and authority to one jurisdiction to restrain, regulate, or prohibit a business as to any day in the week, is irreconcilable with the existence of a concurrent power to prohibit the exercise of the same vocation upon a single day of the week.

Error to criminal court of Arapahoe county.

Lucius P, Marsh, for plaintiff in error.

D. F. Urmy, Atty. Gen., for defendants in error.

BECK, C.J. The defendant Huffsmith was indicted for keeping open a tippling-house on the Sabbath day, within the county of Arapahoe, contrary to the provisions of the state statute, which provides, among other things, that "if any person * shall keep open any tip

*

pling or gaming house on the Sabbath day or night, every such person shall, on conviction, be fined not exceeding $100, or imprisoned in the county jail not exceeding six months. 331, § 151.

Gen. St. p.

The defense relied upon was that the alleged offense was committed within the corporate limits of the city of Denver, in said Arapahoe county, and that the legislature, by an act approved February 13, 1883, entitled "An act to reduce the law incorporating the city of Denver, and the several acts amendatory thereof, into one act, and to revise and amend the same," had vested in said city exclusive jurisdiction over the whole subject pertaining to the supposed offense, for which reason the defendant was not liable to indictment and punishment under the state statute. Defendant offered to prove that, in pursuance of the power granted, the city had assumed jurisdiction over the entire subject by the adoption of an ordinance embracing the same, and that he had complied with the provisions thereof, which proof was rejected upon the trial, and the defendant convicted under said indictment. Exceptions were duly reserved to the ruling and judgment of the court, and the same are assigned for error.

It will only be necessary to consider the question of jurisdiction, as that question, in our judgment, is decisive of the case. Section 17 of the amended charter of the city of Denver confers power over a variety of subjects upon the city council, to be exercised "by ordinance not repugnant to the constitution of the United States or the constitution of the state of Colorado." Clause 15 of this section is as follows:

"The city council shall have exclusive power within the city to license, tax, restrain, prohibit, and suppress tippling-houses, dram-shops, and the selling or giving away of any intoxicating or malt liquors, by any person within the city, except by persons duly licensed."

This act authorized the city council to make such regulations concerning tippling-houses within the city limits, and to impose such re

straints upon the keepers thereof, as it might deem expedient for the public peace and welfare, provided the same were not repugnant to the constitution of the United States or the constitution of the state of Colorado.

Defendant offered in evidence an ordinance of the city passed in pursuance of the powers granted, and which was in force at the time. of the commission of the alleged offenses, which provides that licenses shall be given to persons to transact business of various kinds, including the vending of spirituous, vinous, and malt liquors. Fees for licenses are prescribed, and penalties provided for violations of the ordinance. He also offered in evidence a license granted to him under the provisions of said ordinance. Section 11 of this ordinance provides as follows:

"That hereafter it shall be unlawful to keep open any place where spirituons, vinous, malt, or intoxicating liquors are sold or given away under a city license, or to sell or give away, either in person or by agent or servant, any such spirituous, vinous, intoxicating, or malt liquors, between the hours of 12 o'clock midnight and 5 o'clock A. M. of the day following."

This proof, if admitted, would have shown that the city had accepted and exercised the powers granted by the statute. By the ordinance referred to, it had restrained and prohibited the defendant and others from keeping open their tippling-houses during a portion of every day in the week. That the restriction as to keeping open on the Sabbath was not as broad as that contained in the general law, was not owing to any lack of power in the city. The city council might have imposed, or may yet impose, precisely the same restriction enjoined by the general statute, and prohibit the keeping open of tippling-houses on the Sabbath day. If, then, the city government has power to adopt and enforce such an ordinance, and if a prosecution may also be sustained under the general law, the consequence is that the same person may be subjected to two distinct prosecutions and to be twice punished for the same offense, which is contrary to the fundamental principles of justice. There are instances where the same act is held to be an offense against the laws of separate jurisdictions, and punishable by both, as, for example, against the laws of the United States, and also against the laws of a state; and according to the authorities, the same act may, under certain circumstances, constitute a penal offense under the laws of a state, and under the by-laws of a municipality as well. But in such cases the one act is held to constitute two distinct offenses, neither of which is included in the other. That, however, cannot be said where one of the jurisdictions is exclusive as to the whole subject-matter of the offense.

In the present case it seems impossible that a concurrent jurisdiction to restrain tippling-houses can exist in the state, and in the city as well. The same statute which confers upon the city exclusive control over such houses divests the state of its control over them. Hetzer v. People, 4 Colo. 45.

As suggested in argument, it does not appear that any question of public morals or sanctity of the Sabbath day is directly involved in this case; for the general statute under which this conviction was secured does not forbid the exercise of any other avocation or business on that day. It cannot, therefore, be said that this prosecution proceeds upon a different hypothesis from a like prosecution under an ordinance of the city upon the same subject.

From the foregoing considerations it follows that the amended charter of the city of Denver, and the ordinances passed thereunder, afford to the defendant a protection against this prosecution. The grant of exclusive power and authority to one jurisdiction to restrain, regulate, or prohibit a business as to every day in the week, is irreconcilable with the existence of a concurrent power to prohibit the exercise of the same vocation upon a single day in the week. To this extent the act approved February 13, 1883, repealed the general law, by necessary implication. Bennett v. People, 30 Ill. 389; Seibold v. People, 86 Ill. 33; State v. Clarke, 54 Mo. 17; State v. De Bar, 58 Mo. 395.

The judgment is reversed.

(12 Or. 49)

SUPREME COURT OF OREGON.

BENNETT v. NORTHERN PAC. EXP. Co.
Filed February 25, 1885.

1. EXPRESS COMPANY-PACKAGE-CHANGE IN ADDRESS-MODIFICATION OF CONTRACT-QUESTION FOR JURY.

In an action arising out of the intrusting of money to an express company for transportation, which money was afterwards lost or stolen, the question as to whether a change in the address on the package,-"Northern Pacific Express Company, Ainsworth, W. T.,"-so as to make the word "agent" appear before the word Northern," arose from a modification of the contract, is for the jury to consider, from all the attending circumstances.

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2. SAME-CONSIGNEE-CARRIER.

An express company cannot bear the character of both carrier and consignee. 3. SAME-LIABILITY-DELIVERY-TENDER.

An express company is not relieved from its liability as carrier until it has made a personal delivery or tender of the article conveyed to the consignee in case he can be found.

4. SAME

COMPANY AS CONSIGNEE-REAL CONSIGNEE-RIGHTS.

In case a package intrusted to an express company for transportation should bear the address of such company as consignee, the name of the real consignee appearing (and being recognized as such by the company) also on the package, such real consignee has his remedy for a restitution in case of a failure of delivery.

5. SAME-EXPRESS RECEIPT-CONDITION-WAIVER.

A condition in an express receipt requiring the presentation of such receipt by the consignee, in order to have the goods delivered to him, is waived by the company's failure to exact a compliance therewith when the demand is made. 6. PRACTICE-NONSUIT-TESTIMONY BY DEFENDANT.

A defendant cannot move for a nonsuit, on the ground of insufficient proof of the plaintiff's case, after introducing testimony in his own behalf. 7. EVIDENCE-ADVERTISEMENT.

It is proper to admit in evidence, as tending to show an acknowledged liability on the part of an express company for goods lost or stolen, a circular, signed by the superintendent of such company, offering a reward for the return of the goods and the conviction of the thief.

Appeal from Multnomah county.

Williams, Durham & Thompson, for respondent.

James McNaught and Rufus Mallon, for appellant.

THAYER, J. This appeal is from a judgment of the circuit court for the county of Multnomah, recovered in an action in said court in favor of the respondent and against the appellant. It is alleged in the complaint in said action that the appellant was a corporation, organized by the laws of the state of Minnesota, having agents at the city of Portland, in the state of Oregon, and at the town of Ainsworth, Washington Territory, and at other points in said state and territory; that on and prior to the twenty-eighth day of January, 1884, said appellant was a common carrier for hire engaged in the express business between said city of Portland and said town of Ainsworth, and other points in said state and territory; that on said twenty-eighth day of January, 1884, Ladd & Tilton, bankers in said city of Portland, delivered to appellant, as such common carrier, a package properly se