(- Mo, – -,210 8. W. 874.) by law, or in fact necessary to be railroad, at the crossing of a highmade by the corporation injured, in way, by means of the abutments of order to accommodate its own land the new railroad of the other corto the new condition. But it is not poration.” entitled to damages for the inter- We are of the opinion that the ruption and inconvenience occa- expense of installing and the cost of sioned to its business; nor for the maintaining the electric bell menincreased liability to damages from tioned clearly fall within the rule accidents; nor for increased ex- just announced, and, for that reapense for ringing the bell; nor for son, the action of the court in rethe risk of being ordered by the fusing the instructions asked by the county commissioners, when in their

defendant were properly refused, judgment the safety and conven

and that those asked for by plainience of the public may require it, tiff were properly given. to provide additional safeguards for

This ruling applies to and distravelers crossing the crossing the railroad;

poses of all the other questions in

the case. nor for the expense of maintaining a flagman, alleged to be necessary

For the reasons stated, the judg

ment of the Circuit Court is af. to guard against the greater liability to accidents occasioned by the

firmed. obstruction of the view along its All concur.

ANNOTATION.

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 Ill. 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 persons and property. .. "The state, in the exercise of its police power, may require

the stationing of a flagman at highway crossing.

i Pierce, Railroads, 462.” In Chicago, B. & Q. R. Co. v. Chicago (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 people were involved in the operation of the railroad. The company laid its tracks subject to the condition, necessarily implied, that their use could be

.

а

so regulated by competent authority clearing of the approaches to render as to insure the public safety. And crossing signs visible, the mainteas all property, whether owned by pri- nance of flagmen, building of flagvate persons or by corporations, is men's stations, ringing of engine bells, held subject to the authority of the planking of tracks, and other things state to regulate its use in such man- that might be mentioned, ordinarily ner as not to unnecessarily endanger required at railway crossings, espethe lives and the personal safety of cially in populous communities, are all the people, it is not a condition of the matters pertaining to their safety for exercise of that authority that the persons and property.” state shall indemnify the owners of In holding that a railroad company property for the damage or injury re- was not entitled to compensation for sulting from its exercise. Property constructing, maintaining, or protectthus damaged or injured is not, with- ing new streets opened across the in the meaning of the Constitution, right of way, the court said: “Railtaken for public use, nor is the owner road companies are required by statdeprived of it without due process of ute to erect at some crossings safety law. The requirement that compensa- gates, at others to keep flagmen, at tion be made for private property tak- others to erect sign boards, cattle en for public use imposes no restric- guards, and fences, and yet at others tion upon the inherent power of the to give reasonable warning of the apstate by reasonable regulations to pro- proach of trains by sounding the tect the lives and secure the safety whistle and ringing the bell; and have of the people.

The expenses always been required to maintain that will be incurred by the railroad crossings in suitable repair for public company in erecting gates, planking travel. It is generally considered that the crossing, and maintaining flagmen, these duties, which are exacted in the in order that its road may be safely exercise of the police power, a railoperated—if all that should be re- road company is not entitled to comquired-necessarily result from the pensation for performing. They are maintenance of a public highway, un- imposed as a duty deemed essential der legislative sanction, and must be for the protection of travelers upon deemed to have been taken by the com- other highways that have been set pany into account when it accepted apart for public use, and exacted as a the privileges and franchises granted part of the consideration required for by the state. Such expenses must be the right to exercise the power of emregarded as incidental to the exercise inent domain and the other franchises of the police powers of the state. and privileges enjoyed.” Louisville What was obtained, and all that was & N. R. Co. v. Louisville (1908) 131 obtained, by the condemnation pro- Ky. 108, 24 L.R.A.(N.S.) 1213, 114 S. ceedings for the public was the right W. 743, supra. to open a street across land within the In Southern Kansas R. Co. v. crossing that was used, and was al- Oklahoma City (1902) 12 Okla. 82, ways likely to be used, for railroad 69 Pac. 1050, it was held that a tracks. While the city was bound to railway company is not entitled to make compensation for that which was compensation for the expense actually taken, it cannot be required maintenance of gates and flagmen, to compensate the defendant for obey- where it is provided by statute that ing lawful regulations enacted for the railway companies shall construct and safety of the lives and property of the continually maintain the crossing people.”

where any road or highway now is, or In Chicago, M. & W. P. R. Co. v. Mil- may be hereafter, laid out by proper waukee (1897) 97 Wis. 418, 72 N. W. authority. 1118, supra, the court said: “Crossing But a railway company must be signs, warning posts, cattle guards, awarded compensation for the conwing fences connecting cattle guards struction and maintenance of safety with side fences, crossing gates, the gates and gate houses where, by stat

or

ute, all expense incident to the con- road company is entitled to compensastruction and maintenance of a cross- tion therefor. Parks & Boulevards v. ing is imposed upon the municipality; Chicago, D. & C. G. T. Junction R. Co. it is not, however, entitled, under such (1892) 91 Mich. 291, 51 N. W. 934; statute, to compensation for the ex- Plymouth v. Pere Marquette R. Co. pense incident to operating crossing (1905) 139 Mich. 347, 102 N. W. 947 gates, which is a necessary operation (stating the rule). expense of the railway. Boston & A. Thus, it is error to refuse to permit R. Co. v. Cambridge (1893) 159 Mass. the jury to consider the question of 283, 34 N. E. 382.

allowing compensation for gates. In line with the general rule in re- Parks & Boulevards v. Michigan C. R. spect to flagmen and gates is the de- Co. (1892) 90 Mich. 385, 51 N. W. 447; cision in the reported case (FRANKLIN Parks & Boulevards v. Detroit, G. H. & COUNTY V. MISSOURI P. R. Co. ante, M. R. Co. (1892) 93 Mich. 58, 52 N. W. 133), holding that the expense of in- 1083. stalling and maintaining an electric This doctrine was foreshadowed in bell at the crossing does not consti- Grand Rapids v. Grand Rapids & I. R. tute an element of damage.

Co. (1886) 58 Mich. 641, 26 N. W. 159, In Old Colony & F. River R. Co. v. where the court said: “The damage Plymouth (1859) 14 Gray (Mass.) (

done to a railroad by having a high155, it was held that the railroad com- way run across it must necessarily inpany was not entitled to damages, clude all the additional expense enwhich it claimed, "for increased ex- tailed by such a crossing, which in a pense for ringing the bell as required city may involve a considerable outlay by law," not stating whether the loco- in making the crossing safe, and promotive bell was referred to.

viding guards against accident." In Baltimore v. Cowen (1898) 88

And if the undisputed testimony Md. 447, 71 Am. St. Rep. 433, 41 Atl.

shows that a flagman was necessary, 900, the court was perhaps referring

the jury is not entitled to disregard to locomotive bells where it said:

such testimony. Detroit v. Detroit, G. "Cattle guards, crossing gates, the

H. & M. R. Co. (1897) 112 Mich. 304, maintenance of flagmen, ringing of

70 N. W. 573. bells, and other things ordinarily required at railway crossings, especially

In general, however, compensation in populous communities . .

for flagmen and gates cannot be al

are matters pertaining to the public safe

lowed, where the jury has not found ty, and are within the police power;

them necessary. Grand Rapids v. Benand when the duty to construct them

nett (1895) 106 Mich. 528, 64 N. W. has been imposed on the railway com

585. pany by statute, no compensation for And the company is not entitled to erecting or maintaining them can be compensation for prospective expense recovered."

of constructing and maintaining In Michigan, the general rule does gates, towers, and flagmen, which may not apply, and it is held that if the or may not be incurred. Re First jury are satisfied that gates or flagmen Street (1887) 66 Mich. 42, 33 N. W. are necessary for the public, the rail- 15.

B. B. B.

.

ARNE W. PARUS

v. DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT of the

State of Nevada in and for the County of Elko et al.

Nevada Supreme Court - September 5, 1918.

(- Nev, 174 Pac. 706.)

Grand jury eligibility of women.

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.

factorily appears that he will act im2. That a member of the grand jury partially notwithstanding such opinhad heard a case which came before ion. that body talked about, and had read [See 12 R. C. L. 1022.] a newspaper account of it, did not dis

Indictment - improperly selected jury qualify him under a statute providing effect. that no person shall be disqualified as

3. An indictment will not be set a grand juror for having formed an

aside because the jury was not selectopinion upon a cause to be submitted

ed by the proper body, if there was a to such jury, founded upon public substantial compliance with the staturumor, statements in public journals, tory requirement in this respect. or common notoriety, provided it satis- [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 of the court.

Messrs. James Dysart and Curler & Pac. 406; Bradwell v. Illinois, 16 Wall. Castle, for petitioner:

142, 21 L. ed. 446. The body which brought in the ac- If the proper officers fail to take part cusatory paper on which the court in selecting the persons to be sumwere to proceed to the trial of peti- moned as grand jurors, or if such pertioner was not a legally constituted sons are not selected according to the grand jury, in that it consisted of per- provisions of the statutes, such body sons not qualified to act as grand of persons constitutes an illegal body. jurors.

State v. McNamara, 3 Nev. 70; State People ex rel. Wood v. Draper, 15 N. v. Collyer, 17 Nev. 281, 30 Pac. 891; Y. 552; People v. Lynch, 51 Cal. 15, 21 Burner v. Superior Ct. 92 Cal. 239, 28 Am. Rep. 677; English v. State, 31 Fla. Pac. 341; Viers v. State, 10 Okla. Crim. 340, 12 So. 689; Donald v. State, 31 Rep. 28, 134 Pac. 80; Shepherd v. Fla. 255, 12 So. 695; State v. Barker, State, 89 Miss. 147, 42 So. 544, 10 Ann. 107 N. C. 913, 10 L.R.A. 50, 12 S. E. Cas. 963. 115; Carpenter v. State, 4 How. Messrs. E. P. Carville, Chas. A. (Miss.) 163, 34 Am. Dec. 116; Copp v. Cantwell, and Edwin E. Caine, for reHenniker, 55 N. H. 179, 20 Am. Rep. spondents: 194; State v. Hartley, 22 Nev. 342, 28 The legislature have expressed, by L.R.A. 33, 40 Pac. 72; State v. Mc- their provision for exemption of marClear, 11 Nev. 39; Harland v. Ter- ried women from jury service, their ritory, 3 Wash. Terr. 131, 13 Pac. 453; asset to the service of women People v. Lensen, 34 Cal. App. 336, 167 juries.

on

- Nev. — 174 Pac. 706.) 26 Am. & Eng. Enc. Law, 712; Suth- this class when we adopted the erland, Stat. Constr. § 237; Pomeroy v. grand jury system. Beach, 149 Ind. 511, 49 N. E. 370;

In 1 Chitty's Treatise on Criminal Parks v. State, 159 Ind. 211, 59 L.R.A.

Law, p. 307, we are told that at com190, 64 N. E. 862; Re Locust Ave. 185 V. Y. 115, 77 N. E. 1012; People v.

mon law all persons serving upon Weinstock, 117 App. Div. 168, 102 N.

the grand jury inquest must be Y. Supp. 349; State ex rel. Durr v.

good and lawful men, “by which it Spiegel, 91 Ohio St. 13, 109 N. E. 523; is intended," says the author, "that Stiers v. Mundy, 174 Ind. 651, 92 N. E. they must be liege subjects of the 374; State ex rel. Moose v. Kansas King, and neither aliens, nor perCity & M. R. & Bridge Co. 117 Ark. 606, sons outlawed even in a civil action, 174 S. W. 248.

attainted of any treason or felony, In making the motion to set aside the indictment, petitioner expressly

or convicted of any species of criavers that the twenty-four persons

men falsi, as conspiracy or perjury, were selected, but makes no allegation

which may render them infamous.” of improper selection.

Hence we see that the class of per32 Cyc. 624–626; State ex rel. First sons from whom grand jurors could Nat. Bank v. District Ct. 12 Wyo. 547, be selected at common law was 76 Pac. 680; Baughman v. Superior Ct. those who were liege subjects of the 72 Cal. 572, 14 Pac. 207.

King. By later statutes, the class Mr. George B. Thatcher, Attorney from whom grand jurors might be General, also for respondents.

selected was fixed as those possessMcCarran, Ch. J., delivered the ing certain property or income opinion of the court:

qualifications in addition to their beThis is a proceeding in prohibi- ing liege subjects of the Sovereign. tion. The petitioner was indicted Section 27, art. 4, of our Constituby the grand jury of Elko county, tion provides, inter alia: “Laws eleven members of this body who shall be made to exclude from servparticipated in the finding of the in- ing on juries, all persons not qualidictment being men, the other mem- fied electors of this state.” bers being women. As a primary Section 4929, Rev. Laws, being contention, petitioner alleges that § 1 of an act entitled, “An Act Conthe indictment is invalid, because, cerning Juries," provides: "Every under our Constitution and laws, qualified elector of the state, whethwomen are not eligible to serve as

er registered or not, who has sufmembers of a grand jury. Section ficient knowledge of the English 8 of article 1 of our Constitution

language, and who has not been conprovides: “No person shall be tried

victed of treason, felony, or other for a capital or other infamous

infamous crime, and who is not

rendered incapable by reason of crime

except on presentment or indictment of the grand

physical or mental infirmity, is a

qualified juror of the county in jury, or upon information duly filed

which he resides, or the county by a district attorney, or attorney

to which it is attached for judicial general of the state.”

purposes." It is contended by petitioner, and Looking to the creation of a jury conceded on behalf of respondent, list, § 4937, Rev. Laws, provides : that at common law women were not “The board of county commissionqualified to sit on a grand jury, and ers in each county of the state of that this rule obtained up to the Nevada, shall, at its first meeting time of the adoption of our Consti- after the approval of this act, and tution. Conceding this does not, thereafter at its first regular meethowever, preclude us from inquir. ing in each year, by an order duly ing as to the class of persons from made and entered on its minutes, whom grand jurors were selected at estimate as nearly as possible, the common law, and further inquiring number of trial jurors that will be as to how, if at all, we supplanted required for attendance on the dis