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This was a petition for a jury in the superior court to assess damages for taking of the petitioner's land in Hull by the Nantasket Beach Railroad Com pany. At the trial in the superior court before MASON, J., the verdict was for the petitioners, and the respondent alleged exceptions. The facts appear in the opinion.
R. M. Morse, Jr., and Arthur Lord, for respondent.
The printed document should have been admitted in evidence. (1) It is a public document printed by authority of the senate of the United States. 1 Greenl. Ev. c. 4, § 470. (2) It is pertinent to the issue, in that it affords some evidence of the action of the sea upon the petitioners' land described in their petition, and of the special benefit to the land derived from the embankment of the respondent road, which had a material bearing on the question of damages. (3) The document was the report of a United States engineer in discharge of his official duty. (4). The matter contained in the document was the result of the observation and cognizance of a public officer, and belonged in the province in which his duties as such officer lay. The requisites for the admissibilty of a public document all exist in this case. Greenl. Ev.c. 4, 191; Radcliff v. United Ins. Co., 7 Johns. 38; Talbot v. Seeman, 1 Cranch, 1; Whiton v. Albany Ins. Co., 109 Mass. 24; Worcester v. Northborough, 140 Mass. 397; S. C. 5 N. E. Rep. 270.
The respondent claims that it had a right to have the jury consider the release offered in mitigation of damages. The right of a railroad company to abandon a portion of its location was fully recognized by this court in Pinkerton v. Boston & A. R. Co., 109 Mass. 525. In that case cited, “the release and also the deed were accompanied with certain conditions which, to some extent, impaired the value of the concession." In the present case the deed of release was absolute in form. The provisions of the statute relative to the taking of land by a railroad corporation, and the payment of damages therefor, recognize five elements which go to make up the damages which may be awarded, viz., the laying out, making, and maintaining the road, and the taking of land and material. Pub. St. C. 112, § 95. The taking of land for a railroad is an appropriation of the land to all the uses of the road, and practically the damages are commonly equal to the value of the land. Cassidy v. old Colony R. Co., 141 Mass. 174; S. C. 5 N. E. Rep. 142. If, however, the railroad company elects to abandon to the owner a portion of the land taken within the limits of its location, by releasing to him a portion of the land which is found not to be needed or used before final verdict and assessment of damages, the land owner, if recompensed for all injury he suffered, cannot fairly complain if the jury are permitted to consider what effect, in reducing the damages, is caused by this partial abandonment. He still recovers his damages for every element of injury which he sustains. To hold otherwise would be to impose upon the corporation an additional burden, which neither the public interest nor private rights require. It is all the recompense which the statute demands if the land-owner is indemnified for his actual loss. The statute requires the corporation to pay all damages occasioned by taking the land, such damages to be estimated in the manner provided with reference to the laying out of highways. Pub. St. c. 112, § 95. The statute in reference to the laying out of highways recognizes the principle that indemnity, and not damages, is to be recovered by the land-owner when possession is not taken and the land not used. Pub. St. c. 49, § 69. The offer of a release of the land, without consideration, would at least be some evidence as to the value of the land.
D. C. Linscott., for petitioner.
The presiding justice rightly refused to allow the printed document to be read in evidence. In section 67 et seq., c. 169, Pub. St., the mode of proof of certain documents is provided. But the document under discussion does not belong to that class. This document was not one like public proclamation of peace or war, or other solemn acts of the president, of which the court would take judicial notice. Smith v. Strong, 14 Pick. 128, 133; Burke v. Mittenburger, 19 Wall. 519; 1 Greenl. Ev. 88 5, 6, 479, et seq. It is evident that this document was only intended as a means of acquiring information which might be useful to congress in its future action. It was never intended as an official record of the facts therein decided. 1 Greenl. Ev. § 491; Tayl. Ev. (5th Ed.) 1473; Whiton v. Albany & N. Ins. Co., 109 Mass. 24. It was not competent evidence on the issue between the parties to this proceeding. Starkie, Ev. (10th Ed.) 281; Rex v. Oates, 10 How. St. Tr. 1079, 1190; Talbot v. Seeman, 1 Cranch, 37, 38; 1 Greenl. Ev. (14th Ed.) 8 152, note; Polini v. Gray, 12 Ch. Div. 411; Steph. Dig. Ev. (May's Ed.) 65; Worcester v. Northborough, 140 Mass. 397; S. c. 5 N. E. Rep. 270. The report of Bothfield, from which the respondent offered to read, was mere hearsay evidence, and was rightly excluded. It did not come under any of the exceptions to the general rules. 1 Greenl.
Ev. 88 123, 124; Lund v. Tyngsborough, 9 Cush. 36 40; JAMES, L. J., in Polini v. Gray, supra.
The learned judge rightly excluded the deed of release, and the evidence of its tender. Hawkes v. Pike, 105 Mass. 560, and cases cited.
FIELD, J. The respondent has argued the exceptions to the exclusion of the printed document entitled, “48th Congress; 1st Session; Senate Ex. Doc. No. 74;" and the exception to the exclusion of the release of a part of the land which was tendered at the trial. The other exceptions were waived.
The secretary of war, on January 24, 1884, transmitted to the senate of the United States a letter from the chief of engineers submitting copies of reports made by Maj. Raymond, of the corps of engineers, and this letter, with the accompanying papers, when received by the senate, was referred to the committee on commerce, and ordered to be printed. This printed document was offered in evidence by the respondent for the purpose of showing, from the report of Maj. Raymond, that the road-bed of the company protected the remaining land of the petitioners from being washed away by the sea, and that a special benefit was thus received by the petitioners from the location of the railroad, which should be considered in estimating the damages.
The contents of papers in any of the executive departments of the United States are usually proved by a copy authenticated under the seal of the department. Rev. St. U.S.c. 17, § 882. We are not required to determine whether the printed document offered in this case would not be admissible in evidence, if a copy thus authenticated would be, (see Whiton v. Albany & N. Ins. Co., 109 Mass. 24,) because we think that the reports themselves are inadmissible for the purpose of proving, as between these parties, the facts stated in the reports.
The acts of Maj. Raymond and Assistant Engineer Bothfield, in surveying the headland in the town of Hull, cannot be called acts of state, nor are the facts stated in the reports public facts, in the sense that they are facts which the United States have, under the authority of law, undertaken to ascertain and make public for the benefit of all persons who may be interested to know them; but they are facts which have been ascertained in the course of preliminary surveys made for the purpose of determining what action, if any, the national government may thereafter take for the purpose of protecting Boston harbor. The engineers who made the surveys can be called as witnesses in the same manner as other persons who have knowledge of the facts. There is no necessity for the admission of unsworn written statements, and the facts do not bring the case within any known exception to the rule that evidence:“must be given on oath by persons speaking to matters within their own knowledge, and liable to be tested by cross-examination.” Sturla v. Freccia, 5 App. Cas. 623; S. C. 12 Ch. Div. 411.
The deed of release was rightly excluded. It recited that it was "in con
sideration of one dollar and the settlement of claims for land damage to the estate of the heirs of Samuel T. Cushing, in Hull, Massachusetts, the receipt whereof is hereby acknowledged,” etc. If this release had been made to the petitioners, the acceptance of it would have been an admission by them that the claim for land damages had been settled. The release is, however, to the "heirs of Samuel T. Cushing, and their heirs and assigns,” without otherwise naming any persons as releasees. The petitioners are Benjamin Cushing, William L. Cushing, Mary J. Cushing, and Abby C. Cushing, as she is executrix of the estate of Samuel T. Cushing; and they allege in their petition that said Benjamin, Samuel, William, and Mary Jane were seized in fee, as tenants in common, of the land when the respondent took a strip of it for the location of its railroad; that the land was devised to them by the will of Mary Cushing; and that, by the will of Samuel, who died after the location of the road, "all his interest in said land, and damages suffered by him, were given to said Abby C. Cushing.” The petitioners therefore do not appear to be the "heirs of Samuel T. Cushing." It is not necessary to consider whether it is shown that Arthur W. Moore, as assignee and trustee in possession,” had any authority to execute the release, or whether a railroad company may not abandon its location, or a part of it, without the consent of the land owner, so that the land shall be thereafter discharged, in whole or in part, from the easement which the railroad company acquired by its location. There is no evidence of any abandonment, except the tender of this deed of release, which the petitioners were not required to accept for the reasons which have been given. Exceptions overruled.
(143 Mass. 136)
COMMONWEALTH 0. MOORE.
(Supreme Judicial Court of Massachusetts. Bristol. December 2, 1886.)
INTOXICATING LIQUORS, SALE OF - JURY - MEMBER OF LAW AND ORDER LEAGUE, WHEN
A member of the law and order league (a voluntary association, formed for the enforcement of the law against the illegal sale of intoxicating liquor, and the prosecution of liquor sellers) is incompetent to sit as a juror upon the trial of a complaint charging the defendant with maintaining a liquor nuisance where the complainant is an agent of the league, and employed by it to carry out the purposes for which it is formed.
Complaint for maintaining a liquor nuisance. At the trial in the superior court, before STAPLES, J., before the impaneling of the jury, the defendant objected to one Abram I. Eddy, one of the jurors, as incompetent to sit upon said case. It appeared that said Eddy was a member of the law and order league of New Bedford, where the offense was alleged to have been committed; that said league was a voluntary association, formed for the enforcement of the laws of New Bedford against the illegal sale of intoxicating liquors, and the prosecution of liquor sellers; that the complainant, Jules Giguel, and one Partridge were agents of and employed by said league to carry out the purposes aforesaid, and were furnished by said league with money to pay expenses in carrying on said work, and were paid for their services. The court overruled the objection, held the juror competent, and he was impaneled. Upon evidence which is not material to the decision, a verdict of guilty was returned, and the defendant alleged exceptions.
E. L. Barney, for defendant. The juror Eddy was not a disinterested juror, and ought not to have been allowed to sit upon the jury. He was not so disinterested in the issues of the case as to be impartial. He was not “free from all legal exceptions.” Pub. St. c. 170, § 6; Id. § 35.
E. J. Sherman, Atty. Gen., for the Commonwealth.
The rulings of the court were correct. Abram I. Eddy was clearly competent to serve as a juror. Com. v. O'Neil, 6 Gray, 343. The fact that the witness was paid to procure evidence to convict the defendant would not affect his competency, but would his credibility. Com. v. Mason, 135 Mass. 555; Com. v. Brown, 121 Mass. 82; Com. v. Trainor, 123 Mass. 414; Pub. St. C. 153, § 5.
GARDNER, J. Jurors, in this commonwealth, are required to be persons of good moral character, of sound judgment, and free from all legal exception. Pub. St. c. 170, § 6. Upon motion of either party in a suit, the court is required to examine the person called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed an opinion, or is sensible of any bias or prejudice therein. After the examination of the juror, as above provided, the party objecting may introduce any other competent evidence in support of the objection, subject to the discretion of the court. Com. v. Thrasher, 11 Gray, 55; Com. v. Gee, 6 Cush. 174. If it appears to the court that the juror does not stand indifferent in the cause, he shall stand aside, and another be called in his stead. Pub. St. c. 170, § 35. All this must be done before the jury is impaneled. Woodward v. Dean, 113 Mass. 297. The word “suit" haş, in practice, been considered as meaning criminal prosecutions as well as civil proceedings. Com. V. Abbott, 13 Metc. 120; Com. v. Gee, ubi supra; Com. v. Thrasher, ubi supra; Com. v. O'Neil, 6 Gray, 343; Com. v. Eagan, 4 Gray, 18–20.
But few cases have arisen under this statute to which the attention of the court has been called. In Com. v.O'Neil, ubi supra, which is strongly relied upon by the government in support of the ruling of the superior court, three of the jurors were members of “Carson League. The object of its members was the prosecution of the laws against the manufacture and sale of intoxicating liquors. They subscribed each a certain sum to the funds of the association, for the purpose of defraying the expenses of such prosecutions; and each member was liable to be assessed his proportion of all expenses incurred in such prosecutions, and was liable to pay the same to the extent of his subscription. The court held that, as the exceptions were framed, they could not find enough to show that the trial judge was legally bound to set the jurors aside, and that it did not appear "that either of them had any, even the smallest, pecuniary interest in the event of these prosecutions. The question whether they stood otherwise indifferent in the result of the trial does not appear to have been raised.
In Com. v. Eagan, 4 Gray, 18, one of the jurors, upon inquiry, stated that he was a member of the “Carson League," the object of which society was to prosecute individuals for violation of the liquor law; that assessments were made upon the members for the purpose of carrying out the object of the society; that his membership consisted in subscribing for stock; that he had paid one assessment, and expected to pay more. The juror further said that the amount of his assessment would not be changed or affected by the result of this indictment, and that there was nothing in the existence of his membership to prevent his giving a fair and impartial verdict, according to the evidence. The juror was permitted to remain upon the panel. It was held, upon exception, that the court had no knowledge of the assumed obligation of the members of the “Carson League" besides what the juror stated to be his understanding of them, and that they were not prepared to decide that in this instance the ruling of the court of common pleas was wrong. Mr. Justice METCALF, in giving the opinion of the court, said: “We deem it to be our duty, however, to say that, in our judgment, the members of any association of men, combining for the purpose of enforcing or withstanding the execution of a particular law, and binding themselves to contribute money for such purpose, cannot be held to be indifferent, and therefore ought not to be permitted to sit as jurors in the trial of a cause in which the question is whether the defendant shall be found guilty of violating that law.”
One of these cases makes the fact of pecuniary interest in the juror a prominent feature in determining whether he was indifferent, or unfit to sit upon the trial. But this is not the only disqualification to the fitness of a person to sit as a juror. He may be entirely unaffected by the result of the trial, so far as any pecuniary interest is concerned, and yet he may have such ill will against one of the parties—be so biased or prejudiced against him—that he could not be indifferent. A juror may also stand in such relation to witnesses to be produced at the trial that he cannot fairly consider their testimony in à criminal case; he may be the instigator of the prosecution, and be absolutely unfit to act as a juror in determining the guilt or innocence of the person accused.
The facts in the case at bar, as stated in the bill of exceptions, differ materially from those reported in the cases we have referred to. The juror was a member of the law and order league of New Bedford, where the offense charged in the complaint is alleged to have been committed. The league was a voluntary association, formed for the enforcement, in New Bedford, of the laws against the sale of intoxicating liquors, and for the prosecution of liquor sellers. The complainant, Jules Giguel, and one Partridge, both of whom were witnesses at the trial, were agents of the league, and furnished by it with money to pay expenses in carrying on their work, and were also paid for their services. The complainant, with Partridge and three sailors, went to the defendant's bar-room. There was evidence that Giguel paid for**some of the liquor ordered and furnished to them. That the complainant, Giguel, and Partridge were employed by the league to induce the defendant and others to sell liquor for the purpose of prosecuting them for violation of the the law, is apparent from the evidence and the instruction given to the jury. The presiding judge instructed the jury "that persons employed to induce the defendants and others to sell liquor, for the purpose of prosecuting them for violation of their licenses, should be regarded with great caution and distrust as witnesses. The considerations went to their credit as witnesses, but it was still for the jury to say how much credit should be given them.” The juror was a member of a local association, which employed the complainant to induce the defendant to violate the law in the city of New Bedford, in order that he might prosecute the defendant for such violation. He was the agent of the juror for this special purpose. He, with his associates, has selected Giguel as a proper person to induce the defendant to violate the law, prosecute him for such violation, and go before a jury as a witness worthy of belief.
It is difficult to see that such a juror was so indifferent that he could regard his agent, whom he had employed through his association, “with great caution and distrust as a witness." These considerations, as to his credit, he had already passed upon and determined, when Giguel had been selected as agent of the association of which he was member. But it is not necessary to go to the extent that the agent of the association was appointed for the purpose of inducing the defendant and others to violate the law. It is sufficient that it appeared that the complainant, Giguel, was employed by the association of which the juror was a member to enforce the laws in New Bedford against the illegal sale of intoxicating liquor, and to prosecute liquor sellers in that city. He thus became the agent of the juror as well as of the other members of the association.
Whether or not he was to appear as a witness at the trial is immaterial, in the view we take of the case. The complaint which the juror was to try was originated by his agent, appointed for the purpose of making such complaints. He conld not be indifferent as to the result of that prosecution. He could