ent, had charge and control of all the employés of said defendant Webking, and it was the duty of this plaintiff to follow and obey his commands; that both defendants Resener and Schulmler acted within the scope of their authority; that they both had full charge and control over the construction of said building, and had knowledge that the said flooring was covered with brick, as that only a narrow way next to the open space was left, whereon it was necessary to walk in wheeling brick, and had knowledge that there was no railing along the edge of such flooring to protect the passer-by from falling into the open space, and had knowledge that the wheeling of brick along the said narrow way was accompanied by great hazard, and had knowledge that plaintiff was unaccustomed to work in such places of danger, and did not, in fact, know of the dangers aforesaid, and, notwithstanding such knowledge, the defendants, in reckless disregard of human life, and with the willful intent to injure such persons as should undertake such employment, failed and refused to place proper guards about such open space, and required the plaintiff to work in such place of hazard; that the defendant Schulmier directed the defendant Resener to call upon one of the men from the first floor to take said Wesley Burton's place in wheeling the bricks away from the hoist; the said Burton warned defendant Schulmler, within the hearing of defendant Resener, that such employment was dangerous and hazardous, and of such nature that no one accustomed to working on the ground should be called upon to engage in it; that thereupon the defendant Schulmier, not denying that such employment was accompanied with danger and hazard, and not denying that one accustomed to working on the ground floor would engage in it only at great peril, said, with a reckless disregard for life, accompanied with oaths and curses, and within the hearing of said Resener, that it made no difference to him if such person should be killed. as it would be only one nigger less; that he thereupon again directed defendant Resener to call up some one from the ground floor to take Burton's place, and defendant Resener called the plaintiff, under the circumstances set out; that the injuries complained of were caused by the willful misconduct aforesaid of defendants."

The appellant charged that appellee, in reckless disregard of human life, made a dangerous place, and, with willful intent to injure such person as should work there, willfully ordered him to work in such place. The word "willful,” as used, applies equally to the making of the alleged dangerous place, and to the sending of appellant into it. It is also charged that the injuries described were caused by the willful misconduct of the appellee. An averment of the willful and intentional commission of an act which, according to nature and experience, will pro

duce a certain injury, is equivalent to the averment of the willful commission of the Injury. Railroad Co. v. Hart, 2 Ind. App. 133, 28 N. E. 218. To say that A. willfully killed B. is not different, in substance, from saying that A. willfully pointed a loaded gun at B., and willfully discharged the same, whereby B. was killed. It is only necessary to charge in the complaint that the injurious act was purposely and intentionally committed, with intent willfully and purposely to inflict the injury complained of. Gregory v. Railroad Co., 112 Ind. 386, 14 N. E. 228; Miller v. Miller, 17 Ind. App. 605, 47 N. E. 338, and authorities cited. Section 338, Horner's Rev. St. 1901 (section 341, Burns' Rev. St. 1901), is, in part, as follows: "The first pleading on the part of the plaintiff is the complaint. The complaint shall contain: Second. A statement of the facts constituting the cause of action in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended." I think that a person of common understanding ought to know that appellant intended to charge a willful injury. The complaint is sufficient to apprise the defendant of the state of facts upon which the plaintiff expected to rely. Lincoln v. Ragsdale, 7 Ind. App. 354, 31 N. E. 581. The opinion of the court is not understood as holding that the facts set out would be insufficient to establish willful injury, as matter of fact, but that they are insufficient as a matter of pleading. The statute forbids such construction. Section 379, Burns' Rev. St. 1901. To constitute a willful injury, the act which produced it must have been identical, or must have been done under such circumstances as evinced a reckless disregard for the safety of others, and a willingness to inflict the injury complained of. Direct and positive intent is not always necessary to constitute a willful act. Where the conduct indicates that degree of indifference to the rights of others which may be justly characterized as recklessness, the defendant is responsible for the injury he inflicts, irrespective of the fault that placed the plaintiff in the way of such injury. Palmer v. Railroad Co., 112 Ind. 250, 14 N. E. 70; Railroad Co. v. Brafford, 15 Ind. App. 655, 44 N. E. 551; Barr v. Railroad Co., 10 Ind. App. 436, 37 N. E. 814. Specific acts are stated in the pleading. If the character of the acts so stated are inconsistent with the charge, the use of the word "willful" will not make it sufficient. Stock Yard Co. v. Mann, 107 Ind. 89-91, 7 N. E. S93; Gregory v. Railroad Co., 112 Ind. 383-389, 14 N. E. 228; Railway Co. v. Wood, 113 Ind. 544–563, 14 N. E. 572, 16 N. E. 197. If, on the other hand, the acts described are consistent with the charge, then the question as to whether the charge is true must be submitted for trial as are other questions of fact. Barr v. Railroad Co., 10 Ind. App. 433, 37 N. E. 814. While direct and positive inteat

is not always necessary to make a willful, injury, it is, when found to exist, conclusive upon the question. The opinion adopted by the court fails to mention the averment relative to the expression used by the foreman when warned against sending appellant to work in the dangerous place. It appears from the averments of the complaint that the appellant was deliberately sent into a place of known danger. It is an elementary rule that, where proof of an act is admissible, proof of a statement accompanying it is also admissible, as a part of its res gestæ. 1 Greenl. Ev. §§ 108, 109; Baughan v. Brown, 122 Ind. 119, 23 N. E. 695. Where it be comes proper to aver an act as one of the ingredients of alleged willfulness, it is proper to aver the entire act. The language averred to have been used by the foreman indicates a disregard for human life and the safety of the appellant, consistent with the charge of willfulness, and strongly supportive of it. The alleged willfulness does not consist alone in failing to make a wide floor, nor in failing to provide railings, but in sending the appellant to work in the place thus rendered unfit. In considering the effect of the facts stated, there is no known warrant for failing to take in account those as to appellant's ignorance, lack of capacity, and lack of experience. The averments are confessed as true by the demurrer. The quality of what a man does is largely dependent upon what he is and what he knows. Had a child been sent into such a place under such circumstances, who would refuse to consider its ignorance as bearing upon the quality of the man's act who sent it there? The master is liable for the willful act of the superintendent and foreman, within the scope of their authority. Railway Co. v. Cooper, 6 Ind. App. 202, 33 N. E. 219; Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 35 N. E. 1, 24 L. R. A. 483, 488, 41 Am. St. Rep. 440. If it had been averred that a scaffold was erected 50 feet from the ground, and that one of its crossbeams, instead of being securely nailed, was held by one nail, insufficient for the purpose, and that, with knowledge of the danger, the superintendent willfully ordered an employé to work on the scaffold, in doing which he was injured by the falling of the scaffold on account of the indicated defect, the fact would accord with the charge of willfulness. The case at bar differs from the illustration in this: that the danger was not caused by a scaffold defective in the number of nails used to hold it up, but defective in the number of planks used to cover it, and in the lack of a railing of some kind. The casualty was caused, not by the falling of the scaffold, but by the falling of the appellant from the scaffold,-a result which, it is alleged, was likely to follow its use by him in the manner he was ordered to use it. The writer is impressed with the idea that the appellant is entitled to have the issue of willfulness determined by a tribunal fitted

for the purpose and provided by law. This court has no power to try the issue. Its duty ends when it finds that an issue has been tendered, and that such issue is tendered seems to be shown by a consideration of all the allegations contained in the complaint. I therefore respectfully dissent from the conclusion reached by the court.

(181 Mass. 120)

TUFTS et al. v. WAXMAN. (Supreme Judicial Court of Massachusetts. Suffolk. March 26, 1902.)

PLEADING-AMENDMENT-JUDICIAL DISCRETION-ABUSE-APPEAL-DOUBLE COSTS.

1. The superior court's refusal to permit a defendant to amend his answer to a bill at the hearing will not be disturbed, where the justice's report does not show that his discretion was wrongfully exercised.

2. Under Rev. Laws, c. 156, § 13, allowing double costs on appeal if the exceptions are frivolous, a motion for double costs on exception to refusal of an amendment to defendant's answer will be overruled where it is doubtful whether the statute is applicable to such state of facts.

Report from superior court, Suffolk county; Robert R. Bishop, Judge.

Bill in equity by Leonard Tufts and others, administrators, against Leonard Waxman, to reach and apply certain property which could not be come at to be attached at law. At the hearing the defendant asked leave to file an amendment to his answer setting up that the bill could not be maintaine because section 3, cl. 7, c. 159, of the Revised Laws of Massachusetts, is unconstitutional, and further that the original claim was provable in bankruptcy, and that the Revised Laws were inconsistent with the bankruptcy laws. The court refused to allow the amendment, and reported the case to the supreme judicial court. Decree to stand.

Wm. M. Noble, for plaintiffs. Phillip Tworoger, for defendant.

HOLMES, C. J. If the report of the justice of the superior court is properly before us, there is nothing in it to show that his discretion was wrongly exercised in denying the defendant leave to amend. There is no appeal. Therefore, whether the report is properly before us or not, the decree of the superior court must stand. The motion for double costs is overruled, as it is at least doubtful whether the statute can be extended to cover this case. Rev. Laws, c. 156, § 13. Decree to stand.

(181 Mass. 118)

PLAISTED v. COOKE et al. (Supreme Judicial Court of Massachusetts. Suffolk. March 19, 1902.) PREMATURE APPEAL FINAL JUDGMENTDISMISSAL FOR WANT OF PROSECUTIONNECESSITY FOR FORMAL ORDER-BILL OF REVIEW.

1. An order was entered that suit be dismissed for want of prosecution, unless the

master's report be filed on or before a certain date. The report was not filed, but no further decree was entered, except one denying a motion thereafter made to extend the time for the filing of the report. Held that, no formal decree of dismissal having been entered, the case was still on the docket of the trial court, and an appeal therefrom would be dismissed.

2. There being no final decree in a cause, a bill of review seeking to vacate the original order was prematurely filed.

Appeal from superior court, Suffolk county; Henry K. Braley, Judge.

Suit and bill of review by Roscoe M. Plaisted against Edward O. Cooke and another. From an order refusing to extend the time for filing a master's report allowed by a previous order, and from an order to dismiss the bill of review and vacation of the previous order, plaintiff appeals. Appeals and bill of review dismissed.

Wm. P. Hale, for plaintiff.

HOLMES, C. J. The record discloses proceedings in two cases, a so-called bill of rereview, and also the pleadings and certain orders or decrees, with appeals from the same, in another case,-we presume that with regard to which the review was sought. The respondents did not see fit to submit an argument but treated the whole proceeding as frivolous. The plaintiff took the position that both cases were before us. In the original cause an order was made on June 1, 1900, that the bill be dismissed for want of prosecution unless the master's report should be filed on or before Jan. 1, 1901. On February 28, 1901, no further decree having been made, so far as appears by the record before us, a motion was made to extend the time allowed by the order of June, 1900. This was denied and the plaintiff appealed. Another motion or petition was filed, it would seem at a later day, that the June decree be vacated or modified, and this also was denied "without prejudice." An appeal was taken, and the court was asked to report the facts. This was not done,-we presume because the Superior Court assumed that the bill was dismissed and that the case was out of court so that it was beyond its power to deal with the matter, although we notice that the petition was denied, not dismissed.

If, as we understand, there has been no decree dismissing the bill subsequent to the anticipatory decree nisi, we are of opinion that the bill is still in court, and that a further decree was necessary to end the case. The meaning of the decree of June 1, 1900, as was said by the Lord Chancellor with regard to a foreclosure decree, was merely that the court would dismiss the bill in a certain event at a certain time. Ford v. Wastell, 2 Phil. Ch. 591, 593. The English practice in similar cases requires a further decree, and it seems to us that that course is desirable in order to avoid the risk of injustice. Stevens v. Praed, 2 Cox, Ch. 374; 2 Daniell, Ch. Prac. (5th Ed.) 997-999. See Railroad

Co. v. Fosdick, 106 U. S. 47, 69, 27 L. Ed. 47. Even the entry of "Bill dismissed" on the docket has been held by this court to be merely an order for a final decree. Merrill v. Beckwith, 168 Mass. 72, 46 N. E. 400.

As there is no final decree in the original cause it follows that the so-called bill of review was brought prematurely and must be dismissed for that reason without going further. It follows also that the appeals in the interlocutory orders, if they are before us, must be dismissed as prematurely entered in this court. We may remark with regard to them, that in the present state of the record it would be impossible for us to say that the refusal to extend the time may not have been justified by what appeared at the hearings on the plaintiff's motions, although the affidavits printed disclose a plausible case. Bent v. Telephone Co., 144 Mass. 165, 166, 10 N. E. 778; Giles v. Insurance Co., 179 Mass. 261, 60 N. E. 786. If the failure of the judge of the Superior Court to report the facts was due only to the impression that the case was out of court, no doubt a report will be made which will enable us to pass upon the matter at the proper time.

The decree on the so-called bill of review purports to deal with it not merely as a bill of review but also, by consent, as a petition for leave to file a bill of review. In these aspects we have disposed of it. also purports to dispose of it as restore the case to the docket.

The decree a motion to

We hardly

see how we can give the document that effect. Probably it will be sufficient that we intimate our opinion that, if the whole record is before us, the case now is or ought to be on the docket of the Superior Court. Bill of review dismissed. Appeals dismissed.

(170 N. Y. 185)

In re BRENNER (two cases). In re MELODY. MELODY v. GOODRICH

et al. (Court of Appeals of New York. March 14, 1902.)

COURT OF APPEALS-JURISDICTION-CONSTITUTIONAL LAW-COMMISSIONER OF JURORS -DELIVERY OF BOOKS AND PAPERS-PUBLIC OFFICER.

1. An order of the appellate division reversing an order of the special term granting an application under Code Civ. Proc. § 2471a, to compel the delivery of books and papers to a public officer, and which denied the application, is reviewable by the court of appeals, as a final order in a special proceeding.

2. Const. art. 10, § 2, restricts the power of the legislature to appoint local officers, and to provide for their appointment by central or state authority. The office of commissioner of jurors in the county of Kings was created by Laws 1858, c. 322, and was a county office at the time the constitution of 1894 went into effect. Held, that Laws 1901, c. 602, in so far as it transfers the appointing of its incumbent from the local authorities to the justices of the appellate division of the supreme court in the Second judicial department, is unconstitutional.

3. In an application under Code Civ. Proc. 2471a, to compel the delivery of books and papers of a public office to an appointee, a certificate of appointment to such office, made pursuant to a statute. does not establish a prima facie right to the office and the books, so as to prevent the question of the validity of the statute authorizing the appointment from being decided in such proceeding.

Bartlett and Haight, JJ., dissenting.

Appeal from supreme court, appellate division, Third department.

In the matter of the application of Jacob Brenner, commissioner of jurors in the county of Kings, to compel the delivery to him of books and papers belonging to such office, and now in the possession of William E. Melody. From an order of the appellate division (73 N. Y. Supp. 689) which reversed an order of the special term committing the respondent to jail, petitioner appeals. Affirmed. And from an order of the appellate division affirming an order of the special term staying all proceedings committing the respondent to the Kings county jail until decision of appeal from such order, petitioner appeals. Appeal dismissed. And in the matter of the application of William E. Melody for a writ of mandamus against Bird S. Coler, comptroller of the city of New York. From an order of the appellate division affirming an order of the special term granting a peremptory writ of mandamus to prove a voucher for payment of salary due the petitioner, the comptroller appeals. Affirmed. And suit by William E. Melody against William W. Goodrich and others, justices of the appellate division of the supreme court, to restrain the appointment of a jury commissioner. From a judgment of the appellate division (73 N. Y. Supp. 741) affirming a judgment in favor of the defendants, plaintiff appeals. Affirmed.

Frank S. Black and Henry W. Goodrich, for appellant in first and second proceedings. Robert H. Elder and Charles H. Hyde, for respondent in first and second proceedings. George L. Rives, Corp. Counsel (James McKeen, of counsel), for appellant in third proceeding. Robert H. Elder and Charles H. Hyde, for respondent in third proceeding. Robert H. Elder and Charles H. Hyde, for appellant in fourth proceeding. John C. Davies, Atty. Gen. (Frank S. Black and Henry W. Goodrich, of counsel), for respondents in fourth proceeding.

O'BRIEN, J. The order from which this appeal was taken reversed an order of the special term which directed that William E. Melody, then in possession of the office of commissioner of jurors of the county of Kings, be committed to the county jail until he should deliver to Jacob Brenner, the petitioner, the books and papers pertaining to that office; the latter claiming to have been appointed to the office under the provisions of chapter 602 of the Laws of 1901. The learned court below not only reversed the

original order in favor of the petitioner, but denied his application for the books and papers. It was therefore a final order in a special proceeding instituted under section 2171a of the Code, and so reviewable in this court.

*

The appeal involves the question as to the constitutional validity of the statute above referred to, under which the petitioner was appointed; and the learned court below has held that it is in conflict with section 2, art. 10, of the constitution, and therefore void. This section contains a clear and very important restriction upon the power of the legislature to appoint local officers, and to provide for their appointment by any central or state authority. It provides as follows: "All county officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the legislature shall direct. * All other officers, whose election or appointment is not provided for by this constitution, and all officers, whose office may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct." The scope and meaning of this consti. tutional provision has frequently been the subject of discussion in this court. It was said by Judge Allen in the case of People v. Albertson, 55 N. Y. 50, that the purpose and object of this section, as is very obvious, "was to secure to the several recognized civil and political divisions of the state the right of local self-government, by requiring that all county, city, town, and village officers whose election or appointment was not provided for by the constitution, save those whose offices might thereafter be created by law, should be elected by the electors of the respective municipalities, or appointed by such authorities thereof as the legislature should designate. As to offices known and in existence at the time of the adoption of the constitution this provision is absolute in its prohibition of an appointment by the general government or its authority, or by any body other than the local electors, or some local authority designated by law. * The constitution cannot be evaded by a change in the name of an office, nor can an office be divided, and the duties assigned to two or more officers under different names, and the appointment to the offices made in any manner except as authorized by the constitution; and courts will scrutinize acts of the legislature, and see that the constitution is not evaded and its intent frustrated by a mere colorable change in the designation and title or the duties of an officer, when the appointment is taken from the locality, and will hold the act void unless the change is real and substantial." This exposition of the scope and purpose of that part of the constitution has been steadily adhered to by this court. That it contains a sound and

*

v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408.

It is the first sentence of the section that is applicable to this case, and it is settled that the officers there mentioned and designated are those existing under actual laws of the state at the time the present constitution went into effect; that is, such county officers as existed under actual laws on and prior to January 1, 1895. It was not competent for the legislature to provide for the appointment of such officers after that date otherwise than by and through some county authority (People v. Draper, 15 N. Y. 532; People v. Pinckney, 32 N. Y. 377), and the restriction cannot be evaded by changing the name of the office, or by some colorable modification of the functions of the officer as they existed at the time of the adoption of the constitution (People v. Raymond, 37 N. Y. 428). If the commissioner of jurors of the county of Kings was a county officer at the time of the adoption of the present constitution, the slight m difications, if any, contained in the statute now under review, are immaterial, and the nature and character of the office has not been changed, but it still remains an old office, and not a new one. Whatever the nature and character of the office was at the time the present constitution went into effect, that is its nature and character now, since the substantial duties and functions of the officer were not changed by the recent statute, nor even his title. But it is not claimed in this case that the statute in question creates any new office, and it is admitted that the power to appoint to it, which is vested in the judges of the appellate division of the Second department, has been conferred upon a state, and not a county, authority by the statute now under consideration, and hence the law is in conflict with the constitution if the office of commissioner of jurors was at the time that the present constitution went into effect a county office. All the learned judges in the court below who have passed upon that question in this case held that it was, except the learned judge at special term, who granted the application; and he did not attempt to give to it any distinct classification, but held that the commissioner was an aid to the court in the selection of jurors in the general administration of justice. It is obvious, however, that it was either a county or state office, and the fact that the commissioner participated in some sense ministerially in the operation of the judicial machinery throws no light upon the question. All that is equally true of the county clerk and the sheriff, and no one would claim that either of these officers was for that reason anything but a county officer, so that the connection between the office and the courts has no bearing on that question. The ministerial duties that such local officer may be called

real character as a county officer.

The office of commissioner of jurors in the county of Kings was created by chapter 322 of the Laws of 1858. Prior to that time it may be that there was no distinctively county office of that character, but it was certainly competent for the legislature to create it, and make it thereafter a county office (People v. Dunlap, 66 N. Y. 162); and that is, we think, precisely what was accomplished by that statute. Reading the title of that statute, and its various provisions prescribing the duties of the officer, it would be difficult to conceive of anything more that the legislature could have done than was enacted to give to the commissioner the distinctive character of a county officer, and he has retained that character ever since. The legislature then exercised its undoubted power to abolish the methods of selecting jurors by an irregular board of town or county officers, and vested these duties in a single individual, to be known as a "commissioner of jurors." The commissioner was then made a county officer, and has continued in that character ever since, and was such at the time the present constitution went into effect. The power of appointment was conferred upon county authorities except during the brief period following the amendment (chapter 821 of the Laws of 1866), when the judge of the city court of Brooklyn was added to the sheriff, county judge, and district attorney, as the board vested with the appointing power. But this board as so constituted was changed subsequently (chapter 315 of the Laws of 1870), and the power of appointment conferred upon the county judge, surrogate, and county treasurer, where it has remained ever since, so far as appears. So that when the present constitution went into effect there was in the county of Kings a distinctively county officer, created by statute, the appointment of which was vested by law in a board composed of distinctively county officers. The statute of 1901 conferring the power of appointment of this same officer upon the judges of the appellate division is, we think, in conflict with the constitution, since it changed the power of appointment from a county to a state authority.

We are aware that various statutes have been enacted since the present constitution went into effect, applicable to other counties of the state, providing for the appointment of an officer charged with the duties of selecting, summoning, and drawing jurors; being duties analogous to those performed by the commissioner in the county of Kings. These statutes are not necessarily affected by our decision in this case. We are dealing now only with a statute which provides for the appointment of a county officer by state authority, and the argument has no application to other statutes applicable to counties where there was no such county office when