senger as against the company, at least until he is informed that he has mistaken the character of the train." And, again: "The conductor of the train in question was the general agent of the defendant for the purposes of operating that train. As between himself and his employer, he had no authority to receive passengers upon it. Such want of authority, however, was not known to the plaintiff, or those in charge of him. They knew that conductors of other freight trains were authorized to receive and did receive passengers on their trains, and believed, as they well might, that the conductor with whom they were about to take passage had the same authority. Whatever the rule might be were no freight trains of the defendant permitted to carry passengers, it must be held, under the circumstances of this case, that if such conductor directed the plaintiff to go on board the train, and the plaintiff did so, he thereby became a passenger of the defendant, notwithstanding the conductor exceeded his authority. In other words, such direction, if given, was within the scope of the conductor's employment, and binding upon the defendant, although unauthorized." In Everett v. Railway Co., supra, a section hand was injured while riding on an extra freight train by authority of the conductor. Under the rules of the company passengers could be carried on regular, but not on extra, freight tains. It was held that, as he went aboard the 'train in good faith, believing he had a right to ride, and was allowed to do so by the conductor, the company was liable to him as a passenger, although the train was one that under the rules of the company was not allowed to carry passengers. In speaking of his rights and of the duties of the conductor, the court say: "He was there [in the caboose car] with the knowledge of the conductor who had charge of the train. If this was an extra train, on which passengers were not allowed to ride, it was the conductor's duty to inform him, and request him to leave, in accordance with the regulations of the defendant; and, if plaintiff had disregarded such request, the conductor could have lawfully removed him, using no more force than was necessary for that purpose. If the conductor failed to do this, it must be presumed that the plaintiff was rightfully there. A railroad company has a right to designate which of its freight trains shall carry passengers and which shall not. It has a right to make regulations, and, when so made, they are binding on its servants. Those riding on its trains are not presumed to know them. If its servants neglect or violate them, and because of such neglect or violation injury results to strangers, the company will be liable." In Whitehead v. Railway Co., supra, a lad 14 years of age was invited by a brakeman and permitted by the conductor of a special through freight train to ride free thereon, and while so riding was injured Under the rules of the com

pany, passengers were permitted to be carried on local freight trains, but not on special through trains. It was held, however, that the company was liable for the injury received by the boy through the negligence of the operators of the train. In the course of the opinion it is said: "The evidence shows that defendant carried passengers for hire on its local freight trains, but not on through freight trains. The train in question was a special through train. The rules of defendant forbade the carriage of passengers on this and like through trains. There is nothing in the outward appearance of the cars or caboose to indicate any difference between through and local freight trains, though the latter are designated on time cards displayed at stations." And, again: "Now, in this case the conductor had entire charge of the train. In its management he acted for and represented the defendant. It was a part of his duties to see that persons did not ride upon it, either with or without the payment of fare. How, therefore, can it be said his act in allowing the boy to ride upon the train was beyond or outside the scope of his employment? It was an act directly within the line of his duty. He made breach of his duty towards his master, but that is a matter of no consequence here. To all outward appearances, as well as in point of fact, he was master of the train. The defendant, therefore, cannot escape liability in this case on the ground that the conductor had no authority to permit the boy to ride on the train." In Railroad Co. v. Wheeler, supra, a boy was injured while riding without the payment of fare in the caboose of a construction train, by the invitation of the conductor, but against the rules of the company. It was held that the company was liable, although under its rules the conductor was instructed not to permit passengers to ride upon his train. The court say: "It is contended that Frank Wheeler was an intruder upon the train, for whose injury no liability could arise against the company, for two reasons: First, that the conductor had instructions not to carry passengers on the construction train; and, second, that from the nature of the business which was being done with the train, and also its equipment, it was apparent that the company did not permit passengers to be carried thereon. Neither of these circumstances will defeat a recovery in this case. It is true the conductor had been instructed not to allow persons to ride upon his train as passengers, but Frank Wheeler had no knowledge of such instructions. He had asked and obtained permission to ride upon the train. It was within the range of the employment of the conductor to grant such permission. He had entire charge of the train, and was the general agent of the company in the operation of the train. As he was the representative of the company, his act, and the permission given by him, may properly be regarded as the act of the company. If Wheeler had

furtively entered upon the train, or had ridden after being informed that the rules of the company forbade it, or had obtained permission only from the engineer, brakeman, or some other subordinate employé, the argument made by counsel might apply."

Under the doctrine of these cases it was within the apparent authority of the conductor of the train upon which the plaintiff was riding at the time of his injury to allow persons to ride thereon, and thereby to create the relation of passenger and carrier between such persons and the company. The rules of the company permitted the carrying of passengers upon some freight trains, and under certain conditions. It is true that under these rules the defendant may not have been a common carrier of passengers on any of its freight trains, in the sense that one had a lawful right to ride there without complying with the conditions imposed. Nor were such conditions and limitations illegal or void. But, nevertheless, the company did assume to carry such passengers as complied with its rules on certain of its freight trains. It was the duty of the conductors of its trains to enforce these rules. For that purpose they stood in the place and as the representative of the company, and by their acts the company is bound. The rules regulating the carrying of passengers on freight trains were unknown to the plaintiff. He had no knowledge of their existence, and did not know, when he entered the train, that he was violating them. He entered the car in good faith, supposing it to be one in which passengers were allowed to ride, and was permitted by the conductor to remain therein. He therefore, under the law, became a passenger, and entitled to the rights of such, even if he paid no fare, unless the fact that he was an employé of the company would change that relationship.

This brings us to the other inquiry. There are many authorities holding, and it may, for the purposes of this case be conceded, that an employé of a railway company, traveling free, as a part of his contract of service, to and from his work, or in immediate connection with his employment, is not a passenger, but an employé, and a fellow-servant with those in charge of the train. Vick v. Railroad Co., 95 N. Y. 267, 47 Am. Rep. 36; Gillshannon, v. Railroad Corp., 10 Cush. 228; Seaver v. Boston & M. R. R., 14 Gray, 466; Gilman v. Railroad Corp., 10 Allen, 233, 87 Am. Dec. 635; Ryan v. Railroad Co., 23 Pa. 384; McNulty v. Railroad Co., 182 Pa. 479, 38 Atl. 524, 38 L. R. A. 376, 61 Am. St. Rep. 721; Ionnone v. Railroad Co., 21 R. I. 452, 44 Atl. 592, 46 L. R. A. 730; Higgins v. Railroad Co., 36 Mo. 418. But, where an employé is traveling on his own private business, when his time is his own, even though he travels on a pass or ticket received on account of his employment, or is permitted to travel without a pass or ticket by reason of his employment, he is a passenger, and

not a servant. Doyle v. Railroad Co., 162 Mass. 66. 37 N. E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335; Dickinson v. Railway Co., 177 Mass. 365, 59 N. E. 60; State v. Western Maryland R. Co., 63 Md. 433; Railroad Co. v. Muhling, 30 Ill. 9, 81 Am. Dec. 336; RapidTransit Co. v. Dwyer, 20 Colo. 132, 36 Pac. 1106; Williams v. Railroad Co., 18 Utah, 210, 54 Pac. 991, 72 Am. St. Rep. 777; O'Donnell v. Railroad Co., 59 Pa. 239, 98 Am. Dec. 336; McNulty v. Railroad Co., 182 Pa. 479, 38 Atl. 524, 38 L. R. A. 376, 61 Am. St. Rep. 721; Whitney v. Railroad Co., 43 C. C. A. 19, 102 Fed. 850, 50 L. R. A. 615; Rosenbaum v. Railroad Co. (Minn.) 36 N. W. 447, 8 Am. St. Rep. 653; Washburn v. Railroad Co. (Tenn.) 75 Am. Dec. 784; Railroad Co. v. Scott's Adm'r (Ky.) 56 S. W. 674, 50 L. R. A. 381; Rapid-Transit Co. v. Venable (Tenn.) 58 S. W. 861, 51 L. R. A. 886. The distinction between the two classes of cases is aptly illustrated by the Massachusetts decisions referred to. In the Gillshannon, Seaver, and Gilman Cases cited by the defendant, the injured party at the time he received the injury was being transported in immediate connection with and as a part of his employment, while in the Doyle and Dickinson Cases, cited by the plaintiff, he was traveling on his own business, although with the permission of the company, or on transportation obtained from it, as an incident to and part compensation for his services. In the Doyle Case the plaintiff's intestate, who lived some distance out of Boston, was employed in the freight department of the defendant in that city, at a daily wage. Each month he was furnished by the company, as a part of his compensation, with a ticket, good for 62 rides between his home and Boston during the period for which it was issued. He was entitled to ride on this ticket whether he was going to or from his work or traveling solely for his own private interests or pleasure. One evening, while returning home from a business or pleasure trip to Boston, he was killed through the negligence of the defendant. The court held, distinguishing the case from some earlier decisions, that he was a passenger, and not an employé. In the Dickinson Case the plaintiff was an employé of a street railway company. By a rule of the company all employés in uniform were entitled to ride at any time free. After the plaintiff had finished his work for the morning of a certain day, he got aboard one of the cars of the defendant for the purpose of going to his dinner, and while riding on such car was injured. It was held that, although he was an employé, riding free under a rule of the company, he was nevertheless to be regarded as a passenger at the time of his injury, the same as those who had paid fare. Now, under this doctrine, it is apparent that the plaintiff cannot be regarded as a servant or employé of the company at the time of his injury. He had on the previous day received

a lay-off, and was not engaged in the service or on the business of the company at the time of the accident. It is true he was returning home, expecting to go to work the next day; but, nevertheless, on the day in question his time was his own, and he owed the defendant no duty until he actually resumed his work. He was not traveling to or from his work, or in immediate connection with it. It was no part of his duty as a servant of the defendant to take the train on which he was riding for the purpose of resuming his employment, or in the performance of any duty he owed the company. Under his contract of employment, he was paid by the run, and received no compensation when not at work; so that at the time he was injured he was not in the service of the company, and was receiving no wages or compensation from it. We are of the opinfon, therefore, upon the law and the facts, that the conductor of the train upon which the plaintiff was riding had apparent authority to receive him thereon as a passenger, and that he must be regarded as a passenger.

The judgment of the court below is affirmed.

(41 Or. 373)

GASTON V. CITY OF PORTLAND et al. (Supreme Court of Oregon. July 7, 1902.) MUNICIPAL CORPORATIONS-STREET ASSESSMENT VOID SALE SUIT TO ANNUL- INJUNCTION-EXPENDITURES IN PRIOR SUIT

RECOVERY.

Where a sale of property for an assess. ment for the opening up of a street was in a suit by the owner declared void because her damages had exceeded her benefits, she might not, in a subsequent suit to enjoin the opening of the street on the ground of illegality of the proceedings, recover her expenditures in having the sale declared void.

On rehearing. Denied.

For former opinion, see 69 Pac. 34

WOLVERTON, J. By the petition for rehearing herein it is insisted that the city, by its unlawful act in selling the property of the appellant, caused an additional expense to her of $100 or more, arising from the litigation made necessary in procuring the annulment of the sale. But that expense bears no relation to the present controversy. The cause of suit giving rise to it is entirely separate and distinct from this. Besides, having prevailed therein, it must be presumed that she has been justly and fully recompensed for her costs and disbursements, together with all damages sustained by the city's wrongful acts in that direction. So that there is no possible claim by which she should be reimbursed in that sum, nor does it afford any reason why the city should not prevail in this proceeding.

The petition for rehearing is therefore denied.

(41 Or. 489)

Ex parte NORTHRUP. (Supreme Court of Oregon. July 7, 1902.)

SUNDAY-PROHIBITION OF PARTICULAR OCCUPATION-CONSTITUTIONALITY - CLASS LEGISLATION-SPECIAL LAWS-BARBERS.

1. Sess. Laws 1901, p. 17, makes it a misdemeanor to work as a barber on Sunday, and provides a penalty for the infraction of the law. Held that, as the act applies to the entire state and equally to all persons within its scope, it is not special or local legislation for the punishment of crime, within the prohibition of Const. art. 4, § 23, subd. 2.

2. Sess. Laws 1901, p. 17. making it a misdemeanor to work as a barber on Sunday, is not class legislation though there is no general Sunday law.

3. Sess. Laws 1901, p. 17, making it a misdemeanor to work as a barber on Sunday, is not a deprivation of liberty or property without due process of law, or an encroachment on the equal rights of the citizen, in conflict with Const. U. S. amend. 14, or Const. art. 1, § 1, but is a valid exercise of the police power.

Appeal from circuit court, Multnomah county; John B. Cleland, M. C. George, and Alfred F. Sears, Judges.

Petition by W. N. Northrup against D. M. McLauchlan as chief of police of the city of Portland. From an order denying the writ, petitioner appeals. Affirmed.

C. M. Idleman, for appellant. D. R. N. Blackburn, Atty. Gen., and George E. Chamberlain, Dist. Atty., for respondent.

WOLVERTON, J. The legislature, at its last biennial session, enacted a statute making it "a misdemeanor for any person or persons to carry on the business of barbering on Sunday in Oregon." Sess. Laws 1901, p. 17. The petitioner is charged with its violation, and, being in the custody of an officer, instituted a proceeding in the circuit court by habeas corpus to secure his release, and, being unsuccessful, prosecutes an appeal to this court. The statute is challenged as in derogation to the fourteenth amendment to the federal constitution, and to section 1, art. 1, and section 23, art. 4, of the state constitution.

The first position taken by counsel for petitioner is that there is no Sunday law in this state, and that the act, by reason.of its embracing such persons only as may fall within the designation of barbers, is necessarily special. Special legislation is in hibited, by the state constitution, relative to numerous subjects specifically designated, among which are those enumerated in section 23, art. 4, and others that might be mentioned; but the subject of the legislation here inveighed against is not found among those so designated. It cannot be regarded as special legislation for the punishment of crimes and misdemeanors as inhibited by subdivision 2, § 23, supra, simply because it adds a penalty for an infraction of the law. The penalty is but an incident, and as the law

2. See Constitutional Law, vol. 10, Cent. Dig.

$660.

does not fix a different penalty for different persons falling within its scope, and as it applies alike to every locality within the state, it is neither special nor local within the meaning of such subdivision: nor does it seem to us that the act can be characterized as special legislation because there is no general Sunday law within the state. If the classification is a proper one, and the act operates alike upon every individual of the class, its validity cannot be made to depend❘ upon whether or not all persons are prohibited from doing any secular business or labor on Sunday. It is admitted that it is perfectly competent, under the constitution, to enact a law prohibiting any secular business or labor, other than works of necessity or mercy, upon the first day of the week, commonly called Sunday. The later adjudications are uniform to that purpose, and it would be a work of supererogation to attempt to review them. Hennington v. State, 90 Ga. 396, 17 S. E. 1009; Id., 163 U. S. 299, 16 Sup. Ct. 1086, 41 L. Ed. 166; Bloom v. Richards, 2 Ohio St. 387; State v. Petit, 74 Minn. 376, 77 N. W. 225; Petit v. Minnesota, 177 U. S. 164, 20 Sup. Ct. 666, 44 L. Ed. 716; Ex parte Andrews, 18 Cal. 678. So that the real and vital question herein is whether, in a broad sense, the act under consideration is obnoxious as class legislation.

A brief reference to the prior legislation of the state upon the subject will serve to give a clear understanding of the situation, and aid us materially in arriving at a correct and final solution of the controversy. In 1851, it was enacted by the territorial assembly "that no person shall keep open his or her store, shop, grocery, ball alley, billiard saloon, tippling house, or any place of gaming or amusement, or do any secular business, other than works of necessity and mercy, on the first day of the week, commonly called the Lord's Day or Sunday" (Laws 1854-55, p. 283, § 1), prescribing a penalty. In 1864, the state legislature adopted an act of identical import, except the words "or labor" were inserted after the phrase "or do any secular business"; and works of necessity were defined to be: (1) The buying and selling of meats, fish, or milk at retail, before 9 o'clock in the morning; (2) the buying and selling of drugs and medicines at retail or upon prescription; (3) the selling of food to be eaten on the premises where sold; and (4) the keeping open of barber shops and laboring at such trade until 10 o'clock in the morning. Deady's Laws, c. 49, § 653, subds. 1, 2, 3, 4. In 1865, this act was amended so as to read: "If any person shall keep open any store, shop," etc., "for the purpose of labor or traffic, or any place of amusement, on the first day of the week," etc., "provided that the above provision shall not apply to the keepers of drug stores, doctor shops, undertakers, livery stable keepers, barbers, butchers and bakers; and all circumstances of necessity and

mercy may be pleaded in defense, which shall be treated as questions of fact for the jury to determine when the offense is tried by jury" (Sess. Laws 1865, p. 34); and such was the condition of the law at the time of the enactment of the statute under consideration. It may be noted that the law of 1865 does not inhibit labor on Sunday, except it be in connection with a store, shop, grocery store, etc., kept open for that purpose, or for traffic, and it excepted barber shops with other business vocations from its operation; and thus, and by the former legislation of 1864, indicating a legislative policy of classifying different business occupations, including barbers, and of dealing with them with reference to such classifications. The effect of the act in controversy is to take the business of barbering out of the category of the exceptions and classifications contained in the law of 1865, and to absolutely inhibit the prosecuting of such business on Sunday. Under the act of 1864, it was inhibited partially; that is, after 10 o'clock in the morning, and, unless it was a business of necessity, it was also inhibited by the territorial act of 1854. Is the act in contravention of the fourteenth amendment of the federal constitution, in that it deprives the petitioner of liberty or property without due process of law, or of article 1, § 1, of the state constitution, in that it encroaches upon his guaranty of equal rights? Every individual, under the constitution, is entitled as of right to the greatest degree of freedom in action compatible with a just preservation of equal rights and privileges to every other citizen and the promotion of the public welfare. This is civil liberty. The fundamental principle upon which it is based is equality under the law, and it signifies not only freedom of the citizen from servitude and restraint, but accords to every one the right to be left free in the use of his powers and faculties, and to adopt and pursue such vocations and employment as his untrammeled will may suggest, subject only to such restraint as is necessary to secure the general welfare. The right of property, in its broad sense, is not only the right of possession and enjoyment, but also the right to secure it through any lawful industry, pursuit, or calling adopted in the exercise of one's liberty, which, it is said, "is the foundation of all wealth." Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62, 22 L. R. A. 340, 37 Am. St. Rep. 206. So that any encroachments upon the rights of a citizen, or class of citizens, guarantied to all under similar conditions and circumstances, may be said to deprive him or them of both liberty and property, and to be an invasion of the guarantied equality in rights.

With these preliminary observations, let us proceed to the examination of the classification complained of. Mr. Cooley says: "Doubt might also arise whether a regulation made for any one class of citizens, entirely arbi

trary in its character, and restricting their rights, privileges, or legal capacities in a manner before unknown to the law, could be sustained, notwithstanding its generality. Distinctions in these respects must rest upon some reason upon which they can be defended, like the want of capacity in infants and insane persons; and if the legislature should undertake to provide that persons following some specified lawful trade or employment should not have capacity to make contracts, or to receive conveyances, or to build such houses as others were allowed to erect, or in any other way to make such use of the property as was permissible to others, it can scarcely be doubted that the act would transcend the due bounds of legislative power, even though no express constitutional provision could be pointed out with which it would come in conflict." Cooley, Const. Lim. 484. The principle that there must be some natural and rational ground upon which to base the distinction for classification has been recognized and adopted by this court. "It may not be arbitrary, and requires something more than a mere designation by such characteristics as will serve to classify. The mark of distinction must be something of substance, some attendant or inherent peculiarity, calling for legislation, suggested by natural reason, of different character to subserve the rightful demands of governmental needs." Ladd v. Holmes (Or.) 66 Pac. 714, 716; State v. Frazier, 36 Or. 178, 59 Pac. 5. All admit the statute in question can only be sustained as a police regulation. In State v. Petit, supra, where the act prohibited all labor on Sunday except works of necessity and charity, and provided that keeping open a barber shop on Sunday should not be deemed a work of necessity or charity, it was held that the classification was not purely arbitrary, but that the apparent natural reasons suggesting the distinction were ample upon which to support legislative discretion in adopting it. The court, speaking through Mr. Justice Mitchell, says: "The object of the law was not to interfere with those who wish to be shaved on Sunday, or primarily to protect the proprietors of barber shops, but mainly to protect the employés in them, by insuring them a day of rest." This case was appealed to the supreme court of the United States, where the court, speaking through Mr. Chief Justice Fuller, says: "We recognize the force of the distinction suggested, and perceive no adequate ground for interfering with the wide discretion confessedly necessarily exercised by the states in these matters, by holding that the classification was so palpably arbitrary as to bring the law into conflict with the federal constitution." If not in conflict with the federal constitution, it is necessarily not in conflict with our own. In People v. Havnor, 149 N. Y. 195, 43 N. E. 541, 31 L. R. A. 689, 52 Am. St. Rep. 707, the court, in passing upon the constitutionality of a similar statute and assigning rea

sons for upholding the classification, says: "It is to the interest of the state to have strong, robust, healthy citizens, capable of self-support, of bearing arms, and of adding to the resources of the country. Laws to effect this purpose. by protecting the citizen from overwork and requiring a general day of rest to restore his strength and preserve his health, have an obvious connection with the public welfare. Independent of any question relating to morals or religion, the physical welfare of the citizen is a subject of such primary importance to the state, and has such a direct relation to the general good, as to make laws tending to promote that object proper under the police power, and hence valid under the constitution, which 'presupposes its existence, and is to be construed with reference to that effect.'" A like act was upheld in People v. Bellet, 99 Mich. 151, 57 N. W. 1094, upon the same principle. We are not unmindful of the fact, however, that there are other cases in irreconcilable conflict with these. Ex parte Jentzsch, 112 Cal. 468, 44 Pac. S03, 32 L. R. A. 664; Eden v. People, 161 III. 296, 43 N. E. 1108, 32 L. R. A. 659, 52 Am. St. Rep. 365; State v. Granneman, 132 Mo. 326, 33 S. W. 784; City of Tacoma v. Krech (Wash.) 46 Pac. 255, 34 L. R. A. 68. But we are impelled to the conclusion that the former are grounded upon the better reasoning; and being in harmony with the legislative policy, as indicated by the acts referred to, relative to the subject-matter, from an early date, and having the sanction of the federal supreme court, we are constrained to hold that the law is valid under both the federal and state constitutions.

The judgment of the trial court will, therefore, be affirmed.

(41 Or. 469)

ADVANCE THRESHER CO. v. ESTEB et al.

(Supreme Court of Oregon. June 30, 1902.) BONA FIDE PURCHASER-NOTICE-BURDEN OF

PROOF-BILL OF EXCEPTIONS.

1. A mortgage from a stranger to the title is not constructive notice to a purchaser of a prior unrecorded deed.

2. That property is assessed to another than the record owner is not constructive notice to a purchaser of a prior unrecorded deed.

3. The filing and recording of a certificate of levy of execution against land as the property of one not a record owner, no record owner being a party to the action in which judgment was obtained, is not constructive notice to a purchaser from the record owner of a prior deed to the execution defendant.

4. A grantee in a bargain and sale deed may be a bona fide purchaser, though it contain no covenant of warranty.

5. Plaintiff in an action at law to recover land, claiming under a deed unrecorded when defendants obtained legal title, has the burden of showing they had notice of his title.

6. Where the bill of exceptions does not purport to contain all the evidence, and the question is one of actual notice, an instruction that there was no fact for the decision of the jury cannot be held error.