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(180 N.W.)

January, 1923. On January 8, 1920, to fill election to supply a vacancy that has occurthe vacancy caused by Judge Sedgwick's red too late to make a nomination under the death, until it could be filled by election, provisions of the nonpartisan judiciary law

Honorable George A. Day was appointed by the Governor. Subsequently but not less than 30 days before the April primary, and pursuant to the provisions of the nonpartisan judiciary law, nominating petitions were filed in behalf of Honorable George A. Day and Honorable William C. Dorsey as candidates for "judge of Supreme Court." When their petitions were circulated and filed, the vacancy caused by the death of Judge Sedgwick was the only vacancy to be filled. Both candidates were nominated pursuant to the respective petitions filed in their behalf under the nonpartisan judiciary law governing nominations, and they are now candidates for such vacancy. Rev. St. 1913, §§ 2209, 2211, as amended, Laws 1917, c. 37, as amended, Laws 1919, cc. 88, 89; State v. Penrod, 102 Neb. 734, 169 N. W. 266.

On April 21, 1920, Honorable Leonard A. Flansburg was appointed by the Governor to fill the vacancy caused by the death of Judge Cornish. Relator contends that both vacancies, notwithstanding that Judge Cornish died only two days before the April, 1920, primary, should be filled by the electors of the state at the general election in November by writing in the names of persons and

voting for them. In support of his argument he cites section 21, art. 6, of the Constitution, which he says is self-executing. It provides: "In case the office of any judge of the Supreme Court, or of any district court, shall become vacant before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the Governor, until a successor shall be elected and qualified, and such a successor shall be elected for the unexpired term at the first general election that occurs more than thirty days after the vacancy shall have happened."

[3] We do not agree with relator's argument that the foregoing section of the Constitution is self-executing. No provision is made in that section for the nomination or the naming of candidates to be voted for at the general election to the end that the general election feature to which the section

refers may be carried into effect. It follows

that it must be considered in connection with section 20, art. 3, of the Constitution, which expressly provides:

"All offices created by this Constitution shall become vacant by the death of the incumbent, by removal from the state, resignation, conviction of a felony, impeachment, or becoming of unsound mind. And the Legislature shall provide by general law for the filling of such vacancy, when no provision is made for that purpose in this Constitution."

does not impose the duty upon the court of supplying that which the Legislature did not supply to make the constitutional provision effective.

"The right to vote is a political right or privilege to be given or withheld at the exercise of the lawmaking power of the sovereignty. It is not a natural right of the citizen, but a franchise dependent upon law, by which it must be conferred to permit its exercise. It can emanate only from the people, either in their sovereign statement of the organic law or through legislative enactment which they have authorized." 20 C. J. 60, § 13.

In considering the facts before us it is to be noted that the Legislature did not provide in the amendment to the nonpartisan judiciary law that judicial ballots should be prepared for the general election with blank spaces so that voters might write in names and vote for the persons who were not first nominated at the primary.

It is true that, under the general election law, it is provided that blank spaces may be placed on the ballot following the names of persons who have become candidates in the manner provided by the statute. Rev. St. 1913, § 1995. But the act last cited is general in its application and cannot be held to supersede a special act, such as the nonpartisan judiciary act, that relates to an independent subject and is complete in itself. In State v. Penrod, 102 Neb. 734, 169 N. W. 266, we held:

"Mandamus will not lie to compel a county clerk to place on the nonpartisan judiciary ballot the name of a person as a candidate for the office of judge of the county court who is not one of the two candidates who received the highest number of votes at the primary."

Substantially the same principle is involved here, and we adhere to the rule there announced as being applicable to the facts before us in the present case. In the Penrod Case it is also said:

"We deem it proper to suggest that relator's argument should be addressed to the Legisla

ture rather than to the courts."

The following Legislature, in 1919, so amended the law as to provide for the nomination of a candidate for county judge when less than two persons filed a petition to have their names placed on the primary election ballot; but it made no provision for the nomination of a candidate for supreme judge under like circumstances. Laws 1919, c. 89. It has been said often enough that in the division of the powers of government the judiciary shall not The fact that the lawmaking body has usurp the function of the Legislature. To made no provision for the nomination of do so would be judicial legislation, an insidcandidates to be voted for at the general ious judicial offense and one which may in time, if indulged, imperil the perpetuity of The recent constitutional convention of our our institutions. state composed of 100 representative citizens In State v. Drexel, 74 Neb. 776, at page 791, selected from the body of the people were in 105 N. W. 174, at page 180, we said:

"The right to freely choose candidates for public offices is as valuable as the right to vote for them after they are chosen. Both these rights are safeguarded by the constitutional guaranty of freedom in the exercise of the elective franchise."

In State v. Junkin, 85 Neb. 1, at page 6, 122 N. W. 473, at page 475 (23 L. R. A. [N. S.] 839), we said:

"Electors who desire to vote for a particular candidate for judge of the Supreme Court at the November election should be allowed

to take part in nominating him or in whatever

preliminary step the law requires as a condi

tion of allowing his name to be printed on the official ballot."

almost continuous session from December 2, 1919, until March 25, 1920. Among other proposed amendments submitted to the people was this:

"In case the office of any judge of the supreme court or of any district court shall become vacant before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the governor, for the unexpired term, and until a successor shall be elected and qualified." Constitution, as amended, article 5, § 21.

[4] Upon submission to the people September 20, the amendment so proposed was adopted by a vote approximating almost five to one of those voting on the question. The amendment so adopted is not, of course, controlling in the present case. It does not

In State v. Dubuclet, 28 La. Ann. 698, 704, become effective until January, 1921, but it

it is held:

"In civil governments, rights are enforced by rules and methods having the authority of law, and they can be legally enforced in no other way. The high behests of the organic law are not always self-enforcing; the manner in which its commands are to be obeyed is often left to be provided by the legislative branch of the government. To this branch of the state gov

ernment the organic law delegates the power to provide rules and principles by which its provisions are to be made practically useful, and especially so when the organic law is silent on the subject. Without such prescribed rules established by law, courts have no guide by which to proceed in their investigation of litigated questions."

In the body of the opinion the court said: "If the lawmaker has omitted to enact the law under which proceedings in such cases are to be conducted, it is a casus omissus which the courts cannot supply."

To the same effect is the text in 12 C. J. 730, § 106.

In State v. Gardner, 3 S. D. 553, 54 N. W. 606, it is said:

"There is no inherent reserved power in the people to hold an election to fill a vacancy in an elective office. Such election can only be held when and as authorized by law. In section 37, art. 5, of the Constitution, which provides that 'vacancies in the elective offices provided for in this article (judiciary) shall be filled by appointment until the next general election,' etc., the expression 'next general election' means the next election at which it is provided by law that the officer may be elected whose office has become vacant."

is not without significance that the people are committed to the policy that is embodied in the amendment, namely, that the person appointed to fill a vacancy in the office of the Supreme Court or of any district court shall hold the office for the unexpired term for which the regularly elected incumbent was elected.

[5] The Legislature having provided that candidates for the office of judge of the Supreme Court shall have their petitions filed at least 30 days prior to the primary election and having made no provision for the nomination of candidates for that office after the expiration of such 30-day period, the court is without authority to supply that which the Legislature did not see fit to supply. Rev. St. 1913, § 2209, as amended, Laws 1919, с. 88.

Our construction of article 6, § 21, of the Constitution, seems to be supported by the courts of the states having similar constitutional provisions where a like question has been raised. State v. Portland Railway Light & Power Co., 56 Or. 32, 107 Pac. 958; Blake v. Board of Commissioners, 5 Idaho, 163, 47 Pac. 734; Arizona E. R. Co. v. Matthews, 20 Ariz. 282, 180 Pac. 159, 7 A. L. R. 1149; Kelsey v. District Court, 22 Wyo. 297, 139 Pac. 433; Cauthron v. Murphy, 61 Tex. Civ. App. 462, 130 S. W. 671. From what has been said herein, and in view of the authorities, it seems clear to us that the relief prayed for by relator must be denied.

Writ denied.

DAY and FLANSBURG, JJ., not sitting.

(180 N.W.)

STEVENS v. LUTHER et al. (No. 21051.) (Supreme Court of Nebraska. Nov. 10, 1920.)

(Syllabus by the Court.)

1. Negligence 93 (2)-Husband's negligence in driving not imputable to wife.

Negligence on the part of a husband in driving an automobile cannot be imputed to his wife, who is riding with him, unless the parties are engaged in an enterprise giving the wife the power and duty to direct or to assist in the operation and management of the car.

2. Master and servant 301(1)-Owner of family automobile liable for child's negligent driving.

The owner of an automobile kept for family purposes is liable for injuries inflicted upon a stranger as a result of the negligent driving of one of his children, where the car is occupied by members of the family and is being used for one of the purposes for which it is

kept.

3. Municipal corporations

706(3)-On inju

ry by driving of automobile at unlawful speed, negligence may be inferred.

If a driver of a motor vehicle runs it at a rate of speed "forbidden by ordinances enacted for the safety of the general public, and injuries result, these facts afford reasonable grounds for inferring negligence prejudicial to the rights of those in whose interests and for whose protection such municipal regulations were adopted." Omaha Street R. Co. v. Duvall, 40 Neb. 29-35, 58 N. W. 531, 533.

4. Case of personal injury in automobile collision distinguished from decided cases.

Case distinguished from those mentioned in the opinion, where the violation of a positive and affirmative duty enjoined upon one for the protection of others to whom he owes a duty is the negligence alleged, such as statutes requiring safety devices upon machinery, fire escapes, fencing of railroads, etc.

5. Municipal corporations 706(8)-In action for injury in automobile collision, an instruction as to purpose of regulations held properly refused.

Evidence and instructions examined, and held, that no error prejudicial to defendant occurred at the trial.

6. Walker v. Klopp, 99 Neb. 794, 157 N. W. 962, L. R. A. 1916E, 1292, disapproved.

In so far as the opinion and syllabus in Walker v. Klopp, 99 Neb. 794, 157 N. W. 962, L. R. A. 1916E, 1292, are not in harmony with the views expressed in this opinion, they are disapproved.

Appeal from District Court, Lancaster County; Flansburg, Judge.

Action by Daisy M. Stevens against Peter P. Luther and others. Judgment for plaintiff, and defendants appeal. Affirmed.

T. J. Doyle, of Lincoln, for appellants. George A. Adams and Max V. Beghtol, both of Lincoln, for appellee.

LETTON, J. Defendants appeal from a judgment for $1,950 recovered for personal injuries received by plaintiff in an automobile collision.

Plaintiff's husband was driving west on L street in the city of Lincoln with his wife and infant child, when his Ford automobile was struck by a seven-passenger Overland car at the intersection of Eighteenth and L streets. The Ford car was turned completely around, and all of the spokes were torn from its right hind wheel. Plaintiff was thrown from the automobile and suffered painful and permanent injuries. The Overland car was owned by defendant Peter P. Luther, and was being driven by his daughter, defendant Margaret Luther.

[1] 1. Numerous assignments of error are presented, dealing mostly with the instructions given, or with instructions requested by defendants and refused. One of the questions raised is that of imputed negligence. On this issue the court instructed the jury that

"Negligence on the part of the plaintiff's husband, from the mere fact alone that plaintiff's husband was driving the car, would not be considered in law, the negligence of the plaintiff herself, nor affect in any degree her right, if any, to recover, as the wife is ordinarily considered a passenger in the car driven by her husband, and not chargeable with the direction, control, nor manner of driving."

This court has held that

"Except with respect to the relation of partnership, or of principal and agent, or of master and servant, or the like, the doctrine of imputed negligence is not in vogue in this state." Hajsek v. Chicago, B. & Q. R. Co., 68 Neb. 539, 94 N. W. 609; Craig v. Chicago, St. P.. M. & O. R. Co., 97 Neb. 586, 150 N. W. 648.

Negligence on the part of a husband in driving an automobile, therefore, cannot be imputed to his wife, who is riding with him, unless the parties are engaged in an enter prise giving the wife the power and duty to direct or to assist in the operation and management of the car. 8 L. R. A. (N. S.) 656, note (Cotton v. Willmar & S. F. R. Co., 99 Minn. 366, 109 N. W. 835); L. R. A. 1915A, 764, note (Christopherson v. Minneapolis, St. P. & S. S. M. R. Co., 28 N. D. 128, 147 N. W. 791, Ann. Cas. 1916E, 683). Plaintiff had no such power in the present case. The car belonged to the husband, and the evidence shows that he alone was controlling it; the wife was a mere passenger. It is true plaintiff might be guilty of negligence on her own part which would bar her right to recovery, but this phase was properly covered in a subsequent portion of the instruction. On the question of imputed negligence, we find no error with respect either to the instructions given or the instructions refused.

[2] 2. Complaint is made of the court's instruction No. 5, which told the jury that defendant Margaret Luther in this case was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the agent of her father, and the father was liable for any actionable negligence on her part in driving. The father was not present at the time of the accident, but the car was being driven by the daughter, with his knowledge and consent, to convey members of the family to church. He testified that the automobile was kept for the pleasure and convenience of the family, that the daughter usually drove it, and that taking the family to church was one of the purposes for which it was kept. The question presented by de fendant is new in this jurisdiction. But by the weight of authority, in the jurisdictions where the question has been determined, the owner of an automobile kept for family purposes is liable for injuries inflicted upon a stranger as a result of the negligent driving of one of his children, where the car is occupied by members of the family and is being used for one of the purposes for which it is kept. 5 A. L. R. 226, notes (Arkin v. Page, 287 Ill. 420, 123 N. E. 30). See, also, 41 L. R. A. (N. S.) 775, notes (McNeal v. McKain, 33 Okl. 449, 126 Pac. 742); 50 L. R. A. (N. S.) 59, notes (Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020); L. R. A. 1916F, 223 (Griffin v. Russell, 144 Ga. 275, 87 S. E. 10, Ann. Cas. 1917D, 994); L. R. A. 1918F, 365 (Berry v. Pullman Co., 240 Fed. 816, 162 O. C. A. 50). Some of the courts have drawn a distinction between cases where the car is being used by one of the children alone, and where it is occupied by other members of the family as well; but this distinction need not here be

considered.

[3] It is objected that the court erred in giving instruction No. 7, which told the jury that a person violating a statute fixing a rate of speed for automobiles is guilty of negligence as a matter of law. Counsel say:

"If the court imparts to the jury the statute regulating the speed of automobiles, it should then say to the jury: 'It is for you to determine whether or not the excess rate of speed, if you find it was in excess of that fixed by statute, contributed to the injury under all the facts and circumstances of the case.'"

may be advisable in this connection to review the former decisions of this court with respect to the question whether the violation of a statute or ordinance enacted for the safety or protection of persons or property constitutes negligence per se, or is only evidence of negligence for the jury to consider with all the other evidence in the case on that issue. The rule that the violation of a statute requiring signals to be given by railroad trains approaching crossings is evidence to be considered by the jury in ascertaining whether defendant was guilty of negligence is first laid down in Nebraska in Omaha, N. & B. H. R. Co. v. O'Donnell, 22 Neb. 475, 35 N. W. 235, and with respect to the violation of a city ordinance of this nature in Union P. R. Co. v. Rassmussen, 25 Neb. 810, 41 Ν. W. 778, 13 Am. St. Rep. 527.

The question is discussed at length by Irvine, C., in Chicago, B. & Q. R. Co. v. Metcalf, 44 Neb. 848, beginning at page 859, 63 N. W. 51, 54, 28 L. R. A. 824. The doctrine is reiterated that the violation of a statute requiring a bell to be rung or whistle to be sounded by a locomotive when approaching a road crossing is not negligence per se, but only evidence of negligence. Since this decision it has been the rule with few exceptions for the district courts of the state to instruct that the violation of such a statute or ordinance is evidence of negligence which the jury is entitled to consider in connection with all other evidence in the case. Perhaps in a few opinions since that time, where the precise question was not under discussion or involved, it has been loosely said that the violation of such a statute or ordinance was negligence.

It has been argued in another case now under consideration (Dorrance v. Omaha & C. B. Street R. Co. [No. 21,135] 180 N. W. 90) that a different rule applies to statutes from that relating to ordinances; but the same

rule is applied to the violation of a statute in Omaha Street R. Co. v. Duvall, 40 Neb. 29, 58 N. W. 531, Omaha & R. V. R. Co. v. Talbot, 48 Neb. 627, 67 N. W. 599, Missouri P. R. Co. v. Geist, 49 Neb. 489, 68 N. W. 640, and Wal

In the instruction given the jury were told lenburg v. Missouri P. R. Co., 86 Neb. 642-646, that it was for them

"to determine the degree or amount of such negligence under these instructions, in view of all the facts and circumstances and other acts of negligence, if any, proven at the trial, and to determine whether such negligence was the proximate cause of, or contributed to the accident."

126 N. W. 289, 37 L. R. A. (N. S.) 135, and to the violation of an ordinance in Riley v. Missouri P. R. Co., 69 Neb. 82-87, 95 N. W. 20, Omaha Street R. Co. v. Larson, 70 Neb. 591, 97 N. W. 824, Lincoln Traction Co. v. Heller, 72 Neb. 127, 100 N. W. 197, 102 N. W. 262, Olson v. Nebraska Telephone Co., 87 Neb. 593, 127 N. W. 916, and Rule v. Claar Transfer & Storage Co., 102 Neb. 4, 165 N. W. 883.

In a note in 5 L. R. A. (N. S.) 226 (Sluder v. St. Louis Transit Co., 189 Mo. 107, 88 S. W. 684), a large number of cases are cited upholding the doctrine of this court. The Su

This seems to meet the criticism made. The evidence justifies the conclusion that both automobiles were traveling at a rate of speed exceeding that fixed by the statute. Each driver was equally guilty of a violation of its terms, and under all the facts and cir-preme Courts of the United States and of

cumstances proved at the trial we are satisfied that defendant suffered no prejudicial wrong by the giving of the instruction.

New York, Massachusetts, California, Illinois, Indiana, Iowa, Georgia, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, of Ontario and England, take the view that the violation of a duty prescribed by such a statute or ordinance is evidence proper for

[4] On account of some lack of harmony it Montana, New Hampshire, Ohio, Oregon, (180 N.W.) Pennsylvania, South Carolina, Utah, Wiscon-duty upon drivers of street cars, automobiles, sin, Virginia, and Washington, also the courts and vehicles generally, to use due care for

the rights of others when driving upon streets and in crossing intersections. The exercise of due care demands that such vehicles, especial

the consideration of the jury, to be considered ly at crowded intersections, move at a modwith all the other circumstances in the case erate rate of speed. A statute or an ordiupon the question of the defendant's negli- nance which seeks to prescribe a limit of gence. Mr. Justice Lamar says in Grand speed upon streets or intersections, and forTrunk R. Co. v. Ives, 144 U. S. 408, 418, 12 Sup. Ct. 679, 683 (36 L. Ed. 485):

"Indeed, it has been held in many cases that the running of railroad trains within the limits of a city at a rate of speed greater than is allowed by an ordinance of such city is negligence per se. Schlereth v. Missouri P. R. Co., 96 Mo. 509, 10 S. W. 66; Virginia M. R. Co. v. White, 84 Va. 498, 5 S. E. 573. But perhaps the better and more generally accepted rule is that such an act on the part of the railroad company is always to be considered by the jury as at least a circumstance from which negligence may be inferred in determining whether the company was or was not guilty of negli gence"-citing a number of cases.

There are decisions which at first reading may seem to be inconsistent with this rule, but most of them may be distinguished on account of the different character and purpose of the statutes involved. Statutes requiring protective devices to be placed upon machinery, upon barbed-wire fences, scaffolding statutes, railroad fencing statutes, fire escape statutes, and other statutes of like nature, impose a mandatory and affirmative duty upon the owners of such property, and even in states where the violation of speed statutes is held to be only evidence from which negligence may be inferred, the courts generally hold that a failure to perform a mandatory duty so enjoined is negligence per se, and if any person to whom the duty is owed, or for whose protection the statute is enacted, is injured in consequence of such violation, a case is made.

In New York the violation of a statute requiring fire escapes is held to be negligence for which one injured in consequence of the failure to supply the required appliances is liable in damages. The cases of Strahl v. Miller, 97 Neb. 820, 151 N. W. 952, Ann. Cas.

bids a greater speed, may make an act unlawful and subject the doer to punishment, where before its enactment no breach of law existed; but while in some instances the speed of a vehicle may of itself constitute negligence, in other instances, although the act may be unlawful in the sense that the doer is liable to punishment, no reasonable mind would say that the act was negligent of itself. Take, for example, the statute under consideration, which provides that it is unlawful to operate an automobile at intersections of streets within a city at a speed exceeding 6 miles per hour. We all know that in the great majority of cities, many of which in this state have less than 3,000 inhabitants, to drive across the intersections of streets at 7, 8, 10, or 12 miles an hour is entirely consistent with the exercise of due care, and therefore, except under special circumstances, it is not negligence. In fact, circumstances may arise where, in order to avoid an accident, it would be negligence not to exceed the statutory limit. This law has now been repealed, and a more reasonable statute enacted. Laws 1919, с. 222, § 28.

[6] At the time of the decision in the O'Donnell Case automobiles had not been invented, and the numerous serious and fatal accidents to occur from reckless driving could not be foreseen. If the court were now establishing a rule for the first time, it might be inclined to follow the other line of decisions; but that which has been the law of the state, and accepted as such by the people and the courts for over 30 years, ought not to be set aside without the most convincing reasons. The case of Walker v. Klopp, 99 Neb. 794, 157 Ν. W. 962, L. R. A. 1916E, 1292, may seem to be, and has been considered by district judges and some members of the bar to be, in con

1917A, 141, and Hoopes v. Creighton, 100 Neb. flict with the well-established rule. The case 510, 160 N. W. 742, L. R. A. 1917C, 1146, Ann. was properly decided, as under the facts the Cas. 1917E, 847, considering a statute relat- issue was one for a jury to decide; but we

ing to fire protection by hotel keepers, Vanderveer v. Moran, 79 Neb. 431, 112 N. W. 581, a statute relating to guarding barbed-wire fences, McCarthy v. Ravenna, 99 Neb. 675, 157 N. W. 629, a statute requiring machine shafting to be guarded, Butera v. Mardis Co., 99 Neb. 815, 157 N. W. 1024, a statute relating to hoists and scaffolds, are cases illustrating the latter principle. Other cases stating the same principle are cited in the opinion in the case last mentioned.

Statutes limiting the speed of vehicles are upon a different footing. There is a general

think the opinion does not distinguish be tween the cases cited, one of which was a street railway case falling within the rule, and one a railroad fencing case falling under the other principle. The opinion and syllabus are confusing and not in harmony with our former decisions, and in so far as in conflict with the rule of Omaha Street R. Co. v. Duvall, 40 Neb. 29, 58 N. W. 531, cited in the same opinion, the case is disapproved.

[5] The remaining assignments of error need not be considered in detail. Most of them are disposed of by the views expressed

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