33 Fed. Rep. 801,-engineer and switchman; | attempt to refine, based upon the notion of Van Avery v. Union P. R. Co. 35 Fed. Rep. 'grades' in the service, or, what is much the 40,-engineers of different trains; Connelly same thing, distinct 'departments' in the v. Minneapolis E. R. Co. 38 Minn. 80, 35 N. service (which 'departments' frequently exW. 582,-a sectionman and an engineer or ist only in the imagination of the judges, and brakeman; Howard v. Denver & R. G. R. Co. not in fact), will breed the confusion of the 26 Fed. Rep. 837,—an engineer and fireman Ohio and Kentucky experiments, whose of different trains; Houston & T. C. R. Co. courts have constructed a labyrinth in v. Rider, 62 Tex. 267; Gormley v. Ohio & M. R. which the judges that made it seem to be Co. 72 Ind. 31; Collins v. St. Paul & S. C. R. able to 'find no end; in wandering mazes Co. 30 Minn. 31, 14 N. W. 60; Clifford v. Old lost.' The real inquiry is, Was the Colony R. Co. 141 Mass. 564, 6 N. E. 751; injury caused by another servant one of the Keys v. Pennsylvania Co. (Pa.) 1 Cent. Rep. ordinary risks of the particular employ893, 3 Atl. 15; Whaalan v. Mad River & L. E. ment? If so, the grade, whether higher, R. Co. 8 Ohio St. 249-in each case an engi- lower, co-ordinate, or the department of the neer and a sectionman." In the same case at-faulty servant, it is of no consequence. It tention is called to the reasoning of Judge is a condition of the contract of service that Cooley in his work on Torts (543), in which the servant takes upon himself the risk of he combats the idea that the question can be accidents in the common course of the busisolved by reference to the grades of the in-ness,-all open and palpable risks, including jured and negligent servants, respectively, the negligence of all fellow servants, of whatand denies that reason, or logic, or public ever grade, in the same employment." In policy gives sanction to such a doctrine. view of the dubious state of the law on this Reference is also made to the article of subject in our own and sister states, brought Judge Dillon in 24 Am. Law Rev. 175, which about by the introduction of new, but not is so appropriate to this case as to justify its useful, rules and theories, is it not time to verbatim reproduction here, as follows: set the target signal of danger, and to re"The master owes certain defined, personal, turn to the beaten track, lit up by the "gladunalienable, nonassignable duties towards some light of jurisprudence," which the exservants. These duties may be devolved on perience of ages and the wisdom of the others by the master, but not without re- brightest legal minds of the world has laid course on him. In the general out for us, and to cease, like moths, to burn American law, as I understand it, the doc- our wings in the candles of "grades" and trine of vice principal exists to this extent, "departments?" and no further, viz., that it is precisely commensurate with the master's personal duties towards his servants. As to these, the servant who represents the master is what we may call for convenience a 'vice principal,' for whose acts and neglects the master is liable. Beyond this the master is liable only for his own personal negligence. This is a plain, sound, safe, and practicable line of distinction. We know where to find it, and how to define it. It begins and ends with the personal duties of the master. Any

The judgment of the circuit court is reversed.

Robinson and Williams, JJ., concur in on the the judgment of reversal herein ground that the negligence shown was that of the engineer, who, under the decisions in this state, was a fellow servant with the plaintiff, but do not regard the "departmental doctrine" as involved in this case. Brace, J., dissents.

.1.

v.

NEBRASKA SUPREME COURT.

Andrew J. HANSCOM
Max MEYER et al., Appts.

(........Neb................

.)

Evidence examined, and found that the Omaha Mercury is a weekly publication, circulating among various classes of people within the county and state; that its printed matter consists principally of legal notices and information regarding the courts, and of legal matters in general, and also advertising of a miscel

Headnotes by HOLCOMB, J.

NOTE.- -As to what constitutes a newspaper within meaning of statute as to publication of legal notices, see Lynch v. Durfee (Mich.) 24 L. R. A. 793; and Lynn v. Allen (Ind.) 33 L. R. A. 779.

laneous character, literature of a general
kind, and a limited amount of general news
of current events. Held, that such publica-
tion is a newspaper within the meaning of
$ 497 of the Code of Civil Procedure; that
the fact that it also makes a specialty of
some particular class of business, and con-
veys intelligence of particular interest to
those engaged in such business, will not
thereby deprive it of its general classifica-
tion as a newspaper, within the meaning of
the statute.

2. Held, also, that the principal dis-
tinguishing feature of a newspaper,
in contemplation of the statute, is that it
be a publication appearing at regular, or al-
most regular, intervals. at short periods of
time, as daily or weekly, usually in sheet
form, and containing news; that is, reports
of a
of happenings of recent occurrences
varied character, such as political, social,
moral, religious, and other subjects of >

similar nature, local or foreign, intended for to be given, for at least thirty days before the information of the general reader.

(March 21, 1900.)

APPEAL by defendants from an order of the District Court for Douglas County refusing to set aside a foreclosure sale of real estate on the ground that the notice of sale was not published in a legal newspaper. Affirmed.

the day of sale, by advertisement in some newspaper printed in the county, or in case no newspaper be printed in the county, in some newspaper in general circulation therein. .. All sales made without such advertisement shall be set aside on motion by the court to which the execution' is returnable." The point in issue is whether the Omaha Mercury is a newspaper, within the meaning of the section quoted. In the The facts are stated in the opinion. affidavit in support of the motion to set Mr. Charles S. Elgutter, for appellants: aside it is said: "That said Omaha MerIn 1842 the Attorney General of the Unit-cury, published weekly at Omaha, Nebraska, ed States was called upon by the Postmas-is a class paper, devoted especially to the inter General for an opinion as to what, under terests of the lawyers of Douglas county, the postal laws of the United States, was a "newspaper." He made the following sum

mary:

"On the whole, the only requisites of a newspaper, which I think must be judicially held indispensable, are:

"1. That it be bona fide published; that it is for everybody's use.

"2. That it is published in numbers, not perhaps with exact regularity, but something approaching to it.

"3. That it conveys news, not mere dissertation and discussion, or literary and poetical miscellanies.

"4. That it be in sheets, and in rather a cheap form."

This opinion is in the line of what is regarded as a true interpretation of the word "newspaper," as used in the statute under

consideration.

Beecher v. Stephens, 25 Minn. 146; Hull v. King, 38 Minn. 349, 37 N. W. 792; Lynch v. Durfee, 101 Mich. 171, 24 L. R. A. 793, 59 N. W. 409; State ex rel. Elliott v. Holliday, 35 Neb. 333, 53 N. W. 142; Kerr v. Hitt, 75 Ill. 51; Kellogg v. Carrico, 47 Mo. 157; Kingman v. Waugh, 139 Mo. 360, 40 S. W. 884; Williams v. Colwell, 18 Misc. 399, 43 N. Y. Supp. 720; Lynn v. Allen, 145 Ind. 584, 33 L. R. A. 779, 44 N. E. 646.

This affiant

Nebraska; that said Omaha Mercury is a paper which is confined to the particular trade, calling, or business, of the lawyers of Omaha, and has a limited circulation, and is not a newspaper, as by law provided and required." A copy of one issue of the paper is made an exhibit, which is said to be "a fair sample of said publication." The proprietor of the publication challenged makes affidavit that "he is the owner and proprietor of the Omaha Mercury, a newspaper printed and circulated every Friday in the city of Omaha, Douglas county, Nebras ka, and elsewhere. says that it is not true that said Omaha Mercury is a class paper, or that it is confined to the interests of the lawyers of Omaha or Douglas county; that said Omaha Mercury, then known as the 'Omaha Watchman,' was established in the year 1870, and has been published weekly ever since said date; that said paper contains each week news of a general character, such as is to be found in the average weekly paper published in Nebraska; that of late years it has made a specialty of the news of the courts and of legal matters in general, but that it is not true that it is devoted to the legal profession in any sense which would render it a 'class publication'; that said paper has a large and valuable subscription list, and that its said subscribers are of all classes and professions; that said newspaper has a wide circulation in Douglas county and the state of Nebraska, but that it is also taken and paid for by various classes of people in a great number of the states of the Union; that for the past twenty years it has been the custom of lawyers In proceedings of foreclosure of a real- and others to publish legal notices in said estate mortgage in the district court of paper, so much so that the people of DougDouglas county, on an application for con- las county and the state of Nebraska, and firmation of a sale of real estate made in throughout the entire United States, look said action, the defendants (appellants) ob- first in its columns for legal advertisements jected thereto, and moved to set aside the in which they are interested; that it has sale on the ground that notice of sale by published in the past, and still continues to publication in the Omaha Mercury was in-publish, the greater percentage of legal nosufficient; alleging that that publication was not a newspaper, as provided for by § 497 of the Code of Civil Procedure. The objection was overruled, and by appeal the case is brought to this court.

Measured by these standards, the scope of the "Omaha Mercury" is altogether too narrow to be classed as a "newspaper."

Messrs. L. F. Crofoot and James S. McIntosh also for appellants.

Mr. George E. Pritchett for appellee.

Holcomb, J., delivered the opinion of the

court:

tices in Douglas county, including orders required to be published by the district and circuit courts of the United States and of the district and county courts of Douglas county and that said paper is commonly The section referred to provides as fol- designated by the judges of the aforesaid lows: "Lands and tenements taken in exe-courts as the paper in which to publish the cution shall not be sold until the officer cause various orders required to be published by public notice of the time and place of sale said courts." Webster's Dictionary defines

a newspaper to be: "A sheet of paper, in the days when these statutes were enacted, printed and distributed at stated intervals, meant what it means to-day,-a sheet of pafor conveying intelligence of passing events, per, printed and distributed at short interadvocating opinions, etc.; a public print vals, for conveying intelligence of passing that circulates news, advertisements, pro- events; a public print that circulates news, ceedings of legislative bodies, public an- advertisements, proceedings of legislative nouncements, etc." Burrill, Law Dictionary, gives this definition: "A printed publication, issued in numbers at stated intervals, conveying intelligence of passing events. The term 'newspaper' is properly applied only to such publications as are issued in a single sheet and at short intervals, as daily or weekly."

tion, within the meaning of the statute. To the same effect is Williams v. Colwell, 18 Misc. 399, 43 N. Y. Supp. 720, decided in 1896, where the writer of the opinion has collated the more important cases up to that date upon the subject. Says the writer of the opinion, after reviewing the authori ties: "The facts stated in the affidavit and stipulation read on the motion bring this case within the cases cited sustaining publi cations of legal notices. While the principal news published in the Daily Mercantile Review is of especial value to attorneys, bankers, brokers, commission merchants, and those engaged in the real-estate business, yet it is shown by the affidavit and stipulation that several columns are devoted to general advertising and to the publication of local and other news of general interest, and that it has a general circulation."

bodies, public documents, and the like." In Lynn v. Allen, 145 Ind. 584, 33 L. R. A. 779, 44 N. E. 646, it is held that a periodical, ephemeral in form, issued daily except Sundays, devoted to the general dissemination of legal news, and containing other matter of general interest to the public, is such a paper. In the case of Railton v. Lauder, It is difficult, if not impossible, to deter- 126 Ill. 219, 18 N. E. 555, the evidence in mine with clearness and exactness where the the case showed that the Chicago Daily Law lines of demarkation should be drawn be- Bulletin was in general circulation throughtween a newspaper, in a legal and common out the city of Chicago and the state of Illiacceptation of the term, and the numerous nois, among judges, lawyers, and real-estate publications devoted to some special pur- brokers, merchants and business men generpose, and which circulate only among a cer- ally. Its contents consisted for the most tain class of the people, and which are not part of legal matters, but it contained adwithin the purview of statutes requiring vertisements not confined to any one calling publication of legal notices in some news- or trade. It also published news and inforpaper. The daily and weekly newspapers mation of a general secular character, was common to all parts of the country, published in Chicago, and had a general cirof general circulation among the culation. The paper in question was held people, without regard to class, voca- to be a secular newspaper of general circulation, or calling, devoted to the gathering and dissemination of news of current events of interest to all, and usually espousing and advocating principles of some political party with persistency, if not at all times with consistency, are, without doubt, newspapers, within the meaning of the statute. On the contrary, many publications, such as literary, scientific, religious, medical, and legal journals, that are obviously for but one class of the people, and that class always but a small part of the entire public, are not newspapers, within the legal and ordinary meaning of the word; and it would be manifestly unjust, as well as against the letter and spirit of the law, to recognize such publications as proper for the advertisement of legal notices,-the object in all cases being to give wide and general publicity regarding the subject of which notice is required to be published. The paper in question partakes, in a degree, of the charac- The paper in question has been establised teristics of each of the two classes mentioned. for a number of years, and is published If, however, it has the distinguishing feat-weekly. As stated in an affidavit in the ures required to make it a newspaper as or- case, “Of late years it has made a specialty dinarily defined, the fact that it also makes of the news of the courts, and of legal mata specialty of some particular class of busi- ters in general." It appears to have, acness, and conveys intelligence of particular cording to the affidavit, a large and valuainterest to those engaged in such business, ble subscription list, and to circulate among will not thereby deprive it of its general various classes of people throughout the classification as a newspaper, within the county and state, as well as the United meaning of the statute. In Lynch v. Dur- States. It has been recognized as a legal fee, 101 Mich. 171, 24 L. R. A. 793, 59 N. W. newspaper by the probate court of the coun409, it is held: "A weekly paper, con- ty, the district court, and the Federal courts. taining matter of general interest, and Its printed matter consists principally of having a general circulation among pro- legal notices, information regarding courts, fessional and business men, is a newspaper, and a legal directory of the Douglas county within the meaning of How. Stat. § bar. Some advertising of a miscellaneous 5801, providing for publication in a character, literature of a general kind, comnewspaper of certain notices in probate monly designated "plate matter," and what proceedings, though it is primarily de- purports to be information of the actions of voted to disseminating matters of Congress, two addresses by lawyers, and a interest to the legal profession." In the limited amount of general news of current opinion it is said: "But a newspaper, even events, are found in its columns, although

we are constrained to say that there is quite a dearth of the latter, as is shown by the exhibit, which has rendered it more difficult to reach a correct conclusion in this case. The principal distinguishing feature of a newspaper, in contemplation of the statute, in our opinion, is that it be a publication appearing at regular, or almost regular, inintervals, at short periods of time, as daily or weekly, usually in sheet form, and containing news; that is, reports of happenings of recent occurrence, of a varied character, such as political, social, moral, religious, and other subjects of a similar nature, local or foreign, intended for the information of the general reader. It is the one quality of news which gives it its general interest, and secures for it a general circulation among people of different classes and callings, whom the statute seeks to reach by the requirement of notice by publication in a news

paper. It should be noted, too, that, in a degree, the presence of advertisements not appealing to any particular class, trade, or profession constitutes a factor tending to bring a publication possessing the qualifi cations heretofore mentioned within the designation of a newspaper of general circulation. While some effort has been made by the legislature to define a newspaper, and limit the publication of legal notices to papers which are most likely to have a bona fide circulation among the general public where published, so far nothing of a permanent nature has been accomplished. In the absence of such legislation, we are disposed to the opinion, under the evidence presented, that the Omaha Mercury is a newspaper, within the meaning of the statute, and as defined by the authorities herein adverted to. It follows that the ruling complained of is correct, and is affirmed.

NEW JERSEY COURT OF ERRORS AND APPEALS.

David W. OLIVER

v.

Mayor, etc., of JERSEY CITY et al., Plffs.

in Err.

(........N. J.........)

*1. An officer legally elected and qualified, who enters upon the duties of his office, and afterwards is appointed to and accepts another office, but in good faith continues to publicly discharge the duties of the first, his term not having expired, and no successor having been appointed or elected

2.

in his stead, nor any adjudication made against his title,-is an officer de facto.

The official acts of an officer de

involving his integrity or want of good faith, the officer himself is not a necessary party to the suit.

ERR

(November 20, 1899.)

RROR to the Supreme Court to review a judgment setting aside an ordinance of the board of street and water commissioners of Jersey City granting a railroad the right to cross a street at grade. Reversed. The facts are stated in the opinion. Messrs. W. D. Edwards and C. L. Corbin, for plaintiffs in error:

The prosecutor had no interest to warrant the writ.

State, Montgomery, Prosecutor, v. Trenfacto are valid, as far as the rights of ton, 36 N. J. L. 79; State, Traphagen, third persons and the public are concerned, Prosecutor, v. Jersey City, 52 N. J. L. 65, 18 unless the defects in the officer's title are no- Atl. 586; State, Middleton, v. Robbins, 54 torious, and sufficient to overcome the ap-N. J. L. 566, 25 Atl. 471; Tallon v. Hoboken, parent evidence to the contrary; but when 60 N. J. L. 212, 37 Atl. 895; H. B. Anthony they see a person occupying an important Shoe Co. v. West Jersey R. Co. 57 N. J. Eq. public office by virtue of an election by the 607, 42 Atl. 279; Smith v. Boston, 7 Cush. people, and publicly exercising its duties 254; People ex rel. Bristol v. Ingham Counwithin the period for which he was elected, they are entitled to consider him to be sucht Supers. 20 Mich. 95; Chicago v. Union officer, and will be protected in their rights Bldg. Asso. 102 Ill. 379, 40 Am. Rep. 598; if they do so. Hesing v. Scott, 107 Ill. 600; Brady v. Shinkle, 40 Iowa, 576.

3. When a person legally holding one office is elected or appointed to another, but is prohibited by a statute from holding both, upon accepting the second his de jure title to the first ends. and his suc

4.

cessor may at once be appointed or elected but, if the former occupant refuses to vacate the office, his successor will be conpelled to take the necessary legal steps to oust him.

When an action is begun, the object of which is only to determine the validity of an act or thing done by an officer, and not

Headnotes by NIXON, J.

NOTE. AS to validity of acts of de facto officer, see Magenau v. Fremont (Neb.) 9 L. R. A. 786; State v. Lewis (N. C.) 11 L. R. A. 105; Cleveland v. McCanna (N. D.) 41 L. R. A. 852.

Commissioner Smith was a de facto member of the board of street and water commissioners.

Clark v. Ennis, 45 N. J. L. 69: State ex rel. Dugan v. Farrier, 47 N. J. L. 383, 1 Atl. 751: State ex rel. Bumsted v. Govern, 47 N. J. L. 368, 1 Atl. 835; State v. Anderson, 1 N. J. L. 318, 1 Am. Dec. 207; State, Cor rigan, Prosecutor, v. Duryea, 40 N. J. L. 266; State, Flaucher, Prosecutor, v. Camden, 56 N. J. L. 244, 28 Atl. 82; Sheehan's Case, 122 Mass. 445, 23 Am. Rep. 374; Mechem, Pub. Off. § 320; Throop, Pub. Off. § 631.

The acts of an officer de facto have the same validity as those of an officer de jure. Throop, Pub. Off. § 627; Nofire v. United

States, 164 U. S. 661, 41 L. ed. 590, 17 Sup. | States v. Hartwell, 6 Wall. 385, 18 L. ed.
Ct. Rep. 212; Hoagland v. Culvert, 20 N.
J. L. 387; State, Garrabrant, Prosecutor,
v. Meyers, 29 N. J. L. 392; State ex rel.
Mitchell v. Tolan, 33 N. J. L. 195; State,
Bloomfield Twp. Prosecutor, v. Pierson, 47
N. J. L. 247; Pence v. Frankfort, 101 Ky.
534, 41 S. W. 1011.