duty, that it is done with reasonable regard to the preservation of life and prevention of great bodily harm or the infliction of unnecessary injury to others, and they will be held responsible for the manner in which the right is exercised or duty performed. It is an exceptional case, where the law does not subordinate personal rights to the preservation of life. The conductor has the right, under proper circumstances, to eject a passenger from a car, but he would not be justified in exercising this right while the car was at a high rate of speed, or when upon a high trestle, nor would he be justified in putting off a person who was blind and deaf, knowing his infirmity, except at a safe place. Upon like principles, the law would not justify a conductor in putting off a passenger at a time and place and under conditions and circumstances which would expose him unnecessarily to great peril of life or bodily harm, and this, too, whether the danger arose from the natural infirmity of the person or was self-imposed. If the conductor did not know of the infirmity of the person, and the peril attending the ejection, there would be no liability arising from the exercise of the right and performance of the duty. It is the fact of notice or knowledge of the danger on the part of the conductor 247 under such circumstances that constitutes the act culpable or willful wrong. If the deceased was intoxicated to the degree that he was unconscious of danger, could not grasp his position and surroundings, and his duty to avoid danger from passing trains, or did not possess the power of locomotion, and the place where he was put off and left was dangerous to one in his condition, and these facts were known to the conductor, the conductor would be guilty of such negligence as to render the defendant liable for damages, resulting from such misconduct, although the deceased may have been a trespasser on the train, and might have been legally ejected in a proper manner and at a proper place. Mere intoxication, which did not take away consciousness, and the power to consider and understand the danger to which he was exposed, nor deprive him of physical capacity to take care of himself, and to avoid danger, would not relieve him from the responsibility of exercising due care, after he was put off the train, and, if he was killed in consequence of such neglect of duty on his part, the plaintiff cannot recover. The killing under these circumstances would be the result of his own negligence, which proximately contributed to it. There is some evidence tending to show that deceased had whisky with him on the train. If, after being put off the train, either from the effects of liquor drank before or after his eviction, he became

unconscious and unable to realize his condition and his duty, but was not so at the time of his eviction by the conductor, the defendant would not be liable for the result of such subsequent intoxication. It would be a case of self-imposed intoxication, not known to the employés of the defendant, and which imposed no duty upon them. The facts are to be ascertained by the jury.

The court did not err in sustaining the objections to the question propounded to Dr. Purdon, as an expert.

The liability of the defendant is to be determined by the facts of the case as they were, and appeared to be, to the conductor, in the exercise of reasonable prudence and care, as to the condition of deceased at the time he was put off the train. There was no error in sustaining objection to the question to the witness Orr. This witness was asked if deceased was in "a senseless condition," whether he was "stupidly drunk." This witness had testified that he saw deceased in conversation with 248 others but could not hear anything that was said, and that he had no conversation with deceased; that he, witness, occupied a seat in one end of the car, and the deceased on a different side, in the other end. The facts show he was not competent to answer the questions, independent of the form of the question. Reversed and remanded.

RAILROADS-NEGLIGENCE IN EJECTING DRUNKEN PASSENGER.-A railroad company has the right to eject a drunken and disorderly passenger, even at night and between stations, putting him off the track out of the way of that train: Louisville etc. R. R. Co. v. Logan, 88 Ky. 232; 21 Am. St. Rep. 332. Drunkenness does not exempt a person from the responsibility of contributory negligence; but the fact that a man is intoxicated does not alone deprive him of the right to be upon a railroad car, nor does it free the company from its duty to render him due care. The degree of care due to a drunken passenger is the same as that due to a sober one. The right to eject a passenger for nonpayment of fare must be exercised with proper regard to his physical and mental condition and surrounding circumstances. To eject him when he is in such physical or mental condition from intoxication as that serious bodily harm may result therefrom is culpable negligence, for which a recovery may be had notwithstanding his intoxication: Louisville etc. R. R. Co. v. Johnson, 92 Ala. 204: 25 Am. St. Rep. 35, and monographic note thereto on Intoxication as contributory negligence; monographic note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 829, on proximate and remoto cause. Even a trespasser upon a railroad train cannot be ejected therefrom without a reasonable regard for his safety; and whether he was so ejected or not is a question of fact for the jury: Arnold v. Pennsylvania R. R. Co., 115 Pa. St. 135; 2 Am. St. Rep. 642, and note.

LINDSAY V. MAYOR AND CITY COUNCIL OF ANNISTON.

[204 ALABAMA, 257.]

MUNICIPAL CORPORATIONS-POWER TO REGULATE HACKS.-If the charter of a city confers upon its mayor and city council the power to "regulate hacks," and all other vehicles, an ordinance providing that no agent of any transfer company shall go within the depot of the city for the purpose of soliciting patronage, is a valid exercise of the power conferred to "regulate hacks," and, as such ordinance is, in its nature and essence, a police regulation, its policy or reasonableness cannot be inquired into by the courts.

MUNICIPAL CORPORATIONS-ORDINANCES-EFFECT OF UPON PRE-EXISTING RIGHTS.-If pre-existing private rights are restrained or limited by a city ordinance, passed in the valid exercise of a power with which the municipal authorities are clothed, such restraint or limitation is damnum absque injuria, because all contracts and all rights are subject to such regulations as the city may adopt for the promotion of good order and the public benefit. MUNICIPAL CORPORATIONS-ORDINANCE TO REGULATE HACKS—EFFECT OF, UPON PRIOR CONTRACT.—Though a hackman may, under a contract with a railroad company, owning a city depot, have the right and privilege to enter the premises to solicit patronage, an ordinance subsequently enacted, prohibiting hack men from going within such depot to solicit patronage, is not unconstitutional and void, as impairing the obligation of a contract, because the contract must be deemed to have been entered into subject to the power of the city to regulate hacks.

Action by a city to recover a penalty for the violation of an ordinance. Lindsay was arrested and convicted for violating an ordinance of the city of Anniston. On his appeal to the city court of Anniston, there was a complaint filed in behalf of the mayor and city council of that city, claiming such penalty, for violating an ordinance prohibiting hackmen from going into the railroad depot of that city to solicit patronage, and requiring them to stand without the entrance to the depot, leaving the passageway clear at said entrance. Lindsay was an employé, transferman, and agent of the Anniston Transfer Company, and, in the discharge of his duties, solicited passengers and baggage for that company. The company claimed the right of soliciting patronage at such depot under a contract with the railroad company executed before the enactment of the ordinance. Judgment was rendered in favor of the plaintiff, fixing the recovery at the same amount as the fine which was imposed by the recorder. The defendant appealed.

Knox, Bowie & Pelham, for the appellant.

Benjamin Micou, for the appellee.

260 BRICKELL, C. J. The amended charter of the city of Anniston confers on the mayor and council of the city large pow

ers intended to promote good government within the corporate limits, and the public peace, order and convenience. Among other powers is the power "to license, tax, and regulate hacks, carriages, drays, and all other vehicles, and to fix the rate to be charged for the carriage of persons and property within the corporate 201 limits of the city, or to the public grounds or property within the city": Pamph. Acts, 1890-91, p. 104. The ordinance the appellant was convicted of having violated was adopted by the mayor and common council in the exercise of the power to regulate hacks. The power of regulation is the more general of the powers the charter confers, and, as applied to business, occupations, or employments, is the power to prescribe rules for the conduct of the business, or the manner in which the occupation or employment is to be pursued. Hackmen, cartmen, and wagoners, engaged in the carriage of goods or persons for hire, by the common law are regarded as common carriers, and the power lies in the legislature, in the absence of constitutional restraint or limitation to regulate, to prescribe the rules according to which their business may be conducted: Munn v. Illinois, 94 U. S. 113. The power may be, and is often, delegated to municipal corporations, to be exercised for the promotion of the public convenience. When the power has been delegated in terms of the character employed in the amended charter, the validity of ordinances, prescribing the times, places, and manner in which the employment is to be pursued, has been uniformly sustained: Commonwealth v. Stodder, 2 Cush. 562; 48 Am. Dec. 679; St. Paul v. Smith, 27 Minn. 364; 38 Am. Rep. 296; Veneman v. Jones, 118 Ind. 41; 10 Am. St. Rep. 100. Such ordinances are in their nature and essence police laws or regulations, and, when adopted in the exercise of an express legislative grant of power, there can be no inquiry into or discussion of their policy or reasonableness. "What the legislature says may be done cannot be set aside by the courts, because they may deem it unreasonable or against sound policy": 1 Dillon on Municipal Corporations, sec. 328.

The material contention of the appellant is, that if he be subjected to the operation of the ordinance, his principal, the Anniston Transfer Company, in whose service he was engaged when doing the act complained of, will be divested of a right and privilege which the railroad companies owning and constructing the depot had granted on a valuable consideration, prior to the adoption of the ordinance. The contract into which the railroad companies and the transfer company had entered purports

to be founded on a valuable consideration, and 202 thereby the railroad companies do, "so far as it is lawful," grant to the transfer company the exclusive right, by the officers, agents, and employés, to enter the premises and trains of the grantors for the purpose of soliciting patronage. It is forcibly argued by the counsel for the appellee that the real object of the contract, the object the parties contemplated and proposed to accomplish, was the grant to the transfer company of the exclusive right and privilege to enter the premises and trains of the railroad companies for the solicitation and procurement of the patronage of passengers, and that of consequence the contract is illegal, offending public policy. It is a grave and important question, embarrassed by a serious conflict of authority, whether a railroad company may grant to hackmen or to others pursuing a public employment, the exclusive right to enter its depot, or to enter and occupy the adjacent grounds, for the purpose of soliciting and obtaining patronage. The authorities have been carefully collected, reviewed, and discussed by Mr. Freeman, in the elaborate notes to the case of Kalamazoo Hack etc. Co. v. Sootsma, 22 Am. St. Rep. 693, and Montana Union Ry. Co. v. Langlois, 18 Am. St. Rep. 745. The necessities of this case do not require a discussion or decision of that question. The contract, whatever may be its objects, or whatever may be the rights it confers, or it was intended to confer, must be deemed to have been entered into in view and in subordination to the powers of the municipal authorities to exercise the power to regulate the business and employment of hackmen: Knoxville v. Bird, 12 Lea, 121; 47 Am. Rep. 326. It is observed by Judge Cooley that the clause of the constitution of the United States forbidding state legislation impairing the obligation of contracts "does not so far remove from state control the rights and properties which depend for their existence or enforcement upon contracts, as to relieve them from the operation of such general regulations for the good government of the state and the protection of the rights of individuals as may be deemed important. All contracts and all rights, it is declared, are subject to this power; and not only may regulations which affect them be established by the state, but all such regulations must be subject to change from time to time, as the general well-being of the community may 263 require, or as the circumstances may change, or as experience may demonstrate the necessity": Cooley's Constitutional Limitations, 6th ed., 707. The charter of the city is essentially a public stat ute; of it all the courts of the state take judicial notice; and obe