filed, on payment of costs by defendant, and to proceed to hear argument on the same at the trial term of the case.

2. When a ticket has been delivered by a railroad company for passage over its lines to a newspaper, with power in the latter to sell and transfer the same, but its validity has on its face been expressly limited to the first purchaser, the effect of the transaction is to constitute the newspaper the special agent of the company to dispose of the ticket on the terms named. No authority being given such agent to vary the terms of the sale, it follows that, after a sale by the agent to a purchaser and an insertion of the purchaser's name in the ticket, it becomes valueless in the hands of any other person. (a) The above facts appearing in a petition by one who claimed to have bought the ticket from the first purchaser of the agent, and who was suing the company for damages on account of being ejected from defendant's car by a conductor who refused to honor such ticket, the court did not err in sustaining a demurrer to the petition, on the ground that it set forth no cause of action against the defendant.

(Syllabus by the Court.)

Error from superior court, Washington county; R. L. Gamble, Judge.

Action by T. J. Davis against the South Carolina & Georgia Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Rawlings & Hardwick, for plaintiff in error. J. B. Cumming, and Evans & Evans, for defendant in error.

LEWIS, J. Davis brought his suit against the South Carolina & Georgia Railroad Company to the October term, 1898, of Washington superior court. He alleged that on March 1, 1897, he purchased from J. T. Bothwell, Jr., of Augusta, Ga., a certain 1,000 mile ticket over the defendant's road; that the ticket and a great many more of the same kind were sold by the defendant to the Chicago Mail to pay for advertising done in that newspaper by the company, and, although the ticket provided on its face that it was good only in the hands of the person to whom it was issued, and should be taker up and forfeited if presented by any other person, yet it was sold in blank, and the company did not require at the time of the sale that the name of the purchaser should be entered thereon, and it expressly waived, by its conduct in the sale of the tickets, the "original purchaser" clause thereof; that the tickets thus sold to the Chicago Mail in blank were sent by the newspaper to a ticket broker in Augusta, and were by him sold to J. T. Bothwell, Jr., being still in blank when Bothwell bought; and that, after purchasing such ticket, Bothwell "wrote his name upon the ticket, without, however, making any contract with said Chicago Mail or their agent." Bothwell sold the ticket to petitioner. While attempting to ride on the same on defendant's line, the conductor rejected the ticket, and ejected plaintiff from the train, for which he claimed damages. A copy of the ticket was attached to the petition, which recited upon its face that it was subject to the conditions named in the contract attached to it. In this con

tract it was stipulated that "it is good only for the person in whose name it is issued, and shall be taken up and forfeited if presented by any other person," and it was further stipulated: "In consideration of the re duced rate at which this ticket has been sold, I hereby agree to use it subject to the conditions named therein, and will identify myself as the original purchaser, by signing my name or otherwise, in the presence of the conductor each time this ticket is presented for passage." At the appearance term of the case, a consent order was taken setting the demurrer for a hearing at the trial term. Counsel for both sides were under the impression that the demurrer had been filed, but, by inadvertence or mistake of defendant's counsel, he omitted to file the same. No entry of default was made on the docket. At the trial term, upon this showing, the court ruled that the case was in default, but that he would allow the defendant to open the default upon payment of the costs. The judgment allowing the default opened is assigned as error. After argument then had upon the demurrer, the same was sustained, and the case dismissed by order of the court, to which plaintiff likewise excepts.

1. Section 5069 of the Civil Code provides that, upon the call of the appearance docket at each term, all cases in which the defendant has not filed a plea, answer, or other defense shall be marked "in default." The following section provides that, within 30 days after the entry of default, the defendant, upon the payment of all costs which have accrued, shall be allowed to open the default, and file his defense by demurrer, plea, or answer. We think in this case the judge erred in ruling that the defendant was in default at all. An adjudication of default is evidenced by an entry on the docket, and, even if the defendant had ever become liable to such judgment against him in this case, there was a failure to so enter it. The statute gives him 30 days after the entry of default in which to plead and have the same opened upon the payment of costs. To allow the defendant to file his demurrer before such entry has been made, and therefore before the case has actually been adjudged in default, was certainly no abuse of discretion on the part of the judge, and was not a violation either of the spirit or letter of the statute.

2. Plaintiff's action was based upon a contract by the very terms of which it appeared that he had no right to the privilege of becoming a passenger on defendant's train, and hence no right of action for the damages he complains of. The effect of the transaction between the railroad and the newspaper was to constitute the latter the agent of the former to dispose of the tickets on the terms named. One of those conditions was to expressly provide that the ticket was good only in the hands of the first purchaser. The right to issue a ticket not transferable in consideration of reduced rates given by the com

pany is not questioned. The plaintiff bought the ticket, seeing that it had already been issued and sold to another party, and therefore, by its very terms, it could not be good in his hands as a subsequent purchaser. We think the action, therefore, is clearly demurrable, and is controlled by the principle of law ruled by this court in the case of Comer v. Foley, 98 Ga. 678, 25 S. E. 671. Judgment affirmed. All the justices concurring.

(107 Ga. 406)

BENSON v. SHINES. (Supreme Court of Georgia. April 25, 1899.) MECHANIC'S LIEN- FORECLOSURE-APPEARANCE OF OWNER-APPEAL-BOND.

1. Where a mechanic institutes proceedings to foreclose his lien on realty, and prays process against the contractor, and not against the owner, and where the contractor only is served with copy of such petition and process, yet, if the owner appears on the trial of the case, demurs to plaintiff's action, and pleads to the merits thereof, the owner becomes a co-defendant with the contractor, and is bound by a judgment foreclosing the lien upon his property.

2. In such a case there is no error in dismissing an appeal entered to the superior court by the contractor, when the only security appearing on the appeal bond of the contractor is his co-defendant in the case. The appeal is a nullity, and there was no error in refusing to allow ap pellant to amend the bond by giving security.

(Syllabus by the Court.)

Error from superior court, Marion county; W. B. Butt, Judge.

Action by Will Shines against W. D. Benson. Judgment for plaintiff. Defendant brings error. Affirmed.

Simeon Blue and J. A. Noyes, for plaintiff in error. J. E. Sheppard, for defendant in

error.

SIMMONS, C. J. McCrory employed Benson to repair a house. Benson employed Shines to do the plastering. Shines recorded his lien, and brought suit in the county court to foreclose it against Benson, and prayed a judgment against Benson, and a special judgment against the property. McCrory was not made a party to the suit by the petition, nor was process prayed against him. He appeared, however, in the county court, and demurred to the petition, and, his demurrer being overruled, filed a plea to the merits. The county judge awarded judgment against Benson, the contractor, and a special lien upon the property of McCrory for the amount due Shines.

1. While McCrory was not made a party in the petition, and while process was not prayed against him, and while there was no order taken in the county court to make him a party, we think his appearance in the court by filing a demurrer and a plea to the merits, and introducing testimony thereunder, made him a party to the action, and he was bound by the judgment against his property. A person who is interested in the result of litigation may voluntarily make himself a party

thereto by appearing and pleading, although he is not mentioned as a party in the petition, which prays no process against him. See 2 Black, Judgm. § 534; Hukm Chand, Res Adj. § 71; Brown v. Chaney, 1 Kelly, 412.

2. From the judgment of the county court Benson sought to enter an appeal to the superior court, McCrory being the only security upon the appeal bond. Shines moved to dismiss the appeal, and the judge of the superior court granted the motion, and dismissed the appeal, refusing to allow the appellant to amend the bond by giving additional security. We think that the court rightly refused to allow the appellant to give additional surety, and rightly dismissed the appeal. In cases of appeal there must be a bond, with security, and one already bound by the judgment gives no additional guaranty or security to the appellee. This bond was therefore without security, was a nullity, and could not be amended by giving security. borne v. Hughes, 93 Ga. 445, 21 S. E. 65; Insurance Co. v. Plant, 36 Ga. 623; Gordon v. Robertson, 26 Ga. 410. Judgment affirmed. All the justices concurring.

ROSE v. STATE.

Os

(107 Ga. 697)

(Supreme Court of Georgia. April 25, 1899.) INTOXICATING LIQUORS-ILLEGAL SALEELECTION DAY.

1. The period of time contemplated by the words "days of election," as used in section 446 of the Penal Code, wherein it is declared to be a misdemeanor for any person to sell, give, or furnish spirituous, intoxicating, or malt liquors to another, within two miles of an election precinct, on such days, is a day of 24 hours, commencing at midnight preceding the opening of the polls, and ending at midnight succeeding the close of the polls.

2. An election for constable, held under a general law which provides for such an election on the same day in each militia district of the several counties of this state, is a state election, within the meaning of the statute which forbids the sale or furnishing of intoxicating liquors to any person on days of election, state, county, or municipal; and the fact that the official duties of the officers elected are confined to respective counties, or subdivisions of counties, does not change the character of the election.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. S. Candler, Judge.

R. M. Rose was convicted of violating the Affirmed. liquor law, and brings error.

Hamilton Douglas and N. J. & T. A. Hammond, for plaintiff in error. C. D. Hill, Sol. Gen., for the State.

LITTLE, J. The indictment under which the plaintiff in error was tried and convicted was founded on section 446 of the Penal Code, which reads as follows: "Any person who shall sell, give or furnish spirituous, intoxicating or malt liquors to any person, in any quantity, within two miles of any election precinct, on days of election, either state, county, municipal, or primary elections or

elections held under the local option liquor law, shall be guilty of a misdemeanor." The two questions presented for our consideration

are:

First. Do the words "days of election," as they appear in the statute, limit the period of time during which liquors shall not be sold, given, or furnished, to the hours during which the polls are to remain open as prescribed by law, or do such words mean to fix such time as a day of 24 hours, commencing at midnight preceding the opening of the polls for an election, and ending at midnight succeeding the close of the polls? Second. Whether an election for constable is a state, county, or municipal election.

1. So important did the framers of our constitution regard the inhibition of the sales of intoxicating liquors on days of election, that in section 5, art. 2, of the constitution of 1877, they declared that the general assembly should make provision to forbid the sale, distribution, or furnishing of intoxicating drinks within two miles of election precincts on such days. The section of the Penal Code quoted above is the result of that constitutional mandate. The evident purpose, both of the framers of the constitution, and of the general assembly which enacted the law in harmony therewith, was to make such an outlawry of intoxicating liquors on days of election as would not only protect the peace and preserve the order desired on such occasions, but such as would also tend to promote a calm and sober exercise of the imorant right of suffrage, upon which the proection and prosperity of this republican government so much depends. But, while this purpose is evident, the question is whether, in the execution of that purpose, it was the intention of the lawmakers to restrict the sale and furnishing of liquor to the time in which votes were actually being deposited, or whether it was intended to make such restrictions apply to a fixed time preceding and subsequent to the hours in which the votes were actually being cast. We have no other method of ascertaining the intention of the framers of this law than to regard the mischief sought to be provided against, and the language used in providing the remedy. It is declared in Potter, Dwar. St. p. 193, that, in exploring the intention of the legislature by the commonest and most natural signs (that is, words and context), "the words of a statute are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and proper use." Again, on page 203, the same author says: "In interpreting the law, judges are to explore the intentions of the legislature, yet the construction to be put upon an act of parliament must be such as is warranted by, or at least not repugnant to, the words of the act." Our Political Code (paragraph 1, § 4) declares that the ordinary signification shall be applied to all words, except words of art, or connected with a particular trade or subjectmatter, when they shall have the significa

tion attached to them by experts in such trade, or with reference to such subject-matter. The argument of counsel for the plaintiff in error is that the word "day" is used in the statute in a conventional sense; that is, that the law fixes certain hours during which elections are to be held,-from 7 a. m. to 6 p. m. at the court house, and from 8 a. m. to 3 p. m. at the precincts,-and that those hours constitute the day of election referred to in the statute, and not the time which elapses between two successive midnights. Mr. Blackstone, in the second book of his Commentaries (page 141), says: "In the space of a day, all the twenty-four hours are usually reckoned, the law generally rejecting all fractions of a day in order to avoid disputes." This court, in a number of cases, has held that fractions of a day are not to be considered. Such rulings may be summed up in a terse phrase used by Justice McCay in the case of Russell v. Carr, 38 Ga. 462, when he said, "The general rule is that the law makes no fractions of a day." Courts in other jurisdictions have been called on to construe the same and similar words in statutes enacted for the same purpose. An act of the Texas legislature was framed as follows: "During the entire day of any election in this state for municipal, county, district or state officers, it shall be unlawful for any bar-room, saloon or other place, house or establishment where vinous, spirituous or intoxicating liquors are sold, to be open," etc. In that state it was provided by law that state elections should be held from 8 a. m. to 6 p. m. on a designated day, and the question was directly made in several cases before the Texas court of appeals as to what meaning should be given to the words "entire day" in this statute. In the first of these (Haines v. State, 7 Tex. 33) that court said: "Evidently the legislature, by the use of the words 'entire day,' meant more than from sunrise to sunset, or from 8 a. m. to 6 p. m. Generally, in legal signification, the word 'day' includes the time elapsing from one midnight to the succeeding one, and that "the law takes no cognizance of fractional parts of a day"; and it sustained a charge of the trial judge to the effect that the words "entire day," used in the statute, meant a civil or natural day,that is, from midnight to midnight. This ruling was affirmed in the case of Lawrence v. State, 7 Tex. App. 192. The same court, in a later case (that of Janks v. State, reported in 15 S. W. 815), reaffirmed the ruling made in the cases supra, and ruled in the latter case that the word "day," as used in the Texas statute, includes the time elapsing from 12 o'clock midnight to the succeeding one, and that it is not to be understood as denoting only the hours during which the polls are open. But it may be said that the words of the Texas statute are more compre. hensive and embrace a greater period of time than the words of our statute, because the former used the words "entire day" of an

But

election, while our statute uses the word "day" of election. There is, however, no real distinction between the two. If the hours fixed for opening and closing the polls constitute the day of election, necessarily the same words constitute the entire day of the election. by reference to the cases cited it will be seen that the statute is considered in a broader light, and that the legal meaning of the word "day" is determined. The court, in the last case cited, says that generally, in legal signification, the word "day" includes the time elapsing from one midnight to the succeeding one, and, as used in the statute, meant 24 hours. In the case of Kane v. Com., 89 Pa. St. 522, the supreme court of Pennsylvania construed the meaning of the word "day" as used in the statute of Pennsylvania, which was as follows: "It shall not be lawful for any person, with or without a license, to sell any person any intoxicating drinks on any day on which elections are now required to be held." In that case the trial judge instructed the jury as follows: "I charge you, as matter of law, distinctly and positively, that any sale of liquor made upon the day upon which elections are held is a misdemeanor, and that the word 'day,' as used in that section, applies to the whole twenty-four hours, beginning at midnight of election morning, and ending at midnight of election night." The supreme court (Chief Justice Sharswood delivering the opinion) said: "We have no doubt that the court were right that the word 'day,' as used [in the statute], includes the whole twenty-four hours of the day upon which an election is held." A like construction was given to the word "day" in a similar statute by the supreme court of Ohio in the case of Schuck v. State, 50 Ohio St. 493, 34 N. E. 663, and by the court of appeals of Kentucky in Com. v. Murphy, 95 Ky. 38, 23 S. W. 655. These authorities we think are in harmony with the evident purpose of our lawmakers; and we must rule that the legal effect of our statute, as embodied in the Code, is to declare it a misdemeanor for any person to sell, give, or furnish spirituous, intoxicating, or malt liquors to another, within two miles of any election precinct, from midnight preceding the opening of the polls until the succeeding midnight.

2. It is insisted by counsel for the plaintiff in error that an election for constable cannot be treated as either a state or county election, and an elaborate argument is made to show that a constable is neither a state nor county officer. The reply to this contention is that the character of an election is not to be determined alone by a reference to the official duties imposed by law on the officer elected, nor the territory in which by law he exercises those duties, but rather by the manner of holding and conducting the election. Under our law, general elections are held at fixed times, and at the several places designated as polling places in the various counties in the

state by the qualified voters of such counties, for the various officers charged with governmental functions. We have no system of state elections, in the sense that the voters of the state can participate in an election for any office without regard to the county of the residence of the voter. On the contrary, paragraph 2, § 1, art. 2, of our constitution, requires a residence of six months in a particular county as one of the qualifications of an elector. We must therefore take it that the state election contemplated by the statute is an election in which the qualified voters of the state, in their respective counties, on the same day select officers provided by law. Whether the officers elected exercise their duties throughout the state, or in the various counties or subdivisions of counties, does not affect the character of such an election. For instance, ordinaries, sheriffs, clerks of the superior courts, and other officers generally denominated "county officers," are elected by the qualified voters of the several counties in this state on a given day. Such is a general state election, because the voters throughout the state on that day are entitled to participate and select these officers for the various counties. If there should occur a vacancy in the office of ordinary, sheriff, or clerk of the superior court of a particular county, an election held to fill such vacancy is, of course, to be participated in by the qualified voters of that particular county only. Hence that election would not be a state election, but necessarily a county election. So that the, character of the election held is not determineu by the scope of the duties imposed by law on the officer to be elected. All of the territory of this state is embraced in the several counties, and each county is subdivided into militia districts, according to territory and population. Pol. Code, § 330. That an officer is restricted in the discharge of his official duties to one of the counties or subdivisions does not make his election a county or militia district election, when, in pursuance of a general system of selecting all such officers for each district, an election is held throughout the state on the same day. The result of such an election is to provide officers of this class for the entire state. Construing the provisions of sections 101, 102, and 105 of the Political Code, we find that constables are to be elected by the qualified voters of the districts in each county on the same day, once in two years. And, inasmuch as elections for these officers are held throughout the state on the same day, the election is a general one, and may be properly denominated a "state election," as contemplated in the section of the Code under consideration. Referring, however, to the nature of the duties of a constable, we find that in some jurisdictions it has been held that that officer is regarded as a quasi state officer. The supreme court of Missouri (State v. McKee, 69 Mo. 508) rules that a constable is not a city officer. "He is a state officer in the same sense that sheriffs and clerks of courts of record are state officers, although they can only dis

charge the duties of their respective offices within a limited territory, and not throughout the state." By our law it would seem that a constable is recognized as a county officer. Our constitution, in paragraph 1, § 2, art. 11, declares that county officers shall be elected by the qualified voters of their respective counties or districts, and shall hold office for two years. By section 35 of the Political Code it is provided that, unless an otherwise qualified voter shall register as prescribed, he shall not be permitted to vote in any election for presidential electors, members of congress, governor, statehouse officers, members of the general assembly, for county officers, county commissioners, for justices of the peace, for constables, for members of the county board of education, where chosen by the people, nor in any other popular election to fill any other state or county office. This section unmistakably treats a constable, by express reference, as either a state or county officer. Section 4092 of the Civil Code prescribes the oath of office which each constable must take and subscribe before he enters on the duties of his office, as follows: "I swear that I will duly and faithfully perform all the duties required of me as a constable of the county of -, according to the best of my ability and understanding." other provisions of our Code, we find that a constable is an officer charged by the law with the performance of important duties, entitled to emoluments fixed by the statute, and his tenure of office prescribed; that he is elected by the people of the county who reside within the district where he is required to exercise the functions of his office, under rules prescribed for the election of other officers of the state, and must take an oath before he can lawfully discharge any of such duties. Certainly, therefore, a constable is a public officer (Mechem, Pub. Off.); and it would seem that, both by our constitution and statute law, recognition is given to him as a county officer. But, whether a constable is a state or a county officer, he is elected at a general election held throughout the state on the same day, and such an election is a state election, and therefore within the prohibition of the section of the Code on which the indictment in this case was based. It follows that the judgment of the court below must be affirmed. All the justices concurring.

(107 Ga. 334)

By

SOUTHERN RY. CO. v. HUDGINS. (Supreme Court of Georgia. April 22, 1899.) REMOVAL OF CAUSES-NOTICE-PROCEDURE. 1. Notice to the opposite party of proceedings taken to remove a pending cause, on the ground of diverse citizenship, from a state court to a circuit court of the United States, is not a condition precedent to the order for such removal. Notice is not required by the act of congress which authorizes the removal.

2. When a petition for the removal of a case from a state court to the circuit court of the United States appears to have been filed in due time, and is accompanied with a proper bond as required by the act of congress, the only question

left for the state court to determine is whether the right of removal appears on the face of the petition and record. If it does, the power of the state court over the case has ended, and it has no jurisdiction to try and determine an issue of fact made on such petition; such issue can only be tried in the United States court. It is therefore error, when the right of removal appears on the face of the record, to set aside an order granting such removal on the application of the plaintiff, tendering an issue of fact as to whether such right exists.

(Syllabus by the Court.)

Error from superior court, Gordon county; A. W. Fite, Judge.

Action by Sarah A. Hudgins against the Southern Railway Company. From an order setting aside an order for removal of the cause to a federal court, defendant brings error. Reversed.

Shumate & Maddox, for plaintiff in error. W. H. Dabney, W. J. Cantrell & Son, and R. J. McCamy, for defendant in error.

LITTLE, J. Sarah A. Hudgins commenced her suit, returnable to the February, 1898, term of Gordon superior court, to recover the sum of $5,650 damages of the Southern Railway Company for refusing and neglecting to build and maintain certain cattle guards or stock gaps on the dividing line of her lands in said county, after notice so to do as provided by the statute. The petition filed in the case describes and refers to the defendant in the following words: "Paragraph 2. Petitioner further shows that the Southern Railway Company, a corporation running and operating a line of railroad in and through said county, and having a depot and agent in and for said county, has injured, damaged, and is indebted to your petitioner in the sum of," etc. During the February term of the court, and before the defendant was required to make answer or plead in the case, it appeared and filed its petition for the removal of the case to the circuit court of the United States for the Northern district of Georgia, averring that the defendant was at the time of the commencement of the suit, and is now, a corporate body, incorporated under the laws of Virginia, and a resident and citizen of the state of Virginia, and a nonresident of the state of Georgia; that the plaintiff was, and still is, a citizen of the state of Georgia; desired to remove said suit into the circuit court of the United States for the Northern district of Georgia. It tendered a bond, with security, in terms of the statute, for its entering a copy of the record in the said circuit court, and paying all costs that may be awarded, etc., as required by the statute. When the petition was presented, the judge of the superior court, by proper order, accepted the petition, and approved the bond, and ordered the case to be removed to the circuit court of the United States for the Northern district of Georgia. On the 29th of March thereafter, and during said term, the plaintiff filed a petition praying that the order of removal be revoked and set aside on three grounds: