havior.'28 And in discussing the section of the constitution of the United States now under consideration, he says: 'But the authority extends no further than to a guaranty of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the states, they are guaranteed by the federal constitution. Whenever the states may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is that they shall not exchange republican for antirepublican constitutions.29 Now, the inNow, the initiative and referendum amendment does not abolish or destroy the republican form of government, or substitute another in its place. The representative character of the government still remains. The people have simply reserved to themselves a larger share of legislative power, but they have not overthrown the republican form of the government, or substituted another in its place."30

(28) The Federalist, 302. (29) Id. 342.

(30) Kadderly v. Portland, 44 Ore. 118, 74 Pac. Rep. 710. It was further said in this case that: "Laws proposed and enacted by the people under the initiative clause of the amendment are subject to the same constitutional limitations as other statutes, and may be amended or repealed by the legislature at will. The veto power of the governor is not abridged in any way, except as to such laws as the legislature may refer to the people. The provision of the amendment that 'the veto power of the governor shall not extend to measures referred to the people' must necessarily be confined to the measures which the legislature may refer, and cannot apply to acts upon which the referendum may be invoked by petition. The governor is required, under the constitution, to exercise his veto power, if at all, within five days after the act shall have been presented to him, unless the general adjournment of the legislature shall prevent its return within that time, in which case he shall exercise his right within five days after the adjournment. He must necessarily act, therefore, before the time expires within which a referendum by petition on any act of the legislature may be invoked, and before it can be known whether it will be invoked or not. Unless, therefore, he has a right to veto any act submitted to him, except such as the legislature may specially refer to the people, one of the safeguards against hasty or ill-advised legislation which is everywhere regarded as essential

The most recent case, so far as our investigation extends, dealing with the initiative and referendum was decided by the Supreme Court of California in 1906. In that case the court had under consideration a charter of the city of Los Angeles containing a provision authorizing a majority of the electors of the city of Los Angeles to participate directly in the enactment of local laws by means of the ballot. An ordinance adopted by the electors in this manner was attacked on the ground, among others, that it violated section 4 of article IV. of the federal constitution. "The contention here is," said the supreme court, "necessarily, that any attempt by a state to provide for a direct exercise of legislative power by the people, instead of by representatives of the people elected or appointed for that purpose, is, even in purely local affairs, inconsistent with the republican form of government guaranteed by this provision, and ineffectual for any purpose, the theory being that such provision requires a purely representative form of government not only in the state itself, but also in all its subdivisions, leaving no vestige of power of direct legislation in the people themselves. If we assume that this claim presents a judicial question rather than a political one to be determined by the congress of the United States31 we are brought to a consideration of the question as to what was meant by this guarantee of a republican form of government. For all the purposes of this proceeding, it is sufficient to hold, as we do, that it does not prohibit the direct exercise of legislative power by the people of a subdivision of a state in strictly local affairs. In saying this, we do not wish to be understood as intimating that the people of a state may not reserve the supervisory control as to general state legislation afforded by the initiative and referendum, without violating this provision of the federal constitution. That

is removed-a result manifestly not contemplated by the amendment."

(31) Luther v. Borden, 7 How. 1; Taylor v. Beckham, 178 U. S. 548, 20 Sup. Ct. 1009.

they may do so has been decided by the Supreme Court of Oregon in the case of Kadderly v. Portland,32 which appears to be the only case in which that question has been directly presented.33 However this may be, it is clear that the direct participation of the electors of subdivisions of a. state in legislation as to local affairs was never intended to be prohibited by the framers of the federal constitution, or the states adopting the same, and that such power has been exercised by them, where not inconsistent with provisions of their state constitution, in innumerable instances, from the institution of our government to the present day, without interference of any kind on the part of the federal government. As is universally recognized by courts and writers on constitutional law, it must be assumed that there was nothing in any of the forms of government prevailing in the various states at the time of the adoption of the constitution that was violative of the provisions under discussion. It is unnecessary to here do more than to refer to the widely known and well recognized form of local government that prevailed in several of the states at the time of the adoption of the constitution, known as the New England town government, under which all the inhabitants in town meeting directly exercised such legislative power as was essential to the conduct of local affairs. It is still to be found not only in several of the New England states, but also in other states,34 and we are not aware that any suggestion has ever been made that this form of local government is prohibited by the federal constitution."34

Georgia Ann Wilson filed suit against the Central of Georgia Railway Company, and alleged that on the 20th day of March, 1902, the defendant carelessly and negligently set on fire the grass, weeds, and other combustible matter along its right of way, which fire was communicated to weeds and grass surrounding the house in which she lived; that because of the rapid approach of the fire towards her house, and the peril in which it was placed, she, in order to prevent the catching on fire of her house, endeavored to extinguish the fire, and in so doing her clothing caught on fire, and she was severely burned, and had been confined to her bed continuously since. The sixth paragraph of the petition alleges that "petitioner has been unable to perform any labor in support of herself and three small children, her lost time now amounting to one month, and that petitioner will be unable to perform any kind of labor for months to come, if, indeed, she ever shall be able to earn a living by manual labor; and this is pleaded as an element of her loss and damage." She alleges that the damage was not the result of any carelessness or negligence, on her part, but from the negligence and carelessness of the defendant and its employees, by the running of a locomotive so defectively equipped that sparks therefrom set fire to its right of way as aforesaid; "and the operating of such defectively equipped locomotive is alleged as one of the acts of negligence causing said loss and damage to petitioner," and that the defendant company was guilty of gross negligence in permitting grass, weeds, and other combustible matter to accumulate along its right of way in such quantities as to communicate fire set out on its right of way to adjoining property. In the eleventh paragraph it is alleged "that said * railway company and its employees were guilty of gross negli. gence, in that, after said fire had been set in the manner herein before set out, no effort was

*

with reasonable prudence, voluntarily exposes himself to danger, for the purpose of saving the property of another in danger of destruction by fire negligently set out by a railroad company, may recover from the railroad company for the consequent injuries he received." And in the course of the decision in the case last referred to it is said: "Defendant could have foretold, with almost absolute certainty, when it set the fire in question, that plaintiff, being near, would use every reasonable means in attempting to save Ortman's horses from the flames; and there was nothing surprising or unusual in the attempt he made. Under the circumstances of the case, it was the natural and probable result of the wrong of defendant." And in the case of Harris v. Township of Clinton, 64 Mich. 447, 31 N. W. 425, 8 Am. St. Rep. 842, it was said: "It is not a universal rule that the defendant is excused from liability merely because the plaintiff, knowing of the danger caused by the defendant's negligence, voluntarily incurs that danger. If the defendant has so acted as to induce the plaintiff, acting with prudence, to incur the danger, the defendant is liable." See 3 Elliott on Railroads, Sec. 1247, and cases there cited.

* *

The case of Illinois Cent. R. R. Co. v. Siler, 229 Ill. 390, 82 N. E. 362, 15 L. R. A. (N. S.) 819, is one which upon its facts is very similar to the case at bar. In the Siler Case it appears that a woman, having discovered fire among combustible materials

on her premises adjoining the railroad company's right of way, in order to stop its progress, began raking the leaves between the fire and her house towards the fire, and, while so doing, her clothing caught on fire, and she was so badly burned that she died. Her administrator brought suit, alleging that the fire was caused by the negligence of the defendant company, to recover damages. The plaintiff recovered a judgment which was affirmed by the Appellate Court, and was again affirmed on an appeal to the Supreme Court. The latter court said, in the course of its decision: "It is true that in this case the voluntary act of the decedent intervened between the negligent act of the appellant in setting out the fire and the injury occasioned by the burning of decedent. But this act was one of the intervening causes which the appellant with reasonable diligence might have foreseen. It was a consequence of the wrongful act of appellant, which it ought to have anticipated. It was not a new and independent cause, intervening between the wrong and the injury, or disconnected from the primary cause, and self-operating, but was itself the natural re

sult of appellant's original negligence. The cases which sustain the position of the appellant, we think, are wrong in principle and opposed to the weight of authority. One whose property is exposed to danger by another's negligence is bound to make such ef fort as an ordinarily prudent person would to save it or to prevent damages to it. If in so doing, and while exercising such care for his safety as is reasonable and prudent under the circumstances, he is injured as a result of the negligence against the effect of which he is seeking to protect his property, the wrongdoer whose negligence is the occasion of the injury must respond for the damages." See, in this connection, Civ. Code 1895, Sec. 3802, and citations; also the notes in 15 L. R. A. (N. S.) 819, and 11 Am. & Eng. Ann. Cas. 368, to the case last referred to. In these notes, in addition to the authorities cited and quoted in the principal case, are to be found other decisions laying down, in effect, the same doctrine as that stated in the principal case by the Illinois court. It is also to be observed that in this decision we are dealing with the right of one to recover for injuries received while endeavoring to protect her own property, and not the property of another, as in the case of Liming v. Illinois C. R. Co., supra. And we do not deal with the question of what would have been the plaintiff's rights, had her injuries been received while endeavoring to protect the property of another against destruction by fire which had been negligently set out by the railroad company.

NOTE-Intervening Voluntary Act as being Mere Link in Causal Connection.-The principal case seems to us to extend the theory of contemplation by wrongdoer too greatly. It is one thing to anticipate and therefore have in reasonable contemplation the fact that plaintiff would have endeavored to have her property in such contingency as happened and another that she would have been in danger of being injured in such attempt while exercising ordinary care. What the railroad company was bound to contemplate was that one would endeavor to save his property under the circumstances set forth, but it is another reach in contemplation to say that it would reasonably be anticipated that due care could not prevent injury to the person so doing.

We might admit that the railroad company might contemplate an emergency in which quick decision might relieve one from the consequences of what otherwise might be a negligent act, but we greatly doubt whether a tort feasor doing such a thing as the principal case shows, should be held to foresee both intervention by one to save his property, and that due care might yet bring injury as the consequence of a voluntary act. There are too many elements in the postulate for non-interruption of causal connection in proximate cause. We do not discuss here undue expo

sure to risk, as there can be. no dispute of the effect of intervening negligence. Our position seems well stated in the case of Seale v. Gulf C. & S.R. Co., supra, by the court in saying: "The defendant should have anticipated that its negligence would endanger the property of the plaintiff. It should have anticipated that plaintiff, and perhaps others, would attempt to extinguish the fire and thereby save her property. But could it have anticipated that in this attempt the life of any one would be lost? It might have anticipated such an event in case of negligence on the part of the person killed by the flames; but no one is bound to act in such case upon the theory that parties who may possibly be affected by his conduct will be injured through their own negligence."

In Logan v. Wabash R. Co., 96 Mo. App. 461, 70 S. W. 735, the court, after much discussion of intervening causes, in a case where fire had been set out by an engine and plaintiff, an employee on a farm, was injured in attempting to extinguish same, concluded that this attempt was the cause of the injury. It was said: "In contemplation of law the defendant would be liable for a reasonable compensation for plaintiff's services in that respect, but it does not necessarily follow that it became surety for his personal safety. Applying the authorities to this case it seems to us clear that the setting out of the fire by the defendant was not the proximate cause of plaintiff's injury. The injury was not such as under ordinary circumstances, would be reasonably expected from the acts charged; such, for instance, if he had been asleep in the nighttime in his house, and his house had been set afire by sparks from the defendant's engine, and he had been thereby injured. In the latter instance there would be no intervening agency."

It seems almost as much removed from ordinary contemplation that ordinary care under the circumstances stated, would not prevent injury, as that one would not use ordinary care.

But there is a large array of cases on the side of the principal case, and very possibly the remark in Illinois C. R. Co. v. Siter, supra, that the cases that way are sustained by the weight of authority is correct. On that side seem Berg v. Great Northern R. Co., 70 Minn. 272, 73 N. W. 648, 68 Am. St. Rep. 524; Glanz v. Chicago M. & S. P. R. Co., 119 Iowa, 611, 93 N. W. 575; Page v. Bucksport, 64 Me. 51, 18 Am. Rep. 239, and others besides the cases specifically mentioned in the opinion in the principal case.

There also appears a line of cases which allow for voluntary exposure to danger when the question of attempted rescue from peril is involved. Thus it has been ruled that where one person is exposed to peril of life or limb by the negligence of another, the latter will be liable in damages for injury received by a third party in reasonable effort to rescue the imperilled one. See Pennsylvania Co. v. Roney, 89 Ind. 543, 46 Am. Rep. 173; Linneban v. Simpson, 126 Mass. 506, 30 Am. Rep. 692; Eckhart v. Long Island R. Co., 43 N. Y. 503, 3 Am. Rep. 721; Gibney v. State, 137 N. Y. 6, 33 N. E. 142, 19 L. R. A. 365. This, however, goes on the theory that peril to a human being will naturally evoke and put in action the instincts of humanity and that the natural result of such sentiment being aroused is to call for exposure

in an emergency on the part of another. But this contemplation on the part of a wrongdoer causing the peril has his limit, as it is presumed that a would-be rescuer will not rashly or unnecessarily expose himself to danger. Pennsylvania Co., 48 Ohio St. 316, 28 N. E. 172, 13 L. R. A. 190.

These questions of proximate cause and what intervening circumstances break the connection seem to get every day more difficult of statement in a general rule. It seems that a voluntary act, as such on the part of one injured, does not necessarily sever the original cause from the result, and that reasonable expectation of intervening agencies or circumstances, under surrounding conditions and according to human experience, is about as close as we can arrive at the matterprovided always that there be no negligence attributable to the injured party inhering in or a part of such intervening things. In the principal case it merely seems difficult to the writer for the railroad to have foreseen that plaintiff would have been injured under the circumstances unless she had been herself negligent. That being true her being injured, though acting with due care, was an extraordinary thing-something very greatly outside of contemplation that the wrongdoer could not be supposed to have contemplated any such result. The emergency idea adverted to above finds some consideration in discussion in the case of Cavanaugh v. Centerville Coal Co. (Iowa), 109 N. W. 303. There the court distinguished a prior case, where, though there was an intervening act by the plaintiff immediately connected with injury,proximate cause was in the negligence of defendant. The court said: "In Knapp v. Sioux City & P. R. Co., 65 Iowa, 91, 21 N. W. 198, 54 Am. Rep. 1. it was held that where defendant's negligence in failing to keep its track in repair, caused a locomotive engine in charge of plaintiff to leave the track and brought about the occasion for plaintiff to reverse the lever so as to arrest the movement of the engine and avert the danger incident to such an accident, the negligence of the company was the proximate cause of an injury to the engineer, due to his effort in thus reversing his engine. But in this case there was no emergency, no occasion to act in one way rather than another. In this case the derailing of the car necessitated no act as an immediate consequence and left the plaintiff free to do whatever he might see fit toward obviating the inconvenience resulting from the derailment. * * * He might act promptly or he might act with the greatest deliberation and foresight." And: "In speaking of an adequate and independent intervening cause. or cutting off the connection between a negligent act and a subsequent injury, it is not proper to require that the intervening cause to be searched for be one involving negligence or wrong." Now, unless it can be said that a fire set out as alleged creates an emergency of a character that will mitigate the requirement of due care, in other words, that the necessity of prompt action will excuse to a degree ordinary care, or make the rule less stringent than if one did not have to rush, so to speak, to the rescue of his property, it ought not to be said that the wrong-doer should anticipate personal injury from the exercise of due care. Promptness is expected, of course, but it is not that promptness which requires choice of an alternative where danger faces the actor from different directions.

N. C. COLLIER.