the same statute, so that, if possible, no clause or part shall be treated as superfluous, and especially when the two are parts of the same section." Judd v. Driver, 1 Kan. 464. "A statute should be so construed that effect be given, if possible, to every clause and section of it." Republican River Bridge Co. v. Kansas Pac. Ry. Co., 12 Kan. 413. "Statutes must be so construed as to harmonize their various provisions, and, so far as possible, to give reasonable effect to all." Gardenhire v. Mitchell, 21 Kan. 88. With these rules of construction, we can no more strike from the statute the clanse, "the executive council may at any time remove such commissioners, or any of them, and elect others to fill the vacancy," than we can eliminate the words, "to continue in office for the term of three years." If possible, we must give effect to all the language, and, if possible, the statute must be construed to harmonize. The statute, in our opinion, may be construed to read, "as continuing in office the commissioners for the term of three years, unless sooner removed by the executive council." If the statute be construed in this way, some operation is given to all of its provisions,—that is, the term of office of railroad commissioners is for three years, unless removed before the expiration of the term by the executive council, but if there is no removal or resignation the term ex

pires in three years. State V. Stevens,

46 N. J. Law, 344; State v. Hawkins, 44 Ohio St. 98, 5 N. E. Rep. 228; Ex parte Hennen, 13 Pet. 258. The legislature, in creating the office, it is conceded, had the right to provide that the office should be held during the pleasure of the authority making the appointment; and if the legislature, in creating the office, had not intended to permit the executive council to remove the commissioners at its discretion, the clause, "the executive council may at any time remove such commissioners, or any of them," would have been omitted. The provision concerning "the term of three years" is no more operative than the provision, "the executive council may at any time remove."

A

It is contended that there was a fixed intention upon the part of the legislature to declare the term of office of a railroad commissioner to be for three years, and nothing less, and no removal before that time. strained and unusual construction will be given to the words of the statute to carry out such a meaning, because, to do so, a part thereof must be eliminated. If it be suggested that in giving operation to the clause, "the executive council may at any time remove such commissioners," it will limit or qualify the prior clause in the statute, "to continue in office for the term of three years," we answer that these words exist in the same statute, and not only in the same statute, but in the same section. Therefore they must not be overlooked. Such

a construction ought to be given to these later words of the section of the statute referred to as will not suffer their operation to be defeated. Reyburn v. Brackett, 2 Kan. 227. These later words in the section of the statute ought to and must prevail as much as the other words, and therefore the necessity of harmonizing the language or clauses of the statute. That the clause, "the executive council may at any time remove such commissioners, or any of them," was fully considered, and intended to have effect, is apparent from an examination of the journals of the senate and house of the session of the legislature of 1883. Upon the first day of the session of that legislature, bills were introduced relating to the subject of state control of railroads. The senate and house had their separate bills, and each included a separate measure. Day after day, for several weeks, the committee of the whole consulted upon this subject. Upon the disagreement of the two houses a conference committee was appointed, and the bill containing the power of removal "for good cause shown" was defeated upon the disagreement of the two houses, and the report of a conference committee. Subsequently, a second conference committee was appointed, and its members reported a substitute for 10 different bills, which was finally adopted in the closing days of the session, and is the statute referred to. The second conference report, which was accepted, provided that "the executive council may at any time remove such commissioners, or any of them," and the words "for good cause shown," were omitted. It is clearly evident. therefore, that the words, "for good cause shown," after being fully considered, were intentionally rejected from the proposed act, and the statute, as passed, purposely, and after much contention, included the clause permitting the removal of the commissioners at the discretion of the executive council. The proceedings of the two houses of the legislature upon this subject, as reported in the journals, are very significant in support of the conclusion reached by this court. House Jour. 1883, pp. 805-984, et seq.; Senate Jour. 1883, pp. 628-776. If it be insisted that the clause, "the executive council may at any time remove such commissioners," refers to the removal after a trial and conviction for misfeasance or malfeasance in office by a competent legal tribunal, then the words in this clause have no operation, as the tribunal would remove, not the execu tive council. If it be urged that this clause must be construed to mean a removal for cause, or upon charges after notice, then, to give such a construction, we must judicially interpolate into the statute words to change its meaning, and to do so we must add language expressly rejected by the legislature, after great deliberation upon the subject. The statute, as we think it must be construed, makes the term of office of a rail

)

road commissioner three years, subject the discretion of the executive council, who may remove the commissioners at any time, and when the council, in its discretion, determines to remove а commissioner, the courts, under the statute, cannot prevent or interfere. "The office was created by the legislature, and that body might abridge its term by express words, or specify an event, upon the happening of which it should end." People v. Whitlock, 92 N. Y. 191; Conner v. Mayor, 5 N. Y. 285; Long v. Mayor, 81 N. Y. 425. In this case the event specified by the legislature is removal by the executive council. In New York a law has recently been enacted by the legislature, the fiftyfifth section of which reads: "The term of office of each county engineer shall be three years, unless sooner removed, and his salary shall be fixed by the board of supervisors, and be a county charge." Sess. Laws N. Y. 1893. Section 3, art. 10, of the constitution of New York, is similar to the provisions of the constitution of this state under consideration. See paragraph 123, p. 646, 1 Rev. St. N. Y. (Birdseye, 1889;) People v. Bull, 46 N. Y. 61; Robinson v. Chamberlain, 34 N. Y. 398; Bergen v. Powell, 94 N. Y. 591, 30 Hun, 438. The lawmakers of that state, evidently, did not suppose that in providing the office of county engineer "shall be three years, unless sooner removed," they were declaring the term of such office to be definitely for three years, without the power of removal. That statute is very similar to section 2, c. 124, Laws 1883.

In the course of the argument it was suggested that the question, before the court was somewhat tinged with a political aspect. The political significance to this case, if any, is slight,-merely transitory. The rule declared will apply to the newly-appointed commissioners, as well as to the defendant. Hence, if the present executive council should desire, it may remove the newly-appointed commissioners at any time, or if this council shall be succeeded by other members at the next election for state officers, such new executive council may remove at any time the railroad commissioners appointed by the present council. But, even if the question raised in this case has a political significance, that will not prevent this court from a prompt and just discharge of its duty. Interests growing out of personal or party politics are frequently involved in the courts, and, although the court rendering a decision in such a case can hardly escape having its judgment criticised. or its motives impugned, nevertheless, a duty imposed by the statute, however delicate or responsible, cannot be declined. Official obligation, and fealty to the constitution, with an upright judge, are above and beyond personal friendships or party interests. State v. Kennon, 7 Ohio St. 546. "The courts are for the people, not for a party; and every person should confidently apply to them,

with the assurance that his rights, and not his politics, will be considered and adjudicated. A free government is best subserved when based upon equitable and just laws, with fair and impartial courts, open and ready, as far as possible, to redress all grievances." State v. Stein, (Neb.) 53 N. W. Rep. 999. A judgment of ouster against the defendant, Mitchell, will be entered, with costs. All the justices concurring.

(51 Kan. 300)

JACQUES v. LITLE. (Supreme Court of Kansas. May 6, 1893.) SCHOOL DISTRICTS-REMOVAL OF TREASURER.

A person elected, and who has entered upon the discharge of his duties, as a schooldistrict officer, cannot be deprived of his office upon the ground that he has neglected or refused to perform any duty required of him, without notice, and a hearing before some competent officer or tribunal; and, until a forfeiture of his right to the office has been ascertained and declared, the county superintendent has no authority to appoint another person in his stead.

(Syllabus by the Court.)

Original proceeding in quo warranto by D. Jacques against Lloyd Litle. Judgment for defendant.

Sutton & McGarry, for plaintiff. Milton Brown, for defendant.

JOHNSTON, J. This is a proceeding in quo warranto, brought originally in the supreme court, and involves only the title to the office of treasurer of a school district in Gray county. It appears that, at the annual meeting in 1891, Lloyd Litle was elected treasurer of the district for a term of three years, and at that time W. F Castner was director, and J T. Dean, clerk, of the district. In order to secure employment as teacher of the district school, Dean resigned as clerk, and T. B.. Seaton was appointed in his stead. Without any meeting of the district board, Castner and Seaton agreed to employ Dean as teacher, and a written contract to that end was entered into between these two members and Dean. Having no certificate authorizing him to teach, Dean obtained from the county superintendent a temporary certificate, but no written request therefor was made by the district board, as the statute requires. Litle opposed the employment of Dean, and protested against his taking charge of the school, and insisted that the contract made was illegal. Notwithstanding this opposition and protest, Dean began teaching in the early part of October, 1891, and continued in charge of the school throughout the term. Litle refused payment of school orders issued to the teacher by the other district officers, and to other persons, for the maintenance of the school, although at that time there were sufficient moneys on hand, belonging to the several funds upon which such orders were drawn. He attended a meeting of the school-district board on November 14, 1891, and did not at

tend any other until the annual meeting In 1892, when other persons were elected to succeed Castner and Seaton as director and clerk of the district. Since that time he has attended every meeting of the district board. In January, 1892, a notice was served upon Litle that a meeting of the board would be held on January 19th, but Litle did not attend, and at this meeting the board undertook to correct the irregularity and illegality In the employment of Dean, and ratify the contract theretofore made with him as teacher. In February the action of Litle in refus ing to pay school orders, and attend the meetings of the board, was brought to the attention of the county superintendent, who, without any notice to Litle, considered that he had forfeited his right to the office of treasurer, declared it vacant, and appointed the plaintiff to fill the supposed vacancy. After Jacques qualified as treasurer, he made a demand upon Litle for the books, papers, and belongings of the office, but the demand was refused by Litle, who has always insisted that he was the treasurer of the district; and since the annual meeting in 1892 he has been recognized by the other members of the board and by the county treasurer as such officer. The county superintendent, however, has always recognized Jacques as treasurer of the district since his appointment, and for a time orders issued by him were honored by the county treasurer. An attempt was made to show that Litle became a nonresident of the district in the latter part of the year 1891. The testimony fails to sustain this claim. He and his family went to the town of Cimarron during the winter months, but returned to their home in the spring. The testimony convinces us that the absence was temporary, and with no intention of a permanent removal or change of residence.

Has the plaintiff any right to the office in question, or to maintain this action? He cannot employ quo warranto for the purpose of ascertaining whether Litle has been guilty of neglect or refusal to perform any duty required of him, and to declare a forfeiture therefor. Such a proceeding can only be prosecuted in the name of the state, and at the instance of the attorney general or county attorney. The plaintiff seems to be proceeding upon the theory that the county superintendent may summarily, and withòut notice to the defendant or hearing, determine for himself that a school officer has neglected his duty, and, having reached that conclusion, is authorized to appoint some one in his stead. The statute upon which the claim is based provides as follows: "Every person duly elected to the office of director, clerk, or treasurer of any school district, who shall refuse or neglect, without sufficient cause, to qualify within twenty days after his election or appointment, or who, having entered upon the duties of his office, shall neglect or refuse to perform any duty required of him by the provisions of this act, shall thereby forfeit

his right to the office to which he was elected or appointed, and the county superintendent shall thereupon appoint a suitable person in his stead." Gen. St. 1889, par. 5594. It will be observed that this section provides that a neglect or refusal to perform his statutory duties is ground for forfeiture of a right to the office, but it does not declare that it shall thereby become vacant, nor expressly vest the county superintendent with the power of removal. If for any reason the power of removal is lodged in the county superintendent, nothing in the statute, or in the nature of the office, would imply that the power of removal is discretionary, and may be exercised without notice or hearing. Where an office is held at the pleasure of the appointing power, and also where the power of removal may be exercised at its discretion, it is well settled that the officer may be removed at any time without notice or hearing. State v. Mitchell, 50 Kan. 33 Pac, Rep. 104. The defendant holds his office by virtue of an election, and is chosen for a definite time. Nothing in the law warrants the implication that a school-district officer who has been elected and qualified, and entered upon his duties, may be removed at the will or pleasure of any officer. The statute prescribes the causes for which a removal may be had, and fairly implies that the cause must be shown, and that the party charged with negligence and wrong is entitled to notice, and a right to be heard in his own defense. It is well established by the great weight of authority that an officer elected by the people for a definite term, and provision is made for his removal for cause, the power of removal cannot, in the absence of the positive mandate of statute, be exercised without notice and hearing. The mere silence of the statute with respect to notice and hearing will not justify the removal of such an officer upon a charge of misconduct and negligence, without knowledge of the charges, and an opportunity to explain his conduct, and defend his course and character. Field v. Com., 32 Pa St. 478; Ex parte Hennen, 13 Pet. 230; Page v. Hardin, 8 B. Mon. 648; State v. City of St. Louis, 90 Mo. 19, 1 S. W. Rep. 757; Willard's Appeal, 4 R. I. 601; Chase v. Hathaway, 14 Mass. 222; Dullam v. Willson, 53 Mich. 392, 19 N. W. Rep. 112; Mechem, Pub. Off. § 454. The defendant was in possession of the office, holding it by as good a title as that of any other officer of the state who has been elected by the people. He was charged with negligence and misconduct, and shall he be condemned unheard? He refused to sign or recognize orders for the salary of the teacher, and it is admitted that the contract with the teacher was illegally made. It is true that a majority of the board, at a legal meeting held about three months later, tried to cure the illegal action. Whether they succeeded or not, and whether the refusal of Litle thereafter to sign the warrant can be held to be a neglect of duty which would justify removal,

must be inquired into and determined by some competent tribunal or officer. Whether the grounds of forfeiture prescribed in the statute exist must be ascertained, and this cannot be done until specific charges are made, and full opportunity is given to the officer to produce proofs, and defend his rights. Without a removal made in a legal manner, no vacancy existed in the treasurer's office, and the county superintendent had no authority to appoint the plaintiff. An action' to inquire as to the existence of the grounds of forfeiture, and for a removal, if cause exists, may be maintained in any court of competent jurisdiction; but it is not necessary in this action to determine whether the county superintendent is vested with that power, and, as there is some difference of opinion among the members of the court with reference to that question, it will not be decided at this time. The plaintiff has shown no right to the office, and judgment must therefore go in favor of the defendant. All the justices concurring.

(18 Colo. 368)

ATCHISON, T. & S. F. R. CO. v. SHEAN et al.

(Supreme Court of Colorado. May 1, 1893.) INJURY TO PASSENGER-ALIGHTING AT EATING HOUSE.

Where a train stops at an eating station, and there is a track between the train and the station, a passenger alighting from the train has the right to assume that the railroad company will so regulate its trains that its tracks between the car and the eating station platform will be safe for him to pass over in going to and returning from the eating house, and his failure to look and listen for an approaching train is not negligence.

Appeal from district court, Arapahoe county.

Action by Moses D. Shean and others against the Atchison, Topeka & Santa Fe Railroad Company to recover damages for injuries causing death of plaintiffs' father and husband. Judgment was rendered for plaintiffs, and defendant appeals. Affirmed.

The other facts fully appear in the following statement by GODDARD, J.:

The action is brought by Mary E. Shean, the wife, and in behalf of Moses, Josephine, and Mary Shean, the children, of Thomas Shean, deceased, to recover damages against the railroad company for wrongfully causing the death of said Thomas Shean. The facts are as follows: Thomas Shean was a passenger for hire from Kansas City, Mo., to San Francisco, Cal., on the appellant company's cars. On the 1st day of October, 1887, the section of the train in which he was being carried arrived at La Junta, Colo., between 8 and 9 o'clock in the forenoon. La Junta is an eating station of the company, and a point at which trains stop to allow passengers to take meals, and also at which trains are made up for the north and west. The train was being run in two sec

tions between Kansas City and La Junta Shean being on the section that arrived first. After stopping at the eating station, this section was switched upon a side track, the main track being between it and the station. While so standing, and about 40 minutes after its arrival, Shean started to go to the eating station for breakfast. While passing diagonally across the main track he was struck by the locomotive drawing the other section, and killed. The testimony of witnesses as to the rate of speed this section of the train was running at the time varies from 6 to 10 miles an hour. It was also conflicting in regard to whether the bell was being rung at the time of the accident. The following specific interrogatories were submitted to the jury, and answered as follows: "First. Do you find from the evidence that the deceased, Thomas Shean, after leaving the car, and before reaching the track where he was injured, listened or looked for an approaching train? Answer. No. Second. Do you find from the evidence that if the deceased, Thomas Shean, had looked, before going upon the track where he was injured, he could have seen the approaching train? Answer. Yes. Third. Do you find from the evidence that if deceased, Thomas Shean, had stopped and listened before going on the track, he could have heard the approaching-train? Answer. No." General verdict for plaintiffs for $5,000. Motion for new trial overruled, anu judgment rendered for amount of verdict.

Charles E. Gast, Wells, Macon & Furman, and Rogers, Cuthbert & Ellis, for appellant. Rogers & Shafroth, for appellees.

GODDARD, J., (after stating the facts.) The ground mainly relied on in the argument before us, and the one we regard as controlling in this case, is whether, upon the evidence, the deceased at the time of the accident exercised such care as an ordinarily prudent man would exercise under like circumstances. In other words, was he guilty of such contributory negligence as would defeat a recovery? The fact is uncontroverted, as found by the jury in answers to interrogatories Nos. 1 and 2, that the deceased did not, on approaching the track where he was injured, look or listen for an approaching train, and that, if he had looked before going upon the track, he could have seen the approaching train; and the question is thereby presented whether the deceased, in his relation as a passenger, had the right to omit the precaution of looking for an approaching train, and, as the court below instructed the jury, "assume that the defendant must so regulate its trains that its tracks between the car he left and the eating station platform would be free from obstruction, and safe for him to pass over in going to and returning from the eating house;

that defendant is bound to exercise

*

*

the same degree of care in providing for him a safe and convenient way and manner of access to and from the eating station * as in the transportation and carriage of him." It is said by this court in Railroad Co. v. Hodgson, 31 Pac. Rep. 956, 18 Colo. -: "The appellant, a common carrier, owed a peculiar duty to the deceased, a passenger for hire. It was bound to exercise the highest degree of care and skill reasonably practicable in the management of its trains. This duty did not cease upon the arrival of the train upon which the deceased was a passenger at the place of his destination. The company was still bound to furnish him an opportunity to safely alight therefrom, and to use the utmost care and diligence in providing for him a safe passage from the train to the platform of the depot." The same duty, we think, is imposed upon the company towards a passenger while, on a continuous journey, he is going to and returning from the eating stations provided by the company for the accommodation of passengers. While leaving the train for this purpose he does not cease to be a passenger, or lose the protection of those regulations that the company is bound to provide for his safety while on its cars, or when rightfully upon its depot grounds. The same rules of law can be invoked for his protection under such circumstances as are afforded to passengers going to and from its cars. Their duty in the latter respect is well settled. Railroad Co. v. Hodgson, supra. In the case of Railroad Co. v. White, 88 Pa. St. 333, it is said: "It is the duty of the company to provide for the safe receiving and discharging of passengers. It is bound to exercise the strictest vigilance, not only in carrying them to their destination, but also in setting them down safely, if human care and foresight can do so." That the deceased had a right to rely on the performance of such duty by the company, and proceed without taking the precaution to look and listen, and that the failure to do so is not negligence per se, is decided in numerous cases. To this effect are: Terry v. Jewett, 78 N. Y. 338; Brassell v. Railroad Co., 84 N. Y. 241; Archer v. Railroad Co., 106 N. Y. 589, 13 N. E. Rep. 318; Jewett v. Klein, 27 N. J. Eq. 550; Baltimore & O. R. Co. v. State, 60 Md. 449. In Baltimore & O. R. Co. v. State, 60 Md., at page 463, it is said: "And though the deceased himself was required to exercise reasonable care, yet we may suppose that his watchfulness was naturally lessened by his reliance upon the faithful observ ance by the employes of the defendant of such precautionary rules and regulations as would secure to passengers a safe transfer; and, except in the presence of immediate, apparent danger, he was authorized to act upon such reliance." In the case of Jewett v. Klein, 27 N. J. Eq. 550, it is held "that a person who, in passing from the depot to the train he

was about to take, was obliged to cross an intervening track, was not guilty of contributory negligence in that he did not, before approaching the train, look up or down the track to see whether there was danger from an approaching train, and in that he approached the train diagonally from the platform to the station, and before his train had come to a full stop." By the foregoing and other well-considered cases it is settled that a passenger on a railroad, while passing from the cars to the depot, is not required to exercise that degree of care in crossing a railroad track as is imposed upon other persons, and that he has the right to assume that the company will discharge its duty in making the way safe; and, relying on this assumption, may neglect precautions that are ordinarily imposed upon a person not holding that relation; and this distinction is to be taken into consideration in determining the propriety of his conduct. Under all the facts shown in evidence and the circumstances surrounding the accident, whether the person injured was guilty of contributory negligence at the time is a question within the province of the jury to decide, and one that the court cannot rightfully take from them. In addition to the cases above cited, see Warren v. Railroad Co., 8 Allen, 227; Gaynor v. Railroad Co., 100 Mass. 208; Parsons v. Railroad Co., (N. Y. App.) 21 N. E. Rep. 145; Wheelock v. Railroad Co., 105 Mass. 203. In the case at bar we think the law was correctly given to the jury, and that their finding on the facts cannot be disturbed. An examination of other points presented by appellant discloses no error that is a cause of reversal of the case.

The judgment is accordingly affirmed.

1. Gen. St. 1883, § 1594, provides that the district court may, for just cause, being satisfied that the guardian has applied all the personal estate, order the sale of the land of the ward on the application of the guardian by petition in writing stating the facts. Held, that a petition filed solely to procure an order of sale of unproductive land, which was depreciating, for reinvestment in more desirable property, was not defective for want of an averment that the guardian had faithfully applied all the personalty.

2. Under such statute the appointment of a guardian ad litem was unnecessary.

3. Where the notice describing the land sold was published the required length of time, the fact that the petition included other tracts described in another notice not so published, which were not sold, did not affect the validity of the sale of the land properly advertised, though all the land described in the petition was ordered sold.

4. The publication of the notice of sale in each issue of a daily paper commencing on