THE PRINCIPAL CASE was followed in State v. Stewart, 52 Neb. 243, which was an original action in the nature of a quo warranto to oust the respondents from the offices of councilmen of the city of Lincoln, and to install the relators therein. The writ was denied. There were fourteen councilmen. The respondents were regularly nominated prior to March 16, 1897, but after such nominations were made, and prior to the city election held on April 6, 1897, the act known as the Senate File 176, mentioned in the principal case, was passed, with an emergency clause attached. This act purported to amend certain sections of the charter of Lincoln city, whereby, among other things, the number of councilmen was reduced one-half. The respondents were elected as members of the city council, and pursued and recognized the law of 1897, and ignored the old one. The relators contended that the act of 1897, under which the respondents claimed to exercise the functions of their offices, was unconstitutional and void. While the controversy, therefore, was over the title to the offices named, the important question presented for consideration was the constitutionality and validity of Senate File No. 176, approved March 20, 1897, and expounded in the principal case. Some additional points, however, concerning the amendment of statutes were decided in State v. Stewart, 52 Neb. 243, of which a note will here be made.

It will be noticed, as shown in the principal case, that the act mentioned was amended by reference to its title, and the court held that it is competent for the legislature to amend a statute by a proper reference to its title, or the number of the chapter and section as published in the Compiled Statutes; that it is not necessary for the title of the amendatory act to contain any reference to the title of the original act; and that the title to the act under consideration, when considered as a whole, distinctly points out the article and chapter where the amendatory sections were intended to apply: See State v. Berka, 20 Neb. 375; Dogge v. State, 17 Neb. 140; Ballou v. Black, 17 Neb. 389, cited by the court.

It was also held that, if an amendatory act contains a clause plainly indicating the purpose of the legislature to repeal the original sections amended, it meets the requirements of a constitutional provision declaring that an amendatory act shall "contain the section or sections so amended, and the section or sections so amended shall be repealed" though the intent to repeal may be inartistically and awkwardly expressed, and such repealing clause was drawn in the form of an amendment of the repealing clause of the act amended. "The amendment of the repealing clause of a prior law which is the subject of amendment, for the purpose of effecting a repeal of the original sections sought to be amended, is indeed novel," said Norval, J., "but it does not, for that reason, contravene any constitutional provision. The framers of this law had a perfect right to indulge in originality of expression, so long as the language employed reflected the intention of the lawgiver. As stated by counsel for respondents, 'the form of expressing the legislative intent to repeal the original sections amended, in form of amendment of the repealing clause of the original act, may make

a court or jurist smile, but does not obscure the legislative intent. That is clear enough, notwithstanding the unusual manner in which it is expressed. It is simply an instance of the inartistic methods of the ordinary layman when summoned by a constituency to sit in legislative halls and formulate results of legislative deliberation'": State v. Stewart, 52 Neb. 243, 248.

Another point decided was that the unconstitutionality of a portion of a statute does not invalidate the remainder when the different parts are separable and the void portion was not the consideration or inducement for the legislature to adopt the part that is valid; but that, if the invalid portion of the act is so interwoven with the remainder that the act is not operative with the void part eliminated, or where it is obvious from an inspection of the act that the invalid part formed the motive or inducement to the residue, the whole act must fall. The following authorities were cited to support these propositions: State v. Moore, 48 Neb. 870; Tumbler v. Tumbler, 37 Neb. 340; Low v. Rees Printing Co., 41 Neb. 127; 43 Am. St. Rep. 670; German-American Fire Ins. Co. v. Minden, 51 Neb. 870; State v. Commissioners, 5 Ohio St. 497; Poindexter v. Greenhow, 114 U. S. 270; Slauson v. Racine, 13 Wis. 398; Dells v. Kennedy, 49 Wis. 555; 35 Am. Rep. 786; Black v. Trowers, 79 Va. 123; State v. Blend, 121 Ind. 514; 16 Am. St. Rep. 411; Johnson v. State, 59 N. J. L. 535; State v. Sinks, 42 Ohio St. 345; Copeland v. St. Joseph, 126 Mo. 417; Warren v. Mayor, 2 Gray 84. "In passing," said the court, "upon the constitutionality of a statute, we recognize the rule to be that it is the duty of the courts to reconcile the statute with the constitution, and sustain the law if possible to do so without doing violence to the fundamental law. All doubt must be resolved in favor of the validity of the statute. But the same rule does not obtain in all its force and vigor when passing upon a statute some parts of which have been declared unconstitutional. In such case, there is no presumption in favor of the legality of the remaining portion": State v. Stewart, 52 Neb. 243, 251; citing Martin v. Tyler, 4 N. Dak. 278. "In Skagit County v. Stiles, 10 Wash. 388, the court used this language: ing whether a part of an act can stand where another part has been held unconstitutional, a different rule as to presumptions is recognized from that which obtains where the whole act is being considered. The general rule that legislative acts are primarily presumed to be constitutional, and that all intendments are to be made in favor of the act to give it effect according to the intent of the law-making power, does not apply in such cases, as the upholding of a part of an act is not favored, and where a part has been held unconstitutional and the remaining portion comes up for consideration as to whether it can stand as an independent proposition the presumptions are generally against it, and it will not be sustained unless that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected.'

'In determin

In passing upon the amendatory law above mentioned, the court further held that the rule to be applied to the amendment of each

particular section of the thirty-three designated in this act was precisely the same as if the amendatory act consisted of a single section; that if an amendatory section of an act contains subject matter not expressed in the title of the act, nor germane to the original section, but is amendatory of prior laws, it is unconstitutional and void; that, as the amendatory section 91 was the consideration or inducement for the passage of the amended section 13 of the same act, which reduced the number of councilmen one-half, both sections had to fall together, the unconstitutionality of the former section invalidating the latter, leaving the original sections in full force and effect, and not superseded; that, while the official tenure of councilmen, not being fixed by the constitution, might be shortoned or terminated at the will of the legislature, the law for that purpose must be constitutionally adopted, and that this was not done; that while the repeal of section 10 of the amendatory act under consideration destroyed or took away the authority to create wards, it did not have the effect to abolish existing wards; and that, therefore, the city council of Lincoln was composed of fourteen members, two from each of the wards of the city. The result was, that, while the sections of the law mainly relied upon by the respondents were pronounced unconstitutional, the relators were held not to be entitled to the offices; and it was declared to be wholly immaterial that the respondents pursued and recognized the law of 1897, and ignored the old one.

STATUTES-TITLES-AMENDMENTS.-The title of an act must express the subject matter, and must not include two or more subjects or objects. Provisions of an act not embraced within its title are void; but if the provisions of the act are all germane to the general subject expressed in the title, the title is sufficient. The constitutional provision as to the titles of statutes is mandatory, though it is to be liberally construed. Generality of title is not objectionable, but the provisions of the act must all be germane to the general subject expressed in the title. The rule as to the title and matters of an original act applies to an amendatory act. The title of an amendatory act must be germane to the original act. These matters, and other similar questions, are discussed at length in the monographic note to Bobel v. People, 64 Am. St. Rep. 70-107, on the sufficiency of the title to a statute.

OMAHA V. BOWMAN.

[52 NEBRASKA, 293.]

MUNICIPAL CORPORATIONS - POND - NEGLIGENCE CAUSING DEATH-LIABILITY OF CITY.-A city is not answerable for the death of a child from drowning in a pond situated on private property, not in dangerous proximity to a public highway, although the city may have created the pond by overflowing the property without objection from the owner. In such a case, the city owes no duty to the general public, aside from that of a sanitary character, other than such as devolves upon the owner of the real property submerged.

NEGLIGENCE-EVIDENCE-PROXIMATE CAUSE OF INJURY.-Negligence is a fact to be shown by evidence. Its existence

cannot be left to mere conjecture, and it must be the proximate cause of the injury of which complaint is made.

MUNICIPAL CORPORATIONS-ACTION FOR NEGLIGENTLY CAUSING DEATH-ERRONEOUS INSTRUCTIONS.-If a city overflows lots without objection from the owner, creating a pond thereon, but not in dangerous proximity to a public highway, and a child is accidentaly drowned therein, it is error, in an action to recover against the city for the death, to give instructions which assume that the city could be held liable, if the evidence proves an injury, caused by the massing of the water on the lots, which would entitle the lotowners to damages.

W. J. Connell and E. J. Cornish, for the plaintiff in error.

Silas Cobb, for the defendant in error.

294 RYAN, C. This action was brought in the district court of Douglas county by Fannie E. Bowman, as administratrix of the estate of Albert D. Bowman, for the recovery of damages sustained by the estate of the intestate by reason of his death. The deceased, it was alleged in the petition, was about seven years of age when he was drowned in a pond of water which plaintiff in error negligently had permitted to accumulate and be, and remain in, over, and by, the side of Davenport street in the city of Omaha. There was a verdict and judgment against the city in the sum of one thousand dollars. The accident happened on June 15, 1892. The evidence showed that about six years before the date just named the city had constructed an embankment on Davenport street which interfered with the flowing of water from certain lots abutting on said street. The pond. in question was caused by this water. The sidewalk was about seven feet from the water and quite a distance above the water level. There seems to be no dispute in the evidence that to reach the water from the street it was necessary that a person should cross an intervening strip of private property at least six feet in width. A few days before the date of the accident some boys tore 295 up a part of the sidewalk and launched it on the pond. Albert D. Bowman, and some juvenile friends, took possession of this piece of sidewalk and were using it for a raft, when young Bowman fell off and was drowned. The mere fact that he was thus drowned was alleged in the petition and admitted in the answer. There was no effort to show whether the deceased reached the pond, as he might have done, by passing from his home near by, over private property, or by way of the street. It is not clear from the petition just what acts and omissions on the part of the city are claimed to constitute negligence on its part. There was charged a failure to place a fence, or visible

boundary, between the street and the private property adjoining. In view of the fact that it was not claimed that the child entered the water from the street, this averment has no bearing on the questions under consideration. The following averments seem to have described the negligence principally, if not entirely, relied upon, and we shall therefore quote them at length: "Plaintiff further states that said pond of water was formed by the water that formerly would have run through a ravine at said place, the same being filled over at said place by said city in constructing and filling up Davenport street at said place, which said water was negligently permitted to accumulate and remain as aforesaid, and the natural outlet for said water being closed and filled up by the defendant city of Omaha a long time previous to the said June 15, 1892, by the city filling up the street at said Davenport, near Twenty-eighth street, and thereabouts, where said death occurred, being filled about five feet on the north side and about fifteen feet on the south side of said Davenport street, and thereby filling up and stopping a creek or ravine that was wont theretofore to flow along where said street was filled as aforesaid, and although there is, and has been a long time prior to June 15, 1892, a sewer about two blocks away from the place of said death, yet there was no provision made for the drainage of said water by the city or 206 said Moody and Stockdale (the owners of the private property on which the pond was), from said lots, said water thereby being discharged upon said lots in and over and upon Davenport street as aforesaid, and there negligently confined, and negligently by all of said defendants permitted to remain upon said property." In this connection, it was alleged that the pond caused in the manner above described had, before June 15, 1892, been dangerous and menacing for many years, was very enticing and attractive to children of tender age, many of whom in that locality were in the habit of playing in said pond of water, and that the dangerous, menacing, and enticing condition of the pond had been well known by said Moody and Stockdale and the officers and authorities of the city of Omaha at the time of and before said death.

The defendant in error was permitted to recover upon a theory rather narrower than that above stated, as appears from the following instruction given by the court: "1. The court charges the jury that if the grade and fill was over and across the ravine, through which, prior to the filling, water from springs and the drainage from the vicinity was accustomed to flow, then it was the duty of the defendant, in making said fill, to provide a pas