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control of the carrier, causes to arise a presumption of negligence on the part of the carrier, and was sufficient upon which to submit to the jury the question of negligence."

But in Garner v. East St. Louis R. Co. (1918) 211 Ill. App. 201, the evidence showed that a fellow passenger of the plaintiff, after taking his seat in a street car, was in the act of removing his valise from the aisle when the plaintiff, who was going to the rear of the car to alight, stumbled over the valise and was injured. In reversing a judgment for the plaintiff, the court said: “The evidence in this record was not sufficient to warrant the jury in finding that the agents of appellant had notice of the presence of the suit case in the aisle, or that it had been in the aisle a sufficient length of time that they should have taken notice of it; but the evidence does show affirmatively that the suit case had been placed in the aisle immediately before appellee fell. Unless these conditions existed, the appellant would not, in our judgment, be guilty of such negligence as to create a liability against it for the in-, jury received by appellee."

So it was held in Van Winkle v. Brooklyn City R. Co. (1887) 46 Hun, 564, 12 N. Y. S. R. 548, 5 Am. Neg. Cas. 436, that a street railway company was not guilty of negligence in permitting a passenger to place a basket between his feet in the open space between the seats of an open street car, over which the plaintiff stumbled and fell while attempting to alight from the car. The court said that, while no rule for the exclusion of such articles was shown, yet it might be the duty of the conductor to cause their removal on complaint of inconvenience, annoyance, or obstruction to other passengers; yet, without some complaint and request for their removal, the court knew of no rule which would require it; and that, as it did not appear that the conductor in charge of the car had knowledge of such obstruction in the passageway between the seats, while the plaintiff had knowledge thereof, it might be said that the latter, in attempting to 19 A.L.R.-87.

step over such obstruction, assumed the risk of injury therefrom.

In Price v. St. Louis Transit Co. (1907) 125 Mo. App. 67, 102 S. W. 626, which was an action against a street railway company for personal injuries, the plaintiff's petition alleged in effect that the defendant negligently caused or allowed to be placed on the platform of the car a piece or pieces of iron, or other substance, and negligently caused the car to be started suddenly or jolted, thereby causing the plaintiff to fall on and against a piece of iron, causing injury to his foot. It was held that there could be no finding for the plaintiff where there was no evidence whatever that the defendant's servants in charge of the car caused or permitted the iron to be placed on the platform.

It is held in at least one jurisdiction that a street railway company is not negligent in allowing a suit case, package, or the like, to be placed in the aisle of the car, so long as it does not prevent free passage, or make the passageway dangerous to other passengers. Pitcher v. Old Colony Street R. Co. (1907) 196 Mass. 69, 13 L.R.A. (N.S.) 481, 124 Am. St. Rep. 513, 81 N. E. 876, 12 Ann. Cas. 886; Lyons v. Boston Elev. R. Co. (1910) 204 Mass. 227, 90 N. E. 419, 2 N. C. C. A. 363; Jackson v. Boston Elev. R. Co. (1914) 217 Mass. 515, 51 L.R.A. (N.S.) 1152, 105 N. E. 379; Thomas v. Boston Elev. R. Co. (1907) 193 Mass. 438, 79 N. E. 749.

It is not negligence per se for a conductor of an ordinary street car, with a seat running lengthwise on each side, to allow a package or satchel to be placed on the floor by another passenger, and to remain there, provided it is not so placed as to obstruct the free passage in and out of the car, or to render the passageway dangerous to other persons in the exercise of due care. Pitcher v. Old Colony Street R. Co. (1907) 196 Mass. 69, 13 L.R.A. (N.S.) 481, 124 Am. St. Rep. 513, 81 N. E. 876, 12 Ann. Cas. 886.

In Lyons v. Boston Elev. R. Co. (1910) 204 Mass. 227, 90 N. E. 419, 2

N. C. C. A. 363, the plaintiff sued to recover for injuries incurred as she was entering a car, by stumbling and falling over some bundles which had been left by a fellow passenger in the doorway of the car. There was no evidence as to the length of time they had been in the doorway. The court, in holding that the defendant was not liable, said: "The only reasonable inference from these facts is that the parcels were placed in the doorway by a passenger. Passengers upon elevated cars frequently carry bundles of all sorts, and have a right to do so. It is difficult to conceive of performing a service like that of the defendant without permitting bags and parcels to be brought into the cars. Passengers have control of them, and may be expected occasionally to put them on the floor of the car. The degree of peril to other passengers resulting therefrom is ordinarily slight. Such things, reasonably and intelligently done, do not constitute sources of danger. Pitcher v. Old Colony Street R. Co. (1907) 196 Mass. 69, 13 L.R.A. (N.S.) 481, 124 Am. St. Rep. 513, 81 N. E. 876, 12 Ann. Cas. 886. The public and the defendant must act with reference to this widely prevailing custom. There are no circumstances which indicate that it was the duty of the defendant to keep an employee at each car exit and entrance to see that passengers did not place their packages where they might become obstructions to those coming in or going out. It is too onerous a burden to require the defendant to act upon the theory that every one of its passengers is likely to be careless as to his fellows. The defendant might rely upon its patrons not to be heedless of the safety of others in this re

spect. The fact that one out of many violated his duty does not, in and of itself, render the defendant liable. There must, at least, be some notice to the defendant of such conduct before it can be charged with responsibility." See, to the same effect, Jackson v. Boston Elev. R. Co. (1914) 217 Mass. 515, 51 L.R.A. (N.S.) 1152, 105 N. E. 379.

In Thomas v. Boston Elev. R. Co. (1907) 193 Mass. 438, 79 N. E. 749, wherein it appeared that a woman's dress caught on something while she was alighting from the front platform of a street car, it was said that there may be many things-articles of baggage, bundles, or boxes-temporarily placed on the front platform of a street car by passengers without any negligence on the part of the carrier.

A passenger injured by falling over packages placed between the seats by a fellow passenger, in attempting to reach the aisle, for the purpose of. leaving the car, cannot recover where he has knowledge of the presence of the packages. Cincinnati Traction Co. v. Hamburger (1910) 32 Ohio C. C. 253, affirmed in (1911) 84 Ohio St. 456, 95 N. E. 1148, wherein it was said: "It is a matter of common knowledge that passengers on street cars take with them parcels of different kinds which they commonly carry on the streets. This is evidently a reasonable and proper use of the cars, and if passengers were prohibited from so using the cars, it would deny to the public a right for which the cars were created. And one entering a car must be held to do so with knowledge that other passengers may have with them parcels of the character mentioned." W. S. R.

(271 Pa. 523, 115 Atl. 887.)

COMMONWEALTH OF PENNSYLVANIA EX REL. WILLIAM I. SCHAFFER, Attorney General, Appt.,

V.

M. T. WILKINS et al., School Directors of Millcreek Township.

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1. Mandamus lies to compel observance of a statute excluding from schools children who have not been vaccinated or had smallpox, although the statute provides a penalty for disobedience of the statute by the school authorities, if it contains no provision for enforcement of its provisions. [See note on this question beginning on page 1382.]

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APPEAL by plaintiff from a judgment of the Court of Common Pleas for Dauphin County (Henry, President J.) refusing a writ of peremptory mandamus to compel defendants to dismiss certain children from the public schools, admitted in alleged violation of statutes requiring them to be vaccinated. Reversed.

The facts are stated in the opinion Messrs. George E. Alter, Attorney General, and George Ross Hull, for appellant.

Messrs. Milloy & Gilson, for appellees:

A writ of mandamus will not issue to require school directors to perform the duty prescribed in § 12 as to admission of children to schools.

Com. ex rel. Northeastern Rapid Transit R. Co. v. Fitler, 136 Pa. 129, 20 Atl. 424; Shisler v. Philadelphia, 239 Pa. 468, 46 L.R.A. (N.S.) 725, 86 Atl. 1019; Com. ex rel. Snyder v. Mitchell, 2 Penr. & W. 517; Com. ex rel. Hoopes v. Thomas, 163 Pa. 450, 30 Atl. 206; Baker's Petition, 44 Pa. 440;

of the court.

Reading v. Com. 11 Pa. 196, 51 Am. Dec. 534; Garman v. Carroll Twp. 1 Pa. Dist. R. 530; Com. ex rel. Zoll v. Killinger, 1 Pearson, 257; Sparhawk v. Union Pass. R. Co. 54 Pa. 401; Com. ex rel. National Boring & Drilling Co. v. Lebanon City, 7 Pa. Dist. R. 163; Com. v. Smith, 266 Pa. 511, 9 A.L.R. 922, 109 Atl. 786.

Simpson, J., delivered the opinion of the court:

The commonwealth, by its attorney general, filed a petition in the court of common pleas of Dauphin county, praying a writ of peremptory mandamus to compel ap

committed till he abates it, at his proper cost," mandamus would not lie because there is an adequate and specific remedy at law to reach the end sought; in the latter, there was no duty imposed on the defendants, in regard to the subject-matter of the complaint, and hence there was none which they could be required to perform. Nor is the Act of March 21, 1806 (4 Smith's Laws, 332, § 13; Pa. Stat. 1920, § 45), in point; for here "a remedy is not provided and no penalty (is to be) inflicted, or anything done agreeably to the provisions of the common law (except such as) shall be necessary for carrying such act or acts into effect."

The true rule is that expressed in High on Extraordinary Legal Remedies, 3d ed. § 18: "It is well established that the existence of a remedy by indictment for the omission of duty or other grievance complained of constitutes no objection to granting the extraordinary aid of a mandamus. An indictment, at the most, is merely punitive, and not remedial in its nature, and can only punish the neglect of duty, without

compelling its performance. It cannot, therefore, take the place or usurp the functions of a mandamus, which affords specific relief by commanding the performance of the identical thing sought."

To the same effect are Wood on Mandamus & Prohibition, 3d ed. 80, 18 R. C. L. 135, 26 Cyc. 173, and our own cases of Com. v. Johnson, 2 Binn. 275, and Porter Twp. v. Jersey Shore, 82 Pa. 275.

It was said at bar that, since the affirmance of their conviction by the superior court, appellees have been obeying the law, exactly as the commonwealth contends they always should have done. If this be so, and they continue to do it, the writ of peremptory mandamus need not be issued.

The judgment of the court below is reversed at the cost of appellees, and the record is remitted, with directions to forthwith enter judgment for the commonwealth, and thereafter to issue a writ of peremptory mandamus against the appellees, M. T. Wilkins, Burt Thomas, and J. Ross Barney, whenever it shall be found necessary so to do.

ANNOTATION.

Mandamus to enforce performance of public duty by officer who is subject to penalty, fine, or imprisonment.

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(271 Pa. 523, 115 Atl. 887.)

Jones, 203 Pa. 47, 52 Atl. 56, and Com. ex rel. Bell v. Powell, 249 Pa. 144, 94 Atl. 746.

The last question raised is: "Was the commonwealth's sole remedy the punishment inflicted on appellees under the penal provisions of the acts?" The court below sets forth its conclusion in these words: "We take the law to be that where an act otherwise indifferent is made penal by legislative enactment, the remedy provided by the act for its enforcement is exclusive, and remedy by injunction or mandamus is not available unless some purpose is to be served in addition to the simple enforcement of (its) provisions."

We are not inclined to disagree with this statement of the law, if properly understood, but only with its applicability to the present case; for here there is no "remedy provided by the act for its enforcement." There is a penalty provided for those who refuse to enforce it, but this is a vastly different thing from an "enforcement of (its) provisions."

-to compel observance of statute.

The basis of the opinion below is that since the statute provides no other penalty for its infraction, none other can be imposed; and this is true so far as penalties are concerned, but the rule of construction relied on goes no further. It might just as well be said that because an act simply provided that embezzlement of public funds should be punished by fine and imprisonment, there could be no recovery by a civil action against the embezzler. It is rare indeed that a statute expresses the fact that existing remedies for its enforcement are reserved, nor is it requisite it should do so; yet this is the necessary conclusion from the opinion below, which says, in effect, that because no such reservation is expressed, the legislature must have intended that, by simply paying a fine, public officials, charged with the duty of preventing the spread of contagious diseases, can obtain a right to neglect their duty and subject the people to the risk of conta

gion, against which the statute was
intended to secure them. This is,
of course, unsupposable; when the
commonwealth declares her public
policy on such important state mat-
ters, instead of it being necessary to
reserve the right to proceed, the
courts will always presume, in the
absence of an
absence of an express provision
otherwise, that she retains the right
to pursue every existing means nec-
essary to compel her officials to en-
force that policy.

It is not necessary to consider under what circumstances a private party may maintain an action to recover damages for injuries resulting from a breach by defendant of a statutory duty, when the act prescribing it provides a penalty for its violation, but does not expressly declare the party injured may sue because thereof. Perhaps our cases on this point are not wholly reconcilable—at least, if full weight is to be given to the dicta therein (Mack v. Wright, 180 Pa. 472, 36 Atl. 913, 1 Am. Neg. Rep. 679; Stehle v. Jaeger Automatic Mach. Co. 220 Pa. 617, 69 Atl. 1116, 14 Ann. Cas. 122; Westervelt v. Dives, 231 Pa. 548, 80 Atl. 1054; Brynelson v. TurnerForman Concrete Steel Co. 239 Pa. 346, 86 Atl. 924; Danner v. Wells, 248 Pa. 105, 93 Atl. 871); but they are all beside the present question, which is, as stated: Can a public officer be compelled to perform the duties of his office, even though he may be punishable by fine or imprisonment, or both, if he does not? Upon this point there should not be any doubt; nor is there in this state.

The court below cites no cases for its conclusion, and the only decisions of ours cited by appellees as sustaining it are Reading v. Com. 11 Pa. 196, 51 Am. Dec. 534, and Com. v. Smith, 266 Pa. 511, 9 A.L.R. 922, 109 Atl. 786, which are not even in point, much less controlling. In the former, which was an application by a private relator to compel the defendant to abate a continuing public nuisance, it was held that since, in such cases, "the proper sentence is that the defendant stand

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