al attempts had been made to repair it. The bolt, when put in, was in good condition, and was open to inspection. The derrick had been in use for some years, and had not been inspected from the time of its erection. The employé was familiar with the use of derricks. Held, that it was for the jury whether the injury was caused by defendant's negligence, or whether such employé's own negligence contributed thereto.

Appeal from court of common pleas, Allegheny county.

Action by James Dyer against the Pittsburg Bridge Company to recover for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The following presents the material facts of the case: "James Dyer, the plaintiff in this case, was a young man who had been working, prior to the accident complained of herein, about three years at the bridge-building business. Derricks similar to the one on which he was hurt had always been used, and in his examination on the trial of this case he showed a thorough and complete knowledge of the purposes and uses of a derrick. In March, 1897, he was working on a bridge which was being built near Glenwood, in the city of Pittsburg, for the Baltimore & Ohio Railroad Company. The allegation is that this bridge was being built by the Pittsburg Bridge Company. He was standing upon one of the abutments waiting to guide one of the trusses, which was being hoisted, to place. The derrick had been fit ted up for the purpose of elevating these trusses. One truss had been placed in posi

tion, and another was being hoisted, when a bolt which goes through the top of the mast, and holds the gudgeon pin in place, broke, and released the gudgeon pin, and let the arm of the derrick fall. The ropes, in running, caught his foot, and practically sawed it off. He was one of quite a number of men, all of whom testified that the head of the mast of the derrick was out of repair, and that several attempts were made to fix up the gudgeon pin by driving in pieces of iron. All the men on the job testified that the condition of the derrick was open and apparent to every one on the work prior to the happening of the accident. The testimony showed that the bolt when put in was in good condition, that it was open to inspection, and that it could have been inspected by the workman, and that it should have been inspected, and that there were numbers of such bolts provided by the company to be used for this express purpose. Counsel for the defendant, at the trial of this cause, submitted to the court a point for binding instructions, which was refused, and the case submitted to the jury on the question of whether or not the defendant company was negligent in not providing suitable appliances for doing the work. The derrick, so far as appears in the testimony, had not been inspected by the company, or any one representing it, from the time that

Dyer did not assist

it had been erected. in the erection of the derrick, and was engaged at other work on the bridge, which was being erected, and the gudgeon pin was not securely fastened in the mast, by reason of not having proper wedges with which to fasten or key it up, and the head of the mast had rotted out, and had become defective. The gudgeon pin, which was held in place by a pin which passed clear through the mast, was old, and much worn, by reason of the defective condition of the mast, and the consequent looseness of the gudgeon pin. Dyer, the plaintiff, was called to put one of the girders in place when it was swung around by the derrick. Just as he was about to guide it into place, the bolt holding the gudgeon pin broke, and the gudgeon pin flew out, and the whole derrick collapsed."

Stone & Potter, for appellant. Thos. M. & Rody P. Marshall, for appellee.

PER CURIAM. No error was committed by the court in its refusal to direct the jury to render a verdict for the defendant. It was clearly within their province to determine from the evidence in the case whether the cause of the injury the plaintiff received was the negligence of the defendant, and, if so, whether the plaintiff's own negligence contributed thereto. That it was the

plain duty of the defendant company to provide a proper place and suitable appliances ployès were required to do must be conceded. for the performance of the work its emand if the evidence disclosed an unwillingness of the company to provide such place and appliances, or, having provided them, failed to maintain a proper supervision and care of them for the protection of its workmen, an inference of negligence would be the natural and probable result arising from its noncompliance with a plain duty. The evidence relating to the matters above referred to was for the consideration of the jury, under proper instructions from the court. The instructions presented every possible phase of the case to which the evidence was applicable, and they were absolutely impartial. We therefore conclude that a proper result was reached by the verdict of the jury, and that no adequate cause appears which warrants interference with the judgment entered thereon. Judgment affirmed.

(198 Pa. 270) COMMONWEALTH ex rel. ELKIN, Atty. Gen., v. CHARITY HOSPITAL OF PITTSBURG. (Supreme Court of Pennsylvania. Jan. 7, 1901.)

HOSPITALS-LOCATION-STATUTES-CONSTITUTIONAL LAW.

1. The term "built-up," in Act April 20, 1899 (P. L. 66), declaring it unlawful hereafter to

establish or maintain any additional hospital in the built-up portions of cities, is used in its ordinary and popular sense, and not as contradistinguished to rural and agricultural property, the sense in which it is used in Act 1876 (P. L. 124), relative to taxation in cities of the second class.

2. New buildings on a new site, though constructed by a hospital already having buildings, are within Act April 20, 1899 (P. L. 66), declaring it unlawful hereafter to establish or maintain any "additional" hospital in built-up portions of cities.

3. The general object of Act April 20, 1899 (P. L. 66), being declared by its title to be to protect the public health, it has no more than one subject, in contravention of Const. art. 3, $ 3, though it regulates the location of hospitals, pest houses, and burial grounds.

4. Act April 20, 1899 (P. L. 66), entitled "An act for the protection of the public health, prohibiting hereafter the establishment or maintenance of additional hospitals, pest houses and burial grounds in the built-up portions of cit ies," is a general act for protection of the public health throughout the state, and not a local or special law, regulating the affairs of cities, in contravention of Const. art. 3, § 7.

5. Act April 20, 1899 (P. L. 66), prohibiting the establishment of hospitals in the built-up portions of the cities, does not deprive one of his property without due process of law, or deny to him the equal protection of the law, in contravention of Const. U. S. Amend. 14, § 1, but is within the police power of the state; such prohibition having a real and substantial relation to protection of the public health, and the question whether the relation is or is not so close as to justify the prohibition being a matter for legislative determination.

ants is a general one, but persons suffering from contagious diseases are not knowingly received, and none such has been treated in the hospital up to the present time, unless it be one case of tuberculosis.

"(4) In April, 1899, the defendant purchased a block of property in the Nineteenth ward of the city of Pittsburg, bounded by Wellesley avenue, St. Clair street, Hampton street, and Mellon street, and being divided into two parts by Wellston alley, running from St. Clair street to Mellon street. The consideration paid by the defendant for the property was $50,000.

"(5) The defendant proposes to build on the property in question, beginning at present at Hampton and St. Clair streets, a hospital building, which is to cost about $150,000, and to be built in accordance with the most modern and approved methods of building hospitals.

"(6) The Nineteenth ward lies in what is called the East End of the city of Pittsburg, north of East Liberty, extending from Penn avenue to the Allegheny river, and includes the Highland Park. The two main thoroughfares of the ward are North Negley avenue and North Highland avenue, which lie about five squares apart, each being traversed by street-car lines. The land of the defendant, above described, lies between these two avenues, two squares from each

Action by the commonwealth, on the relation of John P. Elkin, attorney general, against the Charity Hospital of Pittsburg, for injunction. Decree for plaintiff. fendant appeals. Affirmed.

De

The opinion of the court below is as follows:

"Findings of Fact.

"(1) The defendant is a corporation of the state of Pennsylvania, chartered January 5, 1898, under the provisions of the act of 1874, for the purpose of erecting, maintaining, and operating a general hospital, and it had in fact, before its incorporation, erected a hospital from about February, 1897, in the city of Pittsburg.

"(2) The building used by the hospital at present is situated on Collins avenue, in the city of Pittsburg, contains twenty-two rooms, and is now, and for some time has been, in charge of the Sisters of Charity. It is supported by voluntary contributions, and the funds received from pay patients. Since the Sisters of Charity have taken charge of it, there have been treated 567 pay patients and 35 charity patients. The building at present occupied is entirely inadequate in size to accommodate the hospital, and the defendant has been compelled to refuse admission to a large number of persons, the number refused from January 1, 1900, to July 1, 1900, being 149.

"(3) The hospital conducted by the defend

the proposed hospital site is occupied by one of the public schools of the city of Pittsburg, known as the 'Fulton School,' which now has a building in use accommodating about 450 pupils, and has in process of erection an addition, duplicating the present building, rendered necessary by the increasing population of the neighborhood. The school building faces on Hampton street, and stands back from it about 50 feet, and will be distant about 130 feet from the proposed hospital building. On the west of the proposed site there are no buildings in the two squares which extend to North Negley avenue, except one frame dwelling house. On the south of the proposed site, beginning at Wellesley avenue, and extending southward from Wellesley avenue between North Neg. ley and North Highland avenue, practically the whole of the ground is occupied by buildings, principally residences, and this condition of affairs extends continuously between the two avenues, all the way to Penn avenue, a distance of about 4,000 feet, with the exception of some of the squares between Hays and Black streets, about one-half the distance to Penn avenue. On the east side of the proposed site, on the square next to Wellesley avenue, at the time of the purchase by the defendant, there existed but one house. Several others have since been constructed or are in process of construction, covering the most of the square south of Wellston alley. East of the hospital site, and north of Wellston alley, is occupied by

a private residence and the grounds connected therewith.

"(7) The proposed location has not been approved by the mayor of the city of Pittsburg, a city of the second class, the director of public charity, or the director of public works, or by any of them.

"(8) In the classification of real estate in the city of Pittsburg for the purposes of taxation, the whole district in which the hospital site is located is classified as rural property, and pays taxes on that basis.

"(9) The testimony of the mother superior of the Sisters of Charity is to the effect that it is the intention of the defendant to remove its hospital from Collins avenue to the proposed building when erected, and thereupon to discontinue the hospital at Collins avenue, but no corporate action to that effect was ever taken.

"The case of the plaintiff for an injunction rests upon the provisions of two acts of assembly, that of June 10, 1897 (P. L. 138), which provides that no cemetery, hospital, or pest house shall be constructed in any city of the second class until its location shall have been approved by the mayor, the director of public charity, and the director of public works, or a majority of them; and the act of April 20, 1899 (P. L. 66), which, for the protection of the public health, prohibits the establishing or maintenance of additional hospitals, pest houses, and burial grounds in the built-up portions of cities. The defendant claims that the second of these acts does not apply to this case, and that, in any event, both of the acts are unconstitutional and void.

"Conclusions of Law.

"(1) Considering, first, the act of 1899, the first question to be resolved is whether or not the proposed site of the hospital, as hereinbefore described, is a built-up portion of the city of Pittsburg, within the meaning of the act. The defendant urges the proposition that because, by the act of 1876 (P. L. 124), governing assessments for the purposes of taxation in cities of the second class, the term 'built-up' is used in contradistinction to rural and agricultural property, and the district in question has always been assessed as rural, and not built-up, property, under the terms of that act the legislature must be presumed, in the present act, to have used the term 'built-up' in the same sense which it has been held to have in the act of 1876 and similar acts in regard to taxation. the last-mentioned act applied to all the cities of the commonwealth, and the term 'built-up' had come in that way to have a technical meaning in all of these cities, there would be much force in this argument; but as the act in question applies to all the cities of the commonwealth, and refers to a subject totally different from that of taxation, we are of opinion that the phrase 'built-up portions of cities' must be understood in

If

its ordinary and popular meaning, and with reference to the object of the act, viz. the protection of the public health. The object of the act must be presumed to be to remove supposed sources of contagion from immediate contact with a large population. With this meaning of the act and the situation of the proposed hospital in reference to its surroundings in view, we are of opinion that the site of the proposed hospital is in a builtup portion of the city of Pittsburg, within the meaning of the act.

"(2) It is further claimed by the defendant that its hospital is not an additional hospital, within the meaning of the act of 1899, because it was in existence and operation at the time of the passage of the act. The general object of the act being to prevent hereafter the erection of hospital buildings, etc., in the built-up portions of cities, but not to disturb those already lawfully established and maintained therein, as set out in the proviso, there can be no doubt that the word 'additional' is used in reference to the provisions of the proviso, and does not mean in addition to the total number now maintained in the whole of the city, but refers to new buildings not already established. Besides, it does not definitely appear in this case that the defendant has abandoned, or will abandon, its present location. We are therefore of opinion that the proposed erection is an additional hospital, within the meaning of the act.

"(3) If these conclusions be correct, and the act of 1899 a valid law, the defendant would appear to have no right to build or maintain a hospital upon the proposed site. The defendant maintains, however, that the act of 1899 is void, as offending against provisions both of the constitution of Pennsylvania and of the United States. First. It is claimed, first, that it is in violation of article 3, 3, of the constitution of Pennsylvania, which provides that no bill shall be passed containing more than one subject, which shall be clearly expressed in its title, and that the act in question contains more than one subject, in that it regulates the location of hospitals, pest houses, and burial grounds, and thus operates upon three distinct subjects, which are claimed to be entirely dissimilar. It would follow, if this contention be correct, that three separate bills would be necessary to accomplish the object intended by this act. We take the law on this subject to be that, if a statute seeks to accomplish one general purpose by one general means, it will be deemed to contain but one subject, even though the details or specific means are multiplied to any extent, provided they are in fact subordinate to, and germane to, the general aim. The general object of the act in question is declared to be to protect the public health. The general means by which this is to be done is the prohibition, in populous localities, of public institutions which are sup

posed to bring those who come near them into close contact with disease; and specific forms of these are mentioned, the genus being described by the enumeration of its species. If the general purpose was to protect the public health, and it was sought to accomplish this by various means not cognate with each other, the unity of purpose alone would not save the act; but, where one purpose is sought by one means, it would be intolerable if a separate statute were required for each detail. Second. It is further claimed to be in violation of article 3, § 7, of the constitution of Pennsylvania, which prohibits the general assembly from passing any local or special law "regulating the affairs of counties, cities," etc. It is argued by the defendant that the act does not relate to any matter peculiar to cities, and does not relate to the exercise of any corporate power; that it is a law applying to only selected portions of the state, and is therefore local. The plaintiff contended that the act being intended to protect the health of the inhabitants of cities, and the protection of the public health being a recognized subject of municipal control, laws passed in regard to hospitals, etc., in cities, or in any class of cities, are general, and not local, because the protection of the public health is a proper matter of municipal control. We cannot agree with this contention of the plaintiff, that merely because an act is intended to protect the public health it may be made to apply to cities, or a particular class of cities, without becoming local. If the legislature, for the protection of health in cities, should undertake to prohibit the sale of cigarettes to minors, or oleomargarine to anybody, in all the cities of the commonwealth, it could not be claimed that the act was valid. There must be the additional element that the danger to be guarded against has relation to the local conditions. Cigarettes and oleomargarine are equally deadly in the forest and in the city, but not so a hospital or pest house. However this may be, we are of opinion that the act is not intended merely to protect the public health in cities, but is a general act, for the protection of the public health throughout the commonwealth. This is the natural meaning of its words. Hospitals, pest houses, and burial grounds are necessary, and must exist somewhere. As the law stood before this act, they might be placed anywhere except where they became in fact a nuisance, or were specially prohibited. A pest house, containing persons with known contagious diseases; a hospital, drawing together in one place a large number of persons affected by disease, and which is thus likely to contain some persons affected by contagious disease; and a burial ground, in which the bodies of those who have died of such diseases may be buried,— are all supposed, whether rightly or not, to be sources of contagion to those who come in contact with them, and the greater num

ber of persons who come into such contact, and in turn come into contact with others, the greater the danger of the spread of disease. If this be true, there is obviously much greater danger to the general public health from such institutions in a populous city than in the country or in a village, and the danger will be in proportion to the number and density of the population, permanent and transient. The legislature, therefore, having in view on the one hand the danger to the public health, and on the other the necessity for the existence, in proper places, of such institutions, and desiring to regulate the matter so as to draw the line between proper and improper places for them more definitely than before, has to determine where such a line shall be drawn, and how it shall be designated. The problem is how to designate conveniently the more populous centers, and separate them from the remaining parts of the commonwealth. While it is no doubt true that there are, from time to time, some boroughs of larger population than some of the cities of the commonwealth, yet this must be deemed only a temporary condition, and the intention of the law is that municipalities called 'cities' shall be the largest and most populous of the state. When, therefore, the statute prohibits hospitals, etc., in the built-up portions of cities, it thereby draws a line having the populous centers on one side and the less populous on the other, in a case where the supposed evil to be regulated does or does not exist, according to the greater or less density of population. If this be a correct analysis of the act, it is, of course, not local legislation, nor legislation concerning the affairs of cities, in any sense, but a general act regulating the location of the institutions in question by prohibiting them in all the more populous places of the state, down to a certain line. Third. Lastly, it is claimed that the act in question is in violation of section 1 of the fourteenth amendment to the constitution of the United States, in that it is claimed to deprive defendant of its property, or the use of it, without due process of law, and denies to the defendant the equal protection of the law. It is true that the act does prevent the defendant from using its property in a manner which before was lawful, but the defendant, equally with all other persons, natural and artificial, holds its property subject to valid police regulation, made and to be made, for the health and comfort of the people, and, if the act in question is such a regulation, the defendant has no cause of complaint. That the regulation or the prohibition in certain localities, of many trades or employments, useful in themselves, if they are harmful, or likely to prove so, to the inhabitants of a thickly-settled locality, is within the police power of the state, is not denied, but it is claimed by the defendant that its hospital will not be in fact a nuisance; that

hospitals in general are not, and have never been, deemed to be nuisances; and, practically, that the statute was made either upon a mistaken idea of the legislature that hospitals are dangerous to the public health in certain circumstances, or else that it was made in bad faith. The prohibition of the erection of hospitals in certain localities for the protection of the public health implies a determination by the legislature of the fact that such hospitals in such places are likely to be dangerous to the public health, and are therefore to be deemed nuisances, and this is as apparent from the act as if it were fully set out in a preamble to it. If this finding be conclusive upon the courts in passing on the validity of the act, or enforcing its provisions, as claimed by the plaintiff, there can be no question of the validity of the act itself. We cannot agree, however, with the proposition that the legislature can do whatever it pleases, provided it declares its purpose to be the protection of the public health. That the legislature, on the one hand, must be the judge of what things are and what are not harmful to the public health or the public safety, and that, on the other hand, the courts have the right, and are under the duty, of ascertaining whether or not the legislature has passed beyond the limits of its power, cannot be doubted. The law on this subject is clearly expressed in the opinion of the supreme court of the United States, delivered by Mr. Justice Harlan, in the case of Mugler v. Kansas, 123 U. S. 661, 8 Sup. Ct. 273, 31 L. Ed. 205. The court says: 'It belongs to that department

[the legislative] to exert what are known as the "police powers" of the state, and to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety. It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute (Sinking-Fund Cases, 99 U. S. 700-718, 25 L. Ed. 496), the courts must obey the constitution rather than the lawmaking department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. • The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty-indeed, they are under a solemn duty-to look at the substance of things whenever they enter upon or inquire whether the legislature has transcended the limits of its authority. If, therefore, a statute, purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a papable invasion of

rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.' If, therefore, it appeared that the prohibition of hospitals in built-up portions of cities, for the protection of the public health, has no real or substantial relation to that object, it would be the duty of the court to disregard the act as invalid and void. This does not mean, however, that the act is to be held invalid merely because, in the opinion of the court, it was founded upon a misapprehension of fact or a false alarm of danger. That hospitals collect in one place a large number of diseased persons, that among them there are liable to be a greater or less number who are affected by contagious diseases, and that the number of persons affected by contagious diseases may be thus increased in a particular locality, cannot be denied. That the prohibition of hospitals, therefore, in crowded communities, has a real and substantial relation to the protection of the public health in general, must also be admitted. Whether that relation is or is not so close as to justify the prohibition of the building of a hospital is a matter purely for legislative determination, and cannot be reviewed by the courts. We are therefore of opinion that the act in question, being within the police power of the state, does not violate the fourteenth amendment to the constitution of the United States.

"(4) The view we have taken of the act of 1899, and its applicability to the facts of this case, makes it unnecessary to discuss the constitutionality of the act of 1897, relating to hospitals in cities of the second class.

"(5) If these conclusions be correct, it will follow that the building of a hospital by the defendant on its proposed site is unlawful. The question remains whether or not the court has jurisdiction in this form of proceeding to enjoin the defendant. Where a public nuisance is committed or threatened, any person specially injured on his private account. or the attorney general, as representing the public interest, may maintain a bill to prevent or abate the nuisance. The act of 1899 is not a penal act, nor does it in fact provide any penalty for the acts prohibited, but declares the prohibited acts to be unlawful, and therefore necessarily the result of them to be public nuisances, and such bills have frequently been sustained to prevent purprestures, the pollution of waters, etc. If a hospital, to be erected under the circumstances of this case, has been validly declared by the legislature to be a nuisance, it is as much one as if it had been so at common law, and may be prevented by the same remedies. We are therefore of opinion that the bill is properly brought at the relation of the attorney general, and that the commonwealth, as represented by him, has an interest which gives it standing to maintain the bill.

"(6) The contention of the defendant that it has not been shown that any damage will