3. Taking of property without compensation-The provisions of the act of congress of July 4, 1866, giving to telegraph companies, under certain conditions, the right to construct and operate their lines over and along military and post roads are permissive only, and do not authorize the taking of municipal property without compensation.

4. Discrimination in taxation-The taxation in question being considered as a contractual obligation. it is not subject to the criticism that it is in violation of the State Constitution because unreasonable and not uniform, in the absence of any allegation that any other telegraph company has been admitted to the use of the streets without compensation.

Harlan Cleveland for appellant.

Aubrey Barbour for appellee.

Appeal from Campbell Circuit Court.

Opinion of the court by Judge Hobson.

The city of Newport by an ordinance of December 5, 1895, granted to the Postal Telegraph Cable Co. the right to use the streets and alleys of the city for the purpose of erecting its poles and stringing its wires, and it was provided in the ordinance that the company should pay the city a license tax of $1,000 per annum. This suit was filed on September 9, 1899, by the city against the company; it was alleged in the petition that the defendant secured from the plaintiff the use of its streets for the purpose named by the ordinance referred to; and that thereunder the defendant had erected its poles and strung its wires in the streets and alleys of the city and had since enjoyed the rights and privileges granted to it, and had thereby accepted the ordinance, but that in disregard of its contract it had failed to pay the city the $100 due for the year ending December 5, 1897, or for the year ending December 5, 1898. A copy of the ordinance was filed with the petition as an exhibit and judgment was prayed for the $200 due. The defendant filed an answer, in which it admitted the passage of the ordinance, but denied that it thereby acquired the right to use the streets and alleys. It alleged that by the ordinance it was provided in substance that if the company failed within thirty days after the approval of the ordinance to signify to the general council its acceptance of the grant in writing, subject to the limitations therein set out, then all the rights and privileges granted should become null and void, and of no effect. It alleged that it did not accept in writing, or otherwise, the provisions of the ordinance, but it admitted that shortly after the passage of the ordinance it began the erection of its poles and the stringing of its wires in and over the streets and alleys of the city, and has since opera ed its system thereon. Further answering, the defendant alleged that on March 17, 1886, it accepted the act of congress, approved July 4, 1866, entitled "An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military and other purposes," and the acts amendatory thereof, and that by the statutes of the United States it thus acquired the right to construct and operate its lines over and along all military and post roads of the United States, and that all public roads and highways and all letter carrier routes established in any city or town for the collection and delivery of mail were by these statutes declared post roads; that all the streets and alleys of the city of Newport are such post roads, and that it had erected its poles and strung its wires therein

under the acts of congress, and that it voluntarily submitted to such provisions of the ordinance as related to the manner in which its poles should be. erected, but not to so much of it as required it to pay $100 a year; that it paid its taxes as other taxpayers; that other companies are using the streets. just as it is using them without being required to pay $100 a year; that there was no consideration for the alleged contract which made an unreasonable discrimination between the defendant and other telegraph companies, and was in violation of the interstate commerce clause of the United States Constitution and the act of congress on the subject of post roads. The court sustained a demurrer to the answer after it had been several times amended, and the defendant failing to plead further, entered judgment in favor of the plaintiff.

A reversal is sought in this court on the ground that under the denials of the answer the ordinance can not be treated as a contract, but only as a license tax, which is void under the United States Constitution as a restriction on interstate commerce, and also void under the State Constitution because unreasonable and not uniform. The congress of the United States, has no power to take private property for public purposes without compensation, and it can no more take the property of a State or one of its municipalities than the property of an individual. The acts of congress, referred to. in the answer, conferred on the defendant no right to use the streets and alleys of the city of Newport which belonged to the municipality. This was expressly held in St. Louis v. Western Union Telegraph Co., 148 U. S., 92, and Postal Telegraph Co. v. Baltimore, 156 U. S., 210. The acts of congress are only permissive so far as the rights of the Federal government go. The defendant entered on the streets soon after the ordinance was passed and constructed its system. It had no authority to do so except under the ordinance. Its action was an acceptance of the ordinance in the al sence of some expressed disclaimer, which is not alleged. Its failure to accept the ordinance in writing might be waived by the city, and this waiver may be implied from its acquiescence in the defendant's acts. Besides, the ordinance which was made a part of the petition, a copy of it being filed therewith, is not copied in the transcript, and it must be presumed it sustained the judgment rendered on this point.

This is not the case of a license tax imposed on a telegraph company already in the use of the streets and alleys of the city. The defendant entered the city and got the use of the streets and alleys by virtue of the ordinance and it took its rights subject, to the charge which the city made for the grant. The question of the reasonableness of the grant was for the parties to decide. If the defendant was not satisfied with the terms of the grant it could have refused to accept it. It is not material now how many poles the defendant set up; the city took its chance on these things and fixed a lump sum. The defendant in going ahead under the ordinance also took its chance, and it can not be heard to say now that the charge was too high. The poles and wires in the street are a serious servitude, and, although the defendant was a foreign corporation and engaged in interstate commerce, it could not impose this servitude upon the city, thus taking its property without compensation. What was a fair compensation for the servitude was a question for the parties to decide. The contract was not without considera

tion nor is it to be construed as imposing a license tax and, therefore, the case does not fall within the line of decisions to the effect that a State can not impose any burden upon interstate commerce within its limit under the guise of a license tax.

This also disposes of the objection that the ordinance is void under the Constitution and laws of the State of Kentucky on the ground that municipal corporations are without power to exact license taxes from some and not from others engaged in the same business. It is not alleged that the city has admitted any other company to use its streets without compensation. The other companies referred to in the answer, for all that appears therein, may have acquired their rights on other terms and before the adoption of the present Constitution. There is nothing, therefore, to show any discrimination. No other questions are made, and on the whole case we are of the opinion the court properly sustained the demurrer to the answer. Judgment affirmed.

ST. BERNARD COAL CO. v. SOUTHARD.

(Filed October 14, 1903-Not to be reported.)

1. Evidence-Reading of deposition taken by adverse party-It was not error in the trial court to permit the adverse party to read upon the trial a deposition taken by the other, where it would have been competent for either party to have called the witness, had he Leen present, to testify to the facts stated in the deposition.

2. Peremptory instruction-Where the plaintiff in an action for damages for personal injuries received by reason of coal falling upon him from the roof of a room in which he was mining coal, testified that he had not discovered the dangerous condition of the roof and relied upon the assurance of the room dresser that the room was in safe and proper condition, the court properly overruled a motion for a peremptory instruction for defendant.

C. J. Waddill, Gordon & Gordon & Cox, E. G. Sebree and J. F. Dempsey for appellant.

Jonson & Jennings, Wm. H. Yost and R. Y. Thomas, Jr., for appellee. Appeal from Hopkins Circuit Court.

Opinion of the court by Chief Justice Burnam.

The appellee, R. E. Southard, was injured by the fall of a strip of coal six or seven feet long and eight or ten inches thick from the roof of a room where he was engaged in cutting coal whilst in the employ of the St. Bernard Coal Co. In his petition he alleges that the appellant placed in charge of the rooms in its mine one Volner Sisk, whose duty required him to examine the walls and roofs of the different rooms immediately after every fall of coal, and to have removed therefrom all particles of coal, slate or stone adhering thereto, which would be liable to fall therefrom; and that the rules of the company forbid miners from entering or beginning to work in such rooms without the permission of the room dresser; that on the 29th of May, 1900, while in the employ of the appellant, he inquired of Sisk what room he should go to work in, and that Sisk replied to him that No. 3 would be ready as soon as the cars were loaded and removed, and to go to work in

that room as soon as it was done; and in obedience to this direction, after the loaded cars had been removed from the room, he began cutting coal with his machine, when suddenly a block of coal fell from the roof, striking him on the head and shoulders, inflicting serious injuries. The company in its answer admitted that plaintiff was in their employ as a machine runner in its mine, and that his duty required that he should work wherever directed by his superiors; that it employed Volney Sisk as a shooting boss and room dresser; that he had full authority over the machine runners; that it was his duty to examine the walls and roofs of the different rooms in which coal was to be mined, and remove therefrom all particles of coal, slate or stone adhering to the walls or roof of the rooms which would be liable to fall or drop therefrom in order that the miners and machines could work with safety therein; that the room in which appellee was hurt had been blasted and cleaned up by the loaders, but that the room dresser had not finished; that when plaintiff applied to Sisk for a place to work he was directed to one of several rooms, including the number in which he was hurt, and told to go to work in which ever one he found ready; that appellee was an experienced miner, perfectly competent to tell whether the room had been cleaned up or not; that, without making proper examination, he began to work in the room in which he was injured immediately underneath a large lump of coal which he could by the exercise of ordinary care have discovered, and that he was in consequence guilty of such contributory negligence as precluded recovery. A jury trial resulted in a verdict for the plaintiff for $1,350, and the defendant upon this appeal complains of numerous alleged errors in the trial: First, that the trial court erred in overruling its motion for a continuance on account of the absence of George H. Falls, superintendent of the mine in which appellee was hurt, and in permitting the plaintiff to read Fall's deposition to the jury.

While there are some exceptions to the rule of law which permits the adverse party to read upon the trial a deposition taken by the other, we do not think the facts in this case bring it within these exceptions. In the class of cases in which these exceptions occur the witness whose deposition was sought to be read was incompetent to testify in behalf of the party against whom he was called, but was made so by the party entitled to use him first taking his deposition; or, where the testimony was incompetent as against the adverse party, but made competent by the party offering it. (Sullivan, &c. v. Thornton Norris, 71 Ky., 521.) It was perfectly competent for either party to have called upon Falls to prove the facts testified to in his deposition. They simply tend to show the employment of plaintiff, the rules of the company as to entering rooms, and the fact that they were in charge of their room dresser; and that plaintiff had no right to enter without his permission.

It is next insisted upon the authority of the Breckinridge and Pineville Syndicate, Limited v. Murphy, 18 Ky. Law Rep., 915, that the court should have directed the jury to find a verdict for the defendant. In that case it was shown that the plaintiff, an experienced miner, knew of the dangerous condition of the roof, and notwithstanding such knowledge on his part, continued to work in it. In this case the plaintiff testified that he had not discovered the dangerous condition of the roof, but relied upon the assurance

of the defendant's room dresser that the room had been put in safe and proper condition. We think the motion for the peremptory instruction was properly overruled. The last ground relied on for a reversal is error of the trial court in giving and refusing instructions to the jury.

The only substantial isues tendered by the answers in this case were, first, that the room in which the plaintiff was injured was in a safe and suitable condition as a place of labor; second, that plaintiff had not obeyed the directions of the defendant's room dresser in going into the room to work; third, that after doing so, he had not exercised ordinary care for his own safety. Upon the issues of fact the proof was conflicting, and they were properly left for the jury to decide. It is not a debatable question of law that a master must exercise ordinary care to furnish a servant a reasonably safe place in which to work, and to keep it in such condition; and that a servant has a right to rely upon the discharge of this duty by the master, and if he fails to discharge it, is responsible to the servant who is injured in consequence thereof. (Ohio Valley Mining Co. v. McKinley, 17 Ky. Law Rep., 1028; Ashland Coal and Iron Ry. Co. v. Wallace, 101 Ky., 638; Vandyke v. Memphis. New Orleans and Cincinnati Packet Co., 24 Ky. Law Rep., 1285.) The instructions in this case clearly and fairly give to the jury the law upon the issues raised by the pleadings and proof.

Upon the whole case we perceive no error prejudicial to the rights of appellant and the judgment must be affirmed, and it is so ordered. Judge Nunn not sitting.

PIKE, MORGAN & CO. v. WATHEN.

(Filed October 21, 1903-Not to be reported.)

1. Debtor and creditor-Conveyance of property in satisfaction of debtWhere a conveyance of real estate by a debtor jointly to a mortgage creditor and the surety on that creditor's debt recited as its consideration the payment of a nominal sum of money and warranted the title against all claims and incumbrances except two mortgages superior in point of time to that of the grantee creditor, and it appeared from parol testimony that the grantees assumed the payment of the two prior mortgages and that the three mortgages were soon afterwards surrendered to the debtor endorsed "satisfied,' the conclusion of the trial court that the consideration for the conveyance was the payment of the three mortgage debts was correct.

2. Rescission of conveyance-Usury-In an action by the debtor to recover usurious interest paid on the debt the grantee creditor is not entitled to a rescission of the contract upon tendering a deed reconveying it on the condition that the mortgage debts should be purged of usury, and that the property should be sold at public sale and the proceeds applied to the satisfaction of the debts.

Drury & Drury and Hazelrigg & Chenault for appellants.

George A. Prentice and W. O. Haynes for appellee.

Appeal from Union Circuit Court.

Opinion of the court by Judge Nunn.

This appeal is prosecuted by the appellants, Pike, Morgan & Co., from a judgment rendered by the Union Circuit Court in favor of the appellee,