, 1891-12-10

or any other means of support than by her
personal labor, and that she could not earn
to exceed fifteen dollars per month in
that way; that she had applied to the
appellant at various times after obtaining
the divorce for money, and that he had
sent her some. Several letters were intro
duced in evidence by the appellant which
the respondent admitted in her testimony
that she wrote to him during this time
which weakened her case very much.
From these and her testimony it appeared
that she was very needy and in poor health
and that she had been assisted by char
liable institution at least upon one oc-
casion. while she had the children. Also
that the chairman of the board of county
commissioners furnished her with ticket
to Seattle, and gave her some money. 1t
appeared that she and her mother lived
together a part of the time, and
her own testimony, and these let
ters went far to show that they were both
unsuited morally to have control of the
children: She did not attempt seriously
to maintain that the appellant was cruel,
in his treatment of the children, and she
testified that he had always been hard
working industrious man, and that he
neither drank nor gambled. His testimony
which was undisputed in this particular
showed that he was earning about one
hundred dollars month"; that he was able
them suitable education, and that he de-
sired to have them. Their welfare is the only
thing to be considered in this matter, and
we think from the proof that they would
be much better off under his control,
Reversing the judgment Of the lower
court we remand the case and direct that
the children be given to the custody of the
appellant, neither party to recover costs.
ELMoN ScoTT, Judge.
We concur: 7. L. Stiles, j.; John P
Hoyt, j. R. o. Dunbar, j.; 7. J. Anders,
G. J.
A RAILROAD SUIT.
The Northern Pacific Railroad Company
appellant VS.. J. G. Ellison, administrator
of the estate of Thomas Ellison, deceased
respondent.
This was an action brought by respond
for the death of his intestate, alleged to
have been caused by the negligence Of APP
pellant.
Many interesting questions are presented
in the record, and most ably and thor
oughly discussed, in the briefs Of the
learned counsel for the respective parties,
but it is unnecessary for us to here deter
mine them.
AS we view it, this case must be gov
erned by the authority of Graetz VS. Nc
Kenzie, decided at the present session of
this court. That action was based upon
section of the code of Washington and
the only questions presented for our deter
mination were whether or not sections 8
and III of the code were irreconcilably re-
pugnant to each other, and, if 80, which Of
the two sections should prevail. And this
court, after mature deliberation, held that
the two sections could not be harmonized
with each other, and as neither OF them as
found in the code was new enactment,
but only continuation of a previous pro
vision, it further held that section 8, being
the later Of the original enactments, was
the last declaration of the legislative will,
and therefore repealed section ILL., which
relates to the same subject matter.
AS asserted in the brief of counsel for
respondent, and evinced by the complaint
itself, this action was brought under the
latter section. But, if it should be con-
ceded that it was brought under section 5,
then the complaint is obnoxious to the OBJ
jection Of appellant that IT fails to aIlege
the existence of any surviving heirs of the
deceased who would be entitled to the
benefit which might be realized by the re-
coVery of damages. In either case the
action must fail.
The judgment of the court below is there
fore reversed and the cause dismissed
without prejudice to any new action that
may be authorized by law.
ANDERs, G. T.
We concur: Dunbar, j.. Scott, j.;
Stiles, j.
I concur in the result, Hoyt J.