wit, the selection of the local trustees, and the ordering and raising of moneys for maintenance of the schools), arbitrary exceptions have been made from the general applicancy of articles 6 and 7.

was no referendum, and the members of the board of education were in all cases to be elected by the people, the only local option being as to the number of members that should constitute the board. P. L. 1900, p. 217, §§ 85, 86, etc. It was this discrimination between school districts in municipalities divided into wards, and school districts in municipalities not so divided, that was held illusory and unconstitutional by this court in Lewis v. Board of Education, 66 N. J. L. 582, 50 Atl. 346. Thus the effect of § 246 of the act of 1902, and of the proviso of § 250, in confirming a referendum theretofore held under the act of 1900, is to perpetuate the consequences of an unconstitutional classification of school districts, in

In § 250 we find the declaration that "all school districts shall hereafter be governed solely by the provisions of this act," and a general repealer of inconsistent provisions. It is manifest, however, that this language cannot have the effect of overriding special saving clauses and provisos contained in the act itself. It cannot subject to the provisions of article 6 or of article 7 any school district that is not within the descriptive terms of those articles. Neither can any district, so far as the selection of members of the board of education and the ordering a limited number of localities that happen and raising of moneys for school support are concerned, be governed by § 244, and at the same time be governed by inconsistent provisions contained in article 6 or in article 7. In short, the language quoted from § 250 must be construed as bringing all school districts within the provisions of this act, so far and so far only as those provisions in terms apply to any district in question.

to have taken action under the void law prior to the enactment of the present one. For, under the present act, while a somewhat similar and perhaps identical referendum is open to city districts, subject to some qualifications (P. L. 1902, p. 96, § 80), it is not open to districts that are situate in townships, incorporated towns, and boroughs. The referendum contained in § 249 is not identical, for it relates, not simply to the method of selecting the school board, but to the powers of the board and the other provisions regulating the management and support of the schools. If the effect of § 246, in confirming the results of a previous referendum, was to lead to uniformity, it might be supported. State, Tiger, Prosecutor, v. Common Pleas Court, 42 N. J. L. 631; State ex rel. Bumsted v. Govern, 47 N. J. L. 368, 1 Atl. 835, 48 N. J. L. 612, 9 Atl. 577.

Two further clauses of this act require specific mention at this point. In § 246 there is a clause confirming all elections or submissions to the voters of any school district under the general school law of 1900, of the question whether in such district the board of education should be elected by the people or otherwise, with the declaration that in every such district hereafter the board of education shall, if the people have voted in favor of an appointive board, be appointed and organized under the provisions of § 42 of this act, and, if the people have voted in favor of an electric board, they shall be elected and organized under the provisions of § 43 of this act. Section 246 at the same time confirms all elections for members of the board of education held pursuant to the act of 1900, and constitutes the members so elected as the board of education of such school district a corporation, as if organized under § 48 of the present act. Again, there is a proviso appended to § 250 declaring "that this act shall not repeal or affect the provisions of any general act which may have been or which may hereafter be accepted by a vote of the people in any city or school district in this state." Now, under the act of 1900 (P. L. 1900, pp. 206, 207, §§ 45, 46), a referendum upon the question whether the school board should be elected or appointed was granted to every municipality, irrespective of its form of incorporation, pro- tive board or did not vote at all upon the vided it were divided into wards. In mu-question, must hereafter have elective nicipalities not divided into wards there boards.

Now, with respect to cities that are divided into wards, the confirmed referendum does tend to uniformity, because by the act of 1902 they are placed on the same basis as cities not divided into wards; and the circumstances of the referendum having been employed prior to the adoption of the act of 1902 might be treated as immaterial. This is on the assumption that the subjectmatter of the referendum was the same under the act of 1900 as under the act of 1902.-a point we do not stop to critically examine. But with respect to townships, incorporated towns, and boroughs that are divided into wards, the effect of § 246 is to produce diversity. For those divided into wards that have heretofore employed the referendum must have an appointive school board if they have so voted, whereas townships, incorporated towns, and boroughs that have no wards, and those that have wards, but have heretofore voted for an elec

thus dependent upon each other must fail." In the absence of any express declaration to the contrary contained in the act itself, the presumption is that the legislature intended any given enactment to be effective in its entirety. Iowa L. Ins. Co. v. Eastern Mut. L. Ins. Co. 64 N. J. L. 340-346, 45 Atl. 762. In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination only where an unconstitutional provision is interjected into a statute other

separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process.

Returning to § 33, it will be noticed that | independently, and some parts are unconboroughs are thereby divided into two stitutional, all the provisions which are classes. The territory of boroughs heretofore incorporated, if already organized as a separate school district, is to so remain, unless afterwards consolidated with adjoining territory. In boroughs hereafter incorporated, the people are not to have independent school government, unless the State Superintendent of Public. Instruction and the State Board of Education shall unite in so determining. If any rational basis exists for this discrimination, it has not been pointed out. Again, §§ 81 and 82 seem to embody some arbitrary discrimina-wise valid, and is so independent and tions respecting the membership of those boards of education that are subject to the provisions of article 7. It is unnecessary, however, to spend time upon the point. We Assuming the act sub judice to be constimust not be understood as undertaking to tutional in its general features, we might, make an exhaustive disclosure of all the perhaps, say that so much of § 246 as special features in so voluminous a statute. undertakes to perpetuate the discriminaEnough has been said to demonstrate that tions that result from the employment of a the act adheres neither to the common-law referendum under a previous unconstituclassification of municipalities, nor to any tional statute might be exscinded as a mere legislative classiñcation that is germane to excrescence. But the other discriminations the subject-matter. The classification of stand, we think, on an entirely different school districts is intricate, and not easily basis. Section 33, for instance, contains in followed. Plainly, however, numerous sub- and of itself nothing unconstitutional, unclasses are dealt with, and these, as a rule, less it be the provisions respecting boroughs. are distinguishable only by unimportant It purports to establish the bounds of the characteristics. As already appears, these several school districts of the state, and, minor classifications, as they may be called as already mentioned, it leaves the existing for convenience, are made the basis of dis- school districts to remain as they stood criminations in the act that have no reason- prior to the passage of the act; no existing able pertinency to the needs or circum school district being abolished or being stances of the districts thus set apart. The changed in respect to its boundaries. We classification is purely arbitrary. It was are not prepared to say that the legislature very properly conceded by the learned at- may not by special act create a school distorney general that in this respect the act trict, just as they create new municipalities, under consideration is in contravention of by the delimitation of a specified portion of the fundamental law. the area of the state for that purpose. What may be done by specific description may be done by reference to other legislation or by reference to the existing status. The unconstitutionality of the present law arises, not from the mode in which the bounds of the several school districts are pointed out in 33, but from the mode in which the act elsewhere makes discriminations between different school districts, with respect to the management and support of the public schools therein, on grounds of distinction that render the act local and special. Moreover, if § 33 were unconstitutional, in enacting that each township, city, and incorporated town shall be a separate school district, while at the same time providing that nothing in the section should be construed as abolishing or changing the boundaries of any existing school district, how can it be said that it is the proviso which contains the unconstitutional feature ? The proviso establishes

It is argued, however, that these unconstitutional features may be treated as excrescences upon the general scheme of the act, and may be totally disregarded, leaving the statute in its main features to remain. Upon this question we adhere to the declaration of Mr. Justice Depue, afterwards Chief Justice, speaking for this court, in Johnson v. State, 59 N. J. L. 535, 539, 38 L. R. A. 373, 37 Atl. 949, 950: "It is undoubtedly elementary law that the same statute may be in part constitutional and in part unconstitutional, and, if the parts are wholly independent of each other, that which is constitutional may stand, and that which is unconstitutional will be rejected; but, if the different parts of the act are so intimately connected with, and dependent upon, each other as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature would not have passed the residue

Bonaparte v. Wiseman, 89 Md. 12, 44 L. R. A. 482, 42 Atl. 918; Wiswall v. Brinson, 32 N. C. (10 Ired. L.) 554.

The employer cannot relieve himself of liability by letting the work to an independent contractor, where the direct or probable effect. of performance of the work contracted for will be injury to a third person if reasonable care is omitted in the performance

APPEAL by defendants from a judgment of the work.

of the Superior Court for Durham County in favor of plaintiff in an action brought to recover damages for injuries to plaintiff's building by negligently excavating defendants' lot. Affirmed.

The facts are stated in the opinions.
Messrs. Winston & Fuller, for appel-

lants:

The owner of soil has the right to remove the same up to his boundary line.

Cooley, Torts, § 595; Dorrity v. Rapp, 72

N. Y. 308.

After notice is given of the intention to excavate, it is the duty of the other fellow to shore.

Lasala v. Holbrook, 4 Paige, 169, 25 Am. Dec. 524; Tunstall v. Christian, 80 Va. 1, 56 Am. Rep. 581; Hammond v. Schiff, 100 N. C. 161, 5 S. E. 753; Radcliff v. Brooklyn, 4 N. Y. 200, 53 Am. Dec. 357; Schultz v. Byers, 53 N. J. L. 442, 13 L. R. A. 570, 26 Am. St. Rep. 435, 22 Atl. 514; Larson v. Metropolitan Street R. Co. 110 Mo. 234, 16 L. R. A. 332, 32 Am. St. Rep. 439, 19 S. W.

416.

Southern Ohio R. Co. v.. Morey, 47 Ohio St. 207, 7 L. R. A. 701, 24 N. E. 269; Carman v. Steubenville & 1. R. Co. 4 Ohio St. 399; 16 Am. & Eng. Enc. Law, 2d ed. p. 196; Woodman v. Metropolitan R. Co. 149 Mass. 335, 4 L. R. A. 213, 14 Am. St. Rep. 427, 21 N. E. 482; Bower v. Peate, L. R. 1 Q. B. Div. 321; Dillon v. Hunt, 105 Mo. 154, 24 Am. St. Rep. 374, 16 S. W. 516; Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 234; Palmer v. Lincoln, 5 Neb. 136, 25 Am. Rep. 470; St. Paul Water Co. v. Ware, 16 Wall. 576, 21 L. ed. 488.

Notice of the nature of the proposed work should be given.

Shafer v. Wilson, 44 Md. 281; Lasala v. Holbrook, 4 Paige, 169, 25 Am. Dec. 524; Bonaparte v. Wiseman, 89 Md. 12, 44 L. R. A. 482, 42 Atl. 918; Beard v. Murphy, 37 Vt. 101, 86 Am. Dec. 693; 12 Am. & Eng. Enc. Law, p. 937; Charless v. Rankin, 22 Mo. 566, 66 Am. Dec. 642; Spohn v. Dives, 174 Pa. 474, 34 Atl. 192; 18 Am. & Eng. Enc. Law, 2d ed. p. 549.

Clark, J., delivered the opinion of the

The owner of soil is not liable for injury done by an independent contractor in remov-court: ing a wall.

Engel v. Eureka Club, 137 N. Y. 100, 33 Am. St. Rep. 692, 32 N. E. 1052; Washb. Easements, § 15, p. 444; 16 Am. & Eng. Enc. Law, 2d ed. p. 201.

In such cases the servants who do the damage are not the landowners; but the independent contractors.

This is an action for damages caused by depriving the soil under plaintiff's wall, of its lateral support, by negligence of the defendant while excavating for a new buildal support has been before this court in ing on an adjoining lot. The right to laterHammond v. Schiff, 100 N. C. 161, 6 S. E. 753, and the whole subject is discussed in the very full and elaborate notes to Larson v. Metropolitan Street R. Co. 33 Am. St. Rep. 446, 447 [110 Mo. 234, 16 L. R. A. 330, 19 S. W. 416]. Another full consideration may be found in Jones, Easements, §§ There was evidence that the de585-631. fendant made his excavation 2 feet deeper Messrs. Boone, Bryant, & Biggs, for than the bottom of the foundation of the appellee:

16 Am. & Eng. Enc. Law, 2d ed. p. 192; Casement v. Brown, 148 U. S. 617, 37 L. ed. 582, 13 Sup. Ct. Rep. 672; Wiswall v. Brinson, 32 N. C. ( 10 Ired. L.) 554.

The degree of care in these cases is not such as an owner is required to exercise.

Charless v. Rankin, 22 Mo. 566, 66 Am. Dec. 642.

plaintiff's wall, causing it to crack, and

The court's charge as to independent con- otherwise injuring the plaintiff's building.

tractor was correct.

imity to a neighbor's house does not relieve the proprietor from liability for injury to the neighbor's building, see Bonaparte v. Wiseman, 44 L. R. A. 482, with footnote on exceptions to rule of nonliability for acts of independent contractors.

As to liability for caving of neighbor's land

There was counter evidence, and the jury,

by reason of excavations on one's own land generally, see Schultz v. Byers, 13 L. R. A. 569, and note; Larson v. Metropolitan Street R. Co. 16 L. R. A. 330; Parke v. Seattle, 20 L. R. A. 68; Cabot v. Kingman, 33 L. R. A. 45; and Gildersleeve v. Hammond, 33 L. R. A. 46.

from the authorities seems to be that while the adjacent proprietor cannot impair the lateral support of the soil in its natural condition, but is not required to give support to the artificial burden of a wall or building superimposed upon the soil, yet he must ot dig in a negligent manner, to the injury of that wall or building; and it is negligence to excavate by the side of the neighbor's wall, and especially to excavate deeper than the foundation of that wall, without giving the owner of the wall notice of that intention, that he may underpin or shore up his wall, or relieve it of any extra weight on the floors, and the excavating party should dig out the soil in sections, at a time so as to give the owner of the building opportunity to protect it, and not expose the whole wall to pressure at once. The defendants did not give any notice of the nature of their proposed excavation, and the evidence justified the jury in finding them guilty of negligence.

Upon the whole case, substantial justice appears to have been done, and we find no error requiring a new trial. Affirmed.

A petition for rehearing having been filed, Montgomery, J., on November 10, 1903, handed down the following additional opinion:

as triors of the fact, found a verdict for the | 470, 19 S. W. 416. The true rule deducible plaintiff, and assessed his damages at $225. The exceptions presented on the appeal are very numerous, and were very fully and ably argued here, as doubtless they also were below. After careful consideration, we find no material error. The only new point, or proposition not heretofore decided, and the point perhaps most pressed on the argument, is the following instruction, to which the defendant excepted: "While there is evidence that the plaintiff knew that the defendant was going to excavate and build, for she testified to that herself, still the defendant owed to her the duty, which is not an unreasonable one, to tell her of the extent of his proposed plan, so she might adopt measures for self-protection, if she chose to do so; and the court charges you there is no evidence that he gave proper notice to the plaintiff on the line above indicated. To give this notice involves no expense to the proprietor, and affords opportunity to the adjoining owner to protect his rights, for improvements made by one proprietor may be attended with disastrous results, even when prosecuted by competent workmen." We see nothing unreasonable or erroneous in this instruction. So far from giving such notice, when the plaintiff sent over an employee who said to the male defendant, "Mrs. Davis says please protect her wall; to dig it out in sections," he replied, "I know my business. Let her attend to her One of the questions presented by this apbusiness." And when, in her anxiety about peal is a most important one, and that the safety of her building, the plaintiff sent question is whether or not the owner of a over another person to ask of the defend- city lot is liable for an injury done to an adant "not to hurt her wall," asking that the joining proprietor's brick wall through the work might be prosecuted in such manner negligence of an independent contractor in as not to endanger her building, the defend- excavating for the purpose of building a ant very ungallantly sent the lady back wall against and alongside the adjoining word "to go to the devil." The action is proprietor's wall, and where the excavation not for the defendant's rude speeches, it is extended below the foundation of the wall of true; but certainly after these messages the adjoining proprietor. There was evifrom the plaintiff, showing her anxiety to dence offered on the trial tending to show protect her wall, he at least owed it to her, that the excavating which the jury found as his honor charged, to give her notice of was the cause of the injury to the plaintiff's the manner and depth of his proposed exca- wall was done by the defendant himself, vations. If informed in that respect, she and from that evidence the jury might have might have placed supports under her wall, found that the injury was caused by the or removed weights from the floors, or oth- direct and active agency of the defendant erwise protected her property, or, if plain himself. But for the purposes of this distiff's plans seemed an illegal invasion of cussion it will be assumed that the contracther rights, she might, if so advised by coun- or performed the work. For what negligent sel learned in the law, have sought pro- acts of an independent contractor, employed tection by an application for an injunction. to do work entirely under his own control, The defendant's failure to give such notice which have resulted in injury to third perand information was, under the circum- sons, the employer may be liable, is a substances, as injurious to the plaintiff as the ject that has often been before the courts. manner of his refusal was wanting in credit The principle appertaining to that relation to himself. Jones, Easements, § 610; Spohn in respect to such liability is that, when v. Dives, 174 Pa. 474, 34 Atl. 192; Larson work is performed by a competent contractv. Metropolitan Street R. Co. 110 Mo. 234, or under an agreement which imposed upon 16 L. R. A. 330, 33 Am. St. Rep., at page' him complete control of such persons as he