and entitled to the entire benefit of whatever might be recovered by the administrator in this cause. The answer of the defendant is in effect a plea in bar, that as the death of the boy was due to the fact that the said Elisha Wellman, the sole beneficiary, permitted, induced, and compelled his son to enter the mine and work on the day that he was killed, knowing that he was under age, and knowing, fur such a number of hours as would unfit him to carry on his work without sleep afterwards, to permit a recovery in this case would be to permit the father to recover in a case where the accident resulted from his own wrong, and that under the rule of law he is not, under such circumstances, entitled to recover, and that his bar in this respect bars also the suit by the administrator. worked in the mine, and that when the boy went back to work on the morning of the second day, after having been at work all of the preceding night, it was with the knowledge and assent of his father. There is some contest about what was the age of the boy. The law of West Virginia prohibits the employment in coal mines of any boy under the age of fourteen years, and requires that, in cases of doubt, the parents or guardians of such boy shall further, that he had been already working for nish affidavits of their ages, and that any operator, agent, or mine foreman who shall knowingly violate the law, or if any person shall knowingly make a false statement as to the age of the boy, they shall, upon conviction, be fined or imprisoned as the statute directs. There is some conflict in the testimony as to whether or not the affidavits or statements were furnished in this case. The evidence for the defendants is to the effect that they did have written statements from his father that the boy was over the age of fourteen. This is denied by his father, and there is evidence that the boy at the time of his death was under fourteen years of age. The testimony of his mother is that he was born on the 19th day of November, 1895, and according to the evidence his death occurred on the 17th day of March, 1909; so that he was under fourteen years of age at the time of his death. If it is proved, therefore, that he had been employed by the mining company with the knowledge that he was under the age of fourteen, the parties responsible for that employment would be liable to the penalty imposed by the statute; and it also may be that the knowingly employing by the mine company of a boy under the age of fourteen years would be presumptive negligence on the part of the mining company. This last question, how ever, does not arise for decision at this time. There was evidence to the fact that his parents had made statements that he was over the age of fourteen years. The defendant interposed the defense that under the laws of West Virginia the father of the deceased was entitled to the benefit of whatever would be recovered under this action for the death of the de ceased. The action is brought by a third person as administrator for the estate of the deceased boy; but under the law of West Virginia, while this action is permit ted to be brought by the administrator, yet the amount, when recovered, goes to the person who under the law of West Virginia would be entitled to inherit, had the deceased died intestate. In the present case it is admitted that Elisha Wellman. the father of the boy who was killed, is the person who would be sole beneficiary The evidence disclosed that the boy had been at work consecutively before he was killed for over twenty-six hours without sleep. It may be that, for one engaged in a hazardous occupation, the working beyond a certain number of hours without rest has the effect of unfitting him to protect himself from the hazards of the occupation; and it may be, further, that the permitting by an employer, such as the defendant coal mining company, anyone, and especially a boy, to continue working in its employment, when that employment is a hazardous one, for a number of hours consecutively without sleep, with such result as would physically unfit the employee from protecting himself from the hazards of that occupation, might be construed to be negligence on the part of the employer. Assuming, for the purpose of the decision in this case that such is the case, and that the permitting by the coal mining company of this boy to work consecutively for twenty-six hours without sleep was negligence on the part of the employer, inasmuch as it permitted the employee to work when he was physically incapacitated from protecting himself from the dangers accompanying such work, yet that would still leave open the question, on the plea in bar interposed by the defendant, whether if the coal mining company was negligent in this respect, so as to authorize recovery by the boy if he was living, or by anyone who did not knowingly contribute to his death, can the father recover where he himself did knowingly contribute? The general rule of law is that where the death of a minor child is due to the negli gence or the wilful action of his father, and that father is the sole beneficiary, he is not entitled to recover. This rule would appear to be founded upon a very salutary LEE v. NEW RIVER & P. CONSOL. COAL CO. rule of public policy. The minor child is supposed to be under the control and orders of his father. To allow one who has the control over a minor child to knowingly and wilfully subject him to a hazard which may result in his death, and then allow the person so acting to recover damages for the death occasioned by his wrongful action in this regard, would be to offer a premium to the misuse by a parent or guardian or other person entitled of his powers over a minor. It is a question of public policy, and it is on this question of public policy, as we understand it, that the general rule of law above referred to has been enforced. It may be that to effect this bar the act of the party permitting or directing the minor's conduct must be one of an active kind by one qualified to know the danger to which the minor would be subjected. If the father were of weak mind. or if he were a person not capable of knowing the danger, or if the child's parent to recover were his mother, who also may not have been capable of estimating the danger, so as to rob the directions given of the element of intention to subject the minor to the risks of a hazardous occupation or act which might redound to the benefit of the person giving such instructions, the rule might well not apply. But where the case presented is that of one who is the party charged by law naturally with the control of and dominion over the minor, and he is a person who knows and can realize the dangers which the minor may be subjected to, or may subject himself to, under the instructions or with the knowledge of such party, and such party is one who will be the beneficiary in the case of the death of the minor, it would seem that the rule does apply, and does apply for the salutary reason that in such case the law will not permit the temptation to be offered to an unnatural parent of subjecting a minor in his control and charge to improper risks for the benefit of the parent. In the present case, if there were conflict on that point, it might be a quesno tion for the jury; but the evidence is by the father's own admission and testimony that he knew the boy was employed in the mine, that he knew the boy had been worked or overworked the night before, and he knew the boy had gone back to work again that morning. His testimony is that on that very morning he was aware that his son had gone ahead of him in the mine to go to work. His father was a mine worker, had been engaged in mining for more than seven years, had been working in the very mine where his son killed for near six years, and therefore was 45 L.R.A. (N.S.) 943 must be presumed to have known of all the dangers attending his son's occupation. Knowing all those dangers, and knowing that the boy had been working consecutively for 24 hours, and presumably, therefore, knowing that to work without sleep for that time was calculated to so impair the faculties of a boy of that age that he would not be able to protect himself against the him to go back to work on the morning hazards of his occupation, he yet permitted of the 17th, and in our view, as he is the sole beneficiary who would be entitled to receive whatever would be recovered in this action, to allow him to recover would be to allow him to get the benefit of a recovery despite his own wrong, and would be in violation of the salutary rule of law ther, that the bar against the father's rewe have mentioned above. covery in this respect will attach to any We hold, furrecovery by the administrator of the boy, who is practically a trustee for the father, for whose sole benefit he would recover in this action; and it follows from this that the judge below was correct in instructing the jury that if they found under the circumstances of this case that the boy's father, who was the sole beneficiary, was himself guilty of negligence in respect to the boy's employment on the occasion of his death, then the defense interposed operated, and there can be no recovery, and the judgment below is affirmed. Affirmed. KANSAS SUPREME COURT. Courts V. OSCAR KJELLANDER. (90 Kan. 102, 132 Pac. 1170.) ders. 1. A grant of appellate jurisdiction imnecessary to its effective exercise, and to plies that there is included in it the power make all orders that will preserve the subject of the action and give effect to the final determination of the appeal. Same supreme court 1 allowance of alimony. Headnotes by JOHNSTON, Ch. J. Note. fees pending appeal in divorce suit, see note. · For jurisdiction to award temporary alimony, suit money, and counsel to Maxwell v. Maxwell, 27 L.R.A. (N.S.) 712, and especially cases cited at page 714, as to the jurisdiction of the appellate court. allow temporary alimony to a party pending an appeal in an action of divorce, and to order the payment of attorneys' fees or suit money necessary to a prosecution of the appeal, and may likewise provide for the temporary custody of children until the determination of the appeal. ON (June 7, 1913.) N MOTION by appellee in an appeal from a decree of the District Court for Labett County denying a divorce, to strike plaintiff's application for temporary alimony, attorneys' fees, and custody of child. Motion denied. The facts are stated in the opinion. Messrs. C. E. Pile, J. I. Sheppard, James G. Sheppard, and Kate Sheppard for appellant. Messrs. W. A. Disch, W. B. Glasse, and E. L. Burton, for appellee: The supreme court has no jurisdiction to allow alimony. ing the appeal, an allowance to pay attortody of her child pending the determination neys to prosecute the appeal, and for cusof the appeal. Appellee insists that to entertain these applications and to make the orders requested would be an exercise of original jurisdiction with which the supreme court is not vested. It is true, as contended by appellee, that the only original jurisdiction which the court may exercise is that specifically granted by the Constitution, namely, quo warranto, mandamus, and habeas corpus, and if, to hear and determine such applications, we must resort to our original jurisdiction, they must be refused. Auditor v. Atchison, T. & S. F. R. Co. 6 Kan. 500, 7 Am. Rep. 575; Foster v. Moore, 32 Kan. 483, 4 Pac. 850; Chicago, K. & W. R. Co. v. Chase County, 42 Kan. 223, 21 Pac. 1071; Re Burnette, 73 Kan. 609, 85 Pac. 575. The question remains: Are such applications open to our consideration under the appellate jurisdiction granted to this court? There can be no contention but that the custody of the child is a matter which may be controlled by this court in the exercise of its original jurisdiction in habeas corpus, and as to that feature of the case there is no difficulty. The power to require the pay Re Burnette, 73 Kan. 609, 85 Pac. 575; Lacy v. Williams, 27 Mo. 280; St. Louis County v. Sparks, 11 Mo. 201; Ex parte Henderson, 6 Fla. 279; State ex rel. Selph. v. Vann, 19 Fla. 29; State v. Breese, 15 Kan. 123; Evans v. Thomas, 32 Kan. 469, 4 Pac. 833; Supreme Lodge, O. S. F. v. Carey, 57 Kan. 655, 47 Pac. 621; People ex rel.ment of counsel fees or suit money and temKocourelk v. Chicago, 193 Ill. 507, 58 L.R.A. 833, 62 N. E. 179; People ex rel. Dickinson v. Board of Trade, 193 Ill. 577, 62 N. E. 196; State v. Atchison, T. & S. F. R. Co. 6 Kan. 500, 7 Am. Rep. 575; State ex rel. Vance v. Wilson, 30 Kan. 661, 2 Pac. 828; Coleman v. MacLennan, 78 Kan. 744, 20 L.R.A. (N.S.) 361, 130 Am. St. Rep. 390, 98 Pac. 281; 3 Cyc. 259; Ingraham v. Ingraham, 169 Ill. 432, 48 N. E. 561, 49 N. E. 320; Maxwell v. Maxwell, 67 W. Va. 119, 27 L.R.A. (N.S.) 712, 67 S. E. 379; Roby v. Roby, 9 Idaho, 371, 74 Pac. 957, 3 Ann. Cas. 51; Elliott, App. Proc. §§ 16, 545: 2 Story, Const. § 1761; Lake v. Lake, 17 Nev. 230, 30 Pac. 878; State ex rel. Bettman v. Harness, 42 W. Va. 414, 26 S. E. 270; Hutton v. Lockridge, 27 W. Va. 428; McBride v. McBride, 119 N. Y. 519, 23 N. E. 1065; Bohnert v. Bohnert, 91 Cal. 428, 27 Pac. 732. porary alimony pending an appeal has not been expressly given, and the question is whether there is implied power to make such allowances in the exercise of our ap pellate jurisdiction. The appellate jurisdiction conferred carries with it, by implication, the power to protect that jurisdiction, and to make the decisions of the court thereunder effective. This was determined in Chicago, K. & W. R. Co. v. Chase County, 42 Kan. 223, 21 Pac. 1071, where parties were enjoined and prohibited from performing certain acts which would have defeated the purpose of a pending appeal and rendered the judgment of this court therein abortive. It was held that the court, in aid of its appellate jurisdiction, has authority to control all auxiliary and incidental matters necessary to the efficient and proper exercise of that jurisdiction. It was said that "inherently the supreme court must have the power to protect its own ju Johnston, Ch. J., delivered the opinion risdiction, its own process, its own pro of the court: ceedings, its own orders, and its own judgments; and for this purpose it may, when necessary, prohibit or restrain the performance of any act which might interfere with the proper exercise of its rightful jurisdiction in cases pending before it." 42 Kan. 225. This action was brought by appellant to obtain a divorce, the custody of a minor child, and for a division of property. On the trial the court gave judgment against appellant denying her a divorce as well as the custody of the child, but did make a division of the property. She appeals and A grant of jurisdiction implies that there asks this court to make an allowance of is included in it the power necessary to its temporary alimony for her support pend-effective exercise, and to make all orders that will preserve the subject of the action, the circumstances justify the making of and give effect to the final determination of them, it must be done by a court which exthe appeal. This principle is illustrated inercises original jurisdiction. Maxwell v. State ex rel. Jackson v. Anheuser-Busch Maxwell, 67 W. Va. 119, 27 L.R.A. (N.S.) Brewing Asso. 76 Kan. 184, 90 Pac. 777, which was an original proceeding in quo warranto. It was decided that, although the court had no original jurisdiction to issue injunctions or to appoint receivers, it had implied power to restrain parties in order to protect, preserve, and render effective its original jurisdiction in quo war ranto. 712, 67 S. E. 379; Reilly v. Reilly, 60 Cal. 624; McBride v. McBride, 119 N. Y. 519, 23 N. E. 1065; Kesler v. Kesler, 39 Ind. 153; State ex rel. Clarkson v. St. Louis Ct. of Appeals, 88 Mo. 135; Lawlor v. Lawlor, 76 Mo. App. 293; O'Brien v. O'Brien, 36 Or. 92, 57 Pac. 374, 58 Pac. 892. The general trend of the authorities, however, is that, in the exercise of its appellate jursidiction, the court may require the payment of suit money and temporary alimony pending an appeal. In 14 Cyc. 745, it is said: "The authorities differ as to the On appeals to this court orders for the allowance of temporary alimony and for suit money have been frequently granted, and always upon the theory that it was incidental to and in aid of the appellate juris-power of an appellate court to grant an diction conferred on the court. A party to order directing the payment of temporary a divorce proceeding is entitled to an ap- alimony and suit money upon an appeal in peal from an adverse judgment. If it be a divorce action. In some jurisdictions such the wife, and all the accumulations and power is denied, but the weight of authoriproperty of the spouses are held in the ty is in favor of an exercise of the power." name of the husband, her right of appeal would be unavailing unless she can be provided with the means to prosecute it and with the necessities of life pending its determination. In such a case it is the only way to make the appeal effectual and to carry out the purposes of the law in vesting the court with appellate jurisdiction in divorce cases. Allowances of this character, like orders of stay, injunction, and prohibition, are necessary incidents and aids of appellate jurisdiction. See Central Nat. Bank v. Guthrie Mountain Portland Cement Co. 83 Kan. 630, 112 Pac. 332. In Prine v. Prine, 36 Fla. 676, at page 686, 34 L.R.A. 87, 18 So. 781, where it was contended that the granting of such relief was original jurisdiction and therefore be yond the power of an appellate court, the supreme court of that state said: "We do not believe it would be, under such circumstances, an exercise of original jurisdiction for us, upon a proper showing, to grant the wife the means of subsistence while her case is pending in this court, but that such an allowance is essential to the proper and impartial administration of justice in the exercise of our appellate jurisdiction. If she had not the means to live and to employ counsel to present her case to the court, so that it may be fully advised as to the merits of her side of the controversy, how can it be said that there is a fair, evenhanded, impartial administration of justice between her and the appellant, who has abundance of means of support, and to employ able and ingenious counsel to present his case in its most favorable aspects." Some courts have taken a contrary view, holding that to make such allowances is an exercise of original jurisdiction, and that, if The supreme court of Minnesota decided that "in an action for divorce, this court has the power, upon a proper showing, to require the husband to pay to the wife such sum as may be necessary to enable her to prosecute or defend an appeal in this court." Wagner v. Wagner, 36 Minn. 239, syl. 30 N. W. 766. In Hall v. Hall, 77 Miss. 741, at page 744, 27 So. 636, there was a contention by the appellee that to allow suit money on an appeal was to exercise original jurisdiction, and that the supreme court of that state had only been given appellate jurisdiction. The court held, however, that "the power is incidental to, and inherent in, a court with jurisdiction to review cases for divorce. The wife should have counsel, and it is of the first importance that she should have them to aid the court in reaching a correct conclusion. The husband has an immense advantage if the wife be without counsel. The power must lodge in this court as a necessity to the intelligent exercise of its revisory jurisdiction." Other authorities supporting such allowances by appellate courts are: Lake v. Lake, 16 Nev. 363; Lake v. Lake, 17 Nev. 230, 30 Pac. 878; Goldsmith v. Goldsmith, 6 Mich. 285; Zeigenfuss v. Zeigen fuss, 21 Mich. 414; Van Voorhis v. Van Voorhis, 90 Mich. 276, 51 N. W. 281; Vanduzer v. Vanduzer, 70 Iowa, 614, 31 N. W. 956; Day v. Day, 84 Iowa, 221, 50 N. W. 979; Disborough v. Dis. borough, 51 N. J. Eq. 306, 28 Atl. 3; Weishaupt v. Weishaupt, 27 Wis. 621; Cast v. Cast, 1 Utah, 128; 2 Bishop, Marr. Div. & Sep. §§ 955-960. In some of the cases the allowances are made as a matter of course and with little discussion, and in others the decisions are placed, to some extent, on statutory provi- | sions. In Roby v. Roby, 9 Idaho, 371, 74 Pac. 957, it was held that the district court retained jurisdiction after an appeal had been taken, in which to make an allowance to prosecute the appeal; but at the same time it was held that when the appeal had been perfected, the supreme court also had power to order the payment of attorneys' fees or suit money when it was necessary to the complete exercise of its appellate jurisdiction. This case is reported in 3 Ann. Cas. 50, and authorities for and against such allowances by an appellate court are collected. We conclude that this court may, in the exercise of its appellate jurisdiction and upon a sufficient showing, allow temporary alimony pending the appeal, and also make an allowance for attorneys' fees to prosecute the appeal, and further may provide for the custody of the child until the determination of the appeal. It follows that the motions to strike the applications for these orders from the files must be denied. The facts are stated in the opinion. Messrs. Worthington, Cochran, Browning and F. T. D. Wallace, with Messrs. Harkins & Harkins, for appellant: the city of Prestonsburg is unauthorized As a matter of law, the city council of and without power to enact such an ordi nance. Red Wing v. Chicago M. & St. P. R. Co. 72 Minn. 240, 71 Am. St. Rep. 482, 75 45 Ohio St. 118, 12 N. E. 445; Pittsburgh, N. W. 223; Ravenna v. Pennsylvania Co. C. C. & St. L. R. Co. v. Crown Point, 146 Ind. 421, 35 L.R.A. 684, 45 N. E. 587; The trial court awarded the custody of the child to the appellee. After the rendition of judgment, and on December 18, 1912, appellee placed the child in the home of his sister, who lives on a farm in a neighboring county, where he has lived and received good care and training. In view of all the circumstances, a change of custody pending the appeal will not be ordered. Considering the physical condition of appellee, his meager earnings, and limited resources, and the further fact that appellant is in possession of the only real property owned by them, no allowance will be made for temporary alimony, but an allowance of Atl. 612; West Jersey & S. R. Co. v. Bridge$50 will be made to appellant towards pro-ton, 64 N. J. L. 189, 44 Atl. 848; Dill. Mun. viding attorneys to prosecute her appeal. Corp. 3d ed. § 319. KENTUCKY COURT OF APPEALS. Pennsylvania R. Co.'s Case, 213 Pa. 373, 3 L.R.A. (N.S.) 140, 62 Atl. 986, 5 Ann. Cas. 299; Millerstown v. Bell, 123 Pa. 151, 16 Messrs. B. F. Combs, W. H. Layne, and May & May, for appellee: Cities and towns, by virtue of their general police power, have the implied right CHESAPEAKE & OHIO RAILWAY COM- to require the erection and maintenance of PANY, Appt., such gates. Seibert v. Missouri P. R. Co. 188 Mo. 657, 70 L.R.A. 72, 87 S. W. 995; Western & A. R. Co. v. Young, 81 Ga. 397, 12 Am. St. Rep. 320, 7 S. E. 912; Pennsylvania R. Co.'s Case, 27 Pa. Super. Ct. 113; Newport News & M. Valley Co. v. Stuart, 99 Ky. 496, 36 S. W. 528; Versailles v. Kentucky Highland In Council Bluffs v. Illinois C. R. Co. Iowa, - 138 N. W. 891, where § 769 of the Code authorized cities of the class of Council Bluffs to compel railroad companies to erect and maintain gates upon public streets at railroad crossings, and § 2033c of the Code provided that any interurban railway should be deemed a street railway while within the corporate limits of a city, an ordinance of Council Bluffs requiring a |