[Louisville & Nashville Railroad Co. v. Hurt.] jury might have found that plaintiff was not guilty of contributory negligence. If after crossing the Ala. Gr. So. R. R. track, piantiff looked and saw that the switch was properly set, and he received orders from the yardmaster to move down the track, and if it was equally incumbent on him to attend to his engine, and watch for signals, and he kept the best lookout he could for the switches, consistent with his other duties of equal importance," and was also informed by his fireman that the switch was all right, questions of fact to be determined by the jury, a failure on his part to discover and know exactly when the switch was turned, would not, as a matter of law, necessarily amount to contributory negligence. Under the evidence, it was a question for the jury. If, therefore, the court erred in favor of the defendant, in giving the affirmative charge at its request, that plaintiff was guilty of contributory negligence, the error can not be visited upon the plaintiff, if in fact under the evidence, the court ought not to have thus charged the jury. The principle of law decided in the case of Kansas City, Memphis & Birmingham R. R. Co. v. Sanders, 98 Ala. 293, is directly in point. Admissions which are relevant and material to the issue made by a party to a suit, whether made as a witness on the stand or elsewhere, are always admissible against him. He is not concluded by them, unless they induce action, so as to stop him afterwards, but he may explain, or show that in making the statement, he was mistaken. Where a party testifies on a subsequent trial different from that given on a former trial, it is competent for the adverse party to give in evidence his statement on the first trial, and it is the duty of the jury to consider both statements in connection with the explanation, if any is made, in the light of all the evidence, and determine which is true. A charge which singles out any particular part of the evidence and bases a conclusion of law upon it, gives the fact thus emphasized undue prominence, and is calculated to mislead the jury. Such charges generally are argumentative and should be refused. The charges asked by defendant in regard to the former admissions of the plaintiff are faulty in this respect, and the court did not err in refusing them. Many of the refused charges ignore that phase of the evidence (and there was such evidence by the plaintiff), [Louisville & Nashville Railroad Co. v. Hurt.] which tended to show that defendant failed to exercise proper preventive effort, after plaintiff's peril was discovered. For this reason they were properly refused. We need not specify them. Section 2756 of the Code, which provides that "charges moved for by either party in writing, must be given or refused in the terms in which they are written," was not intended to license either party to move for charges ad infinitum. A court will not be in error for refusing charges which are mere repetitions of charges which have been given, and a mere variation in the use of words, which "hideth counsel," and which in no way change the meaning or assert different principles from those given, will not affect the rule. Some of the charges asked are subject to this criticism. Charge No. 5 refused by the court is of that character. The defendant had received the benefit of the principle of law asserted in this charge in four separate charges, given by the court at the instance of the defendant, and in the oral instructions given by the court. The charge (No. 5) may be subject to the further criticism, that it refers to the jury to determine what is the "legal" equivalent of willful or intentional wrong; but aside from this, it is a mere repetition of instructions which were given to the jury. No possible injury can result to plaintiff by the rule of construction we place upon the statute, for it is now provided that charges "given" are to be taken out by the jury, while those refused are to be retained by the clerk.-Acts of 1889-90, page 90, amending section 2756 of the Code. It is manifest, then, that the defendant received the benefit of charge No. 5 in the charges given at its request, and was not injured by the refusal of the court to give charge No. 5. Charges 17 and 21 are misleading, and also state the proposition in language too strong. When it is shown that statements made by a witness on his examination are different from those made on a previous examination, this is evidence tending to impeachment.-Harris v. State, 96 Ala. 24; 11 So. Rep. 255. but when the witness makes an explanation of the different statements, the jury would not be authorized capriciously to reject the explanation. The charges should not have ignored the explanatory evidence. Contradictory statements tend to impeachment, but do not as matter of law [Louisville & Nashville Railroad Co. v. Hurt.] amount to an impeachment. If a statement is intentionally made, the witness knowing at the time it is untrue, a jury would be authorized to reject the testimony of the witness entirely. We are of opinion that charge 22 is involved and is subject to the same criticism. Leaving off the last phrase of the charge, "if they believe he knowingly did so," there is but little difference, if any, in the principle asserted in this charge and in 17 and 21 supra. If the jury believed that on either examination the witness stated that as true which he knew to be untrue, in regard to a material matter, the jury would be authorized to discredit the witness altogether, and it would not be an invasion of their province to so instruct them, but that is not the proposition asserted by the charge. The witness in the case at bar knew at the time of his last examination he had made a different statement on his first examination, and he undertook to account for the difference, and to explain why he made a mistake on his first examination. If the jury were satisfied with the explanation, although they may have believed that the witness knowingly and intentionally testified as he did on his first examination, yet if they believed he made an honest mistake, which he satisfactorily explained, the mere difference of the two statements would not in law justify the court to instruct the jury as requested. The charge as framed ignores the explanatory evidence, and at least was calculated to mislead the jury, and possibly invaded their province. There was no error in refusing it. "Charges should be clear and of easy interpretation. Hughes v. Anderson, 68 Ala. 280; Harmon v. McRea, 9-1 Ala. 401, 8 So. Rep. 548. Some part of the statements of counsel to the jury in his closing argument, to which exception was taken, was . authorized by the evidence, and the exception going to the entire part, that which was authorized as well as that not justified by the evidence, the court was not bound to separate the legal from the illegal, but was justified in refusing the motion as made. A fair and satisfactory discussion of the question as to how far counsel can go in the argument of evidence before a jury, without transgressing legitimate limits, may be found in the case of Mitchum v. The State, 11 Ga. 615, and Tucker v. Henniker, 41 N. H. 317. The doctrine [Fox v. McDonald.] is thoroughly established in this State, and its limita tions have been judicially fixed. See the following authorities Nelson v. Shelby Manf. & Imp. Co., 96 Ala. 515, 11 So. Rep. 695; Lunsford v. Dietrich, 93 Ala. 565, 9 So. Rep. 308; Billingsley v. State, 96 Ala. 126, 11 So. Rep. 409; Crosse. State, 68 Ala. 476; Jackson r. Robinson, 93 Ala. 157, 9 So. Rep. 391; Railroad Co. v. Orr, 91 Ala. 548, 8 So. Rep. 360. There is no error in the record, and the case must be affirmed. Fox v. McDonald. Application for Mandamus. 1. Construction of constitutional provisions.-Constitutional provisions are to be expounded in the light of conditions existing at the time of their adoption, in connection with former provisions and historical facts relating to the origin of our political institutions and the practice under them. 2. Distribution of powers.—All powers which are, by the constitution itself, expressly or by necessary implication, referred to the exclusive exercise of one of the several departments of the government, must be exercised by that department, and can not be, by legislation, conferred elsewhere. 3. Nature of powers conferred not determinative of the department by which they are to be exercised.-The fact that certain powers and duties conferred by legislation partake of a legislative, executive or judicial nature, is not determinative of the department of the government by which such powers and duties are to be exercised. 4. Same. The constitutional provision in regard to the distribution of the powers of government into three departments, and forbidding the exercise by an officer of one department of any act properly belonging to another, "was not intended to declare that every act pertaining to government, and the regulation of the social and property rights of the citizen, should be exercised exclusively by the legislative, executive, or judicial department, or some member of it, according as the act possessed a legislative, executive, or judicial character." 5. Power of appointment to office not inherently an executive function.— The power to appoint to office is not inherently an executive function ; but by the policy of our government has been distributed among the several departments of state. [Fox v. McDonald.] 6. Power of Governor to appoint to office.-The Governor, as the chief executive, has no inherent right to appoint to office, and this function belongs to him only when conferred by statute. 7. Constitutionality of the act to establish a board of police commissioners for the city of Birmingham.-The act approved December 12, 1892, "To establish a board of commissioners of police for the city of Birmingham, Alabama," which confers upon the probate judge of Jefferson county, the county in which the city of Birmingham is situated, the power to appoint the commissioners, is not unconstitutional and void by reason of conferring upon a member of the judicial department the power of appointment. 8. Legislative enactments presumed to be constitutional.—Legislative enactments are always presumed to be in accord with the constitution, and will not be declared unconstitutional and void, unless it clearly appears that they offend some provision of the constitution. 9. The act to establish a board of police commissioners of the city of Birmingham not unconstitutional, as denying to the city the right of local self-government.-The act "To establish a board of commissioners of police for the city of Birmingham," which confers on the probate judge of Jefferson county the power to appoint the commissioners, but does not in express terms provide that the commissioners so appointed shall be residents of the city of Birmingham, is not unconstitutional because of such omission; the controlling purpose of the act being to provide an efficient enforcement of the police powers of Birmingham, and the intention that the commissioners to be appointed shall be residents of the said city being manifest on the face of the statute itself. (COLEMAN, J. concurring in the conclusion, but not in the reason therefor.) 10. Legislative enactments; when they go into operation.-Legislative enactments and their provisions go into immediate operation, unless by force of some general law, or some provision contained in the act itself, the operation is postponed, and the special provision fixing such postponement must be in terms so clear and certain as to admit of no other rational interpretation. 11. Termination of the tenure of former officers upon appointment under a new statute.—Under the act establishing the board of police commissioners for the city of Birmingham, which provided for the appointment of commissioners by the probate judge of Jefferson county on a certain day, the tenure of the several police officers serving at the time of the passage of said act terminated so soon as the police commissioners were appointed by the probate judge; their appointment necessarily annulling the power under which the former police officers held. 12. Act not unconstitutional because the title fails to express the object to determine the terms of the police officers.-The title of a legislative enactment as "An act to establish a board of commissioners of police for the city of Birmingham, Alabama," implies the insertion in the act of all powers reasonably necessary to the efficient |