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worthy of emulation. To rely upon a

of the obligation to obey some statutory technicality of procedure or practice in rule of pleading provided by a hasty. the Supreme Court is to lean upon a ignorant, complacent or disgruntled Legisbroken reed-broken by the application lature. of common sense by the courts. In the The excuse of the oath of qualification absence of prejudicial error there is no to uphold all statutes—whether of the subsuch thing as a reversal and in the pres- stantive or the adjective law-does not ence of improper judicial conduct in the operate or acquit as to rules of court, for trial court, there is a certainty of reversal. they have not the effect of law. That is It is the State's duty to administer justice the merit of court-made rules, daily exemproperly, whenever possible and a fortiore plified in the English courts. It would be the burden falls upon her highest judicial pitiable, if it were not wicked, that it does officers.

justify the lawyer's lack of co-operation But there is another phase of this mat- as to statutory procedure and pleading. ter. It is the important one of public con- He is compelled to recognize the rigid fidence, respect and reverence. The Courts thongs with which the Congress and Leg. are created for the use and ostensible islatures bind and restrict both him and benefit of the people. The great numeri- the court to a fixed course, though incal public measures only by results pro-justice be done in their presence. But it duced by the courts without having the must be repeated, this it not true as to faintest idea of, or interest in the manner rules of court, and rules of court will soon in which it is achieved. This they sensibly supplant statutory procedure in America. leave to their judges and lawyers, al- We have obviously digressed for the though Congress does not. The Court useful purpose of introducing the partithat overlooks this potent factor in the cipation of the lawyers and thereby comsocial compact is inviting disaster to both pleting the trial atmosphere. The judge courts and government. The honest lay- and the lawyers are inseparable. Moreman will seek to destroy that which fails over, in the retirement of his home, where to produce common sense results; the agi- this may be read, the lawyer is a citizen tator will not fail to support his propa- with a highly trained mind, an alert conganda with the example. And it all is so science, a knowledge of government, a entirely unnecessary.

keen sense of the public concept of the Another thought protrudes itself out courts, and a fine measure of his public of the miasma of doubt and regret. Are duty. It is to that good citizen and not to the lawyers sufficiently conscious of their the enslaved lawyer and judge that an apsacred function as officers of the Court to peal must be made for a surer, quicker, impress its importance upon the Judge? more sensible and more economical adminIs it not a fact that the American lawyer istration of justice. And the appeal is not feels it a duty to trap the judge, instead being made in vain. Its accomplishment of help and aid him? Is not the mental is within the reach of his convincing reaattitude of the judge one of being on the soning and fluent oratory. Its achievedefensive instead of co-operation? Has ment lies in creating public opinion that not this influence much to do with the nar- will come easy, for the sympathy of manrow technical rulings of the Court. Do kind will support him. Congress and Leg. the lawyers approach the seat of justice islatures cannot much longer stand out as aids, or as critics? There will not likely against them. Justice is the greatest inbe a division of opinion on that score terest of man on earth and their hearts, amongst conscientious thoughtful law- if not their mouths, are full of its prompt. yers. It is a fact that judges ofttimes are ings. A man's vanity tells what is honor, regretfully compelled to permit of the de- a man's conscience what is justice. Let eat of justice in their presence, because the Judge and the lawyer try to put them

selves in the place of the litigant and in the language of Mansfield, "let justice be done though the heavens fall". Then and not 'till then will procedure and practice become a mere incident of the trial, instead of a principal feature, capable of defeating its only object.




power has some qualifications, as in the creation of municipalities, and also in the creation of administrative boards to apply to the myriad details of rate schedules the regulatory police power of the state. The latter qualification is made necessary in order that the legislative power may be effectively exercised. In creating such an administrative agency, the Legislature, to prevent its being a pure delegation of legislative power, must enjoin upon ít a certain course of procedure and certain rules of decision in the performance of its function. It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined, and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective."

Referring to a recent editorial in the Central Law Journal, Law Notes, an English Publication, for February, 1923, says:

The Central Law Journal makes the amazing statement in its December issue for 1922 that more than 8,000 persons were killed in the United States in that year by automobiles. In New York City alone 800 were so killed. The chief city magistrate naturally declares that something must be done. Americans are practical folk and some drastic rules and regulations are likely.


DELEGATION OF LEGISLATIVE POWER TO ADMINISTRATIVE BOARD.-In creating an administrative board to apply to the details of rate schedules the regulatory police power of the state, the Legislature, to prevent its being a pure delegation of legislative power, must enjoin on it a certain course of procedure and certain rules of decision, and such agency must pursue the procedure and rules enjoined and substantially comply therewith; and when it is required as a condition precedent to an order to make a finding of facts, the validity of the order must rest on the needed finding Wichita Railroad & Light Co. v. Public Utilities Commission of Kansas, 43 Sup. Ct. 51.

“This conclusion accords with the struction put upon similar statutes in other states. Public Utilities Commission Springfield Gas Company, 291 Ill. 209, 125 N. E. 891; Public Utilities Co. v. B. & O. S. W. R. R. Co., 281 Ill. 405, 118 N. E. 81. Moreover, it accords with general principles of constitutional government. The maxim that a legislature may not delegate legislative

COMMON LAW TRUST IS AN “ASSOCIATION” WITHIN BLUE SKY LAW.-In the case of State v. Cosgrove, 210 Pac. 393, the Supreme Court of Idaho holds that a common law business trust is an "association" within the meaning of the Blue Sky Law of that State. A portion of the opinion is here given:

"An association is a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some enterprise. Abbott, L. Dict.; Bouvier's L. Dict. An association differs from a partnership in that it is not bound by the acts of the individual partners, but only by those of its managers; that shares in it are transferable; and that it is not dissolved by the retirement, death, bankruptcy, etc., of its individual members. Dicey, Parties, 149.

“Trust estates have been known to business and commerce both in this country and England for many years (Smith v. Anderson, supra; Mayo v. Moritz, supra; William v. Milton, supra), and it is clear that they are neither corporations, partnerships, nor associations in the usual and ordinary acceptation of those terms. The rule is well settled in this jurisdiction that:

'In construing statutes, words are to be understood in their general signification.' People v. Owyhee Min. Co., 1 Idaho, 409.

"As was held in Adams V. Lansdon, 18 Idaho, 483, 110 Pac. 280:

“'Words that are in common use among the people should be given the same meaning



in the statute as they have among the great mass of the people who are expected to read, obey and uphold them.'

"This rule is especially applicable in connection with statutes of a penal nature. State v. Morris, 28 Idaho, 599, 155 Pac. 296, L. R. A. 1916D, 573.

"Furthermore, C. S. § 5305, specifically exempts 'trust companies' from the operation of the Blue Sky Law. The Legislature has not attempted to define the term 'trust companies' as used in this section. The term 'trust company' may be loosely applied to a Massachusetts trust. In any event, this form of organization is not included in the definition of an investment company, either in specific or general terms.

"The majority of the Court, however, are not in accord with the views of Justice Lee and the writer of this opinion, to the effect that the organization here involved is not an association within the purview of C. S. § 5305, as amended (Sess. Laws 1921, c. 20, p. 29), but are of the opinion that it is an association within the meaning of said section, and that the sale of its units was in violation of what is commonly known as the Blue Sky Law of this state."

tended for. As used, this language would seem to mean only that plaintiff, when the fire started, quit doing that thing which he had theretofore been doing, in order to seek a place of safety. The relation of master and servant is a contractual one, and cannot be terminated in such a manner and without notice so as to change the relation and the resulting obligations. Section 7789, Rev. Codes 1921. Counsel for plaintiff cite and apparently rely on Section 7791, Revised Codes 1921, but its provisions are not applicable for the reasons hereinafter stated.

“The complaint is to be taken as a whole and in its entirety, and as such it shows that the relation of master and servant did exist at the time of the employment. If the plaintiff could thus change the status of the relations theretofore existing, and create new and different obligations on the part of the former employer, then, by the same token, the defendant could do likewise. Certainly, under no theory of justice or legal reasoning, could an employer be heard to say to an employee, when an accident was threaten. ing the employee's safety, that the employee was discharged so that the employer might escape his obligations. If the employer could not do this, then by the same force of reasoning the employee could not."

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MINER'S DETENTION IN MINE BY FIRE DOES NOT TERMINATE HIS EMPLOYMENT WITHIN COMPENSATION ACT.-That an underground miner quit work and sought to escape when a fire started in the shaft, but he was unable to escape and was compelled to remain in the mine for 40 hours, during which time he sustained injury from gas and smoke, did not constitute false imprisonment, nor a violation of the Eight-Hour Law terminating his employment, and he was held, in Wirta v. North Butte Mining Co., 210 Pac. 332, decided by the Supreme Court of Montana, to be subject to the Workmen's Compensation Act. The Court further held that the miner's injuries so sustained were compensable as arising out of and in the course of his employment.

"Plaintiff cannot be heard to say in this case that he severed the relation of master and servant, as between himself and the defendant company, upon the starting of the fire. To say that plaintiff 'ceased' working for the defendant is not equivalent to saying that he severed the relation of employer and employee. It is only a legal conclusion. Neither are the words 'quit the said employment and place of employment subject to such a construction as is apparently con

RESALE OF BOOKS HELD CONTINUATION OF INTERSTATE TRANSACTIONWhere law books were shipped into a state on contract and order for future delivery, which constituted an interstate transaction, it was held by the Supreme Court of Arkansas, in L. D. Powell Co. Rountree, 247 S. W. 389, that the recovery of the books under the contract amounted to a collection growing out of interstate transaction, and that a resale of them in order to convert them into money was a continuation of the interstate transaction.

Passing on this point, the Court, by Humphreys, J., said:

"The sole question, therefore, presented by this appeal for determination is whether the facts relating to this sale made it an intrastate transaction. In the recent Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151, 229 S. W. 25, this Court, in considering a contract in which L D. Powell Company retained title in books, until the purchase money was paid, which it sold on order and shipped into this state, said:

“ "The taking of an order from the appellants by the appellee's traveling salesman

case of


By Alexander Sidney Lanier*

for certain books which order was transmitted to the appellee and accepted by it and the books shipped to the appellants under a contract by which the title was reserved in the appellee until the purchase money was paid, is not the doing of business in this state in contemplation of act of May 13, 1907, page 744, Crawford & Moses' Digest, s 1826. See, also, section 1832.'

"The larger part of the books in the instant case were not sold on order to Judge Rountree for future delivery, but were in the state when sold and were immediately delivered to him. Appellee contends that the presence of the goods in the state at the time of the sale, and the immediate delivery thereof to the purchaser, made it an intrastate transaction. The case of Hogan v. Intertype Corporation, 136 Ark. 52, 206 S. W. 58, is cited in support of the contention. In the Hogan Case the machinery had been shipped into the state to shipper's own order for the purpose of selling same to Hogan after demonstration, and was retained as the sole and independent property of the Intertype Corporation until after demonstration and sale to him. In the instant case the books were not shipped into the state as the sole and independent property of appellant for the purpose of selling them to appellee or any other person. On the contrary they were shipped into the state by appellant to McNeill on an order for future delivery, obtained by appellant's traveling agent. The McNeill contract clearly covered an interstate transaction. Coblentz & Logsdon v. L. D. Powell Co., supra. The recovery of the books under the McNeill contract amounted to a collection growing out of an interstate transaction. The collection was made in books instead of money, and we think the resale of them, in order to convert them into money, was a continuation of the interstate transaction. It was the only practical method by which a collection could be completed against one who had defaulted on an interstate contract. Otherwise it would have been necessary to incur the expense of shipping the books out of the state in order to convert them into money. The statutes of this state requiring foreign corporations to comply with certain conditions before doing intrastate business were not intended to place such a burden upon the enforcement of good-faith interstate transactions. We think the doctrine announced in the case of Rose City Bottling Works v. Godchaux Sugars, 151 Ark. 269, 236 S. W. 825, is applicable and controlling in this case.”

In the New York Times of February 18th, 1923, Senator Borah had an elaborate article in defense and justification of a bill he has introduced in the Senate to require the concurrence of seven of the nine Justices of the Supreme Court to declare an act of the Congress unconstitutional in the exercise of the Court's appellate jurisdiction.

He seems to think that Congress has this power under the following provision of Section 2, of Article 3, of the Constitution:

"In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

As a necessity for the change he proposes the Senator cites many five to four decisions of the Court holding unconstitutional certain acts of the Congress, and of State legislatures, some of which involved legislation of a sociological character, , some of which was meritorious, and some quite vicious in principle.

And yet, notwithstanding the fact that these cases were decided by a bare majority of the Court, there can be little difference of opinion among real lawyers as to the correctness of the decision in each case,

The criticism of the decisions comes from the reformers who sponsored the particular legislation, and their lawyers, who naturally put the blame on the Court for their defeat.


The whole trouble with the distinguished Senator in this matter is that, he does not grasp the distinction between the Judicial Power of the Court and its Jurisdiction, which will be hereinafter discussed and differentiated.

•Member of the Washington, D. C., Bar, late Assistant to Attorney-General of the Philippines.


As a preliminary, and for a clearer Perhaps the judicial power is left more understanding of the question at issue, nearly intact in the hands of the judiciary it is deemed essential to discuss briefly the than any of the others, but not wholly so. form of the American Government. It has These departments, under our form of been common to designate our form of Government, are co-ordinate in dignity. government as a democracy, but in the Neither of them is intended, by the theory true sense in which that term is properly of our Constitution, to be subject to the used, as defining a government in which other. The President cannot be comall its acts are performed by the people, pelled to make a treaty, or to appoint it is about as far from it as can be. Our's anybody to office that he does not wish is a composit government, a representa- to. The Legislature cannot be compelled tive republican government, one in which to pass any laws, and it alone can exerthe powers that belong to all sovereignties cise that function. The Judiciary alone are divided and placed in different deposi- can construe them, when enacted, and entories.

force them by proper judgments of the The proper division of these powers is

various courts. of the greatest importance, and they were Mr. Justice Wayne has advanced this wisely distributed by the framers of the idea in very appropriate terms: Constitution


the three branches “The departments of the Government which have come to be recognized in all are legislative, executive, and judicial. good governments as essential to a proper They are co-ordinate in degree to the balance of their functions,--the executive, extent of the powers delegated to each the legislative, and the judicial. The leg. of them. Each in the exercise of its islative branch enacts the law, the execu- power is independent of the other, but tive enforces it, and the judicial interprets all rightfully done by either is binding its provisions, both as regards private and upon the others. The Constitution is public rights, as between the citizens

supreme over all of them, because the themselves, and as between them and the people who ratified it have made it so. Government of the United States.

Dodge v. Woolsey, 18 How. 331, 347. This, then, is the Constitution of the THE JUDICIAL POWER OF THE COURTS United States. It establishes these pow- Article 3, of the Constitution vests the ers, defines, and limits them. It distributes

Judicial Power of the United States in them among these three departments, and the Supreme Court, and in such inferior then confines them to their proper scope, courts as Congress is authorized by the and field of action, in order that there Constitution to ordain and establish from may be a useful and safe administration

time to time. It specifies the cases, in for the benefit of all the people, for whom Law and Equity, to which this judicial all governments are instituted.

power shall extend. In some of the cases However the lines that mark the division mentioned it gives the Supreme Court are not perfect, and it is probably unfortu- Original Jurisdiction, and in all the other nate that they are not more so. But it is cases mentioned it provides that: unnecessary to a discussion of this issue to “The Supreme Court shall have appoint out the imperfection of the divi- pellate jurisdiction, both as to law and sions, or to advance reasons why it may

fact, with such exceptions, and under be desirable that they should be more

such regulations as the Congress shall perfect. Suffice it to say that, for gen

make." eral and most useful purposes, the best It will appear from an examination of feature of our Constitution is that it does Article 3, that it provides primarily for make this substantial separation of pow- four things, viz.: It creates the Supreme ers among these three departments.

Court. Specifies the cases in which it

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