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and operated electrically while the old one was operated by hand, it was held that the work was that of construction, and not repair, and that at the time in question the new turntable had not yet become an instrumentality in interstate commerce, and, hence, that the employee was not engaged in interstate commerce. Seaver v. Payne, 198 App. Div. 423, 190 N. Y. Supp, 724.
The making of repairs on a coal chute, where coal is stored for the purpose of being supplied to both interstate and intrastate engines as called for, was held not such an act in aid of interstate commerce as to bring an injured employee's case within the Federal Employers' Liability Act. Capps v. Atlantic Coast Line R. Co., 178 N. C. 558, 101 S. E. 216, certiorari denied, 252 U. S. 580, 40 Sup. Ct. 345, 64 L. Ed. 726.
In Thompson v. Cincinnati, N. 0. & T. P. R. Co., 165 Ky. 256, 176 S. W. 1006, 20 N. C. C. A. 10-11n, the court held that, as plaintiff was injured while working upon the extension to repair shops, and the extension and old part had been thrown into one, and tracks had been laid in the extension, pits dug, cranes and other machinery used in repairing and handling engines installed, several engines run on the tracks already laid, and a few engines set in for temporary work, he was engaged in interstate commerce.
One employed by a railroad company to inspect and repair the plumbing of depots used in interstate commerce, was, while so engaged, working in interstate commerce. “The stations actually in use in the carrying on of interstate commerce are clearly instrumentalities of such commerce, and it is necessary to their proper maintenance that the plumbing should be kept in repair." Vollmers V. New York Cent. R. Co., 180 App. Div. 60, 167 N. Y. Supp 426, 19 N. C. C. A. 35n.
judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
In the second clause of Section 2 of that article, it is ordained as follows: "In all the other cases above mentioned (those affecting ambassadors, etc.; those in which the State shall be a party), 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.”
Section 1 of Article 3 does not say whether the Supreme Court shall consist of one man or more than one man, therefore, the first Congress enacted a law making the Supreme Court at first to consist of five judges by subsequent enactments, Congress has increased the number of judges to nine.
Clearly those five original judges and the nine judges who succeed them are the creations of the acts of Congress. As such, they have the Common Law power of making reasonable rules controlling the action of the Association enacted by a majority, which would be binding upon all the members of that association, including the minority.
While it would be the duty of every judge to express his opinion about any cause before them, whether on appeal or original jurisdiction, according to his convictions, there can be no question that that association of judges may make a by-law to the effect that when the Constitutionality of an Act of Congress is involved, or an Act of the Legislature of a Sovereign State is involved, no decision which the Court may make shall operate to annul that law of Congress or that law of the State Leg. islature, which has not the favorable vote of a greater or less number of judges to be de. fined by the by-law.
Such a by-law, under the Common Law, governing the Supreme Court of the United States, as well as every court in this country, would be binding upon all members of the court until repealed by a majority of the members of the court which created the by-law.
FREDERICK G. BROMBERG.
FOUR TO FIVE DECISIONS
July 17, 1923. To the Editor of the Central Law Journal:
It appears to me that what has become as well known as "Four to Five Decisions” can be easily avoided if regard be given to the origin and true nature of the Supreme Court of the United States.
The Supreme Court of the United States is nothing more than an association of men created by law, and like any other association of men, created by law, under the Common Law, have the right for a government of themselves by by-laws, and those by-laws can be so framed as to put an end to the evils of "Four to Five Decisions."
That the Supreme Court is an association of men created by law, the words of Article 3 of the Constitution of the United States plainly show. Section 1 of that article says "that the
A clerk in a Centerville, Ia., shoe store, whose head was almost bald, was trying on a pair of shoes for one of the female species. She was paying more attention to those around her than she was to her foot. When she happened to look down she espied the clerk's bald head and thinking it was her bare knee quickly grabbed her skirt and covered it. Timely assistance on the part of fellow clerks saved the bald one from suffocation.-Greencastle, Mo., Journal.
But then in the scramble for high sounding
terms And talk of "service" by business and trade, The word “client” was seized on by brokerage
firms And hauled into ads about investments that
ANSWER No. 222 In the opinion of the Committee such advertising does not properly comport with the responsibility or dignity of the office which the lawyer holds. (See Canon 27 American Bar Association; Committee's Answer 45). The failure to disclose the name of the advertiser, and the attempt to secure remunerative employmnt under the guise of offering free consultation and advice too readily lend themselves to imposition and fraud upon those clients who would be likely to be secured through this form of anonymous solicitation. The adoption of such form readily also affords an opportunity for those who are not authorized to practice law to pretend such authority in order to deceive those who would respond to such an adveriisement.
Then beauty shops, feeling the call to new
things, Started talk of refined and elite “clientele," While the corsetiere, learning what good lan
guage brings, Put Gossards on her "clients" as well.
Lawyer Jones' clientele included the name
Of the fish merchant Ephraim Todd, To whose market the lawyer on Friday's came
For his weekly supply of flounder or cod.
.6, 30, 40, 53
.55 .2, 32
.14 .7, 8, 9, 17, 42, 43
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5. Bankruptcy-Bank's Claim Against Trustee.Where a trustee in bankruptcy, under Bankruptcy Act, $ 61 (Comp. St. § 9645), deposited money in a bank which became insolvent, he was entitled to set off the deposit against the bank's claim against the bankrupt estate, where the bank received the deposit with notice that it was part of a fund appropriated to pay the bankrupt's debts, including its own.-Gardner v. Chicago Title & Trust Co., U. S. S. C., 43 Sup. Ct. 424.
6. -Bulk Sales Law.-Where insolvent, without complying with Personal Property Law, § 44, relating to bulk sales, sold a stock of goods for full value, and used the proceeds to pay some of his creditors, and later obtained a discharge in bankruptcy in a proceeding in which no trustee was appointed, as no assets were discovered, held that a creditor, who had proved his claim in the bankruptcy proceedings, could have the sale declared void.-Kirkholder & Rausch Co. v. Bridgland, N. Y., 199 N. Y. S. 113.
7. -Common Law Trust Entitled to Benefits of Act.-Under Bankruptcy Act, $ 4b (Comp. St. $ 9588), voluntary unincorporated association, under articles providing that members be given shares for their respective contributions to the capital fund, and that they elect trustees annually, who in turn select officers, with powers such as are incident to corporation officers, is entitled to the benefits of the Bankruptcy Act, as against the objection that it was in effect a Massachusetts trust.-In re Sargent Lumber Co., U. S. D. C., 287. Fed. 154.
8.-Priority of Lien.-More than four months before petition in bankruptcy was filed, a creditor sued the bankrupt, and attached in such action real property which the bankrupt had theretofore conveyed to his wife. In such action judgment was recovered within four months of filing petition in bankruptcy. After obtaining judgment, the creditor began an ancillary creditor's action to enforce the lien acquired by the attachment. Held that the bankruptcy court would not grant motion of other creditors, or of the bankruptcy trusteo, for an order staying the prosecution of the creditor's action, as the lien acquired in the first action survived, for the purpose of allowing the creditor to rely on its existence as taking the case out of the bankruptcy court.-In re Houtman, U. S. D. C., 287 Fed. 251.
9.-Wife of Bankrupt Testifies.-Under Bankruptcy Act, § 2, cl. 6 (Comp. St. $ 9586), giving the bankruptcy court power to bring in additional persons, where necessary for the complete determination of the matter in controversy, the court can bring in the wife of the bankrupt in order to determine the right of the bankrupt to a homestead in lands adversely claimed by creditors under a deed from the bankrupt and his wife.--In re Marschall, U. S. D. C., 287 Fed. 187.
10. Banks and Banking--Authority or Power of State Superintendent.—Under the provisions of the banking act of 1919 (Ga. L. 1919, p. 135 et seq.), the superintendent of banks is without authority or power to make it a condition precedent to the reopening of a state bank that any of its employees shall not be reinstated, unless he first finds such employees to be dishonest, incompetent, or reckless in the management of the affairs of the bank, or that they have persisently violated the laws of the state or the lawful orders of the superintendent. -Milton v. Bank of Newborn, Ga., 116 S. E. 861.
11.—Special Deposits.-The purchase by one at a bank of drafts does not constitute the money paid for them a special deposit in favor of the purchaser.--Gellert v. Bank of California, National Ass'n, Ore., 214 Pac. 377.
12. Bills and Notes--Bank As Collecting Agent. -Where a check payable to one or order is indorsed in blank and deposited in a bank for collection, the bank thereby does not become a “holder for value" of the check.--Bank of Gulfport v. Smith, Miss., 95 So. 785.
-Collateral Security for Existing Indebtedness.-A bank to which a mercantile company was indebted, and which took from the company a negotiable note secured by mortgage as collateral
1. Automobiles-Approaching a Stationary Vehicle.—In approaching a stationary vehicle, an automobile operator should be charged with the duty of observing whether any persons
about the standing vehicle, and should have his car under such control as to avoid accident should any such person attempt to cross the road in front of the on-coming car, provided such persons are themselves in the exercise of due care.—Daughraty v. Tebbets, Me., 120 Atl. 354.
2.-Defective Brakes t'nknown to Occupant.Gross or willful negligence, or an unlawful act of driver of an automobile, may be imputed to an occupant injured at a crossing, under Civ. Code 1912, § 3230, exempting a railroad from liability in such a case, if the person injured, or the person having charge of his person or property, was guilty of gross or willful negligence, or was acting in violation of law, and such negligence or unlawful act contributed to the injury, and this rule will be applied where driver's unlawful act was going on the highway with an automobile having defective brakes, though occupant did not know of the defective brakes.-Neely v. Carolina & N. W. Ry. Co., S. C., 117 S. E. 55.
3.—Pipe Extending From Rear of Truck.-A child aged 512 years cannot be said to be guilty of contributory negligence, if while playing upon the sidewalk in front of her home on a narrow city street she hugs an electric lamp post with her arm, and it is crushed by a long iron pipe extending from the rear of a truck which the driver is attempting to turn from the street into an alley on the opposite side.-McCallam v. Hope Natural Gas Co., W. Va., 117 S. E. 148.
4.—Ten Miles an Hour Through Business Portion of City.-Motor Vehicle Law, $ 22, making speed exceeding 10 miles an hour through closely built-up business portions of city, prima facie evidence of negligence, is not unconstitutional as an attempt by the Legislature to exercise judicial power, as depriving one, defending an automobile injury action, of his property without due process or as special legislation.-Morrison v. Flowers, ni., 139 N. E. 10.
security for the existing indebtedness for a loan made at the time to the company, and for further advances by the bank to the company, was a bona fide holder for value, in the absence of any evidence that it had any notice of any rights or equities of the original payee of the note at the time of the transfer.-Bentley Mercantile Co. v. Blackwood, Ala., 95 So. 808.
14. Carriers of Goods-Household Goods.-Since a watch and cuff buttons, valued at $20, are not household goods, their presence in a shipment to a carrier without revealing their special value is a fraud upon the carrier which discharges its llability for loss of those articles irrespective of Rev. St. arts. 707, 708.—Lancaster V. Houghton, Tex., 249 S. W. 1103.
15. -Penalty for Failure to Pay Claims.-Crawford & Moses' Dig. $ 937, imposing upon an express company a penalty of $2 per day for failure to pay a
claim for delay in delivering express shipments, is unconstitutional because the penalty fixed is exorbitant and unreasonable.--Southern Express Co. v. Couch, Ark., 249 S. W. 559.
16. Carriers of Passengers--Unrevocable Permit to Operate Bus.-Where the State Road Commission has granted a permit to operate a motor bus line, under class I, § 82, c. 112, Acts 1921, it cannot be withdrawn, nor can it be revoked except for cause set forth in the act.-State v. Fortney, W. Va., 116 S. E. 753.
17. Commerce-Present Intention Sell and Ship. -The manufacture and production of articles is not interstate trade or commerce, even though there may be a present intention to sell and ship them in such trade or commerce.-United States v. National Ass'n of Window Glass Mfrs., U. S. D. C., 287 Fed. 228,
18. -Sales Office Located in State.-A foreign corporation, having a sales office and salesmen in Massachusetts, but shipping goods from points outside the state on orders transmitted to principal office in Pennsylvania and there passed on, and keeping no samples or other merchandise in Massachusetts, held engaged exclusively in “interstate commerce."-Alpha Portland Cement Co. v. Commonwealth, Mass., 139 N. E. 159.
19. Constitutional Law--Legislative Power.Const. art. 6, § 1, providing that the judicial power of the state shall be vested in one Supreme Court and in such circuit, chancery, and other inferior courts as the Legislature shall from time to time ordain and establish, vests all power, and the Legislature can neither add to nor take away from such grant of power.-In re Cumberland Power Co., Tenn., 249 S. W. 818.
20.--Public Policy.-A statute cannot be invalidated by a court, on the ground it is against public policy, since the Legislature is the arbiter of public policy, and its enactments can only bel set aside when contravening some constitutional provision, or when it is so insensible as to be incapable of a reasonable interpretation or impossible of execution.-State v. Gilletto, Conn., 120 Atl. 567.
21.- Reasonable Classification.-Such classification being reasonable, there is no denial of the equal protection of the law, and no deprivation of property without due process of law, and no violation of the provision of the state Constitution, which declares that protection of person and property is the paramount duty of government, and shall be impartial and complete.-Wright v. Hirsch, Ga., 116 S. E. 795.
22. -Soldier's Preference.-Chapter 192, Laws 1919, the Soldier's Preference Act, does not violate the equality provisions of the Constitution, nor the provision that the subject of the act shall be expressed in its title.-State V. Matson, Minn., 193 N. W. 30.
23.- - Vagrant.-Rev. St. 1919, 93581, providing that every person found tramping or wandering around from place to place without any visible means of support shall be deemed a "vagrant," is not in violation of Const. art. 2, § 4, providing that all persons have a natural right to life, liberty, and the enjoyment of gains of their own industry,
as penalizing poverty, as the acts denounced are “tramping" or "wandering," and the going from place to place seeking employment is not within its inhibition! "tramping" meaning moving about from place to place as a tramp or beggar without actual destination or honest purpose, and "wandering'' meaning rambling here and there without any certain course and no definite object in view. -Ex parte Karnstrom, Mo., 249 S. W. 595.
24. Contracts—To Sell Only to Defendant.Where plaintiff agreed to sell and defendant to buy all the lumber that plaintiff manufactured in a certain year not exceeding a specified quantity, the obligation of plaintiff to sell only to defendant was a sufficient consideration to sustain plaintiff's option.-Green v. Lovejoy, Minn., 193 N. W. 173.
25. Corporations-Common Seal.—That the common seal of a corporation is affixed to an instrument executed by it is prima facie evidence that it
so affixed by proper authority.-Henrico Lumber Co. v. Dare Lumber Co., N. C., 117 S. E. 10.
26.- -Liable for Slander by Agent.-A corporation is liable for slander uttered by its agent, acting within the scope of his employment and in the peformance of his duties touching the matter in question, and in such case it is unecessary for a plaintiff to show that the slanderous words were spoken with defendant's knowledge or with its approval, or that it ratified the act of the agentDoherty V. L. B. Price Mercantile Co., Miss., 95 So. 790.
27. Damages-Election to Sue on Contract.-If a contractor upon default by owner, preventing completion of contract, elects to sue upon the contract, the measure of his.recoverable damages will include what he has actually expended toward per. formance and the profits he would have realized by performing the whole contract,-Kansas City Structural Steel Co. v. Athletic Bldg. Ass'n, Mo., 249 S. W. 922.
28. Frauds, Statute of-Parol Agreement for Long Term of Years.--When the parol agreement to make a gift of land has been acted on by the promisee, who goes into or remains in possession on the faith of the promise to convey, and expends time and money in aying taxes, insurance, repairing, maintaining and improving the property, especially for a long term of years, the statute does not apply.Thierry v. Thierry, Mo., 249 S. W. 946.
29. Highways—Negligent Driving of Minor Imputed to the Person Signing Application. -Under Motor Vehicle Act, $ 24, as amended by St. 1919, p. 223, § 14, declaring it unlawful for one to permit his child, ward, or employee to drive his auto on the highway without first obtaining a license for him, that application of a minor shall not be granted unless his parent or guardian sign it, and that negligent driving of a minor so licensed shall be imputed to the person signing his application the minor's negligence is so imputed, though the one signing as “parent" merely stood in the relation of in loco parentis to the minor, and employed him to drive his machine.-Buelke v. Levenstadt, Calif., 214 Pac, 42.
30. Insurance-Agent of Foreign Corporation.Affidavits that a Swedish insurance corporation in the policy named a Delaware corporation with an office in New York as its agent, that the Delaware corporation adjusted claims of loss and had paid at least one claim for the Swedish corporation, that the Delaware corporation informed insured that the loss was not covered by the policy, and that the Swedish corporation instructed Delaware corporation to continue that position, held to show that the Swedish corporation was doing business within the state of New York, within General Corporation Law, $ 47, and that the Delaware Corporation was its managing agent within Civil Practice Act, $ 229, on which service could be made.--Henriques v. Gauthiod Marine Ins. Co., N. Y., 199 N. Y. S. 131,
31.- -Assured Entitled to Sue Insurer.-Policy whereby insurer agreed "to indemnify the assured from liability imposed on him by law for loss and for expenses arising or resulting from claims upon the assured for damages on account of bodily in. juries or death resulting at any time therefrom,
suffered by any person or persons as the result of an accident occurring while this policy is in force by reason of the ownership, maintenance or use" of the described automobile, and further providing that no action by the assured should lie against the insurer until the amount of damages should be determined by final judgment against the assured or by any agreement between the assured and the plaintiff without written consent of the company, held to constitute an agreement to indemnify assured from liabliity, entitling the assured to sue the insurer as soon as a judgment had geen recovered against him on a claim covered by the policy, and not a contract to indemnify the assured from loss.-Capelle v. United States Fidelity & Guaranty Co., N. H., 120 Atl. 556.
32.—Building Falling.--In an action on a policy covering a stock of goods, where insurer set up a defense under a provision of the policy providing that, if a material part of the building containing the goods shall fall except as the result of the fire, the policy shall immediately cease, insurer had the burden of proving this defense.-Keistler Co. V. Aetna Ins. Co., S. C., 117 S. E. 70.
33.- Premium Retained.-If an autom ble was stolen on August 17th, and loss reported the next day, and, after the adjuster's investigation and report to the company, liability was denied, but the premium was retained until January 25th following, long after suit was brought on the policy, such retention would be a waiver of all defenses.
-Carroll v. Union Marine Ins. Co., Mo., 249 S. W. 691.
34. —Proving Claim.--Where an insurance company, after learning of the death of one insured against accidental death, presumably due to the bite of an insect, has forwarded blanks on which to make proof of death, and thereafter recalls them and gives notice that it denies liability for the death benefit, but would recognize a claim for weekly compensation if proof was properly made, held that such denial of liability to pay the death benefit excused the deceased's widow from making proof of death.--Betteys V. Aetna Life Ins. Co., Mich., 193 N. W. 197.
35. Licenses-Accountants' Fee.--Act No. 125 of 1908, § 4, authorizing state board of accountants to charge fee not exceeding $25, but limiting the fee to $10 for 90 days, does not discriminate between residents and non-residents, though section 5 provides fee of $25 for non-residents granted certificate without examination.-State v. De Verges, La., 95 So. 805.
36. -Blue Sky Law.-A syndicate having articles of association resembling the articles of agreement of a corporation and giving the organization full power to engage in the general oil business, providing for a capital divided into shares having a par value and placing the management in certain persons, and purported stock certificates issued stating that the holder's interest was not in the property as such, but in stock or shares held within the Blue Sky Law (Rev. St. 1919, $$ 11919-11932), making it illegal to transact business or sell shares before obtaining a permit from the bank missioner.-Landwehr v. Lingenfelder, Mo., 249 S. W. 723.
37. - Jurisdiction of County Court.-Sp. Acts 1921, No. 359, requiring all persons to pay a tax for the privilege of keeping within Johnson County and using on any of its roads motor vehicles, after laying the tax, provided that it should be apportioned and used exclusively for roads in improvement districts, and that money collected should be apportioned by the chairman of the board of commissioners of the various road improvement districts quarterly, and that all taxes collected should be paid over to the county treasurer as the commissioners designatē, is invalid within Const. art. 7, § 28, as robbing the county court of its jurisdiction over funds collected.--State v. Berry, Ark., 249 S. W. 572.
38. — Undertakers.-Paragraph 105 under section 2 of the General Tax Act of 1921 (Acts 1921, pp. 38, 69) provides for the levy of occupation taxes as follows: "Upon each person, firm or corporation whose business is that of burying the dead and charging for same, commonly known under
takers, in cities of more than 50,000 inhabitants, per annum, $200.00; in cities of from 10,000 to 50,000 inhabitants, per annum, $100.00; in cities of from 5000 to 10,000 inhabitants, per annum, $50.00; in cities or towns of from 2500 to 5000, $20.00; in cities or towns of less than 2500 inhabitants, $10.00." The above act does not violate article 7, $ 2, par. 1, of the Constitution (Civil Code 1910, $ 6553), which provides: "All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws"-nor does it violate article 1, § 1, par. 2, of the Constitution (Civil Code, $ 6358), which provides: “Protection to person and pr perty is the paramount duty of government, and shall be impartial and complete."-Richardson v. Barclay & Brandon, Ga., 116 S. E. 807.
39. Municipal Corporations-Driving Automobile Behind Street Car.--One driving automobile slowly behind a street car is not required to anticipate that some one would alight from the moving street car at an unusual place, and is not liable for injuries except under the doctrine of last clear chance.--Uetz v. Skinner, Mo., 249 S. W. 651.
40. Sales-Failure to Give Notice Within Rea sonable Time.-Where buyer, on delivery of 400 bags of beans, examined them, put them in the warehouse, made no complaint for two months thereafter, and waited three months longer before tendering them back or having them analyzed, held there was an acceptance of the beans, and a claim for breach of warranty was barred by failure to give notice within a reasonable time.-Niehoff Schultze Grocer Co. v. Gross, N. Y., 199 N. Y. S. 196.
41. -Reasonable Delay in Reiurning.–Where the purchaser of a farm tractor was fraudulently induced by the seller to buy it and to pay for it without an opportunity to inspect it, mere reasonable delay in returning it, if caused by honest efforts to make it work by trying it before and after replacing defective parts, will not necessarily defeat rescission.-Murray v. Bailey, Neb., 193 N. W. 259.
42. Searches and Seizures-Indications That Driver Was Intoxicated Search of Automobile Il legal.—Where a prohibition agent observed what he thought were indications that the driver of an automobile was intoxicated, and without a search warrant stopped and searched the automobile with a drawn pistol in his hand, and found liquor in the automobile, such search was illegal, under Const. Amend. 5, as to compelling one to give evidence against himself; the mere supposition that the driver of the automobile was intoxicated not bringing the facts within the principle of cases dealing with palpable violations of law, such as where an officer sees liquor being loaded on an automobile, or plainly sees liquor leaking from a vehicle in which it is being transported. Incidentally this conclusion may be aided by the provisions of the Fourth Amendment.-United States v. Myers, U. S. D. C., 287 Fed. 260.
43.- -Limited to Houses.-Const. Amend. 4, protecting the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, does not prohibit a search of all premises, but is limited to houses, so that it is not violated by a search of a stable belonging to defendant.—United States v. McBride, U. S. D. C., 287 Fed. 214.
44. Taxation-Affecting Title.--One who, both as lessee, because of provision in his lease, and as owner, through subsequent deed from the lessors, is under legal obligation to pay taxes on land, by omitting to pay them and subsequently acquiring a tax, deed under tax sale therefor, neither adds to nor strengthens his title; the transaction amounting to nothing more than
payment of taxes.-- Word v. Moore, Mont., 214 Pac. 79.
45.----Collateral Inheritance Tax.-"Collateral inheritance taxes" are excise taxes, being imposed upon the transfer of property only, and not on the property itself.--In re Choate's Estate, Iowa, 192 N. W. 857.