While the Constitution itself did not expressly grant the powers of passing upon the constitutionality of federal or state laws, they were established by repeated decisions of the Court, and sanctioned by public opinion of the nation. The first of these great decisions was that of Marbury v. Madison, decided in 1803, soon after Marshall came into office. This held that to declare unconstitutional any act of Congress.

In order to understand the origin of Marbury v. Madison3 it is necessary to understand John Marshall. At the time he accepted the position of Chief Justice of the Supreme Court in 1801 it was not the position of honor that it is today. John Jay, the first Chief Justice, resigned to become a candidate for Governor of New York.

John Rutledge resigned from the Supreme bench to become Chief Justice of the South Carolina Supreme Court, and President Jefferson himself said in his message to Congress in 1805 that undoubtedly the second office in the United States was governorship of the Territory of Orleans. When the architect of our nationad capitol planned the structure he forgot that the Supreme Court even existed and did not provide a room for it in the building. This explains why the Supreme Court of the United States, during all the time that

(1) But see 6 Am. Pol. Sci. Rev. 456 (1912). mentioning a recent case in Roumania declaring unconstitutional an act of the Roumanian Par

liament.

The Federal Circuit Court for Pennsylvania declared an act of Congress unconstitutional in Hayburn's Case (1792), but the case is not reported. See 13 Am. Hist. Rev. 281 (1908), by M. Ferrand.

(2) The subject was not debated extensively in the Constitutional Convention, and what little discussion did take place showed a wide difference of opinion among the delegates.

The Constitution itself says merely that: "The 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. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not de diminished during their continuance in office. (Article 3, Section 1.)

(3) 1 Cranch. 137.

basement of the Capitol-the little room which is now the library of the Court.

Marshall's one great thought in going on the bench was to weld the States into a single nation. He did this by strengthening the Supreme Court and the first of those tremendous pronouncements which made the Court more powerful than Congress itself was Marbury v. Madison. Since then Fletcher v. Peck, McCulloch v. Maryland,5 the Dartmouth College Case, Gibbons v. Ogden,7 and Cohens v. VirginiaR have followed. It is significant, in view of the recent agitation, that none of these great landmarks were "five-to-four" decisions.9

4

Borah and La Foilette seem to concentrate their attack on the Court's power to nullify federal legislation. To be consistent they must also shackle its far more important power of declaring state legislation unconstitutional. Of the total of 50 cases where an act of Congress has been declared unconstitutional, in our hundred and fifty years of history, the number of bare majority decisions has only been a little over half.

The number of decisions holding acts of state legislatures to be unconstitutional numbers under 300, which is surprisingly small when we realize that the number of state law-making bodies has increased from 13 to 48 and that their output has been enormous. 10

During the first eighty years only four federal statutes were held unconstitutional, of which only two were of any im

portance. Even if the Court had been unable to determine the validity of either of these two (the Mandamus act of Marbury v. Madison and the Missouri Compromise act of the Dred Scott case), it is probable that history would not have shown any different results. Neither would the course of events have been altered to any great extent had the Court never exercised its powers regarding the 32 acts of Congress held unconstitutional between 1869 and 1917, with the possible exception of the Civil Rights cases.11 Thus it seems fair to say that the fundamental value of Marbury v. Madison is in securing uniformity in federal law, which could never result otherwise.

But had the Supreme Court been deprived of its other, and major, power-that of passing upon the constitutionality of state laws-the result might have been very different.12

"I do think," says Justice Holmes, "(that) the Union would be imperiled if we could not make that declaration as to the laws of the several States. For one in my place sees how often a local policy prevails with those who are not trained to national views, and how often action is taken that embodies what the commerce clause was meant to end. ''13

Those who would reform "five-to-four" decisions call the power of the Court to declare void acts of Congress "usurpation." This charge is answered once and for all by Professor Beard, who says:

"In view of the principles entertained. by the leading members of the convention with whom Marshall quainted,14 in view of the doctrine so

was ac

(11) Justice Holmes himself has said that: "The United States would not come to an end if we lost our power to declare an act of Congress void." See Sup. Ct. in U. S. History, by Charles Warren, Vol. 1, pp. 16-17.

(12) Illustrated in 1870 when the Kentucky courts held the Legal Tender Act invalid, while the courts of other states held the contrary.

(13) Ibid, Vol. 1, page 17.

(14) It is only fair to say that not all the members of the convention believed that the Court should be more powerful than Congress. Benjamin

clearly laid down in Number 78 of the Federalist, in view of the arguments made more than once by eminent counsel before the Supreme Court, in view of Hayburn's Case,15 and Hylton v. United States,16 in view of the judicial opinions, several times expressed, in view of the purpose and spirit of the federal constitution, it is difficult to understand the power asserted by Marshall in Marbury v. Madison as 'usurpation.'"'17

The necessity of jurisdiction by the Court over federal and state legislation was realized by Madison. Speaking in 1832, he said:

"I have never been able to see that, without such a view of the subject, the Constitution itself could be the supreme law of the land; or that the uniformity of the federal authority throughout the parties to it could be preserved; or that, without this uniformity, anarchy and disunion could be prevented. ''18

To require seven judges to hold an act void, as advocated by Senator Borah, would relax the protection afforded by the Constitution to that extent, since it might be possible for the illness or willfulness of one member to paralyze the power of the Court to act when necessary. With one justice absent the votes of all but one of the remaining judges would be necessary to invalidate an act contrary to the Constitution. With two judges absent, because of illness or resignation, it would take the entire Supreme Court to hold a congressional act unconstitutional.

If it is necessary that there be any disruption of the Court as now constituted it would seem that the suggestion of Fred

Franklin said that when a majority of both Houses had passed an act. and the President had signed it, no man would have the temerity to overthrow it. See Mich. State Bar Journal, Vol. 1, page 121, March, 1922.

(15) Not reported. See 13 Am. Hist. Rev. 281, and ibid.

(16) Decided March, 1796; 3 Dall. 171; 1 Law. Ed. 556.

(17) N. Y. Times, Book-Review, March 4, 1923, page 10.

18. Ibid.

erick G. Bromberg would be much preferable to that of the gentleman from Idaho. Mr. Bromberg's theory is that the Court may itself pass a by-law requiring the votes of seven members to declare an act of Congress void.19

It is doubtful in the extreme whether any mere act of Congress regulating the method of conducting its affairs would be accepted by the Supreme Court in view of the unbroken line of authority and successful conflict on the same lines from Marbury v. Madison to the present. Granted that it were necessary or desirable to compel seven votes out of nine to pass upon the constitutionality of legislation, such a step would have to be effected by means of a constitutional amendment.

But to destroy to any degree the power or usefulness of that institution which has acted for almost a century and a half as a balance wheel against unwise or hasty legislation is to that same degree to strangle and neutralize our distinctive governing system of checks and balances and vitiate the protection accorded us under our Constitution.

Sensible men, while they realize that Courts are not infallible, know that legislatures are even less so, for reasons inherent in the political condition of their existence. Impatient reformers may rage at any checks upon their projects, but that fundamental force known as "the people" recognizes that in the vast majority of cases the restraints of the Courts has been for their protection. The Supreme Court has survived war, panic and party strife, and it is to be doubted whether that vast, unheard multitude making up the rank and file of our nation will countenance any such handicap upon the Court in the faithful performance of its duties such as would inevitably be the result of the proposed bill by Senator Borah.

(19) Cen. L. Jr., Aug. 20, 1923, Vol. 96, page 285.

WORKMEN'S COMPENSATION-INJURY BY

SHOOTING

TEXAS EMPLOYEES' INS. ASS'N v. GILL

252 S. W. 850

Court of Civil Appeals of Texas. (May 9, 1923.)

Where employees drilling an oil well had the right to use a road through a farmhouse yard under an agreement between the employer and the occupant of the premises that he should be a watchman, and one of the men, while returning at night with food supplies, was shot by the watchman while acting in pursuance of his duty to prevent trespassing, held that, even if the watchman acted in a reckless manner, and the employees acted negligently in failing to give signals on entering the premises, the injury was compensable as one having to do and originating with the work within the statutory definition of the term "injury in course of employment" which excludes injury by an act of a third person intended to injure the employee because of reasons personal to him.

Lawther, Pope & Leachman of Dallas, and Taylor, Allen, Muse & Taylor, of Henrietta, for appellant.

Weeks, Morrow & Francis, of Wichita Falls, for appellee.

BOYCE, J. J. H. Gill, an employee of Thomas M. Sessums, a member of the Texas Employers' Insurance Association, brought this suit to recover compensation under the Workmen's Compensation Act (Vernon's Ann Civ. St. Supp. 1918, art. 5246-1 et seq.) for injuries alleged to have been sustained in the course of his employment. This injury was the result of one Salisbury shooting the plaintiff under circumstances hereinafter detailed. The claim was denied by the Industrial Accident Board, and the claimant appealed to the district court of Clay County, where judgment was rendered awarding him the compensation claimed.

The principal question in the case is whether the evidence is sufficient to support a finding that injury was sustained by claimant in the course of his employment. The facts on which this question is to be answered are as follows:

Gill was employed by Sessums as a helper and cook in the work of drilling an oil well. Sessums boarded the men, furnished a shack on the premises, with beds, cooking utensils, etc, for their use. He also furnished the provisions, and it was part of Gill's duties to do the cooking. Gill also attended to ordering the provisions and bringing or having them brought out to the premises. It was the custom for the men to go to Wichita Falls Satur

day evening after the day's work was over and return to the lease Sunday evening or night, spending the interim in rest and recreation. These trips were made in an automobile belonging to one of the employees. On these visits it was Gill's custom to get the provisions for the ensuing week, and bring them back as the party returned. Entry to the property on which the well was located was had by passing through the yard surrounding a farmhouse located on the premises covered by the oil lease, the road passing through two gates at this yard. This farmhouse was occupied by one Salisbury, probably a tenant on or the owner of the land on which the well was being drilled. Sessums had (according to his testimony) an agreement with Salisbury that Salisbury should "watch the well and keep people out of there at all times, because we did not want any visitors at any time, and after the fellow across the way closed his gate that was the only ingress and egress." One of the witnesses tes

tified that Sessums told him that "these men were on duty, and there had peen some objection to them going through the place, and that he had arranged with the men who owned the place and told them these men must go through the place."

On the Saturday evening before Gill was shot he, with three other men, went into Wichita Falls in a car owned and driven by one of his co-workers. On Saturday night after arrival at Wichita Falls he placed an order for groceries which on this occasion were to be brought out by Sessums on Monday morning. On Sunday night the party met by arrangement at a restaurant preparatory to returning to the shack where they were to sleep that night. At this time Gill purchased some bread and milk to take back for use the next morning at breakfast. They left town about 12:00 o'clock, and after they had passed through one of the gates at Salisbury's house, and were about 50 yards from the house were without warning fired upon by Salisbury, the shot taking effect in Gill's back, and injuring him severely. Gill testified that as they were going to town Saturday evening they were accosted by Salisbury; that he (Gill) did not hear the conversation that ensued, but his companions reported to him that Salisbury was mad because of the conduct of some "wild women" who had been at the oil well and had insulted his wife. "The boys told me he was mad because of this treatment he claimed his wife had received at the hands of these women. I didn't hear him say anything about us coming through there. The boys told me he said he wanted us to give

some signal when we came through; that he was not going to allow those women going down there and cutting up." In another part of his testimony he said: "I heard that Mr. Salisbury was mad at us, claiming we had stolen some of his chickens." He also said hat he was personally friendly with Salisbury and the evidence is sufficient to show that Gill nor any of the men with him on this occasion had anything to do with the presence of the objectionable women at the oil well.

In one of the affidavits filed by Gill in support of his claim and introduced in evidence by the defendant, Gill makes this statement:

"I can give no reason on earth as to why he (Salisbury) shot at us, except he claims to have shot in the direction of the car for the purpose of stopping the car so he could see who was in the car. I am informed that he was employed by Sessums as a watchman on the lease."

This is about all the evidence in the record that throws any light on the controversy as to the liability of the insurance association While it is not as satisfactory as it might be, we are of the opinion that it is sufficient to warrant a finding that Salisbury was at the time of the shooting acting in pursuance of his duty, recklessly, it may be, for the purpose of preventing the entry of trespassers on the premises

ex

*

**

then come

Salis

incihad

in the work. Lumberman's Reciprocal Association v. Behnken (Tex. Sup), 246 S. W. 74, citing Honnold, vol. 1, § 122, and other authorities which fully sustain the proposition submitted. If there was a risk incident to the use of the entry, not caused by its condition, but the result of other agencies, whether those agencies were under the control of the master or not, an injury resulting to an employee therefrom would originate in and have to do with the employment. The Behnken Case, supra; Kirby Lumber Co. v. Scurlock (Tex. Sup.). 246 S. W. 76. In the Behnken and Scurlock Cases the injury was such a one as might have been reasonably contemplated would result from the use of the railway crossing in the one case and the tram road in the other. In order to proceed further in the case we have for consideration, it remains to be determined what may be the rule as to anticipated injury and the result of its application to the facts of this case. In some of the authorities it is said that there must be a causal connection between the employment and the injury, and that only such injuries are compensable as are "in the light of experience the foreseen result of the employee's engaging in the employment." 28 R. C. L. 786; also pages 796-802. In the case of In re McNicol, 215 Mass. 497, 102 N E. 697, L. R. A. 1916A, 306, injury was inflicted by the assault of a fellow workman who was in the habit of drinking, and who when intoxicated was quarrelsome and dangerous. which fact was known to the employer. Compensation was allowed on the ground that the injury was the natural result of the "employment of a peaceable workman in company with a choleric drunkard." In that case it is said that an injury

"arises 'out of the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a casual connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. * It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

*

In the case of Re Reithel's, 222 Mass 163, 109 N. E. 951, L. R. A. 1916A, 304, the super

intendent of a woolen mill, upon ordering a trespasser to leave the premises, was shot and killed by such person, and compensation was allowed. In the opinion some stress is put on the fact that this particular trespasser had given trouble before, and "liability to whatever personal injury might be likely to arise in dealing with such a person was, therefore, within the contemplation of the employer and employee," and "became a risk of the employment." In this case it was said that the injury, "although unforeseen and the consequence of what on the record appears to have been a crime of the highest magnitude, yet now, after the event, appears to have had its origin in a hazard connected with the employment and to have flowed from that source as a rational consequence."

In the case of Western Indemnity Co. v. Pilisbury, 170 Cal. 686, 151 Pac. 398, a section foreman was assaulted by a laborer whom he had discharged, and compensation was allowed on the conclusion that he "was hurt in an altercation which grew out of his justifiable efforts to maintain his authority as foreman and to protect the property of his employer intrusted to his care."

In the case of Atolia Mining Co. v. Industrial Commission, 175 Cal. 691. 167 Pac. 148, a miner returned to the mine after the close of the day's work to make some inspections in the line of his duty, and after coming out was shot without warning by one of the mine guards, and compensation was allowed. It was said in this case that

"While unquestionably it was a heedless and reckless thing for the guards thus to have shot a man, * * yet every legal presumption favoring innocence, the argument will not be sustained that these guards deliberately perpetrated an assault to commit murder. To the contrary, it will be held that the man who fired the shot * * believed that the circumstances justified him in so doing, and that thus he was acting within the line of his own employment, and under this view, Mason (the injured employee), having been injured by the negligent performance of an act within the general scope of the duties of the employee inflicting the injury, is entitled to his recovery."

In this connection it is pertinent to say that disobedience and negligence in the performance of their duties by co-employees are to be anticipated, and are "as much one of the risks of a man's employment as a defect in the mechanical appliances." Honnold, § 120. In the case of the Georgia Casualty Insurance Co. v. McClure (Tex. Civ. App.) 239 S. W. 644, com