McCullough v. Maryland, 4 Wheaton, 316. Then, as an incident to the power to regulate commerce, a corporation was formed to build a bridge across a river between two states. Luxton v. North River Bridge Co., 153 U. S. 525, and as an incident to the power to create post roads and railroads, are incorporated. California v. Central Pac. R. R., 127 U. S. 1. Telegraph lines are classed as instruments of commerce and may be incorporated. Raterman v. Western Union Tel. Co., 127 U. S. 411. Under and incidental to the power "to lay and collect taxes, duties, imports and excises" a protective tariff law is held to be valid. It is difficult in such cases to separate the protective feature from the revenue feature. If a law was purely protective and did not result in the collection of any revenue, there would be room for question; possibly it might be held that it would be of such character, protective of the general welfare of the people, that it could be justified on a liberal construction; it is in the twilight zone.

A very interesting discussion of this incidental power of Congress arose in what is known as the Legal Tender cases. In 1862 Congress passed a law making the treasury notes, or what are known as government paper or currency, a legal tender for all debts, etc. Before that only gold and silver coin were legal tender. The gold dollar was worth twice the paper

dollar.

The effect of this was that in the payment of debts incurred before the passage of the act, it permitted a payment of them in money that was only one-half the value in purchasing power of the money which was a legal tender at the time the debt was incurred. On the face this looked very much like confiscation of property-and of course would be resisted by the creditor class.

It came before the Supreme Court first. in 1869 in the case of Hepburn v. Griswold, 8 Wall. 603. By a decision of five to three the law was declared unconstitu

The question again came before the Court next in Knox v. Lee, 12 Wall. 457, and the Griswold case was overruled by a five to four decision. A Supreme Justice having resigned and the Court having been increased from eight to nine, two new Justices were appointed between the times of the two decisions. It was charged at the time that the President knew how the new Justices would vote on this question, and that fact induced their appointment. Of course there is little to substantiate the truth of this charge, and it probably originated in the brain of some member of the political party opposed to the President. But it certainly was a question in the twilight zone and of very great importance. The prevailing opinion in the first case was written by Chief Justice Chase, and the dissenting opinion by that great constitutional lawyer, Sam'l F. Miller. In the second case the prevailing opinion was written by Justices Strong and Bradley, the new Justices, and Chief Justice Chase and Justice Clifford gave the dissenting opinions.

The opinons of the Justices sustaining the validity of the law concede that the power to pass the law does not come alone from any one of the expressed enumerated powers, but rather from several, the principal being that it came within the power to borrow money, the nation at the time being in the throes of a civil war, and having to borrow money to conduct the war, one Justice saying that in times of war it is as necessary for Congress to control the purse as it is to control the army, Justice Miller declaring:

"The legal tender clauses of the statutes under consideration were placed emphatically by those who enacted them, upon their necessity to further borrowing of money and maintaining the army and navy. It was done reluctantly and with hesitation and only after the necessity had been demonstrated and had become imperative. Our statesmen had been trained in a school which looked upon such legislation with something more than distrust. The debates of the two houses of Congress show that on this necessity alone could this clause of the bill have been carried, and they also prove, as I think very clearly, the exist ence of that necessity."

Chief Justice Chase, however, did not agree that it was a necessity, saying:

"We have no hesitation therefore in declaring that the making of these notes a legal tender was not a necessary or proper means to carry on the war or to the exercise of any express power of the government."

On this question of necessity the Justices upholding the law, reply, quoting from Chief Justice Marshall in McCullough v. Maryland, 4 Wheaton 416, that:

"When the law is not prohibited and is really calculated to effect any of the objects intrusted to the government, to undertake, has to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department and treads on legislative ground."

And that before the legal tender act could be held to be unconstitutional the Court must be convinced

"They were not appropriate means or means conducive to the execution of any or all the powers of Congress, or of the government, not appropriate in any degree (for we are not judges of the degree of appropriateness) or we must hold that they were not prohibited." (Justice Strong, Knox v. Lee.)

"I do not say that it is a war power, or that it is only to be called into exercise in time of war, for other contingencies may arise in the history of a nation which may make it expedient and imperative to exercise it. But of the occasions when, and of the times, how long it shall be exercised and in force, it is for the legislative department of the government to judge." (Justice Bradley, Knox v. Lee.)

This decision, except as showing the growing trend of thought in the way of a liberal construction, did not determine any question except that the condition of the times justified the holding that Congress had an implied power to pass the law, because Congress judged it was necessary and the power was not prohibited.

The Justices that upheld the law, i. e., Miller, Davis, Swayne, Strong and Bradley, were of the party that conducted the civil war to a sucessful close, and unconsciously in sympathy and accord with its policies and legislation. That, while Chase had been in Lincoln's Cabinet, he never was much of a Republican; Field had previously been a Democrat, and Clifford, Nelson and Greer were of an earlier generation and closely allied with the Democratic party, and this party, as a party, was always considered as strict constructionists of the Constitution.

Judges almost without exception intend to be impartial, but it is the next thing to an impossibility for them not to be influenced in the trend of their thoughts by their party affiliations, and in questions of doubt, favor the principles and policies advocated by the party to which they may then belong, or had, prior to their election to the Bench.

Naturally the Republican party was for a liberal construction. It fought the civil war for the supremacy of the general government. There is no doubt but that a wave of liberal construction of the United States Constitution followed the civil war.

It predominated in the days of reconstruction, and it permeated the minds of the people with the belief that the Federal government possessed full power to legislate on whatever subject the welfare of the people might demand. No doubt we have been drifting away from the ancient moorings of our fathers.

The time has come for us to halt and consider the principles upon which our government was founded if we wish to prevent ourselves from drifting in an open sea of anarchy and confusion, without rudder to guide us to a safe harbor. We want more respect for law and order; we want less thoughtless and critical criticism of our government and its governors.

In order that this government may be of the people, for the people and by the people, and not perish from the earthno bloc or class must possess any rights or privileges that are against the public good. In the language of the great emancipator, this nation cannot survive half slave and half free.

BILLS AND NOTES-SALOON KEEPER'S NOTE TO BREWER.

MASSOPUST v. LEMBECK & BETZ EAGLE BREWING CO.

118 Atl. 630.

Court of Chancery of New Jersey. October 31, 1922.

A note of a saloon keeper to a brewer, which was given when he took over the saloon, on account of fixtures therein belonging to the brewer, but which according to agreement and its custom he was not to be called on to pay so long as he bought its beer, will not be converted into an absolute promise to pay, and enforcement allowed, on prohibition going into effect; for, performance of the contract to buy beer becoming unenforceable, the penalty for nonperformance also became unenforceable.

Thomas Brown, of Perth Amboy, for complainants.

D. Eugene Blankenhorn, of Jersey City, for defendant.

FOSTER, V. C. Complainants seek to have defendant restrained from prosecuting an action at law on a promissory note given by them to defendant for $2,025.25, on the ground of an alleged oral agreement between the parties that complainants were not to be liable for the payment of the note, nor the chattel mortgage given as security therefor, unless they refuse to purchase the lager beer of the defendant at a fair market price, and on the further ground of a custom existing in the dealings of defendant with other saloon owners in Perth Amboy, which custom was to relieve such saloon keepers from the payments of similar notes and mortgages.

The note and chattel mortgage were given under the following circumstances: On March 21, 1917, complainants purchased the saloon and hotel business of one George C. Hriczko in Perch Amboy for $28,500, and on the same day they signed the promissory note in question, which is payable on demand, and also executed the chattel mortgage on the saloon fixtures to secure the payment of this note. It appears that said George C. Hriczko had been engaged in the saloon business in Perth Amboy for many years, and that in 1908 he was a customer of the Central Brewing Company. On June 17, 1908, defendant purchased from the Central Brewing Company its clai:n against Hriczko, consisting of a chattel mortgage on his saloon fixtures and his note for $1,000. Between 1908 and 1912 additions and repairs were made by defendant to these fixtures at a cost of $898.25, and on January 19, 1912, Hriczko gave defendant a new note and chattel mortgage for $1,898.25, and between 1912 and 1915 further repairs or additions were made by defendants to the fixtures at a cost of $127, making the total of the alleged indebtedness due on June 30, 1915, from Hriczko to defendant $2,025.25, which is the amount of the note in suit, and admittedly the payment of neither the principal nor interest of this indebtedness had ever been demanded from Hriczko during all the years he was in business and purchased and sold the products of defendant. Defendant claims this sum represents the true value of the fixtures at the time complainants purchased the business, while complainant's proof shows that a substantial part of the fixtures were secondhand when them, Hriczko acquired about sixteen years ago; that some of them were rather useless, and that some of them had been removed to this saloon after considerable use in other saloons, and that at the date of this transaction these fixtures were worth about $500.

The complainant Massopust has lived in Perth Amboy for about 37 years; for about 10 years he conducted a saloon, and purchased his beer from defendant; later he engaged in the real estate business and as a broker he has sold 25 or more saloons in Perth Amboy, or its vicinity, that were doing business with defendant; that he has known William F. Thiele, the agent of defendant, for over 15 years, and has had dealings with him in effecting the sale of saloon properties.

The other complainant, Kutcher, was the agent or collector of the defendant for over 23 years, and he continued in defendant's employ for about a year and a half after the purchase of this saloon and hotel business. Thiele was his immediate superior, and was called his boss, and he and Thiele for years had the most intimate business relations.

Both complainants testify that for years they were familiar with the practice of defendant to furnish chattels to be used in the saloon business, where the beer manufactured by defendant was sold; that defendant made it a practice to charge for the fixtures thus installed, as well as for all additions and repairs to the same, and also for the money which defendant sometimes advanced, and that the amount thus charged was represented by a promissory note of the saloon keeper payable on demand and secured by a chattel mortgage on the fixtures; that it was also the practice of defendant never to ask for the payment of such notes and mortgages so long as the saloon keepers continued to sell defendant's products; that the indebtedness thus represented was considered the indebtedness of the place, and not of the proprietor of the saloon, and that a purchaser of a saloon was expected to assume this indebtedness by his own note and mortgage on the like understanding about his liability for their payment.

With these practices of the defendant in mind, complainants agreed in January, 1917, to purchase the saloon business and property of Hriczko and to assume his indebtedness to defendant for the fixtures. At this time defendant held a mortgage for $10,000 on the hotel property and also held Hriczko's note and chattel mortgage on the fixtures for $1,895.25. Defendant accepted payments from complainants, which reduced its real estate mortgage to $7,000, and consented to make this amount subject to a first mortgage of $15,000, which complainants borrowed to buy the property, and when the transaction was closed in March, 1917, complainants gave defendant the real estate mortgage for $7,000,

and the note and chattel mortgage in suit. On June 19, 1919, defendant demanded the immediate payment of the balance due on the $7,000 mortgage, and three days later began proceedings to foreclose this mortgage.

Complainants testify that before signing the note and chattel mortgage they were assured by both Mr. Thiele and Mr. Lembeck that the usual practice respecting the note and chattel mortgage would continue, and that Thiele told Kutcher complainants would have to give the note and chattel mortgage, and when Kutcher told him it wasn't necessary, Thiele said it was, "so we can show something to keep our books and things like that in the office straight," and further

"that we have got to have something to show when you sell it again, this goes over to the next man. You have nothing to do with it. As soon as you sell out again, we turn it over to the next man."

Thiele further told him that so long as complainants dealt with defendant at the market price and sold their products there would be no demand made for the payment of the note and chattel mortgage. Thiele denies having made these representations, and defendant attempted to show that if Thiele ever made them, it was after complainants had agreed in January to purchase the property and business, and also to show that if Thiele ever made these representations, he was without authority to do so. I find the proofs convincing that Thiele made these representations to induce complainants to sign the note and chattel mortgage, and that he was acting within the scope of his authority in doing so. The record also shows that no serious effort was made by defendant to contradict complainants' evidence of its practice to refrain from collecting such notes and chattel mortgages, so long as the saloon keeper sold its products.

From the date of the purchase complainants continued to perform this agreement by dealing only in the products of the defendant. In March, 1918, as a result of federal regulations limiting the use of cereals and coal, all of the brewery's customers were rationed, and the price was increased to $9 for a half barrel of beer. When complainants learned they were being charged $17 a barrel, $2 of which was being credited on the chattel mortgage, they objected, and when defendant ceased making any deliveries of its beer or other products, complainants then, for the first time, purchased beer from other breweries. And finally when, as a result of the adoption of the Prohibition Amendment and the enact

ment of the Volstead Act (41 Stat. 305) it became impossible for complainants to legally perform their agreement to purchase and sell defendant's products, payment was thereupon demanded of the mortgage on their real property and of this note and chattel mortgage.

The bill has evidently been framed to bring the case within the rule stated in O'Brien v. Paterson Brewing & Malting Co., 69 N. J. Eq. 117, 61 Atl. 437, and later in Gallagher v. Lembeck & Betz Eagle Brewing Co., 86 N. J. Eq. 188, 98 Atl. 461, and I find the proofs to establish the allegations of the bill, relating to the practice of the defendant and its custom in the trade not to enforce the payment of notes like the one in suit; and I also find the evidence to establish the representations which were made by the defendant's agent, to induce complainants to execute the note in question.

It is quite apparent from the record that payment of this note was never to be demanded, and certainly not so long as complainants continued to purchase the products of defendant's brewery. When prohibition

made further performance of this agreement by complainants, as well as the defendant, impossible, defendant then for the first time sought to make absolute a conditional promise of payment. To permit the consummation of this purpose would clearly be inequitable, for as the law itself prevents complainants from performing their agreement, it necessarily follows that the law also relieves them from a lawful promise that it would now be unlawful for them to perform, and also relieves them from any liability or penalty for nonperformance under such circumstances.

As neither the title of defendant to the saloon fixtures nor the right of defendant to foreclose its chattel mortgage is questioned in these proceedings, and as the proofs clearly sustain complainants' contention respecting the purpose for which this promissory note was given, I will advise that the restraint prayed for be granted.

NOTE-Saloon Keeper's Note to Brewer, Unenforceable So Long as He Bought His Beer, Rendered Unenforceable by Prohibition. This subject is analogous to the question of the effect of prohibition on liquor leases, treated in an article by W. W. Thornton, in 94 C. L. J. 40. See also, Doherty v. Monroe Eckstein Brewing Co., 191 N. Y. Supp. 59. In the case of O'Brien v. Paterson Brewing and Malting Co., 69 N. J. Eq. 117, referred to in the reported case, it appeared that the complainant purchased a saloon located in a building the lease to which was subject to termination on short notice, having no valuable good will, agreeing to pay in cash the value of the stock on hand, and to

give a mortgage to defendant brewing company for the amount of an indebtedness owing by the seller of the saloon to defendant for beer, advances, etc., the amount of which was largely in excess of the value of the fixtures, under an agreement that the securities should not be enforced so long as complainant purchased beer from defendant. It was held that complainant, on ceasing to purchase defendant's beer, was entitled to restrain the enforcement of the note and mortgage on tendering to defendant the reasonable value of the fixtures.

ITEMS OF PROFESSIONAL INTEREST

WOMEN JURORS IN UNPLEASANT CASES

The imposition of jury service on women, although it seems to follow logically from their admission to the franchise and to the right of holding all civil offices, has resulted in prac tice in many grave difficulties. In the case of criminal trials these are not so pronounced, since there a right of challenge usually exists, and can be exercised so as to release women from sitting on juries in cases where evidence of an indecent or unwholesome kind must inevitably be discussed together by the male and female members of the jury when they retire. In civil jury cases no such simple remedy is usually available; in a libel or slander action the unfortunate plaintiff, against whom an indecent charge has been made, nowadays finds himself compelled to go before a jury, which in the ordinary course of events will include two or three women, and lay bare the most delicate matters of private life to be proved before and discussed by them. For the right of challenge is very limited in civil cases, and practically the only way to get rid of the feminine members of the jury is for both counsel and the judge to combine in requesting them not to sit. Unfortunately, some women insist on continuing to sit in such cases, even although no question between the sexes, or matter of public importance, but only the personal decency of a man's life, happens to be in issue. In such cases, while a learned judge, who recently complimented on their sense of duty two women who insisted on remaining to try such a case, may have been right, yet one cannot help feeling that the other women who responded to the judge's appeal by leaving the jury box, showed greater delicacy and consideration for the feelings as well as the rights of others. In a case where a woman's honor and virtue is in question, of course, one can readily appreciate the determination of other women to remain and support her by their presence;