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Simon v. St. Louis Brass Mfg. Co. (Mo.), Con-
struction of Statute Requiring Machinery to
be Guarded, R. D. 384.
Liability, Ed. 266.
A.), Recovery for Breach of Contract for
Same, R. D. 276.
Officer May be "Employee" Under Compensa-
tion Statute, R. D. 21.
Carriers-Eviction of Passenger, ann. case, 120.
State V. Barone (N. J.), False Pretenses-Post-
dated Check, ann. case, 140.
State v. First National Bank (Mo.), Banks and
Banking-Branch Banks, Ed. 315.
posing 10 per cent Penalty for Delay in Pay-
ing Wages Held Invalid, R. D. 257.
Workmen's Compensation-Injury by Shooting,
ann. case, 407.
Prohibition Act Repealed Revenue Statutes
Relating to Intoxicating Liquors, R. D. 185.
Physician May Give Opinion Based on X-Ray
Plate Without Producing Plate, R. D. 221.
ficance of the “Seal," R. D. 347.
Vaughn v. Meier (Mo.), Attempt of Bystander
to Stop Runaway Automobile Does Not Pre-
vent Recovery for Negligent Parking, R. D. 167.
Renewing Ties Engaged in Interstate Com-
merce, R. D. 401.
Automobile, R. D. 39.
(III.), Physician's Opinion Must be Based on
Sufficient Facts, R. D. 400.
Limited (Eng.), The Obligation to Accept a
Customer, R. D. 185.
Williams v. Hamilton Fire Ins. Co. (N. Y.), Effect
of Provision in Automobile Insurance Policy
for Appraisal of Damages, Ed. 309.
Yellow Cab Corporation of Rochester v. Korpeck
(N. Y.), Unfair Competition-Color Scheme of
Taxicabs, ann. case, 302.
Central Law Journal
St. Louis, January 5, 1923
CAN CONGRESS GRANT RIGHT TO JURY TRIAL FOR CONTEMPT
Judge R. M. Call, of the Federal District Court, Southern District of Florida, on November 24, 1922, holds that that portion of the Clayton Act providing for jury trial in matters of contempt-violation of an injunction issued by a Federal Court-is unconstitutional, as croachment by Congress upon the province of the Courts. The question came up in the cases of In re Atchison and Roberts and In re Shehee, not yet reported. A brief was filed in these cases by Mr. Robert H. Anderson, Jacksonville, Fla., as Amicus Curial, which very exhaustively covers the subject, and to which we are indebted for some valuable quotations made use of below.
We quote the following from Judge Call's opinion:
"The position of the government is that Congress transcended its powers in attempting to provide for a jury trial in cases of contempt, for the willful disobedience of a court order.
“The government contends that under our system of government established by the constitution, each department: the legislative, the executive and the judicial, are separate from and independent of each other, and their legitimate provinces may not be invaded by the others.
“That the power to punish for contempt is inherent in the courts, and being so inherent, it is essential to and inseparable and inalienable from them.
"That this power exists independent of legislation; cannot be taken away by legislation or abridged.
That the Clayton Act, in-so-far as it uitèrtáķes to give one charged with contempi -of-court by a willful violation of an injunction:-fuly issued by the court, a right of..rrial by a jury, so abridges the inherent power af the court to punish for such contempt that it materially impairs it and in such respect is nugatory.
“The constitution of the United States divides the government into legislative, executive and judicial, and prescribes the powers and duties of each of these departments.
“Is the power of the courts to punish for the willful violation of an order duly and properly made inherent in the court, or is it dependent upon legislation ?
"It can scarcely be questioned in this day that such power is inherent in the courts.”
The following portion of the opinion is of interest on account of the fact that the court treats the defendants as not being employees of the railroad company in question:
"I am of opinion that that portion of the Clayton Act giving a jury trial to persons charged with contempt in violating the injunctional order of this court is of no force even in cases which fall strictly under said act.
“In the instant case it is extremely doubtful if these are cases falling under said act.
"These parties were not employees of the railroad at the time of the issuance of the injunction. The relation of employer and employee had been severed and no longer existed, by the withdrawal of such parties from the employment theretofore existing.
“There is a very full discussion of this question in the case of Canoe Creek Coal Company v. Christinsen et al., 281 Fed. 559, in which Judge Evans, District Judge, reached the conclusion that the parties were not entitled to a jury
trial for the reason that it was not a diate attachment of the offender question arising between employer and
sults from the first principles employee, and his conclusionis seem jus- judicial establishments and must b tified."
inseparable attendant upon every In Campbell's: Lives of the Chief Jus- perior tribunal. Accordingly, we tices, Wilmot is quoted as having said:
it actually exercised as early as
4 BI "The power which the Court in West
annals of our law exists." minster Hall have of vindicating their
stone's Commentaries, 286. own authority is coeval with their first Mr. Justice Brewer in In re Debs, foundation and institution; it is a neces
U.S. 594, says: sary incident to every court of justice, “But the powers of a court to u whether of record or not, to fine and an order carries with it the equal pc imprison for an act committed in the
to punish for a disobedience of face of the Court; and the issuing of order, and the inquiry as to the g attachments by the Supreme Court of tion of disobedience has been from justice in Westminster Hall for con- immemorial the special function of temps out of Court stands on the same court. And this is no technical ] immemorial usage which supports the In order that court may cor whole fabric of the common law. It is obedience to its orders it must have as much the lex terrae and within the
right to inquire whether there has exception of Magna Charta as the issu
any disobedience thereof. ing of any other legal process whatso
the question of disobedience to another ever. I have examined very carefully tribunal, be it a jury or another court, to see if I could find out any vestiges would operate to deprive the proceedof its introduction, but can find none. ing of half its efficience." It is as ancient as any other part of the
“The power to fine and imprison for common law. There is no priority or
contempt, from the earliest history of posteriority to be found about it. It
jurisprudence, has been regarded as a cannot, therefore, be said to invade the
necessary incident and attribute of a common law. It acts in alliance and
court, without which it could no more friendly conjunction with every other
exist than without a judge. It is a provision which the wisdom of our
power inherent in all courts of record, ancestors has established for the gen
and co-existing with them by the wise eral good of society. Truth compels me
provisions of the common law. A court to say that the mode of proceeding by
without power to effectually protect attachments stands upon the very same
itself against the assaults of the lawfoundation as trial by jury. It is a
less, or to enforce its orders, judgments, constitutional remedy in particular
or decrees against recusant persons becases and the Judges in these cases are
fore it, would be a disgrace to the legisas much bound to give an activity to
lation, and a stigma upon the age that this part of the law as to any other.” invented it.” Watson v. Williams, 36 Blackstone declares that:
Miss., 341, 99 Am. State Reports, 610, "Laws without a competent author
Judge Ray, of the Northern District of ity to secure their administration for
New York, in the case of United States v. disobedience and contempt would be Tom Wah, 160 Fed., 207, said: vain and nugatory. A power, therefore, "All courts of record have inherent in the supreme courts of justice to
power to enforce their orders and mansuppress such contempts by an imme
dates by punishment as for contempt,
NOTES OF IMPORTANT DECISIONS
unless the law creating them expressly
“It may be doubted whether Congress may create a court, and thereafter so limit its powers as to deprive it of the ordinary and necessary powers of a court. This would be to deprive it of one of its most essential attributes.'
But Mr. Justice Story, in Martin v. Hunter's Lessee, 1 Wheat. 331, 4 L. Ed. 97, proceeding further, said:
“If then, it is the duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all. If it were otherwise, this anomaly would exist, that Congress might successively refuse to vest the jurisdiction in any one class of cases enumerated in the constitution, and thereby defeat the jurisdiction as to all; for the constitution has not singled out any class on which Congress are bound to act in preference to others. And again :
"If Congress may lawfully omit to establish inferior courts, it might follow that in some of the enumerated cases the judicial power could nowhere exist." And further:
“It would seem, therefore, to follow that Congress are bound to create some inferior courts, in which to vest all that jurisdiction which, under the constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance. They might establish one more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all times, vested either in an original or appellate form, in some courts created under its authority.”
ORDINANCE PROHIBITING MOVING PICTURE SHOWS ON SUNDAY UPHELD. An ordinance prohibiting the giving of moving picture shows on Sunday is upheld in City of Ames v. Gerbracht, 189 N. W. 729, decided by the Supreme Court of Iowa. The Court further holds that such ordinance is violated by giving such a show, although no admission fee is charged, and that the power to regulate “theatrical exhibitions" includes moving picture shows. On the question of the unreasonableness of the ordinance, raised by the defendant, the Court said:
"It is contended that in any event the ordinance is unreasonable, and should be held void because thereof. As we have indicated, the Legislature has conferred on municipal corporations the power to 'regulate' moving picture shows. This being true, is the particular ordinance in question an unreasonable regulation? The city council cannot act arbitrarily in the matter, even though the power to regulate is delegated, and even though the regulation pertains to the police power. But, under its power to regulate, there are undoubted numerous requirements that may be lawfully prescribed by the city council, pertaining to the manner in which the business is conducted. A few illustrative cases may be of assistance. In St. Louis V. Nash, 266 Mo. 523, 181 S. W. 1145, Ann. Cas, 1918B, 134, it was held that a moving picture building properly came within a regulation as to fire limits. In Jewel Theatre Co. v. State Fire Marshal, supra, the Court sustained a statute prohibiting moving picture exhibitions in any building not having its audience room at the street level. In Nahser v. Chicago, supra, an ordinance prohibiting the location of a moving picture show within 200 feet of any church was sustained as valid.
"Under the granted power, the Legislature could undoubtedly enact numerous provisions regarding the manner of conducting moving picture shows. The council could unquestion: ably pass an ordinance regarding the entrances and exits, fire escapes ventilation, and other similar matters pertaining to such places, and which come within reasonable police regulations. If the municipality has the power to enact ordinances of the character above indicated, no good reason can be given why it may not likewise pass an ordinance reasonably regulating the periods of time when a moving picture theater may be open.
"It must be remembered that the city council has a right to take into consideration the fact that large numbers of people attend such shows. Laying aside all consideration of any moral question involved in Sabbath observance, it is a fact that in every community in the land there is more or less of a cessation of labor on Sunday. The fact that people generally are at liberty from their usual occupations on that day easily makes possible the gathering of crowds at such places of amuse
1:.C.t on Sunday. This of necessity may re
le a Kitional police protection, which inust ie furnished by the city. This fact alone 1. Ili Le sufficient warrant for holding such a regulatory ordinance to be reasonable. FurMermore, the city council has a right to recognize the obvious fact that great numbers of wir citizens devote this day to rest and worship, and to some degree of quietude. The city coincii also has a right, perhaps a duty, to icasonably protect such citizens against the disturbances incidenco the gathering of c.owds upon the struuts in and about places of public amusement. Under the statute in question the city council has the same power to regulate circuses that it has to regula e moving picture shows. Would it be regarded 3 linreasonable for the city council of Ames, by regulatory ordinance, to provide that a circi's should not exhibit in said city on Sunday? Such an ordinance would, we think, be rearded as reasonable, without regard to any l'oral quesiion involved. The circus might be a ‘moral show,' not only according to its flamboyant advertisements, but in fact as well. The same reasons, the gathering of crowds, the necessity of police protection, the disturbance of the quiet of other members of the community, that furnish a valid reason for Le regulation of circuses, operate, in a lessened degree undoubtedly, but in the same çeneral manner, to justify the regula‘ion of n'oving picture shows on Sunday. It is a mat
rr peculiarly within the discretion of the citv council. We cannot, and we should not, old the ordinance to be unreasonable, unless
is plainly and palpably so. We do not so regard it, and cannot hold it to be invalid as unreasonable."
fleet, and did not affect the question of the collisior or its cause. It did slow up the convoy laking progress towards its point of destination. It was about 30 nautical miles from the scene of the torpedoing of the Merida to the point of collision, and about five hours were consumed in making that distance. It is explained that there was zigzagging of the vessels in making at least part of this distance. We conclude that this attack, occurring, as it uid, some five hours previous to the time of the collision, has no bearing upon the cause of the collision.
"The appellant's contention is that this engagement was a warlike operation, because (first) the vessels were sailing without lights; (second) that they were proceeding in convoy; and (third) that the Napoli carried a cargo intended for warlike use. Where vessels proceeded at sea during this war period, it was the custom to sail without lights. These vessels were all operated without lights. The voyages upon which each of the vessels were engaged would, if in time of peace, be treated as an ordinary maritime adventure. It would not become a warlike operation, within the intention of the terms of the policy, because of the fact that, as a precaution against possible attack or capture, the masters of the vessels did not show lights during the night, and even though the consequences of such action meant the concealment of the vessels and their liability to collide. It may be imprudent navigation to take this risk, or it may be blameworthy from other points of view; but, if it is done in obedience to lawful commands, it cannot be considered a warlike operation. The object, of course, is to avoid an enemy's attack; but no enemy was present at the time of the collision. The purposes of the adventures of the ships were peaceable. Neither vessel was doing a warlike act, and those who issued the order to the navigators of the vessels did not consider their orders to be warlike, even though performed in a war period. In a word, nothing of actual hostilities was present at the time of the collision."
SAILING CONVOY WITHOUT LIGHTS DURING WAR, NEITHER “WARLIKE OPERATION" NOR CONSEQUENCE OF ONE, WITHIN INSURANCE POLICY - Where vessels sailing in convoy collided, but were engaged in no warlike act, and those who issued orders to their navigators did not consider their orders to be warlike, even though performed in a war period, the fact that they were sailing at night without lights to avoid the submarine peril during a war period did not constitute a warlike operation, nor the consequence of one, under war risk clause of a
marine insurance policy; it a warlike operation because the vessels were sailing in convoy.—Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co. (C. C. A. Second Cir.), 282 Fed. 976.
"When one vessel of one of the convoys was attacked by a submarine, the course of the convoy was altered four points to the right; but before the convoys met, and this collision ensued, it was again altered four points to the left. This latter change must be deemed to have neutralized the former. The trial judge, who exhaustively examined the navigation of the vessels, concluded that the torpedoing of the vessel in the west-bound convoy was five hours before the meeting of the east-bound
CONSTRUCTION OF ACTOR'S CONTRACT FOR SATISFACTORY PERFORMANCE.-In an action by the plaintiff to recover for wrongful discharge, it is held that a contract to render services as an actor to the satisfaction of an amusement company must be performed in accordance with its terms, and if the amusement company, acting in good faith, was not satisfied with plaintiff's services, he could not recover, although his work would be satisfactory to a reasonable man. Fried v. Singer, Mass., 136 N. E. 609.
“A contract like the one herein question where the employee is to render personal services and where consideration of the fancy, taste, sensibility and judgment of another are involved, must be performed in accordance with its terms; and if the amusement company or its representative, acting in good faith, was not satisfied with the services of the plaintiff. he cannot recover, and the judge so instructed the jury. McCarren v. McNulty, 7 Gray