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Central Law Journal.

ST. LOUIS, MO., MARCH 26, 1920.

SHOULD THE EXECUTIVE POWER BE SEPARATED FROM THE OFFICE OF PRESIDENT AND MADE RESPONSIBLE TO CONGRESS?

The Canadian Law Times (March, 1920) charges that the United States is an Autocracy and not a Democracy because all executive power is placed in the hands of the President. While using President Wilson as a “bad example" the writer disclaims any intention to attack the President personally but, on the contrary, concedes that he is a man of exceptional ability. He contends, however, that our Constitution, by giving such great and uncontrolled powers to the chief executive makes it impossible to place the United States in the category of democracies.

In only one respect may Great Britain claim any advantage, if it be an advantage, in respect of its form of government over that of the United States and that is in separating the executive power from the executive or sovereign himself, making the

former answerable to Parliament and the latter the mere figure head of national power. "The sovereign of the British Isles," says says the writer, "for years has been a great assenting functionary to the delibing erate acts of the Legislative and Executive departments of the Government. The Judiple, ciary is pre-eminently independent both of Sovereigns and of Factions; and the Executive, not the Sovereign, declares war and makes peace, and all international Treaties. take his is the complete effacement of the "onennot han element" of government, and the final delusethronement of autocracy whether it be in

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nkem The writer then goes on to call attention pecify the attributes of autocratic power which 352. nder the Constitution attach to the office f President. He cites the exercise by the President, in his own right, of all executive ity and military power without check of any at kind; his power to veto legislature; his un

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challenged power to represent the nation in controversies with foreign powers; and his power to make treaties restricted only by the necessity of securing the concurrence of the Senate. He contrasts these powers with the powers of the King of England, who is an executive without executive power. On this important point of the separation of the executive powers from the executive the writer says:

"The executive officers are always in either one House or the other, and they are open to interrogative enquiries in relation to their several departments-the Army, the Navy, Foreign, Colonial and Domestic Affairs; and the Premier of the day as the acknowledged head of all is specially under obligation to make declaration to the House in which he is of anything involving the Peace of the Kingdom or its war with any other Nation. A vote of the House of Commons hostile to any act done by an individual minister will cause him to resign; and a vote of the House hostile to any avowed policy of the Government on a matExecutive Government; and a general electer of moment causes the resignation of the tion which is not long to follow this, is the inevitable vox populi-the final decree of the people for or against the policy proposed."

We are frank to acknowledge the belief that if the Constitution of the United States had been made in the light of the political knowledge we enjoy today, there would have been some provision for making the executive power responsible to Congress. Such a plan would have avoided

the not infrequent and deplorable controversies between the President and Congress which not only have cast discredit on the authority of both these high functionaries of government but have paralyzed governmental action by the ridicu

lous deadlocks that have resulted.

The present deadlock over the Peace Treaty is only one example of the failure definitely to fix responsibility for the making of treaties. Complaint has been made that the Senate should have been consulted in the making of the Peace Treaty. We coincide with that opinion as a matter of abstract principle; but no provision exists

in our Constitution that would have even justified the President in seeking the opinion of the Senate in advance. Since the President is in no sense responsible to the Senate for his actions, the latter might very properly have declined to enter in advance into any partnership arrangement with him in the making of a treaty. If, however, the treaty making power had been confided to a Premier or Secretary of State responsible to the Senate and not to the President, the making of a treaty would have been free from the embarrassments that have interfered with the making of the present treaty. Neither the President nor the Senate are to blame for the present unfortunate situation, but rather the provision for the division of the treaty making power between with no method provided to determine differences of opinion except by the surrender, on the part of either of the joint donees of the power, of their convictions in the mat

ter.

When the Constitution was framed there were in existence no other republics, whose form of government afforded any feasible pattern for the government which the framers of the Constitution desired to set up. It is said that the framers of the Constitution were under the influence of Montesquieu and other political philosophers of the 18th century, but their real model was the English Constitution itself as it existed in the time of George III. This is clearly proven by the declaration of Madison in the Federalist (Law, Ed., Vol. I, p. 330) that "Montesquieu viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty." Madison, in that same letter, compares the philosophy of Montesquieu with the existing British institutions and then points out how nearly the framers of the Constitution followed the British model.

It must be borne in mind that the idea of separating the Executive Power from the Executive and making the former responsible to the legislature did not take concrete form in England until many years

after the American government was formed nor did the idea occur, so far as we are able to learn, to the framers of the Constitution. This is evident by Hamilton's paper in the Federalist (LXIX) wherein he compares the power of the King of England with that of the President down to the minutest detail. He shows how the powers of the king were transferred to the President, curtailed, however, in many particulars so as to give to each department of the new government a more equal share in its administration. In defending the veto power of the President in comparison with the power of the British monarch, Hamilton says:

"The King of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority."

On the subject of the treaty making power the framers of the Constitution again followed their British "model" simply restricting the exercise of the power. They had no idea of a treaty making power confided to a responsible ministry for Hamilton again says (ib.):

"Every jurist of Great Britain knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plenitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction."

It is clear, therefore, that the framers of the Constitution were governed in their work largely by Montesquieu's philosophy and his high regard for and close analysis of the British Constitution as it then existed. Their main purpose was to divide the powers of government into the three parts which Montesquieu regarded as essential to any republican form of government and to keep these three co-ordinate reservoirs of power as independent of each other as possible. The idea of separating the

Executive Powers from the Executive, so as to put these powers, without putting the Executive, under the control of the legislature was a further development of the English Constitution which probably never occurred to the makers of the Constitution. This idea of a responsible ministry is not without many distinct and clear advantages, and it is a matter of note that practically every new government formed in the last one hundred years has followed the English Constitution in this respect rather than the American Constitution.

NOTES OF IMPORTANT DECISIONS.

MAKING A CONTRACT FOR INSURANCE COMPANIES IN THE INTEREST OF THE INSURED. We hold no brief for insurance companies. We are well aware of the shrewd ness and care with which well-paid and competent counsel prepare every clause in the policy. We also know that for that reason perhaps and because of the fact that beneficiaries are not usually competent themselves to understand the conditions of the policies which they take out nor able to pay for competent advice in respect thereto, it is a rule of construction of insurance policies, that, where the language of the policy is inadequate, construction adopted will be that which is most favorable to the insured.

But conceding all of this we are unable to follow the Appellate Court of Indiana in its uncertain path toward a proper construction of a sprinkler policy which was the basis of an action in the recent case of Maxwell v. Spring. field Fire Insurance Co., 125 N. E. Rep. 645.

Loss from damage due to leakage in sprinkler systems installed in large factories, is a comparatively new branch of insurance. Such systems are installed at the suggestion of fire insurance experts to reduce the hazard of fire. In most cases it has introduced another and very serious hazard-loss from leakage. In these stand pipes water is held under high pressure ready to be released when the tempera ture rises to a certain point when the whole interior of the building is flooded.

But this is a risk that often falls in between other risks already covered by other insurance and it became the difficult duty of insurance counsel to so word these policies that it should

not make the companies insuring against leakage liable for losses that should properly come within the purview of a fire policy or, on the other hand, be properly compensated for under a tornado policy.

In the policy in this case the company properly bound itself under the general obligation "to pay indemnity for all direct loss or damage by sprinkler leakage, except as hereinafter provided." Every counselor knows that it is better to state the obligation of a contract or general terms with exceptions than to state the exact extent of the obligations in detail.

Among the seven exceptions to the contract were two which placed the liability of the insurer for losses midway between catagories covered by fire and tornado policies. They were as follows:

"Nor for loss resulting from the leakage of water, if such leakage is caused directly or indirectly by fire."

"Nor for loss caused by lightning (whether fire ensues or not), cyclone, tornado, windstorm, earthquake, explosion, or blasting."

It is quite evident that if a fire broke out in such a building the sprinkler system might very probably spring a leak even before the temperature reached the required point and damage goods by water. Such damage is clearly within the contemplation of the parties to the fire policy especially since the sprinkler system is installed at the suggestion of the fire insurance company and for the very purpose of reducing that hazard.

On the other hand, it is clear that a tornado might wreck the building, tearing the roof off and causing the sprinkling system to leak and add greatly to the damages caused by the storm. This was the state of facts in the principal case, the petition alleging that "on the 25th day of April, 1915, a severe windstorm, cyclone, or tornado swept over said city where said factory was located; that said storm tore a large part of the roof from that portion of the factory which is situated on the east side of Eastern avenue, and broke the pipes and attachments of the sprinkler system in the factory, so that the water and mud from the sprinkler pipes was precipitated and thrown in and upon the floors and upon the finished and unfinished products, stock, materials, and machinery in the building, thereby damaging the plaintiff in the sum of $21,500.

To this petition the trial court sustained a demurrer interposed by the defendant on the ground that such loss was not covered by the

policy. On appeal the Appellate Court of Indiana took a different view and sent the case back for trial on the theory that the leakage was within the purview of the policy and not directly due to the windstorm. On this point the Court said:

"The windstorm tore away a part of the roof of the factory, and broke the pipes and connections of the sprinkler system, and that constitutes a loss by windstorm. The extent of that loss could be ascertained by estimating the cost of restoring the roof, the pipes, and connections. But the damage to the merchandise caused directly by the water from the sprinkler system is an entirely different loss. For the purposes of this policy, the wind cannot be regarded as the direct and immediate cause of that loss, but must be regarded as the indirect and remote cause thereof, for the reason that the very hazard which makes this species of insurance possible intervened."

The exception (No. 4) provides in clear terms that the insurance company should not be responsible "for loss" caused by lightning, cyclone, etc. This does not mean loss of any kind but loss from leakage due to lightning, cyclone, etc. The term "loss" in a policy generally refers to the character of the loss insured against. In a fire policy it is a loss by fire; in a sprinkler leakage policy the term, "loss," unless otherwise defined, refers to loss by sprinkler leakage. In a policy of the latter kind the company insures generally against all losses from leakage except losses from leakage occurring in certain specified ways. Otherwise the exceptions as to lightning, fire, cyclones, etc.. would be as meaningless as if the exceptions related to wireless telegraphy or to the inhabitants of the moon. The policy is not concerned with losses other than those due to sprinkler leakage. To construe the exceptions as referring to losses in no sense within the general scope of the policy and denying their application to situations they were evidently designed to cover is to make a new contract for the parties.

IS LOSING PARTY IN A CASE ESTOPPED TO APPEAL BY COMPLIANCE WITH JUDGMENT?-It has not infrequently been declared that if a money judgment is paid or an order or decree complied with, there is an end of the proceeding. But it has been held in a recent case that the losing party can pay a judgment or comply with a decree and yet appeal his case. Josevig-Kennecott Copper Co. v. Howarth Co., 261 Fed. Rep. 567.

In this case the appellee in a suit against the appellant and its trustees for the specific performance of a contract, obtained a decree requiring the appellant to transfer to the ap

pellee 260,000 shares of the appellant's treasury stock. The appellee moved to dismiss, on the ground that since the decree the appellant has complied therewith and transferred the stock to the appellee, and the latter has sold and disposed of the same to a number of purchasers, who now own the same.

The Circuit Court of Appeals (9th Cir.) denied the motion of appellee on the ground that where the trial Court would not be powerless to afford the appellant substantial relief the appeal will be heard. The Court contended that on reversal, the court below could give the appellant adequate relief notwithstanding that the shares of stock have been transferred tc appellee. The Court said:

"The appellant by its affidavit shows that the said stock was issued and transferred to the appellee more than 90 days after the date of the decree, and when a supersedeas could not be had, and that this was done solely because of duress exercised by the appellee by means of threats to institute contempt proceedings for the appellant's failure to comply with the order of the court. There having been no judg ment for costs in the court below, the appellee argues that there is no longer a pending controversy between the parties to the suit. It is true that courts do not try academic questions, where neither party will be affected by the result; but by the decided weight of authority it is established that compliance with the judg ment or decree of a court by payment or performance is no bar to an appeal or writ of error for its reversal, particularly where repayment or restitution may be enforced or the effect of the compliance may be otherwise undone, in case of a reversal.' 3 C. J. 675."

There can be no doubt of the correctness of the Court's decision in this case. Sometimes a losing party is confronted with the alternative of complying with the judgment of the Court or giving a supersedeas bond, if he ap peals, so large in amount as to be prohibitive. If compliance with the Court's judgment prevented an appeal, not a few losing parties might be deprived of this valuable right. In Dakota County v. Glidden, 113 U. S. 222, 5 Sup. Ct. Rep. 428, the Supreme Court of the United States states the rule as follows:

"There can be no question that a debtor against whom a judgment for money is recovered may pay that judgment and bring a writ of error to reverse it, and if reversed can re cover back his money, and a defendant in an action of ejectment may bring a writ of error, and, failing to give a supersedeas bond, may submit to the judgment by giving possession of the land, which he can recover, if he reverses the judgment, by means of a writ of restitution. In both these cases the defendant has merely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal."

PROOF OF SUICIDE IN ACTION ON

INSURANCE POLICY.

A clause providing that the assurance company shall not be liable if the assured commits suicide within a specified period is a common one in policies of life assurance, and if a claim is made under such a policy the company must resist payment on the ground of suicide, if it wishes to rely on that defense.

When such a case comes to trial the Court must decide whether the evidence is sufficient to prove suicide or not, and in this connection the case of Dominion Trust

Company vs. N. Y. Life Insurance Company, decided by the Privy Council and just reported in the Canadian Law reports, is of vital importance, as insurance totalling $170,000 was involved, and the highest court in the British Empire lays down some important principles governing cases where suicide is sought to be proved.

In this case W. R. Arnold of Vancouver, Canada, died from a gunshot wound, either accidental or self-inflicted, on October 12, 1914, and less than a fortnight before he had taken out $100,000 insurance in the N. Y. Life Insurance Company. He also carried $50,000 in the Mutual Life of Canada, placed in November, 1912, and $10,000 in the Sovereign Life, taken out in October, 1912.

All these policies contained the usual clause exempting the company from liability if the assured committed suicide within two years from the date of the policy, and the three companies named resisted payment on the ground that Arnold had, in fact, died by his own hand on the 12th day of October, 1914.

First of all, the insurance companies attempted to prove, and did prove, a strong motive for suicide on Arnold's part. Lord Dunedin, in delivering the judgment of the Privy Council, refers to the evidence of motive in the following words:

"Arnold was in a quite hopeless financial position. Enjoying a salary of $14,000 a year, he owed at the time of his death about $1,000,000 which he had not the faintest chance of repaying. But, further, it was

not a case of simple indebtedness. He had been guilty of a long course of embezzlement in his position as managing director of the Dominion Trust Company. As he had confessed about a fortnight before to Hodges, the government inspector, who had been sent to investigate the affairs of the company, he had committed crimes for which he was liable to be sent to the penitentiary. He was on the brink of exposure and disgrace as well as of irretrievable financial ruin. He had made an appointment on the day on which his death occurred to meet Hodges, in order to give explanations and exhibit securities. He

knew that the result of such examination would be to confirm what Hodges already knew, and he knew that the presentation of Hodges' report to the government authorities meant the end so far as he was concerned. The counsel for the Trust Company was very anxious to demonstrate that there was no particular disclosure which on that particular day he had to dread-that Hodges knew the worst already. That, however, is not the point. The point is that the end was approaching, and was even nearer as Hodges' investigation proceeded and the time for sending in his report drew nigh. Further he was in absolute want of ready money. He owed small sums right and left, and he had no more than a few dollars in his bank account. In the whole circumstances, if ever there can be said to be motive for selfdestruction, such motive was present in this case."

Although the above quotation is a strong one, Lord Dunedin goes on to point out that "motive, however, can never be of itself sufficient. The utmost that it can do is destroy or attenuate the inference drawn from the experience of mankind that selfdestruction being contrary to human instincts is unlikely to have occurred. The proof of suicide must be sought in the circumstances of the death."

Coming to the circumstances of Arnold's death, it appeared that "Arnold had a small country ranch. He was not a sportsman, and had no experience of shooting nor any