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to favor and two to oppose the Constitution.

The Judicial V'eto.-The function of the courts in declaring void legislative acts which violate the limitations of federal and state constitutions has been regarded by many people with impatience, distrust, and open hostility.

It is commonly asserted that the power was unjustifiably assumed by the Federal Courts, as it was never intended by the framers of the Constitution that they should be allowed to exercise this function. In other words, John Marshall in 1803 without any express or implied warrant from the Constitution announced that the courts could declare laws unconstitutional.

Of the fifty-five members of the convention which framed the Constitution, only thirty-nine took an active part in the proceedings. Twenty-five of these, beyond the shadow of a doubt, believed that the courts should, and would have the power to declare unconstitutional acts null and void. So the courts in declaring laws invalid have only exercised a power it was the intention of the constitutional convention to give them.*

This was understood by the members of the Constitutional convention and of the ratifying conventions in the various states. From 1778 to 1787 there were at least eight states in which laws were held to be unconstitutional, so this was no principle conceived in the "diabolic" brain of the "archimp, John Marshall." And before 1803, when the famous case of Marbury v. Madison occurred, in which Marshall said the courts could declare laws unconstitutional, there were nine Federal precedents which justified Marshall in making that state

ment.

(4) For specific proof of this and the following statements see a study by the author in the American Law Review, September-October, 1917.

The truth is, the radical claims simply cannot, even when supported in part (and wrong deductions are often drawn from correct statements) by the writings of nonSocialists, stand the light of the facts.

Was the Constitution Forced Upon the People?-Jack Carney's paper "Truth" (shades of Diogenes!) on September 19, 1919, printed an editorial on Constitution. Day, saying that "it is a mockery for us to even mention Constitution Day, much less celebrate it."

Carney, the Communist, then said: "After the Constitution had been formed, the next step was to have it ratified by the people. Out of a population of 3,000,000 not more than 120,000 were entitled to vote for those who were to constitute the state conventions that were to consider the Constitution. Due to the fact that property qualifications shut out the working class of

the cities and the debtors of the back country." Again: "It was forced upon the people of this Republic by another trick, namely, that of granting the vote to those who possessed property and allowing only those who had property to vote for its ratification or rejection."

An examination of the facts brought out in Beard's "An Economic Interpretation of the Constitution of the United States," the book quoted by Broms and other agitators, brings out some mighty interesting facts -facts not nearly so damaging as the general claims made by Beard and the radicals.

Suffrage and the Constitution.-On page 250 Beard says that 160,000 voters "expressed an opinion one way or another on the Constitution." This is one-third more than Carney admits-but why should a paper named "The Truth" be asked to substantiate any statements it makes? Anyway, such papers believe that 90 per cent fiction and 10 per cent facts make much more interesting reading.

Beard also brings out some very interesting stuff on this question of "property qualifications" mentioned by Carney." (1) The states generally adopted just the same qualifications already imposed on those who voted for members of the lower branch of the state legislatures. (2) New York was the only state where no property qualifications were used in voting on delegates to the ratifying convention. (3) "Nothing like the same proportion was disfranchised as would be today under similar qualifications." (4) "Dr. Jameson estimates that probably one-fifth of the adult males were. shut out in Massachusetts, and it would probably be safe to say that nowhere were more than one-third of the adult males disfranchised by the property qualifications."

No restrictions in New York; only onefifth disfranchised in Massachusetts; not more than one-third in any state disqualified this is very far from supporting claims such as Carney's that the Constitution was adopted because the great mass. of the people were not "entitled to vote." He says only 120,000 were so entitled; actually 160,000 did vote, and many, many more than one-third in any state disqualisample of the kind of lies spread by "The Truth" and kindred radical publications.

Why did only 160,000 vote for delegates to the state conventions? Beard says (p.

thank our lucky stars that these people didn't go to the polls! In Boston," for instance, 2,700 men were entitled to vote-but only 760 turned out to pass upon the question of adoption of the national Constitution; half as many as voted for governor at the next election.

Why does not the Socialist inform you that of the 160,000 who did go to the polls 100,000, five of every eight, voted in favor of the Constitution? (Beard, p. 250.)

Who Opposed the Constitution?-Says Beard: "The debtors everywhere waged war against the Constitution." Why? "The debtors knew that they would probably have to settle their accounts in full and the small farmers were aware that taxes would have to be paid to discharge the national debt if the Constitution was adopted." How did this national debt arise? From the expenses of the Revolutionary War. Many patriots invested their all in government securities to enable this country to become free. We owed money to France and Holland. For one, I applaud those Americans who voted for the Constitution and to pay the just debts of this country. Personal and national accounts should be paid in full.

We are also told that opposition to the Constitution came "from the areas in

242): "Far more were disfranchised | which debtors had been formulating paper

through apathy and lack of understanding of the significance of politics. It is a noteworthy fact that only a small proportion of the population entitled to vote took the trouble to go to the polls until the hot political contests of the Jeffersonian era." Yet the Socialists and Bolshevists of America register a mighty wail because the people too apathetic to vote and those not understanding the questions they would have. voted on did not go to the polls and select delegates to ratify or reject the Constitution of the United States. We should

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Yet the Socialist, parlor and cellar, wants us to waste our sympathy on these two classes who wished to avoid honest payment, and to believe that because the Constitution was not defeated in their interests that it is, therefore, a scheme of Satan, represented in the United States by such men as Washington, Franklin, Hamilton and Madison.

Advocates of the Constitution.-Beard" informs us that "large security holders," meaning the holders of government bonds, "must have formed a very considerable dynamic element, if not the preponderating element, in bringing about the adoption of the new system." Men with "actual economic advantages at stake" were "the leading champions of the new government." Well, what of it? Does this prove that the new government was a bad thing? One trouble with our Socialist friends is that they can't imagine people doing anything contrary to their economic interests, simply because of a desire for good government, from altruistic motives of any kind. Because the men who held government bonds, and had risked their money to free this country from the yoke of a hated oppressor, wanted to make them worth 100

cents per dollar of face value, the agitators

want us to believe that the Constitution they favored was, according to Carney, "framed expressly for the ruling class."

The truth compels us to say, however, that Beard fails to prove that the leaders in the movement for a stronger government were influenced by their financial interests rather than by a desire to promote the public welfare.

In the Constitutional Convention the six chief leaders (according to Beard) in the movement for a strong central government were Madison, Hamilton, Wilson, Washington, Gouverneur Morris and Charles Pinckney. These six held government bonds to the stupendous sum of $21,046. George Washington, with a fortune of

(9) P. 290.

about half a million, had only $6,246 of these bonds.

The leading opponents were William Patterson, John Dickinson, Gerry, Luther Martin, Ellsworth, and W. S. Johnson. These men held $87,979.90 of government bonds (Beard's own figures). One of them, Gerry, is believed to have held much more than the $30,000 he is known to have owned. The six chief opponents of the Constitution held four times the amount of government bonds that the six leading advocates owned.

These figures certainly do not prove a lack of patriotic endeavor on the part of the men trying to solve the dangers of the period.

Conclusion.-Political interests, as well as economic interests, were at stake in the formation of a strong government for this country. I wonder if what the Socialists really object to is not that such a really strong and efficient government was established that they are having more difficulty in overthrowing it than they anticipated? During the days of the Articles of Confederation following the Revolutionary War political government became as disorganized as did the financial policies, and

as paralyzed as the trade situation. If this nation were to survive and prosper a strong and cohesive government was necessary. Just such a government was established.

The wisdom of a policy or movement is determined by its results. The American Constitution when weighed by results with any other organ of government, the wide world over, need fear no comparison and no equals.

Americans must wake up and demonstrate by facts the untruths and misrepresentations spread broadcast by the agitator. Constant reiteration of statements is effective, and we must see that untrue statements regarding our government do not go unchallenged.

Minneapolis, Minn.

NOEL SARGENT.

MORTGAGE-FUTURE ADVANCES.

KUHN v. SOUTHERN OHIO LOAN & TRUST

CO.

Supreme Court of Ohio. Jan. 27, 1920.

126 N. E. 820.

(Syllabus by the Court.)

A mortgage, duly recorded, given for definite future advances, which the mortgagee is obligated to make, is entitled to priority for the full amount of such advances over a subsequent mortgage, recorded after the former one, though prior to the making of such future advances. Spader et al v. Lawler, 17 Ohio 371. 49 Am. Dec. 4 61, distinguished.

MERRELL, J. The question to be determined is whether a mortgage for future advances which the mortgagee obligates himself to make is entitled to priority in distribution to a later mortgage, recorded after the former one, but prior to the making of the future advances or part thereof.

It is the contention of plaintiff in error that his mortgage, though later in time of execution and record than the mortgage on the same prop erty to defendant in error, is postponed to the latter only to the extent of advances actually made at the time his (plaintiff in error's) mortgage was placed on record. Such record, it is argued, is notice with respect to which subsequent advances under the earlier mortgage must be taken to have been made. and to which they are to be postponed. This position is based upon the case of Spader et al. v. Lawler, 17 Ohio, 371, 49 Am. Dec. 461, which presentea a state of facts differing from the present case chiefly in that the mortgage was given to se

cure ·

"any other sum or sums of money which the said Bonsal may be owing, or indebted in, to the said Lawler."

It was held that notes given by Bonsal to Lawler, and secured by the mortgage referred to, issued after the recording of Bonsal's later mortgage to Spader, would be postponed to the lien of the Spader mortgage. In deciding the case the court made it quite clear that it proceeded upon the theory of giving full effect to the recording statutes. Read, J., speaking for the court, asks at page 379:

"Of what does a mortgage with a clause for future advances advise a subsequent mortgagee?"

And later, page 280, as if in answer to the query, states:

"Such clause (for future advances- can only be tolerated in any sense upon the ground that it advises subsequent mortgages or purchasers that future advances were contemplated, and enables him by inquiry to ascertain the extent of the incumbrance."

The mortgage here in question fulfills the conditions thus expressed, and apparently au least takes the case out of the authority of Spader v. Lawler. Certain it is the actual decision in the above case was made with reference to future advances, neither the amount nor the purpose of which was specified in the instrument. Moreover, there was not involved in that case the question of future advances which the mortgagee was under obligation to make.

In the instant case, the situation is radically different. The record of the earlier mortgage was notice to the world that the mortgagee therein had obligated itself to loan the mortgagor a certain sum upon the faith of the title as it then was. Upon what principle, then,

of equity or public policy, can it be said that such mortgagee must again search the records before making each advance to the mortgagor? The search would be a vain thing, since the advance or further loan would remain obligatory, whatever the state of the title disclosed.

On the other hand, the grantee in the later mortgage has notice by the record that the proposed security for the later mortgage loan is already incumbered, not merely by way of contingency or expectancy, but for a definite purpose under a fixed obligation. Under such circumstances, the junior mortgagee will not be heard to urge what may be termed a speculative priority to such advances under the senior mortgage as turn out to have been made subsequent to the recording of the Junior mortgage. Indeed it may be said with accuracy that where the senior mortgagee has bound himself to make advances for a clearly defined object, he immediately becomes a bona fide purchaser to the full amount of his contractual liability, exactly as if the entire consideration had passed on the execution and delivery of the mortgage. 1 Jones on Mortgages (7th Ed.) § 370.

In the present case the record does not disclose an obligation in terms on the part of

the mortgagee to advance to the mortgagor the amount specified in the instrument. However, the purpose of the loan, as stated in the mortgage itself, was "to improve the premises described (and) to pay off prior incumbrances thereon," and it is expressly agreed between the parties that "the funds secured by this mortgage may be paid out by the mortgagee as provided in section 8321--1 of the General Code of Ohio;" that is to say, to mechanics and materialmen. Under these stipulations, and in the absence of other evidence, an inference of fact arises that the mortgagee obligated itself for the purposes and in the amount stipulated.

The present case, therefore, falls within the application of the principles above stated. The authorities in this country on this subject, otherwise in considerable conflict, support the reasoning here given with almost entire unanimity. Included are those jurisdictions where the case of Spader v. Lawler, supra, has been followed. Ladue v. Detroit & Milwaukee Rd. Co., 13 Mich. 380, 87 Am. Dec. 759; Boswell v. Goodwin et al., 31 Conn. 74, 81 Am. Dec. 169, and Moroney's Appeal, 24 Pa. 372.

For the reasons assigned, the judgment is affirmed.

Judgment affirmed.

NICHOLAS, C. J. and JONES, MATTHIAS, JOHNSON, and WANAMAKER, JJ., concur.

NOTE-Mortgage for Present and Future Advances Obligatory in Their Nature.-The instant case holding that a first mortgage for present and future advances retains its priority over subsequent mortgage, though this be taken before the future advances are made, if there is an obligatory contract for the future advances, has found support in many cases.

Some of the cases which hold to this view proceed upon the theory that the prior mortgage is not affected by constructive notice of the record, as this affects only subsequent incumbrances. Tapia v. Demartini, 77 Cal. 383, 19 Pac. 641, 11 Am. St. Rep. 288; Schmidt v. Zahrndt, 148 Ind. 447, 47 N. E. 335; Bunker v. Barrow, 93 Me. 87, 44 Atl. 372.

But it has been held that the rule as to mortgagee not being bound by recent notice is not by any means universally recognized. The latter rulings go upon the theory that as a mortgage is merely security for payment of money it can have no effect on third parties unless the record discloses what is actually due. Spader v. Lawlor, 17 Ohio 371, 49 Am. Dec. 461; Stone v. Welling, 14 Mich. 514; Wicklin v. Betts Spring Co., 11 Ore. 405, 5 Pac. 1, 50 Am. Rep. 477.

In Ladue v. Detroit, etc., R. Co., 13 Mich. 480, 87 Am. Dec. 759, it was said by Christiancy, J.. that "the instrument can only take effect as

a

mortgage or incumbrance from the time when some debt or liability shall be created, or some binding contract is made which is to be secured by it. Unti! this takes place, neither the land, nor the parties, nor third persons are bound by it. It constitutes of itself no binding contract. Either party may disregard or repudiate it at his pleasure. It is but part of an arrangement merely contemplated as probable, and which can only be rendered effectual by the future consent and further acts of the parties. It is but a kind of conditional proposition, neither binding nor intended to bind either of the parties, till subsequently assented to or adopted by both."

We do not see how it can have the necessary mutuality of a contract, unless the mortgagee i bound to proffer a certain amount of money at a certain time and the mortgagor is bound also to accept it. And it seriously may be doubted whether a corporation has any power thus to bind itself under ordinary charter powers. The obligation is largely speculative in its nature, or might be.

In McClure v. Roman, 52 Pa. St. 458, there was an agreement to protect mortgagees "in any future debts mortgagees may incur for any use," and the Court said: "It is clear, therefore, that any future liability if incurred by either of the obligees, would not be by any contract under which they were obliged to incur them, but would be of an entirely voluntary character. It was said this agreement came under the ruling in Bank of Montgomery County's Appeal, 12 Casey 170, where it was said of a mortgage that: "Its object was to secure not only present but future advances by the Bank of Montgomery County, which future advances they were under no contract to make, but which was at their own option to make or not, as they thought proper."

In Gilliam v. Barnes, 123 Mich. 119, 82 N. E 38, the Ladue case supra was distinguished by saying the mortgage in that case was to indemnity for any indorsements mortgagees "might make for the mortgagor and for any advancements they might make him," but in the case at bar "the amount named in the mortgage was a definite amount, payable at a definite time: so the subsequent mortgagees were advised fully of the conditions."

In line with the Ladue case is Babcock v. Bridge, 29 Barb. 427.

But in Jones on Mortgages, §8373, the rule that a recorded mortgage expressed to cover future advances has priority, is said to be well supported, if it contains enough to show a contract between the parties that is to stand as a security to the mortgagee for such indebtedness as may arise between the parties and record thereof imparts notice to subsequent incumbrances. There are a number of cases cited, among which are those cited in the second paragraph of this note.

It seems to me that the cases to the contrary are the better reasoned. As it is there is enough uncertainty in the record as to what and for how much it really stands for. Our recording laws ought to require a periodical showing on this, or a mortgage may stand to the end just as it was first given.

C.

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