game specified during the closed season. The following is from the opinion of Sherwood, J.: "Section 3901, Rev. St. 1889, prohibits the killing of certain game at certain times of the year. Section 3902, Rev. St. 1889, makes it a misdemeanor for any person to 'purchase, have in his possession or sell any of the game birds or animals specified in the next preceding section, or any fresh pieces or parts of said animals, during the season when the catching and killing of same is prohibited, or shall purchase, have in possession or sell any of the game birds or animals caught or killed contrary to the provisions of said sections.' As shown by the very interesting and exhaustive opinion of Mr. Justice White in Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. Rep. 600: From the earliest traditions, the right to reduce animals feræ naturæ to possession has been subject to the control of the lawgiving power.' The exercise of this power has been definitely traced back, even as far as the time of Solon, who forbade the Athenians to kill game; and in France, as early as the Salic law, the right to reduce a part of the common property in game into possession, and consequent ownership, was regulated by law. Such regulations prevailed in every country in continental Europe and in England. Treating of this subject, Blackstone says: There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before, the property of such animals, feræ naturæ, as are known by the denomination of "game," with the right of pursuing, taking, and destroying them; which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. the first place, then, we have already shown, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing and taking to his own use all such creatures as are feræ naturæ, and therefore the property of nobody, but liable to be seized by the first occupant, and so held by the imperial law, even so late as Justinian's time.

* *

In

* But it follows, from the very end and constitution of society, that this natural right, as well as many others belonging to a man as an individual, may be restrained by positive laws enacted for reasons of State or for the supposed benefit of the community.' 2 Bl. Comm. 410. This prerogative of the king, as an attribute of government, recognized and enforced by the common law of England by appropriate, and oftentimes by severe, penalties and forfeitures, was vested in the colonial governments of this country, and when these governments threw off the yoke of the mother country that right of sovereignty passed to and was vested in the respective States. This sovereign attribute and power, as existent in the States of this Union, has often been exercised by them by passage of laws in the most of these States for the protection and preservation of game, and it seems never to have been

called in question. Numerous adjudications attest this fact. In such cases the common ownership of game, which otherwise would remain in the body of the people, is lodged in the State, to be exercised, like all other governmental powers in the State in its sovereign capacity, in trust for the benefit of the people, and subject, of course, to such regulations and restrictions as the sovereign power may see fit to impose. Such regulations appropriately fall within the domain of the police power of the State. In Ex parte Maier, 103 Cal. 476, 37 Pac. Rep. 402, it is said: The wild game within a State belongs to the people in their collective sovereign capacity. It is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or traffic or commerce in it, if it is deemed necessary for the protection or preservation of the public good.' Expressing the same view, it is said by the Supreme Court of Minnesota: 'We take it to be the correct doctrine in this country that the ownership of wild animals, so far as they are capable of ownership, is in the State, not as a proprietor, but in its sovereign capacity, as the representative and for the benefit of all its people in common.' State v. Rodman, 58 Minn. 393, 59 N. W. Rep. 1098. In Magner v. People, 97 Ill. 320, in passing upon the subject now under considera. tion, it is said: 'Stated in other language, to hunt and kill game is a boon or privilege, granted either expressly or impliedly by the sovereign authority, not a right inherent in each individual, and consequently nothing is taken away from the individual when he is denied the priv ilege, at stated seasons, of hunting and killing game. It is, perhaps, accurate to say that the ownership of the sovereign authority is in trust for all the people of the State, and hence, by implication, it is the duty of the legislature to enact such laws as will best preserve the subject of the trust, and secure its beneficial use in the future to the people of the State. But, in any view, the question of individual enjoyment is one of public policy, and not of private right.' This right of the States to provide and enforce regulations respecting the protection and preservation of game has received frequent recognition at the hands of the Supreme Court of the United States. Thus, in McCready v. Virginia, 94 U. S. 395, the power of the State of Virginia to prohibit citizens of other States from planting oysters within the tide waters of that State was upheld by this court. In Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. Rep. 559, the authority of the State of Massachusetts to control and regulate the catching of fish within the bays of that State was also maintained. See, also, Geer v. Connecticut, supra. and State v. Farrell, 23 Mo. App. 176, and cases cited; State v. Lewis (Ind. Sup.), 33 N. E. Rep. 1024. A statute of New York prohibited the kiliing or having in possession game birds of the kinds specified, after the 1st of March (Laws 1871, PP. 1871, 1677, ch. 721, §§ 7, 8, 33), and touching this

statute the court of appeals of that State observed: It is admitted in this case that the defendant had possession of game after the 1st of March, and the fact alleged, that it was either killed within the lawful period or brought from another State where the killing was lawful, constitutes no defense. The penalty is denounced against the selling or possession after that time, irrespective of the time or place of killing. The additional fact alleged, that the defendant had invented a process of keeping game from one lawful period to another, is not provided for in the act, and is immaterial.' And the validity of the statute was upheld. Phelps v. Racey, 60 N. Y. 10. That case is directly in point, and fully sustains the action of the trial court in adjudging the petition insufficient. Plaintiffs in their petition, when speaking of their purpose in preserving such game, say, in substance, that they intended that said game should be stored with defendant corporation during the 'closed season,' and withdrawn upon return of the 'open season.' The offense prohibited by section 3902 is a misdemeanor, and in such case the intention of the misdemeanant cuts no figure in the case, since in that class of crimes intention constitutes no element of the offense. It is the act done, and that alone, which violates the law, and the motive which prompts the violation is altogether dehors the crime committed. This point is illustrated by various adjudications respecting the sale of liquors to minors and the marriage of minors, supposing the parties in each case to be of age, etc. 1 Whart. Cr. Law (9th Ed.), pp. 35, 113, 115, §§ 23a, 88, and cases cited; Howell v. Stewart, 54 Mo. loc. cit. 404. In this case the statute makes no exceptions to the rigid rule which it prescribes. The acts therein mentioned are unconditionally and absolutely forbidden, and this is so because the legislature doubtless thought that the best way of accomplishing the result they desired and the only means of attaining it. They therefore resorted to arbitrary prohibition. Had scienter been required by the statute, its very object would have been defeated, as scienter would be in the majority of instances impossible of proof. 1 Whart. Cr. Law (9th Ed.). p. 117, § 88. It was to prevent the easy evasions of the statute that the law was passed in its pre-ent shape; and on this ground it is analogous to statutes prohibiting the manufacture or sale of oleomargarine. State v. Bockstruck, 136 Mo. 335, 38 S. W. Rep. 317, and it is the only ground upon which such enactments can be upheld. The end being granted, to-wit, the power of the legislature to enact a law for the protection and preservation of game, the means to effectuate that end. to-wit, the authority to prevent the law thus passed from being evaded, by prohibiting and making penal the possession of game after a certain period, follows as an indubitable corollary. Ex parte Marmaduke, 91 Mo. loc. cit. 262, 4 S. W. Rep. 91, and cases cited. Recurring to the petition, it shows on its face that plaintiffs contracted with defendant corporation for the commission of a misdemeanor. It is true the offense is but malum

prohibitum, but the consequences are the same as if the act were malum in se, since in principle there is nothing which should cause the result to differ in the former case from the latter. The law will not stultify itself by promoting on the one hand what it prohibited on the other, and will for this reason leave the parties to this suit where it finds them, unsanctioned by its favor, and unaided by its process. Kitchen v. Greenabaum, 61 Mo. 110. Therefore the doctrine announced in Sprague v. Rooney, 104 Mo. 360, 16 S. W. Rep. 505, overruling the former decision in same case in which was a dissent, applies here, and hence judgment affirmed."

CRIMINAL LAW-INDETERMINATE PUNISHMENT -CONSTITUTIONAL LAW.-The Supreme Court of Indiana, in the case of Miller v. State, 49 N. E. Rep. 894, considered the validity of the statute of that State, passed in 1897, known as the Indeterminate Sentence Law. It was held that a sentence for not less than 1 year, the minimum punishment, nor more than 14 years, the maximum punishment, for burglary, under the act, providing that where the jury find defendant guilty of a felony, and between the ages of 16 and 30, the court shall sentence such defendant to a reformatory for not less than the minimum nor more than the maximum time prescribed by statute, to be terminated by the board of managers of said reformatory according to its rules, does not inflict. cruel and unusual punishment, within Const. art. 1, § 16; that a provision of the act, requiring a. sentence to a reformatory for not less than the minimum nor more than the maximum time prescribed by statute, as punishment for the crime, to be terminated by the board of managers of said reformatory according to its rules, does not violate section 16 of the bill of rights, requiring the punishment to be proportioned to the nature of the offense; that a provision of the act, requiring the jury, in cases of felony where defendant is between 16 and 30 years, to simply find his age and the crime of which he is guilty, and placing the power of fixing the amount of punishment, within limits prescribed by the court, in the hands of the board of managers of the reformatory to which he is sentenced, does not deprive the accused of a trial by jury, as provided by Bill of Rights, § 13; and that a sentence of imprisonment which does not include disfranchisement, which must be fixed by the court, is not error of which defendant can complain. The statute provides that certain prisoners convicted of felony must be sentenced to a reforma tory for not more than the maximum sentence fixed by statute, the period of confinement to be determined by the board of managers according to the rules of said reformatory. Section 11 provides that the board may establish rules under which the convicts may go outside on parole to remain in legal custody of the board, and subject to be taken back. Section 12 provides for the keeping of a complete record by the board of the

prisoner's life, both in and out of the reformatory. Section 13 provides that after a prisoner has been one year on parole, and has given evidence that his final release is not incompatible with the welfare of society, the general superintendent shall make a certificate to that effect, and, after notice to all the managers, the board shall consider the case, and, when it shall find that said prisoner has done so, he will be entitled to his final discharge. It was held in this case that the act is not unconstitutional, as devesting the judicial department of its powers, as provided for by Const. art. 7, § 1, or as allowing persons charged with executive duties to exercise judicial functions, within Const. art. 3, § 1, since the power conferred on the board of managers is purely administrative.

USURY IN BONUS OR COMMISSION.

Loan companies, money brokers and others have frequently attempted, sometimes successfully, to obtain more than lawful profit upon money by charging fictitious commissions or exacting exorbitant boni for the benefit of the lenders. It is established among the usury laws that the contract is usurious if the lender of money receives a bonus in addition to legal interest, or if he knowingly allows his agent to receive excessive bonus or commission; or ratifies the act of his agent who has received such bonus or commission; or where he has conferred upon his agent general authority to conduct and supervise the business of lending. But if the agent represents the borrower and not the lender, their relations are purely contractual, and there is no law forbidding a borrower paying his own agent whatever he pleases. So where a bonus or commission is exacted by a third party without the knowledge of the lender, the latter is in no manner responsible therefor. At the outset it may be said, that where the bonus or commission, taken with the interest charged, does not exceed the highest rate of interest allowed by law, the contract is not usurious.1 Two American cases2 collide with this statement, but it is here submitted to the profession that they are in error and that these courts ran off on an ethical tangent.

1 Dey v. Dunham, 2 Johns. (N. Y.) Ch. 182; Mills v. Johnson, 23 Tex. 308; Brestle v. Mehaffie, 19 Pa. St. 117; Brown v. Scottish American Mtg. Co., 110 III. 235.

2 Musgrove v. Gibbs, 1 Dal. 216; Kirkpatrick v. Houston, 4 W. & Ser. 115.

Lender Accepting Bonus.-As above intimated it is usury for a lender of money to accept from the borrower profits in excess of the lawful rate of interest; and such usurious profits may consist of money, property, or other advantage gained by the lender. Thus, in the case of Harrison v. Stiles, it is held, that a secret agreement between a lender of money and the agent of a person desiring to borrow, that the lender is to receive one-half of the commission paid by the borrower to his agent, is usurious and void; and the borrower may refuse to accept the money without becoming liable to his agent for services in procuring the loan. So, a loan of money at the highest rate of interest allowed by the statute, induced by the borrower's promise that he would give to the lender valuable personal property, is usurious.5 But where the bor rower allows the agent to deduct a commis sion, which the agent delivers to the lender, who receives it upon the supposition that the agent represented the borrower, and as such, was entitled to a commission of which he voluntarily gave the lender the benefit, it was held that no usurious intention having been proved, the transaction was not usurious.

6

Lender Knowingly Permitting His Agentto Exact Illegal Profit.-In accord with the general law of agency, the lender who either authorizes or knowingly permits his agent to commit usury is chargeable therewith. There is no difference, in such cases, between the act of the principal or the lender, and that of the agent, as far as the effect upon the contract is concerned. Thus in the case of Meers

3 Pfenning v. Scholer, 43 N. J. Eq. 15; Phelps v. Montgomery, 60 Minn. 303, 62 N. W. Rep. 262; McBroom v. Scottish Mtg. & Land Im. Co., 153 U. S. 318, 14 Sup. Ct. Rep. 852; Anderson v. Smith, 103 Mich 448, 65 N. W. Rep. 615; Halderman v. Massachusetts Mut. Life Ins. Co., 120 Ill. 390, 11 N. E. Rep. 526; Hawkins v. National Life Ins. Co., 57 Vt. 591; Savings Bank v. Wilcox, 24 Conn. 147; Williams v. Fitzhugh, 44 Barb. (N. Y.) 321; Blymyer v. Colvin, 127 Pa. St. 44, 17 Atl. Rep. 865, 24 W. N. C. 315; Hyde v. Findley, 26 Miss. 468.

4 95 Ga. 264, 22 S. E. Rep. 536.

5 Hendrickson v. Godsey, 54 Ark. 155, 15 S. W. Rep.

193.

6 Grieser v. Hall, 56 Minn. 155, 57 N. W. Rep. 46%. See Wyeth v. Braniff, 84 N. Y. 627.

7 Thompson v. Ingram, 51 Ark. 546, 11 S. W. Rep. 881; Pearson v. Bailey, 23 Ala. 537; Sanders v. Wedeking, 47 Neb. 71, 66 N. W. Rep. 18; Bliven v. Lydecker, 130 N. Y. 102, 28 N. E. Rep. 625; Fowler v. Equitable Trust Co., 141 U. S. 384, 12 Sup. Ct. Rep. 1, Id. 141 C. S. 408, 12 Sup. Ct. Rep. 7. See 41 Cent. L. J. 156, 17

Cent. L. J. 102.

8

v. Stevens, where a father having money to loan referred an applicant therefor to his son who negotiated the loan and charged four per cent. of the principal as a commission; and who afterwards twice renewed the loan for $100 each time paid to him by the borrower, it was held that the transaction was usurious. So in South Carolina, in the case of Brown v. Brown, it was held that where a resident of the State agreed to pay a local attorney $1,500 to procure for him a loan of $75,000, which was done, and the foreign lender knew of the agreement, although not shown to have received any part of it, the transaction was tainted with usury. This case is open to

criticism for the reasons contained in the fol

lowing statements as to evidence. There must be proof that the party committing the usury is the agent of the lender,10 and the lender's knowledge and consent of the illegal act must also be proved." This knowledge may be shown by direct testimony or indirectly by evidence of circumstances." 12

Lender's Ratification.—Although the lender may be ignorant of the usurious contract of his agent at or before the time of its execution, if he subsequently learns of it and confirms it he must take the same consequences as if he had made the contract himself.18 But where an agent without the authority or knowledge of his principal exacted more than lawful interest from the borrower, the loan is not usurious; and the fact that the principal received the excess without knowing that it was paid as a usurious consideration for the loan, does not establish a ratification of the agent's conduct.14

General Authority in Agent.-If the money lender confers upon his agent the general authority to manage and control the lending business, he is presumed, in law, to know the

8106 Ill. 54, following Payne v. Newcomb, 100 Ill. 611, 39 Am. Rep. 69.

938 S. Car. 178, 17 S. E. Rep. 452. But see Coudert v. Flagg, 31 N. J. Eq. 394.

10 Marshalltown Bank v. Bonawitz, 47 Iowa, 322; Mesck v. American, etc. Co., 79 Ga. 23, 7 S. E. Rep. 265; Equitable Mortgage Co. v. Craft, 58 Fed. Rep.

613.

Baldwin v. Doying, 114 N. Y. 452, 21 N. E. Rep. 1007; McAleese v. Goodwin, 69 Fed. Rep. 759. 12 Thompson v. Ingram, 51 Ark. 546, 11 S. W. Rep 881; Hyatt v. Clark, 118 N. Y. 563; New England Mtg Security Co. v. Hendrickson, 13 Neb. 574.

13 Bliven v. Lydecker, 130 N. Y. 102, 28 N. E. Rep 625; Horkan v. Nesbitt, 58 Minn. 487, 60 N. W. Rep 182; McLean v. Camak, 97 Ga. 804, 25 S. E. Rep. 495. 14 Phillips v. Mackellar, 92 N. Y. 34.

course of the employment, and will be chargeable with all the acts of his agent pertaining to the business.15 Thus, in Texas Loan Agency v. Hunter, 16 the court said: "Where a lender authorizes his agent to make loans for him under a general agreement that he must look to the borrower for his compensation, and such agent effects a loan, and charges the borrower a commission, this will make the contract usurious, whether the lender knew of the charge or not (Fowler v. Trust Co., 141 U. S. 585, 12 Sup. Ct. Rep. 1); for this exaction is by the authority of the lender-the principal. Mortgage Co. v. Whaley, 63 Fed. Rep. 746; Dayton v. Dearholt (Wis.), 55 N. W. Rep. 147." This is clearly a just rule, and one which can seldom work hardships upon any of the parties, provided each perform their reasonable duties. The principal has the better opportunity for investigating and knowing the character of his agent; he may exact a bond or other security for his protection against the consequences of possible illegal acts by his agent, or he may, with due prudence, restrict the authority vested in his agent, and so provide that the public would ordinarily receive notice of the limitation. "These circumstances fully warrant an application of the legal maxim, that in vesting another with a lawful authority, a man may limit as strictly as he pleases; and if the party authorized do transgress his authority, though it be but in circumstances expressed, it shall be void in the whole act. But where a man is author and mover to another to commit an unlawful act, then he shall not excuse himself by circumstances not pursued."17

Agent of Borrower. The prospective borrower may employ an agent to represent him in obtaining a loan, and contract to pay for the services any price which may be mutually agreed upon. In such cases, if the lender is to receive no illegal advantage, and the borrower's contract be executed in good faith, there is no usury in it.18 Thus, in Philo v.

15 Anderson v. Vallery, 39 Neb. 626, 58 N. W. Rep. 191; Kemmit v. Adamson, 44 Minn. 121, 46 N. W. Rep. 327; Sherwood v. Roundtree, 32 Fed. Rep. 113; Matzenbaugh v. Troup, 36 Ill. App. 261.

16 (Tex. Civ. App.) 35 S. W. Rep. 399.

17 Wilkes v. Coffield, 3 Hawks (N. Car.), 28. See Bell v. Day, 32 N. Y. 165.

18 Culver v. Pullman, 59 Hun, 615, 12 N. Y. S. Rep. 663; Fisher v. Porter, 23 Fed. Rep. 162; George v. New England Mtg. Sec. Co., 109 Ala. 548, 20 South.

Butterfield, 19 where the facts in brief were that the agent of the borrower, without the knowledge of the lender, received from the borrower a commission amounting to enough to render the whole cost of the loan more than the lawful rate of interest, the court said: "I think that in such a case, as between the borrower and his agent, there is a substantive, independent contract, entirely different from any unlawful contract for money; and to connect such contract with that of the loan, would be to connect distinct and independent transactions with each other, and thereby make two contracts, each one of which may be fair and legal in itself, into one which is prohibited by law. It is not the purpose of the law to inflict a loss or punishment upon an innocent person who has not, by himself or his agent, participated in any transaction prohibited by law, nor by any employment on his part, afforded the means of infringing the law." It seems, also, that the fact that the lender had actual knowledge that the borrower's agent was to receive a particular sum as compensation for his services, does not affect the contract, where the lender receives no benefit from the sum so paid to the agent.20 The weight of reason favors this rule, but the American decisions do not agree upon it, many opposing it.21 It is sometimes difficult to determine whom the oleaginous entrepreneur really represents, the borrower probably thinking that he represents the lender, and vice versa. Such cases should ordinarily go to the jury on the proof."

22

Lender as Agent of Borrower.-Common reason, upon this subject, during modern years, has prevailed in the courts to the extent that there are now decisions holding that the borrower may employ the lender to perform certain valuable services in connection with the loan, and pay for those services. The

Rep. 331; May v. Flint, 54 Ark. 573, 16 S. W. Rep. 575; Halderman v. Massachusetts Mut. Life Ins. Co., 120 II. 390, 11 N. E. Rep. 526; Weems v. Jones, 79 Ga. 213, 13 S. E. Rep. 89; Weems v. American Mtg. Co., 86 Ga. 760, 13 S. E. Rep. 89; Telford v. Garrels, 132 Ill. 550, 24 N. E. Rep. 573.

19 3 Neb. 256.

20 Landis v. Saxton, 89 Mo. 375, 1 S. W. Rep. 359; Outtillie v. Waechter, 33 Wis. 255; Smith v. Wolf, 55 Iowa, 555; Atchison v. Chase, 28 Minn. 211.

21 Payne v. Newcomb, 100 Ill. 613, 39 Am. Rep. 69; Nichols v. Osborn, 41 N. J. Eq. 92, 3 Atl. Rep. 155; Bingham v. Myers, 51 Iowa, 397, 1 N. W. Rep. 613.

22 Hutchinson v. Hosmer, 2 Conn. 341; Stein v. Swensen, 46 Minn. 360, 49 N. W. Rep. 55.

theory, probably, is that ordinarily the lender owes the borrower no obligation other than to let him have the money at lawful interest when he has agreed to do so. Now, if the lender does additional valuable services, he should be compensated therefor as if he were a third person. Thus, there may be abstracts of title to be compiled and examined, traveling necessary, or funds to be transported." In Kihlholz v. Wolf,24 it was held that where the lender, at the request of the borrower, pays out of the money loaned, commissions and other expenses of third persons, as agents of the borrower in obtaining the loan, the transaction will not be thereby rendered usurious, unless such payments went to the direct benefit of the lender. St. Louis, Mo.

JAMES AVERY WEBB.

23 See Dowell v. Vannoy, 3 Dev. (N. Car.) L. 43. 24 100 Ill. 362.

CAN A MARRIED WOMAN RELEASE HER RIGHT TO DOWER IN LAND IN MISSOURI BY A SEPARATE CONVEYANCE?

The consideration of this question involves the construction of sections 2396 and 6864 of the Revised Statutes of Missouri, 1889. Section 2396 is is follows: "A husband and wife may convey the real estate of the wife, and the wife may relinquish her dower in the real estate of her husband, by their joint deed acknowledged and certified as herein provided." Section 6864 is as follows: "A married woman shall be deemed a feme sole so far as to enable her to transact and carry on business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined as a party." Section 2396 has, in substance, been the law of the State for more than seventy-five years, while section 6864 was enacted for the first time in 1889. Prior to that time it is beyond controversy that the law did not allow a married woman to relinquish ber dower by separate deed. This point has been de cided over and over again by the courts of this State, but this question has not arisen in any case involving the construction of section 6864. The case of Saunders v. Blythe, was decided in 1892 and the doctrine that a wife's separate deed is ineffectual to relinquish her dower is recognized, but that was a case in which the conveyance was made in 1886, so that the decision throws no light upon the question under discussion. It is unnecessary to refer to the Missouri cases on this subject further than to say that all those cases hold

1 112 Mo. 1.