Page images
PDF
EPUB

tion.- Clark v. Equitable Life Assur. Soc., U. S. C. C. of App., Fourth Circuit, 118 Fed. Rep. 374.

124. LIFE INSURANCE-Suicide.-Only policies of insurance issued on the assessment plan after insurance company obtained its certificate are relieved from provisions of Rev. St. Mo. 1879, § 5982, declaring that suicide shall be no defense to a suit on the policy.-Knights Templars' & Masons' Life Indemnity Co. v. Jarman, U. 8. S. C., 23 Sup. Ct. Rep. 108.

125. LOGS AND LOGGING-Contract of Sale.-A contract for the sale of all the timber on certain land, the purchaser to have two years to remove it, does not authorize severing any timber standing on the land after the two years has expired. - Null v. Elliott, W. Va., 42 8. E. Rep. 173.

126. MANDAMUS County Canvassing Board.-Mandamus will not lie to require a county canvassing board to recanvass returns and exclude certain votes, because returned under a law that is claimed to be unconstitutional.-Sharpless v. Buckles, Kan., 70 Pac. Rep. 886.

127. MANDAMUS-Ineffectiveness of Writ.-A proceed. ing for a mandamus should be dismissed, where it is made to appear by the relator, before trial, that the time has passed when the writ could have any practical effect, if issued.-United States v. Norfolk & W. Ry. Co., U. S. C. C. of App., Fourth Circuit, 118 Fed. Rep. 554.

128. MANDAMUS-Necessary Parties.-Where notes are given to one person and a mortgage to secure them to another, the mortgagee is a necessary party to an action to foreclose.-Swenney v. Hill, Kan., 70 Pac. Rep. 868.

[blocks in formation]

130. MASTER AND SERVANT Contract.-The invalidity of a contract exempting a railroad employer from liabil. ity for injuries to the employee, who is a citizen of Texas, when urged as a defense to a suit for injuries in a federal court in Texas, held not affected by the fact that the injuries occurred in Mexico.-Mexican Nat. R. Co. v. Jackson, U. S. C. C. of App., Fifth Circuit, 118 Fed. Rep. 549. 131. MASTER AND SERVANT - Photographs of Wreck. In an action against a railway company for injuries sustained by a fireman in a collision with another train, the admission in evidence of photographs of the wreck held proper. Southern Pac. Co. v. Huntsman, U. S. O. C. of App., Eighth Circuit, 118 Fed. Rep. 412.

132. MASTER AND SERVANT Warning Servants. master had a right to assume that his employees, being competent, would not be negligent; and it was not his duty, on employing plaintiff, to inform him of possible or probable dangers in case they were negligent. Klos v. Hudson River Ore & Iron Co., 79 N. Y. Supp. 156.

133. MECHANICS' LIENS-Mortgages.-Where mechanics' liens are acquired on buildings incumbered on lots, the trust deed is the first lien on the land, and the mechanics' liens are first on the buildings.-Hudson v. Barham, Va., 43 S. E. Rep. 189.

134. MINES AND MINERALS 1 Forfeiture.-The clause of forfeiture in an ordinary oil lease is for the benefit of the lessor, and no act of the lessee can terminate the lease under the forfeiture clause without the lessors' concurrence. Henne v. South Penn Oil Co., W. Va., 43 S. E. Rep. 147.

185. MORTGAGES Deed. Parol evidence that a deed absolute on its face was intended as a mortgage is inad. missible in a suit at law. - Billingsley v. Stutler, W. Va., 43 Atl. Rep. 96.

186. MORTGAGES-Default of Interest.-A tender of the interest due on a mortgage within the specified time held to preclude an exercise of the option given the mortgagee to declare the whole debt due on a default in the pay. ment of interest.-Schieck v. Donohue, 79 N. Y. Supp. 233. 137. MORTGAGES Injunction. -A mortgagee has a right to an injunction to prevent the removing from

brewery a refrigerating plant, which act would pre vent its operation and result in a loss to the business.Schmaltz v. York Mfg. Co., Pa., 53 Atl. Rep. 522.

138. MORTGAGES-Foreclosure.-Where a mortgagee is in possession, and foreclosure is barred by limitations, resort must be had to an action to redeem from the mortgage debt.-Kelso v. Norton, Kan., 70 Pac. Rep. 896.

139. MUNICIPAL CORPORATIONS - Marriage of School Teacher. Female public school teacher entitled to cer. tificate of salary, despite her marriage in violation of by-laws of school board of Kings county. - People v. Maxwell, 79 N. Y. Supp. 174.

140. MUNICIPAL CORPORATIONS - Opening Street. - In awarding damages for injuries caused by the opening of street, the jury may consider the effect on the market value of the land, in view of future street improvements. -De Benneville v. City of Philadelphia, Pa., 53 Atl. Rep.

[blocks in formation]

142. NEW TRIAL-Discretion of Court.-Granting a new trial at the same term the verdict was rendered is a matter of discretion, from which an appeal does not lie.Bird v. Bradburn, N. Car., 42 S. E. Rep. 936.

143. NUISANCE - Contingent Danger.-The drilling of a well on adjoining land in close proximity to plaintiff's producing well cannot be enjoined on the danger of ignition of gas by the fires used in drilling the other well. -Pope v. Bridgewater Gas Co., W. Va., 43 S. E. Rep. 87.

144. PARTNERSHIP-Pretended Corporation. Persons who, pretending to be officers of a pretended corporation, purchase goods in its name and on its behalf, promising to pay therefor, are liable as partners at common law. Worthington v. Griesser, 79 N. Y. Supp. 52.

145. PARTNERSHIP-Rights of Partners.-Injunction to prevent a firm execution creditor from continuing the business after purchase at execution sale denied at suit of one of the judgment debtors. Green v. Tuchner, 79 N. Y. Supp. 143.

146. PERJURY-Materiality of Testimony.-An information charging defendant with perjury while a witness in his own behalf on a trial for crime will not be quashed on the ground that his acquittal shows that the testimony he gave was true.-State v. Carey, Ind., 65 N. E. Rep. 527. 147. PRINCIPAL AND AGENT-Action for Money Loaned. -A principal, whose money is loaned by an agent, may sue the borrower though the latter had no knowledge of the agency when he made the loan.- Kitchen v. Holmes, Oreg., 70 Pac. Rep. 820.

148. PRINCIPAL AND SURETY Indemnity for One Surety.-One about to become a surety with others can stipulate with the principal, without the knowledge of the other, for a separate indemnity for his own benefit. -McDowell County Comrs. v. Nichols, N. Car., 42 S. E. Rep. 938.

149. PUBLIC LANDS-Priority of Grants. Where there are two grants by the state covering the same land, the second grant conveys no title. Stewart v. Keener, N. Car., 42 S. E. Rep. 935.

150. PUBLIC LANDS-Trespass.- A defendant, sued for willful trespass in cutting timber from public lands, may show that he acted under advice of counsel, in support of a plea of good faith in mitigation of damages.United States v. Mullen Fuel Co., U. S. D. C., D. Mont., 118 Fed. Rep. 663.

151. RAILROADS-Negligence. A person using a public railroad crossing is not bound to assume that the company will negligently back a motionless train against her.- Meeks v. Ohio River Ry. Co., W. Va., 43 8. E. Rep.

118.

152. RAILROADS - Unprotected Platform.-A man employed to deliver the mail at night at a railway station, knowing that the platform was unguarded by any rail,

[blocks in formation]

154. RECEIVERS - Appointment. It does not follow that, because an injunction lies in a suit between hostile titles to land to restrain irreparable damage, a receiver for the land will be appointed. - Freer v. Davis, W. Va., 48 8. E. Rep. 172.

155. RECEIVERS-Compensation -Where a creditor secured the consent of the debtor and other creditors to his appointment as receiver by agreeing to act without compensation, none should be allowed. - Polk v. Johnson, Ind., 65 N. E. Rep. 536.

156. RECEIVERS-Costs and Expenses. An order discharging a receiver appointed to harvest a crop sown by an outgoing tenant, fixing the liability of the parties for costs and expenses, held not erroneous.- Horn v. Bohn, Md., 53 Atl. Rep. 576.

157. REFERENCE-Correction of Judgment.- Where a judgment of the court at special term is at material variance with the report of the referee, the proper method of correction is by motion in such court.-Shrady v. Van Kirk, 79 N. Y. Supp. 79.

158. REFORMATION OF INSTRUMENTS-Contract of Sale. -Equity cannot reform a written contract expressive of the intent of the parties, except for mistake, accident, undue advantage, or some other equitable ground.— Null v. Elliott, W. Va., 43 S. E. Rep. 173.

159. REMOVAL OF CAUSES-Motion to Remand.-An action for personal injuries, commenced in a state court by service of summons, and removed by defendant before the filing of a complaint, will not be remanded because the complaint subsequently filed prays for damages in less than the jurisdictional amount. Coffin v. Philadelphia, W. & B. R. Co., U. S. C. C., S. D. N. Y., 118 Fed. Rep. 688.

160. SHERIFFS AND CONSTABLES- Free Bills. A constable is liable on his bond for officers' fee bills put into his hands for collection where the parties have promised to pay such bills. State v. Barnes, W. Va., 43 S. E. Rep. 131.

[ocr errors]

161. SPECIFIC PERFORMANCE Parol Agreement. -A parol agreement to devise real estate will not be specifically enforced, unless the proof be clear as to the nature and specific character of the contract. — Braum v. Ochs, 79 N. Y. Supp. 100.

162. SPECIFIC PERFORMANCE-Parol Gift of Land.- To entitle a purchaser to specific execution of a parol contract for the sale of land, the contract must be definite, and part performance must have been made in pursuance of the contract.-Stone v. Hill, W. Va., 43 S. E. Rep. 92.

163. SPECIFIC PERFORMANCE -Venue. An action to compel the specific performance of an agreement to convey land held an action in personam, to be brought in the county where the defendant resides, under Civ. Code, § 47.-Close v. Wheaton, Kan., 70 Pac. Rep. 891. 164. SPECIFIC PERFORMANCE Verbal Contract. Where the part performance of a verbal contract of lease consisted only of improvements for which com. pensation could be made in money, equity would not decree specific performance, Henley v. Cottrell Real Es tate Ins. & Loan Co., Va., 43 S. E. Rep. 191.

[blocks in formation]
[ocr errors]

167. TELEGRAPHS AND TELEPHONES Construction of Contract. The respective rights of a telegraph and railroad company, on the termination of a contract between them for the construction and operation of telegraph lines, considered and determined.-St. Paul, M. & M. Ry. Co. v. Western Union Tel. Co., U. S. C. C. of App., Eighth Circuit, 118 Fed. Rep. 197.

168. TELEGRAPHS AND TELEPHONES — Failure to deliver.-In an action for delay in delivering a telegram, the sender held not entitled to recover special damages for loss of work 'alleged to have resulted therefrom.Western Union Tel. Co. v. Pallotta, Miss., 32 So. Rep. 310.

169. TENANCY IN COMMON - Ejectment.-A tenant in common may maintain ejectment against a third person. Shelton v. Wilson, N. Car., 42 S. E. Rep. 937.

170. TRADE-MARKS AND TRADE-NAMES-Sapolio.-The trade-name "Sapolio" held infringed by the use of the word "Sapho" as the name of a similar article, in connection with such similarity in the packages as to deceive ordinary purchasers.-Enoch Morgan's Sons Co. v. Whittier-Coburn Co,. U. S. C. C., N. D. Cal., 118 Fed. Rep. 657. 171. TRIAL-Province of Court and Jury.-The sending of the jury to the pleadings for the matters in controversy, where the pleadings contain important and intricate averments, for some of which no proof was offered, was material error.-Stevens v. Maxwell, Kan.. 70 Pac. Rep. 873. 172. TRIAL-Renewal of Motion.-The refusal to strike out incompetent testimony cannot be assigned as error, where the court stated that it would be expunged unless other testimony was introduced thereafter to render it competent, and the motion was not renewed.-Bailey v. Warner, U. S. C. C. of App., Eighth Circuit, 118 Fed. Rep.

395.

173. TRIAL-Sufficiency of Evidence.-A party who does not move for the direction of a verdict in his favor thereby admits that there is some evidence upon each material issue which should properly be considered by the jury.-Freese v. Kemplay, U. S. C. C. of App., Eighth Circuit, 118 Fed. Rep. 428.

174. TRUSTS—Extinguishment. —A deed of a trustee to beneficiaries followed by adverse possession held to extinguish the trust and the trustee's title.-Taft v. Decker, Mass., 65 N. E. Rep. 507.

175. UNITED STATES MARSHAL Credibility of Witness. The mere fact that a witness for the defendant in a proceeding for deportation is himself a Chinese person does not render him an interested witness within the rule which permits interest to be considered as a discrediting circumstance.-United States v. Lee Huen, U. S. D. C., N. D., New York, 118 Fed. Rep. 442.

176. VENDOR AND PURCHASER · Vendor's Lien.-One who took a mortgage on land, with knowledge that a portion of the price therefor had not been paid, took subject to the vendor's lien. -Harter v. Capital City Brewing Co., N. J., 58 Atl. Rep. 560.

177. WITNESSES-Prosecuting Attorney.—A prosecuting attorney may be a competent witness for the state in a criminal action. State v. Wilmbusse, Idaho, 70 Pac. Rep. 849.

178. WITNESSES-Refreshing Memory. A physician may properly refer to a memorandum made at a time of visiting a patient to refresh his memory as to the condition of the patient at the time of such visit.—Bailey v. Warner, U. S. C. C. of App., Eighth Circuit, 118 Fed. Rep. 395.

179. WITNESSES Statement of Physician.-Where a physician examines a person, it will be presumed that the relation of physician and patient exists, and that the information he obtained was for the purpose of enabling him to prescribe and act for the patient.-Munz v. Salt Lake City R. Co., Utah, 70 Pac. Rep. 852.

180. WITNESSES - Testimony in Foreign Tongue.-The fact that a witness testified in the foreign tongue is no ground for reversing a conviction, where it is not claimed that his testimony was not correctly interpreted.-Commonwealth v. Greason, Pa., 53 Atl. Rep. 539.

Central Law Journal.

ST. LOUIS, MO. MARCH 27. 1903.

THE INITIATIVE AND REFERENDUM AS VIOLATING THE CONSTITUTIONAL PROVISION GUARANTEEING A REPUBLICAN FORM OF GOVERNMENT.

We desire to call the attention of the profession to the articleof Hon. Thomas A. Sherwood in this issue on the Initiative and Referendum Under the Federal Constitution. Judge Sherwood, who for over thirty years was a member of the Supreme Bench of Missouri, is universally recognized as having been the most competent jurist that ever sat in that tribunal, especially on questions of criminal and constitutional law. His independence of thought, his clearness of reasoning and the eloquent and forceful expressions with which he clothed his arguments, has given him a place among the greatest of our state judges.

The question discussed by Justice Sherwood in this issue, while not yet hardly out of the realm of academic discussion, is approaching dangerously near the line where it will soon be a question for judicial construction.

In Oregon the system has just been inaugurated. In Missouri and several other states, constitutional amendments embodying this new idea are in various stages of adoption. Is this system contrary to the provision of the Constitution guaranteeing to every state a republican form of government? We confess the suggestion startled us, but the argument of Justice Sherwood offers opportunity for careful thought and meditation on this question.

WHAT IS A RESTRAINT OR MONOPOLY OF INTERSTATE COMMERCE?

The celebrated case of the United States against the Northern Securities Company was argued on appeal at St. Louis last week before Justices Caldwell, Thayer, Sanborn and Vandeventer of the Circuit Court of Appeals for the eighth circuit. The argument consumed three days and was replete with learning and sharp repartee, together with occasional flashes of wit and humor.

To understand fully the importance and nature of this suit we should have a clear idea

The suit

of the particular question involved. was instituted under what is commonly known as the Sherman anti-trust act. This act, however, does not prohibit trusts and monopolies in general, Congress under its enumerated powers having no authority to enact such legislation. The act was passed under the power granted to Congress to regulate commerce, and, as former Attorney-General Griggs said in his argument in behalf of the Securities Company, "the act cannot be extended beyond the limits of this power." The act therefore is directed against only two kinds of combinations,-first, those which attempt to restrain interstate commerce, and, second, those which attempt to monopolize any part of interstate commerce. These are two distinct things and a failure to differentiate between them will confuse the student of the questions involved in the important litigation which we have under consideration.

Probably it would be well to set out in full the two provisions of the Sherman Act on which the Securities Case is founded. The first section of the act is as follows: "Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states, or with foreign nations is hereby declared to be illegal." The second section provides: "Every person who shall monopolize, or attempt to monopolize, or combine, or conspire with any other person or persons to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor." Upon these two provisions of the act the government bases its right of action, making, in its petition, the following charges against the defendants: "A virtual consolidation under one ownership and source of control of the Great Northern and Northern Pacific Railway systems has been effected, a combination or conspiracy in restraint of the trade or commerce among the several states and with foreign nations formerly carried on by the defendant railway companies independently and in free competition one with the other has been formed and is in operation, and the defendants are thereby attempting to monopolize and have monopolized, such interstate and foreign trade or commerce to the great and irreparable damage of the people of the United States, in derogation of their common

rights, and in violation of the act of Congress of July 2, 1890, entitled 'An act to protect trade and commerce against unlawful restraints and monopolies.'

United States v. Trans-Missouri Freight Associations, 166 U. S. 313. There is no such agreement in the present case, or anything like it. The relation of the acts of these individuals to interstate commerce is comparatively remote and circuitious.

Whether, however, the Northern Securities Company falls within the purview of the second section of this act as being "a combination or conspiracy to monopolize any part of interstate commerce,' we believe to be a more doubtful question. Our individual opinion is that the government's contention under this section is well founded.

Whether the Northern Securities Company is a "combination or conspiracy in restraint of trade or commerce among the several states," is, in our opinion, not a doubtful question in view of the authorities. Under the decisions of the United States Supreme Court, the restraint of interstate commerce must be a direct restraint, as, for instance, in the case of United States v. Joint Traffic Association (1898), 171 U. S. 568, where the court held that where several interstate railroads come together and agree to maintain certain rates of transportation, this is a "direct restraint" within the meaning of the Sherman Act. But in this case the court set a limit to operation of this section of the act in the following words: "The Act of Congress must have a reasonable construction, or else there would scarcely be an agreement or contract among business men that could not be said to have directly or remotely some bearing upon interstate commerce." In the case of the Northern Securities Company we have merely the incorporation of a company by the state of New Jersey, empowered by its charter to buy and sell stock of any kind for purposes of investment. This, so far, is all that has been done or attempted to be done. There has been no attempt to fix rates of transportation, or otherwise to interfere with interstate commerce. The agent of the company went into the market and purchased shares of the Northern Pacific and Great Northern stock until they secured a majority of the stock of each. The company has done nothing but vote its stock and elect the directorates in each company in which they hold the majority of stock. There is no evidence of any attempt between the two roads themselves, which are still run independently, to come together and in any way restrain commerce, as by fixing the rates of transportation, and therefore, there can be said to be no direct restraint of interstate commerce. There was in each of To say that one person or corporation canthe three cases in which this section has al- not buy the majority interest in two interready been construed, an agreement dealing state railroads sounds unusual and unreasonspecifically with rates and prices affecting able, especially in view of the fact that this interstate commerce. United States v. Joint and other things, even more closely approxTraffic Association, 171 U. S. 577; Addys-imating a monopoly, have been practiced ton Co. v. United States, 175 U. S. 229; extensively and with increasing frequency

In the first place it is very evident that a "combination or conspiracy to monopolize any part of interstate commerce" is a more sweeping and inclusive declaration than a conspiracy to restrain commerce. "The federal government," says the Hon. Carman F. Randolph, in speaking of this case in the Columbia Law Review, “would not have interposed had the Northern Securities Company acquired stocks to any amount in any number of corporations not engaged in interstate commerce. In fact it acquired stocks in interstate railways. Still the government would not have interposed had it acquired minority interests in competing lines, or majority interests in connecting or unrelated lines. Such operations would have been viewed with indifference, as the acts of a company whose investments were not of federal concern. But the company acquired majority interests in the Great Northern and Northern Pacific Railways which, as we shall see, are in a position to compete for a part of interstate traffic, and this transaction has provoked the present suit." The question, therefore, is, does the fact that an individual or corporation obtains the majority interest in two competing railroad corporations having to do with interstate commerce, render such person or corporation amenable to the provisions of the second section of the Sherman AntiTrust Act? We are firmly convinced that it

does.

during the last ten years. And so, Hon. John W. Griggs, speaking for the defendants, made the astounding proposition to the court orally as well as in his brief that the "acquiesience by the government for more than eleven years in the actual merger and consolidation of many important parallel and competing lines of railroads and steamships engaged in interstate and international commerce, has given a practical construction to the act of July 2, 1890, to the effect that it was not intended to forbid, and does not forbid, the natural processes of unification which are brought about under modern methods of lease, consolidation, merger, community of interest, or ownership of stock." If that statement is true the Sherman anti-trust act is an absolute nullity and no power whatever exists in the federal government to curb the influence of monopolizing tendencies in interstate commerce.

traffic in the entire northwest have by a shrewd scheme been put under the absolute control of a few men who, under the guise of a New Jersey corporation, have pooled their interests and practically merged these two competing systems under one management. and, as stated in the learned argument of counsel for the government, the Northern Securities Company has acquired not only a majority of the capital stock of the Northern Pacific and Great Northern railroads but also, with them, by previous acquisition the control of the Burlington and Union Pacific roads, involving securities aggregating it alleged $3,700,000,000. If an individual or corporation has, by these immense holdings (and it undoubtedly has) the power to control interstate commerce in the northwest or of any other part of the country then it undoubtedly comes within the prohibition of the second section of the Sherman Act. But, some one will say, have not two compet

It is very evident that the vital and decisive question in this important case hinges on a proper and exact definition of the wording interstate railroad lines, or other instrumonopolize. The old Blackstone definition of monopoly as an "exclusive license or privilege allowed by the king" is not sufficient. In fact its application to the second section of the Sherman act would be absolutely meaningless. We regard Webster's definition as more satisfactory: "Monopolize" says Webster, "is the act of purchasing or obtaining possession of the whole of anything, with a view to appropriate or control the exclusive sale thereof." We believe only one change is necessary to make this an absolutely correct legal definition of the term, especially as used in this act, and that is the insertion of the word "power" in place of the word "view." This change would only be following the repeated decisions of the Supreme Court that as regards the provisions of the Sherman Anti-Trust Act, the intent with which the defendants formed the alleged combination or conspiracy, is immaterial, as the court will look only on the result of their agreements, and if this gives them the power to do what the Act prohibits it will avail the defendants nothing to say that they did not intend to use the power thus obtained by them. Under the definition, therefore, as thus modified, the Northern Securities Company is clearly a combination to monopolize a part of interstate commerce. The two greatest and sole competing railroad lines engaged in interstate

ments of interstate commerce, the right to merge or consolidate? We can see nothing on which such agreements are justified in view of section 2 of the Sherman Act. And the fact that these agreements have been common and the nullification of them at this late day may have a most disastrous effect on business, while quite an effective argument on the side of expediency, is not one to be addressed to the ear of a court of justice. Indeed, it not infrequently happens that under some conscientious public official, many an old statute is unearthed and enforced to the consternation and undoing of many violators of the law who thought themselves secure by reason of its negligent enforcement under previous administrations. We do not believe that this contention, which, both in oral and written argument, has been pressed so earnestly upon the court, should have any influence in turning away the court from its evident duty to give life and vitality to a statute, which, while existing for the protection of the whole people, has been permitted to sleep while hungry cormorante have preyed upon the very life-blood of the country's commerce, until excited by their desire for more blood, they are ready to grapple at the throat of the government itself and defy its power to do anything to effectively protect itself.

« PreviousContinue »