NOTES OF IMPORTANT DECISIONS

PLEADING AND PRACTICE-AMENDING AD DAMNUM CLAUSE BINDING ON SURETY ON RETURN BOND IN REPLEVIN.-The case of Bierce v. Waterhouse, 31 Sup. Ct. 241, on writ of error to the Supreme Court of Hawaii presents the questions above indicated.

It seems that in a prior case (Bierce v. Hawkins Trustee, 205 U. S. 340) the supreme court reversed the Supreme Court of Hawaii, which reversal had its effect in a judgment in replevin against defendant, he principal in a return bond in replevin.

Upon the surety being sued on the return bond the trial court held that as the ad damnum clause had been changed by amendment from $15,000 to $22,000 and judgment was rendered after the territorial courts had been reversed for the latter amount, he claimed that the necessary legal effect of the amendment was to relieve the surety on the return bond. The trial court held against this contention, but this holding was reversed by the Hawaiian Supreme Court. The Federal Supreme Court reversed the Hawaiian Supreme, and sustained the trial, court.

It is said as to this: "The only possible objection lay in the question whether the plaintiff was estopped from laying the damages in excess of the value of the property stated in the original complaint or affidavit. There are cases which hold that, in the replevin action, the plaintiff having himself fixed the value of the property claimed by an affidavit, is estopped thereby from showing that it is of less value, if he failed in his suit, though defendant may show if he can, that it was of greater value. *** But we are not disposed to think that a plaintiff in such a suit may not show, especially when, as here, the defendant upon a return bond was suffered to retain the possession, that he had mistakenly undervalued the property." Then the court goes on to observe that: "One who becomes a surety for the performance of the judgment of a court in a pending case is represented by his principal and is bound by the judgment against his principal within the limits of his obligation." Further along it is said that this principle is subject to there being no fraud or collusion.

It is easy to perceive that the principal could be made to respond for whatever might be the actual value of the property, the possession of which he retains by virtue of the return bond. Certainly, however, a surety upon such bond is advised at the time he goes upon the bond that the plaintiff claims its

actual value does not exceed that stated both in the original ad damnum clause and in the affidavit to obtain a writ of replevin. By stating an undervaluation his own bond is reduced--presumably a benefit to himself-and both defendant and his surety are led to execute a bond to retain possession. If plaintiff had stated $22,000 in his affidavit, defendant might have been content with this as an admission and have cheerfully surrendered possession. Plaintiff, however, avoided such admission, until defendant having elected to retain possession, there was no danger in making it, or at least this was greatly minimized.

We are in the situation of the court in not finding any authority precisely in point, but it is easy to see that a surety might be misled by an undervaluation in an affidavit, without which no writ for possession could issue at all. This writ and the bond behind it are the proximate cause of the return bond and we do not see why a plaintiff could thus be allowed to bind himself in no way as to value when to prosecute his suit he must swear to value. A surety on plaintiff's bond it seems to us, would not stand in so favorable a light as one on a return bond, because defendant would not, then, have committed himself on the question of value.

if a petition for rehearing is denied, the denial ought to relate back, as certainly it does relate back if it is granted. Where it is denied, the court in substance says: Our judgment, as rendered stands, and we pronounce the attempt to open it wholly abortive. It is not so much a question of power by Congress as what Congress intended.

OF

CURATIVE STATUTES-EFFECT LEGISLATION TO VALIDATE CONTRACTS WHICH HAVE BEEN ADJUDGED INVALID. -In 1874 an act was passed which provided that no foreign corporation should do business until it should have complied with certain provisions and later there was added the requirement that it should register in the office of the auditor general annually certain statements. Decisions of Pennsylvania court were that all business transactions without compliance by a foreign corporation with these statutes were unlawful. A federal circuit court ruled that non-registration by a corporation which had sued, authorized a judgment in favor of defendant. Later the Pennsylvania legislature passed an act validating contracts declared unlawful because of these statutes. This corporation again brought suit, this time in the state court, and it was claimed that under the faith and credit clause of the constitution the federal circuit court judgment should be given effect as a bar to the new suit. West Side Belt R. Co. v. Pittsburg Construction Co., 31 Sup. Ct. 193.

The opinion by Justice McKenna notices the ruling of the state supreme court, that the validating "act makes no distinction between contracts which have been litigated and those which have not been litigated," and notices what it said about the circuit court judgment not being rendered upon the controversy between the parties but "based exclusively on the plaintiff's disability to maintain the action," be cause of non-compliance with Pennsylvania statutes. Therefore, there was no principle of res judicata at stake.

But the faith and credit clause was invoked to protect a judgment in favor of the defendant in a suit upon the same contract.

Justice McKenna cites several cases of the supreme court where curative acts were sustained where it was claimed their effect was to divest "vested rights and to impair the obligation of a contract." One showed that an act validating deeds of married women was used to avoid a judgment in ejectment rendered against a party because of a defect in a deed relied on for title. Watson v. Mercer, 8 Pet. 88. In another ejectment case title was cured after a former judgment. Satterlee

v. Matthewson, 2 Pet. 380. In two later cases mortgages were validated by curative statutes. Gross v. Mortg. Co., 108 U. S. 477; Ewell v. Daggs, ibid. 143. In the latter case it was said by Justice Matthews, "that the right of a defendant to avoid his contract is given to him by statute, for purposes of its own and not because it affects the merits of his obligation; and that whatever the statute gives, under such circumstances, as long as it remains in fieri and not realized by having passed into a completed transaction, may by a subsequent statute be taken away."

Nothing apears here as to any one except original parties and all that is definitely decided is that in faith and credit cases one can look behind the judgment to the entire record to see what was adjudicated and adjudication, in respect to such clause, does not prevent what was in fieri from being still so considered.

CONSTITUTIONAL

LAW PENALIZING INSURANCE COMPANIES FOR BELONGING TO TARIFF ASSOCIATION TO FIX RATES. -The Supreme Court deems it the exercise of a minor power by the state, which can forbid combination among insurance companies to fix rates, to provide that in case of loss the insured may recover an additional per cent. and upon liability arising under a policy. German Alliance Ins. Co. v. Hale, 31 Sup. Ct. 246.

Justice Harlan, sustaining the view of Alabama Supreme Court, says: "We can well understand that fire insurance companies, acting together may have owners of property practically at their mercy in the matter of rates, and may have it in their power to deprive the public generally of the advantages flowing from competition between rival organizations engaged in the business of fire insurance. In order to meet the ends of such combinations or associations, the state is competent to adopt appropriate regulations that will tend to substitute competition in the place of combination or monoply. Regulations having a real, substantial relation to that end, and which are not essentially arbitrary cannot properly be characterized as a deprivation of property without due process of law."

While it is true a regulation of this kind has its aim to displace combination and substitute competition, it may be seriously questioned whether it really can generally achieve such a result. The Justice says: "Those means may not be the best that could have been desired, but the court cannot, for any such reason, declare them illegal or beyond the power of the state to establish."

ments at the polls, independent of the Legislature; and they also reserve, for use at their own option, the power to approve or reject, at the polls, any Act, or item, section, or part of any Act of the Legislature." "The first of these reserved powers is the Initiative. Under this power ten per centum of the qualified electors shall have the right to propose any measure, and fifteen per centum shall have the right to propose any amendment to the Constitution."

"The second of these reserved powers is the Referendum. Under this power the Legislature, or five per cent of the qualified electors, may order the submission to the people at the polls of any measure, or item, section, or part of any measure, enacted by the Legislature, except laws immediately necessary for the preservation of the public peace, health, or safety, etc., etc."

"The veto power shall not extend to Initiative or Referendum measures approved by a majority of the qualified electors." And then under Article Six, entitled, "Removal from Office, Recall of Public Officers," Section One provides:

"Every public officer in the State of Arizona, holding an elective office, either by election or appointment, is subject to recall from such office by the qualified electors of the electoral district from which candidates are elected to such office * * and a petition containing twenty-five per centum of the vote cast at the last general election will set the machinery of removal into operation."

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The above are portions of some of the more radical features of Arizona's proposed constitution. This brings us to the question, "What Constitutes a Republican Form of Government ?"

Webster says: "A republican form of government is one in which the people select those who are to make the laws, and is radically different from a pure democracy in which the people collectively and as their own original act, make the laws, and whenever, under our American system of republican government, a state undertakes to destroy the representative system, and in

stall in its place, as the law-making power, the people, either acting in mass meetings or enacting laws by ballot in their original capacity, it undertakes to do an unconstitutional thing, which is void." "A Republic is a State in which the sovereign power resides in a whole body of the people, is exercised by representatives selected by them-a State, a Commonwealth, in which the exercise of the Sovereign power is lodged in representatives elected by the people. In modern usage it differs from a Democracy or democratic State in which the people exercise the powers of Sovereignty in per

son."

If this definition of republic and repub-. lican form of government is to be taken as the standard, then Arizona is attempting to establish a democracy within the boundaries of this federal republic, for Section One of Article Three, Legislative Department, | Initiative and Referendum, deprives the legislative body of every vestige of power to legislate. The section so declares in unqualified terms;-see the last three lines of Paragraph One of the above Section One, which read as follows:

"And they (referring to the people) also reserve, for their own option, the power to approve or reject at the polls any Act,.or item, section, or part of any Act of the Legislature, and they reserve the power to propose laws and to enact such laws, independent of the Legislature as they desire."

The above powers reserved to the people destroy every vestige of power of the legislature and render Arizona a democracy, if Webster's definition is correct. Every bill that can be formulated into law by the legislature can be undone by the people en masse, or by initiative petition, which amounts to the same thing, and en masse they can perform every act possible for the legislature to do, unless it be to confirm some of the governor's political appointments, thereby bringing the reserved powers strictly within the rule of the above definition, of undertaking to do "an unconstitutional thing."

It is true, the makers of the proposed instrument attempt to dodge the blow by

enacting, "This section shall not be construed to deprive the legislature of the right to enact any measure," yet the section does exactly the things the makers say shall not be done, and the legislature, or legislative body, simply becomes a sterile thing-an excrescence, possibly ornamental, but useless.

Webster's Dictionary is not the only source for definition of "a republican form." The law writers have also attempted to say what constitutes such a government.

"A government administered by representatives chosen or appointed by the people or by their authority; a government by the people, through representatives appointed by them to various departments, executive, legislative, judicial, as provided either by direct vote or through some intervening officer or body by them selected and appointed by direct vote for the purpose; a government which derives all its power directly or indirectly from the great body of the people, and is administered by persons holding their offices through pleasure for a limited period, or during good behavior; a State in which the sovereign power resides in the whole body of the people, and is exercised by representatives selected by them."1

There is nothing in this definition indicating that laws enacted directly by the people, regardless of representatives, are laws emanating from a government republican in form.

In a pure democracy there were no representatives for legislative purposes, at least none were needed, for the supreme power, while lodged in the people was exercised by them collectively-"Such was the government of Athens."

Justice Harlan, of the present supreme court, in one sentence as crisp as celery, has thrown a flood of light on this question. In an address delivered in December, 1907, discussing our form of government, he said: "It is a representative republic in which the will of the people is to be ascertained in a prescribed mode, and car(1) Cyclopedia of Law & Procedure, Vol. 34, page 1622.

ried into effect only by appointed agents, designated by the people themselves in the manner indicated by law."

There is no initiative or recall in this utterance, and no comfort for those who would destroy our form of government. The Supreme Court of the United States, in several opinions, has defined the term, "Republican Form of Government."

Duncan v. McCall was one of these cases. It arose in Maverick County, Texas. Dick McCall was indicted by the grand jury for the crime of murder; tried and found guilty. While the case was pending on appeal, he filed a petition for a writ of habeas corpus in the Circuit Court of the Western District of Texas, which court dismissed his petition; he then appealed to the Supreme Court of the United States, where the question was presented-"That he was deprived of his liberty, and was about to be deprived of his life, in violation of the Constitution of the United States"; incidentally the question arose as to what constituted a republican form of government, and the court, through Chief Justice Fuller, said:

"By the constitution, a republican form of government is guaranteed to every state in the union, and the distinguishing feature of the form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but while the people are themselves the source of political power, their governments, national and state, have been limited by written constitutions, and they have themselves thereby set bound to their own power as against the sudden impulses of mere majority."2

Another most interesting case was that of Minor v. Haffersett, opinion by Chief Justice Waite. Haffersett was a member of the registering board, and refused to register the name of Virginia L. Minor, a citizen of Missouri, as a lawful voter. She brought suit. A demurrer was directed

(2) See Duncan v. McCall, 139 U. S. 449; Lawyers Co-op. Ed. 35, p. 219.