violated that principle it would be our duty to pronounce the act unconstitutional, but in our opinion it does not. The element of commercial enterprise is entirely lacking. The purpose of the act is neither to embark in business for the sake of direct profits (the act provides that fuel shall be furnished at cost) nor for the sake of the indirect gains that may result to purchasers through reduction in price by governmental competition. It is simply to enable the citizens to be supplied with something which is a necessity in its absolute sense to the enjoyment of life and health, which could otherwise be obtained with great difficulty and at times perhaps not at all, and whose absence would endanger the community as a whole. In our opinion it is a proper and constitutional function of government either to itself provide such a necessity under these circumstances or to see to it that it is so provided as to bring it within the reach of the citizens.

[501] A similar inquiry based upon fears for the future was asked as to the limit of legislative power in Olmstead v. Camp, 33 Conn. 532, 89 Am. Dec, 221, and is there answered by the court in these words: "The question is asked with great pertinence and propriety, what then is the limit of legisla tive power under the clause which we have been considering and what is the exact line between public and private uses? Our reply is that which has heretofore been quoted. From the nature of the case there can be no precise line. The power requires a degree of elasticity to be capable of meeting new conditions and improvements and the ever increasing necessities of society. The sole dependence must be on the presumed wisdom of the sovereign authority, supervised, and in cases of gross error or extreme wrong, controlled, by the dispassionate judgment of the courts." This furnishes, we think, a safe and sufficient barrier between the Constitution and those who might attempt to break it down.

Nor is the fact that in operation the act may tend to lessen the profits of a few private dealers or even force them from business, a matter of consideration for the court. "It is for the legislature to determine from time to time what laws and regulations are necessary or expedient for the defence and benefit of the people, and however inconvenienced, restricted or even damaged, particular persons and corporations may be, such general laws and regulations are held valid unless there can be pointed out, some provision in the State or United States Constitution, which clearly prohibits them." Opinion of Justices, 103 Me. 506, 13 Ann. Cas. 745, 69 Atl. 627, 19 L.R.A. (N.S.) 422.

The brief opinion of Mr. Justice Holmes now of the Supreme Court of the United States, in 155 Mass. 607, supra, goes even

farther than the rule which we have laid down. He says: "I am of opinion that when money is taken to enable a public body to offer to the public without discrimination an article of general necessity the purpose is no less public when that article is wood or coal than when it is water or gas or electricity or education, to say nothing of cases like the support of paupers or the taking of land for railroads or public markets. I see no ground for denying the power of the Legislature to enact the laws mentioned in the questions proposed. The need or expediency of such legislation is not for us to consider."

[502] Our attention is further called by the plaintiffs to Baker v. Grand Rapids, 142 Mich. 687, 106 N. W. 208, but that case has no bearing upon the question at issue. There, the city government without authority from the Legislature transferred $10,000 from the contingent fund to the poor fund for the purchase and distribution of coal when the price of coal was rapidly rising and a combination had been formed to exist among the local dealers. A bill in equity was brought by one of these dealers to prevent the action, and was held not to be maintainable, first because the plaintiff being engaged in the unlawful combination did not come into court with

al

clean hands, second because the act had ready been done and the city had ceased to carry on the business, and third because the plaintiff was not damaged, This case certainly furnishes no authority for the plaintiffs; and no others in point have been cited.

On the other hand the very recent case of Holton v. Camilla, 134 Ga. 560, 20 Ann. Cas. 199, 68 S. E. 472, 31 L.R.A. (N.S.) 116 (1910), cited by the defendant is an important precedent by analogy. In that case the court held constitutional a legislative act authorizing the city to establish and maintain a municipal ice plant in connection with its water works. In discussing the question of public use after referring to water, light and heat, the court says:

"If a city has the right to furnish heat to its inhabitants, because conducive to their health, comfort and convenience, we see no reason why they should not be permitted to furnish ice. Is the difference between water in a liquid and in a frozen condition a radical one? Upon what principle could the doctrine rest that liquid water may be delivered by the city to its inhabitants by flowage through pipes, but that water in frozen blocks cannot be delivered by wagons or otherwise? If the city has the right to furnish its inhabitants with water in a liquid form, we fail to see any reason why it cannot furnish it to them in a frozen condition.

If the furnishing of ice to its inhabitants is conducive generally to their health, comfort and convenience it is certainly being

furnished for a municipal or public purpose." It requires no argument to prove that coal is as conducive to the health, comfort and convenience of the inhabitants of this northern latitude as is ice to that of the inhabitants of Georgia.

Without discussing the question further it is sufficient to say that [503] we see in this act of the Legislature a sign neither of paternalism nor of socialism. We do not regard it as a departure from previous legislation but in line with it, although perhaps one step further. The direction however is the same and the advance is caused by the development of a new want which has called for a new exercise of legislative power, not an exercise of new legislative power, and such an advance is both legitimate and commendable.

Our conclusion, therefore, is that the acts threatened by the defendant are not an invasion of the constitutional rights of the plaintiffs and that the plaintiffs are not entitled to a perpetual injunction as prayed for. Bill dismissed with costs.

NOTE.

Power of Municipality to Engage in Business of Furnishing Fuel to Inhabitants.

The holding of the reported case that a municipality may, on appropriate legislative authority, engage in the business of furnishing fuel to its inhabitants is contrary to the few decisions passing directly on the question. In Opinion of Justices, 155 Mass. 601, 30 N. E. 1142, 15 L.R.A. 809, it was said: "When the constitution was adopted the buying and selling of wood and coal for fuel was a well known form of private business, which was generally carried on as other kinds of business were carried on; and is now carried on in much the same manner as it was then. It was and is a kind of business which in its relations to the community did not and does not differ essentially from the business of buying and selling any other of the necessaries of life. Although all kinds of business may be regulated by the legislature, yet to buy and sell coal and wood for fuel requires no authority from the legislature, and requires the exercise of no powers derived from the legislature, and every person who chooses can engage in it in the same manner as in the buying and selling of other merchandise. We are not aware of any necessity why cities and towns should undertake this form of business any more than many others which have always been conducted by private enterprise, and we are not called upon to consider what extraordinary powers the commonwealth may exercise, or may authorize cities and towns to exercise, in extraordinary exigencies

for the safety of the state or the welfare of the inhabitants. If there be any advantage to the inhabitants in buying and selling coal and wood for fuel at the risk of the community on a large scale, and on what has been called the co-operative plan, we are of the opinion that the constitution does not contemplate this as one of the ends for which the government was established, or as a public service for which cities and towns may be authorized to tax their inhabitants." That decision was followed in Opinion of Justices, 182 Mass. 605, 66 N. E. 25, 60 L.R.A. 592, wherein, answering a question of the legislature as to its powers in an emergency, the court said: "Looking to the possible consequences of the emergency for which a remedy is desired, they can be divided into four classes: First, an increase of the number of those who fall into distress and are in need of relief from the public authorities, because they have no means to buy fuel at a greatly increased price. Secondly, increased expenditure, to their serious detriment, by those who have the means to buy. Thirdly, a possibility of a famine in fuel, such as to make it impossible reasonably to supply the needs of the community for comfortable living. Fourthly, a scarcity falling short of a famine but so great as to create widespread and general distress in the community which cannot be met by private enterprise. The first of these possible consequences does not call for legislation. Cities and towns now have ample power to provide in any reasonable way for paupers, whether it be by furnishing outof-door relief or by support in almshouses, and whether their need of relief is permanent or caused by a temporary condition. It is equally true that the second of these consequences does not justify taxation of those who do not have occasion to buy coal, for the benefit of those who do. The use of the money of taxpayers for such a purpose would not be a public use, but a use for the special pecuniary benefit of those who happen to be affected by the state of the coal market. The third possibility, that of an absolute famine in fuel because of the lack of a supply and the impossibility of obtaining a sufficient quantity reasonably to satisfy the needs of the community, would be a condition which would warrant the expenditure of the public money under appropriate legislation, if the legislature could discover a way through public agencies to supply the people. But it is difficult to see how the method referred to in the question could produce this result. If at any time there was an impossibility of obtaining supplies because the supplies were not here and could not be bought elsewhere, the opening of a city coal yard would furnish no relief. Such an establishment could not work a miracle of creation. In

reference to an anticipated possible famine, the procurement and storage of a supply in time of plenty might be a remedy or an alleviation if the dread anticipation should become a realty, but the maintenance of a city fuel yard to conduct the business of buying and selling in a time of plenty, would have no tendency to avert a famine, or to relieve from its consequences if one should come. We are not called upon to consider whether the legislature would deem it advisable, if it has the power, to authorize cities and towns to build storehouses in which to keep large quantities of fuel in anticipation of a possible famine. In regard to the fourth of the possible consequences, a condition in which the supply of fuel would be so small, and the difficulty of obtaining it so great, that persons desiring to purchase it would be unable to supply themselves through private enterprise, it is conceivable that agencies of government might be able to obtain fuel when citizens generally could not. Under such circumstances we are of opinion that the government might constitute itself an agent for the relief of the community, and that money expended for the purpose would be expended for a public use. We do not think that we are expected to determine whether there might be any other conceivable emergency which would call for an affirmative answer to this question. Considering the question only in reference to the accompanying bills and the conditions to which we suppose it relates, our answer is in the negative, except in reference to the fourth of the abovementioned possible consequences. As to that, we are of opinion that if the supposed conditions exist in any city or town, it may be authorized, under proper legislation, to sell fuel with the limitations above stated, so long as these conditions continue." Baker v. Grand Rapids, 142 Mich. 687, 106 N. W. 208, it was held that a city has no power, even in a time of coal famine ag. gravated by the action of a combination of dealers, to divert money from its contingent fund to buy coal to sell to its citizens. The court said: "The city authorities had the right, through the board of poor commissioners, to provide fuel for needy citizens, and under the then existing emergency, where a coal famine appeared imminent, were authorized to purchase such amount of fuel in any market, as, in their opinion, would be necessary for that purpose. A municipality, however, cannot enter into a commercial enterprise, such as buying and selling coal to its citizens as a business, thereby entering into competition with dealers in coal. Such use of moneys is held not to be for a public purpose. It appears that complainant at the time in question was in a combination with certain other coal dealers in the

In

city of Grand Rapids, in violation of the provisions of sections 11377-11379, 3 Comp. Laws, the purpose and intent of which was to enhance, regulate, and control the price of coal in that market, and that by reason of such unlawful combination the municipality acted as it did relative to supplying coal to some of its citizens. Such unlawful conduct of complainant would not excuse unauthorized action by the city, but would bear upon the question as to whether complainant came into a court of chancery with clean hands."

However in State v. Toledo, 48 Ohio St. 112, 26 N. E. 1061, 11 L.R.A. 729, quoted at length in the reported case, it was held that a municipality has the power to furnish natural gas to its inhabitants.

As to analogous municipal powers, see Holton v. Camilla, 20 Ann. Cas. 199 (municipal ice plant); State v. Lynch, Ann. Cas. 1914D 949 (municipal moving picture theater); Egan v. San Francisco, Ann. Cas. 1915A 754 (municipal theater).

WEBER ET AL.

V.

WEBER.

Arkansas Supreme Court-June 22, 1914.

113 Ark. 471; 169 S. W. 318.

Appeal Review of Questions of Fact, The court, in testing the legal sufficiency of the evidence of plaintiff to sustain a verdict in her favor, must give that evidence the highest probative value. Husband and Wife Alienation of Affections Wife's Right of Action. Under Kirby's Dig. § 6017, authorizing a wife to sue alone as to any separate property or for damages for any injury, a wife may maintain an action for damages for the alienation of the affections of her husband, whether the cause of action is denominated a personal or a property right.

[See note at end of this case.]

Same.

A verdict of $2700 damages for alienation of the affections of the plaintiff's husband reviewed and held not to be excessive. [See note at end of this case.]

Appeal from Circuit Court, Pulaski county: HENDRICKS, Judge.

Action for alienation of affections. Ida Weber, plaintiff, and Englebert Weber et al., defendants. Judgment for plaintiff. Defendants appeal. AFFIRMED.

[471] This suit was instituted to recover damages against appellants, for the alleged alienation of the affections of the appellee's husband, Joe Weber. The appellee married Joe Weber, the only child of appellants, in the city of Little Rock, on the 22d day of November, 1910, and they lived and cohabited together as husband and wife, until the 30th day of August, 1911, when there was born to them a male child. Thereafter appellee was taken seriously ill, and to such an extent that she lost the control of her mental faculties, and, at the instance and recommendation of the family physician, was, by prop. ér [472] order of the Pulaski County Court, adjudged insane and placed in the State Hospital for Nervous Diseases, for treatment.

Appellee and her husband, at the time of the birth of the child, and during their married life, lived immediately adjoining appellants, and her husband worked for them. Appellee was released from the hospital as cured, and soon thereafter disagreements arose between appellee and appellants, and the evidence is sharply conflicting as to the cause of these disagreements, and is especially so as to the extent to which appellants were responsible for the separation of appellee and her husband. According to appellee's version, appellants, without legal justification or excuse, brought about the separation, as a result of which appellee's husband took away their child, when it was only seven weeks old, since which time appellee had never been permitted to see the child. She recovered judgment in the sum of twenty-five hundred dollars, and, a motion for a new trial having been overruled, this appeal has been duly prosecut

ed.

Gus Fulk and E. B. Buchanan for appellants.

Henry C. Reigler and W. T. Tucker for appellee.

[474] SMITH, J., (after stating the facts). -A number of exceptions were saved at the trial both to the admission of evidence and the giving of instructions, and these exceptions have been considered by us; but we do not find any prejudicial error, or question of sufficient importance to require discussion. It is also earnestly insisted that the evidence is insufficient to support the verdict, but when appellee's evidence is given its highest probative value, as we must give it, when testing its legal sufficiency to support the verdict, we can not say that the evidence is legally insufficient to sustain the verdict, nor can we say the amount recovered is excessive.

[475] A question is raised, however, which is one of first impression in this State, and which has received our earnest consideration. This question is the right of the wife to main

tain an action for damages for the alienation of the affections of her husband.

There is conflict among the authorities as to whether this right of action existed in favor of the wife, or not, at common law, and although there are numerous cases which hold that she had no such right, the better view appears to be that she did. Common law causes of action for a personal injury to a married woman belonged to her; but the husband was required to sue with her to recover compensation because of her disability to sue. The husband's right of action abated at the death of the wife; but the cause of action survived to the wife and could be maintained by her after the death of her husband. Her right of action existed, but could not be set in motion unless her husband joined, and, by rea son of the disability of coverture, it remained in abeyance, and could not be prosecuted in her own name. Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L.R.A. 553; Smith v. Smith, 98 Tenn. 101, 38 S. W. 439, 60 Am. St. Rep. 838.

The case of Bennett v. Bennett, supra, is a leading authority on this subject, and the opinion in that case reviewed the authorities upon this question, and in upholding a judg ment in favor of the wife, it was there said: "We think the judgment appealed from should be affirmed, upon the ground that the common law gave the plaintiff a right of action, and that the Code gave her an appropriate remedy."

In 1 Cooley on Torts (3 ed. p. 475) it was said: "At least twenty States now hold that such an action may be maintained, some bas ing their conclusion upon common law prin ciples and some, more or less, upon the vari ous enabling statutes in favor of married women, which have been passed in recent years."

A number of cases support the wife's right to recover for the alienation of the affection of her husband, as an invasion of her personal rights, while other cases regard the wife's right to the consortium of her husband [476] as a property right. One of the leading cases taking this latter view is that of Jaynes v. Jaynes, 39 Hun 40, in which case it is there said: "These reciprocal rights may be regarded as the property of the re spective parties, in the broad sense of the word property, which includes things not tangible or visible, and applies to whatever is exclusively one's own." And it is there further said: "But as at common law, the husband and wife were regarded as one person, and her personal rights were suspended or incorporated with his, during coverture, so that if she were injured in her person or property, she could bring no action for redress without her husband's concurrence, and in his name as well as her own, she was

practically precluded from suing for damages caused by alienating the affections of her husband and enticing him away. Her disability in that respect, we think, has been removed in this State by legislation. A married woman may now, while married, sue and be sued in all matters having relation to her sole and separate property or for any injury to her person or character the same as if she were sole, and it is not necessary or proper to join her husband with her as a party in any action or special proceedings affecting her separate property. If we are correct in holding that the right which the plaintiff alleges was invaded by the defendant in this action was her separate property, the case is within the statutes referred to. If it be not property in the sense in which the word property is used in the statutes cited, it is a personal right, and, as the statutes extend to all injuries, whether to property, person or character, it seems sufficiently comprehensive to embrace an injury to the right in question."

In the case of Warren v. Warren, 89 Mich. 123, 50 N. W. 842, 14 L.R.A. 545, the wife's right to sue and recover damages for the alienation of the affections of her husband was said to exist under the statute which was set out in the opinion. It was there said: "Under the statutes of this State relative to the rights of married women, and the decisions of our own courts in relation thereto, the right of the [477] wife to bring this action, as well as all other suits to redress her personal wrongs, seems to me to be perfectly clear. The statutes provide: 'That the real and personal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterward become entitled, by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, and engagements of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised, or bequeathed by her, in the same manner and with the like effect as if she were unmarried.' How Stat. p. 6295.

"Actions may be brought by and against a married woman in relation to her sole property, in the same manner as if she were unmarried; and in cases where the property of the husband cannot be sold, mortgaged, or otherwise incumbered without the consent of his wife, to be given in the manner prescribed by law, or when his property is exempted by law from sale on execution or other final process issued from any court against him, his wife may bring an action in her own name, with the like effect as in cases of actions in relation to her sole property as aforesaid.' How. Stat. 6297.

"Under these statutes it has been held that a wife is entitled to and may sue for and re

cover in her own name damages for her personal injuries and suffering from assault and battery (Berger v. Jacobs, 21 Mich. 215; Hyatt v. Adams, 16 Mich. 180-198), and for injuries to her person through the negligence of another (Michigan Cent. R. Co. v. Coleman, 28 Mich. 440); also for slander (Leonard v. Pope, 27 Mich. 145). If the damages in such cases are her individual property, as expressly held in Berger v. Jacobs, I cannot see why, in reason and on principle, the damages arising from the loss of the society and support of her husband are not also her individual property. Surely, the support and maintenance which she is entitled to from her husband, and which she loses by his abandonment, is capable of ready and accurate [478] measurement in dollars and cents, and can be said to be a property right, which she has lost by the wrongful interference of the defendants. The loss of the society of her husband, and her mental anguish and suffering, are not easily ascertained when compensation is sought, and to be gauged by a money standard; but damages for such anguish and suffering are given, as best the jury can, and are permissible, in most actions of tort.

"There has never been any reason urged against the right of the husband to sue for the loss of the consortium of his wife, and if, as shown, the wife is now, under either the liberal letter or spirit of our marriage laws, entitled, as of her own property, to the damages arising from her personal injuriesthe injuries of her body or mind-there can be no good reason why she cannot sue for and recover damages for the loss of the consortium of her husband that does not equally and as well apply to the suit of the husband on account of the loss of her society. The wife is entitled to the society, protection and support of her husband as certainly, under the law, and by moral right, as he is to her society and services in his household.

"It is an old maxim, and a good one, that the law will never 'suffer an injury and a damage without redress.' Will the law aid the husband, and not help the wife in a like case? Not under the present enlightened views of the marriage relation and its reciprocal rights and duties. The reasoning that deprives the wife of redress when her husband is taken away from her by the blandishments and unlawful influences of others is a relic of the barbarity of the common law, which, in effect, made the wife the mere servant of her husband, and deprived her of all right to redress her personal wrongs except by his will."

In the case of Bennett v. Bennett, supra, the court discussed the nature of this action and treated it as of the nature of a personal injury to the wife, and it was there said: "An injury to the person within the meaning [479] of the law includes certain acts which