Central Law Journal.

ST. LOUIS, MO., MARCH 8, 1918.

INQUIRY INTO ALL THE FACTS OF AN ALLEGED CONTEMPT IN THE FACE OF THE COURT.

In Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 24, 28 L. ed. 1117, Justice Miller, in a habeas corpus case, claiming release from imprisonment for contempt, said: "There can be no doubt of the proposition, that the exercise of the power of punishment for contempt of their orders, by courts of general jurisdiction, is not subject to review by writ of error or appeal to this court. * * * This principle has been uniformly held to be necessary to the protection of the court from insults and oppressions in the ordinary exercise of its duties, and to enable it to enforce its judgments and orders necessary to the due administration of law and the protection of the rights of suitors." Then he states that when an attempt is made by a court to punish for contempt in refusing to obey an order the court is alleged to have no authority to make, a petition in habeas corpus may make "inquiry into the cause of the restraint of his liberty."

Judge Taft in Ex parte Irvine, 74 Fed. 954, applying this rule, held that, though there might be appeal by one from an order adjudging him guilty of contempt, yet when habeas corpus is resorted to, the authority of the court to impose the punishment could be inquired into in a collateral way.

A recent decision by Missouri Supreme Court, in Ex parte Howell, 200 S. W. 65, in speaking of the claim of absolute verity of a judgment in direct contempt, says: "While the older authorities in other jurisdictions, from which the text writers deduce statements of principles, unqualifiedly apply the general rule of immunity from collateral attack to judgments of the character here in question, we hold otherwise. Here one convicted of direct attempt, in seeking relief through habeas

corpus, is not limited to an inquiry as to the convicting court's jurisdiction; but, if the truth of the findings upon which the judgment is based is denied in the petitioner's reply, inquiry may be made in regard thereto. To this extent we have, as has been done elsewhere, brushed aside the hard and fast rule which heretofore hedged about judgments for direct or criminal contempt, rendering them im mune from attack, and have authorized an inquiry to test the truth of their findings."

This principle ought ever to have been deemed sound and in a general, broad way even the older cases in American law very possibly never departed therefrom. It hardly is conceivable, that at any time in our history it has been true that a court of general jurisdiction could upon some ciaim having no pretense to foundation in fact, fine or commit a citizen for contempt, and he have no right to inquire into the authority of the court's action. But we hardly believe it to be true, that such inquiry should go any further than to ascertain whether there was a bald assertion of authority that does not exist. If facts are in dispute, or there may be different inferences in regard to facts, there is no reason to fear any denial of the right to enforce contempt, by courts in the exercise of their powers.

Thus, while we approve of the finding in the Howell case, that no contempt was committed, yet this is so because nothing was shown in the order making recital of the facts that showed any justification for the order by the court. It shows that counsel made an application they had the undoubted right to make and claiming that under the statute the very making of this application ousted the court of jurisdiction to proceed in the cause before it, they declined to continue in the case or to make any motion for a continuance of the cause to a later day. Without finding that they acted contemptuously or in any way as wanting in deference, the court yet said they "by their words, acts and gestures, offer and commit willful contempt in the

should remain unmarried during this period of service was merely an incident to the main object and purpose of the contract." In support of this holding there is cited King v. King, 63 Ohio St. 363, 59 N. E. 111, 52, L. R. A. 157, 81 Am. St. Rep. 635. Authorities also were cited of latitude allowed testators where perpetual celibacy is not imposed, as for say, until | beneficiary shall reach his or her majority, and it has been ruled that where services have been accepted and more mischief would result from denying than permitting recovery, the void provision will not be regarded.

It seems to us that there ought to be some accommodation, in an equitable way, at least, in such a contract. Contractual provisions of this kind in the securing of services ought not to have the same rigidity of application to them as in wills. There is no presumption that the parties intend to obtain what is of value and be obligated in no way to account therefor upon some principle of forfeiture, unless the contract is clear to that effect.

- ACTS IN

NEGLIGENCE EMERGENCY SUBSTITUTE FOR EFFICIENT COURSE.-In Kelch v. National Contract Co., 199 S. W. 796, decided by Kentucky Court of Appeals, there was a claim for alleged negligence in not immediately stopping machinery so that the life of an employe, who had fallen into a chute and was thereby carried into a river could have been saved.

The evidence shows that defendant was engaged in building a dam in the Ohio river and in connection therewith a coffer dam, and connecting the two was a sluiceway or chute, into which pumps emptied water. This water ran out in a swift current into which decedent fell and was carried out in the chute to the river some twenty feet below where he was drowned. Immediately one of the employes holloed to the engineer working the pumps supplying the chute to shut off the machinery, but the running water and the operation of the machinery prevented his being heard. As soon as the engineer could be made to hear he stopped the pumps, but he was not efficiently notified until after the foreman ordering the machinery stopped, took time to pick up a spike pole near the machinery to extend same to decedent struggling in the river. Decedent sank for the last time within two minutes from the time he fell into the chute.

Whether, if the foreman had given immediate notice, so as to stop the machinery, decedent might have been rescued does not very clearly appear. He was being borne down by water

in the chute and this would have occurred though the water had been cut off immediately, and his being in the river the cessation of the current through the chute hardly could have made any difference. At all events, however, the court speaks of the stop to pick up the spike pole as an act in an emergency, and as not proving the best way to effect a rescue. The court said: "They (the servants) believed that they had been heard when they halloed for the pump to be stopped. There was no time to be lost in waiting to see; what deceased most immediately needed was something upon which he could rely to prevent his sinking and to assist him in getting to a place of safety. The only available thing was procured and every effort made to accomplish with it the purpose intended. When it was found that such efforts were fruitless, with all reasonable dispatch the pumps were ordered to be stopped. Can it be said, under the facts of this case, that the agents or servants of defendants were guilty of negligence because forsooth they did not first see and procure the stopping of the pumps? We think not. To have thus consumed the time required may have been to no purpose after all and also may have been at the expense of a possible chance to save the life of the deceased, and the law does not demand in such emergencies, mathematical accuracy or conduct of exact calculation so as to fasten liability on the actor should he miscalculate as to the proper things to do and the order in which they should be done."

The general rule, stated in 23 Cyc. 434, is that: "If an act has to be performed in a brief period with no time in which to determine the best course, negligence cannot be predicated of it." If this were not so the rule more strongly would require plaintiff to show that stopping of the pumps would have been a probably more efficient method to pursue than to seek what was sought. At all events, there was a case where reasonable judgment was to be relied on, had there been no necessity to come to an immediate conclusion.

APPEAL AND ERROR-REVERSAL AS TO ONE OF TWO CONSPIRATORS AND AFFIRMANCE AS TO OTHER.-In People v. La Bow, 118 N. E. 395, decided by Illinois Supreme Court, it was held in a conspiracy case against two defendants tried jointly, that reversal and remand by Illinois Appellate Court as to one, as to whom error was committed in ruling on evidence, necessitated reversal as to the other, dissent by the chief justice being announced.

The reversal by the Court of Appeals being held to be final, it was said by Supreme Court: "From the evidence in this record it is apparent that the plaintiff in error was guilty of obtaining money unlawfully from these women. He was not charged in the indictment with that crime. He was charged with and convicted of the crime of conspiring with Shapiro to thus obtain money, and the transactions proven in which it was shown the money was obtained were admissible only as tending to prove the conspiracy and to characterize the crime with which defendants were charged. If Shapiro was not guilty of conspiracy or if there was a doubt as to his participation in a conspiracy with plaintiff in error, it must follow that plaintiff in error was not guilty, as that same error must be resolved in his favor. There is no evidence in the record of a conspiracy on the part of plaintiff in error with any one except Shapiro. In order to sustain a conviction for a conspiracy there must be more than one per son shown to be guilty."

It is the law that conspiracy to commit a crime is different from the consummated crime which is its object. U. S. v. Robinovitch, 238 U. S. 78, 35 Sup. Ct. 682, 59 L. Ed., 1211; Com. v. Ward, 92 Ky., 158, 17 S. W. 283. And where, as for example, husband and wife cannot be convicted of conspiring to commit an offense, each may be tried for committing a consummated offense. State v. Mann, 39 Wash. 144, 81 Pac. 561. It seems, therefore, to have been altogether unnecessary for these two defendants to have been jointly indicted, and had they been there would have been full notice with opportunity for defense. Where the essence of the offense is in the conspiracy this would be different. In case the essence is in the consummated crime, evidence of conspiracy to commit would be perfectly competent, or to show identity of an accused or the intent with which it was committed. In such a case there is such a relation between conspiracy and consummation as ought to allow the two things to be charged in one indictment with different counts. It would not

be a too liberal practice to allow a court to amend an indictment by adding a count for commission, where conspiracy is not the gist of the matter.

PRIVATE CONTRACTS AND STATE REQUISITIONS.

The recent judgment of the House of Lords in the case of Dick Kerr & Co., v. Metropolitan Water Board,' is a landmark in the development of the law as to when performance of a contract may be excused on the ground of impossibility of performance. The old rule of the common law that where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, even though performance has become unexpectedly burdensome or even impossible held sway in our courts until Lord Blackburn's judgment in the case of Taylor v. Caldwell, 1863,2 in which that eminent authority mitigated the rigor, of the old rule by the following pronouncement regarding it: "This rule is only applicable when the contract is positive and absolute, and not subject to any condition, either expressed or implied, and there are authorities which establish the principle that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fulfillment of the contract arrived some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done, then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the

That principle has been gradually extended and particularly during the war, its latest application being in the case of Dick Kerr & Co., already referred to. The facts of that case were briefly as follows: Just before the war began the defendants contracted to make a reservoir which was to be completed within six years. The contract contained a stipulation that, if by reason of any impediment the defendants. were delayed in the completion, the time might be extended by the plaintiff's engineer. The carrying on of the work was prevented by the Minister of Munitions, who, under his powers, caused the plant on the works to be removed. The Court of Appeal held that the interruption of the work thus caused was not such a temporary interruption as could be regarded as falling within the suspensory clause of of the contract. The House of Lords has now upheld the Court of Appeal. Wherefore it would seem that these suspensory clauses in contracts entered into before the war, and no doubt in many contracts entered into since the war, have not the effect of keeping contracts on foot where the object of the contract is in substance frustrated by unforeseen circumstances making performance as contemplated by the parties impossible. "It is obvious," remarks one legal contemporary, "that cases of this kind all go to discredit the old dogmatic rule that an absolute contract must be performed, or damages paid for non-performance.”

Notwithstanding this considerable modification of the common law the legislature recognized that in case of direct interference by the state with private contracts under the necessity of war requirements, the situation was not sufficiently met by the common law and consequently there was

other person of complying with any requirement*** of the Admiralty or the Army Council under the Defence of the Realm Consolidation Act, 1914, or this Act, or any regulations made thereunder, that necessity is a good defence to any action or proceedings taken against that person in respect of the non-fulfillment of the contract so far as it is due to that interference."

That proviso has since been extended to requirements of any government department, or of a competent naval or military authority.3

Two decisions on these statutory enactments illustrate when they may be justifiably used and when not. The first we propose to refer to, Manuel Mas v. Brookless Bros., was an action of damages for breach of contract by a Madrid merchant against a firm of exporters in Aberdeen. In consequence of the war the export of goods from the United Kingdom to foreign countries was subject to very strict supervision by the British Government, and exporters were advised before doing business with European firms to refer to the Chairman of the War Trade Intelligence Department. The defendants did refer to the department for guidance, and its chairman wrote them in reply: "According to my information the firms of Manuel Mas, Madrid (and others named) are forwarding agents and it would not appear desirable to undertake to export to these firms unless you are informed of the actual buyers of the goods to be exported and their names appear on the documents." On receipt of this letter the defendants wrote to the plaintiff requesting him to give the names of his buyers; but this, the plaintiff explained, it was not possible for him to

do After some further correspondence