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The American people are turning to their lawyers and with them are going back to the Constitution. There is a recrudescence of the Colonial idea of individual rights, duty and responsibility. They are beginning to understand that the pioneer's division of government into three departments. must be religiously respected, lest the legislative department follow the example of its predecessors in history and destroy the republic, and that property rights and equal opportunity must be respected and assured. The elder statesmen of the Bar have been wisely organizing and placing the harness of active service and leadership upon the young men, upon whose efforts the imprimata of their approval has been vigorously placed and to whose support they generously come. The era of the lawyers' influence and leadership is possible and is almost at hand. Once aroused and systematically organized, there is no group on earth with whom the lawyers fear to cope and, throughout history, none that has proven more faithful to the best interest of a confiding people.

The words of de Tocqueville, spoken in 1835, are appropriate: "When the American people are intoxicated by passion, or carried away by the impetuosity of its ideas, it is checked and stopped by the almost invisible influence of its legal counsellors." This influence, said the French Sage, is the only assurance under a strong republic of democracy in America. What an inspiration, and what a warning!

THOMAS W. SHELTON.

NOTES OF IMPORTANT DECISIONS.

POWER OF INDIANA COAL COMMISSION TO FIX THE PRICE OF COAL SUSTAINED.In a very loosely reasoned decision, the United States District Court (D. Indiana) held that the Special Coal and Food Commission of Indiana would not be enjoined as to its power to fix the price of coal until such prices so fixed were found to be confiscatory or to interfere with interstate contracts or shipments. American Coal Mining Co. v. Special Coal and Food Commission, 268 Fed. 563.

This case was heard by Circuit Judges Baker and Evans and District Judge Gieger. The basis of the decision is the police power which, according to the opinion in this case, may be extended to any subject which in any way affects the public and is not restricted to any particular matter or thing. The Court said:

"In this present inquiry concerning the right of the plaintiff to a preliminary injunction, the only federal question presented is that which arises under the Fourteenth Amendment. The Fourteenth Amendment was adopted, according to my present memory, in 1868. In 1868 there was a certain circle within which a person had his life, his right to his physical being. Within that circle he had free movement, and it was not until he came to cross its periphery that he collided either with his fellowmen or with the government as a social organism. And similarly in 1868 there existed circles which circumscribed a person's business and property rights.

Now, did the adoption of the Fourteenth Amendment mean that civilization was arrested at that date? Did it mean that the historian of the year 3000 would look back to the year 1868 as the time of the formation of a crystallized stratum of civilization in which as in the geological stratum, he might find the footprints of the megatherium and the fossils of the dinosaurus? If that is true, then every attempt since 1868 to narrow the circle within which one was entitled to life has been in violation of the federal Constitution. If that is so, then every statute which created and defined a new crime and provided a punishment for it was unconstitutional. If that is so, then every time a new condition was imposed by which liberty of contract was restricted, and this circle was diminished in its area, the statute creating the condition was unconstitutional. Property is coupled with life and liberty. It is thereby entitled to equal consideration, but certainly to no greater. And therefore a state Legislature was just as free to limit the circle in which property rights stood as it was to diminish the circles in which life and liberty, freedom of contract, freedom of action, were circumscribed."

One cannot read this opinion with its uncertain reference to different "circles" of life, liberty and property requiring different regulations without coming to the conclusion that the police power so indefinitely defined, will ultimately become the destroyer of all constitutional government. The price-fixing statutes which have become so numerous since the world war have captivated the minds of the people until they seem willing to exchange the priceless boon of security in life, liberty and property, which few people in the world enjoy, for the uncertain temporary advantage of price fixing.

Price fixing is a dangerous interference with the laws of economics. The delicate equilibrium of supply and demand cannot long be disturbed without seriously affecting business con

ditions. And the people are likely in the end to suffer more than they gain by such disturbance. For the men usually appointed to sit on such price fixing commissions are politicians wholly unfamiliar with the laws of economics and sometimes even without extensive business experience and thus fall an easy prey to the "buncombe" of shrewd financiers. Even the Court in the principal case saw this possibility, for it said to the plaintiffs, "You have not been hurt by the orders of this Commission. You may never be injured by such orders. You may be ordered to sell coal at $2.50 per ton when you would be quite willing to accept $2.25 per ton." To fix a price for any commodity creates a legal monopoly and destroys competition in that commodity. The result is that the incentive to reduce costs in order to reduce prices is destroyed and waste and extravagance fastens an unnecessary burden on the backs of the people.

And then see what is lost. The security which every man under the American Constitution had a right to have in the product of his toil is swept away. For, if such loase declarations of the limitless extent of the police power is to be sustained, the legislature may take any man's property by the method of regulating the price. If the legislature can fix the price of coal why may it not fix the fees of the family doctor. Surely one is as necessary as the other. If the law can fix rents why may it not fix the price of sewing machines. And, indeed, if it begins to fix the price of one article which is not a legal monopoly (such as franchises) why should it not be compelled to fix the price of every other commodity? It would be unfair to fix the price of shoes if the law permitted the tanners to charge what they desired for their hides.

Price fixing is always a taking of property. If the price is too high the people are deprived of the excess in price; if too low, then the producer who has bought his plant equipment or his machinery at higher prices than his competitors, will suffer a distinct loss. To thus interfere with one's right to sell his own property for such a price as will net him a fair profit is to deprive him of his property without due process of law.

RIGHT TO BILL OF REVIEW WHEN ONE FEDERAL COURT AFFIRMS AND ANOTHER DENIES A PATENT RIGHT. The difficulty in adjusting rights of patent litigants where in one Circuit the patent is valid and in another invalid has always been apparent and the practice in this regard confusing. This

matter has been settled by the Supreme Court of the United States in the recent case of National Brake & Electric Co. v. Christensen, 41 Sup. Ct. 154, where the Court held that where after affirmance of a decree for plaintiff in a suit for infringement of a patent and pending an accounting, the patent was adjudged invalid by the Circuit Court of Appeals for another circuit, defendant had a right to petition the Court affirming the decree for leave to file in the court of original jurisdiction a bill in the nature of a bill of review, setting up the new matter as a bar to further proceedings.

The Court cited Re Potts 166 U. S. 263 and Re Gamewell Co., 73 Fed. 908, as determining the practice in this class of cases. In concluding its opinion the Supreme Court said:

"In our view the proper practice in matters of this sort required the Circuit Court of Appeals to regard the petition, taking all its allegations together, and with its prayer for general relief, as an application for leave to file in the District Court a petition in the nature of a bill of review invoking a consideration of the effect of the judgment in the Third Circuit. Such consideration the Circuit Court of Appeals may well be directed to undertake in the exer cise of its proper function in determining the rights of the parties, and for that purpose its judgment should be reversed, without passing in this court upon the merits of the petition. This procedure is sanctioned by former deci sions of this court. Lutcher & Moore Co. V. Knight, 217 U. S. 257, 30 Sup. Ct. 505, 54 L. Ed. 757; Cramp v. Curtiss Co., 228 U. S. 646, 33 Sup. Ct. 722, 57 L. Ed. 1003; Brown v. Fletcher, 237 U. S. 583, 35 Sup. Ct. 750, 59 L. Ed. 1128."

In the case of Re Potts, 166 U. S. 263, 17 Sup. Ct. 520, the United States Supreme Court reversed a decree of the Circuit Court dismissing a bill upon a patent, holding that the patent was valid and had been infringed by the defendant, and remanding the cause to the Circuit Court for further proceedings. It was held that the Circuit Court had no authority to grant or entertain a petition filed without leave of this court for a rehearing for newly discovered evidence, and that mandamus was the proper remedy to set aside the order of the Circuit Court failing to execute the mandate of this court. The authorities were reviewed by Mr. Justice Gray, speaking for the court. Among other things he said:

"In this respect, a motion for a new trial or a petition for a rehearing stands upon the same ground as a bill of review, as to which Mr. Justice Nelson, speaking for this court, in Southard v. Russell, above cited, said: 'Nor will a bill of review lie in the case of newly discovered evidence after the publication, or decree below, where a decision has taken place on an appeal, unless the right is reserved in the decree of the appellate court, or permission be given on an application to that court directly

for the purpose. This appears to be the practice of the Court of Chancery and House of Lords, in England; and we think it founded in principles essential to the proper administration of the law, and to a reasonable termination of litigation between the parties in chancery suits.' 16 How, 570, 571. So, in United States v. Knight, 1 Black, 488, 489, Chief Justice Taney said that, in a case brought before this court exercising general jurisdiction in chancery, 'the defeated party, upon the discovery of new evi dence, may, after a final decree in this court, obtain leave here to file a bill of review in the court below to review the judgment which this court had rendered."

RECENT DECISIONS OF THE BRITISH

COURTS.

The distinction between the clean and quali fied Bill of Lading is well established in our law. A clean bill of lading is a document by which the master of the vessel acknowledges without qualification that he has received a certain weight or number of goods and undertakes to deliver the same weight or number of goods. If, at the discharge of the vessel, it turns out that the weight or number specified in the bill of lading is not forthcoming, the ship is not answerable because of the discrepancy merely, but the onus is upon the shipowner to prove that the fact that he has delivered less than is stated in the bill of lading is not due to any failure upon his part to fulfill his duty. Accordingly, if he is able to prove that the whole of the goods which he in fact received had been delivered he is exonerated from all responsibility, because the master of a ship has no authority to bind the shipowner for a larger quantity than he has received. Where, however, the bill of lading is qualified by the words "weight, quality, quantity, and contents unknown" or similar statement, it is not prima facie evidence against the ship of the amount or quantity shipped, and the onus is shifted on to the cargo-owner of proving what in fact was shipped. These principles were given effect to in the recent case of Craig Line Steamship Co., Ltd., v. North British Storage and Transit Co., 1920, 2 S. L. T. 423. The Bill of Lading was a qualified one, and the Court held that it was the duty of the shippers to prove that the Bill of Lading quantities had in fact been shipped. The shipowner was suing for his freight; and the cargo-owners counterclaimed on account of short delivery. Judgment was granted for the balance of freight due and the counterclaim was dismissed. It appears to have been held by some judges of first instance that in the qualified bill of lading the initial statement that a specified

quantity had been received by the ship put on the shipowner the onus of proving in the event of short delivery that he in fact did not receive as much as stated. This doctrine, however, which would virtually put the clean and the qualified bill of lading on the same footing has received its quietus by the case mentioned. Employers are now being urged on all hands to take up welfare and betterment schemes for their employees, and generally to be more human in their general attitude and exhibit less of the soulless corporation attitude towards things in general. So far as limited companies are concerned the recent case of Evans v. Brummer Mond & Co., Ltd. 150 L. T. 326, suggests that such corporations may not have the power to do such a thing. In the case referred to, the Judge approved of the action of the Directors, but one feels that his interpretation of the position was a very liberal one, and one scarcely in accord with strict legal principles. The case arose by way of motion by the plaintiff suing on behalf of all the shareholders for an injunc tion restraining the defendant company from applying £100,000 by way of donation, or otherwise acting upon an extraordinary resolution that the directors be authorized to distribute to such universities or other scientific institutions in the United Kingdom as they might se lect, for the furtherance of scientific education and research, the sum of £100,000 out of investment surplus reserve account. The company's main object was the business of the manufacture of chemicals in all its branches. The objects as stated in its memorandum of association were: "To carry on in all its branches the trade or business of chemical manufacturers;" "The doing of all such business and things as may be incidental or conducive to the attainment of the above objects or any of them." The evidence of the chairman and directors of the company stated that its welfare was increasingly dependent upon the advance of pure science; that the greatest difficulty of the company was to find men sufficiently equipped by their previous studies in pure science to undertake its research work, and a larger reservoir of men, highly trained in the universities and scientific schools of the country, was necessary to the company; that the directors were of opinion that the company might, with great advantage to its business, apply funds in assisting centres of scientific education; that the proposed application of £100,000 was eminently desirable in furtherance of the company's business of chemical manufacturers and essential exclusively regarding such business; and that the welfare of the company's business required that such schools and universities should re

ceive adequate support. For the plaintiff it was contended that the proposed contribution of the company's fund, although beneficial to the community at large would not tend to the direct benefit of the defendant company, and a declaration was claimed in the action that the distribution and payment of any part of the sum was ultra vires the objects and powers of the defendant company. It was held, the resolution being limited by an implied obligation, that the authority must be exercised by the board bona fide in the interests of the company, that on the evidence the proposed application was not too general nor the balance of advantage to the company's business too remote, and no order for an injunction would be made on the motion.

The distinction familiar to our common law between a lump sum payable as a whole at one time only and sums which accrued de die in diem was largely done away with by the Apportionment Act of 1870, which provided that rents, interests, dividends and annuities (including salaries and pensions) and sums payable under agreements should accrue to the creditor from day to day and should be apportionable in respect of time accordingly. Now an accepted principle in regard to directors' remuneration has been that where their contract with the company provided for payment at the rate of a specified sum per annum, this was apportionable to the period served in the event of the services of the director ceasing before completion of the year; but on the other hand, if the contract was so much per annum,

pany that unless he served for a whole year he should receive nothing. Moreover, it was plain, both upon the authorities and upon the facts, that the parties contemplated that the sum would be apportionable. He therefore held that the Apportionment Act applied, and the plaintiff was entitled to recover. Mr. Justice McCardie agreed, and the appeal was accordingly allowed, and judgment for the plaintiff for the amount claimed with costs.

The recent decision of Mr. Justice Eve in Anglo-French Music Co., Ltd., v. Nicoll and another, follows the well-known case of Fraser and Chalmers, Ltd. (1919). The point in question was the position of preference shares in the allocation of a surplus. As is well known preference shares, in the event of a deficiency, come before the ordinary shares, but what is their position in the event of a surplus? Do they cease to participate further seeing that complete repayment of capital has taken place? The cases mentioned decide that where there is nothing in the company's articles or other contract arrangements expressly or impliedly controlling the rights of the preference shareholders, then, in the event of there being an excess of assets, the preference shareholders have the right to share pari passu in surplus assets.

Glasgow, Scotland,

DONALD MACKAY.

nothing accrued till the year was completed. INJURIES ARISING OUT OF AND IN

A recent appeal in the King's Bench Division from the County Court covered the point whether a director of a company whose fees were fixed at £150 per annum (without the use of the words "at the rate of") could recover in respect of a period of 150 days which he has served. Mr. Justice Lush was able to allow the appeal, having come to the conclusion that the plaintiff was in receipt of a salary, and that prima facie the salary was apportionable. Here the parties did not expressly contract that the salary could not be apportionable. All that the agreement said was that plaintiff's fees for acting as a director should be £150 a year, and it left the question whether apportionment applied or not to the statute itself. There was nothing in the contract itself which forced him to say that the plaintiff had contracted with the company that he would in no case claim the apportionment of his salary. Seeing the plaintiff was in receipt of a salary he came to the conclusion that he could recover pro rata unless there was a stipulation on the part of the com

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employee is entitled by the contract of employment expressly or impliedly to do."

Employment is not limited to the exact moment of arrival at the place of actual work, nor to the moment of retirement therefrom. It includes a reasonable amount of time before and after actual work."

If the injury does not occur on the premises, but in close proximity to the place of work, and on a road or other way intended and contemplated by the contract of employment as being the exclusive means of access to the place of work, it may still arise out of and in the course of the employment.

"If the place at which the injury occurred is brought within the contract of employment, by the requirement of its use by the employee, so that he has no discretion. or choice as to his mode or manner of coming to work, such place and its use seem logically to become elements or factors in the employment, and the injury thus arises out of the employment and is incurred in the course thereof."

On the contrary, if the employee, at the time of the injury, has gone beyond the premises of the employer, or has not reached them, and has chosen his own place or mode of travel, the injury does not arise either out of or in the course of the employment.5

"A person who is in an employment carries with him during the period, whether in the day or night or whatever time it may be, that he is bound to work, all the privileges that are conferred by this act; but when he has left that employment in the evening, or at any other hour, from that time until he arrives next morning at the place where his field of employment is, he is in the same position as any other member of the public. He carries with him into his period of leisure no insurance from his employer. If he takes a dangerous course, he takes it at his own risk."

It has been held that an employee was in the course of his employment while leaving work to go home; while on his way after working hours to a sleeping room provided by the employer; while eating his meals;10 while going to meals; while returning from a shanty where he had eaten his meal;12 while on his way to cook his meal;13 where he left his work and was on the roof for the purpose of taking fresh air; while going for his dinner pail after working hours;15 while putting on his coat

(7) Benson v. L. & Y. R. Co., 6 W. C. C. 20, 23, quoted approvingly in Guastelo v. Michigan Cent. R. Co., 194 Mich. 382, 160 N. W. 484, 15 N. C. C. A. 241.

(8) Terlecki v. Strauss, 85 N. J. L. 454, 89 Atl. 1023; In re Sroeb, Ohio Ind. Com'n, No. 36817; In re Fahrey, 155 Op. Sol. Dept. Labor 218; In re Stacy, 225 Mass. 174, 114 N. E. 206.

(9) Dougherty v. Liability Corp., 1 Mass.

(10) Blovert v. Sawyer (1904), 1 K. B. 271, 73 L. J. K. B. 155, 89 L. T. 658, 20 T. L. Rep. 105, 6 W. C. C. 16, 3 N. C. C. A. 277; Bryce v. Lloyd, 2 B. W. C. C. 26.

Although actually through with the work, w. c. Cas. 450. or not yet commenced, he is in the scope of his employment if he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.

(2) Brice v. Lloyd, 101 L. T. 472 (1909), 2 K. B. 804, 25 T. L. Rep. 759, 53 Sol. J. 744, 2 B. W. C. C. 26.

(3) Gane v. Morton Hill Colliery Co., 100 L. T. 979 (1909), 2 K. B. 539, 25 T. L. Rep. 640, 2 B. W. C. C. 42; Kinney v. Baltimore & O. Emp. Rel. Ass'n, 35 W. Va. 385, 14 S. E. 8, 15 L. R. A.

142.

(4) De Constantin v. Public Service Com'n, 75 W. Va. 32, 83 S. E. 88, L. R. A. 1916A 329. (5) De Constantin v. Public Service Com'n, 75 W. Va. 32, 83 S. E. 88, L. R. A. 1916A 329.

(6) Griffith v. Cole Bros., Ia., 165 N. W. 577, 1 W. C. L. J. 368; Hills v. Blair, 182 Mich. 20, 148 N. W. 243; Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458.

(11) In re Sundine, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A 318; Rowland v. Wright (1909), 1 K. B. 963, 99 L. T. 758, 77 L. J. K. B. 1071, 24 T. L. Rep. 852, 1 B. W. C. C. 192, 3 N. C. C. A. 278. However, it was held that an injury to a workman did not arise out of the employment when he fell through a hole in a tank on which he had been sitting eating his supper; it appearing that he had no right to go near the tank, and that the employer had provided a dining room Brice for the employes.

v. Edward Lloyd (1909), 2 K. B. 894, 101 L. T. 472, 79 L. J. K. B. 37, 25 T. L. Rep. 759, 2 B. W. C. C. 26, 3 N. C. C. A. 278.

(12) Earnshaw v. Lancashire & Yorkshire R. Co., 5 W. C. C. 28, 3 N. C. C. A. 277.

(13) Morris v. Lambeth, 22 T. L. Rep. 22. (14) In re Von Ette, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D 641.

(15) Taylor v. Bush, 5 Pen. (Del.) 378, 61 Atl. 236.

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