Central Law Journal.

ST. LOUIS, MO., DECEMBER 7, 1900.

According to the United States Circuit Court, for the District of South Carolina, an owner of land on navigable stream is not without remedy for damages to his property caused by the building of dams and improvements to the stream, undertaken by the United States government. That court held, in Williams v. United States, that where the United States government, in the proper exercise of its powers, has undertaken the improvement of the navigation of a river, and by means of the dams and other works therein built has caused a permanent rise in the level of the water of such river, resulting in the flooding of rice land adjacent, which was previously protected by embankments, and drained into the river, so as to render it permanently valueless for any purpose, such action constitutes a taking of the land for public purposes, within the meaning of the fifth amerdment to the constitution, and the owner is entitled to recover just compensation therefor.

It was the rule at common law that a mittimus in order to justify the restraint of a prisoner must state the crime with which he is charged. The Superior Court of Cook County, Chicago, as we gather from the Chicago Legal News, while affirming this proposition in a recent habeas corpus case-People v. Murray-laid down an addition to it, as upheld by the authorities, the holding being that when one is taken from his home or from the street charged with a crime, that while yet the presumption of innocence remains with him, the precept under which he is held must show the offense with which he

is charged and the authority which justifies it; but that after regular trial and sufficient judgment, the public officer whose duty it is to imprison, finds his justification in the judgment of the court, and no writ is necessary to compel him in the performance of this public duty. The form of a civil judgment directs an execution, but no such direction is contained in the well established forms of criminal judgment, although the judgment contains a direct order and command to the warden himself.

The United States Supreme Court has just rendered an opinion in the case of Austin v. State of Tennessee, involving the validity of a law of that State regulating the sale of cigarettes. The law was attacked as an infringement of the right of congress to regulate interstate commerce. The Supreme Court of Tennessee upheld the law, and the decision of the highest federal tribunal now rendered sustains that conclusion, though not without disapproval of some of the positions taken, and then on a very narrow margin, four out of nine members joining in a dissenting opinion, and another member of. the court (Justice White), placing his assent on grounds different from those announced by Justice Brown who handed down the opinion of the majority.

The case grew out of the importation of cigarettes into Tennessee from North Carolina. They were taken into the State in the ordinary sized cigarette package, and these packages were loosely thrown into baskets which were uncovered. The claim was made that these cigarette packages were what are known to the law as original packages, but without clearly defining an original package, the court held that it was clear that such packages could not be so considered.

Justice Brown, in passing on the case, said that the packages were obviously made up with the view of evading the law, and as he spoke he held one of the little cigarette cases up to the view of his auditors. On this point the decision of the State court-to the effect that the packages were not original-was fully confirmed.

On another phase of the case, the State court was not so fully indorsed. The Tennessee court had held that the cigarettes were not an article of commerce. With this view, Justice Brown took issue, and he delivered quite a dissertation on the subject. Whatever is an object of barter and sale is, he said, an article of commerce, and must be so recognized. Tobacco has been such an article for four hundred years.

It had been made the subject of taxation and, indeed, had become more widely scattered than any other vegetable. Probably, he added, no other vegetable had contributed so much to the comfort and solace of the human race. This being the case, it was en

tirely beyond bounds to say that tobacco was not an article of commerce.

He then took notice of the claim that cigarettes are an especially harmful form of tobacco, and while he conceded that this might be the case, he remarked that this claim was of comparatively recent origin. Still, he held that cigarettes are as much a subject of State regulation as is liquor, and he further held that while no State law could prohibit importation in original packages, it was entirely competent for a legislature to regulate the sale because of general belief in the deleterious effect of the article.

There was a dissenting opinion by Justice Shiras in which the Chief Justice and Justices Brewer and Peckham joined. They based their dissent on the theory that congress has exclusive control of interstate commerce.

NOTES OF IMPORTANT DECISIONS.

SALES-DELIVERY TO CARRIER-TITLE-INSPECTION AND REJECTION-DETERIORATION IN TRANSIT.-In Mobile Fruit & Trading Co. v. McGuire, 83 N. W. Rep. 833, decided by the Supreme Court of Minnesota, it was laid down that if no place of delivery is specified in a contract of sale, and there are no circumstances showing a different intent, the general rule is that the articles sold are to be delivered at the place where they are at the time of sale, and that their delivery to the proper carrier is a delivery to the buyer, and that the title passes to him subject to his right of inspection and rejection of the goods on arrival, if found not to be in accordance with the contract. It was held, however, that the buyer, unless otherwise agreed, assumes the risk of deterioration in the goods necessarily incident to the course of transportation. The court cited Benj., Sales. 127, 144, 147; Janney v. Sleeper, 30 Minn. 473, 16 N. W. Rep. 365; Kessler v. Smith, 42 Minn. 494, 44 N. W. Rep. 794; Schwartz v. Church of the Holy Cross, 60 Minn. 183, 62 N. W. Rep. 266; English v. Commission Co., 15 U. S. App. 218, 6 C. C. A. 416, 57 Fed. Rep. 451; Gates v. Packing Co., 78 Cal.439, 21 Pac. Rep. 1; Lord v. Edwards, 148 Mass. 476. 20 N. E. Rep. 16, 2 L. R. A. 519; Mee v. McNider, 109 N. Y. 500, 7 N. E. Rep. 424.

NEGLIGENCE-PROXIMATE CAUSE.-In the recent case of Evansville, etc. R. R. v. Welch, 58 N. E. Rep. 88, decided by the Appellate Court of ndiana, it appeared that the defendant mainained a depot and station in the town of Farmersburg, State of Indiana, the south end of said station abutting on the main street of said town, known as Liston street. It was alleged "that there are a large number of buildings in said

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town on both of appellant's tracks and along the line of said Liston street, and at and near appellant's said station, and that at all times of day large numbers of persons pass to and from the east and west portions of said town along said street and across appellant's said tracks. In order to make said crossing safe for persons passing along said street it was necessary that appellant keep the view along said tracks unobstructed," so that persons crossing said tracks could observe the approach of locomotives and cars. It was further alleged that on a certain day one William Bostic attempted to approach said station and cross said track, for the purpose of taking a train; that there were and had been for a long time theretofore a large number of flat cars and box cars carelessly and negligently placed on a side track obstructing the view; that while crossing the tracks a "wild engine" was run at a dangerous, reckless and unusual rate of speed over the main track, which struck said Bostic as he attempted to cross, killed him instantly and hurled his body at and against appellee, the plaintiff below, who was standing upon the platform of the station; that appellee thereby sustained personal injuries, to recover damages for which the suit was brought. It appeared that the plaintiff was engaged in the livery stable business; that he was present on the platform, according to his custom, for the purpose of soliciting customers who might arrive on an expected train, "all of which he does with the knowledge and consent of appellant." The Appellate Court of Indiana held that no recovery could be had, because the injury to the plaintiff was not the proximate result of defendant's negligence.

The reasoning of the court is largely founded upon that of the Supreme Court of Pennsylvania in Wood v. Pennsylvania R. R., 177 Pa. 306, 35 L. R. A. 199.

BROKERS-EXCHANGE OF LAND-COMMISSION. -In Roche v. Smith, 58 N. E. Rep. 152, decided by the Supreme Judicial Court of Massachusetts, it was held that where an owner employed a broker to exchange property "for any other suitable property,” and such broker produced a party with whom the owner contracted to exchange for property which he accepted as "suitable," but such exchange was never made because of a defect in the customer's title, the broker is entitled to his commission, provided he was ignorant of the defect in the title.

It was further held that where an owner of real estate has contracted to exchange it for property owned by another, whom a broker whom he had employed has produced, the contract providing that the land should be conveyed by each to the other within twenty days by a good and sufficient warranty deed, such owner may recover from the other party in interest the amount of the commissions paid to the broker, where such other party is unable to convey a good title to his property. The court said in part:

"It was held in Kaapp v. Wallace, 41 N. Y. 477, where the broker was employed to find a person to convey land to be paid for in money, and in Kalley v. Baker, 132 N. Y. 1, 29 N. E. Rep. 1091, where the broker was employed to find a person to convey land to be paid for by a conveyance of other land-that is to say, to effect an exchange -that where the principal makes a valid agreement with the customer produced by the broker, the broker has earned his commission, even if it turns out that the customer cannot make agood title and the land is not conveyed, provided the broker acted in good faith in the matter. In the opinion of a majority of the court, those cases were rightly decided. The question is the same in the two cases; the only difference is that in one case payment is to be made in money, in the other by a conveyance of other land. Where the broker is employed to get a customer to buy and pay for his principal's land, and it turns out that the customer is not able to pay for the land, it is settled that his inability does not deprive the broker of his commission, provided the principal made a valid and binding agreement for the sale of the land with the customer produced by the broker. Ward v. Cobb, 148 Mass. 518, 28 N. E. Rep. 174; Burnham v. Upton, 174 Mass. 408, 409, 54 N. E. Rep. 873. The ground on which this is settled is that, by entering into a valid contract with the customer produced by the broker, the principal accepts the customer as able, ready and willing. In such a case the decision would have to be the other way were it not that, by entering into the contract with him, the principal accepts the customer produced by the broker. What the broker is employed to do is to produce a customer who will buy and pay for his principal's land. Fitzpatrick v. Gilson (Mass.), 57 N. E. Rep. 1000. If it turns out that the customer produced by the broker is not able to pay, and does not pay, for the land, the broker has not performed his duty, and has not earned his commission; and it is only because the principal accepts the customer, by entering into a valid contract with him, that it is held, in cases like Ward v. Cobb, that the broker has earned his commission. Coleman's Ex'r v. Meade, 13 Bush., 358; Donohue v. Flanagan (City Ct. N. Y.), 9 N. Y. Supp. 273; Francis v. Baker, 45 Minn. 83, 47 N. W. Rep. 452; Wray v. Carpenter, 16 Colo. 271, 27 Pac. Rep. 248; Lockwood v. Halsey, 41 Kan. 166, 21 Pac. Rep. 98; Springer v. Orr, 82 Ill. App. 558. The law is settled in other jurisdictions in accordance with Ward v. Cobb, see Francis v. Baker, 45 Minn. 83, 47 N. W. Rep. 452; Wray v. Carpenter, 10 Colo. 271, 27 Pac. Rep. 248; Love v. Miller, 53 Ind. 294; and generally that a broker makes out a case for a commission earned by proving a contract made. See Cook v. Fiske, 12 Gray, 491; Rice v. Mayo, 107 Mass. 550; Keys v. Johnson, 68 Pa. St. Rep. 42; Veazie v. Parker, 72 Me. 443; Conklin v. Krakauer, 70 Tex. 735, 739, 11 S. W. Rep. 117. The same rule obtains when the principal wants to buy in place of wanting to sell.

Where the principal wants to buy 100 bushels of wheat at a price named by him, and employs a broker to get him the wheat at that price, the broker earns his commission when he produces a customer and his principal makes a valid. binding agreement with the customer for the wheat; and the broker's right to his commission is not affected by the inability or refusal of the customer to deliver the wheat. In such a case the broker has not produced a customer able to supply his principal with the wheat, and would not have earned his commission had it not been that his principal, by contracting with the customer, had accepted him. In such a case the principal has a right to full compensation for the loss of his bargain by recovering damages for breach of the contract, and in the event which has happened the commission paid the broker is paid for that. The rule is the same when the broker is employed to get for his principal a certain piece of land. If through the broker's efforts a binding contract is made between his principal and the owner of the land, the broker has earned his commission, and his right to it is not affected by the fact-if it turns out to be the fact-that the owner, the broker's customer, cannot make a ood title. The principal has his remedy by recovering full damages for the loss of his bargain in an action at law on the contract, and in the event which then happens it is for that which the commission is paid. We have no doubt that in this commonwealth a party has a right to recover full damages for the loss of his bargain under a contract for the exchange or purchase of land where it turns out that the party who agreed to convey the land has not a good title. Bringham v. Evans, 113 Mass. 538; Railroad Corp. v. Evans, 6 Gray, 25, 33.”

TRESPASS-JOINT

LIABILTY-FLOWAGE.-In

Bonte v. Postel, decided by the Court of Appeals of Kentucky it was held that where various property holders who ran water from their premises into an underground pipe, which ran into an open sewer along plaintiff's wall, flooding his premises, acted entirely independently of each other, none of them believing that any injury would result therefrom to plaintiff's property, they were not joint trespassers, and no one of them is liable for the acts of the others. The court said in part:

"The principle of law is well established that where two or more persons unite in an act which constitutes a wrong to another, intending at the time to commit it, or doing it at a time and under circumstances that fairly charge them with intending the consequences thereof, the law compels each to assume and bear the responsibility of the misconduct of all. See Cooley, Torts, p. 133. But where two or more persons acting independently, without concert, plans or other agreement, inflict a damage or cause an injury to another person, one of such persons cannot be held liable for the acts of the others. Authorities to support both propositions are abundant, and

we are of opinion that this case belongs to the latter class, as there is no evidence conducing to show that the various property holders who ran water from their premises into the underground pipe in the alley which emptied into the open sewer which ran along appellant's wall either acted in concert in so doing, or believed that any injury would result therefrom to appellant's property. Each acted entirely independent of the others. The cases relied on by appellant to support his contention belong to the first class, and there are numerous and very respectable authorties which support the latter proposition. Black's Law Dictionary defines 'joint trespass' as two or more persons who unite in committing a trespass.' And in the case of Ferguson v. Terry, 1 Mon. 96, it was held that none were liable for trespass committed by others unless they gave authority, command, or assent to it.' The proof showed in this case that the trespassers were separate and distinct. In Bard v. Yohn, 26 Pa. St. 482, it was held that where two persons acted each for himself, so as to produce an injury to the plaintiff, they could not be sued as joint trespassers, unless it appeared that they acted in concert.' In Ellis v. Howard, 17 Vt. 330, the court said: "There must be a privity between the wrongdoers in order that each may be held responsible for the whole of the damages.' In Gallagher v. Kemmeper, 144 Pa. St. 509, 22 Atl. Rep. 970, which was an action to recover damages for injuries to plaintiff's land for deposits of mine water and dirt accumulating thereon from the defendant's operation on a creek having its source some four or five miles off in the mountains above plaintiff's land, it appeared in the proof that the Highland Coal Company had been mining coal several miles above on the same stream, and that this company, as well as defendant, dumped the refuse of its mines directly into the creek. The court said: 'It is true that the injury complained of may have been caused in part by the operations of the Highland Coal Company, conducted contemporaneously with the operations of defendant's mines, and that it would be difficult, if not quite impossible, to separate and ascertain, definitely and certainly, the proportion of the whole damage done by each of these operations respectively: But these several operations were entirely independent of each other. They were several miles apart, and the ownership and control were wholly distinct and separate. There was no concert of action or common purpose or design which would support the theory of joint injury.' In the case of Coal Co. v. Richard's Admrs. 57 Pa. St. 142, which was a case in which the milldam of the plaintiff had been filed by the deposit of coal dirt from different mines, which had been washed down by the stream from the mines above of several owners, the plantiff sought to charge the defendants below with the whole injury caused by filling up his basin; the substance of the complaint being that, if at the time the defendants were throwing coal dirt into the river

the same was being done at the other collieries, and the defendants knew of this, they were liable for the combined result of the series of deposits of dirt from the mines above. In this case the court held that, where a tort was severally committed without concert with others at the time of commission, it did not afterwards become joint because its consequence united with other consequences; that without concert of action no one suit could be maintained against the owners of the collieries. They support the conclusions reached in that case with numerous authorities. In the case of Miller v. Ditch Co., 87 Cal. 430, 25 Pac. Rep. 550, the plaintiff was the owner of a tract of land near where a canyon came out of the mountains, but did not reach his land, and naturally the waters of the canyon would not flow upon his land; but defendants, by means of different ditches, turned foreign water into the canyon, and the commingling water from said ditches passed through said canyon, and by cutting new channels, etc., flowed out on plaintiff's land, covering part of it with sand and debris. The ditches were not owned jointly by all of the defendants. Each ditch was operated by part only of the defendants, who had no interest in the other ditches. In that case the court said: 'It is clear that the rule, as established by the general authorities, is that an action at law for damages cannot be maintained against several defendants jointly when each acted independent of the action of the other, and there was no concert or unity of design between them. The tort of each defendant was several when committed, and did not become joint because afterwards its consequences united with the consequences of several other torts committed by other persons. If it were otherwise, one defendant, however little he may have contributed to the injury, would be liable for all the damage caused by the wrongful acts of all the others, and would have no remedy against them because no contribution can be enforced between joint-fessors." These authorities, we think, very conclusively establish the doctrine that without a common intent and co-operation there can be no joint liability in the commission of several trespasses, and section 12 of the Kentucky statutes does not change the common-law form of proceeding, or authorize a joint action for several trespasses, but only authorizes several verdicts and several judgments against each of the several joint trespassers in a joint action. See Ferguson v. Terry, 1 B. Mon. 96; Henry v. Sennett, 3 B. Mon. 311."

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MUNICIPAL CORPORATION LOCATION OF SMALLPOX HOSPITAL POLICE POWER.-In Frazer v. City of Chicago, 57 N. E. Rep. 1055, decided by the Supreme Court of Illinois, it was held that, where a smallpox hospital is rightfully located and well conducted by a municipality, there can be no recovery by a property owner for depreciation in the value of his property caused by its location in his neighborhood; the estab

lishment of such hospitals being within the police power of the municipality, and the city and village act of Illinois specially authorizing municipalities to erect and establish hospitals and control and regulate the same. It was further held that the location by a city of a smallpox hospital on land owned by it is not, as to adjoining property, a taking of private property, nor a physical injury, entitling adjoining landowners to damages. The court said in part:

But finally appellants contend that it is an unreasonable, unusual and extraordinary use of property to utilize it for the segregation of contagious diseases, and cite in support thereof Kobbe v. Village of New Brighton (Sup.). 45 N. Y. Supp. 777, City of Baltimore v. Fairfield Imp. Co. (Md.), 39 Atl. Rep. 1081, 40 L. R. A. 494, and Com. v. Alger, 7 Cush. 86. Under the express delegation of power by the legislature, we cannot hold that the application of property for the use of a smallpox or other hospital is such an unusual or unreasonable use of property as would take it out of the police power of the city, so as to render it liable for such application, when, as here, it is conceded that the pest house is rightfully located and well conducted. In the case of City of Baltimore v. Fairfield Imp. Co., supra, the complainants sought by injunction to restrain the city of Baltimore from placing and keeping on a twenty-acre tract of land owned by the city a woman afflicted with leprosy, which land of the city adjoined lands of the complainants. There is a wide difference between the establishing and maintaining of a hospital for the treatment of disease, and in appropriating a piece of property for the keeping of a single patient by an unskilled laborer and his family, having no knowledge of the disease of leprosy, with which the patient was afflicted. The facts appearing in that case might well have justified the interference by the court, by injunction, to restrain the use, having reference to all the surrounding conditions, and yet not militate against the view we have taken, that annoyance or damage resulting from the rightful location and proper conducting of the hospital in question offers no hasis for relief in damages."

CONSTITUTIONAL AMENDMENTS TAXING MORTGAGES.

The adoption of the third constitutional amendment, taxing mortgages, submitted to the voters of Missouri for ratification at the last election, has aroused considerable inter

Before offering any criticism, favorable or otherwise, however, we must have a clear understanding of the exact terms of the amendment itself, which very closely follows the provisions of the California Constitution. It is as follows:

Sec. 1. A mortgage, deed of trust, or other obligation, by which a deed is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby, except as to railroad and other quasi public corporations, for which provision has already been made by law. In cases of debt so secured the value of the property affected by such mortgage, deed of trust, contract or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof in the county, city or other local subdivision in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property secured and may be paid by either party to such security; if paid by the owner of the security the tax so levied upon the property affected thereby shall become a part of the debt so secured; if the owner of the property shall pay the tax so levied on such security it shall constitute a payment thereon and to the extent of such payment a full discharge thereof.

Sec. 2. Every contract hereafter made by which a debtor is obligated to pay any tax or assessment on money loaned, or on any mortgage, deed of trust, or other lien, shall as to any interest specified therein and as to such tax or assessment, be null and void.

The evident intent and purpose of this amendment is to prevent double taxation. No more difficult problem of government exists than the effort to subject all property equally to the burdens of taxation, and to avoid the taxation of the same property, directly or indirectly, more than once for the same purpose. Experiment and discussion of this subject, therefore, are not to be discouraged, but whether this particular effort at solution will be successful is not to be too confidently expected.

Let us compare the present with the pro

ble effect. In view of the fact that the movement to relieve the mortgagor from an unfair burden of taxation, initiated by the State of California, is spreading throughout the United States, a review of the results so far accomplished would not be inopportune.

to-day, mortgages and deeds of trust are considered personal property, separate and distinct from the security, and are required to be listed for taxation as such by the owners thereof. On the other hand, the owner of the real estate is assessed for the entire