irom

a

nuisance.

broker

em

13. Brokers-Commissions.-A ployed to find a purchaser on or before a specified date was required to find a purchaser able, ready, and willing to buy and to notify the owner that he had found a purchaser and give him an opportunity to carry out the contract, but personal notice was not necessarily required, and, if he procured such a purchaser within the time specined and went in good faith to the owner's residence and could not find him, and on or before the specified date deposited in the post office directed to the owner with postage duly paid a written notice that he had found a purchaser and a written notice from the purchaser that he was ready and willing to buy on the terms given, the broker was entitled to commissions.-Lingquist v. Siebold, Mont., 199

Pac. 709.

14. Carriers of Passengers.-Liability of Carrier. A street railway company was not negligent in failing to restrain a crowd waiting for a car, at a stopping place where there was no station or platiorm, and the car from a public street, and was not liable passengers boarded for injury to a child pushed under the side of car by the crowd, assuming that she passenger.-Savickas v. Boston Elevated Ry. Co., Mass., 132 N. E. 29.

persons

to

was a

to

15. Liability of Carrier.-Where a carrier has permitted third premises, or cars, and become passengers thereenter on its of, the carrier is required to exercise the utmost vigilance to protect the passengers from insult and injury arising from others who occupy similar relations with respect to the party injured, but a different rule prevails with respect the carrier's liability for injuries to passengers who receive injuries from the acts of persons beyond the control of the carrier, and for which it is in no way responsible, in which case the carrier is only required to exercise ordinary care and vigilance to discover and prevent injury to passengers.-Williams v. East St. Louis & S. Ry. C., Mo., 232 S. W. 759.

16.- Negligence.-A petition alleging that deceased was killed by the negligence of defendant's servant in suddenly starting or permitting a freight elevator to start up, while deceased was placing machinery on it, without warning, when the operator knew or by exercising ordinary care could have known deceased was in a dangerous position, charged specific negligence, thus preventing the application of the doctrine of res ipsa loquitur.-Grimm Globe Printing Co., Mo., 232 S. W. 676.

17. Commerce-State Laws.-Laws N. D. 1919. c. 138, providing for the appointment of a state inspector of grades, weights and measures, with power to establish grades for giain, secds, and other agricultural products, at which the same shall be bought and sold, to issue licenses to persons engaged in inspectors, to fix charges for grading, inspecting buying grain as deputy and weighing grain, and to "establish a reasonable margin to be paid producers of grain by warehousemen, elevators and quiring all buyers of grain to procure licenses mills," and reand pay an annual fee of $10 therefor, and that all grain shall be inspected and graded when offered to them for sale or shipment, held unconstitutional, as imposing a direct burden on interstate commerce. in view of United States Grain Standards Act, which covers the subject of inspecting and grading grain shipped in interstate commerce.-Farmers' Grain Co. v. Langer, U. S. C. C. A., 273 Fed. 635.

18. Constitutional Law.-Motives of Legislature. It is not the province of the judiciary to question the motives of the Legislature in creating a position. if it has acted within the limits of its constitutional authority.-Devoy v. Craig, N. Y., 131 N. E. 884.

19.- -Virgin Islands.-The Virgin Islands, acquired by treaty. while appurtenant United States, are not a part thereof. within

to the

several meanings, such as citizenship, revenue aws, and judicial establishment, and are governed as to judicial proceedings by Organic Act, March 3, 1917, continuing in effect the local laws, "in so far as compatible with the changed sovereignty," to be administered through the local tribunals; but such territory is the absolute dominion of the United States, and under the inhabitants are entitled to the protection of the Fifth and Sixth Amendments and other constitutional guaranties, so that conviction of felony by trial beginning by a police investigation, at which the evidence was reduced to writing and followed by trial by the district court without a jury, in which the written testimony was used, but no witnesses called. though defendants were offered right to do so, not according to due process of law, and could not be sustained.-Soto v. United States, U. S. C. C. A., 273 Fed. 628.

Agency.-A

was

was

20. Corporation-Double agency by which one was secretary and treasdouble urer of a corporation and also agent of its fiscal agent under a contract to sell its stock permissible and legal where known to and acquiesced in by both principals.-Gardner Michigan Employers' Casualty Co., Mich., 183 N. W. 738.

21.

V.

-Issue of Stock.-Under the Constitution and laws of Delaware it is permissible for a corporation to issue its capital stock in exchange for property less in value than the par of the stock, but an agreement that such stock so issued shall be fully paid and nonassessable is forbidden as against the company creditors.-Peters or its V. United States Mortgage Co., Del., 114 Atl. 598. 22. Covenants Restrictions. owner of land subdivided it and sold lots subWhere the ject to restrictions that each should be used for residence purposes only, etc., and thereafter the owner sold her own lot under contract that it should be used for a restaurant or cafe purposes, with music, dancing, and other amusements permitted, she cannot thus be perlegal mitted to violate the restrictions in her deeds. having accepted their benefits.-McQuade V Wilcox, Mich., 183 N. W. 771.

23. Divorce Alimony.-Under St. 1919, § 2367, providing that when judged to the wife the court may provide for alimony shall be adpayment at such times as shall be deemed expedient, and impose it as a charge upon specific real estate, the court may impose a charge or lien for past-due alimony on the husband's real estate, whether it be a homestead or not.-Ashby v. Ashby, Wis., 183 N. W. 965.

anv

a

ting property and extending beyond the property line over the public waters, where there was no causal connection between his position on the springboard and his injury from the fall of a cross-arm and the electric wires which it carried.-Hynes v. New York Cent, R. Co., N. Y., 131 N. E. 898.

27. Eminent Domain-Marker on Highway.Erection of a monument or marker made of stone on an international highway, erected a highway association, containing the letter "L" to inform the traveling public that the road was known as the Lincoln Highway, and also containing a tablet to the effect that the monument was dedicated to a national field secretary of the highway association, held no to constitute the taking of private property for public use without compensation. nor as imposing an additional burden upon the property of the adjoining landowners.-Sears v. Hopley, Ohio, 132 N. E. 25.

28. Explosives-Negligence.-A packer and distributor of cans containing explosive or other dangerous materials is liable to a purchaser from a retail druggist for injuries from negligence resulting in an explosion on opening a can.-Hollenbeck v. S. Wander & Sons Chemical Co., N. Y., 189 N. Y. S. 334.

29. Fixtures-Condition Sale.-Under Personal Property Law, § 62, a seller of property under an unrecorded conditional sale contract will not be permitted to remove the property over the objection of a mortgagee advancing money without notice of the conditional sale contract. -McCloskey v. Henderson, N. Y., 131 N. E. 865.

30. Fraud-Deceit.-In an action for damages for deceit in the sale of an ice machine, the complaint alleged that the seller represented that the machine, when installed, could and would keep the buyer's ice box at a temperature low enough to prevent meat from spoiling. Such a representation is held to be more than an expression of opinion or a prediction.Schmitt v. Ornes Esswein & Co., Minn., 183 N. W. 841.

31. Garnishment-Property of

Municipality.

a

As the rule that property in the hands o: a municipality is not subject to garnishment is one of public policy, it cannot be waivedy the failure of the officers of the municipali to object.-Vaugan. Condon, Cal., 199 l'ac. 545. 32. Indemnity-Judgment Against Indemnitor. A corporation which, on purchasing business, agreed to fill the seller's orders and to hold him harmless from liability to his customers, and, on failing to fill such orders, paid to the seller the amount of a judgment recovered by him as indemnity, may call on the seller to appropriate from the amount thereof sufficient money to satisfy a judgment thereafter recovered by a customer against it, and nee not wait until it has suffered harm by pa. the debt; the position of the parties being analogous to that of principle and surety.―Jose, W. North & Son v. North, N. J., 114 Atl. 411.

33. Insurance-Accidental Poisoning.-Where the insured received septic poisoning as a result of the use of a hypodermic needle, such poisoning, which resulted in death, must be deemed due to accidental means within an accident policy.-Townsend v. Commercial Travelers' Mut. Acc. Ass'n of America, N. Y., 131 N. E. 871.

34.Hazardous Employment.-The position of "flagman on a freight train" comes within the meaning of the language, "conductors and other similar railway employees," in the bylaws of a fraternal benefit society, requiring notice of insured's change of occupation to one of such more hazardous employments.-Sovereign Camp, W. O. W. v. Allen, Ala., 89 So. 59.

35. Specific Goods.-The goods specifically named in the coverage clause of such a policy cannot be excluded by some general prior exception therein.-Olson v. Great Eastern Casualty Co., Minn., 183 N. W. 826.

where such liquors were lawfully acquired before the amendment became effective and are only lawfully used.-Hall V. Moran, Fia.. 83 So. 104.

37.- -Effect of Eighteenth Amendment.The Eighteenth Amendment to the federal Constitution is an innovation in the dual system of government under the Constitution of the United States. It extends the federal power to intrastate control of intoxicating liquors for beverage purposes, and its prohibitions are in the nature of police regulations.-Wood v. Whitaker, Fla., 89 So. 118.

38. State Laws.-In so far as state laws are appropriate to enforce the prohibitions contained in the Eighteenth Amendment, they may be valid, though they differ from federal enforcement laws as to procedure or penalties, for in enforcing the organic prohibitions the state and federal powers are concurrent.Johnson v. State, Fla., 89 So. 114. In the

39. Landlord and Tenant-Repairs. absence of contract, a landlord is not bound to make repairs to rented premises.-Patton v. Eveker, Mo., 232 S. W. 762.

40.-Repairs.-Where a porch collapsed under a tenant, the fact that some time previously the landlord had voluntairly increased the height of the porch above the ground, so that the injuries to the tenant were more severe than they otherwise would have been, does not make the landlord liable. where he was not responsible for the cause of the collapse. -Gehr v. Director General of Railroads, Pa., 114 Atl. 491.

41. Licenses-Powers of Municipality. -A municipality authorized by Burns' Ann. St. 1914, § 8655, subd. 39 to license, etc., taverns, restaurants, etc., or places used or kept for public entertainment, cannot, by declaring in an ordinance that places where soft drinks are dispensed are places of public entertainment, enlarge its powers so as to impose license taxes soft drink vendors.-City of Jeffersonville v. Nagle, Ind., 132 N. E. 4.

on

42. Master and Servant-Casual Employe.Where through arrangements made between a telephone company and an electric light company a lineman of the telephone company was "loaned" or transferred for special service to the electric light company to assist in resetting a few light poles in order that paving construction would not be delayed, the work bein temporary and nothing being said as to the length of employment, the work to be done or wages, the lineman was only a "casual employe" of the electric company within the Workmen's Compensation Act, and having received injuries caused by negligence of the electric light company, he was entitled to sue for damages in the district court.-Porter v. Mapleton Electric Light Co., Iowa, 183 N. W. 803.

The

45. Employe of Interstate Carrier. son was accidentally killed while in the employ of an interstate common carrier by express. Held, that there was liability under the Workmen's Compensation Act, notwithstanding that fact.-Pushor v. American Ry. Exp. Co., Minn., 183 N. W. 839.

46.- -Interstate Commerce.A railroad section hand returning on a hand car from his work of repairing the track is engaged in interstate commerce so as to render the railroad liable under the federal Employers' Liability Act, for the negligence of his co-employees on another car running over him.-Wagner v. Chicago & A. R. Co., Mo., 232 S. W. 771.

partial disability under the Workmen's Compensation Act because the employee, before expiration of the period covered by payments, returned to work and received the same compensation as before.-Mercury Aviation Co. v. Industrial Acc. Commission of California, Cal., 199 Pac. 508.

48. Municipal Corporations-Injury to Pedestrian.-The fact that one owns an interest in a building does not make him able for injuries received by one falling over a rope across a sidewalk in front of it.-Westfali v. Leamon, N. Y., 189 N. Y. S. 211.

a

49. Negligence. It is a city's nondelegable duty to have a dangerous excavation 111 street, arising from improvements in progress, guarded at night, and this, through the work is being done by a contractor, so that, the guarding being intrusted to the contractor, he is in that respect the city's agent, and any negligent omission in that respect is its negligence, though it had no notice.-City of Indianapolis v. Cox, Ind., 132 N. E. 8.

bu-Officer Not "Laborer."-An officer of a municipal corporation is not to be regarded as a "aporer" within Civ. Code, art. 2743, proviuing that if, without any serious ground of compaint, a man should send away a laborer whose services ne nas hired for a certain ume, before that time nas expired, ne shall be bound to pay to such laborer ine whole or the salaries which he would have been entitled to receive, had the full term of his service arrived.-State v. Jordan, La., 89 So. 15.

or

51.-Power to Levy Taxes.-Where a city, recognizing the potency of a proviso in the repealing clause or an act, granting it the same powers exercised by it under an act with reference to the levying of taxes for the maintenance of a bridge approach, that such repeal should not affect any vested right, remedy property acquired theretofore, repeatedly and uniformly thereafter refrained from assessing property adjacent to such approach for the cost of repairs and improvements thereon, it could not assess the property of an adjacent property owner for the cost of a new sidewalk on th approach; the rule of practical cons.ruction_applying.-Carbonetti v. City of Amsterdam, N. Y. 189 N. Y. S. 272.

52. Piedges-Corporate Bonds.-Contracts between persons interested in speedway enterprise and materialism, whereby corporate bonds were placed as collateral security to a note given the materialmen, held to create the relation of pledgor and pledgee, which was not changed by reason of vesting of the title to the property of the speedway in the trustee in a mortgage on foreclosure of such mortgage.Wheeler v. St. Paul Crushed Stone Co., Ind., 132 N. E. 1.

53.

Railroads-Defective Car.-A carrier's liability under the Safety Appliance Act 1903. § 1, to its switchman for injury resulting from a defective handhold, is not affected by the fact that the car so defectively equipped did not belong to the carrier, and was not being used by it for the purpose of transporting a shipment therein, but was picked up by the switching crew and utilized temporarily for the purpose of enabling the crew to reach and remove another car.-Tyon v. Wabash Ry. Co., Mo., 232 S. W. 786.

54. Sales-Implied Warranty.-The warranty of the seller of personal property does not, as a rule, impose liability upon him as to third persons who are not parties to the contract, the doctrine of covenants running with the land applying only to real estate, so that the benefit of a warranty does not run with the chattel to the original buyer's customer.-Birmingham Chero-Cola Bottling Co. v. Clark, Ala., 89 So. 64.

55.- -Rescission.-Where the purchasers of a bakery, after delivery of possession, refused to pay, repudiated the contract and abandoned the property, the seller's act in retaking possession of and reselling it did not indicate any acquiescence in such repudiation or any intent to end the sale, so as to constitute a rescission, he not being required to leave the property without protection, though title had passed to the purchasers.-Phillips v. Stark, Cal., 199 Pac. 509.

58. Searches and Seizures Warrant. The police have the power and it is their duty, to search person arrested and the place in which he is arrested, without a warrant for making such search.-People v. Kalnin, N. Y., 189 N. Y. S. 359.

59. Specific Performance.-Agreement to Will Property. Where Owner of property after considerable talk with father of seven year old boy agreed that she should take the boy, raise him as her own boy, board, clothe, and educate him until he was of age, and give him everything she owned when she was through with it, and where the boy consented to the agreement, the boy on owner's death, without willing him her property, could bring action to specific ally perform the contract; he being a party thereto.-Bassett v. American Baptist Publication Soc.. Mich., 183 N. W. 747.

to

60. Sunday-Unenforceable Contract.-Where the parties had done no more than agree on the terms of a land contract, unenforceable, under the statute of frauds, until reduced to writing and signed by them, and, pusuant to agreement that they should meet at a subsequent date and conclude their bargain they met on Sunday and then concluded the bargain by executing and written delivering a agreement, such contract was unenforceable.Janowski v. Przebieglec, N. J., 114 Atl. 419.

61. Taxation—"Doing Business."-The deposit of money in a savings bank or trust company by a nonresident, and allowances and credit by the depository of interest thereon, does not constitute the depositor one engaged in doing business within the state within Tax Law, § 220, subd. 2.-In Re Green's Estate, N. Y., 131 N. E. 901.

62.

-Stock Dividends.-Under Const. art. 8, § 1, as amended in 1908, providing that the rule of taxation shall be uniform, and that taxes may be imposed on income, Act 1917, declaring that the term "income" shall include dividends derived from stock, the term "dividends" including any distribution, whether in cash or in the stock of a corporation, is valid, and a stock dividend paid to the shareholder by a foreign corporation doing no business in Wisconsin is taxable as income, although not disposed of by the stockholder; for, regardless of what might be the rule between life tenants and remaindermen, the stock dividend was income.-State v. Nygaard, Wis., 183 N. W. 884.

63. Trade Unions-Resort to Courts.-A trade union rule; prohibiting resort to the courts in any controversy arising within the organization for which the laws of the union provide a means of settlement, without having previously exhausted all remedies within the brotherhood, does not prohibit a member from seeking to enjoin a strike which he contended was called by the union officials without authority, where the strike was to begin within a few days, and the only redress within the brotherhood was by appeal to the next convention, which would not meet for 14 months.-Burke v. Monumental Div., No. 52, B. of L. Engineers, U. S. D. C., 273 Fed. 707.

64. Trial-Valid Verdict.-A verdict reading "We, the jury, find." but signed by only nine of them, was not invalid under Rev. St. 1919. § 6629, in not reading, "We, the undersigned jurors, find:" the words "undersigned jurors" not being required by the statute.-West v. Kansas City Rys. Co., Mo., 232 S. . 749.

65. United States-Emergency Fleet Corporation. The Emergency Fleet Corporation is not such an agency of the government as to render it immune from suit.-Eichberg v. United States Shipping Board E. F. Corp., D. C., 273 Fed. 886.

Central Law Journal.

St. Louis, Mo., November 4, 1921.

RIGHT OF THE LEGISLATURE TO IMPOSE DIFFERENT EDUCATIONAL QUALIFICATIONS FOR DIFFERENT TRADES AND PROFESSIONS.

The much abused Fourteenth Amendment, and especially that clause which relates to the taking of property without due process of law, is often used by state courts (very seldom today by the Supreme Court) as a foundation upon which to set up their own views of public policy in opposition to that declared by the legislature in the exercise of the police power. In doing this the courts are not only ignoring certain well-known rules of constitutional construction, but are feeding the flames of popular discontent with the administration of justice

Such opinions as the recent opinion of the Illinois Supreme Court of Illinois in the case of People v. Love, 131 N. E. 809, is an instance in point. The legislature of Illinois, after an extensive investigation of the facts, declared that the practice of chiropractic as then carried on in the state was dangerous to the public health and safety and, to guard against such dangers, proposed what appeared to them to be some reasonable and necessary regulations. The Supreme Court relied upon evidence in the case to show that the legislature was mistaken in its diagnosis and held the regulations to be unconstitutional, basing its conclusions on the fact that "the evidence before the Court showed that the practice of the science of chiropractic is not deleterious to the public health." What justification can there be for any court to hear evidence on the question of the policy or expediency of a law? Who are to judge of the facts upon which the police power of the state rests? The legislature has hitherto been regarded as the supreme arbiter of the existence of emergencies of this kind. Courts are required to accept the legislative

The

finding determining simply whether the regulations proposed as a relief are valid in view of specific Constitutional restrictions.

Our chief objection to the Illinois decision in this case is the clean "bill of health," so to speak, it gives to the practice of chiropractic, against the clear declaration. to the contrary of its own legislature. It was unnecessary for the Court to declare that "constantly comes proof before the courts that chiropractic, which apparently is a limited practice of osteopathy, does enable the chiropractor to relieve and cure many of the ailments of human beings and that the practice of this science is in no way deleterious to the human body. That is the proof in this record, and such is the proof that has been made in many other cases that have been reviewed by courts of last resort."

It is for the legislature and not for the courts to say whether a certain practice under certain conditions is deleterious to the public health; it is for the courts to determine whether, taking the legislature's diagnosis as true, the means adopted are. within the Constitution. In this case the legislature provided that an applicant for a license to practice chiropractic must be a graduate of a professional school, college or institution teaching the system of treating human ailments for which the applicant desires to be licensed, which requires as a prerequisite to graduation four years' course of instruction, the time elapsing between the beginning of the first year and the ending of the last, or fourth year, to be not less than forty months, and which is deemed to be reputable and in good standing.

The Court objected to this apparently reasonable regulation because it imagined. that, because the educational requirements for physicians and surgeons were not in all points exactly similar, the legislature intended in some way unlawfully to discriminate against chiropractors. Why should the Court even seek to compare the educa

sur

tional requirements in the case of chiropractors with those demanded of physicians any more than with those demanded of lawyers or the licensees of any other profession. The Court impliedly admits that chiropractors do not practice medicine, but belong to a distinct profession, along with osteopaths, physicians and geons. If that be true, then it was proper for the legislature to make a distinction in educational qualifications if it saw fit to do so. If chiropractic is distinct from the practice of medicine, then it is clearly for the legislature to say how much preparation and what the character of the preparation shall be before a license shall be granted. We cannot escape the suspicion that the clear logic of this situation was lost sight of by the Court in the unconscious sympathy for chiropractors aroused in their minds by the thought that the legislature was trying to discriminate against chiropractors and drive them out of the state because the legislature believed that the new system of healing was humbug and quackery. We are led to this belief by the frequency with which the Court expresses its firm belief that chiropractic is not quackery, but a genuine benefit to mankind. In one place the Court showed the strong animus that actuated it when it declared that "we must, therefore, in this consideration, treat chiropractic as a useful and lawful business, science or profession, and not as one dangerous or unlawful in its exercise, and subject to abatement or destruction by unreasonable and arbitrary requirements, but as a profession or business that may be regulated by provisions prescribing reasonable requirements of those who apply to pracice that profession, without unlawful or unjust discrimination."

Nothing in the statute justifies the Court in its belief that the legislature regarded the practice of chiropractic as being dangerous in itself; it merely declared the view of the legislature, that by reason of the character of those who practiced chiropractic and their lack of scientific preparation,

society was confronted with a real danger. If such danger existed (and for the purpose of this case the Court is bound to accept the Legislature's finding that it did exist) we see nothing in the character of the educational qualifications demanded by the legislature that shows anything unreasonable or discriminatory. In fact, as a general rule, we believe the educational standards for licenses for the practice of all important professions, which affect the life and property of the people, should be raised as high as possible. At any rate, the people have the right to protect themselves from the dangers that clearly threaten society from incompetent practitioners and we know of no constitutional provisions that stand in the way of such reasonable regulations. Of course, discriminations between persons in the same class would be unconstitutional, but it is legal and indeed eminently proper for the legislature to make different regulations for different classes. The mere fact that chiropractic is a healing art does not imply that it belongs to exactly the same class as physicians and surgeons. It would be, therefore, no discrimination for the law to make one rule for physicians, another for osteopaths, and still another for chiropractors.

In conclusion, we repeat that the Illinois Court was not concerned with the question of wisdom or propriety of the proposed legislation. Even if the legislature honestly believed chiropractic to be dangerous to society, the Court would have to bow to its decision. That is what the Ohio Supreme Court did in the recent case of Pohl v. State of Ohio, 102 Oh. St. (June 7, 1921), when it upheld a law making it an offense to teach the German language. The defendant was a teacher of the German language and was thus deprived of his living entirely. The Court did not attempt to defend the wisdom of this law, but simply said:

"Courts do not sit to review the wisdom of legislative acts, nor do they possess such power. On the contrary, the policy, the