59.- -Ownership of Property.-Words, "owned in fee simple," "title in fee simple," or "absolute title in fee simple," used in fire insurance policy as descriptive of insured's interest, do not import that insured can show an indefeasible title, free from defects, and good against all.-Palmetto Fire Ins. Co. v. Fansler, Va., 129 S. E. 727.

60. -Payment of Premium.-In view of Rev. Code 1919, § 9340, note given in payment of second annual premium on life policy held payment of that premium, though not paid at maturity, notwithstanding stipulation of note that with or without notice and demand or notice of forfeiture, nonpayment at maturity should release insurer from lability, such provision being no part of policy.Ritter v. American Life Ins. Co., S. D., 205 N. W. 382.

61. -Release of Claim.-Payment of amount admittedly due under accident insurance policy is not sufficient consideration for release of unliquidated amount claimed under policy.-United States Casualty Co. v. V.nson, Ind., 149 N. E. 90.

62. Safe Burglary.-In action to recover safe burglary insurance, clause in policy, limiting liability to cases where marks of violence appeared "upon" safe, construed to mean marks appearing anywhere thereon, and not restricted to marks appearing on outside.-Johnston v. Fidelity & Depos.t Co. of Maryland, Mo., 275 S. W. 973.

that

63. -"Store."-Where testimony showed printing of stock was a necessary and usual part of paper stock business, statement in liability policy that property on which insurance was effective was used for 'store" and warehouse, and that assured conducted no business on premises, except "store" and warehouse, did not preclude recovery for injuries in printing establishment; as word "store,' when used to designate place of business, given broad meaning, and may include in meaning business establishment where personalty is kept, sold, and gotten into salable condition.-Continental Paper Bag Co. v. Bosworth, Tex., 276 S. W. 170.

a

65. Internal Revenue - Legacy Taxes. Where estate was fully determined and distributed prior to July 1, 1902, except that part of assets were withheld in anticipation of liability for federal and state taxes and other expenses, and under laws of New York time for presentation of claims expired before July 1, 1902, entitling legatees to full payment of claims, the interests of the residuary legatees in part of estate not distributed prior to July 1, 1902, were not contingent and did not fail to vest in possession or enjoyment, so that a tax imposed thereon under War Revenue Act June 13, 1898, § 29, as amended by Act March 2, 1901, § 10, cannot be recovered.-Woerishoffer V. United States, U. S. S. C., 46 S. Ct. 33.

66. Interstate Commerce-Motion Picture Films. -Laws Conn. 1925, c. 177, prohibiting delivery of motion picture films for purpose of exhibition in the state without having registered them and paid a tax of $10 for each film of 1,000 feet or less, with 50 cents additional for each extra 100 feet, whether regarded as a revenue measure or police regulation, held not a regulation of or unlawful restraint on interstate commerce, as regards films shipped in to lessees for exhibition; it operating alike on films brought into or produced in the state, being concerned only with public exhibition of moving pictures in the state, and only incidentally affecting interstate commerce.-Fox Film Corporation Trumbull, U. S. D. C., 7 F. (2d) 715.

V.

67. Intoxicating Liquors-Search of Automobile. -A search by officers of defendant's automobile for liquor under Burns' Ann. St. Supp. 1921, § 8356a1, empowering officer to seize liquor being transported which is a felony by Acts 1923. c. 34, § 1, made without a search warrant, before defendant had been placed under arrest for any cause and without any reason or probable cause to believe that liquor was being carried by defendant or any other car on the road, or that a felony was being committed constitutes an "unreasonable search" and is in violation of Const. art. 1, § 11 (Burns Ann. St. 1914, § 56).-Eiler v. State, Ind., 149 N. E. 62.

68. Landlord and Tenant-Lease.-Letter by lessee to lessors a month before expiration of lease, informing them that he desired renewal of lease.

was sufficient written notice of intent to exercise option to renew.-Palmer v. Fair Co., Miss., 105 So. 513.

69. Licenses "Manufacturer."-That shoes manufactured in other states were sold and brought to manufacturer's warehouse in St. Louis for distribution to customers in other states would not relieve manufacturer from liability for license tax imposed by such city, if shoes were manufactured therein within ordinance defining manufacturer subject to tax as one holding or purchasing personalty for purpose of adding to value by any manufacturing process, or purchasing and selling manufactured articles such as he manufactures or uses in manufacturing-State v. Chapman, Mo., 276 S. W. 32.

70. Master and Servant-Dangerous Agency.Where defendant company left an uncorked and unlabeled jug of sulphuric acid on platform customarily used by plaintiff and other minor employees for lunch, who entered open freight car next to platform to avoid rain, and other minor employees squirted contents of jug on plaintiff in play, injuring him, it was not necessary, to render defendant liable, that it should have reasonably anticipated that injury might happen in exact as occurred, since one in possession or control of dangerous agency must use care commensurate with known danger, especially with reference to immature persons likely to come in contact therewith.-Baltimore & O. R. Co. v. Ranier, Ind., 149 N. E. 361.

manner

71. -Defective Tools.-The claw bar was selected by the foreman and furnished to the plaintiff in the nighttime for emergency work. Plaintiff may have been prevented by the circumstances from making even a casual inspection of the tool before proceeding to use it. In such a situation, the rule of the simple instrumentality cases does not apply. Thompson v. Chicago Great Western R. Co., Minn., 205 N. W. 439.

72. -Safe Working Place.-"Simple tool doctrine" held inapplicable to employees action for personal injuries, sustained when wobbly stool on which he was standing collapsed, where employee, before using stool, protested, was assured that it was safe, and told to use it.-Spinnell v. Goldberg, Mo., 275 S. W. 775.

73.

Mines and Minerals-False Representations. -In action to rescind purchase of land because vendors fraudulently misrepresented there was no outstanding lease of mineral rights therein, whereas general land office had given permit to explore lands for such minerals, plaintiffs held entitled to recover, notwithstanding that their abstract would have shown existence of permit, where it had not been prepared at time of transaction, and they were assured that it would show no oil permit.— Donoho v. Hunter, Tex., 276 S. W. 174.

74.- -Rescission of Purchase of Land.-In action to rescind purchase of land because vendors fraudulently misrepresented there was no outstanding lease of mineral rights therein, purchasers held entitled to recover without returning to vendors entire tract conveyed to them, where part of such tract, at request of vendor, had been conveyed to real estate broker so that he could be paid his commission.-Donoho v. Hunter, Tex., 276 S. W.

174.

75. -Royalty.-Amount paid by plaintiff for royalty interest in coal lands held not an issue in suit to cancel assignment or deed of such royalties to defendant for false representations.-Shelton v. Overton, Tex., 275 S. W. 855.

Monopolies

76. Restraint of Trade.-Plaintiff sold defendant 30,000 barrels of a certain brand of cement to be used by defendant in performing a public road construction contract, which contract provided, among other things, that the cement "is sold and delivered for use in the work described. and if buyer shall sell or otherwise dispose of any portion of said cement, or use any portion thereof in any work other than that described," the seller should have the right to decline further deliveries of cement. Defendant claimed that the contract was unenforceable, because its operation was to restrain trade in violation of anti-trust statute (sections 5002, 5003, Code of 1906; sections 32813285 inclusive, Hemingway's Code). Held that the contract was not violative of the statute, because its effect was not to unduly and unreasonably restrain trade; that its enforcement was not inimical to the public welfare.--Gano v. Delmas, Miss., 105 So. 535.

77. Municipal Corporations-Assessment District. -A tract of ground in a city of the third class was platted into blocks and so designated in accordance

with the general scheme of platting of the city, but two of the blocks were irregular in form, somewhat lacking in area and were each bounded on three s des by streets. while on the other side they were bounded by the right of way of a railroad. In providing for an assessment to pay for the paving of a street which crossed the railroad right of way and passed between the blocks mentioned, the city included the right of way and these blocks in a single assessment district and assessed the district as a unit. Held that each of the blocks constituted a unit for assessment purposes, and that the lots therein abutting upon the improvement should be separately assessed for the entire cost of the improvement between the blocks, and that the unplatted territory of the railroad right of way should be separately assessed for the cost of the improvement through that territory.-Union Pac. R. Co. v. City of Russell, Kan., 240 Pac. 264.

78. Filling Stations.-The refusal of building Inspector to grant a permit to build a gasoline filling station held not justified because the building thereof would tend to lower real estate values in the vicinity, because a property owner may make use of his property in any way he sees fit which is not detrimental to the public health, safety, or general welfare.-Williams v. Gage, N. J., 130 Atl. 721.

79. Location of Garages.-Ordinance passed in pursuance of power given villages by Cities and Villages Act, art. 5. § 1. cl. 82, forbidd'ng location of a garage within 750 feet of grounds of a church. irrespective of character of particular location of the garage, size of the church, grounds or distance of the church from the garage, and without any provision for consent of authorities of church sought to be protected. held unreasonable and arbitrary, and therefore void.-Troy v. Village of Forest Park, Ill., 149 N. E. 281.

80. Pool and Billiard Rooms.-A municipal ordinance purporting to regulate and license pool and billiard rooms, which contains a provis'on that "no license shall be granted to a person who is not by reason of such provision, a citizen of the United States," is not in conflict with any provision of the state or federal Constitution.-State v. Deckebach, Ohio, 149 N. E. 194.

to

81. Sidewalks.-The rule that requires a municipal corporation to exercise ordinary care know the condition of its sidewalks and keep them in a reasonably safe condition for such use (Bellevue Gas & Oil Co. v. Carr, 61 Okl. 290, 161 P. 203) is not to be confined solely to the sidewalk track, but is to be extended to dangers near or in proximity to the sidewalk.--City of Miami v. Finley, Okla., 240 Pac. 317.

82.Val'dity of Tax Bill. That resolution for paving did not describe materials or manner of construction other than to call for Hassam pavement, a patented article. fully understood by bidders, held not to invalidate tax bill.-Empire Trust Co. v. Stepp, Mo., 275 S. W. 982.

of superin

83 Zoning Ordinance.-Refusal tendent of buildings to grant perm ́t for erection of frame dwelling and stores on applicant's lot, on ground that zoning ordinance prohibited erection of store within residence district held without legal justification. Kantorowitz v. Frederick Bigelow, N. J., 130 Atl. 811.

84. Newspapers-Subscription List.-Code Supplemental Supp. 1915. § 441, requiring applicants for selection as official county newspaper to file certified statement giving names and addresses of subscribers "such statements to be in sealed envelopes." held sufficiently complied with where applicant filed box of cards, each containing name of subscriber, accompanied by affidavit identifying contents of boxes; "envelope" meaning that which envelops; a wrapper, an enclosing cover, especially cover or wrapper of a document.-Bloomfield Davis Co. Messenger v. Bloomfield Democrat, Iowa, 205 N. W. 345.

85. Oil and Gas-Lease.-Where lessee, under oil and gas lease. represented facts to lessors and offered opportunity to settle past disputes regarding title to land and all future disputes regarding saving of gasoline, then being wasted. and got contract as to steaming oil, it did not occupy fiduciary relation, so as to be liable to account to lessors for royalties on gasoline obtained by such treatment of o although subsequently it was seen that lessee secured best of bargain.-O'Donnell v. Snowden & McSweeny Co.. Ill., 149 N. E. 253.

86. Negligence. Where car in which plaintiff was riding was deflected from course and struck

defendant's pipe line, causing gas to ignite and burn plaintiff, claim that defendant could not have foreseen act of offending automobile in violating law cannot be set up, since one who is himself negligent cannot rely on presumption that others will exercise due care and obey laws.-Carroll v. Central Counties Gas Co.. Cal., 240 Pac. 53.

87.-Profits of Trespasser.-In suits by the United States against possessors in legal bad faith, but in moral good faith, to establish its title to oil lands and enjoin trespass thereon, where accounting had to particular date showed losses to defendants from operation of property, held on further accounting for oil extracted pendente lite, defendants were entitled to set off. against profits. losses previously sustained, nor did first accounting constitute a final adjustment to that date, precluding allowance of such credits; defendants' possession being continuous, and the separation purely art!ficial-Gulf Refining Co. v. United States, U. S. S. C., 46 S. Ct. 52.

88.

Poisons-Druggists. — Druggist, selling narcotics only on prescriptions of registered physician, cannot be held guilty of violation of Harrison AntiNarcotic Act as amended (Comp. St. Ann. Supp. 1919, § 6287g et seq.). though number of prescriptions filled and aggregate amount of drugs sold within a given period is excessive and unreasonable, and though such sales were made to persons known, in part at least. to be addicts, in absence of any charge of conspiracy between physician and druggist, since such construction of act would be violative of both Fifth and Sixth Amendments to Constitution.-Eckert v. United States, U. S. C. C. A., 7 F. (2d) 257.

89. Railroads-Gates at Crossing.-Where order of Public Service Commission, pursuant to Railroad Law, 53, as amended by Laws 1915, c. 559, denied application of certain village residents to require defendant to install gates at a railroad crossing in such village. village held not authorized by Village Law, 90, subd. 10, or otherwise, to enact a subsequent ordinance requiring defendant railroad to install gates at the same crossing, and providing for a penalty for failure to comply therewith; its remedy being to apply to Public Service Commission for a modification of such order.-Village of Elmira Heights v. Erie R. Co., N. Y., 211 N. Y. S. 893.

90. Last Clear Chance. In action for injuries In collision with train at crossing, plaintiff was not entitled to go to jury on doctrine of last clear chance; it being shown that engineer was not in position to see plaintiff approaching crossing, and, though fireman did see him, he could not have warned engineer in time to avert collision, and furthermore was justified in believing that plaintiff would stop car at crossing until train passed.Albright v. Chicago, R I. & P. Ry. Co., Iowa, 205 N. W. 462.

91. Sales-Implied Warranty.-Seller and builder of silo impliedly warranted its fitness for holding and preserving ensilage.-North Liberty Silo & Concrete Co. v. Huber, Ind.. 149 N. E. 452.

92. Warranty.-In the absence of contract which negatives the same. there is an implied warranty in the sale of goods, wares, and merchandise. drinks sold for human consumption as a beverage, that it is reasonably fit for the purpose for which it is ordinarily sold, or that it is fit for the special purpose intended by the buyer, if that purpose be communicated to the vendor when the order is given.-Wood & Co. V. Val Blatz Brewing Co.. Okla., 240 Pac. 115.

94.

93. Weapons-Father's Liability.-Where a father places in the hands of his 14-year-old son a shotgun such as described in the preceding syllabus he llable in damages to one suffering an injury caused by the negligent shooting of the gun by his minor son. Parman v. Lemmon. Kan., 239 Pac. 989. Wills-Bargain."-Where testatrix. in cre ating trust, provided that trustee might "bargain," sell, and convert property into money, held that word "bargain" was used in sense of selling property for cash. or on terms, as against contention that word was used in sense of trading or exchanging, and without legal purposes of trust, provided in Civ. Code, § 857.-In re Wellings' Estate. Cal., 240 Pac. 21.

95. -Corporate Beneficiary.-In absence of direction of will as to how property is to be expended by corporate beneficiary it must be assumed that gift is made for, and I'mited to, corporate purposes, and hence valid. In re Pearsall's Estate, N. Y., 211 N. Y. S. 841.

Central Law Journal

St. Louis, February 20, 1926

EFFECT OF DIVORCE ON WILL PREVIOUSLY MADE BY HUSBAND OR WIFE

A divorce between husband and wife, with a judgment for permanent alimony, followed by an agreement of settlement, which agreement was sufficient to settle all the property rights of the parties, is declared by the Supreme Court of Nebraska, in Re Estate of Bartlett (189 N. W. 390; 25 A. L. R. 39), to constitute such a "change of circumstances" affecting the husband, as to work, by implication, a revocation of his previously executed will.

It seems to be quite generally held that the mere fact that a divorce has been obtained, standing alone, does not revoke a previously executed will, under the doctrine of implied revocation from a change in the testator's circumstances. This has been held by the Supreme Court of Iowa, although there had been an agreement in the divorce action, with respect to the property rights of the parties, whereby it was provided that certain property awarded to the wife should be in full payment and satisfaction of all her interests in her husband's property (Re Brown, 139, Ia. 219; 117 N. W. 260). Likewise, in Cunningham's Succession (142 La. 701; 77 So. 506), it was held that a divorce and settlement of community rights do not revoke a will previously made by the husband or wife, because on such a settlement she only receives what is hers.

It has been held that, where the property rights of the parties have been settled in contemplation or anticipation of a divorce, such a settlement followed by a divorce impliedly revokes a previous will of one of the spouses (Lansing v. Haynes, 95 Mich. 16, 54 N. W. 699).

It has been held by the Supreme Court

of Michigan that a revocation of a will in favor of a wife will be implied from a divorce where there were no children of the marriage, the property came to the man from his father's estate after the divorce was granted, and he had near relatives to whom he might be presumed to have preferred his fortune to go, while the wife had, by her conduct, waived her dower and alimony rights so as in effect to have made a property settlement (Re McGraw, 199 N. W. 686, 37 A. L. R. 308). Quoting from the Lansing case, supra, the Court in the case last cited said: "Implied revocations are founded upon the reasonable presumption of an alteration of the testator's mind arising from conditions since the making of the will, producing a change in his previous obligations and duties. There is not, perhaps, any code of civilized jurisprudence in which this doctrine of implied revocation does not exist, and apply when the occurrence of any social relations and moral duties raises a necessary presumption of a change of intention in the testator."

In the recent case of Murphy v. Markis (N. J. Eq., 130 Atl. 840), it appeared that Mrs. Sarah Markis made her will containing the following: provisions:

"Third, I give, devise and bequeath unto my beloved husband, William Henry Markis, all the remainder and residue of my estate real, personal and mixed, absolutely, of whatsoever kind and wheresoever situate, including all insurance money or monies that my death may produce."

"And, fifth, I hereby constitute and appoint my beloved husband, William Henry Markis, sole executor, without bond, of this my last will and testament."

A number of years after the making of the will Sarah Markis obtained a divorce from her "beloved husband," William Henry Markis, and a final decree was entered in 1916 dissolving the marriage. Sarah died in 1923, unmarried and without issue. She left surviving her the com

THE FEDERAL TAXING POWER

SCOPE OF THE FEDERAL TAXING POWER

By Walter E. Barton*

The most serious grievance which the thirteen colonies had against the mother country was taxing their people without representation. This grievance was epitomized in the cry that "Taxation without representation is tyranny." The colonies emerged from the War of Independence as thirteen independent nations, with plenary power to lay and collect taxes and perform other acts of sovereignty equally with any other independent nation.

After a seven years' struggle, it is not to be expected that our forefathers would surrender lightly the liberties which they had won. Their experience made them unwilling at first to agree to any strong central government. The most that they would surrender was expressed in the Articles of Confederation. That document created a very impotent general government, the greatest defect of which was its lack of power to lay and collect taxes. The Congress of the United States was authorized to allow "all charges of war and all other expenses that shall be incurred for the common defense or general welfare;" but the taxes for paying the authorizations so made were "to be laid and levied by the authority and direction of the legislatures of the several states."1

Even after the inefficacy of the Articles of Confederation was demonstrated, our forefathers were unwilling to give the central government unlimited power to tax. The extent of this power and the curtailments and restrictions placed thereon will be the subject matter of this series of articles.

Of the Washington, D. C., Bar, Co-Author of Barton and Browning's "Federal Income Tax Laws, Correlated and Annotated." This series of articles is reprinted through the courtesy of The National Income Tax Magazine, and of the author.

(1) Article VIII, Articles of Confederation; Beck's Constitution of the United States, page 40.

Section 8 of Article 1 of the Constitution of the United States expressly delegates to Congress the power to lay and collect taxes in the following words:

Congress shall have power to lay and collect taxes, duties, imposts, and excises

2

The term "taxes" is a generical term which includes "duties, imposts and excises" and all other indirect taxes, if there be any. Inasmuch as "imposts, duties and excises" are a species of taxes, the definition thereof is unimportant in determining the extent of the grant of the taxing power. It is only in connection with the manner in which the taxing power shall be exercised that the meaning of these words is important. This will b touched upon when the latter point is discussed.

The words "taxes, duties, imposts and excises" are broad and comprehensive. They include every kind of tax, direct and indirect, that may be laid and collected by any sovereignty.3

In view of the fact that these words when considered alone grant unlimited power to the Federal Government to lay and collect taxes, it is necessary to examine other provisions of the Constitution in order to determine whether this power has been curtailed or restricted in any way. The practical question in a given case is whether the power to tax is prohibited cr restricted by the Constitution and not whether it is granted by the Constitution.

An examination of the Constitution discloses that the Federal taxing power is: (1) Prohibited in certain cases, and (2) Required to be exercised in a prescribed manner in other cases.

The prohibitions are either express or implied. Implied prohibitions arise from

(2) Cooley's Taxation, Volume I, page 239; Norton's Constitution of the United States, page 44; Hilton v. U. S., 3 Dall. 171.

(3) Sholey v. Rew, 23. Wall. 331; Knowlton v. Moore, 178 U. S. 41; Pollock v. Farmers' Loan and Trust Company, 157 U. S. 429.