Published in December, February, April and June by the faculty and students of the Cornell University College of Law, Ithaca, New York Subscription Price $2 a year This number 75 cents If a subscriber wishes his subscription to The Quarterly discontinued at its expiration, notice to that effect should be sent; otherwise, it is assumed that a continuation is desired. Upon recommendation of the Faculty of the College of Law, the Board of Trustees of the University have taken action which will put the College of Law on a graduate basis in 1925. Beginning at that time, it will be necessary for an applicant for admission to the College to present evidence that he holds a Bachelor's degree from an approved college or university, except that it will still be possible for Cornell students to elect the first year in Law in lieu of the senior year in the College of Arts and Sciences, and so obtain the A.B. and the LL.B. degrees in six years. This new advance in the entrance requirements of the College of Law is of great importance, both because it is essentially sound educationally, and because it makes certain that the College of Law will retain its place in the front rank of American law schools. John Dewey, Professor of Philosophy in Columbia University, delivered a series of three lectures to the students of the College of Law on February 21st, 22nd, and 23rd, the subject being "Law and Logic." The lectures were most scholarly and interesting, and will be published in the next volume of the QUARTERLY. Notes and Comment Bills of Lading: Proximate cause: Rights of innocent holder of order bills of lading against a carrier which failed to cancel them upon delivery of the goods.-In Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425 (1924), the defendant company issued several order bills of lading for grain shipped over its road from Buffalo to Portland, Maine. At an intermediate point the goods were stopped by the consignor, who was also the consignee, and the shipment was delivered by the defendant without cancelling or taking up the bills of lading. This was in violation not only of the express terms of the contract but also of the New York Penal Law.1 Several months later the bills were altered by obliterating the original date and writing a new and later date above. Upon these bills as altered, the consignee obtained a loan from the plaintiff bank. The consignee became bankrupt and now the plaintiff seeks recovery from the railroad for failing to take up the bills at delivery. The Court of Appeals refused to allow recovery holding that the failure to take up the bills was not the proximate cause of the loss. Upon the general question of proximate cause, the court undoubtedly stated the correct rule when it said, "The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause produces that event, and without which that event would not have occurred; and the act of one person cannot be said to be the proximate cause of an injury when the act of another person has intervened and directly inflicted it." That the failure to take up the bills of lading was a cause of the injury cannot be doubted since without such omission the injury complained of could not have happened. The court held that the forgery was an intervening efficient cause sufficient to break the chain of causation and to exonerate the defendant. The court in reaching this result based its decision upon the proposition that "Under ordinary circumstances no one is chargeable with damages because he has not anticipated the commission of a crime by some third party. The court here seems to be carrying over the old rule that an illegal act of a third party is not foreseeable, and operates to break the chain of causation. There is considerable conflict on this point; but it 95. 1Penal Law, sec. 365. ניי At p. 431; Laidlow v. Sage, 158 N. Y. 73 (1899); 7 Cornell LAW QUARTERLY 3Supra, n. 2. "That a crime is not forseeable: Henderson v. Dade Coal Co., 100 Ga. 568 (1897); Andrews v. Kinsel, 114 Ga. 390 (1901); Hullinger v. Worrell, 83 Ill. 220 (1876); 29 Cyc. 502. That a crime is foreseeable: Binford v. Johnston, 82 Ind. 426 (1882); Meade v. C. R. I. & P. R. R. Co., 68 Mo. App. 92 (1896); Brower v. N. Y. C. & H. R. R. Co., 91 N. J. L. 190 (1917); Hines v. Garrett, 108 S. E. has been pointed out that such a rule would seem to reach an undesirable result and to be inconsistent with the general principles of proximate cause. As a matter of fact, it is clear that certain illegal acts are so common and likely to occur under particular conditions that they can be foreseen and ought to be guarded against. That this is true was recognized in Marshall v. Caledonian R. R. Co., where what would seem to be the correct rule was set forth. So it may be concluded that, merely because an illegal or criminal act of a third party intervenes, the chain of causation will not necessarily be broken. 9 As was pointed out by Andrews, J., in the dissenting opinion, the Penal Law prohibiting the surrender of the goods by a carrier without taking up the bills of lading covering them, was passed to cover just such a situation as this and to protect the innocent holder against the fraudulent use of spent bills of lading. It is admitted that, if these bills had been used immediately after delivery without forgery, the defendant would be liable for a failure to foresee and guard against such a fraudulent use as this. This is in effect an admission that a spent bill of lading is a source of danger and carries a threat of injury. That this is true is patent, in view of the fact that the bills expressly imported on their face that the carrier had not delivered the goods and would not deliver them except to a person holding the bills of lading. As long as the bills of lading were out, it was a constant admission that the goods were held to fulfil the obligations of the carrier. Without forgery, therefore, there was always a constant danger of deceit being worked in exactly the same manner as was done here. The forgery merely added to the already existing danger and made passage of the bills easier, but did not constitute a new and independent cause of the injury. This would seem to be a sound and proper interpretation of the situation; and upon this basis the defendant should have been held liable for the injury caused to the plaintiff. These bills were issued in 1909 and thus were not covered by the Federal Bills of Lading Act10 or by the Uniform Bills of Lading Act, adopted in New York State in 1911." This, being a shipment between states, would be controlled by the Federal Act if it should (Va.) 690 (1921); Olson v. Gill Home Investment Co., 58 Wash. 151 (1910); Marshall v. Caledonian R. R., I Scottish Sessions Cases 1060 (1899); 35 Har. L. Rev. 467. '68 Mo. App. 92, supra, n. 4; 7 Cornell Law Quarterly 95; 33 Har. L. Rev. 633, 657; 35 Har. L. Rev. 467. Supra, n. 4. 7"*** it seems to be perfectly plain that if the railway company desire to open up a man's premises they are bound to fill up the aperture completely, and that one of the ordinary risks against which the walls are expected to stand as a safeguard is theft."-at p. 1062. The test applied in this case was "it was not improbable." Supra, n. I. 'Colgate v. Pa. Co., 102 N. Y. 120 (1886). 10Federal Bills of Lading Act-Aug. 29, 1916, c. 415, 39 Stat. 538. "Per. Prop. L., sec. 200. arise at the present time.12 The language of the two acts is practically identical so far as applicable to the state of facts which existed in the principal case. Section 11 of the federal act13 provides, "if a carrier delivers goods for which a negotiable bill had been issued, the negotiation of which would transfer the right to the possession of the goods, and fails to take up and cancel the bill, such carrier shall be liable for failure to deliver the goods to anyone who for value and in good faith purchases such bill, whether such purchaser acquired title to the bill before or after the delivery of the goods by the carrier and notwithstanding delivery was made to the person entitled thereto." According to the notes of the commissioners of the Uniform Act, this provision was inserted for the purpose of making bills of lading a more desirable form of mercantile paper by keeping the goods which they represent in the hands of the carrier as long as the bills are outstanding.14 It was intended to promote the free circulation of this paper by protecting the bona fide holder. 15 It would seem that, taken in conjunction with section 1316 of the Federal Act, adequate provision is made for the exact situation presented here and recovery would be allowed. Ernest P. Felt. Constitutional Law: Police power: Statute regulating resale of theater tickets. "Where the liberty of the individual citizen to contract freely has been restricted by the circumstance that a man or group of men has obtained control of the supply of a commodity which the public desires or commonly uses, and this control is used to compel the individual to pay any price which may be demanded, though that price be far beyond the price which would be fixed by free contract between consumer and producer, a legislative mandate which regulates the exercise of the compulsive force may in effect restore and not diminish the liberty of the individual.' In this language, in the case of People v. Weller, N. Y. 237 N. Y. 316, 328 (1924) the Court of Appeals held constitutional a statute which extended still farther the police power of the state. 12In the case of an interstate shipment, the liability of the carrier for misdelivery is governed by the Fed. Bills of Lading Act. Dusal Chemical Co. v. Southern Pac. Ry. Co., 102 Misc. (N. Y.) 222 (1918). 13 Supra, n. 10. 14U. L. A. vol. IV. 16Pere Marquette Ry. Co. v. French & Co., 254 U. S. 538, 545 (1921): “The purchaser whom the act protects is he who is entitled to assume that the carrier has not delivered the goods and will not thereafter deliver them except to a person who holds the bill of lading." In this case the plaintiff sought to bring himself within sec. II as a bona fide purchaser but could not because he took with notice. 16"Any alteration, addition or erasure in a bill after its issue without authority of the carrier issuing the same either in writing or noted on the bill shall be void, whatever be the nature and purpose of the change, and the bill shall be enforceable according to its original tenor." Same as sec. 202 of N. Y. Per. Prop. L. Words identical to this were contained in the bills issued in the principal case and were construed by the Appellate Division to have the meaning of the exact original wording. There was not, however, a provision corresponding to sec. II of the Federal Act. The law1 in question confined the business of reselling theater tickets to those having licenses from the comptroller, and restricted the price of resale to fifty cents in advance of the one printed on the tickets. The defendant was convicted of having carried on business without a license, and appealed on the ground that, though the provision as to licensing was sound, the price-fixing one was not, and that it therefore destroyed the effectiveness of the whole statute. The court held that both regulations came properly under police power of the state, and that the act was constitutional. The opinion states that it is useless now further to discuss the scope of the police power, and lays down the general rule that the power to regulate and fix prices depends upon whether the business is so clothed with public interest "as to justify reasonably the imposition of regulations calculated to remove abuses, or perhaps even to secure benefits, in regard to features which clearly affect the public." With the exception of another recent New York case, this decision seems to be the first of its kind on the point of the regulation of the resale of theater tickets. Earlier cases3 have held that statutes absolutely prohibiting a resale are unconstitutional; but they are capable of differentiation from the principal case, in that they completely abolish the business of ticket speculation. Here the statute allows a resale at what the court considered a reasonable profit. No exact definition of the police power can be given; the one often used by courts is that of Judge Cooley, that the police power of the state "embraces its whole system of internal regulation, by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others." The scope of the police power is said to extend to the health, safety, good order, morals, and general welfare of the community. Any act of the legislature which has as its purpose the furtherance of any one of the first four classes can hardly be questioned. In such cases, courts have always held that the police power can be extended to deal with places of amusement, though private in nature. This is illustrated in decisions that the legislature can prohibit amusements harmful to the community, can prohibit 'New York L., 1922, c. 590, secs. 168 and 172. Ex parte Quarg, 149 Cal. 79 (1906); People v. Steele, 231 Ill. 340 (1907); City of Chicago v. Powers, 231 Ill. 560 (1907). For a discussion of this point, see People v. Weller, 207 App. Div. (N. Y.) 337, 353 (1923). 56 R. C. L. 185. Cooley, Constitutional Limitations, p. 829. 76 R. C. L. 202; Burdick, The Law of the American Constitution, p. 563. 838 Cyc. 255. Neuendorff v. Duryea, 6 Daly (N. Y.) 276 (1875). |