a

47. Sales-Action for Price of Goods.-Personal Property Law, § 144, subd. 3, providing for an action for goods sold, but not delivered, if the goods cannot readily be resold for reasonable price and "the provisions of § 145 are not applicable," refers to subd. 4 of § 145, and not to subd. 3, providing for damages for the non-acceptance of goods sold where there is an available market for the goods, and hence the existence of an available market does not defeat an action for the price.-A. Wimpheimer & Bro. v. Schwartz, N. Y., 190 N. Y. S. 164.

after

48. Condition Subsequent.-Where, delivery to the purchaser in the circumstances disclosed in the evidence, work of a substantial character remained to be done by the seller to put the property in a condition in which it would be of some use to the purchaser, it is a fair inference that the parties did not intend that title should pass until this work was done. Lumbry v. Kryzmarzick, N. D., 184 N. W. 254.

49.- -Delivery.-Buyer, having failed to pay for goods delivered when payment therefor was due, was not entitled to delivery of the balance of the goods covered by the contract.— The Famous Store v. Lund-Mauldin Co., Ark., 233 S. W. 767.

50.- "Merchantable Quality."-Under New York Sales of Goods Act, § 96, subd. 2, implying a warranty that goods are of a merchantable quality "merchantable quality" means a good enough enough delivery to pass generally under that description after full examination.M'Neil & Higgins Co. v. Czarnikow-Rienda Co., U. S. D. C., 274 Fed. 397.

51. Statutes-Repeal.-To effect a repeal by implication the later statute must be so broad in its scope and so clear and explicit in its terms as to show that it was intended to cover the whole subject-matter and displace the prior statute, or the two must be so plainly repugnant and inconsistent that they cannot stand together, as the court will, if possible, give effect to both statutes, and will not presume that the Legislature intended a repeal.-In re Opinion of the Justices, Me., 114 Atl. 865.

52.- -Titles.-Loc. Acts 1919, p. 211, entitled "An act to authorize the commissioners' court of Conecuh county" to pay certain sum out of the county's general fund to tax assessor for extra assistance in his office, but providing in the body of the act that the commissioners' court "is required to pay" such sum to the assessor for such purpose, held violative of Const. $45, requiring the subject of an act to be clearly expressed in its title since according to the title the payment of the money is discretionary, while according to the body of the act it is a matter of compulsion.-WattersTonge Lumber Co. v. Knox, Ala., 89 So. 497.

53. Street Railroads-Last Clear Chance. The doctrine of last clear chance implies that plaintiff was negligent. that through such negligence he was in a place of peril, and that the motorman discovered such peril in time SO that by the exercise of ordinary care he could have avoided the accident; and therefore though defendant's motorman saw an automobile approaching the crossing, but had no way of knowing that the driver intended to drive onto the track in front of the car until he drove upon the track, when it was too late to stop the car in time to avoid the accident, defendant was not liable: the motorman not having had actual knowledge of the driver's peril Miller v. Sioux Falls Traction System, S. D., 184 N. W. 233.

51- -Negligence.-While one approaching street car tracks in an automobile driven by another is bound to exercise reasonable care for his safety, he may trust somewhat to the expectation that the driver of the automobile will act with due regard for his own safety, and may assume that a street car will not approach an intersecting street at a rate of speed three or four times that of the automobile without warning of its approach.-Salisbury V. Boston Elevated Ry. Co.. Mass., 132 N. E. 239.

55. Taxation-Illegal Assessment.-An action at law may be maintained by a taxpayer against the tax collector for the recovery back of a tax illegally assessed and collected upon

real property.-Seaboard Air Line Ry. Co. v. Allen, Fla., 89 So. 555.

56. Salary.-The salary of an associate professor in a university is "income derived from property," within Const. Amend. 44, authorizing a tax at different rates on income derived from different classes of property, and hence St. 1919, c. 324, imposing an additional income tax, is not invalid, as applied to such salary, because no tax is imposed on income from annuities, since "property" is a word of large import, and includes the right to make contracts for labor and personal service.Raymer v. Trefry, Mass., 132 N. E. 190.

57. Telegraphs and Telephones-Commercial Messages.-A railroad which has legally, without the approval of the public service commission, under Acts 1915, p. 268, purchased telegraph lines upon its right of way, cannot be required by the Public Service Commission to transmit commercial messages to towns fected by the sale, under Code 1907, § 56325725, and Acts 1919, p. 1038.-Alabama Public Service Commission v. Louisville & N. R. Co., Ala., 89 So. 524.

af

58.- -Easement.-Where an easement for running telegraph lines along a right of way on a railroad was not used for 40 years, and during this time the telegraph company had accepted an exclusive lease of rights for its lines. and had later started condemnation proceedings to take part of the right of way for its lines, the nonuser, coupled with the acceptance of the lease and condemnation proceedings, sufficiently evidence an abandonment of the easement.-Western Union Telegraph Co. v. Louisville & N. R. Co., Ala., 89 So. 518. 59. Rates.-Where a state Railroad and Warehouse Commissioner commenced an investigation of telephone rates on its own initiative, pending which telephone companies made applications for temporary increases in rates, which were denied by the commission, the telephone companies could sue in a federal court to enjoin enforcement of the order denying the temporary increases, though the main proceeding was still pending before the commission. where it was likely to continue for a very considerable period of time.-Northwestern Bell Telephone Co v. Hilton, U. S. D. C., 274 Fed. 384.

Trusts-Assignment

60. of Income.-An order by a cestui que trust of the income of a trust estate, directing the payment of future income "as it comes in" to S., is a mere direction. revocable at the will of the cestui que trust and not an assignment of future income, contrary to personal property law, § 15, especially where the cestui que trust afterward requested and received part of the income personally. In re Oakley's Estate, N. Y., 190 N. Y. S. 157.

to

61.- -Breach of Trust.-Where the objectors an accounting by an executor and trustee were married daughters and a son 22 years of age, who had kept the books of the estate. and all three knew of the executor's illegal investment of funds, and the litigation respecting such matter, an agreement and inventory signed by them, approving his accounts and releasing him generally would release him as to such breach of trust in the absence of fraud. In re Ungrich, N. Y., 190 N. Y. S. 187. 62.- "Next of Kin."-A deed of trust proyiding that benefits for life shall go to grantor's son, and on his death without children to his next of kin, does not entitle his widow to share in the trust fund, for the use of the words "next of kin," in connection with the phrase "in the manner and proportions directed by the laws of the state of New York for the distribution of the estates of persons dying intestate," have a controlling meaning, which excludes the widow.-United States Trust Co. v. Hoyt, N. Y.. 190 N. Y. S. 166. 63. Waters and Water Courses-Rates.Water rates fixed by a franchise to nish water to a village and its inhabitants are controlling. and establish the rates to be charged, in the absence of any other agreement to the contrary, although contracts subsequent to the date of the franchise were made for limited periods during the life of the franchise for the same rates as those contained in the franchise.-Waterloo Water Co. v. Village of Waterloo, N. Y.. 189 N. Y. S. 906.

fur

Central Law Journal.

St. Louis, Mo., December 16, 1921.

RENT LEGISLATION THAT FAILED.

A statute of the state of Texas provided that a tenant may recover twice the rental advanced, if the rental exceed one-third the value of the grain and one-fourth of the cotton crop. In Miller v. Branch, Tex. Civ. App., 233 S. W. 1032, the facts appeared as follows:

Appellant rented to appellee a certain tract of agricultural land for the period of time between January 1, 1919, and December 31, 1919, and for it the appellee paid in advance as rental $1,000 in cash. He cultivated the farm in grain and cotton during the year 1919 under the contract, and $1,000 was more than the total value of one-third of the grain and one-fourth of the cotton produced on the land. Under these facts it was alleged by appellee that the rental contract was null and void and in contravention of the provisions of article 5475, and that in these circumstances. he was entitled to recover from appellant $2,000, double the amount of rent paid, as a penalty under the provisions of said article of the statutes. The appellee recovere judgment for the amount claimed, and appellant appealed upon various grounds assigned, among which the statute is assailed as being in contravention of the due process clause of the Constitution of Texas (article 1, § 19) and of § 1, article 14, of the Constitution of the United States.

In passing on the validity of the statute, the Court said:

"That the enactment is repugnant to both the state and federal Constitutions in the respects complained of by appellant is the opinion of this Court, for which reason we sustained the views presented to us in behalf of appellant. At the present term of court in passing upon another case involving the same contentions, we have construed the provision of the statute here

assailed, and in that case already have held it to be in conflict with the abovementioned respective constitutional provisions. The case is styled Rumbo v. Winterrowd, and is reported in 228 S. W. page 258. There our views and the reasons sustaining them are fully expressed. They apply precisely to the case here presented. No reason for modifying or extending any part of that opinion occurs to us in connection with the instant case, and we therefore merely refer to the Rumbo case, above cited, for a full expression of the conclusions of law upon which we dispose of this appeal."

Cases upholding the New York rent statute were hauled out in support of the validity of the Texas law, but the Court disposed of them in the following language: "Appellee cites, as in conflict with the decision of this Court in the Rumbo case, the case of People v. La Fetra, 230 N. Y. 429, 130 N. E. 601, recently decided by the Court of Appeals of New York, and the case of Block v. Hirsh, 255 U. S., 41 Sup. Ct. 458, 65 L. Ed., also recently decided by the Supreme Court of the United States. The constitutionality of legislation to regulate housing conditions in New York City was upheld in the former case, and a law designed for the same purpose in Washington was held to be constitutional in the latter. In both instances there were vigorous dissenting opinions. We deem it unnecessary to discuss at length the holding of the majority in either case.

"The grounds, however, upon which the validity of the enactments in those cases was declared are not present in the legislative act which our decision in the Rumbo case nullifies. We perceive no analogy whatever between either of those decisions and that in the case of Rumbo v. Winterrowd. The legislative acts under consideration in both of those cases were designed to meet an emergency arising out of the disordered conditions and turmoil

resulting from the World War to which the inhabitants of those cities had fallen victim. Both measures were born of a

purpose, expressed in the legislative acts and recognized by the courts' decisions, to protect the public in a passing emergency in the nature of a public calamity for which the police power may always be invoked. The legislative acts pased upon in those cases were demanded to protect the health, the morals, and the general welfare of the public, which were ascertained to be threatened because of temporary abnormal conditions produced by world-wide warfare among all civilized peoples. The good of the whole public, in the situation dealt with, demanded suppression of the profiteer's greed as much as the public welfare demands suppression of the gamblers' depredations at all times. An examination of this Court's opinion in the Rumbo case reveals no statement questioning the right and authority of the legislature to bring into action the police power in such exigencies as those of which the legislative acts construed by the New York Court of Appeals and the Supreme Court took cognizance. But the situation and the conditions, to which the Texas statute construed by us in this case and the Rumbo case applies, are wholly disimilar to those passed upon in the cases cited. The act involved here arbitrarily imposed restrictions upon the classes to be affected in normal times, and as a permanent thing, destroying the right to contract with reference to a subject-matter unaffected 1. any public interest."

In the case of Block v. Hirsh, 255 U. S.-, 41 Sup. Ct. 458, the Court stated that the regulation there under consideration was put and justified only as a temporary measure. Further, in the same opinion the Court says: "Congress has stated the unquestionable embarrassment of government and danger to the public. health in the existing conditions of things. The space in Washington is necessarily monopolized in comparatively few hands, and letting portions of it as much a bus

iness as any other. Housing is a necessary of life. All the elements of a public interest justifying some degree of public control are present. The only matter that seems to us open to debate is whether the statute goes too far. For just as there comes a point at which the police power ceases and leaves only that of eminent domain, it may be conceded that regulations of the present sort pressed to a certain height might amount to a taking without due process of law."

In other words the legislation was upheld on acount of the abnormal condition brought about by the war.

B.

NOTES OF IMPORTANT DECISIONS.

RIGHT OF PRESIDENT OF CORPORATION TO ADMIT BANKRUPTCY.-It is quite an important question in the law of corporations whether the president of the corporation can commit the corporation either for or against insolvency by the filing of an answer to an involuntary petition in bankruptcy. The Circuit Court of Appeals (Second Cir.) held (one Judge dissenting) that he could do so where the directors were evenly divided over the question of confessing or denying bankruptcy. Regal Cleaners & Dyers v. Merlis, 274 Fed. 915.

The

In this case the petitioners filed a petition in the District Court to have the Regal Cleaners & Dyers, Inc., a New York corporation. adjudged an involuntary bankrupt. grounds alleged were insolvency and a preference and transfer made in fraud of creditors. An answer was filed, denying the allegations of the petition. It alleged that the petition was filed as a result of a conspiracy to accomplish the ruin of the alleged bankrupt corporation. It was verified by its president. A petition was then filed to strike out the answer from the files of the court below and the appearance made by the attorneys for the corporation, on the ground that the appearance of the attorneys and the verification and filing of the answer were unauthorized acts. It is conceded that the board of directors did not authorize the filing of the answer. There are four directors of the corporation, two of whom appeared to want the corporation

to be adjudicated a bankrupt, and two of whom opposed. The question presented was, under these circumstances, is it the duty or a president, and may he, without authorization from the board of directors, file an answer placing in issue the allegations of a petition setting forth acts of bankruptcy consisting of fraud and deceit to hinder and delay its creditors while insolvent?

in holding that the president had no exceeded his authority the Court said:

"If there exists a defense to this petition, while ordinary it is beyond the authority conferred upon a president of a corporation to interpose an answer, still circumstances may exist which, in equity, would require him ning an answer, although he has not the authority of a resolution or the board of directors of his corporation. If the company is solvent, for the president not to prevent such a result might cause irremediable injury, or perhaps total failure of justice to the stockholders. Under these circumstances, we think the president should, in the due performance of the duties of his office, verify and file an answer as such officer. Ordinarily he must make an earnest effort with the managing body of the corporation, the directors, to induce remedial action on their part, and this must be made apparent to the court. If he fails with the directors, he may then proceed. If he does not make request of the directors, he may show that a request would be futile. Such appears from the facts here. There is no showing that the directors have been requested and have refused, but it does expressly appear that two of the four directors are in favor of the adjudication in bankruptcy. Thus the vote is a tie. Under these circumstances, to apply to the directors for instructions would be futile. We think that the answer should be permitted to stand, and the issues as to the questions involved tried."

Justice Ward in dissenting, said:

"It is quite inconceivable to me that the president by virtue of his office can commit the company either way, more especially in a case like the present, where he is one of four directors who are equally divided in opinion and who own the whole capital stock of the company in equal shares. The attitude of the company is to be determined by the board of directors and when the board of directors is equally divided the company can neither resist nor consent to an adjudication. There fore I think the motion to strike the answer and the appearance of attorneys in support of it from the files of the court as unauthorized by the company should have been granted. This would have left the court under § 18e of the Bankruptcy Act either to make an adjudication as upon default or to dismiss the petition, if any fatal legal defects appeared on the face of it. The court below did not know, and we do not know, which of these contesting parties was right. The question was purely one of law, and it seems to me that a practice is approved which may hereafter lead to dangerous consequences."

It seems to us that the majority of the Court reached the correct conclusion. If there was, in fact, a defense to be made to this proceeding some one should have set it up. Even a majority of the Board could not refuse to get up such a defense and if it did so any stockholder could intervene (at least in an equity suit) and set up a defense which the corporation should have made.

THE OBLIGATION OF FEDERAL JUDGES TO HOLD NO OTHER SALARIED POSITION, PUBLIC OR PRIVATE.* ·

Under the terms of the Constitution of the United States, the Judges of the Supreme Court and the inferior courts established by the Congress hold their offices during the good behavior and receive for their services a compensation which cannot be diminished during their continuance in office. (Const., Art. III, § 1).

The jurisdiction of all courts, except that of the Supreme Court, is derived from and is subject to the absolute control of Congress and may be taken away or changed at its pleasure (See Stuart v. Laird, 1 Cranch. 299; U. S. v. Haynes, 29 Fed. Rep., 691, 696). The District Courts of the United States were created by the Judiciary Act of 1789 in thirteen districts (Act of September 24, 1789, § 4) and as the country developed other districts have from time to time been created, so that there are now 78 judicial districts divided among nine judicial circuits.

The original jurisdiction conferred by the Judicial Code on the District Courts is embraced under twenty-five different heads (J. C., § 24), and covers practically all civil causes at law or in equity, admiralty, patent, trade mark and copyright law, bankruptcy, monopolies and revenue and postal

*This contribution took the form of a letter addressed to our contemporary, the New York Law Journal, by Mr. Justice Benedict of New York, and a copy sent to a New York member of Congress. It discusses an issue which has agitated the profession during the last year.

laws and other matters of civil jurisdiction, as well as of all crimes and offenses cognizable under the authority of the United States.

It is apparent that with the rapid growth. in population there is at all times a corresponding growth in the number of cases cognizable by the District Courts. That this fact is being recognized in Congress, I refer to the table published in the Congressional Record recently, from statistics furnished by the office of the attorney-general and referred to in the remarks of Senator Spencer of Missouri on the "Dockets of the Federal Courts."

From this table and the debate in the Senate it is found that the number of cases commenced in 1920 was 91,254 as against 50,691 in 1912; the number of cases pending at the end of 1920 was 118,744 as against 102,299 at the end of 1912, and it was estimated that at the end of 1921 this number would increase to 140,000 cases, of which about one-half would be criminal and one half civil in character.

There is now pending in Congress a bill to increase the number of district judges by eighteen, and, in support of this measure, the Chief Justice of the United States has recently appeared before a committee of the Senate to urge the enactment of the

measure.

It can hardly be doubted, in view of the condition of the dockets of the federal district courts of the country, that every one of the judges now charged with the duty of administering justice in these courts is urgently needed, in the language of the oath which he takes, faithfully and impartially to discharge and perform all duties. incumbent upon him according to the best of his abilities and understanding, agreeably to the constitution and laws of the Tnited States.

The district judges are clothed, under the Judicial Code, with very great power and authority, over the lives and property of the persons and corporations within the jurisdiction of the courts of the United

States. In addition to the duties imposed on them as district judges they are competent to sit in the Circuit Court of Appeals within their own circuits.

They are furthermore authorized to sit anywhere in the United States when, on account of absence or inability of a district judge or of the accumulation or urgency of business, the public interests require that they shall be designated or appointed to sit in a circuit other than their own, and while so sitting to have the same powers as the judge of the district requiring such relief.

The

It is evident that the office of district judge is, under our laws, an office which demands and usually commands the very highest quality of judicial service. district judge is selected by the President, by and with the advice and consent of the Senate, and holds his office practically for life, because although under the Constitution he holds it "during good behavior," he cannot be compelled to resign it, but has the option to resign after he shall have held his commission for ten years and has attained the age of seventy years, whereupon, during the residue of his life, he continues to receive the same salary as before his retirement.

The Constitution and laws have thrown around the office great safeguards for the maintenance of the independence of the court by giving the judge a tenure practically for life, with a fixed compensation which cannot be diminished, and by removing from him any necessity for engaging in politics in order to remain upon the Bench. No system ever devised by the wisdom of mankind was better calculated to create and maintain all those attributes of justice on which the whole framework of our judiciature rests.

More than 130 years ago Alexander Hamilton, in discussing the plan of the convention that all judges who may be appointed by the United States are to hold their offices during good behavior, wrote in the Federalist (No. 58): "The stand