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offense, to any greater or different amendment were not intended to punishment.” In that case a heavi- limit the powers of the state gover penalty was prescribed when the ernments in respect to their own crime of adultery was committed by people, but to operate on the naa white person and a negro than in tional government alone, was dea case where the crime was com- cided more than half a century ago, mitted by persons of the same race and that decision has been steadily and color. It is apparent that the adhered to since." respective criminal acts in $$ 2 and See also Presser v. Illinois, 116

5 are not of the U. S. 252, 265, 29 L. ed. 615, 618, 6 -difference in penalty.

same import, and Sup. Ct. Rep. 580.

so far as the penal- If there is an inhibition upon the ty is concerned it may be assumed legislature, it must be found in the that the legislature regarded the state Constitution, and not in the possession of concealed weapons by 2d Amendment of the Federal Conaliens of graver consequence than stitution. The Constitution of this in the case of citizens having such state contains no provision on the possession without a license.

subject. An examination of the (b) The second point is that the numerous authorities in various right of the people to bear arms is states will show that the right to infringed upon by this statute. The keep and bear arms as guaranteed 2d Amendment of the Constitution by a state constitutional provision of the United States is as follows: similar to the Federal Amendment “A well-regulated Militia being refers only to the necessary to the security of a free bearing of arms by Carrying, weapstate, the right of the people to keep the citizens in de- tional law-exand bear arms, shall not be in fense

tent of right to of

com- bear arms. fringed."

mon cause, and not It will suffice to state that this to their use in private broils and point is without merit, since this affrays. Thus, it is not an invaAmendment offers no protection sion of the right to make it unlawagainst the state governments, but ful for any person to carry a dirk,

applies only to the sword cane, Spanish stiletto, or -right to bear

Federal govern- other similar weapon. Aymette v. ment. “The right State, 2 Humph. 154; State v.

of the people to Wilburn, 7 Baxt. 57, 32 Am. Rep. keep and bear arms" is not a right 551; Andrews v. State, 3 Heisk. granted by the Constitution. Nei 165, 8 Am. Rep. 8; English v. State, ther is it in any manner dependent 35 Tex. 473, 14 Am. Rep. 374; upon that instrument for its exist

State v. Workman, 35 W. Va. 367, ence. The 2d Amendment declares

14 L.R.A. 600, 14 S. E. 9. It may that this right shall not be in

be remarked that an absolute prohifringed, but this means no more

bition of such right might be held to than that it shall not be infringed infringe a fundamental right.

In Nunn v. State, 1 Ga. 243, the by Congress. This Amendment

court said: “We are of the opinion, one of those that have no other ef

then, that so far as the Act of 1837 fect than to restrict the powers of

seeks to suppress the practice of the national government, and not carrying certain weapons secretly, those of the state. United States v. that it is valid, inasmuch as it does Cruikshank, 92 U. S. 542, 553, 23 not deprive the citizen of his natural L. ed. 588, 591. See also Miller v. right of self-defense, or of his conTexas, 153 U. S. 535, 38 L. ed. 812, stitutional right to keep and bear 14 Sup. Ct. Rep. 874. It was said arms. But that so much of it as in Spies v. Illinois, 123 U. S. 131, 31 contains a prohibition against bearL. ed. 80, 8 Sup. Ct. Rep. 21, ing arms openly is in conflict with 22: “that the first ten articles of the Constitution, and void, and that,

arms-effect on state government.

(- Cal. 226 Pao. 914.) as the defendant has been indicted (c) The conclusions that the and convicted for carrying a pistol, legislation comes within the police without charging that it was done power, and that it is a reasonable in a concealed manner, under that exercise thereof, render unnecesportion of the statute which entire- sary any discussion of the last ly forbids its use, the judgment of point that rights of private propthe court below must be reversed, erty under $ 17, art. 1, of the state and the proceeding quashed.'

Constitution, are infringed by the It appears, therefore, that, al- statute in question, though state Constitutions declare

since the principle law-protection

Constitutional that every citizen has the right to of law that private of private prop

. bear arms, in defense of himself property rights of and the state, and do not expressly individuals are required to yield or by implication deny to the legis- when in conflict with reasonable polature the right to enact laws in re

lice regulations is applicable. 5 Cal. gard to the manner in which arms

Jur. 882. shall be borne, this can be done, and

Writ discharged and petitioner the absence of such a guaranty in

remanded. the state Constitution leaves the legislature entirely free to deal with We concur: Myers, Ch. J.; Waste, the subject.

J.; Richards, J.; Seawell, J.


Constitutionality of statutes restricting right of aliens to bear arms.

This annotation is supplemental to capable of being concealed upon the the annotation in 24 A.L.R. 1119, person. The court holds that the statwhere the earlier cases are collected. ute is a reasonable exercise of the

Since the earlier annotation, the police power, and consequently does only case found upon the subject is not violate the 14th Amendment to the reported case (EX PARTE RAMERIZ, the Constitution of the United States, ante, 51). It will be seen that there- nor § 17, art. 1, of the California Conin the court sustains the constitu- stitution relating to the rights of tionality of a statute prohibiting un- private property. The court further naturalized foreign-born persons from points out that the 2d Amendment to owning or having in their possession, the United States Constitution relates or under their custody or control, any only to the Federal government. pistol, revolver, or any other firearm

B. B. B.

[blocks in formation]

Negligence, $ 11 - action for false inspection report.

1. One purchasing rails from another has no right of action against one who inspected them for the latter, for a false report, although he acted upon the report so made.

[See note on this question beginning on page 67.]

Negligence, 8 11 — necessity of privity flicting the injury and the person into sustain action.

jured, by which the former owes some 2. To sustain an action for negli- duty to the latter. gence, some privity must exist, by con- [See 20 R. C. L. 49; 3 R. C. L. Supp. tract or otherwise, between the one in


CERTIORARI to the First Branch of the Appellate Court, First District, to review a judgment affirming a judgment of the Superior Court for Cook County (Baldwin, J.) in favor of plaintiff in an action brought to recover damages alleged to have been sustained by the negligence of defendant in the inspection of steel rails. Reversed.

The facts are stated in the opinion of the court.

Messrs. Goodrich, Vincent, & Brad- 678, 12 L.R.A. (N.S.) 449, 102 S. W. ley, Warren Nichols, and Frank L. 901, 12 Ann. Cas. 407; Thomas v. Wolf, for plaintiffs in certiorari: Lane, 221 Mass. 447, L.R.A.1916F,

Under the general rule, one who con- 1077, 109 N. E. 363; Landell v. Lytracts with another to inspect ma- brand, 264 Pa. 406, 8 A.L.R. 461, 107 terials is not liable to third parties Atl. 783; National Iron & S. Co. v. who have no contractual relations Hunt, 192 Ill. App. 215; McCaffrey v. with the one who contracts, for his al- Mossberg & G. Mfg. Co. 23 R. I. 381, leged negligent inspection.

55 L.R.A. 822, 91 Am. St. Rep. 637, 50 Gordon v. Livingston, 12 Mo. App. Atl. 651; O'Brien v. American Bridge 267; National Sav. Bank v. Ward, 100 Co. 110 Minn. 366, 32 L.R.A. (N.S.) U. S. 195, 25 L. ed. 621; Winterbottom 980, 136 Am. St. Rep. 503, 125 N. W. v. Wright, 10 Mees. & W. 109, 152 Eng. 1012. Reprint, 402, 11 L. J. Exch. N. S. 415; An expert called upon to render exAlbany v. Cunliff, 2 N. Y. 165; Necker

pert service is not liable for an error v. Harvey, 49 Mich. 517, 14 N. W. 503; in judgment, in the absence of proof Daugherty v. Herzog, 145 Ind. 255, 34 of negligence. L.R.A. 837, 57 Am. St. Rep. 204, 44 N. 25 C. J. 176; McDonald v. The Tom E. 457; Curtin v. Somerset, 140 Pa. 70, Lysle, 48 Fed. 690; Stevens v. Walker, 12 L.R.A. 322, 23 Am. St. Rep. 220, 21 55 Ill. 151; Morrison v. Burnett, 56 Ill. Atl. 244; Kahl v. Love, 37 N. J. L. 5; App. 129; McKee v. Allen, 94 Ill. App. Zweigardt v. Birdseye, 57 Mo. App. 147; Goodman v. Bigler, 133 Ill. App. 462; Thomas v. Guarantee Title & T. 301; Sanitary Hair Goods Co. v. ElliCo. 81 Ohio St. 432, 26 L.R.A. (N.S.) ott, 191 Ill. App. 563. 1210, 91 N. E. 183, 2 N. C. C. A. 80; Messrs. Adams, Follansbee, Hawley, Buckley v. Gray, 110 Cal. 339, 31 L.R.A. & Shorey, for defendant in certiorari: 862, 52 Am. St. Rep. 88, 42 Pac. 900; Liability of one party to a contract, Heizer v. Kingsland & D. Mfg. Co. 110 for negligence, to a third party not a Mo. 605, 15 L.R.A. 821, 33 Am. St. party to the contract, rests on the Rep. 482, 19 S. W. 630; Mallory v. Fer- principle that if a person undertakes guson, 50 Kan. 685, 22 L.R.A. 99, 32

to do an act or discharge a duty by Pac. 410; Missouri ex rel. Harshman which the conduct of a third party may v. Winterbottom, 123 U. S. 215, 31 L. be properly regulated and governed, he ed. 124, 8 Sup. Ct. Rep. 98; McCornick

is bound to perform such an act in v. Western U. Teleg. Co. 38 L.R.A. 684, such a manner that such third party, 25 C. C. A. 35, 49 U. S. App. 116, 79 rightfully led to a course of conduct Fed. 449; Bragdon v. Perkins-Camp- or action on the faith of such act, will bell Co. 66 L.R.A. 924, 30 C. C. A. 567, not suffer injury by reason of any such 58 U. S. App. 91, 87 Fed. 109, 5 Am. negligence in its performance. Neg. Rep. 277; Pittsfield Cottonwear Glanzer v. Shepard, 233 N. Y. 236, Mfg. Co. v. Pittsfield Shoe Co. 71 N. 23 A.L.R. 1425, 135 N. E. 275; Cann v. H. 522, 60 L.R.A. 116, 53 Atl. 807, 13 Wilson, L. R. 39 Ch. Div. 39, 57 L. J. Ch. Am. Neg. Rep. 363; Huset v. J. I. Case N. S. 1034, 59 L. T. N. S. 723, 37 Week. Threshing Mach. Co. 61 L.R.A. 303, 57 Rep. 23; Anderson v. Spriesterbach, C. C. A. 237, 120 Fed. 865; Western 69 Wash. 393, 42 L.R.A.(N.S.) 176, U. Teleg. Co. v. Schriver, 4 L.R.A. 125 Pac. 166; Murphy v. Fidelity Ab(N.S) 678, 72 C. C. A. 596, 141 Fed. stract & Title Co. 114 Wash. 77, 194 538; Equitable Bldg. & L. Asso. v. Pac. 591; Economy Bldg. & L. Asso. Bank of Commerce & T. Co. 118 Tenn. v. West Jersey Title & G. Co. 64 N. J.

(312 Ill. 245, 143 N. E. 833.) L. 27, 44 Atl. 854; MacPherson v. paid the total purchase price. Some Buick Motor Co. 217 N. Y. 382, L.R.A. weeks later the rails were delivered 1916F, 696, 111 N. E. 1050, Ann. Cas. to a customer of defendant in error, 1916C, 440, 13 N. C. C. A. 1029; 21

and he refused to accept them upon Harvard L. Rev. 440; 29 Cyc. 425;

the ground that they were not firstO'Brien v. American Bridge Co. 110 Minn. 364, 32 L.R.A.(N.S.) 980, 136

class relaying rails. Robert W. Am. St. Rep. 503, 125 N. W. 1012.

Hunt & Company was employed by

defendant in error to inspect these Thompson, J., delivered the opin

rails for it, and the inspector who ion of the court: Robert W. Hunt & Company, a

inspected the rails in Texas recopartnership engaged in the busi

ported that they were not first-class ness of inspecting and testing con

relaying rails. Thereupon defendstruction and building materials,

ant in error brought an action of was employed by the H. M. Foster

trespass on the case in the superior

court of Cook county against plainCompany, of Baltimore, Maryland, dealer in steel rails, to inspect a cer

tiffs in error, and recovered dam

ages amounting to $4,688.24. On tain lot of secondhand relaying rails

the trial plaintiffs in error rewhich the Foster Company had purchased from the Jos. Joseph & quested the court to instruct the Brothers Company, subject to such jury to find for them, and this re

quest was denied. At the concluinspection. Robert W. Hunt &

sion of the trial a motion in arrest Company had been in business for more than twenty-five years, and at

of judgment was made and overthe time this inspection was made ruled, and judgment was entered on

the verdict. The appellate court afit inspected approximately 80 per

firmed the judgment, and the cause cent of the relaying rails sold in

is here by certiorari. this country. The inspection was

For an injury arising from mere completed early in April, and a final

negligence, however gross, there certificate, dated April 16, 1913, was issued to the Foster Company, flicting the injury

must exist between the party inshowing that the rails had been

and the one injured Nesenstecer shipped from the Coney Island &

some privity, by privity to susBrooklyn Railroad Company for the

contract or otherJos. Joseph & Bros. Company on ac

wise, by reason of which the former count of the Foster Company, and consigned to the last-named com

owes some legal duty to the latter. pany at Norfolk, Virginia. May

With respect to the inspection made

in April for the H. M. Foster Com27 the Foster Company sold these rails to the National Iron & Steel

pany, there were no contractual re

lations between defendant in error Company, of Houston, Texas, de

and plaintiffs in error.

It was fendant in error, and thereafter by

more than a month after this conletter requested Robert W. Hunt &

tract for inspection was completed Company to strike from the certifi

before defendant in error entered cate of inspection the name of the

into negotiation with the Foster Jos. Joseph & Brothers Company Company for the relaying rails in and to show the destination to be

question. Before defendant in erGalveston, Texas, and to change the ror purchased these rails it did not date of the report to June 3. Rob- request or receive a report from ert W. Hunt & Company refused to plaintiffs in error, but it apparently change the date of the report, but acted upon the report made by complied with the request in other plaintiffs in error to the Foster respects. The Foster Company at- Company in April. Plaintiffs in tached the revised certificate of in- error owed no duty spection and the bill of lading to a to defendant in er- false inspection sight draft which it forwarded to ror at the time this defendant in error, and the latter report was made, or at the time it

tain action.

34 A.L.R.-5.

-action for


acted upon the report. Their con- sought to recover damages from the tract was with the Foster Com- attorney because of his negligent pany, and their undertakings were examination of the title, but the necessarily subject to modifications court held that there was no privity and waiver by the contracting par- of contract between the attorney ties. If defendant in error or other and B, and that the former was not third persons can acquire a right in liable to B for any loss sustained this contract, the contracting par by reason of the opinion furnished ties are deprived of control over to A. In Thomas v. Guarantee Title their own contract. The fact that & T. Co. 81 Ohio St. 432, 26 L.R.A. plaintiffs in error held themselves (N.S.) 1210, 91 N. E. 183, 2 N. C. out as expert inspectors, and the C. A. 80, an action was brought to fact that business men relied upon recover damages from an abstracter their reports in purchasing mate- who had furnished to the owner of a rials, do not change the rule. They tract of land a defective abstract only assumed the duties and obliga- of title. A subsequent purchaser tions of experts when they were em- sought to maintain the action on the ployed to render expert services, ground that parties dealing in real and their obligations in that regard estate rely upon abstracts furnished extended only to persons


former owners, and that the abbought and paid for their services. stracter owes a legal duty to all per

In Gordon v. Livingston, 12 Mo. sons dealing with the land to make App. 267, Livingston, an expert the abstract accurate. The court grain inspector, certified to a mill held that there was no contractual that certain wheat was No. 1 red relation between the abstracter and winter wheat, when in fact it was the subsequent purchaser, and that of an inferior grade. The mill sold usage or custom could not create a the wheat to Gordon, and he, rely- contract or a liability where none ing on the certificate of inspection, otherwise existed, and concluded paid for the wheat without examin- that the action could not be main

It was held that Gordon tained. In Buckley v. Gray, 110 could not recover damages from Cal. 339, 31 L.R.A. 862, 52 Am. St. Livingston, for the reason that

that Rep. 88, 42 Pac. 900, it was held Livingston owed no legal duty to that an attorney employed to draw Gordon. In Kahl v. Love, 37 N. J. a will is not liable to a person who, L. 5, a collector of taxes issued a through the attorney's neglect or receipt showing payment of certain ignorance in the discharge of his taxes in full, when in fact a part professional duties, has been deof the taxes was unpaid. The lots prived of the portion of the estate subject to these taxes were sold, and which the testator instructed the atthe purchaser sought to recover torney should be given such person damages from the collector by rea- by his will; the basis of the decison of his neglect in issuing the sion being that there was no privity false receipt, but recovery was de- between the attorney and the disapnied. In National Sav. Bank v. pointed beneficiary. In Landell v. Ward, 100 U. S. 195, 25 L. ed. 621, Lybrand, 264 Pa. 406, 8 A.L.R. 461, an attorney certified to A that he 107 Atl. 783, it was held trespass had a clear title to a certain lot. A for neglect will not lie against cerapplied to B for a loan, and B, rely- tified public accountants, by one ing on the opinion of the title fur- having no contractual relation with nished by the attorney to A, loaned them, for loss caused by reliance the money.

Payment not being upon their false report in purchasmade when due, B sought to collecting stock of a corporation upon by selling the premises, and discov- which they reported, where the reered that A had no title to the lot port was shown to the purchaser by and was insolvent. Thereupon B one suggesting the purchase, and

ing it.

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