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changed sufficiently so that, in the opinion of the court, the rule is inapplicable. Sometimes, but very rarely, the highest court of a State will reverse a ruling made by the same court (differently composed probably) at an earlier date. This happens so seldom, however, as not to affect the general proposition.
Pennsylvania Statements. A Pennsylvania court sheds light upon the subject in stating that:
“The Common Law of the United States is composed partly of the Common Law of England, and partly of the usages which have grown up in and are indigenous to the United States. When the ancestors of the people of the United States emigrated from the mother country, they brought with them such principles only as they deemed expedient for the situation in which they were about to place themselves.”
A similar view is expressed in two other cases, both of them in Pennsylvania:
"It is the very essence of Common or Customary Law that it consists of those principles and forms which grow out of the customs and the habits of the people. It is therefore involved in its very nature that only so much of the English Law as is adapted to our circumstances and customs, is properly recognized as part of our Common Law.”
“Common Law grows out of the general customs of the country, and consists of definitions of these customs and those auxiliary principles that naturally accompany them, or are deduced from them. The Common Law of one country or century is not necessarily the Common Law of another, because customs change."
Thelary principles thountry, and co
Common Law in Different States. Following the principle of these Pennsylvania rulings, it happens that, under the different conditions prevailing in various States of the United States, the law in one of these States has come to differ in some particulars from that in another, although in general the main lines of the Common Law will be the same throughout all the States. Louisiana alone of the States is not governed by the Common Law; another system, the Civil Law, acquired from France, which will not be discussed here, has attained a foothold so strong that it still forms the basis of the law for that State. Each State of the Union is a sovereign State, and is thus independent of other States in the operation and control of its internal affairs. Especially is this true of its courts, which determine its laws; and the highest court of any State (generally called the “ Supreme Court ”) is not controlled or bound by the action of the courts of any other State, nor even by the courts of the United States in any controversies as to matters within the State when the parties to it are citizens of that State. One exception is when there is some conflict with a provision of the Constitution of the United States; in this case an appeal may be carried to the Supreme Court of the United States. Another apparent exception lies in the fact that the United States courts are available and a proper resort for the trial of cases or controversies between citizens of different States.
Systems of Courts. In each State there are courts of higher jurisdiction and of inferior jurisdiction. In most States the court of highest jurisdiction is called the Supreme Court. The inferior courts are designated differently in different States; in Massachusetts the Superior Court is the second in dignity; there is also a Municipal Court; and, as in most States, there are also the minor courts presided over by justices of the peace. The Supreme Court is made up of a number of judges who together act in determining the law and formulating the “decisions ” of this Supreme (or highest) Court; these decisions are recorded and printed, and it is now well settled that they are absolutely binding upon any lower court in the same State. The Supreme Court of a State may (but very rarely does) reverse an earlier decision of the same court, as has already been stated. The inferior court has absolutely no discretion; it is strictly held by the decisions of the Supreme Court of its State. While the decisions in one State are not binding upon the courts of another State, yet even here they are entitled to, and do in fact receive, the greatest consideration, and in a large share of cases will be accepted as conclusive. It is true, however, that the decisions of the courts of some of the States are regarded more highly than those of other States.
Reports of Decisions. In this way have grown up a vast number of printed reports, and from the decisions found in these reports can be extracted, if one be wise and skilful, what the established law is; that is, the “ Common Law.” It should be understood that the opinion of a judge has force in the Common Law only upon the points specifically in controversy before him. Each case is tried, the two sides are presented by their respective lawyers, and the case is decided in harmony with other decisions to be sure, so far as the cases are parallel, but, so far as new principles are involved, according to what the court believes to be right and just.
Textbooks. Textbooks of law are valuable as compilations of the law as found in law reports; often the text is in reality a series of quotations from reports. So far as the author of a textbook expresses opinions of his own, they are of no binding force upon any court, and are valuable only as these opinions are sound and likely for this reason to favorably impress the mind of the judge.
Sense of Right and Justice. So far does the spirit of right and justice enter into the law that some good lawyers believe that a fine sense of right and wrong is well-nigh the best equipment any lawyer can have. A keen
sense of what is right and what ought to be the law in a special case will often lead to the discovery that this is in fact the law.
It cannot be too strongly emphasized that the fundamental basis of the Common Law is right and justice; with this is a recognition of the fact that in many cases business custom determines what it is right to do, and that certainty and stability as to right action are essential if correct relations and conduct are to be secured.
Value of Stability for Engineers. Following the principle underlying the Common Law that stability is a prime necessity, it would add much to the dignity and the respect accorded to the profession of engineering, to the engineer and surveyor, if greater stability was secured from their work. A boundary line once reasonably fixed by one surveyor should be held to by another surveyor unless definitely found to be in error. In other directions, unnecessary disagreements should be avoided, and, so far as reasonable, engineering should be recognized as fixed and definite in its principles. The entire profession of engineering suffers when the work of a reputable engineer is unnecessarily attacked or held up to contempt.
STATUTE LAW Statute Law to Meet Changed Conditions. As has been suggested previously, it will be found sometimes that what seemed right and just a hundred years ago may cease to be right and just now; this is one reason for the passing of laws or statutes. Statute Law serves various purposes ; it sometimes changes the older Common Law; it sometimes provides for different penalties, or different legal procedure. In any case it does away with previous law inconsistent with it. A later statute as a rule repeals all earlier conflicting laws whether Statute or Common Law.
Definition. Statute Law consists of acts or statutes passed in set terms by the proper legislative bodies. It may be divided into three classes ; declaratory, remedial, and penal. Sometimes the statute is 1 passed for the purpose of clearing a doubt which may exist in the Common Law, and in this case it is called " declaratory”; when the statute is passed to remedy what seems to have become a defect, or an injustice, in the “ Common Law,” or to improve the procedure, it is “remedial,” and a statute which provides for the imposition of a penalty is called a “penal” statute.
Example. Interstate Commerce Act. The original Interstate Commerce Act of 1887 is partly declaratory, as where, in Sections 2 and 3, it declares it unlawful (which was already the case) for any common carrier to charge or receive from one person more or less than from another for the same service, or to give undue preference to one over another; it is
partly remedial, where in Section 11, a commission is created; also where in Section 15, provision is made for a hearing rather than a suit, and an opportunity is given for the carrier to make reparation for a wrong found to be done, thus providing a new and simple remedy; and it is partly penal, as in Section 10, which provides that for infractions of this act by discrimination in rates there may be imposed a fine or sentence of imprisonment. So far as some of the declaratory clauses lead to penalties in later sections, the whole effect becomes penal rather than otherwise, but there are remedial clauses independent of penal clauses, so that this act, or law, or statute, may fairly be considered to combine all three classes ; declaratory, remedial, and penal.
Constitutional Questions. It has already been stated that a statute sets aside or “repeals” the earlier Common Law so far as the latter is antagonistic to the former. It should further be understood that although the state or national government has three different sides, executive, legislative, and judicial, it may, and sometimes does, happen that the legislative branch passes and the executive approves some act which is illegal, being contrary to that part of the law of the land which is supreme and enduring, the Constitution of the State, or of the United States. The foremost question as to the provisions of any written law will usually be with every legal mind, “ Does it interfere with any constitutional provision, State or federal ?" In case it does, the courts declare such a statute unconstitutional. An act which seems unfair, senseless, unwise, will not be set aside for that reason; to be void it must contravene some constitutional right of an individual, community, or State.
Examples. As an instance of constitutional law affecting statutes, the Constitution of the United States provides that no State shall pass any law impairing the obligation of contracts; State constitutions commonly provide that private property shall not be taken, even for a public use, without just compensation and without due process of law. These rules or principles are meritorious rather than technical and are desirable for every one to keep in mind. An engineer's judgment on either of these propositions will often be keen and correct, and justify him in consulting competent legal authority (insistently, if necessary) for an opinion on this point. The engineer finds it necessary to secure by right of eminent domain, land for a city street, for a reservoir, for a public water supply, for right of way of a railroad; the statute which provides for so taking land makes provision for determining the compensation to be paid, and arranges for a convenient and also constitutional legal process.
Master and Servant. The “ Employers' Liability Act” or statute is not without interest to engineers in connection with the discussion in this chapter, although it will be treated more fully later. Under the Common Law of “master and servant,” the master is responsible for the acts of his servant, or employee, performed (or neglected) in the line of his duties. This rule is of long standing.
Fellow Servants. Between 1830 and 1840 conditions existed which led to the establishment from that time forward of a new rule affecting many cases, the law of “fellow servants." Under this rule of the Common Law, one employee could not recover from his employer for injuries received through the carelessness or neglect of a fellow-servant or coemployee in those cases where an outsider clearly could secure compensation if injured.
Law Stated. One of the decisions under the Common Law reads as follows:
“When a master uses due diligence in the selection of competent and trusted servants, and furnishes them with suitable means to perform the service in which he employs them, he is not answerable when there is no countervailing statute, to one of them for an injury received by him in consequence of the carelessness of another, while both are engaged in the same service.” “The ordinary risks of the employment” “are taken into consideration" "in agreeing to the terms of the contract," "including the negligence of competent fellow-servants."
The employer was responsible for discoverable defects of machinery or apparatus or plant, but not for neglect of a co-employee if proper care was exercised to provide competent and suitable workmen.
It became difficult sometimes to determine whether an accident was chargeable to a co-employee or to the employer, perhaps where a piece of apparatus was slightly defective and was carelessly used by a co-employee. After a time the courts had also come to show some disposition to hold corporations responsible where an accident was caused by the negligent or improper act of an officer high in authority in the corporation, in one case by an employee no higher than the conductor of a railroad train.
Employers' Liability Act. Finally in 1880, in England, a statute was passed known as the “ Employers' Liability Act.” Afterwards in 1885, 1887, and at other times later, in several of the United States, similar statutes were passed. These somewhat enlarged the responsibility of the employer, specifically holding that the acts of the superintendent should not have the effect of those of a co-employee; while in the case of a railroad the Massachusetts act provides that, when the injury results from “the negligence of a person in the service of the employer who was in charge or control of a signal, switch, locomotive engine or train upon a railroad," and the injured employee did not contribute to the negligence, he shall have the same rights as if he had not been in the employ of the employer; and this has been liberally construed in favor of employees. The Massachusetts act is substantially a copy of the English