Lapas attēli
PDF
ePub

Central Law Journal.

ST. LOUIS, MO., APRIL 2, 1920.

CONSTRUCTION OF THE EIGHTEENTH AMENDMENT.

The decisions which have been handed down recently touching the subject of national prohibition of the liquor traffic are all based on a construction of the Volstead Act and of the Lever Act and not of the Eighteenth Amendment. The opinion in the recent case of Teigenspan v. Bodine, however, rendered by Judge Rellstab in the United States District Court (Dist. of N. J.) is a full discussion of practically all the objections raised against the validity of

this Amendment.

The objections raised were to the Amendment itself and to the Act of Congress providing for its enforcement. These objections were prepared and briefed by Hon. Elihu Root and Mr. William D. Guthrie, both of New York, and will be interesting, no doubt, to lawyers who desire to keep in touch with the manner of attack that is to be made upon the Amendment and upon the legislation passed in pursuance thereof.

The attack is made in two divisions. The first division advances its argument against the "alleged invalidity of the Amendment;" the second, against the "alleged invalidity of the National Prohibition Act." The first division is again divided into the following units: That the Amendment is invalid, first, "because of its subject matter;" second, "because Congress failed to propose the amendment in the only way authorized by Article V;" third, "because the amendment has not been ratified by the requisite number of states." The second division is subdivided as follows: The National Prohibition Act is invalid, first "because the act lacks the concurrence of the State of New Jersey;" second, "because its clefinition of intoxicating liquor is wholly without basis in fact, and, therefore, arbitrary and oppressive:" and third, "because it takes without compensation and destroys

plaintiffs non-intoxicating beverages without due process of law in violation of the fifth article of amendment to the Constitution."

The Court in the Feigenspan case fully discusses and denies the efficacy of each point in plaintiff's brief. We can here do no more than quote briefly from the Court's opinion. As the first point of attack upon the validity of the amendment the Court expresses great surprise. The plaintiff's contention was that an amendment to the Constitution must be germane to the purposes of that instrument and in harmony with the nature of the compact entered into between the states and that all other amendments are void. "If the plaintiff is right, says the Court, there is no way to incorporate it and others of like character, into the national organic law, except through revolution. This is so startling a proposition that the judicial mind may be pardoned for not readily acceding to it, and for insisting that cnly the most convincing reasons will justify its acceptance." tify its acceptance." The Court further said that "the definition of the word 'amendment' include additions to as well as corrections of matters already treated, and there is nothing in its immediate context (Article V) which suggests that it was used in a restricted sense.'

The Court further declared that "the right of the people by their representatives acting in accordance with Article V to write legislation into their organic law is not without precedent. A striking example is found in the thirteenth article of amendment, prohibiting slavery throughout the United States. Abhorrent as it is to us of this day, the doctrine that one human being might have ownership in another and traffic in him as if he were a chattel had a legal basis. * By substituting 'Slaves'

in the thirteenth amendment for 'intoxicating liquors for beverage purposes' in the eighteenth amendment, we have in legal effect the same kind of mandatory prohibition. Every argument advanced here to deny the power to incorporate the eighteenth amendment into the Constitution could be

applied equally against the power to ordain the thirteenth amendment."

the prohibited business is carried on exclusively within a state or extends beyond.

* * *

"This power so to enforce is granted to both Congress and the states. The word

'concurrent' does not divide the power, but authorizes them both to exercise it by 'ap* * The failure of Congress to enact enforcing legislation would not effect the right of the states to do so.

* *

The Court passes the point that the amendment was not properly adopted by Congress with slight comment and indicates that it regarded it as being wholly without merit. The third point was treated as be-propriate legislation.' * ing equally untenable. The ratifications by the requisite number of legislatures cannot be affected by state constitutional provisions imposing further restrictions before an act of the legislature shall be binding, for the reason, as the Court thinks, that the states cannot of their own motion amend the federal Constitution which requires only the assent of the legislature and not of the people of the state.

Judge Rellstab evidently believes, as many iawyers believe, that the strongest point of attack on the 18th Amendment is not as to its validity but upon the construction of the word "concurrent" and the power of Congress to define the term "intoxicating liquors," for on these two points the Court goes into a full and careful analysis of the meaning of the Amendment. As to the meaning of the word "concurrent" the Court says that if it means "acting together" then Congress and the legislatures of the several states would have to agree upon every phase of the intended enforcing legislation. "To impute to Congress," declares the Court, "and the ratifying states such an impracticable purpose in the use of that word, is unthinkable, and such imputation is not to be accepted unless no other meaning of the word is permissible or it clearly appears that such restricted meaning was the only one in the mind of Congress when this section was framed."

The Court believes that the word "concurrent" should have the second signification given in the Century Dictionary: "Contributing to the same event or effect." On this point the Court further said:

"The prohibition of the first section of the amendment is self-executing to the extent that it outlaws the manufacture of and commerce in intoxicating liquors as a beverage throughout the entire nation. It takes no note of state boundaries, whether

"But when Congress acts to enforce this amendment, its command extends throughout the Union."

In relation to the objection that Congress has no right to define the word "intoxicating," Judge Rellstab holds that it is true only with respect to an unreasonable inclusion in the definition of that which is clearly not intoxicating. But within the rule of reasonableness, Congress, the Court believes, has a wide discretion in defining the terms of a Constitutional Amendment which specifically empowers Congress to enforce the constitutional amendment by suitable legislation. The Court then examines the definition itself and declares that in the light of the expert evidence produced by both parties, the test of one-half of one per cent of alcohol as a test of the intoxicating quality of a liquor "cannot be said to be arbitrary." The scientific test, the Court said, seems to vary according to the physi cal characteristics of those on whom the test is made and depends on "such a va riety of conditions as absolutely to defy exact definition."

NOTES OF IMPORTANT DECISIONS.

LIABILITY OF THE OWNER OF A RESER VOIR FOR BREAKING OUT OF WATERS.One of the natural rights of every land owner is to have his land free from any unnatural or artificial precipitation of water. And the complementary right also exists to have surface water flow off one's land according to the ordinary course of nature. But when one dams up a stream to make an artificial lake upon his land and the dam breaks and floods the country below, is the owner liable? The Supreme Court of California declared in a re

cent case that the owner is not liable except for negligence in handling the water, and held that an unprecedented flood which washed away the dam did not make the owner of the reservoir liable in damages. Sutleff v. Sweetwater Water Co., 186 Pac. 766.

In the Sutleff case defendant had erected a dam across the Sweetwater River impounding the waters of the stream. To one side of the stream was a depression a little lower than the dam. Here an earth dike had been thrown up to prevent any possible out-flow of the water at this point. An unprecedented flood in January, 1916, washed away this earth work and precipitated a large volume of water on to plaintiff's land to his serious injury. A judg ment for defendant was sustained by the Supreme Court on the theory that one who impounds water in a reservoir is not liable, as an insurer, for the escape of the water. On this point the Court said:

"The defendant's reservoir was a wholly proper and lawful thing, and its existence, maintenance, and use worked no injury to the plaintiff's land, invaded no right of his, and could not for a moment be said to be a nuisance. The proximate and immediate cause of the flooding of the plaintiff's land and its conse quent injury was not the existence of the defendant's reservoir or the manner of its maintenance or use, which were wholly lawful and innocuous, but the overwhelming of the reser voir by an agency beyond the defendant's control-in fact in this case beyond human control."

Lawyers are familiar with the old English case of Fletcher v. Rylands, L. R. 1 Exch. 265. cited as a leading case in all the text-books to the broad proposition, found in the opinion of Lord Blackburn, that the person, who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."

In the Fletcher case defendant had constructed a reservoir, the waters of which broke through the bottom into some ancient underground workings whose existence was unknown, and thence escaped into and flooded the plain tiff's colliery. For this the defendant was held liable regardless of any negligence upon its part.

[blocks in formation]

waters. In the Nichols case the facts were that a series of dams constructed by the defendant were washed out by an unprecedented flood, and the volume of water so released damaged the plaintiff's property.

The Court distinguished the case of Fletcher v. Rylands by showing that the damage was the direct result of the bringing together of the water while in the Nichols case the proximate cause was not the impounding of the wa ters (a perfectly lawful act), but the unpre cedented flood. This distinction is sound and clearly sustained by the weight of authority.

ELEMENT OF FRAUD IN PROSECUTIONS FOR SENDING FALSE REPRESENTATIONS THROUGH THE MAILS.-Fraud as a basis for a prosecution for using the mails to obtain property by means of false representations is different in one respect from that which constitutes fraud in a civil suit. Under the federal act it is not an essential element of the offense that the victim of the fraudulent scheme should suffer pecuniary loss. Wine v. United States, 260 Fed. 911.

In this case the defendant secured an option on 3,320 acres of land in Texas at $9.22 per acre or $3,000. He wrote two of his friends in Oklahoma that he had secured an option on the land for $58,000 or $17.47 per acre and saying that he could not handle the whole deal but would be glad to join with them in purchasing the property and would pay for half of the land at $17.47 per acre if they would take the other half at the same price. The deal was put through on that basis, after which defendant's false representations were discovered and he was indicted under the provisions of Sec. 215 of the Penal Code (Act of Congress, March 4, 1909, C. 321, 35 Stat. 1130). There was no allegation that the victims of defendant had suffered any pecuniary loss and defendant was not permitted to show that the land was worth the price of $17.47 per acre at which it was sold. In holding that in this respect no error had been committed, the Court of Appeals (8th Cir.) said:

"This statute declares that anyone who devises a scheme 'to defraud,' or 'for obtaining money or property by means of false or fraudulent pretenses, representations or promises,' and uses the mails to execute it, shall be fined or imprisoned. The indictment and the evidence are alike replete with charge and the latter with proof that this defendant devised a scheme to obtain for himself the east ranch free of all cost to himself by means of false and fraudulent pretenses, representations and promises, and that he used the mails to execute that

scheme. This was a plain violation of the literal terms of the statute, and even if this violation had caused no pecuniary loss or damage to Van Dyke or Slifer, the defendant could not escape punishment for so glaring a deceit without a repeal or disregard of this law; and it is the duty of the Court not to repeal or disregard this statute, but to enforce it. This section of the statute does not make damage or loss to the victims of a scheme to defraud, or to obtain money or property by false pretenses, representations or promises, a sine qua non of its violation, and such damage or loss is not indispensable to the commission of an offense under it. Harris v. Rosenberger, 145 Fed. 449, 76 C. C. A. 225, 13 L. R. A. (N. S.) 762; Durland v. United States, 161 U. S. 306, 315, 16 Sup. Ct. 508, 40 L. Ed. 709; United States v. New South Farm Co., 241 U. S. 645, 36 Sup. Ct. 505, 60 L. Ed. 890, Ann. Cas. 1917C, 455; Chambers v. United States, 237 Fed. 521, 150, C. C. A. 395."

INJUNCTIONS AGAINST ILLEGAL ACTS OF STRIKING UNION MEN.-There is a noticeable stiffening on the part of the Courts of their orders restraining acts of striking union men. The boycott, the right to picket, while still admitted as abstract rights, are so restricted that practically they no longer exist. This tendency is apparent in the recent case of Thomson Machine Co. v. Brown, 108 Atl. Rep. 116, where the New Jersey Court of Chancery held that even where a strike by plaintiff's employes was unaccompanied by violence, the strikers could be prevented from annoying plaintiff by parading before his place of business with placards asking plaintiff's employes not "to scab," etc. Such acts were in themselves declared to be illegal. On this point the Court said:

"I am still of the opinion that the act of the respondents, maintaining in close proximity to the plant of the complainant a building upon which they maintained placards, upon which were printed statements of the following nature: 'Don't scab. Honest jobs are plenty. Strike at Thomson Mch. Co.,' etc.-distributing generally and handing employes and prospective employes of complainant cards, drawing attention to the fact that there was a strike on, and that those who labored for complainant were scabs, and that complainant was unfair, communicating with users of machinery manufactured by complainant and with labor employed on such machines in the use or repair thereof with the purpose of establishing a boycott, were illegal and should be enjoined. Jonas Glass Co. v. Glass Bottle Blowers' Association, 77 N. J. Eq. 219, 79 Atl. 262, 41 L. R. A. (N. S.) 445; Gompers v. Buck Stove & R. Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461."

The order was served on the Grand Lodge of Machinists whose headquarters are in Wash

ington. They sought to escape from the order under the rule announced in the case of Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65, L. R. A. 1918C 497. But the Chancellor calls attention to the mistake of defendant's attorney in appearing and defending generally to the merits and not objecting to the jurisdiction until after final argument on the application for preliminary injunction. In the Hitchman case the nonresident defendants appeared specially to object to the jurisdiction.

The order of the Court in the present case affords some valuable suggestions as to what may properly be included in a decree in a case of this kind. The injunction restrained the defendants as follows:

"First. From knowingly and intentionally causing or attempting to cause, by threats, offers, of money, payments of money, offering to pay expenses, or by inducement or persuasion any employe of the complainant under contract to render service to it to break such contract by quitting such service.

"Second. From attempting to cause any person employed by complainant to leave such employment by intimidating or annoying such employes by annoying language, acts or conduct.

"Third. From causing persons willing to be employed by complainant to refrain from so doing by annoying language, acts or conduct.

"Fourth. From inducing, persuading or causing to attempt to induce, persuade or cause the employes of complainant to break their contracts of service with complainant or quit their employment.

"Fifth. From threatening to injure the business of complainant or of any corporation, customer, or person dealing or transacting business or willing to deal and transact business with complainant, by making threats in writing or by words for the purpose of coercing such corporation, customer or person, against his or its will so as not to deal with or transact business with the complainant.

"Sixth. From displaying or circulating cards, placards, pictures or other devices, either printed, painted or written, in any place, reflecting upon the ability of the Thomson Machine Company to make and fulfill contracts, or in any way casting reflection upon the reputation. ability or conduct of the present employes of the Thomson Machine Company, or any of them. or any persons willing to become such employes. "Seventh. From communicating with the users of the machinery manufactured by complainant or with labor unions whose members work with said machines or on the repair thereof in such manner as to induce or persuade such users to discontinue the use of such machinery and prospective customers to refrain from purchasing such machinery and labor to refuse to work with such machines or on the repair thereof."

SUITS AGAINST RAILROADS UNDER FEDERAL CONTROL.*

It is difficult to understand why an administrative agency of any government should permit uncertainty in the method by which citizens may obtain redress for violations of their rights. A citizen who has by a railroad been injured, or whose property has been taken, either before or since the Federal government assumed the operation of the railroads cannot know with certainty whom to sue. This condition has been produced by orders of the Director General of Railroads.

About a year ago the Central Law Journal published opposing views of the validity

and effect of orders of the Director General. In those publications, it was shown that the courts likewise had disagreed: a disagreement still existing in a large number of judicial opinions since rendered.

It is not the purpose of this discussion either to go over ground covered in a for

mer article or to refer to all the decisions that have been made. Suffice it to recall the basic statute and orders and to cite all published Federal and some state court decisions.

The President took control of the railroads by proclamation, in which he said:2

"Suits may be brought by and against said carriers and judgments rendered as hitherto until and except so far as said Director may, by general or special orders, otherwise determine."

Later Congress enacted a statute in which it was recited, "That the President, having in time of war taken over the possession, use, control, and operation (called herein

Mr. Watkins, the writer of this article, contributed an article on this same subject which was published in this Journal about a year ago. (88 Cent. L. J., 157.) This article was highly commended by our readers. Mr. Watkins is the author of Watkins on Shippers and Carriers, a leading text-book and authority on the subject of which it treats.-Editor.

(1) Henry C. Clark, Vol. 88, p. 100, Feb. 7, 1919; Edgar Watkins, id., 157, Feb. 28, 1919. (2) Cent. L. J., Vol. 88, p. 157.

Federal control) of certain railroads and systems of transportation (called herein carriers)." and in which there was contained authority for an agreement with the carriers for "just compensation" for use of

the roads.

This statute required the making of contracts between each road and the government and provided the conditions of the use. It may be admitted, for the purpose here, that Congress might have taken and operated the railroads, making just compensation, and excluded their owners from all control, or obligations and at the same. time declined to permit the citizens to sue the governmental agency so created. Congress did not see fit to deprive the public of rights growing out of this national operation of the railroads, but enacted: "Actions at law, or suits in equity, may be brought by and against such carriers and judgments rendered as provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality, or agency, of the Federal Government. Nor shall any such carrier be entitled to have transferred to a Federal Court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the Federal control of such carrier."

In the contracts authorized by the statute it is provided:*

"The Director General shall pay, or save the company harmless from, all expenses incident to, or growing out of the possession, operation, and use of the property taken over during Federal control. * * * He shall also pay, or save the company harmless from *** all judgments, or decrees that may be recovered or issued against, and all fines and penalties that may be imposed upon the company by reason of any cause of action arising out of Federal control, or anything done or omitted in the

[blocks in formation]
« iepriekšējāTurpināt »