because of the falsity of the man's representations as to his character, social standing, and fortune. Jakar v. Jakar, S. C., 102 S. E. 337.

63. Master and Servant-Contributory Negligence. The distinction between contributory negligence and assumption of risk depends on whether the servant has made a careless choice between safe and unsafe ways of discharging his duties, or whether he has failed to take some precaution outside of the discharge of those duties.-Anzolotti v. McAdoo, U. S. D. C., 262 Fed. 568.

64.

-Proximate Cause.-Negligence of railroad employe in entering a tank car with a torch, causing an explosion and a fire, cannot be regarded as the proximate cause of the death of another servant who was injured and overheated while subsequently fighting the fire.Gulf, C. & S. F. Ry. Co. v. Bennett, Tex., 219 S. W. 197.

65. Safe Working Place.-It is the employer's duty to use ordinary care to provide employe a safe working place.-Houston & T. C. R. Co. v. Long, Tex., 219 S. W. 212

66. Mechanie's Lien-Priority. The mechanic's lien which attaches prior to the purchase of the property is superior to the homestead claim the of purchaser's wife.-Ketcham Cunliff, Okla., 187 Pac. 1095.

V.

67. Mortgages-Estoppel.-The rule that one buying a non-negotiable security, such as a mortgage, takes it subject to all equities existing between the original parties, is inapplicable where the original parties have by their conduct, acts, or omissions estopped themselves from asserting existence of such equities.Middleton v. Cockfield, S. C., 102 S. E. 328.

68. -Setting Aside Sale.-Collusion between the trustee and mortgagee or management of the sale to preclude fair competition in bidding, particularly when the purpose is to favor some would-be purchaser, is cause for setting aside a sale by the trustee under trust deed.-Borth Proctor, Mo., 219 S. W. 72.

V.

69. Negligence. Unavoidable Accident. Damages for injuries proximately resulting from unavoidable accident are damnum absque injuria.-Crow v. McAdoo, Tex., 219 S. W. 241.

70.

Patents-Interference.-In patent interference cases where a patent has issued to the senior party before the junior party files his application, the junior party must establish that he is the inventor beyond reasonable doubt.Braun v. Wiegand, D. C., 262 Fed. 647.

71. Patentability.-Failure to appreciate the patentability of an invention does not excuse either failure to reduce it to practice or making timely application for letters patent.Reichel v. Dorset, D. C., 262 Fed. 652.

72. Partition-Equity.-Where there is a partition in fact between tenants in common and a part performance, court of equity will enforce such partition.-Sowers v. Keedy, Md., 109 Atl. 143.

73. Partnership-Settled Account.-A written agreement between partners concerning previous transactions in the practice of law, fixing the amount due in respect to such transactions, examined and signed by the partners. whereby one of the partners promised to pay the balance shown to be due from him to the other, created an account stated, and not a "settled" account as that term is generally understood, since the balance was not in fact paid.Dempsey v. McGinnis, Mo., 219 S. W. 148.

74. Principal and Agent.-Ratification --A transaction entered into by one in reference to the property of another, although without authority, must be ratified or repudiated as a whole, and a benefit cannot be accepted under it without being subject to its burdens.-Wilkins-Ricks Co. v. Welch, N. C., 102 S. E. 316. 75. Quieting Title-Cancellation.-To entitle one to maintain a bill for the cancellation, as a cloud on his title, of a deed purporting to convey the minerals in his land, he must show himself to be the owner of such minerals.-Feather v. Baird, W. Va., 102 S. E. 294.

76. Railroad-Negligence per se.-An automobile driver, who attempts to beat an approaching train across a crossing, is negligent as a matter of law.-Puhr v. Chicago & N. W. Ry. Co., Wis., 176 N. W. 767.

77. Signals.-The failure to give notice of a train's approach to a much-used public crossing by sounding the whistle or bell is negligence.-Goff v. Atlantic Coast Line R. Co., N. C.. 102 S. E. 320.

78. Sales-Contract. In action for failure to deliver a quantity of molasses to be manufactured, that defendant did not make enough molasses to fill his contract is not an excuse for failure to perform; the written terms of the sale being unconditional and for a fixed quantity at a definite price, and it being the seller's duty to see that the purchaser understood any conditions which seller wished to impose.— Penick & Ford v. C. Lagarde Co., La., 83 So. 787.

79.

-Installment Deliveries.-A contract for sale and purchase of 12,000 tons of coal per year for three years, 1,000 tons to be delivered each month and paid for the succeeding month, and further providing that, if the mines were unable to operate, or output was curtailed, from causes beyond seller's control, it should not be liable for failure to make shipments "during such periods," held severable as to each month's deliveries.-Atlantic Steel Co. v. R. O. Campbell Coal Co., U. S. D. C., 262 Fed. 555. 80. Sunday-Completion of Contract.-Where negotiations for a contract are made on Sunday, and on a subsequent secular day an act is done by the parties which completes the void Sunday contract, the Sunday negotiations are deemed reaffirmed on such subsequent secular day, and thus form the basis of either validating the void Sunday contract or of showing llability for a tort which induced the execution of the new or completed contract on the secular day. Mann v. Becker, Wis., 176 N. W. 765. 81. Taxation-Domicile.-The personal property of a deceased person in the hands of his executors during the settlement of the estate is taxable at the place of the domicile of the decedent, if a resident of the state.-City of Blakely v. Hilton, Ga., 102 S. E. 340.

82. Vendor and Purchaser-Rescission-A party who desires to rescind his contract for the purchase of land, on the ground of fraud, must act promptly after discovering the facts. -Fleming v. Harris, Ark., 219 S. W. 33.

testa

83. Wills. Acknowledgment.-Where tor requested a justice of the peace to take his acknowledgment to the singnature of a will, and the justice did so, appending his signature as justice, that the justice was of opinion that he was not requested to sign as a witness did not prevent his signature from so operating.-Tilton v. Daniels, N. H., 109 Atl. 145.

84. Condition Precedent.-No particular or technical words are necessary in a will to constitute a condition, either precedent or subsequent, and it is not necessary that a right of reentering be reserved or that a forfeiture be provided in express terms.-Nolfe v. Byrne, Tenn., 219 S. W. 1.

85.- -Fee Simple.-Under a will devising testator's land to his wife, free of all charge and limitation for her use and benefit forever for her use. to dispose of by will or otherwise as she deemed proper, she took a fee-simple title to the land and was expressly empowered to dispose of it by will or otherwise.-Denton v. Parsons. Ga., 102 S. E. 353.

86. Life Estate.-A bequest to a daughter of certain property "free from all debts. liabilities and obligations of any husband she may have, and after her death said property to go to her children," imported merely a life estate which was not enlarged into a fee by the further provision, "in event that said daughter should die without children. then I invest her with the right to dispose of such property by deed. will. or otherwise as she may think proper."-Mathis v. Glawson, Ga., 102 S. E. 351.

Central Law Journal.

ST. LOUIS, MO., MAY 21, 1920.

CAN Y BE CONSTITUTIONALLY TAXED TO PROVIDE A FARM FOR X?

Against the tide of socialistic or quasisocialistic legislation, being proposed by the legislatures of many states, the courts are setting up no serious obstacles. They are construing state and federal constitutions with a liberality that would have astounded the fathers.

For this observation we find an interesting illustration in the recent case of State v. Clausen, 188 Pac. 538, in which the State Reclamation Act of the State of Washington was held to be constitutional. This act created a Reclamation Board with authority to select public lands and to purchase undeveloped private lands believed to be available for settlement; to subdivide such lands into smaller tracts suitable for farms; to improve such farms with houses, barns and other accessories to a good farm; to sell and lease such farms on reasonable terms to desirable tenants, showing preference to soldiers; to extend credit on such purchases for a period not to exceed forty years; and to provide free instruction for settlers so as to render them better qualified for the cultivation of their lands. To test the validity of the tax levied for this purpose a friendly suit was instituted by the Board against the auditor to compel him. to issue warrants in their favor against the fund so created.

It is elementary law that a tax may be levied and collected only where the fund so created is expended for a public purpose. A tax which directly bestows a purely private benefit upon some individual is clearly outside the powers of any legislature to levy. This principle is fundamental; unless it is strictly observed, the strongest social organization will fall apart. If the state can tax A to enrich B then it is possible for

We are

aware of the difficulty of setting up a test to determine what is a public use; we are familiar with the fantastical argument of Justice Ladd in the celebrated case of Perry v. Keene, 56 N. H. 514, who claimed that the Court's idea of a public use was no better than that of the legislature; we appreciate Dean Roscoe Pound's argument that judges must keep step with social conditions and adapt the law to the new demands and necessities of the people; but taking into account. all of these elements we do not believe that a court has a right to shirk its duty to investigate carefully the purpose for which any fund created by taxation is to be used. and, if found to be for a private purpose, fearlessly to use its power to protect those whose property is being taken away and given to others.

Because it is so difficult to determine what is a public use the danger is very great that gradually we will be led to give up those choice guarantees which are ours under the Constitution and which now so effectually protect us in the enjoyment of the things we call our own. There must therefore be set up somewhere a limit beyond which a legislature may not go in arbitrarily defining a public use. That limit, it is true, will not be the same in every age. The automobile for instance, has made necessary great state and national highways which in the day of horse traffic were not necessary. Congregation of large masses of people in large cities has resulted in a sharp curtailment of constitutional rights of private property in favor of the common welfare and the people have been properly taxed to remove garbage, to provide a water supply, and to do many things which, because of the great congestion and dependence of the people on each other, cannot be done by each individually, but can

only be done by the municipality acting for all. But while this is true, nevertheless there is bound to be some limitation to the taking of private property for a public use whether by eminent domain or the more insidious mode of taxation, and that limit to our mind is whether the use is one by which the great majority of the people will be directly benefited and one which under present social conditions cannot be adequately supplied by private enterprise.

The above test is our own and we like it better than the one given by many text writers, to-wit, the custom of the community. In Gray, Limitations of the Taxing Power, Sec. 176, the author states that the limit should be the "custoins of the government and the community." The Washington Supreme Court very properly objects to this standard because it "is wholly out of harmony with the thought permeating all of the later decisions, that new conditions and new public necessities are weighty considerations in determining the question of public purpose; for, if custom is to be the controlling factor in deciding the question, then the consideration of new conditions and new necessities are of little moment in deciding the question."

who have not. In the Clausen case the Supreme Court of Washington thus justifies the Reclamation Act:

"Is there not abundant room for arguing that the development of our unoccupied lands suitable for agriculture, by a land policy which would encourage the settlement thereon of home-owning farmers, will materially contribute to the welfare of our people as a whole Can it not be argy ed with a fair show of reason that, not only will such a policy ultimately lead to the enhancement of the material wealth of the state, but that it will also make for better citizenship, better notions of necessity for law and order, and a sounder and saner patriotism? In the light of the debatable character of these questions, we are quite convinced that it is not within the province of the judicial branch of our state government to answer them in the negative."

The Reclamation Act of Washington does not, by reason of its objectives come within the category of laws regulating public utilities-those institutions or lines of business in which the public have a direct interest, such as schools, highways, mills, grain elevators, railroads, hotels, telegraphs, telephones, electric light and power, water rights and power, and many other lines of business which are declared to be affected with a public interest. In this case the parties to be directly benefited are those who buy improved farms from the

ever of a public use and seems to be wandering in the dark with not even a ray of light to guide its future course. So far as that Court is concerned the legislature can go as far as it likes and tax the people for any purpose which it arbitrarily labels a public use. Such a weak position on the part of a Court whose supreme duty it is to uphold and protect the Constitutional rights of the people even as against the will of the majority offers no obstacle to the increasing boldness of those who profess no regard for our Constitutions and whose sole purpose in legislation seems to be to take from those who have and give to those

so that B can have the opportunity to buy a good farm on easy terms. Applying our double test let us inquire first, are the people directly benefited by this use of the fund or only a few individuals; second, could the purpose of this Act be achieved by private enterprise? It does not seem to us that this Act benefits the whole people except in a very remote way. Second, it seems to be wholly unnecessary for the public to go into the real estate and mortgage business in order to start off a few young farmers in the style proposed by this Act. Private enterprise is amply able to furnish any man with a good farm and with

money enough to improve it, and when a man by his own initiative has thus achieved success he will not have to hold his head down and admit that he has been a ward of the government. Moreover, if the state can stake a young farmer to a farm, why not stake a young manufacturer to a new factory? Why not create a fund to drill oil lands for oil speculators? North Dakota lev s a tax to buy seed for the farmers. Why not levy a tax to buy law books for young lawyers. They need them about as badly as a farmer needs seed and if they had them, their clients and indirectly the public might suffer less from their bungling methods.

It would be well for our courts to pay greater heed to the sound decision and clear argument of the Massachusetts Court in Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39, which declared unconstitutional an act to raise by taxation a fund of $20,000,000 to loan to those whose homes had been destroyed by fire. The Court said:

"The promotion of the interests of individuals, either in respect of property or business, although it may result incidentally in the advancement of the public welfare, is, in its essential character, a private and not a public object. However certain and great the resulting good to the general public, it does not, by reason of its comparative importance, cease to be incidental. The incidental advantage to the public, or to the state, which results from the promotion of private interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation, or for which taxation may become necessary. It is the essential character of the direct object of the expenditure which must determine its validity, as justifying a tax, and not the magnitude of the interests to be affected, nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion.”

Somewhere there must be a limit to the power to tax; some sort of definition must be made of a "public use" for which taxes

may be raised; otherwise the mad rush to cure all the ills of man by law and by funds raised by the taxation will not cease until the whole fabric of our civilization breaks down under a load it should never have been called upon to bear. Moreover every such act as this that makes the people dependent on the state for support serves to undermine the strength and initiative of the American character and encourages men to rely more upon the state than upon their

own resources.

NOTES OF IMPORTANT DECISIONS.

APPROPRIATING MONEY GIVEN FOR A SPECIAL PURPOSE IS LARCENY.-The distinction between larceny and false pretense, which is sometimes very difficult to make, is discussed by the Court of Appeals of California in the recent case of People v. Shwartz, 185 Pac. 686.

In this case the defendant accepted $100 from each of several prosecuting witnesses who were engaged in the business of conducting bath and massage parlors in the city of Los Angeles, for the conduct of which they were required to have a license. Defendant stated that he could fix the police commissioners and se cure their license for the amount that was paid. The money was never paid to the police commissioners nor to any one else, but was appropriated by the defendant for his own use. Defendant contended that if he was guilty of any crime it was obtaining money under false pretense. The Court, however, held that he was guilty of grand larceny, and in explanation of the distinction existing between these two classes of offenses, said:

"It is claimed by appellant that if the evidence shows him to be guilty of any crime it Is that of obtaining money by false pretenses, and not grand larceny-the crime of which he was convicted. In support of this claim it is contended that the evidence shows indubitably that each of the complaining witnesses intended to part with the title to her money as well as its possession. The distinction between larceny and false pretense is substantially this: In larceny the owner of a thing has no intention to part with his property therein to the person taking it, although he may intend to part with possession. In false pretense the owner does intend to part with his property in the money or chattel, but it is obtained from

him by fraud (People, etc., v. Delbos, 146 Cal. 734, 81 Pac. 131). There would be merit in appellant's contention if, when the complaining witnesses delivered the several sums to him, they had intended that the moneys should then and there become his property. So far from such being the case, it appears from the evidence that each complaining witness, at the time when she delivered her money to appellant, intended that it should be received by him for the purpose of carrying it and paying it to some person, unknown to the witness, whom, however, she supposed to be an actually existing person, but who, as a matter of fact, was a spurious and mythical individual, invented by appellant for the fraudulent purpose of tricking the witness into parting with the possession of her money.

APPLICABILITY OF THE INTERSTATE COMMERCE ACT TO TELEGRAPH COMPANIES.*

The exercise by the Federal congress in recent years of its powers to define the rights and regulate the conduct of our people has attracted considerable attention. This legislation is so extensive and has such distinctive features that we might say that we have entered upon a new era in the development of our Federal law. One of the most important branches of Federal legislation in recent years, I think, is the exercise of the power of Congress in the regulation of interstate commerce. The original Interstate Commerce Act and its several amendments, the Employers Liability Act, the Food and Drugs Act, the Meat Inspection Act, the Hours of Service Act, the Clayton Act and the Trade Commission Act, the White Slave Act and the Shirley Amendment to the Food and Drugs Act, in the nature of police regulations, show the activity of Congress with reference to this kind of legislation. The Supreme Court of the United States held in the Primrose Case1 that telegraph companies were not common carriers, but by the

A paper read by Mr. W. M. Williams at the 1916 annual meeting of the Alabama State Bar Association.

(1) 154 U. S. 1.

Amendment of June 18, 1910, telegraph, telephone and cable companies (wire and wireless) were brought under the Commerce Act, and therein defined to be "common carriers." The fact that some of the sections of the Commerce Act were amended and others were left as they were before, created some uncertainty as to the extent to which the provisions of the Act applied to such companies. The companies contend that by the amendment Congress has manifested an intention to take possession of this field of legislation, and has thereby removed such companies, in the matter of interstate commerce, from the control of state decisions and state statutes, and that the damages recoverable against them must be measured by common law principles as declared by the Supreme Court of the United States and enforced in the Federal Courts, and that state statutes and decisions applying a different rule are inapplicable.

Beginning with the case of So Relle vs. W. U. T. Co.,2 decided in 1881, there has grown up what is called the "mental pain and anguish doctrine," which is contrary to the principles declared by the Federal Courts. Subsequently the Courts of Alabama, and several other states, adopted a like rule, while it was rejected by the Federal Courts and those of many of the states.3

In the first case declaring the mental pain and anguish doctrine, the Court recognized one of the dangers of the doctrine and said: "It should be remarked that great caution ought to be observed in the trial of causes like this, as it will be so easy and natural to confound the corroding grief occa

(3) Many of the cases are reviewed in W. U. T. Co. vs. Choteau (1911), 28 Okla. 604, Am. Cas. 1912 D, 824, 49 L. R. A. (N. S.) 206 and note; So. Exp. Co. vs. Byers (Adv. Op. U. S. p. 410); the general subject is discussed and the authorities Sherman & Redfield on Negligence, 6th ed. Sec. Sedgwick on Damages, 9th ed. Sec. 43, et seq. and cited in Sutherland on Damages, 3d Ed. Sec. 975; 756, et seq.

(4)

So Relle vs. W. U. T. Co. supra.