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WEEKLY DIGEST.

Weekly Digest of Important Opinions of the

State Courts of Last Resort and of the Federal Courts.

Copy of Opinion in any case referred to in this digest may be procured by sending 25 cents to us or to the West Pub. Co., St. Paul, Minn.

.59

78

..80

..........

Arkansas
California..

.............5, 11, 14, 52, 63 Delaware.....

........36, 54, 65 Florida Georgia nlinois.

......................18, 26, 58, 73, 82 Indiana...

................33, 40, 61, 88 Iowa.......

..................17, 23, 35, 37, 43, 51, 81 Kansas.......

........ 28, 46, 69 Kentucky...............................................15, 29, 38, 70 Lonisiana ... Maine.......

..................10, 24, 55, 83 Massachusetts Michigan

******************* Minnesota.

..............30, 49 Mississippi ................... Missouri .....

...............7, 13, 42, 62, 66, 8: New Hampshire.....

...2, 77 New Jersey.......

...............19, 21, 60, 67, 71 North Carolina...

.........31, 56, 57 Oregon.....

.12, 41 Texas.

...8, 45 U. S. C. C. App..................................1, 22, 27, 74, 76 United States D. C................

.25 United States S. C........ ...................44, 48, 75, 86 Virginia..........

.............. 50, 72 Washington....

...................3, 9, 34, 47, 79 West Virginia.............

........32, 39, 64 Wisconsin........

.................6, 16, 68, 84 1. Bankruptcy-Secured Debt.—The lien on all property of judgment debtor in the county, which Code Civ. Proc. Cal. $ 674, provides that filing of transcript of judgment gives, is enough to make the judgment creditor a "secured creditor," within Bankruptcy Act.-Oilfields Syndicate v. American Improvement Co., U. S. C. C. A., 260 Fed. 905.

2. Bills and Notes_Burden of Proof.-Where there was evidence to show that notes sued on were obtained by fraud, plaintiff, a subsequent holder, has the burden of proving that it was a bona fide holder for value.-Mechanics' Saving Bank v. Feeney, N. H., 108 Atl. 295.

3.- Consideration. — The postponement of the obligation on a note to a future date is a new consideration moving to the maker and operates as a present consideration for execution of a new note by him.-Katz v. Judd, Wash., 186 Pac. 613.

4.- Innocent Holder.-If the transaction in which a note originated were tainted with illegality in that it involved the holding of a lottery by the maker of the note to dispose of the property for which he gave it to the payee, the fact would not prevent recovery on the note by an innocent holder for value.-Whitman v. Fournier, Mass., 125 N. E. 303.

5.- Negotiability.--The negotiability of a note is not impaired because the payee and indorser on transferring the same guarantees pay

ment.-Ambrose v. Hammond Lumber Co., Cal., 185 Pac. 691.

6.- Restrictive Indorsement.-An indorsee under restrictive indorsement takes a title qualified either as to person or use, and the delivery of the instrument gives effect to the indorsement, and it passes to the indorsee subject to all the restrictions imposed, in view of St. 1917, § 1676–17.—Gulbranson-Dickinson Co. v. Hopkins, Wis., 175 N. W. 93.

7. Brokers-Bringing About Sale. A broker is entitled to his commission, where he was the means of finding a purchaser and bringing about negotiations leading up to the sale of land, though he was not present or partaking in the actual sale.-Hodges v. Ramsey, Mo., 216 S. W. 568.

8. Burglary-Occupancy.-It is not necessary that there should be someone actually living in the house in order to constitute "occupancy." -Carneal v. State, Texas, 216 S. W. 626.

9. Chattel Mortgages-Shifting Stock.—Where a chattel mortgage is given upon a shifting stock of merchandise, the mortgage should identify the chattels with such particularity that they can be determined without difficulty and uncertainty.—Miller v. Scarbrough, Wash., 185 Pac. 625.

10. Waiver of Lien.-An attachment of mortgaged chattels, in a suit to enforce the mortgage debt, is a waiver of the lien.-M. Steinert & Sons Co. v. Reed, Me., 108 Atl. 334.

11. Contracts-Impossibility of Performance. -A contract, valid in its inception, may become voidable or impossible of performance by the failure of a subsequent contingency; but, if the contingency is one which may happen, the parties are bound by their contract until it can be determined it cannot be enforced.-Nannizzi v. Caprile, Cal., 185 Pac. 673.

12. Modification of Parol.-A written agreement may be modified by a subsequent parol contract, notwithstanding the general rule embodied in L. O. L. § 713.–Propstv. William Hanley Co., Ore., 185 Pac. 766.

13.- Ratification.—There can be no ratification of a contract, where the one who has the power of ratification is ignorant of the facts, and in such case the doctrine of constructive knowledge has no application.-Berkshire v. Holcker, Mo., 216 S. W. 556.

14.— Rescission.-Rescission of an executed contract for fraud will not be denied because plaintiff cannot place defendant in statu quo, if equity can still be done between the parties. -Spencer v. Deems, Cal., 185 Pac. 671.

15.- Restraint of Trade.-A contract not to re-engage in a certain business is enforceable, providing the restraint of trade involved is reasonable and not so extensive as to affect the public interest.-Keen v. Ross, Ky., 216 S. W. 605.

16. Corporations-Joint and Several Liability. -If a stockholder was defrauded in the sale of stock to him by the president of the company acting as its selling agent for commission, the president and the company were both jointly and severally liable to him.-Denis v. Nu-way Puncture Cure Co., Wis., 175 N. W. 95.

17.- Repurchase of Stock.-Where defendant seller of corporate stock unqualifiedly re

fused to repurchase it pursuant to an alleged property subject to be taken by creditors beyond agreement, plaintiff buyer was not required to their reach, amounts to a fraud in law; the intender the stock certificate before bringing suit. tent of the wife in accepting the transfer being -Vrba v. Krall, Iowa, 175 N. W. 4.

immaterial.-Lowell-Woodward Hardware Co.

v. Davis, Kansas, 185 Pac. 732. 18. Criminal Law-Accomplice.—The testimony of an accomplice is legal testimony, and 29. — Voluntary.—Conveyances without cona conviction may be founded upon it alone and sideration and to protect the property, made by sustained; but such evidence is open to grave a judgment debtor to his wife, before creation suspicion, and should be acted on with the ut of debt and rendition of judgment, and, after most caution.—People v. Pattin, Ill., 125 N. E. judgment, by the debtor and his wife to the 248.

debtor's brother, who reconveyed to the debtor

as trustee for his daughter, were fraudulent 19.- Irresistible Impulse.—The doctrine that

and void, under Ky. St. & 1906, as to the debtor's a criminal act may be excused or mitigated

creditors, past, present, and prospective.-Ball upon the notion of an irresistible impulse to

v. Brown-Ross Shoe Co., Ky., 216 S. W. 612. commit it, where the offender had the mental capacity to appreciate his legal and moral duty

30. Fixtures—Annexation to Freehold.—A In respect to it, has no place in the law.-State

chattel does not become a fixture unless physiv. Carrigan, N. J., 108 Atl. 315.

cally or constructively annexed to the freehold. 20.- Part of Conversation.-Generally, when -Hanson v. Voss, Minn., 175 N. W. 113. a part of a conversation is called out by one

31. Eminent Domain-Additional Burden.party, the other party has the right to all of

Where, by the construction of its telegraph line such conversation.-People v. Baker, 111., 125

on a railroad right of way, defendant imposed N. E. 263.

an additional burden on the fee, the owner of 21.- Voluntary Intoxication.--Mental un the fee, which was subject to the easement of soundness, produced by voluntary intoxication, the railroad, is entitled to compensation for the even where it is so pronounced as to exhibit additional burden.—Query v. Postal Telegraphentire prostration of the faculties of defendant, Cable Co., N. C., 101 S. E. 390. is no defense against a criminal charge of atro

32. — Petition for Condemnation.-Petition cious assault and battery.-State v. Marriner,

filed by a city to condemn land, alleging that N. J., 108 Atl. 306.

it is to be used to widen a certain street, which, 22. Customs and Usages-Implied Reference

when widened, will be used as a public street, to.—Where defendant claimed that a contract

and that it is necessary therefor, sufficiently of reinsurance was affected by custom, the cus alleges the public character of the use and the tom must be clearly established, or shown to necessity therefor.-City of Huntington v. Fredhave been reasonable, definite, and uniform, be erick Holding Co., W. Va., 101 S. E. 461. fore it will be presumed that the parties re 33. Gifts—Causa Mortis.—To constitute a ferred to it in making the contract.-American

"gift causa mortis," there must be a delivery Guaranty Co. v. American Fidelity Co., U. S. C.

or transfer of the property in expectation of C. A., 260 Fed. 897.

death from an existing illness.-In re Meyer's 23. Death-Eye Witnesses.-One killed in an

Estate, Ind., 125 N. E. 219. accident occurring in the absence of witnesses

34. Guaranty-Presumption.-In every doubt. is presumed to have exercised reasonable care ful case, the presumption is against a continfor his own safety.--Stukas v. Warfield, Pratt, uing guaranty.-National Surety Co. v. CampHowell Co., Iowa, 175 N. W. 81.

bell, Wash., 185 Pac. 602.

35.- Release of Guarantor.-A guarantor of 24. Dedication-Plats.-Deed referring to a

payment of a note is not released by mere failplan of platted lots and streets conveyed by one

ure to protest or give notice of nonpayment of of the delineated streets carried to the public

the same.-Citizens' State Bank of Mt. Vernon an incipient dedication of the streets.-Harris

v. Hendrix, Iowa, 175 N, W. 17. . v. City of South Portland, Me., 108 Atl. 326.

36. Highway -Equal Rights in.-An automo25. Deeds-Repugnancy.When a deed con

bile driver and motorcyclist have equal rights tains a general description, followed by a par

to lawfully use public highways, and each may ticular description of the premises granted, the

assume the other will exercise ordinary care, latter will control the former.- John L. Roper

and not carelessly expose to danger or negliLumber Co. v. Hinton, U. S. D. C., 260 Fed. 996.

gently injure the other.—Lemmon v. Broad26.- Repugnancy.-If there is a repugnancy

water, Del., 108 Atl. 273. between the granting clause of a deed and the habendum, the former will control the latter so

37. Homestead-Conveyance of.-A homestead as not to defeat the grant.-Jackson V. Lady,

of a husband and wife cannot be conveyed exArk., 216 S. W. 505.

cept by a written instrument jointly executed

by both.--Robison v. Robison, Iowa, 175 N. W. 27. Fraud-Misrepresentation.-The misrepresentation to a vendee by the agent of the vendor, or by the vendor himself, of the cost

38. Homicide Aggressor.-A person instigatto the vendor of land, made to induc the vendee

ing a quarrel by his own wrongful act forfeits to purchase, is a misrepresentation of a material

his right to plead self-defense, and a challenge, fact, which, if relied upon by the vendee, to his

assault, or insult reasonably calculated to prodamage, constitutes actionable fraud.--Wine v.

voke an assault is usually regarded as sufficient U. S., U. S. C. C. A., 260 Fed. 911.

provocation.-Jones v. Com., Ky., 216 S. W. 607. 28. Fraudulent Conveyances-Fraud in Law. 39.- Malice.-Malice is an essential element -A debtor's transfer of property to his wife of murder. If one charged with crime, while without consideration, thereby placing all of his | resisting arrest by an authorized officer or in

nor preclude a party from availing himself of them.-Seastrand v. D. A. Foley & Co., Minn., 175 N. W. 117.

50.- Default.-A judgment by default, or by consent, or one rendered in action in which usury was not in fact pleaded or put in issue as a defense, does not bar the judgment debtor from thereafter setting up the defense of usury against the judgment, when it is sought to be enforced in a court of equity.-Ruckdeschall v. Seibel, Va., 101 S. E. 425.

51. - Reopening.-The court has jurisdiction to reopen a judgment during the term in which

ered and hear further testimony.-Kretchmer V. Kretchmer, Iowa, 175 N. W. 8.

52. Larceny-False Pretenses.-The distinction between larceny and false pretenses is that in larceny the owner of a thing has no intention to part with his property to the person taking it, although he may intend to part with possession, while in false pretenses the owner does intend to part with the property, but it is obtained from him by fraud.—People v. Shwartz, Cal., 185 Pac. 686.

53.- Hope of Gain.-In prosecution for the larceny of a steer, proof that defendant gave away the beef after he had killed the steer was sufficient evidence of casus lucri, even if that were an essential element of crime of larceny in Florida.-Adams v. State, Fla., 83 So. 271.

54.— Ownership.-Owner of a farm, on which corn stolen was raised by a tenant on shares, had such ownership in the corn, although undivided, as would support an indictment for larceny of the corn.-State v. Taylor, Del., 108 Atl. 280.

attempting to escape, maliciously kills or fatally wounds the officer, the homicide is murder.State v. Weisengoff, W. Va., 101 S. E. 450.

40. Husband and wife-Agency.-The relation of agency between husband and wife is governed by the same rules which apply to other agencies.-Milhollin v. Milhollin, Ind., 125 N. E. 217.

41.- Community Property.-Separate property, acquired in a state where community property is unknown, does not become community property, but remains separate property when transported into a community property state.—Bosma v. Harder, Ore., 185 Pac. 741.

42.- Entireties.-When a husband and wife take an estate by the entirety they hold, not as separate individuals and by moieties, but as one person, each holding the whole of it, and on the death of either the entire estate belongs to the survivor.—Lomax V. Cramer, Mo., 216 S. W. 575.

43. Separate Maintenance.--The wife may maintain an action for separate maintenance and support without asking for divorce.-Shipley v. Shipley, Iowa, 175 N. W. 51.

44. Indians — Spoliation, – As the United States, as guardian of the Indians, has the duty to protect them from spoliation, and therefore right to prevent them being illegally deprived by excessive taxation of the rights conferred by Act June 28, 1906, as to distribution of lands of the Osage Indians, officers of the United States can invoke relief for the accomplishment of that purpose.-U. S. v. Board of Com'rs of Osage County, Okla., U. S. S. C., 40 S. E. 100.

45. Injunction-Multiplicity of Suits.-Equity will grant an injunction to prevent a multiplicity of suits; the question of whether, in a particular case, equity will assume jurisdiction, depending, if case is not covered by a controlling precedent, upon the merits of the particular case, the real and substantial convenience of all parties, the adequacy of the legal remedy, the situations of the parties, the points to be contested, and the result to follow as to whether the interests of any of the parties will be unreasonably overlooked or obstructed.--Houston Heights Water & Light Ass'n v. Gerlach, Texas, 216 S. W. 634.

46.- Trade Secrets.—The law recognizes a property right in trade secrets and confidences, and a court of equity, when its jurisdiction is properly invoked, may enjoin one in whom a confidence has been reposed from divulging them to third persons or from himself taking advantage of them to owner's injury, and obligation not to divulge exists in case of an employe, in the absence of contrary stipulation.Morrison v. Woodbury, Kan., 185 Pac. 735.

47. Insurance Constitution and By-Laws.The laws of a benefit association are binding upon all its members, and all are conclusively presumed to know them.-Miller v. Supreme Tent of Knights of Maccabees of the World, Wash., 185 Pac. 593.

48. Intoxicating Liquors—War-Time Prohibition.--The War-Time Prohibition Act was not repealed by adoption of the Eighteenth Amendment, by its terms to become effective one year after its ratification, on the theory that it impliedly guaranteed liquor dealers a year of grace.-Hamilton v. Kentucky Distilleries & Warehouse Co., U. S. S. C., 40 Sup. Ct. 106.

49. Judgment - After-acquired Rights. —A judgment does not affect after-acquired rights,

55. Libel and Slander Printed Defamation. -Printed defamation is more potent than spoken, because more permanent.-Stanley v. Prince, Me., 108 Atl. 328.

56. Limitation of Actions - Discovery of Fraud-An action for fraudulently misrepresenting the value of land sold is not barred if brought within three years, after plaintifl's discovery of the fraud, provided he acted prudently.-Morrison v. Hartley, N. C., 101 S. E. 375.

57. - Tolling Statute.-When the statute of limitations starts to run during the lifetime of an ancestor, it does not stop as against an heir, even though the heir is under disability at the death of the former, and at the time of descent cast.-White v. Scott, N. C., 101 S. E. 369.

58. Marriage — Illicit Cohabitation.-Cohabitation, illicit in its inception, will be presumed to continue 80.-Illinois Steel Co. v. Iudustrial Commission, Ill., 125 N. E. 252.

59.— Slaves.-Where a negress was married while a slave, but continued to live with her husband after emancipation, the marriage became legal.-Wiley v. Stewart, La., 83 So. 260.

60. Master and Servant-Dependency.-That a deceased minor servant gave his wages to his father in aid of him and his children, constituted the father an actual "dependent" within the Workmen's Compensation Act. — Colucci v. Edison. Portland Cement Co., N. J., 108 Atl. 313.

61.- Earning Capacity.-The Workmen's Compensation Act does not give compensation for loss of a member, but for the loss of earning capacity actually caused by the loss of the limb. Centlivre Beverage Co. v. Ross, Ind., 125 N. E. 220.

62.- Principal's Direction.-If the danger of carrying a tieto top of a steep and slippery embankment with insufficient help was not such ag to threaten immediate injury, and the servant by reason of his foreman's order was led to believe that he could carry his part by the use of care, and he proceeded to do the work with the exercise of care, he is not barred from recovering:-Tull v. Kansas City Southern Ry. Co., Mo., 216 S. W. 572.

63.- Scope of Employment. A master is responsible for the torts of his servant only when they are committed within the scope of the employment.–Figone v. Guisti, Cal., 185 Pac. 694.

64.- Wrongful Discharge.-One employed to render personal service to another for a specific term is entitled to recover damages for the breach of his contract if he is discharged, without sufficient cause, before the expiration of

a large sum for infringement and right to use, is strong evidence of utility.-Chruchward International Steel Co. v. Bethlehem Steel Co., U. S. C. C. A., 260 Fed. 962.

77. Principal and Agent-Scope of Agency.An act which an agent is not expressly authorized to do may bind his principal if it is necessary to enable him to effectuate the purpose for which the agency is established.-Davison v. Parks, N. H., 108 Ati. 288.

78. Principal and Surety-Release of Surety. - Wherè money is used by the owner to liquidate demands for which if unliquidated he would be liable, the contractor's surety is not released on its bond, even though the stipulated percentage of amounts due are not withheld by the owner as security.-Harvey v. George, Mich., 175 N. W. 140.

79. Railroads — Contributory Negligence.-A motorman's act in driving an electric car through a dense fog at such a speed that he could not stop within the range of his vision. with knowledge that freight cars of another company might be on the track, held to constitute contributory negligence precluding recovery for damages to the car by a collisionNorth Coast Power Co. v. Cowlitz, C. & C. Ry., Wash., 185 Pac. 615.

80.- Trespasser.-A railroad owes no duty to a trespasser on its track, except not to wilfully or wantonly injure him after discovering his presence there.-Hubbard v. Southern Ry. Co., Miss., 83 So. 247.

81. Reformation of Instrument.—Conformity to Oral Agreement.-The basic principle upon which reformation of a written instrument is allowed is that the writing does not express the prior oral agreement upon which it is founded. -Heard V. Nancolas, Iowa, 175 N. W.

13.

the term.-Davis v. Laurel River Lumber Co., W. Va., 101 S. E. 447.

65.— Wrongful Discharge.-A corporation's buyer and manager, employed by contract under seal at a salary of $100 per week, terminable on six months' notice, and wrongfully discharged without notice, could not maintain actions of debt to recover weekly instalments of salary for the six months' period for which his contract entitled him to notice; the damages being unliquidated, as capable of reduction : whatever might have been earned in other employments.-Ogden-Howard Co. v. Brand, Del.. 108 Atl. 277.

66. Malicious Prowecution-Bad Character.In an action for malicious prosecution, proof of the general bad character of the plaintiff is admissible on the measure of damages, where damages for mortification and disgrace are sought; but the reputation sought to be shown must be bad in the same respect in which his reputation was, or otherwise would have been injured by the malicious prosecution.-Boyers v. Lindhorst, Mo., 216 $. W. 536.

67. Burden of Proof.-To maintain an action for malicious prosecution, one must show that the prosecution has ended in his favor.McLaughlin v. Lehigh Valley R. Co., N. J., 108 Atl. 309.

68. Mechanics Liens–Subcontractor. A subcontractor on a building which has perfected its lien for work, labor, and material furnished, tractor's assignment to a bank of funds or the greater part before the date of the conpayments due, has a prior and superior right to payment from such funds over that of the bank. -Neil & Co. v. Sedlachek, Wis., 175 N. W. 89

69. Mines and Minerals-Partnership.-A partnership to secure a block of oil and gas leases, and to drill a test well to develop field and enable partnership to dispose of the leases, in pursuance of which one test well was drilled, producing but small amount of gas, held a general and not a mining partnership.--Snider v. Davidson, Kan., 185 Pac. 724.

70. Mortgager-Deed Absolute.-A deed absolute upon its face may be shown by parol evidence to have been intended as a mortgage, without alleging fraud, accident, or mistake.Sutton v. Hardison, Ky., 216 S. W. 609.

71.- Rents.-Where mortgage does not expressly pledge rents, etc., of mortgaged premises as further security, the rents accrued prior to appointment of a receiver in a foreclosure proceeding on application of second mortgagee belong to mortgagor or the owner of the fee. Stewart v, Fairchild-Baldwin Co., N. J., 108 Atl. 301.

72. Municipal Corporations Governmental Power.-Though neither counties nor the state nor its governmental agencies can be sued in tort, one whose personal porperty has been wrongfully taken, damaged, or converted to the county's use may waive the tort and sue upon an implied contract to pay for such property. Nelson County v. Coleman, Va., 101 S. E. 413.

73. Negligence Performance of Duty.-Any liability for negligence must rest upon the existence of a duty, which must arise out of a relation between the parties, and a negligent failure to perform the duty.-Mercer v. Meinel, Ill., 125 N. E. 288.

74. Patents — Description of Elements, — Where the language of a claim includes elements described in general terms, the court may look to the specification for the purpose of construing the language and ascertaining its meaning.-I. T. S. Rubber Co. v. Panther Rubber Mfg. Co., U. S. C. C. A., 260 Fed. 934.

75.- Novelty.-The Bone patent, No. 705,732, for a retaining wall of reinforced concrete, with a heel such that the weight of the earth thereon tends to keep the wall erect, held, under Rev. St. $ 4868, in view of prior patents and description of the device in foreign printed publications, to contain no patentable novelty, except, perhaps, in its special form, and in that respect not infringed.-Bone v. Commissioners of Marion County, U. S. S. C., 40 Sup. Ct. 96.

76.- Utility.- That a patented process for manufacturing steel was used, and that a large manufacturer, through its officers, having the fullest knowledge of the science and art and having at their command the best experts, paid

82. Robbery-Force and Intimidation.-"Robbery" is the felonious and violent taking of money, goods, or other valuable things from the possession of another by force or intimidation, and is punishable by imprisonment in the penitentiary not less than one and not more than fourteen years.-People v. Jones, Ill., 125 N. E. 256.

83. Sales-Delivery.—Generally, delivery of personal property at the place agreed on or designated by the buyer is a completed delivery. -Fiske v. H. E. Dunbar & Co., Me., 108 Atl. 324.

84. — Misrepresentation.-If representations inducing a sale were material and false, and the maker knew or should have known that they were false, or made them recklessly without knowledge, and the injured party relied on them as true without present means of knowledge of their falsity, and suffered damage, he was defrauded in the legal sense. -Denis V. Nu-Way Puncture Cure Co., Wis., 175 N. W. 95.

85.- Offer and Acceptance.--For a contract of purchase to become effective when entered into by mail, the offer to sell must be accepted by buyer unequivocally unconditionally, and without any variance.-Dunn v. Freeman, Ga.. 101 S. E. 393.

86. Street Railroads-One-Man Car.-An ordinance requiring every street car to be operated by a conductor and motorman, subject to penalty for violation, is presumed a lawful exercise of the police powers for public safety. and notwithstanding a contested claim of safe. ty of a one-man car, cannot be held unconstitutional, in the absence of a shownig of a clear case of arbitrary conduct on the part of the local authorities.-Sullivan v. City of Shreveport, U. S. S. C., 40 Sup. Ct. 102.

87. Wills - Attestation. — Where attesting witnesses signed after attorney who had drawn will had stated in testator's presence and hearing that testator wished them to attest will. and after testator had himself signed will, there was a publicaion of will, there having been, in effect, a declaration by testator that it was his last will.-Lohmann v. Lohmann, Mo., 216 S. W. 518.

88.- Laches.-An attack on the validity of a will disposing of testator's entire estate comes too late when made nearly 13 years after his death.-Gerke v. Citizens' State Bank of Spencerville, Ind., 125 N. E. 238.

Central Law Journal.

exercise such police power, but has authority to use it again and again, as often as the

| public interests require.” ST. LOUIS, MO., FEBRUARY 27, 1920

Neither in the City of Columbus case nor

in Cleveland v. Cleveland City Ry. Co., 194 RIGHT OF PUBLIC SERVICE COMPANY TO

U. S. 517, cited by the Columbus case, was BE RELEASED FROM SERVICE CONTRACTS, NOTWITHSTANDING SPE | allusion made to successive legislative CIFIC GRANT BY LEGISLATURE TO bodies, but the rulings of Ohio State Courts MAKE THEM AND LACK OF MUTU.

were followed in declaring that the power ALITY.

to make irrevocable contracts fixing rates

had been unmistakably vested in cities of The United States Supreme Court re- that state regarding, at least, street railways cently held that, under the laws of Ohio. as public utilities. ordinances of the City of Columbus grant

It is also pointed out by the Illinois Court, ing to a street railway a franchise for the

| in the Quincy case, supra, that in the City term of twenty-five years, providing that

of Columbus case: "The Federal Supreme the railway shall charge a certain rate for

Court specifically stated that there was no fares and grant universal transfers, must

showing that the contract had become in be complied with by the railway, notwith

possible of performance, nor were facts standing increased operating expenses, be

established in the record proving that, takcause the State Legislature vested in the

ing the whole term of the franchise toCity of Columbus the right to make an

gether, the contract would necessarily be irrevocable contract with such railway.

unprofitable or unremunerative to the pubColumbus Ry., P. & L. Co. v. City of

lic utility corporation, while in this case i. Columbus, 249 U. S. 399, 39 Sup. Ct. 349.

is conceded the record shows that the railLately the Supreme Court of Illinois held, way company must charge and collect fares that there was no inability under the con in excess of those prescribed in said orditract clause of the federal Constitution, nance in order to meet operating expenses.” against a public utility having the right to

While it seems to us that the distinction have its rates readjusted so as to furnish

drawn by the Illinois Court does not meet adequate compensation, notwithstanding a

what is said by U. S. Supreme Court, beterni contract with a city of that state.

cause this does not show impossibility of State Pub. U. Comm. v. City of Quincy,

performance, nor that there is a lack of 125 N. E. 374.

proper remuneration under the ordinance These two cases may not be in necessary "taking the whole term of the franchise conflict, because the Supreme Court pro together,” yet we undertake to say tha: the ceeded upon the theory that it was by ex Illinois Court was right and U. S. Supreme press power given to the Ohio city that there | Court was in error. was a surrender by the state of its sover- It is said in Collier on Public Service eignty over the subject. In the Illinois | Companies, § 117, that in Munn v. Illinois. Court it was said there was no such sur | 94 U. S. 113, it had been declared that render, under Illinois law.

“power to regulate is not a power to de But the Illinois Supreme Court went stroy,” and this regulation must “stop on further and said: “It has long been a prin the hither side of the unnecessary and unciple of constitutional law that in matters compensated taking or destruction of any relating to the police power, each successive private property" devoted to public use legislature is o f equal authority, and a legis- (Reagan v. F. L. & T. Co., 154 U. S. 1. c. lative body cannot part with its right to 1 399), and what such a “company is entitled

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