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only be done by the municipality acting for who have not. In the Clausen case the Suall. But while this is true, nevertheless there preme Court of Washington thus justifies is bound to be some limitation to the taking the Reclamation Act: of private property for a public use whether

"Is there not abundant room for arguing by eminent domain or the more insidious that the development of our unoccupied mode of taxation, and that limit to our lands suitable for agriculture, by a land mind is whether the use is one by which policy which would encourage the settlethe great majority of the people will be

ment thereon of home-owning farmers, will

materially contribute to the welfare of our directly benefited and one which under

people as a whole Can it not be argi ed present social conditions cannot be ade

with a fair show of reason that, not only quately supplied by private enterprise.

will such a policy ultimately lead to the en

hancement of the material wealth of the The above test is our own and we like state, but that it will also make for better it better than the one given by many text citizenship, better notions of necessity for writers, to-wit, the custom of the com

law and order, and a sounder and saner munity. In Gray, Limitations of the Tax

patriotism? In the light of the debatable

character of these questions, we are quite ing Power, Sec. 176, the author states that

convinced that it is not within the province the limit should be the "custoins of the gov of the judicial branch of our state governernment and the community." The Wash ment to answer them in the negative." ington Supreme Court very properly ob

The Reclamation Act of Washington does jects to this standard because it “is wholly out of harmony with the thought permeat

not, by reason of its objectives come within ing all of the later decisions, that new con

the category of laws regulating public

utilities—those institutions or lines of busiditions and new public necessities are

ness in which the public have a direct inweighty considerations in determining the

terest, such as schools, highways, mills, question of public purpose; for, if custom

grain elevators, railroads, hotels, teleis to be the controlling factor in deciding the

graphs, telephones, electric light and power, question, then the consideration of new

water rights and power, and many other conditions and new necessities are of little

lines of business which are declared to be moment in deciding the question.”

affected with a public interest. In this case Our objection to the decision of the the parties to be directly benefited are Washington Supreme Court in the Clausen | those who buy improved farms from the case, however, is that it has no test what .state. Under this scheme A is to be taxed ever of a public use and seems to be wan so that B can have the opportunity to buy dering in the dark with not even a ray of | a good farm on easy terms. Applying our light to guide its future course. So far as double test let us inquire first, are the peothat Court is concerned the legislature can ple directly benefited by this use of the go as far as it likes and tax the people for fund or only a few individuals; second, any purpose which it arbitrarily labels a could the purpose of this Act be achieved public use. Such a weak position on the by private enterprise? It does not seem to part of a Court whose supreme duty it is us that this Act benefits the whole people to uphold and protect the Constitutional | except in a very remote way. Second, it rights of the people even as against the seems to be wholly unnecessary for the will of the majority offers no obstacle to public to go into the real estate and mortthe increasing boldness of those who professgage business in order to start off a few no regard for our Constitutions and whose young farmers in the style proposed by this sole purpose in legislation seems to be to Act. Private enterprise is amply able to take from those who have and give to those furnish any man with a good farm and with

money enough to improve it, and when a may be raised; otherwise the mad rush to man by his own initiative has thus achieved cure all the ills of man by law and by funds success he will not have to hold his head raised by the taxation will not cease until down and admit that he has been a ward the whole fabric of our civilization breaks of the government. Moreover, if the state down under a load it should never have can stake a young farmer to a farm, why been called upon to bear. Moreover every not stake a young manufacturer to a new such act as this that makes the people defactory? Why not create a fund to drill oil pendent on the state for support serves to lands for oil speculators? North Dakota 1.ndermine the strength and initiative of the levi s a tax to buy seed for the farmers. American character and encourages men to Why not levy a tax to buy law books for rely more upon the state than upon their young lawyers. They need them about as own resources. badly as a farmer needs seed and if they had them, their clients and indirectly the public might suffer less from their bungling methods.

NOTES OF IMPORTANT DECISIONS. It would be well for our courts to pay

APPROPRIATING MONEY GIVEN FOR A greater heed to the sound decision and clear

SPECIAL PURPOSE IS LARCENY.—The disargument of the Massachusetts Court in

tinction between larceny and false pretense, Lowell v. Boston, 111 Mass. 454, 15 Am. which is sometimes very difficult to make, is Rep. 39, which declared unconstitutional discussed by the Court of Appeals of Califoran act to raise by taxation a fund of | nia in the recent case of People v. Shwartz,

185 Pac. 686. $20,000,000 to loan to those whose homes

In this case the defendant accepted $100 had been destroyed by fire. The Court

from each of several prosecuting witnesses who said:

were engaged in the business of conducting

bath and massage parlors in the city of Los “The promotion of the interests of indi

Angeles, for the conduct of which they were re viduals, either in respect of property or

quired to have a license. Defendant stated that business, although it may result incidental

he could fix the police commissioners and se. ly in the advancement of the public welfare,

cure their license for the amount that was is, in its essential character, a private and

paid. The money was never paid to the police not a public object. However certain and

commissioners nor to any one else, but was great the resulting good to the general pub

appropriated by the defendant for his own use. lic, it does not, by reason of its comparative

Defendant contended that if he was guilty of importance, cease to be incidental. The in

any crime it was obtaining money under false cidental advantage to the public, or to the

pretense. The Court, however, held that he state, which results from the promotion of

was guilty of grand larceny, and in explanaprivate interests, and the prosperity of pri

tion of the distinction existing between these vate enterprises or business, does not jus

two classes of offenses, said: tify their aid by the use of public money

"It is claimed by appellant that if the eviraised by taxation, or for which taxation

dence shows him to be guilty of any crime it may become necessary. It is the essential

is that of obtaining money by false pretenses, character of the direct object of the expend and not grand larceny-the crime of which he iture which must determine its validity, as was convicted. In support of this claim it is justifying a tax, and not the magnitude of

contended that the evidence shows indubitably

that each of the complaining witnesses intended the interests to be affected, nor the degree

to part with the title to her money as well as to which the general advantage of the com

its possession. The distinction between larmunity, and thus the public welfare, may be ceny and false pretense is substantially this: ultimately benefited by their promotion." In larceny the owner of a thing has no inten

tion to part with his property therein to the Somewhere there must be a limit to the person taking it, although he may intend to

part with possession. In false pretense the power to tax ; some sort of definition must

owner does intend to part with his property in be made of a “public use" for which taxes | the money or chattel, but it is obtained from

him by fraud (People, etc., v. Delbos, 146 Cal. | Amendment of June 18, 1910, telegraph. 734, 81 Pac. 131). There would be merit in appellant's contention if, when the complaining

telephone and cable companies (wire and witnesses delivered the several sums to him, wireless) were brought under the Commerce they had intended that the moneys should then

Act, and therein defined to be "common and there become his property. So far from such being the case, it appears from the evi carriers.” The fact that some of the secdence that each complaining witness, at the

tions of the Commerce Act were amended time when she delivered her money to appel. lant, intended that it should be received by him and others were left as they were before, for the purpose of carrying it and paying it to

created some uncertainty as to the extent to some person, unknown to the witness, whom, however, she supposed to be an actually exist which the provisions of the Act applied to ing person, but who, as a matter of fact, was a

such companies. The companies contend spurious and mythical individual, invented by appellant for the fraudulent purpose of trick. that by the amendment Congress has maniing the witness into parting with the posses fested an intention to take possession of sion of her money

this field of legislation, and has thereby removed such companies, in the matter of in

terstate commerce, from the control of state APPLICABILITY OF THE INTER decisions and state statutes, and that the

STATE COMMERCE ACT TO damages recoverable against them must be TELEGRAPH COMPANIES.* measured by common law principles as

declared by the Supreme Court of the

United States and enforced in the Federal The exercise by the Federal congress in

Courts, and that state statutes and decirecent years of its powers to define the

sions applying a different rule are inapplirights and regulate the conduct of our peo

cable. ple has attracted considerable attention.

Beginning with the case of So Relle vs. This legislation is so extensive and has

W. U. T. Co., decided in 1881, there has such distinctive features that we might say

grown up what is called the "mental pain that we have entered upon a new era in the

and anguish doctrine," which is contrary development of our Federal law. One of the most important branches of Federal

to the principles declared by the Federal

Courts. Subsequently the Courts of Alalegislation in recent years, I think, is the

bama, and several other states, adopted a exercise of the power of Congress in the

like rule, while it was rejected by the Fedregulation of interstate commerce. The

eral Courts and those of many of the original Interstate Commerce Act and its

states. 3 several amendments, the Employers Liability Act, the Food and Drugs Act, the

In the first case declaring the mental pain Meat Inspection Act, the Hours of Service

and anguish doctrine, the Court recogAct, the Clayton Act and the Trade Com

nized one of the dangers of the doctrine and mission Act, the White Slave Act and the

said: “It should be remarked that great cauShirley Amendment to the Food and Drugs

tion ought to be observed in the trial of Act, in the nature of police regulations,

causes like this, as it will be so easy and natshow the activity of Congress with refer

ural to confound the corroding grief occaence to this kind of legislation. The Su

(2) "55 Tex. 308. preme Court of the United States held in (3) Many of the cases are reviewed in W, U. the Primrose Casel that telegraph com

T. Co. vs. Choteau (1911), 28 Okla. 604, Am, Cas.

1912 D, 824, 49 L. R. A. (N. S.) 206 and note; So. panies were not common carriers, but by the 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. *A paper read by Mr. W. M. Williams at the

Sedgwick on Damages, 9th ed. Sec. 43, et seq. and 1916 annual meeting of the Alabama State Bar

cited in Sutherland on Damages, 3d Ed. Sec. 975, Association.

756, et seq. (1) 154 U. S. 1.

(4) So Relle vs. W. U. T. Co. supra.

sioned by the loss of the parent or other is either that of the general common law, as relative with the disappointment and regret declared by the United States Supreme occasioned by the fault or neglect of the | Court, or the supposed public policy of a company; for it is only the latter for which particular state, or the statute law of a para recovery may be had.”

particular state.20 It is therefore seen how In some of the states, especially where

important it is from the standpoint of the the Courts had rejected the doctrine, the

companies that there should be some unilegislatures enacted statutes which prac

form rule for the measure of damages and tically made telegraph companies insurers

the regulation of such companies; and the and held them liable for special and un

public is also interested in uniform rules contemplated damages. Some of the states

and regulations and non-discriminating and imposed penalties for mere errors or delays

reasonable rates. in transmission or delivery, which penalties

The applicability of the Act to telegraph varied in amount according to the person

companies is of the most imporant interest nel and whims of the various legislatures.

to the government, because under the Act In Missouri the penalty was three hundred

of Congress adopted July 24, 1866, and dollars for “every neglect" to be recov

entitled “An Act to aid in the Construction ered by the person sending the message,

of Telegraph Lines and to secure to the two-thirds of the amount recovered to be

Government of the United States the use retained by the plaintiff and one-third to

| of the same for Postal, Military and other be paid into the county school fund, though

Purposes,"'11 telegraph companies accepting the school, of course, was not damaged,

the provisions of the Act are governmental and in some instances the employes of the

agencies and a part of its postal system.!? company as well as the company were

The purpose of the Act was to secure to made subject to the penalty. In Mississip

the government preferential and economical pi the penalty was twenty-five dollars in

| use of the lines of telegraph companies, and addition to damages ;9 in Virginia, one hun

the right to purchase and own the compadred dollars ;? in Georgia, twenty-five dol

nies, pursuant to the terms of the Act.13 lars, in addition to damages ;$ and so on. In Virginia the penalty was recovered from The original Commerce Act known as the Postal Telegraph Company where the the “Regan Act," adopted February 4, 1877, delayed delivery of the telegram resulted was limited in its operation, and included in profit to the plaintiff.

within its provisions only “common carriers In addition to the dangerous mental pain

engaged in the transportation of passengers and anguish doctrine in force in some of

and property wholly by railroad or partly the jurisdictions, in some of the states the

by railroad and partly by water, when both stipulations on the back of the printed tele

are used.” It has been variously amendgraph and cable blanks classifying the messages and limiting liability, were

(9) Primrose v. Western Union Tel. Co., 154

U. S. 1; Hart v. Pennsylvania R. Co., 112 U. S. nullified by the decisions and statutes.

(10) Western Union Tel. Co. vs. Commercial If the Commerce Act does not apply to M. Co., 218 U. S. 406; Western Union Tel. Co. v. telegraph companies, in the manner con James, 162 U. S. 650; Pennsylvania R. R. Co. v.

Hughes, 191 U. S. 477; Chicago M. & St. P. R. tended for by them, then the rule for meas

Co. v. Sloan, 169 U. S. 133; Adams Exp. Co. v. uring the liability for an interstate message Croninger, 226 U. S. 491.

(11) Act of July 24, 1866, ch. 230; 14 Stat. L.

221. (5) Rev. Sts. Missouri, 1909, p. 1200. (6) Miss. Code, 1906, Sec. 4879a.

(12) W. U. T. Co. vs. Texas, 105 U. S. 460; (7) Va. Code, 1904, Sec. 1294 h.

Williams v. Talladega, supra. (8) Ga. Code, 1911, Sec. 2812.

(13) W. U. T. Co. v. Texas, supra



ed and supplemented. However, no sub graph, telephone and cable companies stantial change was made in the Interstate

(whether wire or wireless), engaged in Commerce Act until 1906, when congress

sending messages from one state, territory,

or district of the United States, to any passed the Hepburn Act and the Carmack

other state, territory, or district of the Amendment which very materially enlarged

United States, or to any foreign country, the field covered by the Act, and includ | who shall be considered and held to be ed within the provisions thereof, in addi common carriers within the meaning and tion to common carriers by railroad and

purpose of this Act, and to any common water, sleeping car companies, express com

carrier or carriers engaged in the transpor

tation of passengers or freight wholly by panies, iron and pipe lines and bridges and

railroad (or partly by railroad and partly ferries—all of which were declared to be by water when both are used under a comcommon carriers and subject to all the pro mon control, management, or arrangement visions of the Act. Enlarged powers were

for a continuous carriage or shipment), conferred on the Interstate Commerce

from one state or territory of the United

States or the District of Columbia, to any Commission and express regulation of all

other state or territory in the United States contracts of the companies subject to the

or the District of Columbia, or from one Act were provided for by the Carmack place in a territory to another place in the Amendment. I refer to the several Acts same territory, or from any place in the of Congress for the purpose of showing the

United States to an adjacent foreign coun

| try, or from any place in the United States gradual development and extension of the

through a foreign country to any other place field covered by the Federal law. It was

in the United States, and also to the transnot until June 18, 1910, that congress men- portation in like manner of property shipped tioned telegraph, telephone and cable com | from any place in the United States to panies in this legislation. By the amend

a foreign country and carried from such ment of June 18, 1910,15 Section 1 of the

i place to a port of transshipment, or shipped

from a foreign country to any place in the original act was amended to read as fol

United States and carried to such place lows:

from a port of entry either in the United

States or an adjacent foreign country: "Section 1. That the provisions of this

Provided, however, That the provisions of Act shall apply to any corporation or any

this Act shall not apply to the transportaperson or persons engaged in the transpor

tion of passengers or property, or to the tation of oil or other commodity, except

receiving, delivering, storage, or handling water and except natural or artificial gas,

of property wholly within one state and not by means of pipe lines, or partly by pipe

shipped to or from a foreign country from lines and partly by railroad, or partly by

or to any other state or territory as aforepipe lines and partly by water, and to tele

said, nor shall they apply to the transmis

sion of message by telephone, telegraph or (14) Act of Feb. 4, 1887, Ch. 104, 24 Statutes

cable wholly within one state and not at Large, 379; Act of March 2, 1889, Ch. 382, 25

transmitted to or from a foreign country Statutes at Large, 855; Act of Feb. 10, 1891, Ch. 128, 26 Statutes at Large, 743; Act of Feb. 11, from or to any state or territory as afore1893, Ch. 83, 27 Statutes at Large, 443; Act of said.15a Feb. 19, 1903, Ch. 108, 32 Statutes at Large, 847 (The Elkins Act; Interstate Commerce Act of

| “All charges made for any service ren1903); Act of Feb. 25, 1903, Ch. 755, 32 Statutes dered or to be rendered in the transportaat Large, 904; Act of June 29, 1906, 34 Statutestion of passengers or property and for the at Large, 584 (The Hepburn Act); Act of April

transmission of messages by telegraph, tele13, 1908, Ch. 143, 35 Statutes at Large, 60; Act of Feb. 25, 1909, Ch. 193, 35 Statutes at Large,

phone or cable, as aforesaid, or in conner648; Act of June 18, 1910, Ch. 309, 36 Statutes at tion therewith, shall be just and reasonable; Large, 539; Act of Aug. 24, 1912, Sec. 11, 37 Stat- and every unjust and unreasonable charge utes at Large, 566 (The Panama Canal Act); Act for such corvice or any part thereof in

for such service or any part thereof is proof Oct. 22, 1913, Ch. 32, 38 Statutes at Large, 219, 221. See excellent articles by Mr. Karl W. Kirchi | hibited and declared to be unlawful: Pro: wey in 14 Col. L. Rev. 211, and Mr. Wm. Over- | vided, That messages by telegraph, toleton Harris in Vol. II, No. 2 Virginia L. Rev. 98.

(15) Ch. 309, 36 Statutes at Large p. 539. (15a) 36 Stat. L. 544.

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