"The first assignment of error is that the Circuit Court erred in overruling the demurrer to the declaration. The ground upon which this contention is based is that the action is in form ex delicto, and is against the defendants as executors, and is therefore not maintainable. The general principle, undoubtedly, is that, unless authorized by statute, a personal representative cannot be sued as such for his own tort. But this principle does not apply to the case in hand; for here the action is not against the defendants in their representative capacity, but is against them personally. It is true they are described as executors, but this is merely descriptio personae, and may be stricken out as surplusage, inasmuch as no cause of action is set forth in the declaration for which, under any circumstances, they can be held responsible as executors. Besides, there is no well-founded objection to the declaration as it is, for by describing the defendants as executors it merely sets forth their relation to and consequent duties respecting the property mentioned therein, and then it further alleges that for their failure to perform those duties, namely, in negligently permitting the area light to be and continue in an unsafe condition, they are answerable personally to the plaintiff in this action; at least such is the substance and effect of the allegations in this declaration."

In Bannigan v. Woodbury, 158 Mich. 206, 122 N. W. 531, 133 Am. St. Rep. 371, it was said that "the allegation that one is administrator and that as such he is in possession of the property does not necessarily negative his personal liability." See, also, Shepard v. Craemer, 160 Mass. 496, 36 N. E. 475; Rose v. Cash, 58 Ind. 278; McCue v. Finck, 2 Misc. Rep. 506, 46 N. Y. Supp. 242; Brown v. Floyd, 163 Ala. 163. 50 So. Rep. 995. The underlying principle in this class of cases is that an agent in control of property is responsible for his own tortious acts. Ellis v. McNaughton, 76 Mich. 237, 42 N. W. Rep. 1113, 15 Am. St. Rep. 308.

LIABILITY OF DIRECTORS OF CORPORATION FOR VOTING DIVIDENDS IN EXCESS OF PROFITS.-To show how liable one is to err in the law by following first impressions of the justice of a case, Justice Pitney, then Vice Chancellor of New Jersey, declared at one time that it "would be unjust for the stockholders directly to recover from the directors the very moneys which they had already received." Siegman v. Maloney, 63 N. J. Eq. 422. In a later case, when Mr. Justice Pitney became a member of the Court of Errors and Appeals, he reached just the opposite conclusion. Siegman v. Electric Vehicle Co., 72 N. J. Eq. 408, 65 Atl. 912.

The same question recently came before the Court of Appeals of California, which, in a very admirable opinion, reached the conclusion that stockholders who receive the benefits of an illegal dividend are not estopped from suing the directors on behalf of the corporation to compel them to pay back to the corporation the amount of the illegal dividend which they had voted. Southern California Home Builders v. Young, 188 Pac. 586. In this case five directors voted three dividends, amounting to $30,000 which the trial Court found were not paid out of surplus profits. The directors offered in evidence the balance sheet prepared by their bookkeeper showing profits of more than $30,000, but the Court found that this result was caused by carrying fixed assets at a valuation greatly in excess of their real worth. In reply to the contention that the directors were liable for illegal dividends only to creditors the Court said:

"Although one of the purposes of such a statute was to protect creditors, that was not its sole purpose. The statute affords protection in proper cases to the corporation, regardless of whether or not there are creditors. It would be nothing short of absurd, therefore, to hold that no suit could be maintained to enforce the liability, except one on behalf of stockholders. Kohl v. Lilienthal, 81 Cal. 387, 20 Pac. 401, 22 Pac. 689, 6 L. R. A. 520. The cases of Winchester v. Mabury, 122 Cal. 522, 55 Pac 393, and Moss v. Smith, 171 Cal. 777, 155 Pac. 90, when read in connection with the facts upon which they were based, lend no support to the contentions of the appellants."

The clearest exposition of the reason for the common law liability of directors for declaring illegal dividends, is found in the

opinion of Chief Justice Gummere of the Court of Errors and Appeals of New Jersey in the case of Appleton v. American Malting Co., 65 N. J. Eq. 375, 54 Atl. Rep. 454, where that learned jurist, in answer to the argument that it would be inequitable to permit stockholders to recover from directors money which they themselves had received as dividends, said:

"The argument assumes there will be no transfer of the stock of the company during the period of the liability of the directors. The assumption is unwarranted. The very declara tion of the dividend, evidencing, as it does, the apparent prosperity of the company, creates a desire on the part of outsiders to become holdors of the stock. It at the same time decreases the actual, while increasing the apparent, value of the stock. The result is to afford unscrupulous directors, and stockholders who are cognizant of the illegal action of the board, an opportunity to unload their holdings upon innocent purchasers at fraudulently inflated prices.

Nor is it inequitable that stockholders who have innocently participated in the distribution of the illegal dividends should have their stock restored to its normal value by contribution from the directors who have impaired the capital without being first required to pay back the dividend so paid to them. The ordinary purchaser of corporate stock holds it as an investment. He rightly considers and treats the dividends paid upon it as income. In many instances the income is required to meet the expenses of livng, and is entirely expended for that purpose. To say that a person who has been unwittingly induced to exhaust his principal by the mistaken or fraudulent representation of those to whom he has intrusted it, that what has been paid to him as income suffers no injury, is absurd. To refuse him redress except upon the condition that he return the moneys which he has expended in the belief that his capital was intact, notwithstanding that by such expenditure he is rendered penniless, is to put a premium upon fraud in corporate management."

It is very common practice of a legislature to adopt a statute and define the terms used in it. There is no question over the power of a legislature to do this; but the Courts have universally held that after a statutory term or expression has been judicially defined or its meaning determined the legislature thereafter has no power to adopt a statute declaring the meaning or defining the terms used in such former statute.

This is merely preliminary, in order to draw a distinction between the kind of legislation and legislation attempting to define or extend phrases or terms used in the constitution.

Can the legislature do this? At first blush it would seem such a question is pre: posterous; and yet legislatures (and even Congress recently in the Federal Prohibition Act) have at least occasionally attempted to do this.

Somewhat apropos of this question the Supreme Court of Pennsylvania has said:

Speaking of the three departments of government, Chief Justice Marshall said: "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law."2

In an Illinois case it is said that "The legislative power extends only to the making of laws, and in its exercise it is limited and restrained by the paramount authority of the federal and state constitutions."

In an early Virginia case it was said: "The interpretation of the law is the proper and particular province of the Courts. A constitution is in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.'

Speaking of the power of the legislature, Gibson, C. J., of the Supreme Court of Pennsylvania, said: "It is limited to the making of laws; not to the exposition or explanation of them."

In Maine it has been said:

"It is, however, a fundamental duty of the Court and within its exclusive province to construe both the statutes and the constitution and to ascertain not only from the words themselves, but from the con

(1) In Re Ruan Street. 132 Pa. St. 257; 19 Atl. 219; 7 L. R. A. 183. In matter of Lafayette Co., 2 Pinney 523.

(2) Wayman v. Southard, 10 Wheat. 46. See also Greenough v. Greenough, 11 Pa. St. 494, and Westinghausen v. People, 44 Mich. 265; 6 N. W. 641.

(3) Newland v. Marsh, 19 Ill. 383.

(4) Tucker, J., in Kamper v. Hawkins, 1 Va. Cas. (3 Va.) 20, 82. (5) De Chastellux 18: 53 Am. Dec. 570.

v. Fairchild, 15 Pa. St.

text, from the purpose to be sought, and in some cases from the result attending upon one construction or the other, what the real intention of the law-making power was and how the expressed intention should be interpreted."

"The construction and force of this constitutional provision presents a legal question to be decided by the Courts."

"The course of legislation on this subject by the legislature, while it is entitled to respect, cannot be permitted to control the decisions of the judicial department in its construction of the constitutional provision; for, as was said by Chief Justice. Marshall in Cohens v. Virginia," 'the power to make, or unmake the fundamental instrument of government, resides only in the whole body of the people, and not in any subdivision of them.'"

"Where a constitution defines the qualification of an office, it is not within the power of the legislature to change or superadd to it, unless the power be expressly, or by necessary implication, given to it."10 Nor can the legislature add to the constitutional qualifications of voters.11

Neither can it diminish them.12

Neither can it add to or diminish the qualifications of an officer as fixed by the constitution,13 nor shorten1 the limit fixed by the constitution.15

"It is not within the province of the legislature to construe the constitution in any

(6) Moulton v. Scully, 111 Me. 428; 89 Atl. 944.

(7) Citing State v. Rogers, 56 N. J. L., 480; 28 Atl. 726, 29 Atl. 173.

(8) 6 Wheat. 264. (9)

Wauser v. Hoos, 60 N. J. L. 482; 38 Atl. 449; 64 Am. St. 600.

(10) C. J. LeGrand in Thomas v. Owens, 4 Md. 189, 223.

(11) Rison v. Farr, 24 Ark. 161; Quinn v. State, 35 Ind. 485; Morris v. Powell, 125 Ind. 280; 25 N. E. 221; 9 L. R. A. 326; State v. Williams, 5 Wis. 308; Monroe v. Collins, 17 Ohio St. 665; State v. Staten, 6 Cold. 233; Randolph v. Good, 3 W. Va. 551; McCafferty v. Guyer, 59 Pa. St. 109.

(12) Allison v. Blake, 57 N. J. L. 6; 29 Atl. 417; 25 L. R. A. 480.

(13) Feibleman v. State, 98 Ind. 516. (14) Howard V. State. 10 Ind. 99; State V. Askew, 48 Ark. 82; 2 S. W. 349.

(15) People v. Bull, 46 N. Y. 57; State v. Brewiter, 44 Ohio St. 589; 6 N. E. 653; Kahn v. Sutro, 114 Cal. 316; 46 Pac. 87; 33 L. R. A. 620.

Let us now turn to a few concrete examples.

In Georgia, where the constitution used the phrase "head of a family," the question arose whether the legislature could so extend its provisions as to cover a bachelor not maintaining a household, and it was held that it could not, the Court saying:

"The constitution in using the terms 'each head of a family,' left the question of what constituted the head of a family open for interpretation; and the Courts. alone had the right to interpret the question, or to say who was, within the meaning of the constitution, the head of a family. While we have great respect for the lawmaking power, we cannot defer to its con

struction of the constitution or laws. That power is lodged in the judiciary. In the dividing line of power between these co-ordinate branches we find here the boundary ---construction belongs to Courts, legislation to the legislature. We cannot add a line to the law, nor can the legislature enlarge or diminish a law by construction. There are cases where the legislative intent guides the Court in the construction or exposition of what the law is, the Courts look to the intent of the legislature as an element in their construction. But when the constitution is the subject matter of construction, the Courts are the authority. And we have no hesitation in saying the legislature cannot, by the declaration of an act, make a single person living to him or herself the head of a family."

9917

(16) State v. Speers, 53 S. W. 247 (Tenn. Chancery.).

(17) Calhoun v. McLenden, 42 Ga. 405. The constitution of Georgia declared that "Each head of a family * shall be entitled to homestead" exempt from levy and sale; and the legislature undertook to extend its provisions by declaring "That any single person male or female, or married person, who, at the time of the adoption of the present State Constitution, or before, lived habitually as housekeeper to himself or herself, on his or her own land, is hereby declared to be the head of a family." The statute was declared void; on the ground that it was an endeavor to extend the meaning of the term "head of a family." The Supreme Court had, before the enactment of this statute, decided what constituted a head of a family (40 Ga. 173). It is true that the statute was void, because it was an effort to give an interpretation to the term "head of a

A constitutional provision providing that benevolent associations shall be exempt from the payment of an incorporation fee cannot be extended by the legislature so as to exempt a building association organized "whereby the shareholders, out of their savings, may be enabled to secure homes, or loan their savings to others at higher rates of interest, to be fixed by the directors."5

In Texas an act was adopted by the legislature providing that in case of a sale and shipment of intoxicating liquor the place of sale should be deemed to be the place of receipt and not at the place of delivery to the shipper. The constitution prohibited the sale of liquors within a geographical division of the state where local option had been adopted. Thus the statute sought to make a sale invalid by changing the well-known rule of law that a sale is completed at the point of shipment, and not at the point of destination. The Supreme Court of Criminal Appeals held the statute unconstitutional, saying: "Sale, used in article 16, Section 20, had as thoroughly known and definite meaning as did the expression 'intoxicating liquors,' used in the same action. The legislature could with as much propriety pass an act defining 'intoxicating liquors' entirely destructive of its meaning as used in the constitution, as it could the definition and meaning of the term 'sale' as therein used. The same reasoning which justified one would authorize the other, and one proposition is as subversive of the constitution as would be the other. Those who would sustain the act of the legislature defining C. O. D. sales as occurring at the point of consignment despite the real contract, would scarcely agree that that body could eliminate 'intoxicating liquors' by giving that term a definition out of accord with its ordinary and well-under

family" after the Supreme Court had interpreted that term, which all the courts declare cannot be done; but the language quoted is amply broad enough to cover an instance where no interpretation of even a statute had previous to its enactment been made.

(18) State v. McGrath, 95 Mo. 193; 8 S. W. 425.

stood meaning as therein employed, or add 'liquors' thereto which are not intoxicating. Where words, terms or language are plain and definite, there is no room for construction, for such language is self-construing, and to be taken in its ordinary meaning and acceptance at the time of the adoption of the constitution. If this were not true, the legislature could carve or legislate away the plainest provisions of that instrument, or these provisions could be construed to mean anything to suit the passing fancy of the hour, or as clamor might demand."19

A statute of Nevada created and authorized the Nevada Benevolent Association to give not exceeding three entertainments or gift concerts, and to sell tickets of admission to it entitling the holder to participate in a distribution of awards "by raffle or other schemes of like character," and then declared that "nothing in this act contained shall be construed as authorizing a lottery in this state, or as allowing the sale of lottery tickets contrary to the provisions of the constitution." The Supreme Court held that the statute in fact provided for a lottery in direct violation of a provision in the state constitution, that it was void; and that the provision of the statute just quoted could not save it from the charge of unconstitutionality, saying:

"The state government is divided by the organic law into executive, legislative and judicial departments, and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others except in cases expressly directed or permitted. The construction. to be placed upon this act must be determined by the Court alone. The attempted exercise of this power by the legislature was an assumption of the functions of the judiciary, and must be disregarded."20

The constitution of Texas provided that "no person for the same offense shall be twice put in jeopardy of life or liberty"; and in 1856 the legislature provided that

(19) Keller v. State (Tex. Crim. Apps.); 87 S. W. 669; 1 L. R. A. (N. S.) 489. See the comments of Chief Justice Bronson on this subject in Oakley v. Askinwell, 3 N. Y. 547, 568. (20) Exparte Blanchard, 9 Nev. 101.

"no person for the same offense can be twice put in jeopardy of life or liberty"; and added, "This is intended to mean that no person can be subjected to a second prosecution for the same offense after having once been prosecuted in a Court of competent jurisdiction and duly convicted." This was followed by a clause explaining the words italicized: "The foregoing article will exempt no person from a second trial who has been convicted upon an illegal indictment or information and the judgment thereon arrested, nor where a new trial has been granted to the defendant, nor where a jury has been discharged without rendering a verdict, nor for any cause other than that of a legal conviction." This statute was almost literally re-enacted in 1879.

The Court of Appeals of that state considered that part of the statute above italicized void, saying: "The construction of the term jeopardy in our constitution being the proper one, as settled by the decisions of the Courts before the constitution was adopted, it is to be presumed that the word was used in that sense when our constitution makers put it into the constitution. If this be so, then it must follow that the legislature had no authority to give it another and different meaning from that which it must have intended it should have. And it must further follow that the attempted act on the part of the legislature was without authority, and is not binding. upon the Courts."21

(21) Powell v. State, 17 Tex. Cr. App. 345. "But the Legislature has no authority to interpret or declare a matter of constitutional construction of a constitutional provision which has become fixed and settled by judicial determination." Ibid.

"Evidently, to our minds, medicated bitters producing intoxication are intoxicating liquors, within the meaning of the constitution. If we held otherwise, these local option districts would be flooded with intoxicating liquors containing some stuff called 'medicines.'" James v. State, 21 Tex. App. 353; 17 S. W. 422.

"Intoxicating liquors" has been defined in the following cases: People v. Hawley, 3 Mich. 330; People v. Sweetser, 1 Dak. 308; 46 N. W. 452; State v. Oliver, 26 W. Va. 422; 53 Am. Rep. 79; Sebastian v. State, 44 Tex. Cr. Rep. 508; 72

The recent amendment to our federal constitution provides that

"After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and

S. W. 849; Pike v. State, 40 Tex. Cr. Rep. 613; 51 S. W. 395; Commonwealth v. Timothy, 8 Gray 480; State v. Coulter, 40 Kan. 87; 19 Pac. 368; James v. State, 49 Tex. Cr. Rep. 334; 91 S. W. 227; Mason v. State, 1 Ga. App. 534; 58 S. E. 139; Walker v. State (Tex.) 98 S. W. 265; State v. Burk, 234 Mo. 574; 137 S. W. 969; Heintz v. La Page, 100 Me. 542; 62 Atl. 605; Exparte Townsend (Tex.) 144 S. W. 628; State v. Burk, 151 Mo. App. 188; 131 S. W. 883; Sandolski v. State (Tex.) 143 S. W. 151; Murray v. State, 56 Tex. Cr. App. 438; 120 S. W. 437; State v. Piche, 98 Me. 348; 56 Atl. 1052; Murray v. State, 46 Tex. Cr. Rep. 128; 79 S. W. 568; Mason v. State, 56 Tex. Cr. Rep. 261; 119 S. W. 852; Arburthnot v. State, 56 Tex. Cr. Rep. 517; 120 S. W. 478.

"The language of said [constitutional] prohibition ordinance, reasonably construed, means liquors which will intoxicate, and which are commonly used as beverages for such purpose, and also any mixture thereof, compounds, or substitutes for such liquors that possess intoxicating qualities. The use of intoxicating liquors as a beverage was the evil to be prevented, and by the adoption of prohibition as a part of the organic law it was intended to put a stop to such use." Markinson v. State, 2 Okl. 323; 101 Pac. 353.

State v. Witt, 39 Ark. 216; Snyder v. State, 81 Ga. 753; 7 S. E. 631; 17 Am. St. 350; Decker v. State, 39 Tex. Cr. Rep. 20; 44 S. W. 845; Taylor v. State (Tex.), 49 S. W. 589; Malone V. State (Tex.), 51 S. W. 381; Pike v. State, 40 Tex. Cr. Rep. 613; 51 S. W. 395; City of Topeka v. Zufall, 40 Kan. 47; 19 Pac. 361; 47 L. R. A. 387; Commonwealth v. Morgan, 149 Mass. 314; 21 N. E. 369; State v. May, 52 Kan. 53; 34 Pac. 407; State v. Intoxicating Liquors, 76 Iowa 243; 41 N. W. 6; 2 L. R. A. 408; State v. Barron, 37 Vt. 57; Johnson v. State, 23 Ohio St. 556; State v. Biddle, 54 N. H. 379 (question for jury); In Re Intoxicating Liquor Cases, 25 Kan. 751; 37 Am. Rep. 284; Mullen v. State, 96 Ind. 304; State v. Lewis, 86 Minn. 174; 90 N. W. 318; Holland v. Commonwealth, 7 Ky. Law Rep. 223 (brandy peaches); Ryall v. State, 78 Ala. 410 (brandy peaches); Rabe v. State, 39 Ark. 204 (brandy peaches); Commonwealth v. Chappel, 116 Mass. 7; Hewitt v. People, 186 Ill. 336; 57 N. E. 1057; Johnson v. State, 23 Ohio St. 556; State v. Page, 66 Me. 418 (question for jury); Anderson V. Commonwealth, 9 Bush. 569; State v. Muncey, 28 W. Va. 494; Holcomb v. People, 49 Ill. App. 73; Peopl v. Schew, 29 Hun. 122; People v. Zeiger (N. Y.), 6 Parker Cr. Rep. 359; Bertrand v. State, 73 Miss. 51; 18 So. 545; U. S. V. Stubblefield, 40 Fed. 459; Wadsworth v. Dunnam, 98 Ala. 610; 13 So. 597; State v. Lillard, 78 Mo. 136; Russell V. Sloan, 33 Vt. 656; Common