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Central Law Journal.

ST. LOUIS, MO., NOVEMBER 8, 1901

No tendency is more to be deprecated and condemned than that of thrusting the law into the private affairs of the citizen under the guise of the police power. In a free country nothing can be more destructive of private rights. Under the exercise of such a power the majority may crush and burden a minority as arbitrarily as any despot in Europe. The recent case of People v. Reetz, 86 N. W. Rep. 396, brings up for our purpose the constitutionality of such legislation in that phase of it relating to the examining and licensing of physicians. In that case the supreme court held, generally, that under the police power inherent in the state, the legislature may enact reasonable regulations for the examination and registration of physicians, and the practice of medicine and surgery. Counsel argued that such legislation was an interference with the inalienable right of a citizen when ill to employ anybody he chooses as his physician. The contention of counsel, as a general proposition, cannot be successfully contradicted, the statement of the court in this case to the contrary notwithstanding. For the law to tell a man what he shall eat or what he shall drink or wherewithal he shall be clothed is paternalism with a vengeance, and is often practically accomplished under many laws regulating the adulteration of food products, the sale of liquor, and tariffs on foreign goods, etc. But to compel a man lying on a bed of sickness to call in a physician of a certain school or schools recognized by the state, but in whom the sufferer has no confidence, or else to languish without treatment, is as cruel and as unwarrantable an interference with private right as to require him under more serious conditions of health to accept the comforts of religion from a minister having the state indorsement.

Medicine is not an exact science. Some people believe in allopathy, others say that nature cures when it does cure in spite of its volcanic purges; some believe in homeopathy, others call it the greatest humbug of the age; some believe in Christian Science, others

condemn it as criminal and suggest that those who practice it be prosecuted for manslaughter or assault to kill as the case may be; some believe in osteopathy, others will point suggestively to their foreheads as a votary of the new school passes by. And so we might go on with all the other opathies and treatments, dry air, cold water, magnetism, etc., etc. In many of these a knowledge of even the rudiments of materia medica is not essential, so that no general examination could possibly let them all in. The state therefore by requiring such an examination must necessarily shut out all schools of medicine not represented in the board of examiners or covered by the examination. ing but the most absurd sophistry could conceal the fact that this is a most gross violation of individual liberty, smothering all investigation of disease and its remedy or alleviation, except in certain directions, and compelling a man in sickness or pain to do without treatment unless he is willing to accept that prescribed by the state. This is not the police power, it is tyranny, and the tyranny of a majority is as bad as any other tyranny.

Noth

It is a pleasure, however, to observe a tendency of late on the part of the courts to recognize the invasion of private right inherent in such legislation and, while not declaring it unconstitutional, to meet its most serious defects by constructional limitation. Thus in Evans v. State, 9 Ohio, S. & C. P., Dec. (Ohio, 1899) 222, it was held that a statute prohibiting any person not having a certificate from the board of medical registration from prescribing, directing or recommending any drug, medicine or other agency for the treatment, cure or relief of any bodily imfirmities did not include the system known as "Christian Science." So also in Kentucky it was held that a similar statute did not prevent an osteopath from practicing his profession without a license. Nelson v. State Board of Health (Ky. 1900), 57 S. W. Rep. 501, 50 L. R. A. 383. See also State v. Liffring, 61 Ohio St. 39, 46 L. R. A. 334. Contra, Jones v. People, 84 Ill. App. 453. In the case of Nelson v. Board of Health, the court said: "[This statute] allows only reputable physicians holding a diploma from a regular or reputable school to practice medicine. If the act applies to appellant, he can

in no case practice his system in this state; for, however well qualified he may be, he cannot be examined as a physician, and he could not, without abandoning his practice as an osteopath, obtain a diploma from a medical college. If the statute applies to him, it also applies to trained nurses, and all others of that class, who for compensation administer to the wants of the sick. The result of such a construction of the statute would be to compel every one, whether willing or unwilling, to employ a registered physician to care for him when he is sick, or to trust himself entirely to gratuitous services, however much he might prefer skillful nursing to medical treatment. It is doubtful if the legislature has the right under the constitution thus to restrict the free choice of the citizen in a matter concerning only him. self, and not the people at large."

NOTES OF IMPORTANT DECISIONS.

MINES AND MINING-JUDGMENT LIENS-UNPATENTED CLAIMS.-The effect of a judgment lien upon an unpatented mining claim came up recently in the case of Butte Hardware Co. v. Frank, 65 Pac. Rep. 1, where the Supreme Court of Montana held that a judgment lien on an unpatented mining claim is not lost by the transfer of the claim by the judgment debtor, on the ground that such transfer is an abandonment thereof, since the transfer of an unpatented claim does not amount to an abandonment. The court said: "The point is raised by respondents that a judgment, if a lien, would not be such after sale of the mining claim,-he giving up possession to the vendee, for the reason that such sale would be an abandonment, and all his rights would be gone, and the lien with them. In support of this position counsel cite Murley v. Ennis, 2 Colo. 300, which declares that title by location may be lost by abandonment, and that if, without writing, he yield up the possession to another, 'the right of the first occupant is gone by abandonment, and by virtue of his occupancy a new right has arisen in him who succeeds.' It is to be noted that the transfer is said to be abandonment if made without writing. The alleged transfer from Ritchie to Frank was in writing; hence the authority does not fit the averment of the complaint. Section 2332, Rev. St. U. S., clearly contemplates the buying and selling of mining claims, as it provides that, upon application for patent, evidence may be offered to show the possession of and work done by the applicant's grantors. It would be absurd to permit sales for the benefit of the vendees, and then declare such sales proof of abandonment of all rights of the grantor."

HOMESTEAD-FAILURE OF DEBTOR TO OCCUPY LAND UNTIL AFTER EXECUTION WAS LEVIED. It is the general rule that the homestead right is never forfeited when there has been an occupancy, and then a temporary removal, with the intention to return and make the premises a home; but where there has never been an actual residence and use of the property as a home, a mere intention to so occupy it some future time will not be sufficient to protect the homestead. Solary v. Hewlett, 18 Fla. 756. An interesting phase of this question recently arose in the case of Marshall V. Mahorney, 63 S. W. Rep. 471, where the court of appeals of Kentucky held that land acquired by purchase could not be held exempt as a homestead, where it was not occupied as such until after the creditor's execution was levied thereon, though it was so occupied at the time it was sold under the levy. The court in this case says: "We are aware that in a number of cases this court has held that, where the title to the homestead was derived by descent, the heir was entitled to a reasonable time after the death of the ancestor to claim homestead, and that until such time had elapsed it could not be levied on and sold, even if the debt existed at the time it was inherited. See Jewell v. Clark's Exr., 78 Ky. 398; Dwelly v. Galbraith, 5 Ky. Law Rep. 209, and Miller v. Bennett (Ky.), 12S. W. Rep. 194. The opinions are predicated upon the idea that the statute does not deny exemption if the title be derived by descent, and not by purchase. But this doctrine has not been extended to cases where the title to the homestead was acquired by purchase, and the construction by this court seems to be generally supported by those of other states." Authorities sustaining the position of the court are as follows: Austin v. Stanley, 46 N. H. 51; Jackson v. Bowles, 67 Mo. 609; Kelly v. Dill, 23 Minn. 435; Ingels v. Ingels, 50 Kan. 755, 32 Pac. Rep. 387; Tiller v. Bass, 57 Ark. 179, 21 S. W. Rep. 34; Freeman v. Stewart, 5 Biss. 19, Fed. Cas. No. 5088. It may be stated, therefore, as the general rule, that in cases of levy under execution, the homestead exemption must exist or be claimed at the time the writing came into the officer's hands. The defendant, moving into the property thereafter, cannot hold it exempt as a homestead.

RECEIVERS RAILROADS-LIABLE AS COMMON CARRIER.-Whether receivers in control of a railroad are liable as common carriers has always been an interesting question. It is well settled, however, that in his official capacity, at least, he is liable to the same extent as a common carrier. He is liable for injuries to passengers. Dillingham v. Anthony, 73 Tex. 47; Brown v. Railroad, 96 Ill. 297; Newell v. Smith, 49 Vt. 255; Bartlett v. Keim, 50 N. J. Law, 250. He is liable for goods lost or damaged in transportation. Nichols v. Smith 115 Mass. 332; Melendy v. Barbour, 78 Va. 544. He is liable for injuries

to employees from defective appliances and for the negligence of other servants. Meara v. Holbrook, 20 Ohio St. 137; Sloan v. Railroad, 62 Iowa, 728; Kain v. Smith, 80 N. Y. 458. But in recent case of Powell v. Sherwood, 63 S. W. Rep. 485, the Supreme Court of Missouri ran up against the question in its relation to laws relating to fellow-servants, and held that Laws of 1897, p. 96, defining the liabilities of railroad corporations in relation to damages sustained by their employees, and stating who are fellow-servants, applies to receivers of railroad corporations, as well as to the corporations themselves. There is some conflict of authority on this point, some cases affirming the position of the Missouri court. McNulta v. Lochridge, 141 U. S. 327, 12 Sup. Ct. Rep. 11; Sloan v. Railroad, 62 Iowa, 728; Pierce v. Van Dusen, 78 Fed. Rep. 693. Other cases take a contrary view: Henderson v. Walker, 35 Ga. 481; Campbell v. Cook, 86 Tex. 630, 26 S. W. Rep. 486; United States v. Harris (1900), 20 Sup. Ct. Rep. 609; Thurman v. Railroad, 56 Ga. 376. In Henderson v. Walker, supra, the court construed a statute commencing "Railroad companies shall be liable to such employees as to passengers for injuries," etc. Suit was brought under this statute against the receivers of a railroad to recover damages for injury to a servant caused by the negligence of a fellow-servant. It was held that the statute referred only to servants of a railroad company, and would not be construed as extending to servants of the receivers of a railroad company, and that the receivers were not liable. In the principal case, however, the court said: "In respect of liability, such as is set up here, the receiver stands in the place of the corporation. In other words, the receivership is pro hac vice the corporation itself under the management of one man, instead of that of a board of directors. To hold, therefore, that the statute applies to corporations of a certain kind under one management, and not to corporations of the same kind under another management, would be to create the inequality before the law."

TAXATION MUST BE FOR A PUBLIC PURPOSE.The power of a legislature to levy or to authorize the levy of a tax and to create or authorize the creation of a public debt to be paid by taxation is limited to its exercise for a public purpose. Sharpless v. Mayor, 21 Pa. 147; Cole v. City of La Grange, 113 U. S. 1, 5 Sup. Ct. Rep. 416. The decision of the question whether a tax or a public debt is for a public or private purpose is not a legislative, but a judicial function. Thus, in the recent case of Dodge v. Township, 107 Fed. Rep. 827, it was held that the promotion of the construction and operation of mills and factories to manufacture sorghum cane into sugar or syrup is a private and not a public purpose, and township bonds issued for this purpose, and the Act of March 1, 1889, authorizing their issue, are beyond the powers of the legislature and the township, and are void. The court said:

"A legislature which has no power to authorize the levy of a tax or the creation of a public debt for a private purpose, has no power to draw that authority to itself, or to create it by its mere declaration that a private purpose is a public one. A legislature cannot make a private purpose a public one by its mere fiat, and the determination of the question in any case whether or not a given object is public or private is a judicial, and is not a legislative function. Allen v. Inhabitants of Jay, 60 Me. 124, 11 Am. Rep. Rep. 185; Tyler v. Beacher, 44 Vt. 648, 651, 8 Am. 398; In re Eureka Basin Warehouse & Mfg. Co., 96 N. Y. 42, 47, 48. If the bonds and coupons upon which this action is founded are ever paid, the money to discharge them must be raised by the levying of taxes upon private property situated in the township of Mission. Their validity, therefore, must depend upon the answer to the question whether they were issued for, and their proceeds were applied to a public or a private purpose. They were issued to raise money to pay a subscription made by the township to the stock of a private corporation organized to erect and operate mills to make sugar and syrup from sorghum cane, and their proceeds were applied to that purpose. The question, then, is whether or not the construction and maintenance of factories owned by private corporations to manufacture sugar and syrup from sorghum cane is a public or a private purpose. The true answer to the question seems to be plain and certain. Speaking generally, a public purpose is a governmental purpose, one of the purposes for which governments are instituted and maintained among men, such as the maintenance of order, the prevention and punishment of crime, the care of highways, the relief of the destitute, the education of youth, the erection of buildings for the use of schools and of the officers of the government; while a private object is one which is ordinarily sought and attained by individuals or private associations of individuals, such as the cultivation of the soil, the manufacture of useful and attractive articles, the purchase and sale of merchandise, and the thousand and one purposes which enlist individual enterprise and energy in a complex and advancing civilization. There seems to be no doubt in which category the promotion of the construction and maintenance of sugar factories falls."

THE APPLICATION OF THE "ALIEN CONTRACT LABOR LAWS" OF

THE UNITED STATES.

The "alien contract labor law" of the United States provides that it shall be unlawful to "assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States, under contract or agreement, parol or special, express or implied, made previous to the im

portation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States."'l Section 5 of the act designates the classes of aliens whose employment is not forbidden, namely: (1) private secretaries, servants or domestics of foreigners temporarily residing here; (2) skilled workmen to perform labor in or upon any new industry not at present established here, where such skilled labor cannot be otherwise obtained; and (3) professional actors, artists, lecturers or singers, and persons employed strictly as personal or domestic servants. The act, it will be observed, forbids in broad and general terms the employment of aliens "to perform labor or service of any kind," and specifies the classes of laborers or persons performing services to whom the prohibition shall not apply. In the case of United States v. Church of the Holy Trinity,2 it was held in 1888, by the circuit court of the United States, that the act was violated by the employment of a foreign clergyman to officiate as rector of a church in New York. The court said that every kind of industry and every employment, manual or intellectual, was embraced by the words "to perform labor or service of any kind," and prohibited the employment of alien ministers, lawyers, surgeons and all others who labor in any professional calling, and that the mention of certain classes of professionals as not being within the prohibition of the act was equivalent to an express prohibition of the employment of all other classes of professionals.

This decision was reversed by the Supreme Court of the United States in 1892,3 upon the ground that the act was intended to prohibit only the employment of foreign "cheap, unskilled labor." In other words, the supreme court indirectly decides that the employment of an alien skilled laborer is not prohibited by the act. A person who receives as much as $2 per day for his labor or services cannot be termed a "cheap, unskilled laborer," in the sense intended by the supreme court. Therefore, the supreme court in effect decides that the employment of foreign artisans or mechanics at $2 or more per day is not prohibited by the alien contract labor law.

1 Act Cong. February 26, 1885, 23 Stat. 332. 236 Fed. Rep. 308.

3143 U. S. 457.

To

that extent the decision is, of course, a mere obiter dictum, as the court did not have before it the case of an artisan or mechanic or other "skilled laborer," as distinguished from the case of a professional man. In consequence of this difference of opinion between the courts as to the true construction of the act, it was amended in 1891 by adding to the second proviso, excepting certain classes of persons from the operation of the law, the words "nor to ministers of any religious denomination, nor persons belonging to any recognized profession nor professors for colleges and seminaries." In the case of United States v. Laws," the supreme court held, affirming the court below, that a foreign chemist, employed to superintend the making of sugar on a plantation in Louisiana, was a member of a "recognized profession," within the meaning of the amendment of 1891, and that his employment was therefore not a violation of the law. But the court went further and reiterated the dictum of Mr. Justice Brewer in Holy Trinity Church v. United States, that the act prohibits only the employment of "cheap, unskilled foreign labor." The construction which the treasury department and the public at large have placed upon the law, as it now stands, is that the employment of aliens in any business, calling or occupation, or to perform any labor or service, is prohibited by the act of 1885, unless the employee falls within one of the classes specially excepted by section 5 of that act, or by the amendment of 1891, from the operation of the law. The obiter dictum of the supreme court that the prohibition of the act extends only to the employment of "cheap, unskilled labor" has not been enforced by the treasury department, nor taken seriously by the great body of employers throughout the United States.

Inasmuch as the case of the employment of an alien mechanic or other "skilled laborer" not within the professional or quasiprofessional classes, has never been presented to the supreme court, and inasmuch as a doubt may be reasonably entertained that the supreme court would decide that the employment of such a person is permissible under

4 Act March 3, 1891, sec. 5, 26 Stat. 1084. 5 163 U. S. 258.

6 The writer disclaims the use of this term in the invidious sense in which it is sometimes employed.

the "cheap, unskilled labor" theory if the question were squarely presented there, the writer conceives that he may, with propriety, submit several reasons why the construction placed upon the act by the treasury department and the public should be maintained, at least so far as it applies to persons who receive wages of $2 per day and upwards, and who cannot be described as "cheap, unskilled laborers."'

1. The express prohibition of the employment and importation of aliens "to perform labor or service of any kind" in the United States. Lest this language might be construed to extend

to certain classes who could not come in competition with the great mass of American laborers, congress, in the fifth section, excepted professional actors, artists, lecturers, and singers from the operation of the act, and afterwards, by the amendment of 1891,7 extended the exception to "ministers of any religious denomination, persons belonging to any recognized profession, and professors for colleges and seminaries." Congress by these provisions unmistakably construes the act to extend to every class of laborers not embraced in the exceptions. It would be difficult to find any better evidence of the kind of laborers intended by the act. Congress having specified the classes of persons not within the operation of the statute, may the courts add another vague, general and indefinite class, namely, all persons coming here under contract "to perform labor or service" who cannot be classed as "cheap, unskilled laborers."

2. Section 5 of the act of 1885, provides s that the act shall not be so construed as to prevent the employment of "skilled workmen in foreign countries to perform labor in the United States in or upon any new industry not at present established in the United States, provided that skilled labor for that purpose cannot be otherwise obtained." This is as much as to say that no foreign skilled workman can be brought to the United States under contract, in the establishment of a new industry if skilled labor for that purpose can be obtained here. And it shows beyond possibility of cavil or doubt that the act was intended, as respects estab7 96 Stat. 1084, sec. 5. 8 23 Stat. 332.

lished industries, to prohibit the introduction of alien skilled laborers under contract to perform labor or services here. This pro

vision of the law is not referred to by the supreme court in either of the two cases mentioned, and no attempt is made to reconcile the statement that the act was intended to exclude only "cheap, unskilled labor" with this indirect, but unmistakable, declaration that the purpose of the act is to exclude skilled as well as "cheap, unskilled laborers." 3. There is another provision in the act which shows that the prohibition is not to be restricted to the employment and importation of cheap, unskilled laborers. Section 4 imposes a severe penalty upon the master of any vessel who shall permit any "alien laborer, mechanic, or artisan" to land in the United States, knowing him to be under contract to perform labor or services here." mechanic or artisan is not a "cheap, unskilled laborer." The average wage paid him in America is from $2 to $3 per day, a sum three to four times as great as that paid laborers of the low and degraded kind referred to in the case of Holy Trinity Church v. United States. 10 The opinion in that case contains no reference to this provision of the act.

A

Other statutes also show that congress construes the prohibition to extend to the employment and introduction of alien skilled laborers. By the act of August 5, 1892,11 it was provided that exhibitors at the World's Columbian Exposition at Chicago might contract with and bring in "such mechanics, artisans, agents, or other employees as they may deem necessary for the purpose of installing or conducting their exhibits," and that any such alien remaining in the United States a certain length of time after the close of the exposition should be subject to all the penalties of the alien contract labor law. A similar provision is contained in a number of acts relating to fairs and expositions. 12 Of course, there would have been no necessity for any of these acts if congress did not construe the act to exclude skilled as well as unskilled laborers.

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