heretofore, which it was claimed were not entirely 1,343,000 calendar shall be made up on the 1st of January, 1897. This result is owing, to some considerable extent, to the fact that two appellate tribunals in the city of New York have been abolished, namely, the General Terms of the Common Pleas and the Superior Court, and this appellate business must go to the General Term. The design of the plan for 2,143,000 the new Appellate Divisions, as indicated in the 1,216,000 arguments in the Constitutional Commission of Instead of the population being "as nearly equal 1890, where this plan originated, was that the apas may be" in this case, the population of the de- pellate tribunal in the second district should aid in partment consisting of the second and third districts carrying on and disposing of the accumulation of would be 800,000 in excess of that department con- the business in the first department, and taking sisting of the fourth, fifth and sixth districts, and into consideration the fact that the business in the 917,000 in excess of that constituted by the seventh second department, thus composed of the second and eighth districts. This result is so manifestly a district, might possibly not be so large, in proporviolation of both the letter and spirit of the Consti- tion to the population, as that in some of the other tution that it would seem it should put an end to departments, still the aggregate of the business of controversy upon the subject. the two departments would be very much more than one-half of the aggregate of the business throughout the entire State. This view is fully jus1,623,000 tified by the figures which have been presented to this committee by Mr. Carr, indicating that much more than one-half of the business in the Court of Appeals comes from the first and second districts, showing very clearly that the appellate tribunals in The only other possible division would be as follows: Population second district Population third, fourth, fifth and sixth districts 1,863,000 1,216,000 But this would be manifestly unjust, giving to the department consisting of the four districts 200,000 larger population than the second department, and 647,000 more population than the department con sisting of the seventh and eighth districts, and would place almost the entire territory of the State in a single department consisting of four districts, while the other three districts would constitute the remaining three departments. There is nothing to argue in favor of such a combination. No more just and equitable division can be made, therefore, upon the basis of population than that in the O'Connor bill. Nor is there force in the argument made before the committee that the city of New York has a population substantially as large as the second and third districts, since the county of New York is made a separate department by the Constitution from the very necessities of the case, it being impossible to divide that city for judicial purposes, and is given seven appellate justices, while the other departments have but five; moreover, as we shall see, the overflow from New York must go to the second department. But aside from the question of population, the matter of business is to be taken into consideration in determining what shall be the boundaries of the judicial districts. Upon this point we have the statement, said to have been made by Presiding Justice Van Brunt, of the first district, that in all probability there will be 1,100 cases upon the calendar of the Appellate Division in the first department, composed of the city of New York, when the those districts must pass upon a larger number of cases than the appellate tribunals in the rest of the State. This view is borne out by the statistics as Terms of the different departments from carefully to the number of cases decided by the General compiled figures, which are as follows: It thus appears that, in 1892, the General Terms of the Supreme Court in the first and second departments disposed of 926 cases, while the General Terms of the Supreme Court in the other departments of the State disposed of 827. In 1893 the General Terms of the Supreme Court in the first and second departments disposed of 943 cases, while the General Terms of the Supreme Court in the other three departments of the State disposed of 850 cases. In 1894 the General Terms of the Supreme Court in the first and second departments disposed of 983 cases, while the General Terms in the other three departments of the State disposed of 990 cases, clearly indicating that much more business was transacted, on the average of the three years, in these two departments, than in the other three, and showing that a fair division into departments would be such as to make two departments of those now constituting the first and second departments, leaving less than one-half of the appellate work to the posed by those who desire to consolidate the second and third districts in a department. Upon the question of area, it may be said that taking the O'Connor bill, the area of the departments consisting of the third, fourth and sixth, as there proposed, is greater by some 5,000 square miles than the department composed of the fifth, seventh and eighth. It is urged, on the part of the seventh and eighth districts, that a larger amount of business is there transacted, and that under the system in vogue previous to 1882, the three judges rest of the State, now constituting three departments, and which should, therefore, fairly constitute the other two judicial departments. If to this statement should be added the cases disposed of in the third department, which are to be fairly estimated at 212, according to figures hereafter given, we have 1,195 causes decided in the first, second and third districts proposed as two departments, and 778 in the balance of the State to form the other two departments. These figures need no comment. This is still clearer when we consider that the General Terms of the Superior Court and Court of Com-holding General Term were unable to keep up with mon Pleas of New York city and of the City Court the accumulation of business. This argument enof Brooklyn are to be abolished. It is true that the tirely overlooks the fact that two judges are to be City Court of Buffalo is also to be abolished, but it added to each Appellate Division for the express is fair to assume that the City Court of Buffalo and purpose of enabling additional business to be transBrooklyn each have substantially the same amount acted, and that the reduction of the number of of appellate work, and that this will be added to the General Terms was made upon the distinct ground work of the respective Appellate Divisions, leaving that the General Terms should be increased by two to be added to the labor in the first department, judges each, so as to enable the three General Terms aided by the causes to be sent to the second depart- outside the city of New York to carry on the business ment, cases heretofore heard in the General Terms theretofore conducted by four appellate tribunals. of the Superior Court and Court of Common Pleas. Nor is there force in the argument that the number Nor is this question as to the disposition of the of judges of the Appellate Division in the second business left to conjecture, since the Constitution district is disproportionate to the number of trial provides clearly with a view to just such an adjust- judges, in view of the fact that it is expressly proment, "Whenever the Appellate Division in any vided by the Constitution that only three of the department shall be unable to dispose of its business justices of the Appellate Division need be taken within a reasonable time, a majority of the presiding from the department to which they are assigned. justices of the several departments, at a meeting The evident purpose and intent of this was, as has called by the presiding justice in arrears, may trans- been acted upon in the appointment by the goverfer any pending appeals from such department to nor of the judges to the General Term in New York any other department for hearing and determina- city, in taking of two justices from other districts, tion." It would be manifestly unjust to transfer to enable the New York and Brooklyn districts business from the city of New York to the central to have the benefit of any surplus of judges outside or western part of the State, and the natural and those cities, and unquestionably the same course just arrangement with reference to this matter would will be taken with regard to the second district, be to constitute a tribunal in the second district, to with the view of aiding the work not only of sit in the city of Brooklyn, convenient for the bar the second district, but of New York city, by the of the city of New York, to which the surplus busi- selection of two justices from districts outside the first and second. It will thus be seen that no good ness may be transferred. by those representing the fifth judicial district, in reason, whatever, exists for the division proposed consolidating the second and third districts in a single department, but that all the arguments as to territorial extent, proximity of territory, uniformity of business interests, population and extent of legal business, point to the division in the O'Connor bill, by which the second district shall be made an independent department, the third, fourth and sixth districts shall constitute a department, and the fifth, seventh and eighth constitute the fourth department. This must necessarily result, and very properly so, in locating the place for holding the courts in the second district at Brooklyn, in the third department at Albany, and in the fourth department at such point as may be selected by Again, if we take the business transacted during 1894 by the General Terms, we shall find that the General Terms of the second department decided 359 causes, that the third department decided 272, of which probably one-fourth came from the fourth district, which would leave 214 cases on appeal from the third district; this, added to the 359 disposed of in the second department, makes 563 causes disposed of by the General Terms in the second and third departments now proposed to be consolidated, as against 786 causes decided in the districts out of which it is proposed to form the other two departments, an average of 393 causes each for the new third and fourth departments as proposed, as against 563 causes for the new second department, as pro those interested in the fifth, seventh and eighth districts. There is certainly no lack of cities admirably located for that purpose, and we have no desire to interfere with the location of the appellate tribunal in that district. On the other hand, we insist that there should be no attempt to fix the location, by arrangement of districts or otherwise, for the place of holding the Appellate Division in the third department, other than such as may be selected by those who are residents of the depart ment. J. NEWTON FIERO, Chairman of Committee. Abstracts of Recent Decisions. DISCONTINUANCE OF ATTORNEY AND CLIENT ACTION. A discontinuance of an action for personal injuries will not be set aside because the stipu lation is filed without the knowledge or consent of plaintiff's attorney. (Voigt Brewery Co. v. Donovan [Mich.], 61 N. W. Rep. 343.) CARRIERS DELAY IN FURNISHING CARS.-A railroad company which does not own refrigerator cars, but has an arrangement with the owners of such cars whereby it can furnish the same to its shippers, is liable for injuries to shippers caused by delay in furnishing cars when promised. (International & G. N. R. Co. v. Young [Tex.], 28 S. W. Rep. 819.) CHATTEL MORTGAGE. -A mortgage on a stock of merchandise, conditioned on the payment of certain debts "when due," provided that the mortgagor was to remain in possession until the condition was broken. The debts at the time of the execution of the mortgage were past due, and the mortgagee took possession the day after the mortgage was executed. Held, that the mortgage was valid as against creditors of the mortgagor. (Kub v. Garvin [Mo.], 28 S. W. Rep. 847.) CORPORATION UNLAWFUL PREFERENCE. - The president of an insolvent corporation, whose tangible property was in the custody of the law, gave a bank the company's note, payable on demand, for a debt not due. Suit was commenced on it the next day. The company filed its appearance, pleaded the general issue, waived a jury, and consented to an immediate hearing. Execution was issued, and returned nulla bona, and on the same day the bank filed a creditor's bill. A director of the company was individually liable, as guarantor and otherwise, for the debt due such bank. Held, an unlawful attempt to give the bank a preference over other creditors of such company. (Wisconsin | Marine & Fire Ins. Co.'s Bank v. Lehigh & F. Coal Co., U. S. C. C. [Ill.], 64 Fed. Rep. 497.) CORPORATION-TRANSFER OF CORPORATE STOCK.— Where a corporation recognizes a transfer of its stock, and treats the transferee as a debtor for the subscription, he is substituted for the transferrer as owner thereof, though no entry of the transfer is made on the books. (Kriger v. Hanover Nat. Bank [Miss.], 16 South. Rep. 353.) CRIMINAL EVIDENCE CHARACTER OF DECEASED. -The overt act, as hostile demonstration of the de ceased against the accused, must be proved before the introduction of evidence as to the dangerous character of the deceased. (State v. Green [La.], 16 South. Rep. 367.) CRIMINAL LAW-HOMICIDE-INTOXICATION. -The fact that defendant was intoxicated at the time the crime was committed is no justification therefor, if his mind was still sufficiently clear to plan a formed design to kill in consequence of which he deliberated and premeditated upon the killing. (State v. McDaniel [N. C.], 20 S. E. Rep. 622.) DEED TO MORTGAGEE.-In order to sustain a deed by a mortgagor to the mortgagee of the mortgaged premises in satisfaction of the debt, a new consideration, passing from the mortgagee to the mortgagor, need not be shown. (Watson V. Edwards [Cal.], 38 Pac. Rep. 527. ESTOPPEL -VOID FORECLOSURE SALE. --Where a mortgagee who purchased the land at a void foreclosure sale remains in possession, with the acquiescence of the mortgagor, for nearly ten years, the mortgagor is estopped to claim that, because the mortgage debt is barred by limitation, the mortgagee is not entitled to satisfaction of the debt out of the land. (Lucas v. American Freehold Land Mortg. Co. of London [Miss.], 16 South. Rep. 358.) FRAUDULENT CONVEYANCES CANCELLATION. — Where by fraud or questionable contrivance or irregularity the title to land is wrested from the owner, and converted to the use of another, the owner, though not in possession, may sue to cancel the conveyance and quiet title. (Packard v. Beaver Valley Land & Min. Co. [Ky.], 28 S. W. Rep. 779.) PROHIBITION-WRIT-WHEN GRANTED.- Where, in a libel against a ship for injury to cargo, the time charterer is cited in by the owner of the vessel, claiming that the charterer was liable, as between the owner and charterer, for the negligence, if any, which caused the injury, the court, having jurisdiction of the subject-matter and the parties, will not be prohibited from entertaining the owner's contention against the charterer in the same suit with the libel against the ship, as the error, if any, in so doing, may be corrected on appeal. (In re New York & P. R. Steamship Co. [U. S. S. C.], 15 S. C. Rep. 182.) The Albany Law Journal. ALBANY, MARCH 16, 1895. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] THE argument before the United States Supreme Court in regard to the constitutionality of the Income Tax has been engrossing the attention of that tribunal for several days and will doubtless receive from the members of the court the profound consideration and judgment which its importance necessitates. As we have pointed out and as has been stated by others so well, the mere levying of the tax is not what is objectionable so much as the arbitrary powers granted to United States officers over citizens of the country, and the socialistic tendencies of the bill which exempts one class from any payment of revenues to the support of the government. Ex-Senator Edmunds, of Vermont, on Monday, before the Supreme Court, delivered more than the argument of a great constitutional lawyer. In his words there was the thrill of the love of country; they were the utterances of a patriot and those phrases were coined not to try to defeat a measure to bring revenue to the government, but to guide it from the unfortunate consequences of having such a law, as has already darkened the statute books, declared constitutional by the highest court of this republic. As is most strongly and ably put by the New York Sun, "Standing on the same intellectual level as that of the judges whom he addressed, Mr. Edmunds reminded them that it is a question of national destiny which they have to decide; that they are the people's bulwark against revolution and anarchy." It is the same feeling which exists in the minds of those who may or may not be subject to the tax, which reminds them that the rights of citizenship are to be preserved against the tyranny of unjust legislation, the theories of agitators and the forerunners of socialism and that the historical guarantee of no taxation without representation shall be forever kept sacred from the attacks of fanatics, anarchists and the scum which has VOL. 51-No. 11. overflowed from Europe. We realize that many may not agree with us, but it is probable that any favorable decision by the Supreme Court of the United States upholding the constitutionality of the existing law will cause another influx of foreigners who will willingly accept their support and, in time, demand it at the hands of those who have honestly accumulated their property, for some will think that the county has placed its favorable seal on socialism. Naturally the law was attacked in two different ways, first on the theory that it was a direct tax and was not laid according to the rule of apportionment and was unconstitutional; and, secondly, on the ground that it was an indirect tax and was not laid according to the rule of uniformity and hence was unconstitutional. The first contention was ably made by Clarence A. Seward, Esq., of New York city, whose brief we will comment upon at length and which contained a most elaborate, exhaustive and learned discussion of the history of taxes prior to the time of the adoption of the Constitution, with many abstracts from Elliott's debates and decisions of the United States courts in regard to taxes laid by different statutes. William D. Guthrie, Esq., also argued against the unconstitutionality of the Income Tax and in conclusion said: "We recognize that the power of taxation must be exercised without restraint, except constitutional limitations. Let Congress amend this act, apportioning direct taxes among the States and equalizing their application, and none will more willingly contribute to the national welfare than our clients, even if it takes all of their property. We ask you to impose no limitation upon the right of Congress to tax up to the full measure of the requirements of the nation. Recognizing that authority to tax in its nature must be without limitations, except equality of burden, and that it involves the power to destroy, we are here to plead that the destruction must result from some necessity or peril of the Union, and that however the occasion may arise, the destruction must be equal and uniform and not of selected individuals or classes. Did not the Constitution of the United States spring into life as the product of a longing, of a hope, of a determination to establish a government of equality? The fundamental principle of the American system is equality — equality of rights, equality of duties, equality of burdens. Every clause of the Constitution was supposed to have been conceived in the light and spirit of that rule. The Constitution will never perish as long as equality is the guiding star, illumining the path and piloting the way of the lawmaking power. Let that star ever keep the compass true. The observance of the principle of equality in the past has built up a great nation, and, whatever may be temporary interest or prejudice or blindness, the masses will inevitably realize, if they have not already done so, that the disregard of that principle is in conflict with their own vital and permanent welfare, and cannot be tolerated if we are to remain a free people. We Americans have sacred rights which we hope shall never be erased or obscured by mortal power, and the most sacred, the one of all that should remain inviolate, is equality. Half a century ago Allison uttered his famous prophecy that class legislation and attempts of the majority to spoliate private property would ultimately wreck the American republic. Bryce, who saw but the surface, and whose mind was hospitable to every favorable symptom, wrote that the perpetual strife of rich and poor, the oldest disease of civilized States, did not yet exist with us. It is only five years since one of the leading Mr. Seward, among other things, in comparing the law of Massachusetts and the present act said: "The only difference between the income tax of Massachusetts which has been imposed for 200 years and the present law, is that one was collected by State officials and the other by federal officials." E. B. Whitney, Esq., assistant attorney-general, argued in favor of the constitutionality of the act. In speaking of the Moore case, he said, "The case of Moore v. Miller was a more direct assault upon the traditions and practices of the treasury department than any other statute. suit is in violation of a section of the Revised Statutes, which expressly stated that no suit to prevent the collection of any tax shall be maintained by any court. No tax could be found in the books where an injunction had been issued in such case, and but one injunction against a federal official had ever been sustained by the Supreme Court of the United States." The argument used by the other appellants we shall give more fully hereafter. Attorney-General Olney devoted his argument This on the part of the United States to the Constitutional questions which the several plaintiffs alleged to be involved in the cases presented. Many of the objections raised seemed to him to be simply perfunctory, taken pro forma and by way of precaution. Speaking of the inquisitorial features he said, "Suppose it to be true that the income tax undertook to ascertain the incomes of citizens by methods which were not only disagreeable but were infringements of that the law was void but that the hotly denounced inquisitorial methods could not be resorted to. Similar considerations would apply to the objection that the law was to be pronounced void because taxing the agencies. and instrumentalities of the governments of the several States." Continuing, Mr. Olney said: members of this bar, on the occasion of the celebration of the centenary of the court, pointed to the attacks upon individual rights and private property in many forms and under many pretexts, which were then beginning to be heard and might be looked for to an increasing ex-personal rights, the consequence would be, not tent, and earnestly said that the accursed warfare of classes was the danger that appeared to threaten our future. But anxiety was soon dispelled. We still hear the acclamations that greeted his proud and confident boast that, whatever might come, the Supreme Court of the United States would meet the emergency, maintain the Constitution, and protect the people. In words that might well be blazoned upon the walls of this historic chamber, he eloquently said of your great tribunal: 'Having its origin in the sovereignty of the people, it is the bulwark of the people against their own unadvised action, their own uninstructed will. It saves them not merely from their enemies, it saves them from themselves.'" "The power to tax was for practical use, and was necessarily to be adapted to the practical conditions of human life. These were never the same for any two persons, and as applied to any community, however small, were infinitely diversified. Nothing was more evident, or had been oftener declared by courts and jurists, than that absolute equality of taxation was impossible. No system had been or |