result.

could be devised that would produce any such No country or State of this Union had ever adopted a plan of taxation that did not exempt some portions of the community from a burden that was imposed upon others. The power to do so was unquestioned, and was universally exercised. It was quite beside the issue to argue in this or any other case that Congress had mistaken what public policy required. On that point Congress was the sole and final authority, and its decision, once made, controlled every other department of the government. No exemption was made by the statute in favor of a class that was not based on some obvious line of public policy and, that class being established, one uniform rule was applicable to its members. It is manifest that in this distinction between persons with incomes over $4,000 and those with incomes under that amount, Congress was proceeding upon definite views of public policy and was aiming at accomplishing a great public object. It was seeking to adjust the load of taxation to the shoulders of the community in the manner that would make it most easily borne and most lightly felt. So with business corporations. Their net incomes were taxed at the standard rate of two per cent, but undiminished by the standard deduction of $4,000. The result might be that a man in business as a member of a corporation was taxable at a little higher rate than a man in the same business by himself or as a co partner. It was common knowledge that corporations are so successful an agency for the conduct of business and the accumulation of wealth that a large section of the community viewed them with intense disfavor. When, therefore, this income tax law made a special class of business corporations and taxed their incomes at a higher rate than that applied to the incomes of persons not incorporated, it but recognized existing social facts and conditions which it would be folly to ignore." In conclusion, Mr. Olney said, "It would certainly be a mistake to infer that this great array of counsel, this elaborate argumentation, and these numerous and voluminous treatises, miscalled by the name of briefs, have any tendency to indicate anything extraordinary or unique either in the facts before the court or in the rules of law which are appli

cable to them. I venture to suggest that all this laborious and erudite and formidable demonstration is bound to be without effect on one distinct ground. In its essence and in its last analysis it is nothing but a call upon the judicial department of the government to supplant the political in the exercise of the taxing power; to substitute its discretion for that of Congress in respect to the subjects of taxation, the plan of taxation, and all the distinctions and discriminations by which taxation is sought to be equitably adjusted to the resources and capacities of those who have it to bear. Such an effect, however weightily supported, can, I believe, have but one result. It is inevitably predestined to failure unless this court shall for the first time in its history overlook and overstep the limits which separate the judicial from the legislative power, and the scrupulous observance of which is absolutely essential to the integrity of our constitutional system."

James C. Carter, Esq., of New York, also argued for the law in behalf of the Farmers' Loan and Trust Company. Joseph H. Choate, Esq., of New York city, argued against the constitutionality of the law and opened in his usual humorous vein, rather throwing fun at the arguments which had been made by Mr. Carter in behalf of the bill. His remarks in part were as follows:

"If the court please, after Jupiter had thundered all around the sky and had leveled everything and everybody by his prodigious bolts, Mercury came out from his hiding place and looked around to see how much damage had been done. He was quite familiar with the weapons of his Olympian friend. He had often felt their force, but he knew that it was largely stage thunder, manufactured for the particular occasion, and he went his round among the inhabitants of Olympus, restoring the consciousness and dispelling the fears of both gods and men that had been prostrated by the crash. It is in that spirit that I follow my distinguished friend; and I shall not undertake to cope with him by means of the same weapons, because I am not master of them. never would have occurred to me to present either as an opening or closing argument to this great and learned court, that if in their wisdom they found it necessary to protect a

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infliction of pain, injury or suffering upon the person of a female or of a child of either sex, actually or apparently under the age of sixteen years, the court wherein such conviction is had may, in its discretion, in addition to the punishment now prescribed by law for such penalty, direct the infliction of corporal punishment on such individual. The sentence will specify the number of strokes or lashes, which shall not exceed forty in number, to be laid upon the bare back of the person convicted, within a time specified, by means of a whip or lash of suitable proportions and strength for that purpose. Such corporal punishment shall be inflicted by the keeper or other officer of the prison, to be designated by the warden or superintendent, within the prison enclosure, and in the presence of said warden or superintendent and of a duly authorized physician or surgeon, but in the presence of no other person; and the warden or superintendent and physician or surgeon, within thirty days thereafter, shall certify in writing the fact of the infliction to the court imposing the sentence." It is not with an indistinct idea of the heinousness of the crimes which are committed upon young children and women by brutes that we approach the subject, for the perpetration as well as the result of these depraved and lustful acts are only too well known and have been most graphically described by the distinguished philanthropist whose name the bill bears. The writer cannot assert, with these facts in view and with the evidence of such past cases ringing in his ears, that he would feel inclined to favor this or even a more painful form of punishment; but cool judgment and calm deliberation which should exist in such a case, demand that prejudice and passion should be mollified by the kindlier and more enlightened ideas which accompany the development and refinement of civilization. The ancient idea of punishment was the deprivation of life or the infliction of pain and suffering, while civilization conceives of it as a removal of the offender from society for the protection of all for a long or short time. It has become expedient and it is deemed proper to deprive a man of his life when he willfully takes that of another, but there is no analogy in law between such a form of punishment and that advocated by the author of this bill. Electrocution does not

tend to satiate the public desire for retaliation, but has descended with the essence of Christian teaching, while the tortures of the whipping post would defeat the justice and the majesty of the law, and would not assist to right a wrong. By degrees the cruelty of punishment has become a ghost of the past. The Assembly, by defeating the bill, prevented the darkening of the statute books by the enactment of a law of revenge?

Several weeks ago we commented on the first

English decision which had been recently rendered and which held the American doctrine that a restraint of trade is proper and legal when it is reasonable for the parties concerned and not in conflict with the interests of the country.

The Court of Appeals of the District of Colum

bia has recently decided one of these contracts in the case of Godfrey v. Roessel. In this case the plaintiff agreed "not to engage under any circumstances in or by any other way associate with the management, either in his own name or that of any one else, in any laundry or laundry business in the District of Columbia." The court, in its opinion, cites the case of Nev. Co. v. Wisor, 20 Wall. 64, which says: Cases must be adjudged according to their circumstances and can only be rightly judged when the reasons and grounds of the rule are carefully considered." The court then says: "After a party has deliberately made his contract, and received a consideration therefor, it must clearly appear that it contravenes public policy before the courts will declare it void upon that ground. Substantial judgment and the application of contracts are entitled to superior consideration to the vague and indefinite influence of public policy urged to avoid a contract for which the party has received a valuable consideration. Such a defense always comes with bad grace from the party to the contract who has received full consideration and enjoyed the fruits of the contract that he urges should have been in contravention of law or opposed to public policy."

In Detroit Citizens' St. Ry. Co. v. City of Detroit (U. S. Cir. Ct. of App.) it was held that a street railway is not incapable of taking a grant of a right to use the streets of a city for its railway for a term extending beyond its corporate franchise, the interest being assignable.

THE MISSION OF STATE BAR ASSOCIATIONS

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BY RALPH STONE, GRAND RAPIDS, MICHIGAN.

T would seem at first thought, if you will pardon the use of a time-worn phrase, like "carrying coals to Newcastle" to bring to the New York State Bar Association anyone's conception of the proper mission of State bar associations. Your association stands easily at the head of such organizations, in the character of its membership, in its service to the law, and in its utility to the profession. I have no apology to make as a young man, and perforce of somewhat limited experience in the practice of the law, for undertaking to discuss this broad question, in the presence, constructively at least, of the cream of the lawyers of this powerful Commonwealth, and I have no apology to make simply because I intend neither to trespass upon the domain of those learned in the science of the law itself, nor to make any statement that as coming from a young man may savor of presumption. I would rather speak as a non-professional, and at times as though living in the atmosphere and looking through the glasses of the client.

Your association, more often than any other in the country, has listened to addresses of the same character as this. In 1880, Samuel Hand addressed you upon "Bar Association and the Profession." Elliott F. Shepard, in 1885, spoke upon "The Duty of the Profession to Bar Associations." In 1888, Martin W. Cooke read a paper upon Bar Associations, What They May Undertake." I regret that in the preparation of this paper I have not had the opportunity to consult these addresses carefully, in order to ascertain how the subject has been heretofore presented to you. It has been treated to some extent in other States, notably by Melville W. Fuller before the Illinois State Bar Association, by William L. Gross, the earnest secretary of that association, and by Walter B. Hill, president of the Georgia State Bar Association. The opportunities of bar associations as agencies for the promotion of all movements having for their object the improvement of the law and the profession, have also been touched upon and dwelt upon at length by the presidents of the various associations in their annual addresses. It is a fair criticism upon all of these utterances, however, that they consist chiefly in "glittering generalities," or are beautifully constructed ideals of what bar associations ought to be. The field of practical suggestion has rarely been trodden, and it is the purpose of this paper to tread upon that field in a modest sort of a way, and stimulate, if possible, a little interest in the practical work of bar associations.

Lawyers are busy men, and those whose ability and influence are most needed in furthering such

work are the most occupied with their business, and the least inclined to render assistance. They are in hearty sympathy, perhaps, with the various projects for reform in the law and its administration, but, with nothing more than their naked countenance of such reforms, their membership is productive of no benefit to themselves or the pro

fession, unless it is that the mere fact of their names being upon the rolls is a silent inducement to others to ally themselves with such associations. Occasionally one of the more capable members of the profession finds time, with the assistance of a stenographer, to prepare an address to be delivered before a gathering of lawyers, drawing from a rich vocabulary for sonorous phrases, and symmetrically rounded rhetorical periods, and from a well stored mind for quotations from the writings of noted and revered jurists of olden times, topping off the literary structure perhaps with several paragraphs of beautiful and inspired sentiment.

It is hardly necessary to enlarge, in this general way, upon the inert condition of State bar associations. It is a fact so notorious that its truth is conceded. Some suggestions that may perhaps be dignified by the description of remedial measures

will be considered later.

If not especially instructive, it is at least interesting to know something about the various State bar associations of the country and their relative activity. There are twenty-nine of thèse associations: Alabama, Arkansas, California, Connecticut, District of Columbia, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, New Mexico, New York, Ohio, Oregon, South Carolina, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia and Wisconsin. It may be noted in passing, although not relevant to this part of the discussion, that in fifteen of these twenty-nine States a code in some form has been adopted. Without intending to make any invidious distincion, I would place the first six associations in point of activity and usefulness as follows: New York, Illinois, Ohio, Missouri, Alabama and Oregon.

The Alabama association was at one time very active, and is still quite influential in the State. It has a membership of about 200. A recent meeting of the association was held at a lake resort, and in lieu of the conventional banquet was served with a barbecued dinner. The association was organized in 1878. It has secured the enactment by the Legislature of several important measures, although in the majority of instances the Legislature has not looked kindly upon the association, and frequently measures suggested by it have been vigorously opposed and defeated by demagogues in the Legislature who were lawyers, but not members of the

association. The association is invested with the power to institute proceedings against attorneys. Some years ago a prominent attorney was prosecuted, and although he escaped conviction upon a technicality, the proceeding has had a healthy deterrent effect.

The Arkansas association is dead. It was organized in 1882 and died in 1890, with a membership of seventy-six.

The California association is not very active. The president died about two years ago, and the officials, I am informed, are too busy to call it together and reorganize it.

The State Bar Association of Connecticut has amply justified its existence by procuring the enactment of the "Practice Act," if for no other reason. It has also been useful in securing the passage of beneficial laws of minor importance, and in raising the standard of the profession. The meetings, however, are not well attended. The association was organized in 1875, and has a total membership of 125, probably two-thirds of the active lawyers of the State, according to the secretary.

The District of Columbia association is quite active, and has a membership of 175. The annual meetings are not well attended, but the interest has centered in the special meetings, when action looking to the formation of a Court of Appeals in the district has been under consideration. The association itself has no distinctive social gathering, but there is an annual "shad-bake," so-called, an excursion down the Potomac, open to all of the bar of the district, and usually attended by the justices of the Supreme Court and the Court of Claims. It is a very popular affair. The association has accumulated a library, the maintenance of which is the principal object of its existence. It was organized in 1874.

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The Florida association is practically extinct, passing out of existence about four years ago. printed no reports of its proceedings.

The Georgia association is one of the few active ones. It was organized in 1884, and has a membership of about 250, about 100 of these attending each annual meeting. The cities in which the meetings are held usually tender the association a banquet, fish dinner, boat ride or reception. The most valuable reforms accomplished by this association have been simplifications and modifications of the civil procedure, and just recently the Legislature passed a bill providing for the appointment of a commission of first-class lawyers in each judicial district to examine applicants for admission to the bar, the method of examination by committees in open court being abrogated. The latter reform is on the line of a paper read at one of the recent meetings of the Georgia association.

The Illinois association, next to New York, is the most active and influential in the country. It was organized in 1876 and has 350 paying members. Their meetings always close with a banquet "with the ladies and without wine," says the secretary. The Illinois system of intermediate courts of appeals is the direct result of the influence of the association, and the present agitation of the Torrens system of land titles was inaugurated by it. Some amendments to the criminal law of Illinois are also due to the influence of the association, notably an increase of penalty for crime on second and third convictions. The Illinois association takes an especial pride in the addresses and papers read before it, which have been of an exceptionally brilliant character.

The Kentucky association has few members living outside of the capital, Frankfort, and is not active. The Louisiana association has not met for nearly seven years, and is practically defunct. It has never published reports of its proceedings.

The Maine association, reorganized in 1891, is fairly active, and has a membership of about 280. With the exception of one or two matters regulating practice, no legislation has as yet resulted from its influence.

The Minnesota association was formed in 1886, but has been inactive for the past three years. Its committees for the first two years attempted to exercise influence over legislation, but did not succeed in competing with the "third house," and gave it up. Some of its recommendations were acted upon, particularly a system of State examination for admission to the bar, which is a vast improvement over the old.

The association in my own State, Michigan, was organized in 1890, and has about 350 members. It has been working during the three years of its active existence to secure the passage of a bill regulating admission to the bar, and providing for a standing commission to examine applicants. It was instrumental in relieving the congestion of business before the State Supreme Court by bringing about the appointment of two additional justices, increasing their salary, and compelling them to reside at the State capital, Lansing. The association was reorganized last year, and has under way needed reforms. I regret that I cannot submit a better report than this from my own State, but we hope that the persistence and earnestness of a few of the leading attorneys of the State will result in a very substantial increase in interest in the work of the association.

The Missouri association is probably the fourth in strength and influence. It was organized in 1881, is very active, and has a membership of over 300. The annual meeting usually closes with a banquet,