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Snooks to enjoin him from proceeding with his reasonable step by advertisement and otherwise suit in West Virginia. Snooks disregarded the has been taken that the fund is ordered to be injunction and prosecuted the West Virginia paid to the Crown. The mere fact that there suit to judgment and collected the debt. will be great difficulty and expense in ascertainSnelzer then sued Snooks in the Ohio court to ing the equitable owner of a fund is not of itself recover back the sum so subjected in the suit ground for declaring the Crown entitled. The in West Virginia, and recovered judgment. claim of the person appointed to represent the Snooks appealed to the Supreme Court of deceased members generally is founded upon Ohio, which court after a careful and thorough the doctrine of resulting trust. Where a man consideration of the case and the authorities, provides a fund by way of trust for payment of affirmed the judgment."
a specified annuity to his widow during her life
and makes no further declaration of trust affectA novel case recently was decided in Enging the fund, the beneficial interest in the fund, land by the Chancery Division of the High or so much of it as is not required for payment Court of Justice in Cunnack v. Edwards, 72 of the annuity, results to himself. The same L. T. Rep. 386. It appears that the Helston doctrine would apply to the case of several perEquitable Annuitant Society was formed, the sons agreeing to provide and providing such object of which was to raise funds to provide annuities for their widows; there would be an annuities for the widows of members. The ultimate trust in their favor when the purposes last annuitant died and the suit was instituted of the fund had come to an end. Nor can I by the trustees so as to have a judicial deter
see how any difference could justly be made by mination of the question as to the person who
reason of their raising by common agreement was entitled to the funds of the society since such a fund in different but prescribed proporthe rules did not provide for the disposition of tions as among themselves. Inasmuch, then, as the property after the death of the last bene all the purposes for which the funds of the soficiary. Chitty, J., delivered the opinion, and ciety were raised by contributions of the memthe question is discussed in this way: “There bers have been exhausted, and there is no indiis nothing in the rules or in any principle of cation to be found in the rules as to what was equity applicable to the case in which this
to be done with the funds when the specified claim can be rested. It was said that the last
purposes were worked out, I am constrained to surviving member might have held a meeting hold, according to the principles of equity, that under section 26 of the statute of George IV, the doctrine of resulting trust applies. It is and voted the funds to himself. To this propo- immaterial that no actual declaration of trust sition, extravagant as it is, it is sufficient answer
was made by the trustees in pursuance of Rule to say that the last survivor never attempted 17 of the society. Had any such declaration to do anything of the kind. The contention
been actually made, the only trusts which could for the attorney-general was that the funds
properly have been declared by the trustee were bona vacantia, and that the Crown was en
would have been those manifested by the rules. titled to them by virtue of its prerogative. It Nor is it necessary to consider what could have is in virtue of this prerogative right that the been done by a general meeting of the members Crown takes the personal estate of a man who, under section 26 of the Act of George IV; no being a bastard, dies intestate without leaving such meeting was ever held. My reasons for issue. Such a bastard can have no next of kin. saying I am constrained to hold that the docThe Crown's right attaches on proof of the bas-trine of resulting trust applies are to be found tardy and no lawful issue of the bastard — sub- in what follows. The books of the society ject, of course, to the right of any widow he may prior to 1850 are not forthcoming, and apparhave left. But in the case of the death intes- ently are lost or destroyed. The number of tate of a person born in wedlock the Crown members of the society from the beginning, in does not take merely because there is a diffi- 1810, is not known beyond this, that it exceeds culty in finding the next of kin; an inquiry is several hundreds. The difficulty and expense directed, and sometimes repeated, to ascertain of ascertaining who were members and who are who are the next of kin, and it is not until every I their legal personal representatives will be enor
Besides this, inasmuch as the contribu- public, less injury upon the whole, arises from tions were of varying amounts, the share of letting the bad rule stand. Everybody has aceach representative in the funds will depend quiesced in the rule, everybody knows it to be not merely on the amount of the contribution the rule, everybody has acquired his property of the member whom he represents, but also on under the rule and made his contracts under the various amounts contributed during up- the rule. But what right or reason is there for wards of eighty years by the other members its application to a constitutional provision refrom time to time. It requires no great experi specting the power of government in the matter ence in matters of this kind to foresee, as I do, of taxation ? Let the learned attorney-general that in the endeavor to discover who are the point to one man in the United States, to one persons entitled, the greater part, and probably woman, to one child, who will be affected detthe whole, of the funds will be consumed in rimentally, whose rights will be in the least im
There are no means al my disposal for paired, by a correction of that former error cutting this gordian knot. I make a declara- here - if such error has ever been committed, tion that in the events which have happened and I do not believe it has been.” the funds are subject to a resulting trust in favor of the ordinary members of the society from
The case of Roberts v. Northern Pacific R. time to time or their respective legal representa-Co. decides the question that the United States tives, in shares in proportion to the amounts courts will not adopt the decisions of State contributed by each such ordinary member to
courts as to the rights of corporations created the funds of the society. The amounts, if any, by a law of the United States for national purpaid as fines or forfeitures and the annuities re
poses and interstate commerce, and subjected ceived by widows need not be taken into ac
by its charter to important public duties and to count.
the control of Congress. A portion of the One of the most powerful arguments made opinion, which is written by Mr. Justice Shiras, by Joseph H. Choate, Esq., against the income is as follows: tax, was in relation to the doctrine of stare de- It is contended, on behalf of the plaintiffs in cisis.
This principle naturally was adopted error, that where the question involves the from the necessity of having fixed rules and powers of a State corporation, and the meaning maxims of law as precedents, but the utility and effect of the constitution and laws of a of former adjudications exists only so long as State, it is the duty of this court to adopt the the determinations of legal tribunals conform decisions of the courts of such State.
But we to the changing needs of the times. The clause do not perceive that the doctrine of Whiting v. in the argument to which we refer is as follows: Sheboygan & F. du L. R. Co. supra, and of the
“The reason of the rule is, that it is often cognate Wisconsin cases, is fairly applicable to better on public grounds, where a question of the case before us. There are two very imlaw has been decided — where it has been re- portant particulars in which the present case peatedly decided — that the court should let it differs from those adjudicated by the Wisconremain rather than, by the declaration of an- sin courts, and which, we think, warrant an other though a better rule, dispense with it. opposite conclusion. In the first place, the Where is that chiefly applied? Where ought it transaction between the county of Douglass and chiefly to be applied ? Where has it always the Northern Pacific Railroad Company did been applied ? When the former decision has not involve the exercise of the taxing power grown into a rule of property, and vested rights of the county. The county did not issue in a trusting community, relying upon the past bonds, or seek to subject itself to any obligadecision, have become fixed, where rules of tion to raise money by taxation.
The case, as conduct have come to be governed by it, as in already stated, was that of a sale. The county the making of contracts and other arrange- authorities had ample powers to sell and conments between man and man and between citi- vey such of its lands as were not used or dedizens and corporations, I acknowledge that there cated to municipal purposes. The ratifying may often be cases where less damage to the act of the Legislature of Wisconsin, alone considered, avails to remove any doubt upon that the railroad company, as a corporation created point. Nor can the plaintffs in error consist- for public and national purposes. The Wisently deny such a power in the county, as their consin courts were dealing with corporations only title is based on its exercise. It is, indeed, of their own State, and they went upon the urged that the county authorities could only proposition that the construction and maintesell its lands for money. We do not accede to nance of railroads did not constitute a public this proposition. If they possessed the power purpose, because the corporations created to to sell for money, we are pointed to no express build and run railroads were strictly private provision of law that restricts them from sell- corporations formed for the purpose of private ing for money's worth. Even upon such a gain. If the making and maintaining a railnarrow view, it may well be contended that road in Wisconsin by a State corporation was the consideration received by the county in- not a public use, it was thought to follow that cluded a money payment. The deed recites such an enterprise could not receive municipal the payment of money by the company to the aid. And it may be conceded that, when we county at the time of the conveyance, and it is are called upon to pass upon the legal rights of a conceded fact that the lands since they came a Wisconsin railroad company, we should folinto the possession of the company have yielded low the law laid down by the State courts. considerable sums as taxes to the county. It But the queston now arises whether such a is straining no principle of law or of good proposition is applicable to the case of a corsense to regard the payment of an annual tax poration created by a law of the United States, as equivalent, for the purpose of our present and subjected by its charter to important public inquiry, to the payment of a rent. The
duties. The Northern Pacific Railroad Comamount, as well as the nature of the considera-pany was incorporated by an Act of Congress tion received by the county in exchange for its approved July 2, 1864. (15 Stat. at L. p. 365.) lands, if it had the power to sell them, was a
It was authorized to lay out, construct, and matter that concerned the county only. The
maintain a continuous railroad and telegraph State, as we have seen, did not only not com
line, with the appurtenances, from a point in plain, but fully ratified the sale.
the State of Minnesota or Wisconsin on Lake The courts of Wisconsin have, in a series of decisions never overruled, held that it is com
Superior to some point on Puget's Sound, and
"for the purpose of aiding in the construction petent for municipal corporations, if authorized so to do by the Legislature, to aid the of said railroad and telegraph line to the Paconstruction of railroads by subscribing to the cific coast, and to secure the safe and speedy stock of companies formed for that purpose, transportation of the mails, munitions of war, and paying therefor by bonds, and, of course, and public stores over the route of the said line to raise the means of paying the latter by taxa
of railway," there was granted a large amount tion. The task of reconciling this class of de- of public lands and a free right of way through cisions with that holding that municipalities, the territories of the United States. It was even with legislative sanction, cannot promote made the duty of the company to permit any railroads by donating money or credit to them, other railroad which should be authorized to is not ours. It may, perhaps, be said that be built by the United States, or by the Legiswhat is forbidden is a resort to the taxing lature of any territory or State in which the power where the municipality has received no same may be situated, to form running connecconsideration. But, as
But, as we have shown, the tions with it on fair and equitable terms. The county in the present case paid no money and company is authorized to enter upon, purchase, issued no bonds requiring any exercise of the or condemn by legal proceedings any lands or taxing power. It was the case of a sale, in premises that may be necessary
for consideration of money paid down and to be the construction and working of said road. It paid in the form of taxes, in addition to the is enacted that all people of the United States great advantages to enure to the public, shall have the right to subscribe to the stock of
There is a second important feature that dis- the company until the whole capital is taken tinguishes this case from those relied on by the up; that no mortgage or construction bonds plaintiffs in error, and that is the character of 'shall ever be issued by said company on said road, except by the consent of the Congress of roads." (Const., art. 1, $ -, par. 3 and 7-) As the United States; that said railroad, and any was said in Pensacola Teleg. Co. v. Western part thereof, shall be a post route and a mili- Union Teleg. Co., 96 U. S. 10:
“ The governtary road, subject to the use of the United ment of the United States, within the scope of States for postal, military, naval and all other its powers, operates upon every foot of territory government service, and also subject to such under its jurisdiction. It legislates for the regulations as Congress may impose restricting whole nation, and is not embarrassed by State the charges for such government transportation, lines. Its peculiar duty is to protect one part and that said company shall obtain the consent of the country from encroachments by another of the Legislature of any State through which upon the national rights which belong to all;” any portion of said railroad line may pass pre- and it was held that a law of the State of Florvious to commencing the construction thereof; ida which attempted to confer upon a single but said company may have the right to put on corporation of its own the exclusive right of engineers and survey the route before obtain- transmitting intelligence by telegraph over a ing the consent of the Legislature.
certain portion of its territory, was inoperative By an act approved April 10, 1865, the legis- ; against a corporation of another State, where lature of the State of Wisconsin declared that Congress had enacted “that any telegraph orfor the purposes set forth in said act of Con-ganized under the laws of any State should gress, and to carry the same into full effect, have the right to construct, maintain and opethe Northern Pacific Railroad Company was rate lines of telegraph through and over any vested with all the rights, powers, privileges, portion of the public domain of the United and immunities within the limits of the State States, over and along any of the military or of Wisconsin, which were given by said act of postroads of the United States," and where Congress.
such other corporation had secured a right of It is obvious that the effect of this legisla- way by private arrangements with the owners tion of Congress was to grant the power to con- of the land. This principle has been repeatstruct and maintain a public highway for the edly recognized by this court in numerous deuse of the people of the United States, and cisions. Western Union Teleg. Co. v. Texas, subject, in important respects, to the control of 105 U. S. 460. Congress. That portion of its road that lies
In this issue we print the address of Carrie within the State of Wisconsin is of the same Carrington, M. L., on * Master and Servant," public character as the portions lying in other delivered at the woman's law class of the UniStates or territories. Whatever respect may be versity of the City of New York, at Madison due to decisions of the courts of Wisconsin de Square Garden, on April 4, 1895. The rapid fining the character and powers of Wisconsin increase of the members of the gentler sex in corporations owning railroads, the scope of professions and business in America has been those decisions cannot be deemed to include watched with great interest by the rest of the the case of a national highway like that of the world, and it is recognized that in a great maNorthern Pacific Railroad Company. All of jority of cases the success of women has been the great transcontinental railroads were con- the result of tireless energy and careful attenstructed under Federal authority, through ter- tion to their occupations. We have been obritories which have since become States. S:ch servant, and have perceived that some men can States are possessed of the same powers of sov- more deftly rock the cradle and better attend ereignty as belong to the older States. Hence, to domestic pursuits than practice physic and if the contention were true that the State of law, while there exists a considerable number Wisconsin, through its judiciary, can deprive of women who possess peculiar abilities to folthat portion of the railroad within its borders low the recognized callings of the sterner sex. of its national character, and declare the North- This proportion of one or the other sex who ern Pacific Railroad Company to be a private could more properly follow the occupations of corporation not engaged in promoting a public the other is not so considerable as to necessipurpose, the same would be true of the other tate an evolution of the sexes so far as their work States through which the road passes.
Such a is concerned, but is large enough to attract atcontention, we think, cannot be successfully tention and to increase the earning capacity of maintained.
the country if the change is consummated. It Congress has power “to regulate commerce is, therefore, with pleasure that we print this with foreign nations and among the several address of one of the graduates of a woman's States," and to “establish post-offices and post-class in a law school.
ADDRESS AT THE COMMENCEMENT EX-| be truthful, to assure a lawyer entering upon the
ERCISES OF THE BUFFALO LAW practice of his profession, that there are no ideal SCHOOL
courts, or ideal judges, or ideal lawyers; but that By GEORGE B. WELLINGTON, Esq., Troy, N. Y.
human sympathies and passions and frailties are to
be found even upon the bench wbich a young lawThe privilege of participating in these, the Sev
enth Commencement exercises of the Buffalo yer is apt to fancy stands for and actually manifests Law School, is deeply appreciated by me.
I take invariably rational and ideal justice. It might be pleasure in congratulating the graduating class said, with the intention of saving one from disapupon reaching the intermediate goal of their stu- pointments, to assure one about to enter upon the deut life, which, while it recognizes and honors practice of the law, that practical law—that is, their fidelity appropriately, is most valuable because the law of legislatures and the law of judges—is
not always to be known in advance by any process it marks their matriculation into the larger university of life, in which they will find their struggles of strict logic; but that a practical element, learned for supremacy endurable by reason of the discipline only by experience, must be considered by every of their school days. I congratulate the school be- lawyer who ventures an opinion to a client. Some cause of its honest and efficient work in education,
of these things, I say, might be pleasurable and and that it has the services of so many busy law profitable, and some might be truthful and scienyers freely given for its advancement. At this time tific, though, perhaps, almost disheartening to one
who has not learned devotion to an ideal which can of felicitations and of that unspeakable pleasure,
never be realized upon this earth; yet, for various mingled with chastened regrets, which absorbs the
reasons, chiefly the immediate practicability of the mind of a man who feels that his student days are
theme that I have chosen, I shall pass them by and over, that the time of his dependency is at last beg to draw your attention and fix it upon the duty past, and that the stern work of life, with its exhil
of a lawyer, as a citizen, to his State and country. arating ambitions, is finally his “for better for
What does the State expect and demand from worse" in an indissoluble bond, it seems almost out
you, an educated citizen? What do you owe to it? of place for one to attempt to interest a graduate, What has our civilization done for you? What will whose attention is fixed upon his diploma, in any of
you do for it? You have enjoyed up to this time the sober problems which will soon be thrust upon exceptional privileges. You have been breathing him for solution. But although our student days the strong, pure air of civil and religious liberty, in school are numbered, yet in a larger sense we are
with perhaps no more than a passing thought as to students still, and should ever so continue; and remembering that our future depends upon our apti- which seems so eminently just and right, and which
its source, with possibly only the feeling that that tude to learn quickly and accurately from every is so freely enjoyed and on the surface so easily source, whether books recording the past experi- maintained, must always have been the possession ences of men or the present signs of the times, it
of civilized communities -- Unmindful of the frightmay be that a glance around us just now will be
ful struggles between freedom and oppression, beuseful, and, if we understand what we see, will sug
tween right and might, which made heroes and gest a principle of action both ennobling and profit-martyrs possible and necessary in the too often forable.
gotten past. It took heroic industry to conquer It might be interesting at this time to review the
the savagery of nature and the savagery of man, career of some great lawyer, and try to learn the and it has taken ceaseless toil and indomitable rule or rules of life which he followed in his ascent steadfastness to keep for the uses of man that which to the vantage point of fame or prosperity. It
was gained. The savagery of the world's aboriginies might be profitable to discuss the various principles has passed away only to make place for the selfishof action bearing upon a successful lawyer's practi- nese of unscrupulous and designing men, who find cal life. It miglit be inspiring to set forth the high the institutions of freedom calculated to increase ideals of the law which is founded upon eternal their power and widen their blighting influence. justice, and has for its object the sway of justice The liberties which you enjoy are a bequest charged among men. It might be in the interest of truth
with a trust. Your privileges are not yours abto picture that side of life which is turned toward the solutely, to be enjoyed or squandered, or neglected, Jawyer's office, though probably it would be worse or sold, or given away at your pleasure; but you than valueless to those whose buoyant hopes have are charged to hold and use them so that they shall idealized life, and have never known through actual increase in power and beneficence for the sake of contact with men the selfishness and sordidness your fellow men and posterity, and for your stewardwhich govern so many, and which are the occasion ship a strict account will be demanded. of so many of the disputes which engage a lawyer's It has been felt in the past, and perhaps may be time. It might perhaps be worth while, as it would now, that an exhortation to men to regard seriously