defendant. The effect of this musical and pedestrian performance is to so greatly annoy and disturb the complainant and his wife and children that they are unable to sleep at night during the continuance of these noises. Hence the application for the interference of this court. ELECTION-AUSTRALIAN BALLOT.-Though the judges of election do not preserve the ballots in the manner specified by the statute, they may be counted in an election contest if there is evidence that they have not been tampered with. (Murphy v. Battle [Ill.], 40 N. E. Rep. 470.) JUDGMENT-CONFLICT OF LAWS.--No suit can be brought in Missouri upon a Kansas judgment after it has by the law of that State become dormant and dead. (St. Louis Type Foundry v. Jackson [Mo.], 30 S. W. Rep. 521.) LANDLORD AND TENANT SURRENDER OF LEASE A lessee removed before the ex "That the defendant has a right to the ordinary and proper use of a piano in his saloon, and that his customers have a right to dance to the music as expressed by such instrument, there can be no doubt. There is no distinction between citizens in this respect. Every citizen is permitted to possess himself of the instrument, and also to enjoy a dance. But it is equally well settled that every citizen, inpiration of the term without notice, and left the the exercise of his individual rights in the use of key with a neighbor for the lessors. The lessors his property, is limited to such use as will not in- notified the lessee that he would be held for the rent terfere with the reasonable rights of others in the for the whole term unless the premises were reenjoyment of their property. With these fundarented, that they would try to re-rent the same, mental principles, concerning which there can be no and that the lessee might aid in procuring a tenant; dispute, and with the cases of Thompson v. Behrand the lessors thereupon placed the premises with mann, 37 N. J. Eq. 345; Walker v. Brewster, 5 L. a rental agent: Held, that there was no acceptance R. Eq. 25, and Soltau v. De Held, 2 Sim. (N. S.), of a surrender of the premises. (Lane v. Nelson 133, as a guide, I do not see my way clear to deny [Penn.], 31 Atl. Rep. 864. the preliminary injunction, so far as to restrain the use of this instrument after nine o'clock in the evening." Abstracts of Recent Decisions. ARBITRATION AND AWARD-ACTION TO VACATE.— When, in an action to set aside an award, it appears that the arbitrators exceeded their authority and made an award in respect to matters not submitted to them, the burden is on defendant to show that the plaintiff, after seeing the award and understanding what it contained, assented to its executiou. (Leslie v. Leslie [N. J.], 31 Atl. Rep. 725.) CARRIERS-PASSENGER-DUTY TO STOP AT STA MORTGAGE ON GROWING CROPS ESTOPPEL. A creditor of a lessee who, without knowledge of the fact that the lessor had a mortgage on such lessee's crop, induced the lessee, without false representations, to remove his grain to the creditor's farm to be threshed, and afterwards attached it, was not estopped to deny the continuance of the mortgagor's lien on the crop after it had been removed from the land on which it was grown. (Horgan v. Zanetta [Cal.], 40 Pac. Rep. 22.) REMOVAL OF CAUSES-DISCONTINUANCE AFTER REMOVAL.-B, a citizen of Indiana, commenced an action for personal injuries, in a court of that State, against three defendants, two citizens of Indiana and one of Ohio. The Ohio defendant removed the cause to the Federal Court on the ground of local prejudice. B then discontinued the action as to the TION.-Statements of a ticket agent that a certain train stopped at a certain station will bind the rail-Ohio defendant, and moved to remand. Held, that road company only when made contemporaneously with the sale of a ticket, and not when made several weeks before, and not referred to at the time the ticket was sold. (Atchison, T. & S. F. R. Co. v. Cameron [U. S. C. C. of App.], 66 Fed. Rep. 709.) CRIMINAL LAW-HOMICIDE-INSANITY. -Evidence that defendant has been in the insane asylum, and that, in the opinion of witnesses, some professional and some not, he is still insane, does not justify the reversal of a judgment of conviction, where the evidence also shows that for some years before the crime he earned regular wages, invested the proceeds, and attended to his affairs properly. (Meyer v. People [Ill.], 40 N. E. Rep. 491.) as the cause no longer involved a controversy properly within the jurisdiction of the Federal Court, it should be remanded. (Bane v. Keefer [U. S. C. C., Ind.], 66 Fed. Rep. 610.) TRUST-TRUSTEE OF LAND.--The estate of one who held land in trust for a widow and her chil dren, and without their consent expended rents and land, is liable for the amount so expended. (Shaw profits in purchasing an outstanding title to the v. Devecmon [Md.], 31 Atl. Rep, 709.) WILLS-CONTEST-OPINION EVIDENCE.-A physician who has attended testatrix professionally for several years can give an opinion as to her mental capacity at the time of making the will, without stating the facts on which his opinion is based. (Crockett v. Davis [Md.], 31 Atl. Rep. 710.) The Albany Law Journal. ALBANY, JULY 27, 1895. Current Topics. [All communications intended for the Editor should be ad dressed 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.] S° sult beyond doubt in the modification of the law so that it would not have the aspect of some of the blue laws of Connecticut. The possession of money should not entitle one man to a privilege which his unfortunate brother cannot reach, and unless it is desired to have a strict enforcement of a severe and austere law like the present one, it is better that there should be a change so that the people will respect a law because they recognize that it must be and will be enforced. In Iowa the liquor question is again rampant. A year ago the Republicans flattered themselves that they had got rid of it by passing the socalled "mulct law" under which prohibition was not repealed, but localities were allowed to have saloons and the majority of the voters petitioned for their establishment. The new law has not satisfied all parties and the establishment of saloons under the protection of the law is a perpetual ground of offense to the extreme element on one side, while the rigorous requirements regarding signatures to petitions tem, and a decision as to license or no license by a popular vote. Then, of course, the unfortunate controversy arises as to whether the signatures are genuine, and it is easily remembered that the saloons at Des Moines have been recently closed pending the determination by the courts as to whether there were irregularities in the petition. much has been written in various periodicals in regard to the enforcement of the liquor law in New York city, that the subject has been broadly advertised, and it is apparent that one or the other political party will undoubtedly acquire some advantage from the controversy. As was intimated in our article on enforcement of law, which appeared in the editorial columns of this journal very shortly ago, it is unfortunate that such issues should not be settled by themselves and on their own merits without regard to the partisan feeling and without being intermingled with other semi-offend those who believe in a local option syspolitical questions of an election. If the people of New York city and of the rest of the State desire some modifications and changes in the existing law, their feelings should be respected and no political boss or party should be allowed to change their wishes by sharp practices and unfortunate subterfuges. It is a matter of regret that so many statutes are yearly enacted by legislatures, which are affected by varied terests, and it is asserted by corrupt practices, for the value and quality of the work is overlooked in the mad rush which is brought about by catering to the interests of those who are fortunate enough to have a "pull." It is undoubtedly true that if a vote were taken on the question, as to whether the Legislature should meet once in two years, that it would be carried by a large and overwhelming majority. Not that the people have any objection to such statutes as are necessary to carry on legitimate and proper purposes of the government, but solely because it is too apparent that party greed and glittering gold are at the root and foundation of more than half of the laws which receive the sanction of the legislature and the executive. The liquor question, if submitted to the people, it would seem, would receive their careful consideration and reflection, and would reVOL. 52 No. 4. In speaking of this question, The Nation recently very appropriately said: "Though prohibition makes no progress, there is in all parts of the country a growing sentiment in favor of such restrictions upon the liquor traffic as public sentiment will enforce. A notable evidence of this tendency is found in the new liquor law passed by the Indiana Legislature, which has just gone into effect. The principle of local option is one of its chief features, the majority of the voters of any ward of a city or election precinct having the power to prevent the establishment of a saloon within its limits by filing a remonstrance, and such remonstrance acts as a bar for two years. Another important feature of the law is the attempt to remove all attractions except liquor itself from the saloon. Neither games, nor music, nor slot machines, nor any other device for attracting patronage will be allowed; chairs and tables and lunch counters are forbidden. All places where intoxicants are sold must be situated upon a street or alley, and neither screens nor any other obstruction to a full view of the interior from the outside will be permitted. The liquor dealers are going to contest the constitutionality of the law, but unless there are some technical defects not apparent on the surface, it is likely to stand." It would seem that there have been enough bickerings and subterfuges in relation to the liquor question. Either the people want to have a moderate sale of the commodity on Sunday or they do not, and as our form of government recognizes the majority, a fair submission to the people at a special election will decide the question for many years, and would at least put an end to the unfortunate shilly shallying on the question, which has been of serious detriment to the respect which should be accorded to the laws of the State. We alluded in these columns a short time since to the decision of the Queen's Bench in Grilliam v. Trust et al., which determined the question as to whether a servant can delegate his authority to another. The facts were, the defendants sent our their omnibus in charge of a driver and a conductor. When the omnibus was about a quarter of a mile away from the defendant's yard, a police inspector, being of opinion that the driver was drunk, ordered him to discontinue driving. The Court of Appeal, in their decision, Lord Esher writing the opinion, say: "A question of great importance has been raised in this case, whether a servant can in a case of necessity delegate his authority to another person and so make his master liable for the negligence of that person in carrying out the servant's duties, That question we have not now got to decide. A servant employed for a particular purpose clearly cannot delegate his duty to any one else unless, possibly, in cases of necessity. The question for our decision is, not what will hap pen, assuming that there is a case of necessity. It is, whether there was any evidence before the County Court judge on which he could reasonably find that a necessity existed for the driver of the omnibus to delegate his duty to Veares. In the first place, I do not think that the County Court judge has found that any case of necessity existed. He seems to have said that the facts found by him raised in law an inference that a necessity existed. But I will assume that he has in his judgment found that there was a necessity. The question for us to consider is, whether there was any evidence on which he could reasonably find that. Has a servant power to delegate his authority without first consulting his master? If a servant has an opportunity of consulting his master, there can be no need for him to act on his own view of affairs. The facts of this case are: That there was an omnibus in the street, the driver being incapacitated through the orders of the police from driving it, and the yard of the driver's master being only a quarter of a mile away. Could not the omnibus have been left in reasonable safely to stand in the street while some one was sent to the yard to ask the master what was the best thing to do? It is obvious that the omnibus might well have been left where it was, while the owner was being communicated with as to what should be done. Then the judge, if sitting with a jury, should have directed them that there was no evidence of any necessity justifying any delegation of authority, or, if sitting without a jury, he should have held that there was no necessity for the driver to act without first communicating with his master. The question for the Divisional Court was, whether there was any such evidence. In my opinion there was no evidence on which it can be said that a necessity arose for the driver to act without first communicating with his master. I may add that I strongly agree with what was said by Parke, B., in Hawtayne v. Bourne, ubi sup, and Eyre, C. J., in Nicholson v. Chapman, ubi sup., that the implied authority of a servant to act according to the necessity of a case is confined to certain well-known instances, such as that of a master of a ship, and the acceptor of a bill of exchange for the honor of the drawer, and in These cases are all exceptions salvage cases. from the general rule.” Although we cannot agree with many of the arguments used by Edward B. Whitney, assistant attorney-general of the United States, in his article in the Forum on "Political Dangers of the Income Tax Decision," yet on account of the ability of the writer, the treatise should be read with interest, particularly by those who have carefully studied the subject and have watched the progress of Mr. Whitney, and read his brilliant arguments in favor of the constitutionality of the act of Congress. The article is still further of importance in connection with the opinion of ex-U. S. Senator Edmunds, which we recently referred to. Mr. Whitney begins with a statement of how one man has decided by his vote many questions of great moment, such as the legal tender decision. Continuing, he says: century. A considerable amount of material would under ordinary circumstances expect to spend upon it. The rehearing, for instance, which was not expected before October, was brought suddenly on upon thirteen days' notice; and such preparation as the government was able to make upon these historical matters was made within that period. Probably much evidence of importance bearing upon this question will be found in the future." "The Constitution gives Congress the power to lay taxes and duties. It provides that direct taxes shall be apportioned among the several States according to their populations as shown by the census. It puts no such restriction upon duties, which are, on the contrary, to be uni-vote to such a question, or as a lawyer or judge form throughout the United States. The court decided in 1880, in Judge Springer's case, by a unanimous vote of the seven judges then sitting, that an income tax essentially like the late one was a duty and not a direct tax, and therefore valid. A similar ruling had been made in 1868, by a unanimous decision of the eight judges then forming the tribunal, upon the validity of a corporation income tax; and in these and other cases the court had.said that the definitions had been substantially settled as early as the case of Mr. Hylton's carriage tax, in 1796. Congress, therefore, in enacting the revenue law of 1894, and providing that a certain portion of the existing deficit should be met by the proceeds of an income tax, acted in reliance upon very clear and definite rulings of the Supreme Court itself. It could not have laid any tax with greater assurance of safety. It could not foreknow the future actions of the court. It had to shape its legislation by the decisions of the past. "Five judges now rule, however, and these five are entitled to speak for the court,- that the seven of 1880 and the eight of 1868, that Chief Justices Chase and Waite, Associate Justices Nelson, Miller, Strong and Bradley and the rest, were all mistaken; and that an income tax is a direct tax, not a duty. The argument by which this conclusion is arrived at is, of course, a historical rather than a legal argu Mr. Whitney then gives a short history of some of the opinions and cases which have been decided by the U. S. Supreme Court in regard to taxation. Speaking of the constitutional limitation as to apportionment, Mr. Whitney says: "The principle of apportionment is grossly unfair as well as impracticable. The industries of our nation are closely intertwined. Each section is partly dependent on the others incomes choose to settle themselves, the infor its support. Wherever the men with large comes which they enjoy are really the joint product of the industry of the entire nation. Each man should, therefore, pay his own share; and to apportion according to legal residence would be to make a sectional tax, discriminating in favor of those parts of the country where wealthy people like to congregate. "It may safely be assumed that the nation will levy no income taxes under this new Nor can the The point in issue is the meaning of theory of the Constitution. certain words in the parlance of the eighteenth | States levy such taxes efficiently. The sources ment. of a large income are often scattered all over the Union, and the State which its fortunate possessor selects to reside in cannot tax them. To make the tax efficient the owner and his property should both be within the jurisdiction. State income taxes never have been successful, and the result of this decision is probably to release individual incomes from all effective taxation." Mr. Whitney then dicusses the consequences, in part, thus: "It is easy to make light of such a decision in times of peace, when we have immense revenues from customs duties to help us along. But shall we always be at peace? And can we count upon the customs duties in times of war? Many prominent men--senators, representatives, journalists and aspirants for high office-would like to see us plunge right off into a war with the Kingdom of Great Britain and Ireland. Let us assume that they succeed in getting us to do so. Let us assume that no other nation is dragged into the war against us; that no injury is done to our commerce by hostile fleets; and that our customs duties therefore remain as productive as ever upon imports from neutral nations. Still we lose at once our revenue from the products of the British Empire, twofifths, say, of the custom-house receipts. Add to this deficit the expenses of the war, and we have the problem confronting the secretary of the treasury. How is the money to be got? It will be wanted quickly, not by any slow process of apportionment and valuation. Doubling the existing duties would be no safe reliance. As customs duties are raised, their product is apt to decline. Excises will of course multiply. Heavy duties will be laid on gross receipts from transportation, most of which, like our present duties and excises, will rest on the shoulders of the poor man. But will this suffice to make up the share which ought to be borne in such a war by the present generation? That will be the problem. And as the Supreme Court has closed the door upon wealth, perhaps the nation will find its way out through another door opened by the same court. Perhaps it will pay its way by a new issuance of greenbacks. Because the wealth of the country cannot be taxed effectively, the impositions upon the poor man will be doubled, and an immense debt again established for his descendants to pay. Part of this debt will probably be in the shape of more fiat money, to plague rich and poor alike for a generation to come. "Moreover, in time of stress, it is most important that the nation may have recourse to taxes which will be both certain and elastic; in other words, to taxes which may be increased or diminished with some certainty as to the amount of money which will thus be obtained. This is the case with income-taxes. Great Britain, when it adds a penny in the pound to the tax, knows pretty nearly what additional revenue will come in. This is not the case with excises or customs duties, especially the latter. Increasing the duty on an imported article often means decreasing its importation. On the other hand, if the duty remains unchanged, or even is reduced, still its importation may decrease from decreased use or from growth of domestic manufactures. "I have said that excises and customs duties rest on the shoulders of the poor man. I mean the man of moderate means, whose income is exhausted in the support of himself and his family in a moderate degree of comfort. Excises and customs duties come mainly from articles of general consumption. It is admitted by most statesmen and economists that they are mainly paid by the man whose income mostly goes out in obtaining such articles; and that this man of moderate means, when the revenue of the country is derived entirely from such taxes, pays far more than his share in proportion to his income. This is especially the case with what are called 'specific duties;' which, as John Stuart Mill said in England, are a flagrant injustice to the poorer class of contributors, unless compensated by the exist ence of other taxes from which, as from the present income tax, they are altogether exempt.' So Senator Sherman in 1870 said that the income tax of that day was 'the most just and equitable tax that is now levied by the United States of America, without an exception,' because it was the 'only discrimination in our tax-laws that will reach wealthy men as against the poorer classes of people,' who still 'necessarily pay nine-tenths of all the taxes.' This possibility of a balance between the poor and the rich is removed by the new constitutional interpretaton. |