« AnteriorContinuar »
the dealers handling and selling the cigarettes consign any further goods to them, and that furnished by the corporation, its general agents inasmuch as much the larger part of the cifor the disposal of that particular commodity, garettes manufactured and sold are produced by and to issue to its so called agents what are the factories of the company, such a withdrawal designated as selling lists. The agreement results in great injury to, if not a destruction entered between the company and those deal- of the business of said dealers. Various afiing with it provides, in substance, among other davits have been presented and depositions of things, that cigarettes of the various brands witnesses have been read tending to establish manufactured by the company are to be sent the claim of the petitioner. In my judgment a to the dealer and received, sold and accounted corporation doing business in this state, and for by him; that the goods are not to be sold having substantial control of the market ought at lower prices than those fixed by the com not to be permitted to impose as a general perpany, the dealer to guarantee all sales made quisite upon the purchasers of its commodities, by him, all cigarettes to remain the property of whether designated as agents or not, that they the corporation until sold by the dealer. Com- shall obtain goods from no other source.
The missions for selling and expenses of the dealer enforcement of such a condition must necessaare allowed on all goods sold at not less than rily operate as a restraint of trade and prevent $2.50 per 1,000, provided the dealer shall competition. To carry out such a rule to its fully comply with all the conditions herein con- | logical sequence would enable the wealthy cortained and shall co-operate with the company poration which has obtained a monopoly of and promote its interests and handle its cigar- the market to continue the monopoly and to ettes to its satisfaction. It is further stipulated drive out of business poorer and less fortunate that if the company becomes informed and be competitors. The purchaser under such an lieves that the dealer has directly or indirectly arrangement and contract has been made party sold cigarettes at lower than the fixed prices, or to a scheme which has really a tendency to has not complied with the conditions of the give control of the market to the vendor to agreement, the company shall have the right the exclusion of all competitors. I think such to determine and declare that the dealer has a method of transacting business under the cirforfeited all claims to commissions. It appears cumstances disclosed is against public policy to be the fact that, with the exception of cer- and would not receive the approval of the tain cheaper brands, the company has refused
courts of the State in the case of a domestic since March 1, 1892, to sell directly to dealers, corporation. Why then should it be permitted but has disposed of this line of goods through in a foreign corporation ? its agents appointed in the manner and upon I have examined this application with care, the terms above stated.
believing that corporations acting within the In brief the evidence and papers submitted law are entitled to the protection of the courts,
are to the effect that the wholesale and that actions should not be commenced exdealer, jobber or whoever he may be that ob- 1 cept for good and substantial reasons. Large tains this commodity from the company for interests and immense accumulations of property the purpose of commerce is, with the excep-are represented by companies incorporated untions I have before stated, at once turued into der foreign and domestic statutes. I have no an agent of the company, and subjected to its sympathy with any disposition upon the part of direction and control as to the terms and man- private citizens or public officials to attack the ner in which he shall dispose of this particular existence of a corporation because of temporary line of goods. It is claimed upon the part of financial embarrassment or trivial and unintenpetitioner that the real object and purpose of tional deviation from chartered powers. Apthis arrangement and method of doing busi- plications made for purposes of speculation, to ness is to compel jobbers and dealers to re- redress private grievances or to promote the frain from selling any cigarettes except those interests of rival corporations, are unworthy of manufactured by the company, and that if they consideration. I am of the opinion that sufihandle other brands the company refuses to cient evidence has been produced upon the
hearing to authorize the commencement of an Nevertheless, the remarks of Judge Jenkins as action to determine whether the American to to the locality of the damage being conclusive bacco company is not transacting its business of the question of admiralty jurisdiction are in in the State of New York in an unlawful man- point. ner, in restraint of trade and to prohibit it from
“In cases of tort, locality is the test of jurisfurther transaction of such business. The ap- diction in the admiralty. The ultimate judiplication is granted and an action may be com-cial authority has determined the principle that menced upon filing a bond sufficient in form the true meaning of the rule of locality is that, and amount to indemnify the people against although the origin of the wrong is on the costs of suit.
water, yet, if the consummation and substance On reading the opinion, it is important to of the injury are on the land, a Court of adnotice that part in which the allegation of the 'miralty has not jurisdiction ; that the place or petition that a monopoly exists is discussed. It locality of the injury is the place or locality of is especially in relation to the words, “in my the thing injured, and not of the agent causing judgment a corporation doing business in this the injury (Ex parte Phenix Ins. Co., 118 U. S., State and having substantial control of the 610, 7 Sup. Ct., 25). Within this settled prinmarket ought not to be permitted to impose as ciple, a tort is maritime, and within the jurisa general prerequisite upon the purchasers of diction of the admiralty, when the injury is to its commodities, whether designated as agents a vessel afloat, although the negligence causing or not, that they shall obtain goods from no the injury originated on land. (The Rock Island other source.” Applying this principle by an- Bridge, 6 Wall, 213; Leonard v. Decker, 22 alogy the Attorney-General declares that, as Fed., 741.) In the former case it was ruled that domestic corporations would not be allowed by an action in personam would lie against the the courts of this State to do business in a man owners of the bridge, because the injury was ner clearly against public policy, foreign corpo-consummated upon navigable waters, being inrations should not be allowed that right. ficted upon a movable thing engaged in navi
A decision in admiralty jurisdiction recently gation, but that a proceeding in rem against the made in the United States District Court for bridge was not maintainable, because a mariCalifornia in Herman v. Port Blakely Mill Co.
time lien can only exist upon movable things (69 Fed. R. 646), is worthy of careful consider- engaged in navigation, or upon things which ation In the case in question it was held that
are the subjects of commerce on the high seas where a tort is committed partly on land and
or navigable waters. And so an injury happartly on water, the question whether admiralty pening through default of the master, to one has jurisdiction over it is determined by the upon a vessel discharging cargo at a wharf to locus of the damage and not the locus of the which she was securely moored, is within the origin of the tort. The tort complained of was admiralty jurisdiction (Leathers v. Blessing, that a laborer working in the hold of a vessel 105 U. S., 626), but otherwise if the injury was struck and injured by a piece of lumber occurred to one upon the wharf. (The Mary sent without warning through a chute by a per- Stewart, 10 Fed., 137.) In the latter case son working on the pier. As the locus of the there is an inadvertent remark to the effect that damage was on board the vessel, the court held | both the wrong and the injury must occur upon that it was within admiralty jurisdiction. the water --- a proposition not sustained by The court said, in part: In the case of the
authority. It suffices if the damage — the City of Milwaukee v. The Curtis, The Camden substantial cause of action arising out of the and The Welcome (37 Fed. 705) a libel in rem wrong — is complete upon navigable waters. was filed by the City of Milwaukee against the (The Plymouth, supra.)" vessels named for injuries to a bridge. The Counsel for respondent relies greatly upon libel was dismissed for want of jurisdiction. The Mary Stewart (supra), and particularly The proposition involved there was counter to upon the remarks criticised by Judge Jenkins that in the case at bar. It was for an injury to in the case just quoted, as indicating that the land, and not for an injury originating on land. I tort must be complete on the water before a
Court of Admiralty will take jurisdiction. That With reference to other cases cited by counwas a case involving the proposition counter to sel for respondent, they may be disposed of the one at bar, viz, the tort there originated on with the statement that, discarding scattered the water, but the consummation and the injury and isolated expressions, and reading the opinwere sustained on land. The facts of the case ions cited as a whole, they rather make for than were, briefly, that one, an employe of the steve against the jurisdiction of admiralty. While, dore engaged in loading the vessed, was injured, as previously stated, I have been unable to find while standing on the wharf, by a bale of cot- any case on “all fours” with the one at bar, ton, which was being hoisted aboard the ship, yet there are many authorities upon the counter which fell before it reached the ship's rail. It proposition- viz., where the tort has its origin was contended that a Court of Admiralty could on water, but is consummated, and the injury not take jurisdiction. The district judge cor- sustained, on land—which seem to me to furrectly held that jurisdiction could not attach, nish convincing authority for the jurisdiction of but, in sustaining this contention, went a little the court in this case. In those cases, where further than the facts justified him. He said: the facts showed that the tort originated on
" It is clear that the cause of action set out water, but was consummated, and the injury in the libel is without the jurisdiction of the sustained, on land, it is held that courts of adadmiralty. In cases of tort, the locality alone miralty have no jurisdiction. The authorities determines the admiralty jurisdiction. Only even go further, and hold that where the tort those torts are maritime which happen on navi- originates on water, and results in injury to land, gable waters. If the injury complained of hap- as wharves, piers, bridges, &c. (e. g., a vessel colpened on land, it is not cognizable in the admi- liding what a wharf, etc.), libels for damages susralty, even though it may have originated on tained by such wharves, etc., will not be enterthe water. (The Plymouth, 3 Wall., 20.) This tained in admiralty, because the injury took springs from the well-known principle that there place, to all intents and purposes, on land, and are two essential ingredients to a cause of ac not on water, and the fact that the agent caus. tion, viz., a wrong, and damage resulting from ing the injury was afloat made no difference.
Both must concur. To consti- | (The Plymouth, supra; The Neil Cochran, tute a maritime cause of action, therefore, not supra ; The Ottawa, supra ; The Arkansas, 17 only the wrong must originate on water, but the Fed. 383 ; The Professor Morse, 23 Fed. 803; damage - the other necessary ingredient - The John C. Sweeney, 55 Fed. 540; The Mary must also happen on water. Now, the injury Stewart, supra; The H. S. Picklands, 42 Fed. in the case at bar happened on the land.” 239; The Mary Garrett, 63 Fed. 1009; The
This language must, of course, be taken sub- Rock Island Bridge, 6 Wall. 213.) But it is ject to the facts of that case, and to the ques- | beld, on the other hand, that if a vessel sustain tion of law which the learned judge was then injury by colliding with wharves, piers, etc., considering. I do not think that he meant to they may maintain an action in personam lay it down as a general principle that “the against the owners thereof, the damage having wrong must originate on the water," for that been sustained on water. (Greenwood v. Town would be to make the test of admiralty juris- of Westport, 53 Fed. 824; id., 60 Fed. 561: diction depend upon the locality where the tort Hill v. Board, 45 Fed. 260.) The central idea originated-a proposition not countenanced by found running through all these cases is, so far a single authority or dictum. I think that the as jurisdiction over torts is concerned, that the only true and rational solution of the jurisdic-admiralty law books to the place where the intional question, where the tort occurs partly on jury was suffered, and not to the locality of the land and partly on water, is to ascertain the agent causing the injury. If this be the corplace of the consummation and substance of rect doctrine with respect to cases where the the injury. This latter elemeut of the wrong tort originates on water, but results in damage is necessarily the only substantial cause of ac to land or on land, I see no valid reason why tion, otherwise it would be damnum absque in the same test of jurisdiction is not applicable juria.
to cases where the tort originates on land, but
result in damage on water. Applying this to interfere before submission to the jury and criterion to the case at bar, it will be readily | direct a verdict for the defendant.' (Jackson conceded to be conclusive in favor of the ques V. Hardin, 83 Mo. 175; Powell v. Railroad tion of jurisdiction.
Co., 76 Mo. 80; Reichenbach v. Ellerbe, 115
Mo. 588, 22 S. W. 573.) We have carefully In Hite v. Metropolitan St. Rwy. Co., de-considered the motion for a rehearing filed by cided in the Supreme Court of Missouri in July, plaintiff and all of the authorities cited in sup1895 (32 S. W. R. 33), it was held that where,
port thereof, but see no reason for departing in an action for injury from being thrown from from our original opinion. The motion for a cable car while rounding a curve, the evidence
rehearing is overruled.” clearly shows that the accident was caused by a lurch of the car on account of its speed, and that such speed was necessary to carry the car ADDRESS OF JAMES C. CARTER, around the curv
a demurrer to the evidence PRESIDENT OF THE AMERICAN BAR ASSOCIATION. should be sustained.
(CONCLUDED.) The court said: “It is insisted by plaintiff
NEW YORK. that the evidence adduced by her made out a
The most interesting legislative experience of prima facie case, which entitled her to a ver
New York during the past year is that of its Condict, unless overcome by defendant, which
stitutional Convention, held under the provisions of was a question for the jury. This is unques- the Constitution of 1816, which requires a revising tionably the law where there is any substantial
convention every twenty years. The convention evidence introduced on the part of a plaintiff appears to have wisely accepted the leadership of to sustain the allegations in the petition, as the a number of members, which it fortunately posauthorities cited by counsel for plaintiff in their sessed, of large abilities and temperate wisdom. brief abundantly show, but it is not the law The result is shown in the rejection of most of the where the facts necessary to be proven in order temptations offered to it to indulge in ordinary to entitle the plaintiff to recover are merely in- legislation, and to make the fundamental law (which ferential or conjectural.
The evidence clearly ought always to be confined to the sure results of showed that the only way the cars could be experience) an instrumentality for the introduction
of untried experiments. operated around the curve where the acci
We find, consequently, in its work, very little in dent happened was by the speed of the
the way of radical change. Most of its new procable, and that the lurch or lunge which pre- visions are rearrangements of some of the details cipitated plaintiff from the car was incident to
of governmental organization such as were called its operation, and could not be avoided. These for by the special conditions of that State. Such facts were undisputed. Therefore, the demur-changes as have been introduced are conceived and rer to the whole evidence should have been expressed with caution and prudence, and much sustained. There is no evidence upon which
benefit may reasonably be expected from them. to predicate the verdict, and it was the plain the provision for preventing the application of duty of the trial court to have sustained the guise of charity, without, at the same time, repress
public moneys to sectarian purposes under the demurrer thereto, as well, also, as to have set ing charitable effort, deserves general attention.
A the verdict aside, on motion of defendant, precaution promising much benefit in special mubecause of the want of evidence to support it. nicipal legislation is found in the requirement that The interposition of the demurrer at the close special city bills must be submitted to the mayors of the case requires us to review the evidence of the cities affected for their approval, in default taken as a whole (Hiltz v. Railway Co., 101
of which the bill cannot become law unless reMo. 36, 13 S. W.946); and, when this is done, passed by the legislature. there can be but one conclusion and that is
The legislative session in New York was under that the plaintiff was not entitled to recover.
the domination of personal and factional influences 'When the evidence is of that character that
to such a degree as to obstruct useful attention to
real public business one of the deplorable consethe trial judge would have a plain duty to per-quences which follow where the people permit busy form in setting aside the verdict as unsupported self-seekers to assume the leadership of political by the evidence, it is his duty and prerogative parties. The most notable pieces of legislation con
sisted of measures relative to the municipal govern that the effort will ever impress the young ment of New York city designed mainly to sum aversion to an indulgence in liquors or narcotics. marily remove from office incumbents supposed to As to the text-books, doubtless there are some pubbe unworthy. Nothing can justify legislation of lishers who have on hand some which alone will this character except a very grave emergency. It auswer the requirements of the statute and will renders permanent and orderly administration im- thus exclude all others. possible. Such an emergency perhaps existed in
NEVADA. this instance; certainly the loud public voice pro
The Legislature of Nevada has contented itself claimed it, but there is great danger that such pre- with the passage of one hundred and eleven acts, cedents will be imitated without adequate occasion. mostly brief ones, occupying but one hundred and Official unfaithfulness and the public demand are
twelve pages. The discrepancy existing between easy to be alleged as a pretext under which per- opinions in this State on the subject of money and sonal and party schemes may be carried into that which moulds the policy of most nations is effect.
made very manifest, not only in the enactments, One act was passed which well illustrates what but also in many concurrent resolutions of this sesseems to be a sort of passion, which many persons sion. The latter exhibit an almost frantic sincerity, with the best intentions have, of seeing their par- and condemn the opponents, and applaud the supticular views enacted into law. They imagine, ap- porters, of the doctrines avowed with something parently, that when this is done the benefit with like delirious intensity. which they conceive their views to be fraught is al Among the enactments I observe one designed to ready accomplished. This law requires that “the promote purity in elections, containing some strinnature of alcoholic drinks and other narcotics and gent requirements which, if enforced, would prove their effects on the human system shall be taught very beneficial. It limits the amount of money
for not less than four lessons a week for which may be expended by candidates or other ten or more weeks in each year in all grades below persons in elections, and requires itemized statethe second year of the High school in all schools ments of the expenditures. Another permits the under State control or supported in whole or in disposition of property by holographic wills, to be part by public money." All pupils must continue proved in the same way as other private writings. the study until they have passed satisfactory ex
NEW HAMPSHIRE. amination. All regents' examinations in physiology and hygiene “sball include a due proportion of
New Hampshire exhibits few marked changes in questions on the nature of alcoholic drinks and legislative policy. A considerable step is taken in
favor of the policy of providing for the incorpora other narcotics and their effects on the human system. All pupils who can read shall study this sub
tion of private companies under general laws rather
than by granting special charters as heretofore. ject from suitable text-books, but pupils unable to read shall be instructed in it orally by teachers. The prohibitory policy relating to intoxicating
drinks is retained and made in some respects uiore using text-books.
For students below high school grade such text-books (presumably on
rigid. The day prior to Memorial Day is set apart physiology) shall give at least one-fifth of their and required to be devoted in the public schools to space, and for students of high school grade, shall exercises of a patriotic character. The demands of give not less than twenty pages to the nature and
labor are acceded to in a requirement that suitable effects of alcoholic drinks and other narcotics.
seats shall be provided in factories for female opera
tives. No text-book on plıysiology not conforming to this act shall be used in the public
An act drawn up with great apparent care proschools.''
vides for the establishment by private companies of
street railroads. They are rigidly subjected to pubWhat the effects of an excessive use of alcoholic
lic supervision and control, and a wise provision drinks are, is a matter of common observation and
limits the amount of capital stock to be issued to need not be taught in the schools; but what the
actual needs as determined by public authority. particular physiological effect of alcohol upon the
Further advances are made towards conferring human body is, is a matter about which men of
upon State railroad commissioners a just authority science most competent to judge inform us that
and supervision over railroads. there is as yet no settled knowledge. What this act would accomplish, if it were obeyed, would be
Norti DAKOTA. to devote a vast amount of the time of the young to This State exhibits a commendable parsimony in the study of the dogmatism, probably the error, of legislation. Her one hundred and twenty brief acts sciolists; and there can be no well grounded belief are comprised in one hundred and seventy-six