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ants, but has been wrought out by the personal New Books and New Editions. labor of the author. Because of these varied merits I have ventured to

TIFFANY ON SALES. predict that it will take the field, and will hold it, The eighth and latest volume of the Hornbook for it will be long before another will undertake Series, published by the West Publishing Company, such a stupendous work. It is twelve years since has just appeared in the hand-book on the Law of it was announced, and during all this time it has Sales, by Francis B. Tiffany, the author of the wellengaged the author's attention and labors. It is a

known work on Death by Wrongful Act. monumental work. It is evident, from the author's

So much has been written upon the merits of the

“ Hornbook Series " that anything additional may loving and tender inscription to his wife, that he so regards it. We can well imagine his feelings in

seem superfluous, yet we cannot refrain from combeing permitted to behold its completion. In read-menting in passing upon the general utility, merit ing his dedication and preface one is reminded of

and scope of the series.

The student has long looked in vain for textwhat Gibbon says of the great work on which his

books which should present to the mind and to the fame so securely rests. Let it be stated in his own

eye a clear, concise and yet comprehensive stateinimitable language. He thus marks the concep

ment of the various branches of the law which tion of the Decline and Fall: “ It was at Rome, on

should instruct him without wearying and overtaxthe 15th of October, 1764, as I sat musing amidst the ing his mind with useless minute distinctions and ruins of the capitol, while the bare-footed friars subtle differences too multitudinous for the human were singing vespers in the Temple of Jupiter, that mind to grasp in any logical sequence. the idea of writing the decline and fall of this city

Such a book has at last been supplied by the first started to my mind."

Hornbook Series, the several volumes of which, More than twenty years afterward he thus de- compiled by well-known authorities upon the differscribes and commemorates its completion: “On the

ent legal subjects, set forth in black-letter text the night of the 27th of June, 1787, between the hours

fundamental principles of the law in a style free of eleven and twelve, I wrote the last lines of the

from useless verbiage, so that both the eye and the last page, in a summer house in my garden. After

mind readily comprehend and digest the matter laying down my pen I took several turns in a berceau or covered walk of acacias, which commands a pros-letter text are elucidated by more or less extended

presented. The principles set forth in the blackpect of the country, the lake and the mountains.

commentaries thereon, prepared in a masterly manThe air was temperate, the sky was serene, and the

ner, which are further explained by copious references silver orb of the moon was reflected from the waters,

to decisions rendered in the courts of the United and all nature was silent. I will not dissemble the

States and of the several States of the Union. first emotions of joy on recovery of my freedom,

The series is of untold value to the practicing and, perhaps, the establishment of my fame. But my pride was soon humbled, and a sober melan- | lawyer, enabling him to find and refresh his mind

in an instant upon any fundamental principle or choly was spread over my mind by the idea that I

variation therefrom of which he may be in doubt, had taken an everlasting leave of an old and agree

and furnishing an ever rendy and convenient digest able companion, and that whatsoever might be the

of the law. future date of my history, the lise of the historian Tiffany on Sales follows in the main the arrangemust be short and precarious."

ment of Benjamin, though the text is greatly modiSuch feelings are not difficult to understand.

fied, for various reasons, by the English Sale of And so the author of the work of which I am writ-Goods Bill which was enacted in February of last ing, esteeming it as the most important and perma year, being a codification, drafted by Judge Chalnent of his published labors, expresses, upon its mers, of the laws relating to the sale of goods. It completion, his sense of grateful satisfaction in these is a work worthy in all respects of its predecessors solemn and impressive words:

in the lIornbook Series which have achieved a great And to that gooil being who has given me the success both among students and the profession at strength to persevere to the end through so many years large. of toil and discouragement, I tender my most grateful The West Publishing Co. has some eight addiucknowledgments."

John F. DILLON. tional IIornbooks in preparation, including works

on Domestic Relations, Torts, Evidence, etc., makHUSBAND AND WIFE-PARTNERSILIP PROPERTY. ing sixteen volumes in all, which together with When funds invested in a partnership business by those not yet announced will form the most comthe wise were community property, the husband plete and comprehensive series of elementary textbecomes a partner in the business. (IIoughton v. books yet published or projected. Published by Puryear [Tex.], 30 S. W. Rep. 583.)

West Publishing Co., St. Paul, Minn.

regulations or we should acknowledge by reThe Albany Law Journal. pealing the existing law that to the victor be

longs the spoils. A State, county or city is ALBANY, JULY 20, 1895.

benefited by a decision of important questions

at the polls and our form of government reCurrent Lopics.

ceives its severest blows in the political avoid

ance by parties of matters of vital importance. [All communications intended for the Editor should be addressed simply to the Editor of TAE ALBANY LAW JOURNAL.

Is not a wise and honest stand on vital quesAll letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW

tions ultimately sustained by an intelligent JOURNAL COMPANY.]

public and may we not hope that the political

dodger will find his insatiate thirst for trickery HE able and exhaustive opinion of Judge slacked by a permanent and long merited overHerrick on the civil service law, deciding on

throw? the effect of the changes in the Constitution made by the late convention, is printed in full

It is with considerable satisfaction that we in this issue as not only of great interest be

are enabled to give part of the very excellent cause of the increasing attention given to the article on the “ Salutary Results of the Income subject, but also by reason of the comprehen- Tax Decision," published in the Forum for sive construction given to this most important July, from the pen of ex-United States Senator change of the fundamental law of the State. George Franklin Edmunds, of Vermont. А The removals made by the now dominant po- | lawyer of national repute, a statesman of unlitical party has aroused much discussion in the questioned integrity and ability, and an auprincipal cities where the effect has been most thority on constitutional law, the retired senanoticed and the subject has been debated at

tor from Vermont is accorded the respect of considerable length, especially by those who the people, and articles by him are sought for desire that existing statutes should be enforced

on every hand.

It is remembered that he was or else repealed. It is unfortunate that no

retained in the income tax cases, and it political party will take a stand for or against is partly at least due to his skill that the such statutes as the liquor law, the civil service early construction of the law was given by law and other enactments of a similar nature so the Supreme Court of the United States. as to have such questions decided by the Speaking of the results, Mr. Edmunds says, in people. A statute is only of value so long as it part: responds to the interests and wishes of the ma “The acts of 1861, and subsequent war-time jority of the electors, and a failure to entore acts, did, for the first time, undertake to impose the unpopular “blue laws" is a mockery to the a tax on personal incomes as falling within the respect which should both theoretically and category of duties, imposts and excises,' which practically be accorded to the statutes of the the Constitution authorized Congress to lay commonwealth. In Connecticut, there still without regard to the population and represenremain on the statute books the so-called blue tation of the States, provided only that they laws which do not in any way express the should be uniform throughout the United sentiments of the community of the present States.' The Constitution also provided that day, and it is easily seen that in New York the representation and direct taxes shall be apporpresent position of the excise commissioners tioned among the several States has not been upheld by popular approval. In cording to their respective numbers,' adding to the metropolis a majority of the citizens may the free persons three-fifths of all other persons be in favor of Sunday closing, but if one can excepting Indians

ing Indians - meaning, of course, the judge somewhat by the press it may be ven slaves. And the Constitution also provided tured that some changes in the present stringent that 'no capitation or other direct tax shall be regulations would be received with favor. So laid unless in proportion to the census.' These in the State either we should live under a strict acts of 1861 and the following ones of the warenforcement and construction of civil service ltime were upheld by the Supreme Court in

VOL. 52 — No. 3.




Springer's case (all the other cases can fairly be practice of taxation plain. There could have distinguished) as justifying a tax on personal been no purpose of equivocation or concealincomes not apportioned among the States ac

There was none. The danger and the cording to population. The law under which injustice of allowing the force of mere numbers the Springer case arose was soon repealed, and to impose taxes which they should not bear no income tax was again attempted until 1894. themselves in due proportion, by any scheme All that the Supreme Court had really to em- that might be invented, upon the minority of barrass it in consideration of these recent cases the people of the States, were perfectly underon their constitutional merits was, first, the stood. And so the relative equality of repreHylton carriage tax case of 1796 under a law that sentation and taxation as such-just as it then was finally repealed in 1814; and, second, the

was in many and still is in several States—was decision in the Springer case in 1880.

There distinctly and emphatically provided for in the had not been a continuous carriage tax acqui- Constitution.— affirmatively by the provision esced in—there had been none at all for more

that“ representation and direct taxes shall be than half a century. There had been no per-apportioned among the several States which sonal income tax in the whole constitutional his may be included in this Union according to tory of the United States for the seventy their respective numbers,” and negatively, by years of its experience of the urgent needs the prohibition that “no capitation or other of more revenue, both in times of direct tax shall be laid unless in proportion to

peace and war.

In this state of things the doctrine the census.” Those great architects and buildof stare decisis could have, justly, very little

ers of government well knew-better, perhaps, influence in preventing a consideration of the than we do in these days of much apparent and questions involved upon their very merits. some real sympathy with doctrines and pracThe Supreme Court was thus compelled to con- tices destructive of liberty and social order front and decide a constitutional question of when the point where virtue stops and vice the deepest importance to the future, as well as begins' is becoming obscure-that the rule of to the present welfare and peaceful relations of taxation should not and could not safely be all the people of the country.

It held that left to the unlimited caprice or prejudice or taxes imposed by Congress upon personal in- selfishness of mere majorities represented in comes, or other property as such, were direct Congress. taxes; and, if imposed at all, must be imposed “ One of the most eminent of the counsel susupon the people of the States according to their taining the late income tax statute has, in his respective populations. It is curious and in-brief, quoted that truthful and familiar definiteresting to note that in the very learned, inge- tion, given by Montesquieu in his 'Spirit of nious and exhaustive brief of the Attorney- the Laws,' that a tax is 'a portion that each General of the United States (than whom there subject [citizen] gives of his property in order is no better lawyer in the country) defending to secure the enjoyment of the remainder.' the law, there are only two or three pages of This is an obvious truth, and the only thing the whole ninety-nine devoted to suggesting, that was lost sight of or ignored by the deeven, that the true meaning (were the matter fenders of the tax in the recent discussion in res nova) of the Constitution could warrant the "he Supreme Court was the crucial fact that a imposition of a personal income tax otherwise just tax must be one that each citizen bears in than by apportionment among the States ac- proportion to his ability, cording to population, as provided in the “ The fears that have been expressed of the Constitution. It was the high and bounden danger that this late decision is supposed to duty of the Supreme Court, then, to consider have created of crippling the government in and decide the question on just and intrinsic times of war or other sore need are illusory. considerations.

The whole range of voluntary social and busi“The builders of the political and social ness activities is left open, as the Constitution state composing the Union evidently intended originally stated it, to uniform and equal taxaand endeavored to make the principles and I tion, and the whole property of the country,

- to use

It is only

real, personal and mixed, is left subject to taxa- ernment. This fact is that we have a governtion by the just and safe rule originally de- ment based upon the equal rights and equal reclared, according to representation--that is, by sponsibilities of all its people, and so constituted taxation, that those who impose it are, with | by its founders that no one of its proper agentheir own people in their several States, to cies — legislative, executive, judicial - can exshare in the burdens of.

ceed its authorized functions without being Such direct taxation according to represen- checked by another. The triangle of our govtation and numbers in the several States is by


a mechanical illustration no means so dinequal as has been suggested. makes the strongest possible structure for the The first direct tax eo nomine that has been laid security of justice to all. by Congress since the Constitution was adopted The Government is not the State. was that of 1861.

Twenty millions of dollars the agent of the State, and it must act within were required to be raised. This sum was ap- the limits of its authority. If it acts beyond portioned among States according to population, this, it becomes a usurper, and practises as the Constitution required. A comparison of tyranny. The comparison of the governmental the sums apportioned will show how far from tyranny of a single despot, or even of a small real inequality of vurden, in the main, such a body of persons, with the tyranny of the tax was found to be. For illustration : -- The majority of a people, unhappily shows that the State of New Hampshire was called on for tyranny of the mob or commune, or any other about $218,000 It had about 9,000 square | tyranny of mere numbers, is far worse than miles of land. The State of Texas was called any other while it continues. upon for about $355,000. It had about 261,000 " The only possible idea of a State governed square miles of land. Texas, then, had ap- by its people is one where the burdens are proximately thirty times the real estate resources equally borne and all benefits equally open that New Hampshire had, from which to pay, and secure to all. It is well to remember that in round numbers, only once and a half the the axiom stated by Jefferson, when he was sum that New Hampshire had to pay. New assisting to establish the institutions we now York was called upon for about $2,600,000. It enjoy, that 'the whole art of government conhad about 49,000 square miles of land. Cali- sists in the art of being honest,' is one that fornia was called upon for about $254,000. states broadly the truth that this decision has It had about 158,000 squares miles of land applied. The court has respected and followed But New York had to pay more than ten times the truth as it appeared to it. That was the the amount required from California. It will greatest and most responsible duty which the thus be seen that, in the long run, direct taxa- organic law the law of the people — had imtion upon property in the States, apportioned puted to it. The chief and only really imaccording to population, will not be greatly portant reason for written constitutions at all is unequal. Ind it is very clear that in respect that the people who ordain them know and feel of duties, imposts and excises the States (usu- that they cannot trust themselves to do right ally) that may have the advantage in regard to and refrain from wrong in times of temptation, direct taxes will compensate for it in the case excitement or tumult. Constitutions, then, of their far greater payments of these indirect are the pre-ordained acts of the self-control of taxes. It will be seen, then, that the patriotic the people as a body. They erect barriers that fears of any citizen — whatever may be their they themselves shall not be able to pass when stations, or present responsibilities — for the temptation in its thousand forms may overcome financial future of our country in times of war their calm judgment of what ought to be or or other calamity, may be greatly mitigated, if what ought not to be. Organized society can not entirely overcome. But however men may, restrain itself only in this way, and nearly all possibly, differ in respect of some of these mat- intelligent and progressive communities have ters, there is one great fact not to be lost sight taken this the only best and surest of methods of by those who have faith in, and hope for, the to protect their citizens from injustice. This continued success and increase of popular gov- 1 decision goes far to make these principles


permanent, and such rights of equality and jus- sions in the court. The income of the postice secure.

The socialist and the anarchist sessor of accumulated property was taxed at the should heed the power and the capacity of the common rate of 2 per cent. The income of government of equal law that has no fear in its the wage-earner (whether an artisan or clerk or various departments in protecting the rights and professional man) who had no accumulated redressing the wrongs of all citizens.”

property, and whose sole funds were the result In conclusion Mr. Edmunds writes:

of his year's labor, was taxed to the same ex“ The fears that have been expressed in sun tent. Thus the capital of the property-owner dry quarters of the danger of the aggrandize was not taxed at all; while the whole Capital ment of wealth and the greed of its possessors of the wage-earner was taxed to the full extent leading them to try to escape taxation, compels that the mere gains of the man of property the inquiry, What is wealth ?

Is it property

If this is not a discrimination against worth more than four thousand dollars a year ? | labor and industry, what can be? Is the ownership of property or working power of whatever kind, producing less than that sum

We desire to call the attention of the bar to of income, poverty ? Where is the line that

a radical change which has recently been places the tradesman, the artisan, the common

It laborer, the doctor, the clergyman and the effected in the legal procedure of our State.

is well known to lawyers that the Code provides lawyer “below the salt ?" No arithmetical money-definition of wealth has ever been given; the legal methods whereby objections may be and among a people who are to be free and taken to a complaint for defect of parties deprogressive none can ever be stated. That the fendant. If the failure to make some necessary tangible wealth of the citizens of every com

party appears on the face of the complaint, the munity, be it nation, or State, or county, or defendant should demur for non-joinder. town, should bear its financial burdens in due ($ 488, sub. 6.) If the defect does not appear proportion is self-evident both in the science of on the face of the complaint, the defendant government and in morals. But the wealth of should answer, setting up the defense. (S 498.) such a community is all its wealth, wherever In prescribing this procedure, the Code merely and in whatever proportions it may be distri- , follows the antecedent practice. These quesbuted among the members of the community, . tions are thus constituted issues in the cause and where the expenses of a common govern- questions to be tried like any other issuable ment are ratably and equally imposed by the question. taxation of all the wealth. Every citizen, shar

Under the chancery system, provision also ing by his vote in the management of the existed for the case of omission to plead a degovernment, shares also in his proportion in its fect of parties. When the issues in the case responsibilities and burdens, and it is only by came before the chancellor for hearing, and the such equality of power and duty that he can be evidence developed the existence of a necessary the peer of every other. It is such equality, party, who had not been brought before the and such only, that will maintain a well-ordered court, the case was ordered to stand over, or be and prosperous State. The Act of Congress dismissed. The framers of the Code preserved which has now been declared void did not pro- this equitable practice by section 452, which ceed upon any such principles, but the very directs that the court shall not determine the opposite. Now, the essential principles of the case in the absence of a necessary party. The people's government of equal rights and equal same section likewise provides for applications duties in its management and progress are by non-parties claiming an interest and desiring

to come into the case.

These various proreestablished.

visions constitute the entire system which has pre“There is, perhaps, little or no occasion now, vailed for many years, and which has been found to consider the salient points of inequality and adequate to meet all the exigencies of justice, consequent injustice in the provisions of the in securing the presence of the necessary parties act; one may be mentioned, however, that was before the court. A defendant could demur, not, it is believed, adverted to in the discus or answer, for absence of necessary co-defend

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