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existence which authorized and directed the gov- cauclidates for positions in the department of pubernor of the State to determine what subordinate lic works by examination; for it appears in the paplaces in the service of the State it was practicable pers before me, on this application, that after the to classify and subject candidates to for examina- adoption of the Constitution, and on the 15th day tion.

of April, 1897, the governor, with the aid of the It has been said that a constitution is, “To be civil service commission, made a classification of held to be prepared and adopted in reference to el the positions in the departments of public works isting statutory laws, upon the provisions of which and State prisons of the State, and that under such in detail it must depend to be set in practical opera- classification, the position of clerk to the collector tion." (People, ex rel. Jackson, v. Potter, 17 N. Y. of canal statistics was included in what is known 375-80.)

as schedule B, and that all appointments required The statutes in existence at the time when the to be made in the positions classified in schedule B present Constitution was adopted, authorized the are to be made by selection from those persons governor to determine how far it was practicable to graced highest as the result of open competitive extest the merit and fitness of candidates for subordi- animations. And it also appears that at the time nate places in the public service, by examination ; of the appointment of the relator to the position in and the rule that holds that constitutions inre

pre- question, there were eighty-eight persons upon what pared and adopted in reference to existing statutory is known as the eligible list " in schedule B, who laws,” and in reliance upon their details to set were eligible for appointment as clerks to the colthem into practical operation, is much strengthened lectors of canal statistics. in this case by the similarity in meaning of the It follows from what I have said that the superlanguage useil in the section of the Constitution intendent of public works should have made liis under consideration, to that used in the civil ser- appointments of clerks to the collectors of canal vice law. Let us compare the language used in statistics from the eligible list just referred to; that each. The Constitution provides that appointments the appointment of the relator was in violation of and promotions in the civil service of the state, the Constitution and of the civil service laws of the etc., Shall be maile according to merit and fitness, State, and that his application for a manlamus to be ascertained, so far as practicable, by examina must be denied. tions, which so far as practicable shall be com Motion for at mandauimus denied, not as a matter petitive."

of discretion, but as matter of law, without costs. The civil service law (chapter 3354 of the Laws of 1883), makes it the duty of the Governor, with the

INJUNCTION AGAINST USE OF PIANO. aid of the civil service commission, to prepare rules and regulations, which shall provide, amongst other Te Court of ('h uncery of New Jersey, in Feeney things, “As nearly as the conditions of good


V. Bartoldo, 38 Atl. Rep. 1101, decided that administration will warrant.

For open, where a saloonkeeper causes il piano to be played in competitive examinations for testing the fitness of his saloon each night from seven o'clock until ten applicants for the public service, now classified, or o'clock, and sometimes later, to the music of which to be classified hereunder."

dancing is indulged in, the effect of which is to And again in section 6 of sail act, it is made the prevent the occupant of an adjoining buildling from duty of the governor to “Cruuse to be arrangeil in i sleeping, il preliminary injunction will, it the suit classes of the several clerks and persons employed of such occupant be grantel, restraining the use of or being in the public service, for the purposes of the piano after nine o'clock. In view of a recent the examination herein provided for, and he shall controversy over a disturbance of this kind in New include in one or more of such classes, so far as York city, the case seems to be one which will be practicable, all subordinate places, clerks ani officers noticed with especial interest. in the public service of the State."

The court said: “This is an application for a preWhere the language used in the Constitution and liminary injunction, restraining the defendant from in a previously existing statute is so nearly similar the use of a piano. The defendant is the owner of in meaning, it seems tv me that we can well say that a saloon next adjoining the dwelling of the comthe framers of the Constitution had such statute in plainant. In this saloon the defendant makes sale view, and relied upon it to enfore the provisions of of beer and other liquors, and on the 5th of January that portion of the Constitution under considera- of the present year placed therein a piano, which tion.

has been played every night except Sunday nights, The governor has acted under the power con. from seven o'clock until ten, and sometimes until ferred upon him by the statute, and bad determined after eleven o'clock. This is accompanied with that it is practicable to test the merit and fitness of dancing and loud noises by the customers of the

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defendant. The effect of this musical and pedestrian ELECTION—AUSTRALIAN BALLOT.—Though the performance is to so greatly annoy and disturb the judges of election do not preserve the ballots in the complainant and his wife and children that they are manner specified by the statute, they may be unable to sleep at night during the continuance of counted in an election contest if there is evidence these noises. Hence the application for the inter- that they have not been tampered with. (Murphy ference of this court.

v. Battle [111.], 40 N. E. Rep. 470.) “That the defendant has a right to the ordinary JUDGMENT— CONFLICT OF LAWS.-No suit can be and proper use of a piano in his saloon, and that his brought in Missouri upon a Kansas judgment after customers have a right to dance to the music as ex it has by the law of that State become dormant and pressed by such instrument, there can be no doubt.

dead. (St. Louis Type Foundry v. Jackson (Mo.), There is no distinction between citizens in this re 30 S. W. Rep. 521.) spect. Every citizen is permitted to possess him-

LANDLORD AND TENANT — self of the instrument, and also to enjoy a dance.

ACCEPTANCE.- A lessee removed before the exBut it is equally well settled that every citizen, in piration 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 bis 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 funda

rented, 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. Belir

and the lessors thereupon placed the premises with mapn, 37 N. J. Eq. 345 ; Walker v. Brewster, 5 L.

a rental agent: Held, that there was no acceptance R. E4. 2.), 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


A lise of this instrument after nine o'clock in the

creditor of a lessce who, without knowledge of the evening."

fact that the lessor had a mortgage on such lessee's

crop, induced the lessee, without false representaAbstracts of Recent Decisions. tions, to remove his grain to the creditor's farm to

be threshed, and afterwards attached it, was not ARBITRATION AND AWARD-ACTION TO VACATE. estopped to deny the continuance of the mortgagor's When, in an action to set aside an award, it ap

lien on the crop after it had been removed from the pears that the arbitrators exceeded their authority land on which it was grown.. (Horgan v. Zanetta and made an award in respect to matters not sub- (Cal.], 40 Pac. Rep. 22.) mitted to them, the burden is on defendant to show

REMOVAL OF CAUSES--DISCONTINUANCE AFTER REthat the plaintiff, after seeing the award and under MOVAL.–B, a citizen of Indiana, commenced an standing what it contained, assented to its execu action for personal injuries, in a court of that State, tion. (Leslie v. Leslie [N. J.], 31 Atl. Rep. 725.) against three defendants, two citizens of Indiana

and one of Ohio. The Ohio defendant removed the CARRIERS-PASSENGER-DUTY TO STOP AT STA

cause to the Federal Court on the ground of local TION.—Statements of a ticket agent that a certain prejudice. B then discontinued the action as to the train stopped at a certain station will bind the rail

Ohio defendant, and moved to remand. Held, that road company only when made contemporaneously as the cause no longer involved a controversy with the sale of a ticket, and not when made properly within the jurisdiction of the Federal several weeks before, and not referred to at the Court, it should be remanded. (Bane v. Keefer time the ticket was sold. (Atebison, T. & S. F. R. LU. S. C. C., Ind.], 66 Fed. Rep. 610.) Co. v. Cameron (U. S. C. C. of App. I, 66 Fed. Rep. TRUST---TRUSTEE OF LAND.--The estate of one 709.)

who held land in trust for a widow and her chilCRIMINAL LAW-HOMICIDE--INSANITY. – Evidence dren, and without their consent expended rents and that defendant has been in the insane asylum, and land, is liable for the amount so expended. (Shaw

profits in purchasing an outstanding title to the that, in the opinion of witnesses, some professional

v. Devecmon (Md.), 31 Atl. Rep, 709.)and some not, he is still insane, does not justify the

WILLS--CONTEST--OPINION EVIDENCE.—A physireversal of a judgment of conviction, where the evi

cian who has attended testatrix professionally for dence also shows that for some years before the

several years can give an opinion as to her mental crime he earned regular wages, invested the pro- capacity at the time of making the will, without ceeds, and attended to his affairs properly. (Meyer stating the facts on which his opinion is based. v. People [111.], 10 N. E. Rep. 191.)

(Crockett v. Davis (Md.], 31 Atl. Rep. 710.)

sult beyond doubt in the modification of the The Albany Law Journal. law so that it would not have the aspect of some

of the blue laws of Connecticut.

The possesALBANY, JULY 27, 1895.

sion of money should not entitle one man to a

privilege which his unfortunate brother cannot Current Lopics.

reach, and unless it is desired to have a strict

enforcement of a severe and austere law like [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY Law Journal. the present one, it is better that there should All letters relating to advertisements, subscriptions, or other

be a change so that the people will respect a business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

law because they recognize that it must be and

will be enforced. O much has been written in various periodi

In Iowa the liquor question is again rampant. cals in regard to the enforcement of the A year ago the Republicans flattered themselves liquor law in New York city, that the subject has that they had got rid of it by passing the sobeen broadly advertised, and it is apparent that called "mulct law” under which prohibition one or the other political party will undoubted was not repealed, but localities were allowed to ly acquire some advantage from the controversy. have saloons and the majority of the voters

As was intimated in our article on enforce- petitioned for their establishment. The new ment of law, which appeared in the editorial law has not satisfied all parties and the estabcolumns of this journal very shortly ago, it is lishment of saloons under the protection of the unfortunate that such issues should not be law is a perpetual ground of offense to the exsettled by themselves and on their own merits treme element on one side, while the rigorous without regard to the partisan feeling and requirements regarding signatures to petitions without being intermingled with other semi-offend those who believe in a local option syspolitical questions of an election. If the people tem, and a decision as to license or no license of New York city and of the rest of the State | by a popular vote. Then, of course, the undesire some modifications and changes in the fortunate controversy arises as to whether the existing law, their feelings should be respected signatures are genuine, and it is easily rememand no political boss or party should be allowed bered that the saloons at Deslloines have been to change their wishes by sharp practices and recently closed pending the determination by unfortunate subterfuges. It is a matter of re- the courts as to whether there were irregularigret that so many statutes are yearly enacted ties in the petition. by legislatures, which are affected by varied In speaking of this question, The Nation reterests, and it is asserted by corrupt practices, cently very appropriately said: for the value and quality of the work is over

“Though prohibition makes no progress, looked in the mad rush which is brought about there is in all parts of the country a growing by catering to the interests of those who are sentiment in favor of such restrictions upon the fortunate enough to have a "pull." It is in- liquor traffic as public sentiment will enforce. doubtedly true that if a vote were taken on the A notable evidence of this tendency is found in question, as to whether the Legislature should the new liquor law passed by the Indiana Legmeet once in two years, that it would be carried | islature, which has just gone into effect. The by a large and overwhelming majority. Not that principle of local option is one of its chief feathe people have any objection to such statutes as tures, the majority of the voters of any ward of are necessary to carry on legitimate and proper a city or election precinct having the power to purposes of the government, but solely because prevent the establishment of a saloon within its it is too apparent that party greed and glitter- limits by filing a remonstrance, and such reing gold are at the root and foundation of more monstrance acts as a bar for two years. Another than half of the laws which receive the sanction important feature of the law is the attempt to of the legislature and the executive.

remove all attractions except liquor itself from The liquor question, if submitted to the the saloon. Neither games, nor music, nor slot people, it would seem, would receive their care- machines, nor any other device for attracting ful consideration and reflection, and would re-l patronage will be allowed; chairs and tables

VOL. 52 - No. 1.

and lunch counters are forbidden. All places of necessity existed. He seems to have said where intoxicants are sold must be situated that the facts found by him raised in law an inupon a street or alley, and neither screens nor ference that a necessity existed. But I will any other obstruction to a full view of the in assume that he has in his judgment found that terior from the outside will be permitted. The there was a necessity. The question for us to liquor dealers are going to contest the consti- consider is, whether there was any evidence on tutionality of the law, but unless there are some which he could reasonably find that. Has a technical defects not apparent on the surface, servant power to delegate his authority without it is likely to stand.”

first consulting his master? If a servant has an It would seem that there have been enough opportunity of consulting his master, there can bickerings and subterfuges in relation to the be no need for him to act on his own view of liquor question. Either the people want to affairs. The facts of this case are: That there have a moderate sale of the commodity on Sun was an omnibus in the street, the driver being day or they do not, and as our form of govern- incapacitated through the orders of the police ment recognizes the majority, a fair submission from driving it, and the yard of the driver's to the people at a special election will decide

master being only a quarter of a mile away. the question for many years, and would at least Could not the omnibus have been left in reasonput an end to the unfortunate shilly shallying able safely to stand in the street while some one on the question, which has been of serious

was sent to the yard to ask the master what was detriment to the respect which should be ac the best thing to do? It is obvious that the corded to the laws of the State.

omnibus might well have been left where it was, We alluded in these columns a short time while the owner was being communicated with as since to the decision of the Queen's Bench in

to what should be done. Then the judge, if sitGrilliam v. Trust et al., which determined the ting with a jury, should have directed them that question as to whether a servant can delegate

there was no evidence of any necessity justifyhis authority to another. The facts were the ing any delegation of authority, or, if sitting defendants sent our their omnibus in charge of without a jury, he should have held that there a driver and a conductor. When the omnibus

was no necessity for the driver to act without was about a quarter of a mile away from the

first communicating with his master. The quesdefendant's yard, a police inspector, being of tion for the Divisional Court was, whether there opinion that the driver was drunk, ordered him

was any such evidence. In my opinion there to discontinue driving.

was no evidence on which it can be said that a The Court of Appeal, in their decision, Lord necessity arose for the driver to act without Esher writing the opinion, say: "Aquestion of first communicating with his master. I may add great importance has been raised in this case,

that I strongly agree with what was said by whether a servant can in a case of necessity Pirke, B., in Hawtayne v. Bourne, ubi sup, and delegate his authority to another person and Eyre, C. J., in Nicholson 1: Chapman, ubi sup., so make his master liable for the negligence of that the implied authority of a servant to act that person in carrying out the servant's duties. according to the necessity of a case is confined That question we have not now got to decide.

to certain well-known instances, such as that of A servant employed for a particular purpose

a master of a ship, and the acceptor of a bill clearly cannot delegate his duty to any one else of exchange for the honor of the drawer, and in unless, possibly, in cases of necessity.

salvage cases. These cases are all exceptions

The question for our decision is, not what will hap

from the general rule.” pen, assuming that there is a case of necessity. It is, whether there was any evidence before Although we cannot agree with many of the the County Court judge on which he could arguments used by Edward B. Whitney, assistreasonably find that a necessity existed for the ant attorney.general of the United States, in driver of the omnibus to delegate his duty 10 his article in the forum on Political Dangers Veares. In the first place, I do not think that of the Income Tax Decision,” yet on account the County Court judge has found that any case of the ability of the writer, the treatise should

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be read with interest, particularly by those century: A considerable amount of material who have carefully studied the subject and was laid before the court by the appellants' have watched the progress of Mr. Whitney, counsel, such as fragments of partially reported and read his brilliant arguments in favor of the debates, controversial pamphlets, private letconstitutionality of the act of Congress. The ters, official reports. Some material was added article is still further of importance in connec- by the research of the court; some, at the tion with the opinion of ex-U. S. Senator Ed second hearing, by the government, which, at munds, which we recently referred 10. Mr. the first hearing, had stood upon the decisions Whitney begins with a statement of how one alone; some by volunteer newspaper contribuman has decided by his vote many questions of tors, who probably gave the court the benefit great moment, such as the legal tender decision of their individual researches by means of Continuing, he says:

marked copies. Much of this material will be

He will prob “The Constitution gives Congress the power found valuable by the historian. to lay taxes and duties. It provides that direct ably, however, regard the result as requiring taxes shall be apportioned among the several further review on his own part, for the time States according to their populations as shown

was far from sufficient for such investigation as by the census. It puts no such restriction upon a historian would consider it necessary to deduties, 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

would under ordinary circumstances expect to decided in 1880, in Judge Springer's case, by a spend upon it. The rehearing, for instance, unanimous vote of the seven judges then sit- which was not expected before October, was ting, that an income tax essentially like the late brought suddenly on upon thirteen days' notice; one was a duty and not a direct tax, and there and such preparation as the government was fore valid. A similar ruling had been made in able to make upon these historical matters was 1868, by a unanimous decision of the eight made within that period. Probably much evijudges then forming the tribunal, upon the lence of importance bearing upon this question validity of a corporation income tax; and in will be found in the future.” these and other cases the court had said that Mr. Whitney then gives i short history of the definitions had been substantially settled as some of the opinions and cases which have early as the case of Mr. Hylton's carriage tax, been decided by the U. S. Supreme Court in in 1796. Congress, therefore, in enacting the regard to taxation. revenue law of 1894, and providing that a cer Speaking of the constitutional limitation as tain portion of the existing deficit should be to apportionment, Mr. Whitney says : met by the proceeds of an income tax, acted in

"The principle of apportionment is grossly reliance upon very clear and definite rulings of unfair as well as impracticable. The industhe Supreme Court itself. It could not have laid any tax with greater assurance of safety. Each section is partly dependent on the others

tries of our nation are closely intertwined. It could not foreknow the future actions of the court. It had to shape its legislation by the for its support. Wherever the men with large

incomes choose to settle themselves, the indecisions of the past.

comes which they enjoy are really the joint "Five judges now rule, however, and these product of the industry of the entire nation. five are entitled to speak for the court,- that Each should, therefore, pay his own the seven of 1880 and the eight of 1868, that share ; and to apportion according to legal Chief Justices Chase and Waite, Associate Jus- residence would be to make a sectional tax, tices Nelson, Miller, Strong and Bradley and discriminating in favor of those parts of the the rest, were all mistaken; and that an income country where wealthy people like to congretax is a direct tax, not a duty. The argument gate. by which this conclusion is arrived at is, of “It may safely be assumed that the nation course, a historical rather than in legal argu- will levy no income taxes under this new ment. The point in issue is the meaning of theory of the Constitution. Nor can the certain words in the parlance of the eighteenth States levy such taxes efficiently. The sources


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