Central Law Journal.

ST. LOUIS, MO., FEBRUARY 12, 1897.

The provisions of the shipping laws of the United States, which authorize the arrest of sailors refusing to carry out contracts made by them to serve on vessels, are constitutional, and the enforcement of them is within the jurisdiction of State courts. This has been recently decided by the Supreme Court of the United States in the case of Robertson et al. v. United States, which came up on appeal from the judgment of the United States Circuit Court for the Northern District of California, refusing to discharge the appellants from the custody of the United States marshal on a petition for a writ of habeas corpus. It appeared that the appellants signed articles in San Francisco to ship on an American vessel to a foreign port and return. At Astoria, Oregon, the men deserted, were arrested and on arrival in San Francisco were held in custody by a United States commissioner for trial, upon the charge of violation of sections 4598 and 4599 Revised Statutes. They sued for their discharge on a writ of habeas corpus, on the ground that their detention was in violation of the thirteenth amendment to the constitution, which forbids involuntary servitude, except for crime of which the subject has been convicted. The court dismissed their petition and remanded them to the custody of the marshal. This action of the court has now been affirmed by the Supreme Court of the United States, which, in an opinion by Mr. Justice Brown, holds that the statute giving justices of the peace jurisdiction of complaints over seamen for violation of their contracts is within the "judicial power" of the United States, and that congress can lawfully authorize State courts to issue warrants such as the one upon which the petitioners were arrested in Oregon. In regard to the question of "involuntary servitude" the court held that the prohibition thereof in the thirteenth amendment attached to servitude which was involuntary at the inception of the contract. It was true that there might be no remedy if the contracting party escaped from the control of the person with whom he had contracted, and that the contract might be declared null and void as not in accord with

public policy, but these considerations could not make the service contracted for involuntary servitude. If the term were to be construed by the party affected, said the court, and the contract terminated at his election, a man might not be able to contract for personal service and to surrender his personal liberty, even for a brief period, under certain conditions specified in the contract. By such a construction a soldier might desert his command on the eve of battle, and however satisfactory that might be to him, it could hardly be considered as tending to the good order, discipline or effectiveness of the army. Practice and precedents extending back into the periods of antiquity, the court said, concurred in holding seamen to the terms of their contracts. Navigation could not be carried on without the enforcement of such contracts, and the codes of all maritime nations from the earliest ages to the present period contained similar provisions. Complete authority for the law, whose validity was in question before the court, was, that body declared, found in the constitutional power to regulate foreign and interstate commerce. Justice Harlan dissented from the opinion of the court, denying the relevancy of references to the maritime laws of other nations, or even of the colonies, before the adoption of the constitution, to constitutional discussions in this country, and contending in effect that the law under consideration gave one man the right to compel another against his will in a matter of purely personal and private con

tract.

The New York Law Journal calls attention, by way of criticism, to the recent English decision in South Staffordshire Water Co. v. Sharman. on the subject of the rights of the finder of lost chattels the owner of which cannot be found. It appeared in that case that the defendant, while cleaning out, under the plaintiffs' orders, a pool of water on their land, found two gold rings in the mud at the bottom of the pool. He declined to deliver them to the plaintiffs, but failed to discover the real owner. In an action of detinue it was held that the plaintiffs were entitled to the rings, the legal conclusion of the court being that the possessor of land is personally entitled, as against the finder, to chattels found on the land. This broad doctrine, it

seems, is not in harmony with several authorities on the subject. In Hamaker v. Blanchard, in the Supreme Court of Pennsylvania, 90 Pa. 377, it appeared that a domestic servant in a hotel found in the public parlor a roll of bank bills. The finder immediately informed the proprietor of the hotel, who suggested that the money belonged to a transient guest, and received it from the finder to hand to the guest. It was afterwards ascertained that the guest in question did not lose the money, and upon demand by the finder the proprietor refused to return it to her. The finder accordingly brought as sumpsit for the money and was held entitled

to recover.

In Bridges v. Hawkesworth, 7 Eng. Law and Eq. R. 424, it appeared that a person went into a shop, and, as he was leaving, picked up a parcel of bank notes, which was lying on the floor, and immediately showed them to the shopman. It was held that the facts did not warrant the supposition that the notes had been deposited there intentionally, they being manifestly lost by some one, and that there was no circumstance in the case to take it out of the general rule of law, that the finder of a lost article is entitled to it as against all persons, except the real owner. In South Staffordshire Water Co. V. Sharman, Lord Russell distinguishes Bridges v. Hawkesworth on the ground that in the latter case it appeared that the bank notes were found in a public part of the shop to which the finder had rightful access, the circumstances being therefore substantially analogous to the finding of a lost article in a public place.

NOTES OF RECENT DECISIONS. CRIMINAL LAW-SCANDALOUS PUBLICATION—— FREEDOM OF THE PRESS.-The Supreme Court of Missouri decides in State v. Van Wye, 37 S. W. Rep. 938, that act 1891, declaring guilty of a felony one who engages in the business of publishing or disseminating a paper devoted mainly to publications of scandal and immoral conduct, does not contravene Bill of Rights, § 14, prohibiting any law impairing the freedom of speech, and providing that every person shall be free to say, write, or publish whatever he will, being responsible for all abuse of that liberty. The court says:

The constitutionality of the act of 1891, already quoted, is assailed, because it is claimed to be in con travention of section 14 of the bill of rights of Missouri. That familiar] section ordains that "no law shall be passed impairing the freedom of speech; that every person shall be free to say, write or pub. lish whatever he will on any subject, being responsi ble for all abuse of that liberty; and that in all suits and prosecutions for libel the truth thereof may be given in evidence." This court has heretofore often asserted its right and duty to determine whether a legislative enactment, solemnly passed and promulgated according to the forms of our constitution, was in fact and substance repugnant to the constitu tion, and, if so, to declare it void. The exercise of this most important authority has attracted the attention of all intelligent students of our system of government. In assuming this high function, our courts do not proceed on the theory that the judiciary is in any way superior to the two other co-ordinate departments, the executive and legislative, but solely because, being required to declare the law of every case coming before them, they must enforce the constitution as the paramount law whenever they find an enactment of the general assembly in conflict with it. Such questions are always delicate, and none are more so than when it is charged that the freedom of speech and of the press has been invaded by an act of the legislature. Keeping in view, then, the relation of this court to the executive aud legislative branches of our State government, and the transcendent importance of preserving the freedom of the press and of speech in a free country, let us subject the act in question to this constitutional test. "The liberty of the press," says Lord Mansfield, in Rex v. Dean of St. Asaph, 3 Term R. 431, note, "consists in printing without any provious license, subject to the conse. quences of law." Lord Ellenborough defines it in Rex v. Cobbett, 29 How. State Tr. 49, in this way: "The law of England is a law of liberty, and, con sistent with this liberty, we have not what is called an 'imprimatur.' There is no such preliminary license necessary. But, if a man publish a paper, he is ex posed to the penal consequences, as he is in every other act if it be illegal." Thus understood, the provision in our bill of rights was adopted substantially in the constitutions of several States of our American Union, and in the federal constitution. Says Judge Cooley: "It must be evident from these historical facts that liberty of the press, as now understood and enjoyed, is of very recent origin, and commentators seem to be agreed in the opinion that the term itself means only that liberty of publication, without the previous permission of the government, which was obtained by the abolition of the censorship." Cooley, Const. Lim. (6th Ed.) p. 516; Hall. Const. Hist. ch. 15; De Lolme, Const. 254; 4 Bl. Comm. 151; Story, Const. § 1889; 2 Kent, Comm. 17 et seq.; Rawle, Const. ch. 10. The constitutional liberty of speech and of the press, as we understand it, simply guaranties the right to freely utter and publish whatever the citizen may desire, and to be protected in so doing, provided, always, that such publications are not blasphemous, obscene, and scandalous in their character, so that they become an offense against the public, and, by their malice and falsehood, injuriously affect the character, reputation, or pecuniary interests of individuals. The constitutional protection shields no one from responsibility for abuse of this right. To hold that it did would be a cruel libel upon the bill of rights itself. The laws punishing criminal libel have never been deemed an infringement of this constitu

tional guaranty. Equally numerous and strong are the decisions that obscene publications are without the protection of this provision of our constitution. In his singularly felicitous and forcible style, Judge Philips, in U. S. v. Harmon, 45 Fed. Rep. 414, sustained the constitutionality of a federal statute (Rev. St. U. S. § 3893; 25 Stat. 496) prohibitiong the depositing or sending of obscene publications through the post offices of the United States. He says: "It may as well be said here as elsewhere that it is radical misconception of the scope of the constitutional protection to indulge the belief that a person may print and publish, ad libitum, any matter, whatever the substance or language, without accountability to law. Liberty in all its forms and assertions in this country is regulated by law. It is not an unbridled license. Where vituperation or licentiousness begins, the liberty of the press ends. While, happily, we have out. lived the epoch of censors and licensors of the press to whom the publisher must submit his matter in advance, responsibility yet attaches to him when he transcends the boundary line where he outrages the common sense of decency, or endangers the public safety. In a government of law, the lawmak ing power must be recognized as the proper authority to define the boundary line between license and licentiousness; and it must likewise remain the prov. ince of the jury-the constitutional triors of the fact -to determine when that boundary has been passed." This view of the constitutionality of the federal law was affirmed on error by the Circuit Court of the United States in Harman v. U. S., 50 Fed. Rep. 921, upon the authority of Ex parte Jackson, 96 U. S. 727, and In re Rapier, 143 U. S. 110, 12 Sup. Ct. Rep. 374. Similar statutes to this have been sustained in our sister States. Com. v. Holmes, 17 Mass. 336; In re Banks (1895), 56 Kan. 242, 42 Pac. Rep. 693; Strohm v. People, 160 Ill. 582, 43 N. E. Rep. 622. And this is the recognized practice in England, from whom we inherited our views of liberty to a large degree. Reg. v. Hicklin, L. R. 3 Q. B. 360; Reg. v. Bradlaugh, 2 Q. B. Div. 569; In re Besant, 11 Ch. Div. 508. The act, in our judgment, was clearly within the legitimate scope of legislation, and in no sense obnoxious to the fourteenth section of the bill of rights of Missouri.

- LIMITATION ON

MUNICIPAL CORPORATIONS INDEBTEDNESS.-In City of La Porte V. Gamewell Fire Alarm Tel. Co., 45 N. E. Rep. 588, decided by the Supreme Court of Indiana, it was held that where a city contracted for a fire alarm system at a time when it was indebted beyond the constitutional limit, and it had no money in its treasury to pay for such system, either at the time the contract was made or when the system was completed and accepted, such contract was within article 13 of the Indiana constitution limiting municipal indebtedness to 2 per cent. of the value of its taxable property, though the city had on hand sufficient funds to pay at the time fixed for payment by the contract. The court said in part:

It is clear, therefore, that whenever a city whose indebtedness exceeds the constitutional limit does not have money on hand arising from current rev

enues to meet its debts, of whatever character, as they come into existence, whether for light, water, labor or any other expense, the city has become indebted, and the constitution is violated. It is not sufficient, however, merely to have on hand enough money to pay each indebtedness as it comes into existence, but the same must be paid as it comes into existence, or there must be enough money on hand to pay all of such indebtedness outstanding, or there is an indebtedness created, and the constitution is thereby violated. If, to avoid the constitutional inhibition, it is only necessary to have on hand sufficient money to pay an indebtedness when it comes into existence, without paying or keeping on hand enough money to pay it, there would be no restraint upon the power of a municipality to become indebted. Obligations pay able out of a particular fund, and for which the fund only, and not the municipality, is liable, are not within the inhibition. Quill v. Indianapolis, 124 Ind. 292, 23 N. E. Rep. 788; Strieb v. Cox, 111 Ind. 299, 12 N. E. Rep. 481; Board, etc. v. Hill, 115 Ind. 316, 16 N. E. Rep. 156; City of New Albany v. McCulloch, 127 Ind 500, 505, 26 N. E. Rep. 1074; Hitchcock v. Galveston, 96 U. S. 341; City of Galveston v. Heard, 54 Tex. 420; Davis v. Des Moires, 71 Iowa, 500, 32 N. W. Rep. 470; Baker v. City of Seattle, 2 Wash. 576, 27 Pac. Rep. 462; Austin v. City of Seattle, 2 Wash. 673, 27 Pac. Rep. 557. The same rule applies to agreements to accept certificates of assessments in full satisfaction. Davis v. Des Moines, supra. But anything that renders the city liable brings the indebtedness within the restriction. Fowler v. City of Superior, 85 Wis. 411, 54 N. W. Rep. 800. It is held in some States, under constitutional provisions substantially the same as ours, that a municipality which has reached its limit may anticipate the collection of the revenue appropriated to its use, by drawing warrants against taxes levied, but not collected; thus substantially appropriating and assigning the amount drawn to the holder of the warrant. French v. City of Burlington, supra; Law v. People, 87 Ill. 385; City of Springfield v. Edwards, 84 Ill. 626; City of East St. Louis v. Flannagan, 26 Ill. App. 449; Koppikus v. State Capitol Comrs., 16 Cal. 248. But, in order to escape the inhibition of the constitution, the tax must not only have been levied, but the warrant must be drawn, payable out of the particular fund, and be such, in legal effect, as to dis charge the municipality from all liability. City of Springfield v. Edwards, supra; Law v. People, supra; Fuller v. Chicago, 89 Ill. 282: People v. May, 9 Colo. 404, 12 Pac. Rep. 838. In City of Valparaiso v. Gardner this court said: "If a bond, note or other obligation is executed, then, doubtless, a debt is created, for such things constitute evidences of indebtedness. So, if the consideration of the contract is re ceived at once, instead of being yielded at intervals, then it might be said that there was a debt; but where nothing is owing until after the thing contracted for is done or furnished, and that thing is a part of the necessary expense of the municipality, there will be no debt, if when the thing is done or furnished, there will be money in the treasury, yielded by current revenues, sufficient to fully pay the claim, without encroaching upon other funds."

Conceding, without deciding, that a fire alarm system is a necessary or ordinary annual expense of a municipality, and essential to its existence, yet appellee's claim is within the inhibition of the constitution. In this case it is not material whether the indebtedness came into existence on December 18, 1890, when appellee completed the work, and the same was accepted by appellant, or at the date of the contract,

August 5th, 1890. It is clear that the indebtedness came into existence December 18th, when the work was completed and accepted, if not before. There was not sufficient cash in the city treasury to pay said indebtedness at that time, and the constitutional provision was violated. But it is urged that the debt was not payable until May 1, 1891, and that there was sufficient cash in the treasury to pay the same at that time. The rule is that the cash must be in the treasury to pay the same when the debt comes into exist. ence, not when it becomes due (City of Valparaiso v. Gardner, 97 Ind. 8); otherwise, the city could issue bonds for borrowed money or other existing indebted. ness, or become so indebted in other ways, far in excess of the constitutional limit, and by making the same payable in annual installments, and each year levying and collecting sufficient taxes to pay the same, avoid the constitutional inhibition.

It was held by the Supreme Court of United States, in Doon Tp. v. Cummins, 142 U. S. 366, 12 Sup. Ct. Rep. 220, under the provisions of the constitution of Iowa, that when the bonds had been sold to pay off other bonds which were equal to the constitutional limit, and the money received for the new bonds was misapplied, and the old bonds not paid, the new bonds were invalid, and not collectible. To the same effect is Anderson v. Insurance Co., 88 Iowa, 579, 55 N. W. Rep. 348. This question, however, is not involved in this case, and it is not necessary to determine whether or not the same rule prevails in this State. It is the duty of persons dealing with public officers to take notice of their official and fiduciary character, and that they can only bind the public corporation they represent in the manner and to the extent authorized by law. Bloomington School Tp. v. National School Furnishing Co., 107 Ind. 43, 45, 7 N. E. Rep. 760, and cases cited: Julian v. State, 122 Ind. 68, 73, 23 N. E. Rep. 690; Honey Creek School Tp. v. Barnes, 119 Ind. 213, 217, 21 N. E. Rep. 747; Union School Tp. v. First Nat. Bank, 102 Ind. 464, 470, 2 N. E. Rep. 194. Appellee was required to take notice of the fact that appellant was indebted beyond the constitutional limit, and that the city, therefore, had no power to become indebted. Appellant had no power, under the facts stated in the special finding, to become indebted to appellee, and the common council had no power to ratify or validate the same, by resolution or otherwise. Doon v. Tp. v. Cummins, supra; Marsh v. Fulton Co., 10 Wall. 676; Daviess Co. v. Dickinson, 117 U. S. 657, 6 Sup. Ct. Rep. 897; Norton v. Shelby Co, 118 U. S. 425, 6 Sup. Ct. Rep. 1121; Kane v. Independent School Dist., 82 Iowa, 5, 47 N. W. Rep. 1076; Kelly v. Town of Milan, 127 U. S. 139, 8 Sup. Ct. Rep. 1101. The resolution of the common council adopted June 22, 1891, was therefore ineffective, and gave no validity to appellee's claim.

BILLS AND NOTES-SURETIES-DISCHARGEPAROL EVIDENCE.-In Gillett v. Taylor, 46 Pac Rep. 1099, decided by the Supreme Court of Utah, plaintiff brought his action upon a promissory note.

The defendant set up an affirmative defense, and offered to prove that, although he had signed the note as principal, he was in fact only a surety; that at, or shortly after maturity, without the knowledge or consent of defendant, the plaint

iff extended the time of payment; and that plaintiff knew, at the time the payment was extended, that defendant was only a surety. It was held, that the defense was proper, and the evidence offered was admissible; that where the payee of a promissory note, after having knowledge of the relation of suretyship existing between the joint makers, enters into a new agreement with the principal debtor to extend the time of payment, or do any act to continue the liability of the surety, without his consent, the surety is discharged, and that where a person signs a note as maker, but is in fact a surety, and there is nothing on the face of the note to show his true relation, he will be treated and considered as a principal with respect to all who have no notice of the suretyship; but, when. ever it is material in his defense to an action against him on the note, he may offer and prove by parol evidence that he made the note merely as surety, without consideration, and that such fact was known to the plaintiff before the equities through which such evidence became admissible arose. Upon the law of the case the court says:

This view of the law, herein expressed, we think, is supported by the weight of authority, both in Eng land and in this country. In Bailey v. Edwards, 4 Best & S. 761, Mr. Justice Blackburn, speaking of this doctrine, said: "The principle has been imported from the courts of equity into those of law." And Mr. Justice Coleridge, in Pooley v. Harradine, 7 El. & Bl. 431, speaking of the right of the surety to pay the debt when due, and to be subrogated to the right of the creditor to sue the principal, said: "Now does this right of placing himself, as it is said, in the shoes of the creditor, depend on a prior contract between the creditor and surety or an implied duty of the creditor not to injure the surety's rights when he knows the relation subsisting between him and his principal? We do not see that, by the doctrine as serted in courts of equity, the primary liability is at all altered. In truth, the defense, either at law or in equity, does not arise by any alteration of the original contract, which, indeed, it assumes and relies on in its original terms, but that the creditor cannot fairly or equitably sue the surety where, knowing of the existence of the relation of suretyship, he has voluntarily tied up his hands from proceeding against the principal." In Guild v. Butler, 127 Mass. 386, Mr. Chief Justice Gray said: "The fact that one debtor is surety for the other is no part of the contract with the creditor, but is a collateral fact, showing the rela tion between the debtors, and, if it does not appear on the face of the instrument, this fact, and notice of it to the creditor, may be proved by extrinsic evidence." So, in Bank v. Abbott, 28 Me 280, Mr. Jus tice Wells, delivering the opinion of the court, said: "Where the creditor makes an arrangement with one of several debtors, extending the time of payment of the debt, the others, by proving that such arrange. ment is injurious to them, because they are sureties,