Imágenes de páginas

and that the consideration of the note was, among the several states, and with the Indian pot the amount claimed in the second count, tribes." The statute permits the sale by ped. but was for the services rendered in the dlers of agricultural products of the United criminal action,

States without a license, while it forbids unThe rulings of the Chief Justice were licensed sales of agricultural products of therefore correct.

other countries. Many argicultural products Exceptions overruled.

are articles of commerce, and in this respect there is, in the statute, a discrimination in

favor of articles produced in the United (190 Mass. 355)

States. It has been held many times that COMMONWEALTH V. CALDWELL.

such an attempt at discrimination by a state (Supreme Judicial Court of Massachusetts.

is of no effect. Welton v. Missouri, 91 U. S. Essex. Feb. 28, 1906.)

275, 23 L. Ed. 347; Cook v. Pennsylvania, 97 1. HAWKERS AND PEDDLERS-LICENSING-CON.

U. S. 566, 24 L. Ed. 1015; Guy V. Baltimore, STRUCTION OF STATUTE—“PROVISIONS."

100 U. S. 434, 25 L. Ed. 743; Brown v. MaryTea and coffee are not provisions, within the meaning of Rev. Laws, c. 63, 88 15, 16, pro land, 12 Wheat (U. S.) 419, 6 L. Ed. 678; hibiting peddling without license, but excepting Com. v. Petranich, 183 Mass. 217, 66 N. E. the sale of provisions from the operation of the

807; Higgins V. Three Hundred Casks of act.

Lime, 130 Mass. 1; State v. Pratt, 59 Vt. 2. COMMERCE-REGULATION BY STATES—PED

590, 9 Atl. 556; State v. Furbush, 72 Me. DLERS' LICENSE LAW.

Rev. Laws, c. 65, 88 15, 16, permitting the 493. The cases enunciating the general docsale by peddlers of agricultural products of the trine in the Supreme Court of the United United States without a license, but forbidding

States are very numerous, and many of them unlicensed sales of agricultural products of other countries, are a regulation of commerce in are cited and reviewed by Mr. Justice Gray, conflict with Const. U. S. art. 1, § 8, providing in Emert v. Missouri, 156 U. S. 296, 15 Sup. that Congress shall have the power to regulate Ct. 367, 39 L. Ed. 430. While in many of commerce of foreign nations and among the

them the discrimination was against articles several states. [Ed. Note. For cases in point, see vol. 10,

coming from other states, the rule in referCent. Dig. Commerce, $ 107.)

ence to discrimination against articles of

foreign production is the same. In Cook v. Exceptions from Superior Court, Essex

Pennsylvania, 97 U. S. 566-573, 24 L. Ed. County; Francis A. Gaskell, Judge.

1015, Mr. Justice Miller said: “If a tax One Caldwell was convicted of peddling

assessed by a state, injuriously discriminatwithout a license, and brings exceptions.

ing against the products of a state of the Exceptions sustained.

Union, is forbidden by the Constitution, a W. Scott Peters, Dist. Atty., for the Com similar tax against goods imported from a monwealth. Henry T. Lummis and Chas. foreign state is equally forbidden.” In Guy N. Barney, for defendant.

V. Baltimore, 100 U. S. 434, 439, 25 L. Ed.

743, the general rule is stated by Mr. Justice KNOWLTON, C. J. The defendant was Harlan as follows: “It must be regarded as prosecuted, under Rev. Laws, C. 65, 8 16, settled that no state can, consistently with the for peddling tea and coffee without a license. federal Constitution, impose upon the proSection 15 of this chapter permits the sale ducts of other states, brought therein for of provisions without a license, and the sale or use, or upon citizens, because engaged first question in the case is whether tea and in the sale therein or the distribution thereto coffee are provisions, within the meaning of of the products of other states, more onerous this section. We think that they are not. public burdens or taxes than it imposes upon The word "provisions" as here used has been the like products of its own territory.” In ref. held to mean, "food, victuals, fare and prov erence to the contention that the general rule ender.” Com. v. Lutton, 157 Mass. 392, 32 N. should not apply after the imported goods E. 348; Com. v. Reid, 175 Mass. 325, 56 N. have been mingled with the general mass of E. 617. Tea and coffee are not used as food, property in the state, this is the statement of in the form in which they are sold by shop Mr. Justice Field, in Welton v. Missouri, 91 keepers. They are used to make decoctions, U. S. 275, 23 L. Ed. 347: “The commercial to be taken as a beverage for their agree power continues until the commodity has able taste or their stimulating effect. In this ceased to be a subject of discriminating legisrespect they are not very different from wine lation by reason of its foreign character., which in many countries are in com That power protects it, even after it has mon use at meals. We are of opinion that entered the state, from any burden imposed they are not included in the term "provi. by reason of its foreign origin.” We are of sions," in its ordinary sense, or in the mean opinion that the discrimination in this statute ing of this statute.

between agricultural products of the United The next question is whether the statute is States and agricultural products of other a regulation of commerce, in violation of countries, in reference to the requirement of article 1, § 8, of the Constitution of the a license to peddle them, renders the statute United States, which provides that: “The unconstitutional in this particular. Congress shall have power . . * to regu Other questions were raised by the defendlate commerce with foreign nations, and 'ant in regard to the constitutionality of the statute, some of which, in my opinion, well, Action by one Smith against the city of might be decided at this time. But a major- Lowell. From a judgment for plaintiff, ity of the justices do not think it necessary | defendant appeals. Affirmed. to the decision of this case, nor desirable, that

James Gilbert Hill, for appellant. Nathan they should now be considered, and we do

| D. Pratt and John Devine, for appellee. not consider them. Whether the unconstitutional part of the statute renders the whole

KNOWLTON, C. J. This is an action statute invalid, or leaves its other provisions

to recover a balance of salary claimed by in force, if there is no other valid objection

the plaintiff as a clerk of the board of police to them, depends upon whether it is so far

of the city of Lowell. The case was subseparable from the rest, and of so little comparative importance, that the Legislature pre

mitted on an agreed statement of facts, sumably would have enacted the other por.

which permitted the court to draw such tion without it, if the attention of the Legis

inferences from the facts as might properly lature had been directed to its unconstitution

be drawn by a jury. The superior court ality. See Edwards v. Bruorton, 184 Mass.

found for the plaintiff, and from the judg. 529, 69 N. E. 328; Com. v. Petranich, 183

ment on the finding the defendant appealed Mass. 217, 66 N. E. 807; Com. v. Anselvich,

to this court. 186 Mass. 376, 379, 71 N. E. 790, 104 Am.

On such an appeal, the only question of St. Rep. 590.

law open is whether there was any evidence Exceptions sustained.

in the agreed facts which would warrant the finding for the plaintiff. Davis v. Har

rington, 160 Mass. 278, 35 N. E. 771; Nor. (190 Mass. 332)

ton v. Brookline, 181 Mass. 360, 63 N. E.

930. The salary of the plaintiff was fixed SMITH v. CITY OF LOWELL,

by the board of police on December 31, 1901, (Supreme Judicial Court of Massachusetts. Middlesex. Feb. 28, 1906.)

at $1,800 per annum, and he has not been

fully paid at that rate. Under St. 1895, p. 1. APPEAL_AGREED STATEMENT OF FactsFINDINGS-REVIEW.

186, c. 187, creating this board, the board Where a case is submitted on an agreed has power, by the provisions of section 7 statement of facts with power on the part of

(page 187), to appoint a clerk, and impliedthe court to draw inferences, the only question

ly to fix his salary, which, by the terms of of law on appeal is whether there is any evidence in the agreed facts which warrants the the statute, cannot be less then $500 per finding.

annum. St. 1896, p. 364, c. 415, is “An act 2. MUNICIPAL CORPORATIONS-OFFICERS-PO to amend the charter of the city of Lowell," LICE BOARD-EMPLOYMENT OF CLERK-SAL

and by section 5 (page 365) of this chapter, ARY-AUTHORITY OF BOARD TO Fix. St. 1895, p. 186, c. 187, creates the board

"The heads of the several departments and of police of the city of Lowell. Section 7 offices shall have power to appoint and em(page 187) authorizes the board to appoint a

ploy, and to discharge, all subordinate of. clerk whose salary shall not be less than $500 per annum. St. 1896, p. 365, c. 415, $ 5, pro

ficers and employés in their respective de vides that heads of the departments shall have partments." "The appointment or employpower to appoint and discharge subordinates in ment of such an officer includes the fixing their respective departments. Held. that the

of his compensation, whether designated salary of the clerk fixed by the board at $1,800 per annum was binding on the city, unless the

as salary or wages, as well as the choice and validity of the board's act was affected by the naming of the appointee." Faulkner v. action of the council in regard to appropria Sisson, 183 Mass. 524-526, 67 N. E. 669. The tions.

board of police has always fixed the salary 3. SAME-APPROPRIATIONS FOR SALARIES-AP

of the clerk of the board since the office was PLICATION

St. 1896, p. 366, c. 415, $ 6, provides that created, and there is no question that the the heads of the departments of the Lowell vote to give the plaintiff a salary of $1,800 y government shall have the general manage

per year was binding upon the city, unless ment of all matters pertaining to their respective departments. Section 7 probibits the coun.

its validity is affected by certain action of cil from taking part in the employment of labor, the city council in regard to appropriations. etc. Section 8 provides that no sum appropriat Under St. 1896, p. 366, C. 415, & 7, and other ed for a specific purpose shall be expended for any other purpose. The council appropriated

sections, the city council is prohibited from $4,700 for the salaries of the police board and directly or indirectly taking "part in the clerk, and provided only $1,500 for his yearly employment of labor, the purchase of masalary. It appropriated $127,860 for "salaries

terial, the construction, alteration or repair and labor of police department," and this appropriation was subsequently increased so that

of any public works or other property, or in there was a balance of over $1,400 after paying the care, custody or management of the all labor and salaries. The police board had same, or, in general, in the expenditure of fixed the clerk's salary at $1,800 per annum. Held, that the appropriation for "salaries and

public money, or in the conduct of the exec labor of police department" could be used to

utive or administrative business of the city, make up the deficiency in the appropriation with certain exceptions immaterial to this specially intended for the clerk, and he was en case. By section 6 the heads of the several titled to the salary fixed by the board.

departments are given general charge and Appeal from Superior Court, Middlesex management of all matters pertaining to County; Wm. B. Stevens, Judge.

| their respective departments, except the

purchase of materials and supplies. Except , him was improperly incurred under section 8. under St. 1895, p. 187, c. 187, § 6, which Payment of this salary does not require that deals with the number of patrolmen and a "sum appropriated for a specific purpose the pay of police officers, the city council shall be expended for another purpose." has nothing directly to do with the manage The language of the appropriation should ment of the police department, or with the not be restricted to accomplish a purpose of expenditure of money in promoting its the city council in regard to a matter which objects. As was pointed out in Muldoon v. was outside of its province. The details City of Lowell, 178 Mass. 134-138, 59 N. E. of management and expenditure in the police 637, the act amending the city charter made department were intrusted to the board of very important changes in the method of police, subject only to the limitation containmanagement of municipal affairs in the city ed in St. 1895, p. 187, c. 187, § 6, and it was of Lowell, increasing largely the responsi. irregular for the city council to attempt to bilities of the executive department. But dictate in regard to salaries to be paid to the city council is left in control of the ap- particular subordinates. If improper paypropriations, and, under section 8 of this ments were made, the remedy provided by act, except in the expenditure for schools, the statute is of another kind. While the it may block the wheels of municipal action statute recognizes the right of the city counby withholding or limiting appropriations. cil to make specific appropriations, it does The language referred to is as follows: "No not contemplate that in these appropriations sum appropriated for a specific purpose shall it shall attempt to interfere with the manbe expended for another purpose, and no agement of the department, to the extent expenditure shall be made and no liability of stating the sums to be paid as wages or shall be incurred, by or on behalf of the city, salaries to particular clerks or employés. until the city council has duly voted an ap Without attempting to determine what subpropriation sufficient to meet such expendi divisions are permissible in making specific ture or liability, together with all prior un. appropriations, we are of opinion that the paid liabilities which are payable therefrom, 1 appropriation for "salaries and labor of except that, after the expiration of the fi police department" could lawfully be used nancial year and before the making of the to make up a deficiency in the appropriation regular annual appropriations, liabilities specially intended for the salary of the payable out of the regular appropriation clerk of the board. For another case in may be incurred to an amount not exceeding which this statute has been considered, see one-sixth of the total appropriation made Stratton v. City of Lowell, 181 Mass. 511, for similar purposes in the preceding year." 63 N. E. 948.

The vote of the city council that “The Judgment for the plaintiff. joint committee on appropriations shall de termine, in their annual appropriations, the

(190 Mass. 388) amount to be allowed for clerical assistance," had no effect to fix the salary of the

MeMAHON V. CITY OF BOSTON. plaintiff, for the city council had no juris

(Supreme Judicial Court of Massachusetts. diction to determine his salary. Its only

Suffolk. Feb. 28, 1906.) effect was upon the amount of the appro- | 1. MUNICIPAL CORPORATIONS - DEFECTS IN priation. The appropriation "of $4,700 for


TIONS-QUESTION FOB JURY. salaries of police board and clerk of police

In an action for injuries from defects in a board," which was subsequently made, pro walk crossing a street which was undergoing vided only $1,500 for the plaintiff's salary for repairs, an instruction that defendant was not the year, and, if there were no appropriation

liable to a person attempting to cross where no

barrier was encountered, if the street was propout of which his salary could lawfully be paid,

erly protected by barriers at the ends of the the city would not be liable for any more than part under repair and at the cross-streets, was this sum. But the city council also appropri

properly refused as in effect stating that the ated “$127,806 for salaries and labor of police

barriers, if found to exist, were sufficient, while

the existence and sufficiency of the barriers department." This was subsequently in were both questions for the jury. creased by an additional appropriation of [Ed. Note-For cases in point, see vol. 36, $225, and there were receipts from other | Cent. Dig. Municipal Corporations, 8 1749.) departments for services of officers such 2. SAME_CONTRIBUTORY NEGLIGENCE. that there was a balance of $1,470.38 in the

In an action for injuries from defects in a

cross-walk, an instruction that, if the plaintiff appropriation, after paying for all labor and

knew that part of the street had been undergosalaries, except the balance of $300 claimed ing repair, it was contributory negligence for by the plaintiff. The plaintiff's salary was her to attempt to cross without ascertaining one of the salaries of the police department,

+ whether the work was completed and the cross

ing safe, was properly refused, where she testiand this appropriation was properly appli. fied that she looked before crossing and thought cable to the payment of his salary, as well it was all right and the evidence as to the conas any other salary of the department.

dition of the crossing was in conflict; the ques.

tion of contributory negligence in the case beThere was no insufficiency of appropriations

ing for the jury on consideration of all the facts. that could lawfully be used in paying his salary, as it was fixed by the board of police,

Exceptions from Superior Court, Suffolk and it does not appear that the liability to County; Loranus E. Hitchcock, Judge.

Action by Ann McMahon against the city , able and proper, was one of fact for the jury, of Boston. Verdict for plaintiff, and de and was left to them under suitable instrucfendant excepts. Exceptions overruled. tions. See Jones v. Collins, 188 Mass. 53,

74 N. E. 295. J. C. Johnston, for plaintiff. Philip

The other instructions requested related to Nichols, for defendant.

the plaintiff's due care and her right to re

cover upon all the evidence. The defendant MORTON, J. This is an action of tort

asked the court to rule that if the plaintiff to recover for personal injuries sustained

knew that that part of the street, where she by the plaintiff by reason of an alleged de

was injured, had been under repair and closed fect in Blue Hill avenue, a public highway

| to travel, it was contributory negligence for in the defendant city. There was a verdict her to attempt to cross without first ascertainfor the plaintiff and the case is here on ex

ing whether the work had been completed and ceptions by the defendant to the refusal of

the crossing was safe, and that, on all the the court to give certain rulings that were

eridence, she could not recover. The fact requested.

that the plaintiff knew that the street bad The accident occurred on Sunday, June

been under repair and closed to travel would 30, 1901, at about 10 a. m. The plaintiff

not, of itself, be conclusive against her right had been to church and was on her way

to recover. Norwood v. Somerville, 159 Mass. home. She lived on Quincy street, which 105, 33 N. E. 1108; McGuinness v. Worcester, crossed Blue Hill avenue at right angles. I 160 Mass. 272, 35 N. E. 1068. And she testiBlue Hill avenue runs nearly north and

fied that “she looked to see before she crosssouth. The church was on the easterly side

ed the street; it was all clear, all right, as of the avenue about two blocks north of

she thought; .

that the east side Quincy street, and her home was on the

was completed, and she thought the west northerly side of Quincy street, about the side was." It is true that the jury might dissame distance westerly of Blue Hill avenue. believe her. But it would have been error When she went to church she came down to instruct them as matter of law that it Quincy street, and up the westerly sidewalk would have been contributory negligence or of the avenue, crossing opposite the church. | lack of due care on her part to attempt to Returning, she came down the easterly side

('ross without ascertaining whether the work 'walk till she reached Quincy street, where she had been completed and the crossing was attempted to cross. She crossed on a cross safe, if she knew that the street had been walk of flagging over the easterly part of the

closed and undergoing repairs. Whether street and over the car tracks, but some she was in the exercise of due care depended where between the last rail and the westerly upon a consideration of all of the circumsidewalk, fell, and received the injuries com stances, of which her knowledge that the plained of. Blue Hill avenue was being re- | street was undergoing repairs was one. It paired and was torn up northerly of Quincy may be that there are cases in which the street; but the easterly roadway between

presence or absence of a single fact is so conthe car tracks and the sidewalk had been

trolling as to be decisive one way or the other finished. One question was whether the on the question of due care. But we do not defendant had put up suitable barriers to think that could be said of the plaintiff's warn the public of the condition of the neglect in this case, if she did neglect, to asstreet. The plaintiff testified that on her certain whether the work had been completed right, as she crossed (that is, on the norther and the crossing was safe before she attempt. ly side of the crossing), there was no horse, ed to cross. The evidence as to the condition or barrier, that there was none across Quincy of the crossing at the westerly end was constreet, and that on her left (that is, on the flicting. Several witnesses, one of whom was southerly side of the crossing) she did not the subforeman of the paving department of notice, but did not think there was any bar the defendant city and inspector of the work rier. The defendant concedes that the evi of repairing the avenue, and the others police dence was conflicting on this point, and that officers, testified that the flagstone crossing there was sufficient testimony to justify had been completed before the accident, and the jury in finding that there were no bar that at no time was there a temporary crossriers. But it contends that its request, that ing of paving stones. Other witnesses testithe defendant was not liable to a person at fied that there was a temporary crossing of tempting to cross where no barrier was en paving blocks. The plaintiff's testimony left countered, if the jury found that the street the matter in doubt. If, as the defendant was properly protected by barriers at the two contends she climbed down into the excavaends of the part under repair and at the tion and stumbled over heaps of material that cross-streets, should have been given. But had been brought or left there, it is clear that to have given the instruction thus requested she would not be entitled to recover. But it would have been saying to the jury, in effect, was for the jury, we think, to say what the that as a matter of law such barriers, if condition was, and whether, taking it as they found to exist, would be sufficient. The found it to be, the plaintiff was in the exquestion whether there were barriers ercise of due care in attempting to cross. there, and, if so, whether they were reason-| Exceptions overruled.

(190 Mass. 326)

| auditor found that the mortgage was given WASSERMAN v. MCDONNELL

for the consideration therein named, and (Supreme Judicial Court of Massachusetts was not in fraud of creditors at common Bristol. Feb. 27, 1906.)

law. After giving the mortgage the mort1. FRAUDULENT CONVEYANCES – SALES IN gagor remained in possession of the goods,

BULK – STATUTORY PROVISIONS — APPLICA as he had a right to do under a clause in the
St. 1903. p. 389, c. 415, prohibiting the sale

mortgage reading as follows: I am to of merchandise in bulk in fraud of creditors, has

sell in my usual course of business, the stock no application to a sale of a stock of goods in trade covered by this mortgage, and this under a duly recorded mortgage of the stock, given for a valuable consideration and free from

mortgage shall apply to all future acquired fraud.

stock that I shall have in my business." [Ed. Note.—For cases in point, see vol. 24, The possession of the mortgagor continued Cent. Dig. Fraudulent Conveyances, 8 34.] until four or five days prior to July 12, 1904, 2. CHATTEL MORTGAGES-PROPERTY COVERED when the mortgagee, through his attorney, -AFTER-ACQUIRED PROPERTY. While property acquired after the delivery

gave written notice of foreclosure to the of a chattel mortgage does not pass to the mort mortgagor and took possession of the propgagee as against attaching creditors and sub erty for a breach of the conditions of the sequent vendees or mortgagees, yet a provision

mortgage. On July 12th the mortgagee in such a mortgage that it shall cover after-acquired goods operates as an executory agreement

sold the mortgaged property in one lump that such goods shall be holden by the mort by public auction. The auctioneer put out gagee as security, when acquired by the mort

a red flag the usual time before the sale, gagor and the mortgagee may take possession of such goods before the rights of third per

and the fact of the sale was known beforesons intervene without regard to claims of cred hand in the neighborhood. There was no itors which have not been asserted by an attach written advertisement of the sale. There ment or by seizure upon execution.

were 10 or 12 persons at the sale, and the [Ed. Note.–For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, 88 208, 209.)

auctioneer cried out the goods in the usu

al manner. The plaintiff made the highest 3. SAME-FORECLOSURE-RIGHTS OF PURCHASERS.

bid, of $875, and the goods were knocked A sale of goods under a power of sale con down to him. There were other bids, tained in a chattel mortgage is not invalidated among them bids of $700 and $800. The as against a purchaser for value by an irregu

mortgagor was present at the sale and a larity in the execution of the power of sale. 4. SAME-MODES OF FORECLOSURE-STATUTORY

consenting party to all proceedings. The REQUIREMENTS.

plaintiff paid for the stock and took imRev, Laws, c. 198, 8847, authorizing the mediate possession thereof, and remained foreclosure of chattel mortgages in a certain

in undisturbed possession until the taking manner, requiring, among other things, that the notice of intention to foreclose be recorded, and by the defendant on August 4, 1904. At the providing for a redemption from foreclosure, | time of the sale there were two creditors have no relation to a foreclosure under a power

of the mortgagor other than the mortgagee. of sale contained in a mortgage, and such a

One was the landlord of the shop, to whom sale is not invalidated by the failure to record the notice of foreclosure.

$10 was due for rent, and the other was

Laura Lambert, who on July 8, 1904, had Appeal from · Superior Court, Bristol

obtained a judgment against Holshanetzky County; Edward P. Pierce, Judge.

for $15 and costs. On August 4, 1904, the Action by David Wasserman against Mi

defendant seized a portion of the goods on chael McDonnell. From a judgment for

an execution issued in the above-named suit plaintiff, defendant appeals. Affirmed. of Lambert v. Holshanetzky. The defend

Frank Wasserman, for plaintiff. Asa ant removed the goods, and they did not Auger, for defendant.

again come into possession of the plaintiff.

The auditor found that the sale was conLATHROP, J. This is an action of tort ducted properly and in good faith, and that against a constable for the conversion of cer the plaintiff was a bona fide purchaser for tain goods alleged to belong to the plaintiff. value, without notice of any irregularity. In the superior court the case was sent to 1. The first contention of the defendant is an auditor, under an agreement of the that St. 1903, p. 389, C. 415, applies to a mortparties that the findings of fact by the au gage, and the foreclosure thereof. The act ditor should be final. The auditor found for is entitled: "An act to prohibit the sales the plaintiff in the sum of $38.26, with in. of merchandise in bulk in fraud of creditterest from August 4, 1904. On motion of ors." We are of opinion, however, that this the plaintiff, a justice of the superior court act has no application to the case at bar. ordered judgment for the plaintiff, and the The object of the statute was to protect case is before us on the defendant's appeal. creditors against fraudulent sales. Here no It appears from the auditor's report that ou fraud was shown. The mortgage was on February 5, 1904, one Holshanetzky owned six months' time, and was given for a valua stock of dry goods in a shop in New Bed able consideration. It does not appear that, ford, and on that day executed and deliv when it was given, the mortgator had any ered to one Stern a chattel mortgage of creditors except the mortgagee. The mortsaid stock, which was duly recorded. The l gage was duly recorded.

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