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Central Law Journal.

ST. LOUIS, MO., OCTOBER, 12, 1900.

The status of Hawaii during the interval between the passage of the joint resolution of congress annexing the islands and the passage of the law declaring them United States territory, was considered in a decision rendered lately by the General Appraisers' Board of Classification. The specific question involved was as to the right of the government to assess duties on merchandise imported from Hawaii during the interval. The importers claimed that legislation continuing in force, tariff duties between the islands and the United States were unconstitutional, as being in violation of the clause of the constitution providing that duties shall be uniform throughout the United States. The board overruled the protest of the importers, but suggested that the question was one of sufficient importance to require the determination of the supreme court. Judge Somerville, who read the opinion, said that the opinions of the courts and of jurists on the question were in conflict, if not in inextricable confusion, but he held to the principle that a court should not pronounce an act of congress unconstitutional unless its incompatibility with the constitution was clear, decided and inevitable.

It is a common saying among laymen that law is not always justice, and even lawyers are often forced to confess that there is some justification for the feeling. A recent ruling of the officials of the bureau of immigration at Washington has impressed them with the belief that law and justice are sometimes strangely confused, and it seems that they have been vainly searching for some means by which they can evade an inexorable law and serve justice. It is the case of a Chinaman-Lau B. Dew-who has renounced his own country, sworn allegiance to this, and with full faith in the security of his citizenship, crossed the border of the country and is not now permitted to return to his wife and children, and the enjoyment of the property which he has accumulated here. The Celestial who occupies this unfortunate position

came to this country eighteen years ago. He decided to become an American citizen soon after he landed, so cut off his queue, bought American store clothes, and proceeded to learn the American language. After a while Lau sent for his wife, and she, too, learned English. The children born to them cannot talk any other tongue. Lau went into the Staunton, Va. court one day and took out naturalization papers like any other foreigner resolved to fores wear allegiance to potentates and monarchs. The judge who granted him the papers probably did not know that he had no right to issue them to a Mongolian, but he did just the same, and Lau fondly imagined that he was an American.

A year or so ago, after Lau had prospered well in business and laid up money in the bank, a longing took possession of him to visit his old Chinese home. He applied to the State department for a passport and sailed across the Pacific, promising to return soon to his wife and children. Now he has returned as far as Montreal and can get no further. There the immigration authorities took his passport away and told him to go back to China. The man has committed no other offense than imposing faith and confidence in the officers of the government which he had adopted. If he must now suffer for the error of the court which deceived him the government would seem to owe him some restitution.

Mr.

The English house of lords has recently affirmed the decision of Mr. Justice North, wherein was involved the unique question as to the validity of copyright of speeches published as against the speaker thereof. Justice North, it will be remembered upheld such copyright and granted an injunction restraining the defendant, a publisher, from infringing in a book he had issued their copyright in their reports of certain speeches of Lord Rosebery's-49 Cent. L. J. 219. The English Court of Appeal, on appeal, reversed this decision and now the house of lords in turn reverses the court of appeals and upholds Mr. Justice North. The lord chancellor said that he should very much regret if he were compelled to come to the conclusion that the state of the law permitted one man to make profit of, and to appropriate to himself, the labor, skill and

capital of another. It was not denied that n this case the defendant sought to appropriate to himself what had been produced by the skill, labor, and capital of others, and in his view the law was strong enough to restrain what, to his mind, would be a grievous injustice. The sole ground of the judgment of the court of appeal was that the producer of a speech, unless he were the orginal speaker, could not be an author within the meaning of the copyright act. This argument, he held, was based on too narrow and misleading interpretation of the word "author." Copyright was given by the statute to the first producer of a book, whether it were wise or foolish, accurate or inaccurate, of literary merit, or of no merit whatever. Lord Davey, in concurring with the lord chancellor, said that if The Times were claiming a property in the speeches themselves and seeking to prevent anybody else from publishing any other report of them, there would be cogency in the argument that the reporter was the reproducer and not the producer of the speeches. But the appellants only sought to prevent the respondent from multiplying copies of their own report of the speeches and availing himself for his own profit of the skill, labor and expense by means of which that report was produced and published, and to that claim he could not see that there was any answer. Lord James of Hereford and Brampton also gave judgments concurring with the lord chancellor. Lord Robertson differed, holding that, however skillful or well-qualified a reporter might be, he could not be considered an author within the meaning of the act.

NOTES OF IMPORTANT DECISIONS.

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CHARITIES-PUBLIC HOSPITAL-LIABILITY TO PATIENTS. In Powers v. Mass. Homeopathic Hospital, decided by the United States Circuit Court, District of Massachusetts, it was held that the fact that a public hospital, chartered as a charitable corporation, exacts or receives a pecuniary consideration from a patient, does not affect its character as a charitable institution, nor its rights or liabilities as such in relation to such patient.

It was further held that there is no liability on the part of charitable corporations, arising out of the method of administering the charity, to those who accept their bounty; that a patient in a public hospital, chartered as a charitable

corporation, cannot recover from such corporation for injuries resulting from the negligence of a nurse employed in its hospital. The court said in part:

"It is absolutely inconsistent with the underlying idea of charities, as recognized by the law, to hold that the same rule applies to a person employed for compensation to do a certain service as to the distribution of 'charity.' The person who enters a charitable hospital is not a contractor; neither is the hospital a contractor with that person. The person who enters is a mere licensee, like a guest who enters one's house, and who must take the service as he finds it. Assume that a person enters one's house and is taken with a severe sickness; assume that he is a stranger, and is suddenly taken with a severe sickness, and is received into one's house. Can one be held responsible for the selection of an incompetent surgeon or physician, or for neglect on the part of a servant, with reference to the care of that person? Pollock (Torts, 4th Ed. at p. 473), lays down what has always been held to be the law: "Invitation" is a word applied in common speech to the relation of host and guest. But a guest (that is, a visitor who does not pay for his entertainment), has not the benefit of the legal doctrine of invitation in the sense now before us. He is, in point of law, nothing but a licensee. The reason given is that he cannot have higher rights than a member of the household of which he has for the time being become, as it were, a part. All he is entitled to is not to be led into a danger known to his host, and not known or reasonably apparent to himself.' That is the precise rule which applies to a public charity. In this respect private charity and public charity rest on exactly the same ground, and there is no basis in either case to hold that the person who receives bounty is a contractor, a person contracting for service, as one of us engages service when we ordinarily employ a surgeon. He is, in law, only a licensee.

"Feoffees of Heriot's Hospital v. Ross, 12 C. & F. 506, came up in Scotland, and the lord ordinary decided in favor of the hospital. It went before the second division of the court of sessions, and the court of sessions decided in favor of the plaintiff. The house of lords reversed this, and restored the decision of the lord ordinary. This institution was founded to receive young children, and train them, by the beneficence of Mr. Heriot. In this case a boy claimed the right to be admitted to the hospital under the terms of the donation. He brought a suit, in the nature of a writ of mandamus, to require the corporation to admit him, and, inasmuch as the litigation might not be determined before the time when he could be admitted would have expired, relief was asked in the alternative that he might be allowed damages; and so the case went before the house of lords on the question of damages against the corporation for improperly performing its duty. I gather from the report that there was much

dissatisfaction with the administration of the hospital, and that this suit was brought for the purpose of compelling its managers to improve their methods through a public exposition that they were not acting in consonance with the purposes of Mr. Heriot, and not performing their duties as they ought to be performed. In other words, instead of applying to the officers of the crown to remedy the maladministration of a charity, this personal suit was resorted to. The issue was stated by the counsel for Ross as follows: If the trustees are made liable, they will be entitled to be repaid out of the trust fund, for this is a mistake in the administration of the trust fund, and is not like an improper and fraudulent act by trustees in direct violation and breach of their trust. They intended to carry out their trust, but have fallen into error in their mode of doing it.' In other words, the charge there was exactly the charge here; that is, negligence, and not willfulness. This case went off on the proposition that there was no fund from which to pay damages. By the terms of the donation the whole property of the corporation was held under an express trust for its support. But the point to which I call attention, and which is the proposition which ought to guide the courts, is the affirmation that an action of this kind was not known to the common law. Lord Campbell said: 'A doctrine so strange as the court below laid down in the present case ought to have been supported by the highest authority. There is not any authority for it, not a single shred to support it. No foreign or constitutional writer can be referred to for such a purpose.' Again he said: 'It is to be hoped we shall never again hear of a decision like the present, contrary to reason, sense and justice, and which is wholly unsupported by authority, and is contrary to the law of Scotland.'

"It is said in this case that there was a special contract. I need only refer again to the fact that the reception-the frequent reception-of money from patients does not change the nature of the institution; and the following out of that proposition necessarily leads to the conclusion that the reception of money from any particular patient does not change the nature of the service rendered that patient, so far as anything which we have here is concerned. What is received is well stated in the case of Gooch v. Association, 109 Mass. 558, 567, already referred to, as a proper contribution to a charity on the part of the person who makes the payment and receives the benefit of the charity. It is not received as compensation. It is not compensation in the sense of the law.

"Dr. Powers, who was the plaintiff's physician, testified that he understood that he contracted to receive what the hospital should give. That is the substance of his testimony. He was one of the surgical staff. He knew exactly what the hospital was doing. He knew its methods, and was thoroughly informed

of all the matters now before us, and yet he testified as we have said. If it were not so, the condition in law would be the same, because, this being a charitable corporation by express statute. any contract made by its officers which would impose a liability beyond that wbich the law raises would be ultra vires, and of no value.

"I do not wish anyone to accept the idea that, because this court denies a private suit, it gives encouragement to the unsuitable or careless management of this hospital, or any other. If such a condition of things should arise with any charitable corporation, the remedy is in the hands of the State. A public charity is subject to the visitation of the State, and, in Massachusetts, expressly subject to the visitation of the attorney-general, and provisions are made to remedy any maladministration. While I do not anticipate in this particular hospital any such necessity, yet I wish to be understood that any disposition of civil suits by the courts does not leave those who manage public charities free to neglect them. The true remedy in such cases is in the hards of the commonwealth."

MUNICIPAL CORPORATION - LIABILITY FOR TORTS OF OFFICERS.-The Court of Civil Appeals of Texas holds, in City of San Antonio v. White, that a city is not liable for trespass committed by its mayor, police force, and city physician in quartering and detaining a body of yellow fever suspects in plaintiff's hotel for six days, where such action was not authorized nor ratified by the city council. The court says in part:

"The acts detailed above, which are as the jury must have found the facts to be, constituted an unwarrantable trespass, for which the mayor and health officer were probably liable. A fact that is essential to the city's liability in cases of this kind is wanting, viz., the fact that the city was, or has made itself, a party to the trespass. There is absolutely no evidence from which it can be found that the city directed, or has ratified, the proceeding. A city is not liable for acts of its health officers, or for malfeasances or misfeasances, in the line of their public duties. Shear. & R. Neg., § 266; Bates v. City of Houston (Tex. Civ. App.), 37 S. W. Rep. 383, where the subject is discussed with ample citation of authorities; Gilboy v. City of Detroit (Mich.), 73 N. W. Rep. 128. The last case goes so far as to hold that the city would, in no event, be liable for such acts. We are of opinion that at least, without some testimony connecting the corporation with the transaction complained of, either by showing its previous direction, or participation therein, or ratification, there is no basis for any claim of liability against it. In the cases of City of San Antonio v. Mackey (Tex. Civ. App.), 36 S. W. Rep. 760, and City of Dallas v. Allen (Tex. Civ. App.), 40 S. W. Rep. 324, decided by this court, the liability of the city existed by reason of the direction or participation of the cities themselves. The ground of liability upon which appellant chiefly

relies is that the act complained of amounted to an appropriation of property for public uses, and that the city is bound to compensate plaintiff by force of the constitutional guaranty. We are of opinion that a city could not, under the guise of exercising a strictly governmental power, evade this constitutional provision. But it is clear that the act must be the act of the city in such a case. A city cannot be held liable for property taken or appropriated by a trespass with which it has no connection at all. The act complained of here was done by the mayor and health officer, and the city is not shown to have directed it, nor adopted it as its own. Dooley v. City of Kansas, 82 Mo. 444. We conclude that the fifth assignment was well taken, viz., error in refusing to charge the jury that the city was not liable for any wrong or trespass committed by its mayor, city physician or police officers, and therefore to return a verdict for defendant. Reversed and remanded."

DEED-CONDITION-LAND TO BE USED FOR PARTICULAR PURPOSE-FEE-SIMPLE.-The Supreme Court of Alabama holds, in Hunter v. Murfree, that within a statute of that State providing that every estate in lands is to be taken as a feesimple unless it clearly appears that a less estate was intended, a deed of land to trustees of a college, reciting that such trustees and their successors in office were to have and to hold the land to the use of said college, is not a grant to the college on condition that the land be used for educational purposes only, but is a grant in fee-simple and such land does not revert to the grantors and their heirs upon the removal of the college therefrom. The court says in part:

"So, then, in order to give the language such a construction, it must clearly appear that it was the intention of the grantors to convey a qualified fee. There are no usual and proper technical words in this deed such as 'provided,' 'so as,' or 'on condition' in connection with a clause of forfeiture or re-entry. Forfeitures or conditions in grants are not favored in law, and hence, independent of the statute, they must be clearly expressed. They are also to be construed with great strictness, because they tend to destroy estates; and the rigorous exaction of them is a species of summum jus, and in many cases hardly reconcilable with conscience.' Woodworth v. Payne, 74 N. Y. 196. At best, the intention of the grantors in this deed to make a condition that the lot should be used by the Howard College forever for school purposes only lies in mere inference and argument. Such a condition is not to be raised readily in this way. Co. Litt. 205b, 219b; 4 Kent, Comm. (6th Ed.), 129; Shep. Touch. 133; Merrifield v. Cobleigh, 4 Cush. 178, 184. While we have been unable to find any case decided by this court involving the question here under discussion, there are quite a number in other jurisdictions where the language in the conveyances was substantially the same as that

used in this deed. In Rawson v. Inhabitants of School Dist. No. 5, 7 Allen, 125, the grant was of land which had been used as a burying place to a town, by deed to 'the town of Uxbridge forever, to their only proper use, benefit, and behoof, for a burying ground forever.' The court held that the grant was not conditional, but the deed conveyed a fee-simple title. In Packard v. Ames, 16 Gray, 327, a deed of land was made to a number of persons incorporated as a religious society, habendum to them and their heirs and assigns, and to each and every person who may hereafter become lawful owners and proprietors of a pew in the meeting house to be built and erected thereon, and which may and shall afterwards be rebuilt thereon by the said proprietors and their successors, to the use and behoof of the said proprietors for the said purpose, and of each and every lawful owner and proprietor of a pew or pews in the meeting house to be built and rebuilt on the said lot of land, forever,' without any clause providing for forfeiture or re-entry, is not a grant upon condition that a meeting house shall be erected and maintained upon the land conveyed. In Chapin v. Harris, 8 Allen, 594, a grant of land adjoining a railroad, with the water power of a brook upon the land, running along by the side of the railroad, and the right of making a dam across the brook and abutting upon the embankment of the railroad, 'provided said dam shall be so built as to answer for a street to the railroad, and said street is to be opened three rods wide' across the granted premises to the railroad, and the grantee is to make the road,' is not a grant upon condition. In Episcopal City Mission v. Appleton, 117 Mass. 326, land was conveyed for nominal consideration to a religious society, its successors and assigns, ‘upon the subject to the condition' that the society was to continue to hold, occupy, and improve the land and chapel standing thereon, for the support of religious worship in conformity with the usage of the Protestant Episcopal Church, ‘and also upon the further condition' that no building should be erected upon a certain portion of the land conveyed until after an adjoining owner had ceased to keep open a contiguous strip of land, or until after such time as the chapel should cease to be used as a chapel in accordance with the above provision. It was held that the deed did not create a condition, but that the grantees got a feesimple title. In Taylor v. Binford, 37 Ohio St. 262, C, being the owner of land, conveyed it, for a valuable consideration, to a township board of education, its successors and assigns, 'for the use of school purposes only.' Held, that the grantees acquired a fee-simple title. In First Methodist Episcopal Church v. Old Columbia Public Ground Co., 103 Pa. St. 608, A covenanted with B, C, and D by an instrument under seal that he would, when they required, convey to them a certain piece of land in fee-simple in trust for the sole use of a company thereafter to be formed for supplying a certain borough with water, said

use.

The

ground to be for a reservoir of a certain size specified. B, C, and D covenanted that A should, upon erecting a hydrant at his own expense, have a supply of water from the reservoir for his The water company was formed, and B, C, and D released all their rights under the above agreement to said company, which thereupon constructed a reservoir of the size specified on the premises. Several years afterwards A constructed a hydrant, and drew water from the reservoir for his own use for a few years. He then discontinued the use of said hydrant, and subsequently died. Fifty years after the date of the original agreement, and twenty-five years after the discontinuance of the use of the hydrant, the water company abandoned the premises, filled up the reservoir, and conveyed the land to a religious corporation for church purposes. In ejectment against the church by purchasers from the heirs of A, held, that the agreement between A, B, C, and D did not constitute a base fee, determinable on the cessation of the use of the premises for a reservoir, but that it passed a feesimple. In Harris v. Shaw, 13 Ill. 456, the deed was made to certain persons therein named as county commissioners. The consideration was the location thereon of the county seat. habendum clause was in these words: 'To have and to hold the same, and all and singular, the premises above mentioned, and every part and parcel thereof, with the appurtenances, unto the said county commissioners for Tazewell, or their successors in office, and to the only proper use and behoof of the said county of Tazewell, forever.' The court held that the deed conveyed a fee-simple. In Brown v. Caldwell, 23 W. Va. 187, a grant of land for a consideration to a trustee, upon trust that the trustee 'shall at all times permit all the white religious societies of Christians, and the members of such societies, to use the land as a common burying ground, and for no other purpose,' is not a grant upon condition. In City of Portland v. Terwilliger, 16 Oreg. 465, 19 Pac. Rep. 90, the defendant agreed to convey land to the plaintiff, and plaintiff agreed that one-fourth of the land should be used as a cemetery, and to expend $400 in building a road to the same; that the proceeds of the sales of burial lots should be used in improving the grounds; and that one burial lot be conveyed to each of the grantors. A deed was executed pursuant to the agreement, upon the 'expressed terms, conditions, and reservations,' and in consideration that plaintiff perform such stipulations; but no right of entry was reserved, nor was it provided that said estate should cease on non-performance. The grantee was put in possession. Held, that such deed conveyed an absolute estate. In Sumner v. Darnall (Ind.), 27 N. E. Rep. 162, 13 L. R. A. 173, a deed to certain persons, 'commissioners of W county, and their successors in office, for the use of said county,' accepted by an entry upon the county records as a deed 'to and for the use of' said county, gives the legal title to the

county, and not to commissioners; also held that a conveyance 'for the use of' a county, in consideration of the seat of justice having been permanently established at a certain place, is not on condition subsequent that the county seat remain there, and no reversion is worked by removal of the county seat. There are a great many other cases which sustain the principles announced in the cases we have cited, but we refrain from reviewing or reciting them, for the reason that they are noted in those we have referred to.

"A short review of the cases relied upon by the appellants to support their contention will serve to show that they are either not in point or against the great weight of authority. In Scheetz v. Fitzwater, 5 Pa. St. 126, E conveyed to L a milldam or pond of water, with the site or soil of said pond, for the use and service of a mill (on the land of L), and for no other purpose. In Banking Co. v. Brown, 27 N. J. Law, 13, the deed was made to the Morris Canal & Banking Company, conveying all interest and estate of the grantor in the land and appurtenances to their only proper use, benefit, and behoof, as long as used for a canal.' In Kirk v. King, 3 Pa. St. 436, the conveyance was 'to the employers of a certain school, to hold the same for an English school house, and no other purpose.' To the same effect was the conveyance in Society v. Boland (Mass.), 29 N. E. Rep. 524, 15 L. R. A. 231. The case of Board of Education of the Incorporated Village of Van Wert v. Inhabitants of Van Wert, 18 Ohio St. 221, was a dedication of certain lots under a statute. In Agnew v. Jones (Miss.), 23 South. Rep. 25, a license was granted to build and use a school house, the land to revert to the grantor when the school was abandoned. There is a marked distinction between these eases and the one at bar. In each there were words in the deeds expressly limiting the use of the property to a certain purpose, and no other. The remaining two cases cited by appellants are Robinson v. Railroad Co. (Vt.), 10 Atl. Rep. 522, and Flaten v. City of Moorhead (Minn.), 53 N. W. Rep. 807, 19 L. R. A. 195. The former is a decision of the Supreme Court of Vermont and the latter of Min. nesota. In the first it was held that where the granting part of a deed would convey a fee, but to the description of the land granted was added the clause, 'for the use of a plank road,' this clause was a limitation upon the grant, and that only an easement was conveyed. In the second, independently of, but immediately following, the description of the conveyed premises in a deed containing, without any exceptions, the usual covenants of warranty, in which deed the grantee was a municipal corporation, its successors and assigns, and the expressed consideration a nominal sum, was this clause: 'Said tract of land hereby conveyed to be forever held and used as a public park.' The purpose of the conveyance was not stated elsewhere. Held, that upon the face of the instrument the municipality did not acquire an absolute title in fee to the premises.

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