« AnteriorContinuar »
judicial organization. The bill provides for the v. Collins, 13 Eng. L. & Eq. 331; Claredge v. Evelyn, formation of a Supreme Court, consisting of seven | 3 B. & A. 81. judges, who are to be new appointees, the members of the present court being eligible for reappoint- In Mc Caskell v. State, 53 Ga. 510, McCaskell, the ment. The proposition to legislate out of office the defendant below, was indicted for violation of a present judiciary is wrong, and will not, we think, statute requiring any person engaged in practice as be retained in case the bill in its other features a lawyer to procure a license, for which he reshould receive the approval of Congress. Nor do quired to pay to the State a specified sum, and making we see that it is essential to the abolition of the old the failure to comply with the requirement was punforms of procedure that the court should be abol ishable by fine and imprisonment. Defendant demurished also.
red to the indictment, on the grounds that the law re
quiring such license impaired the contract made with NOTES OF CASES.
him by the State when he was admitted to practice,
and was, on that account, in violation of the FedThe case Golding's Petition, 57 N. H. 146, in
eral and State Constitution; that the license obvolves a somewhat curious question. The petitioner,
tained on his admission was a franchise, and could who was imprisoned upon the warrant of a person
not be taxed except by an ad valorem tax, and that exercising the office of justice of the peace, claimed
the obligation to take out and pay for a license was such imprisonment to be unlawful upon the ground
merely an obligation to pay a debt, and to make tbat the person issuing the warrant was under
non-payment of it punishable by fine and imprisontwenty-one years of age, and could not, therefore, act
ment was a violation of a provision in the State as justice of the peace. The court held the claim
Constitution forbidding imprisonment for debt. The valid upon the ground that an infant cannot exer
trial court overruled the demurrer on every point, cise the functions of a judicial office, and that the
and its decision was sustained by the Supreme office of justice of the peace is such an office. The
Court. The right of the State to tax particular case of Morse v. Graves, 3 N. H. 408, where the sub
callings has been sustained by numerous decisions, ject what offices an infant may hold is very fully
and the legal profession is not excepted from considered, is followed. It is there said that it has
the general rule. In Ould v. City of Richmond, 14 always been held that an infant cannot exercise the
Am. Rep. 139, a city ordinance divided the lawyers cffice of a judge. The court says that “offices
of the city into several classes, and imposed upon where judgment and discretion and experience are those belonging to each class a specified tax, and essentially necessary to the proper discharge of the this ordinance was held valid by the Supreme Court duties they impose, are not to be intrusted in the l of Appeals of Virginia
of Appeals of Virginia. As to such a tax being a hands of infants. But they may hold offices which violation of a constitutional provision against uneare clearly ministerial, and which require nothing qual taxation, see State v. Cassidy, 21 Am. Rep. 765, but skill and diligence." See, also, Scambler v. where a statute requiring all liquor dealers to Waters, Cro. Eliz. 636, Coke Litt., B. 3, note 15. It take out a special license in addition to all other has been held that an infant may be a mayor (Cro. licenses required by law, and to pay ten dollars Car. 556), but he cannot sit in the House of Lords therefor, was held by the Supreme Court of Minneor be elected to the House of Commons, or be a sota not invalid on such a ground. That a tax is juror or bail (Hob. 325; Jenk. 319). He cannot be a not a debt, in the sense of the clause of the Consticommon informer nor a sheriff's officer in England tution forbidding imprisonment for debt, though in (Maggs v. Ellis, Buller's N. P. 196); nor a clerk of a general sense it may be, is shown by the fact that the court of requests (Rex v. White, 2 Selw. N. P., it is not created by contract, and is not the subject 1,068, n.); but he may be clerk of the peace (Crosby of set-off (Finnigan v. City of Fernandina, 21 Am. v. Hurley, 1 Alcock & N. 431). In Connecticut he Rep. 292), and when required by the State to be cannot serve an ordinary writ (Tyler v. Tyler, 2 paid in coin, Congress has not the power to make Root, 519), but in New Hampshire he can act as it solvable in legal tender notes (County of Lane deputy sheriff (Morse v. Graves, supra), and in Ver v. Oregon, 7 Wall. 71). See, also, City of Augusta mont, also (Barrett v. Seward, 22 Vt. 176). In Eng- v. North, 57 Me. 392; 2 Am. Rep. 55, where it is land he may act as jailer, and the statute extends so held not a debt, within the clause of the Constitufar as to charge him in an action of debt for the escape tution prohibiting the passage of a law impairing of one in execution. Shrewsbury's Case, 9 Coke Rep. the obligation of a contract. Also, Pierce v. Boston, 48; Reynold's Case, id. 97; King v. Dilliston, 2 Mod. | 3 Metc. 520; Shar v. Peckett, 26 Vt. 482; Harrison 222. He may, by the common law, be an executor v. Willis, 19 Am. Rep. 604, where a tax on a lawat the age of seventeen. Piggott's Case, 5 Coke, 29. suit was held valid; and State v. County CommissionSee further upon the subject, Curle's Case, 11 Coke, ers, 19 Am. Rep. 641, where a tax on litigants was 4a ; Halliburton v. Leslie, 2 Hogan, 252; Edlestone likewise so held.
| building, the same shall be settled forth with by ARBITRATION AS A CONDITION PRE
arbitrators in the usual way.” Upon this the court CEDENT.
briefly remark: “ The agreement to arbitrate only To exactly what extent it is lawful for parties to entitled the party to damages.” This case has been 1 contracts to agree to submit their differences to deemed the leading one on this point in our Court arbitration, rather than to abide the decision of the of Appeals, but after all it seems a little like the ordinary legal tribunals, has given the courts a good famous Kettle case, where the defendant, sued for deal of trouble to determine. Some confusion has breaking a borrowed kettle, pleaded, first, that he arisen from the failure to distinguish between arbi- | never had the kettle; second, that it was broken tration as a means of ascertaining facts or measuring when he got it; third, that it was whole when he values, and arbitration as a means of settling dis- | returned it. The court, after firstly laying down putes. The former is permissible; the latter only in the law as above quoted, proceed secondly to say, a limited manner. The difference in question is that as the action is for the last installment due on well defined by Allen, J., in Pres't, etc., D. & H the completion of the work, “this subject is not Canal Co. v. Pa. Coal Co., 50 N. Y. 266: “In one within the letter or spirit of the covenant to arbiclass the parties undertake by an independent cove trate;" and thirdly, that there had actually been a nant or agreement to provide for an adjustment and submission to arbitrators, but they neglected to settlement of all disputes and differences by arbi- | make an award within the prescribed time, which tration, to the exclusion of the courts, and in the certainly was no fault of the plaintiff. One or other they merely, by the same agreement which another of these grounds is probably obiter, but the creates the liability and gives the right, qualify the case has been generally received as adjudging the right by providing that before a right of action shall | doctrine which we are examining. From the two accrue certain facts shall be determined or amounts lines of Judge Gardiner in this case, in 1851, to the and values ascertained, and this is made a condition | eight pages of Judge Allen in the case first cited, in precedent either in terms or by necessary implica- | 1872, there is a remarkable crop of authorities. tion.” A familiar example of the latter class is the The next important case is Hurst v. Litchfield, 39 certificate of an architect or an engineer in a build- N. Y. 377, A. D. 1868. The syllabus is as follows: ing contract. Of this latter class Judge Allen says: "A stipulation in a written contract for building, “the condition being lawful, the courts have never etc., that in case any question arises under such hesitated to give full effect to it.” This sort of contract in relation to the work, both as to the value arbitration extends not only to values and amounts of work added or deducted, the same shall be ascertainable by measures and computations, but adjusted by the architect," is not binding, being also to damages, as, for instance, under a policy of against the policy of the common law, and having a insurance. Thus, in Scott v. Avery, 5 H. of L. Cas. tendency to exclude the jurisdiction of the courts 811, the substance of the decision is thus (rather provided with ample means to entertain and decide awkwardly) expressed: “Can a shipowner and an legal controversies.” This is the language of Judge insurer enter into a valid agreement that the ship Mason. It appears, however, to be quite obiter, for owner shall pay down a given sum, and that in con his opinion commences thus: “The referee having sideration of such payments the insurer upon the | found that no question ever arose under this conloss of a given ship shall pay to the said owner, not tract between the parties in relation to the value of the amount of the loss sustained by her through the the work, and there being evidence in the case to perils of the sea, but only such sums of money as sustain such finding, we must receive the finding of shall be settled and ascertained by arbitration ? I the referee as conclusive upon this court as to this am not aware of any legal objection to such a con- | | fact. The objection, therefore, that this action cantract, whatever may be thought of its prudence. not be maintained, because this matter had not been And I think the effect of such a contract is, that no submitted to the architect, and his adjustment proaction lies for the breach of it until the same has cured, is not well taken," and the court then unbeen ascertained by arbitration.” In all these cases, necessarily continue: “There is, bowever, another it will be noticed, there is not necessarily any dis
answer to this objection." The court say, also pute or difference to be settled. Therefore, “arbi (unnecessarily, however), “Where an agreement tration” is perhaps hardly the appropriate word to | makes the procurement of the architect's certificate apply to them.
a condition precedent to any right of action, then It is equally well settled that the first class of the rule is as claimed by the defendant in this case, arbitrations described by Judge Allen in the above but such is not the agreement between these parquotation is invalid and illegal. This was authorities.” tatively declared in Haggart v. Morgan, 5 N. Y. 422. We next come to the case which we first menThis was a case of a building contract, containing | tioned, decided in 1872. The court observe at the the following provision: “In case any dispute outset: “It appears to be well settled by authority, should arise concerning the work or finish of the that an argument to refer all matters of difference
or dispute that may arise to abitration, will not oust no express declaration in the contract that the proa court of law or equity of jurisdiction.” This rule, vision shall be deemed a condition precedent is they say, is by some traced to the jealousy of courts, necessary; and, second, that a provision in a contract and by others to their aversion, from reasons of that a disagreement on a particular point, not expublic policy, to sanction such contracts. The tending to all matters of difference arising under court think that where the parties stand upon an | the contract, is valid, and effectual as a condition equal footing, and there is no charge of frand, it precedent. would be difficult, if the question were a new one, We now pass to the most recent adjudication on to assign any good reason why such a contract this subject, Mentz v. Armenia Fire Insurance Co., should not be approved. But after reiterating that 79 Penn. St. 478; 21 Am. Rep. 80. A policy of fire inthe doctrine laid down is too well settled to be | zurance was conditioned that in case of difference questioned, the court declare that the better way is between the assured and the company, touching the to give effect to contracts, lawful in themselves, amount of any loss, such difference should be subaccording to their terms and the intent of the par-mitted to arbitrators, whose decision should be final ties, and that any departure from this principle is and conclusive, and no action was to be maintained an anomaly in the law, not to be extended or applied on the policy unless the amount of loss or damage to new cases unless they come within the letter and in case of difference or dispute shall be first ascerspirit of the decisions already made,” and that “the tained. It was held that the condition did not oust tendency of the more recent decisions is to narrow the court of jurisdiction of an action on the policy, rather than enlarge the operation and effect of prior and that, if the condition was of any effect, the comdecisions, limiting the power of contracting parties pany must show that they admitted the validity of to provide a tribunal for the adjustment of possible the policy, and their liability under it, and that the differences, without a resort to courts of law; and only question was as to the extent of the loss. The the rule is essentially modified and qualified." The court admit the well-settled doctrine as to a general court then proceed to pronounce the expressions on arbitration clause, and the distinction between such this point, in Hurst v. Litchfield, to be obiter, and as a case and the requirement of the certificate of a resulting from an omission to discriminate between particular person to the amount of a claim. The covenants ousting courts of jurisdiction, and those court express this distinction most admirably: “He merely providing for the settlement of specified dis- is not created a judge or arbitrator of law and facts, putes or the ascertainment of values or quantities pre- / but simply an appraiser of work done." In regard liminary to a cause of action. In regard to a pro- to the express provision that no action should be vision making such an arbitration a condition maintained on the policy unless the amount of loss precedent, they very pointedly observe: “Whether should be first ascertained by arbitration, the court the determination of the amount and value of the say: “If, however, it was not in the power of the work is a condition precedent to a right of action, parties to oust the courts of their general jurisdicdepends entirely upon the interpretation of the tion, by such an agreement, that clause does not whole contraet." In this case, the provision was | help them. Had a general arbitration clause been that the defendant was to pay certain additional valid, it would have been a condition precedent to tolls, which, if the parties could not agree upon an action of itself; the provision in question is but them, were to be ascertained by an arbitration. the expression of that which was implied.” The After an elaborate review of all the principal validity of the clause as a provision for a special, authorities, the court pronounce this a valid pro- | rather than a general, arbitration, was recognized, vision and condition precedent, remarking: “The but it was held that it was incumbent on the insurdefendant only undertook to pay such rate of toll as ers to admit the validity of the policy and their should be established, as prescribed in the instru- liability under it, and to limit the questions to the ment, and cannot be compelled to acquiesce in the amount of the loss. determination in any other manner, and until a rate We deduce these principles from the decisions: is established, no liability is incurred under the con 1 1. A general provision for the submission to arbitract or right of action given. This mode of ad- tration of any or all disputes that may arise under a justment and settlement of the rate is a part of the contract is invalid. agreement for the additional toll, and modifies and 2. A provision for the submission to arbitration of qualifies the reservation of the right so that the a disagreement on any particular specified point is right does not attach until the same is established. valid. The determination and adjustment is a condition 3. No express words are necessary to render such precedent to the right to demand and receive the a provision a condition precedent. toll, and no action will lie until the condition has 4. The doctrine first above mentioned is not been performed." This case, therefore, is an favored in the law, but the modern tendency is in authority for two propositions, namely: first, that favor of letting parties choose their tribunal.
LIABILITY OF GAS COMPANIES FOR EXPLO
The plaintiff had been for a long time aware that the SIONS OF GAS.
gas had escaped and was escaping into his cellar and
finding its way into other parts of the building, and THE question of the liability of a gas company for
must be presumed to have known that it would necesI damages arising from the explosion of gas which
sarily accumulate in larger quantities and in a more has escaped from the service pipes introduced by the
condensed form in the cellar but seldom opened, and gas company into the premises of a customer has re
but for short periods of time. He must be held to cently been considered by the Court of Appeals, in
have known the danger of bringing a burning lamp or Lanigan against The New York Gas-light Co., not yet
a lighted match in contact with this free gas, and to reported. The case was tried before John B. Lawrence, Esq.,
be responsible for a disregard of the peril. If he heedreferee, in the city of New York, and from his report
lessly or recklessly exposed himself or his property to
the danger, he must abide the consequences. it appears that the defendant had supplied gas to the
“The maxim volenti non fit injuria applies in all its plaintiff at his request by means of a service pipe enter
force to one who heedlessly and voluntarily exposes ing into the cellar of the plaintiff's premises and con
his person or property to apparent danger or peril. nected with a main pipe of the defendant laid under
The question was, whether, under all the circumstances, the street; that several months before the explo
the action of the plaintiff was that of a man of ordision the plaintiff discontinued the use of gas, and at
nary prudence and discretion, and if they were not, that time the defendants removed the meter and
and the injury resulted from such action, he had no undertook to close and fasten up the aperture in the
claim upon the defendant." See Lannen v. Albany service pipe; that, in consequence of the negligent
Gas-light Co., 44 N. Y. 459; Holden v. Liverpool Gas manner in which said aperture was closed, the gas es
Co., 3 C. B. 1. caped into the plaintiff's cellar; that, although repeated notices were given to the defendant, the gas
STATE LEGISLATION IMPAIRING THE OBLIcontinued so to escape; and that August 9, 1870, two
GATION OF CONTRACTS. of the plaintiff's servants, by his direction, went into the cellar and lighted a match, whereupon an explo
SUPREME COURT OF THE UNITED STATES - OCTOsion occurred which resulted in so injuring the two
BER TERM, 1877. servants that they died, and in doing serious injury to the plaintiff's property.
STATE OF NEW JERSEY, plaintiffs in error, v. YARD. The learned referee reported that the defendant was
1. A statute of a State which declares that all charters of not liable for the consequences of the explosion for the corporations granted after its passage may be altered, reason that the negligence of the plaintiff's servants,
amended or repealed by the legislature, does not neces
sarily apply to supplements to a charter already passed, in introducing a light into the cellar, intervened be though the supplement be subsequent to the statute. tween the negligent act of the defendant and the ex
2. Nor does a provision in a supplement to the charter,
which says that "this supplement, and the charter to plosion, and contributed directly thereto.
which it is a supplement, may be altered or amended by On appeal, the General Term of the New York Com
the legislature apply to a contract with the company
made in a supplement passed long after. mon. Pleas reversed the judgment appealed from. | 3. Such reservations of the right to repeal found in statJudge Robinson, in the prevailing opinion in which
utes, unlike similar provisions in the constitution of a
State, are only binding on succeeding legislatures so far Judge Van Brunt concurred, says: “This very antago as they choose to adopt them, and a legislative contract nistic position of the parties, the defendants as the
may be made which is not repealable if the legislature
so intend. It is, therefore, in every case a question persistent aggressors and trespassers after full notice whether the legislature making the contract intended of the constantly recurring injury they were inflicting
that the former provision for repeal or amendment
should become a part of the new contract by implicaas against the plaintiff, who was the sufferer or person tion. incommoded through the injury that was being con
4. In this case the contract of 1865 for a specific rate of
taxation was inconsistent with any such implication, tinuously and willfully perpetrated upon him, deprives because : the case of any such ground of defense as that founded
1. There was a subject of dispute and a fair adjust
ment of the controversy for a valuable consideraupon contributory negligence through want of a strict
tion on both sides. observance of what is deemed to be ordinary prudence
2. The contract assumed, by the requirements of the
legislation, the shape of a formal written contract or caution. The protection of the rule is confined to cases of accidental and casual or unintentional injury."
3. The terms of the contract, that "this tax shall be
in lieu and satisfaction of all other taxation or And again: "These considerations render the case one
imposition whatsoever by or under the authority wholly without any rule of exemption of a gas com
of this State or any law thereof," when viewed in
the light of the whole transaction, do not admit pany from liability for allowing an improper escape
the idea of the right of the State to revoke it at of gas."
pleasure. Chief Justice Daly wrote a dissenting opinion in IN error to the Court of Errors and Appeals in and favor of affirmance.
T for the State of New Jersey. The action was Ou appeal, the Court of Appeals unanimously re brought in the name of the State on behalf of the versed the order of the Geueral Term granting a new Morris and Essex Railroad Company, as prosecutors, trial, and affirm the judgment entered on the report of against the defendant as State commissioner of railthe referee. See 16 Alb. L. J. 352.
road taxation. The opinion states sufficient facts. Allen, J., in the opinion of the court, says: “The Mr. Justice MILLER delivered the opinion of the proximate cause of the explosion was the introduction court. of a light into the cellar by the servants of the plain This is a writ of error to the Court of Errors and tiff acting under his immediate directions. The prop Appeals of the State of New Jersey. erties of the illuminating gas in ordinary use, its in The plaintiff invokes the jurisdiction of this court flammable and explosive character are well understood, on the ground that an act of the legislature of that and every person of mature years and ordinary intelli- State, approved April 2, 1873, concerning taxation of gence cannot be presumed to be ignorant of them. I railroad corporations, impairs the obligation of a
3. Thened by bothe shape of a the requiren
contract between the State and the plaintiff, found repeal this general reservation of the right to repeal, in an act of March 23, 1865, and the written accept and all special reservations in separate charters. It ance of that act by the company, dated April 24 of that follows that, unlike the constitutional provision in year.
other States, it is in New Jersey a question in every The third section of the act of 1865 reads as fol- | case of a contract made by the legislature, whether lows:
that body intended that the right to change or repeal "Be it enacted, That the tax of one half of one per it should inhere in it, or whether, like other contracts, cent provided by their said original act of incorpora it was perfect and not within the power of the legislation, to be paid by the said company to the State when- | ture to impair its obligation. ever the net earnings of the said company amount to The Morris and Essex Railroad Company was charseven per cent upon the cost of the road, shall be paid tered by an act of the legislature January 29, 1835. at the expiration of one year from the time when the Section 16 enacts that was soon as the net proceeds of road of the said company shall be open and in use to said railroad shall amount to seven per centum (in any Phillipsburgh, and annually thereafter, which tax shall | one year) upon its cost, the said corporation shall pay be in lieu and satisfaction of all other taxation or im- to the treasurer of the State a tax of one-half of oue position whatsoever, by or under the authority of this per centum on the cost of said road, to be paid annuState, or any law thereof; provided, that this sectionally thereafter on the first Monday of January of each shall not go into effect or be binding upon the said year; provided, that no other tax or impost shall be company, until the said company, by an instrument levied or assessed." duly executed under its corporate seal, and filed in the By section 20, “ the legislature reserve to themselves office of the Secretary of State, shall have signified its the right to alter, amend or repeal this act whenever assent hereto, which assent shall be signified within they think proper." sixty days after the passage of this act, or this act shall The next succeeding legislature, in a supplement to be void.”
the charter, repealed section 20 and substituted this The act of 1873 imposed a more burdensome tax language: “ The legislature reserve to themselves the than this on all railroad companies not protected by right to alter or amend this supplement or the act irrepealable contracts, and the Court of Errors held to which this is a supplement, whenever the public that this statute was applicable to the plaintiff, because good may require it.” It is this last clause which the contract of 1865, which had been formally accepted counsel iusist became, by operation of law, a part of by the company, was repealable by the legislature of the contract concerning taxation of the act of 1865, the State.
already quoted. The single question, therefore, for our consideration * The argument is that the original charter, and all is whether the act of March 23, 1865, and its acceptance subsequent amendments and supplements, are to be by the Morris and Essex Railroad Company, consti treated merely as parts of one act, and that this retuted a contract which could not be impaired by any | serve of the right to alter or amend became a part of subsequent legislation of the State.
every new law which has reference to that railroad The contrary of this was maintained by the Court of company. Errors, on the ground that while the act of 1865 was a In support of this principle the cases of Newark City contract, it must be taken in connection with other Bank v. The Assessor, 1 Vroom, 22, and The State v. legislation of the State on that subject, by which the Bergen, 5 id. 439, are cited. legislature reserve the right to alter and amend the They announce the general principle that a charter contract, and that this right entered into and became a and its amendments are to be considered as acts in part of it. Therefore the exercise of this right did not pari muteria in construing them, and they do little impair its obligation.
more. The precise point held is, that a city charter, The solution of the question here presented must being declared to be a public act, supplements and depend, first, upon an inquiry into this supposed re amendments to it are also to be treated as public acts. servation of power, and, secondly, into the essential But this falls short of establishing the principle that a character of the contract of 1865.
reservation in a charter to a private corporation, of the The case before us differs from those iu which, by the right to repeal or amend it, shall extend to every subconstitution of some of the States, this right to alter, sequent amendment of the charter. It is not easy to amend and repeal all laws creating corporate priv see why such a provision should be extended beyond ileges becomes an inalienable legislative power. The the terms in which it is expressed; and all the force power thus conferred cannot be limited or bargained which properly belongs to it is given when the exempaway by any act of the legislature, because the power tion from the constitutional provision against impairitself is beyond legislative control. The right asserted | ing the obligation of contracts is extended as far as in this case to amend or repeal legislative grants to cor the language of the exemption justifies, and it should porations being itself but the expression of the will or be extended no further by implication. The language purpose of the legislature for one particular session or in the statute we are construing covers the supple
e State of New Jersey, capnot bind any | ment of 1836 and the original act, and nothing more — succeeding legislature which may choose to make a “the right to alter or amend this supplement, or the grant or a contract not subject to be altered or repealed. | act to which this is a supplement” – leaving future supOr, if any succeeding legislature to that of 1846, which plements to make the same reservation, if the legislaenacted that “the charter of every corporation which ture so intends. shall hereafter be granted by the legislature shall be Section 6 of the general act of 1846 is by its terms subject to alteration, suspension and repeal in the limited to charters of corporations granted after its discretion of the legislature," shall grant a charter or | passage, and it requires a very strong implication to amend a charter declaring in the act that it shall not make it applicable to amendments to charters in exbe subject to alteration and repeal, the former act is istence before its passage, though the amendments of no force in that case. So it can by a general law I were executed subsequeutly.
term of the