Central Law Journal.

A LEGAL WEEKLY NEWSPAPER

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Copyright, 1913, by Central Law Journal Co. Entered at the Post-Office, St. Louis, Mo., as second-class matter.

NEEDHAM C. COLLIER, EDITOR-IN-CHIEF ALEXANDER H. ROBBINS, MANAGING EDITOR

CONTENTS

EDITORIAL.

Was he Guilty?

J. S. was a clerk who attended his employer on a race track to record in a book his employer's bets on the races. Was he guilty of "occupying a place on the ground for the purpose of recording bets," under a penal statute making that a punishable offense?

See "Occupant-Agent or employee," in Words and Phrases, for the answer

The courts have defined or construed many thousands of words, legal and nonlegal, but all the subject of some legal contest. These definitions can be applied in your practice

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56

LEADING CASE.

Exception to the Splitting of Cause of Ac tion. Underwriters at Lloyd's Ins. Co. v. Vicksburg Traction Co. Supreme Court of Mississippi, Dec. 8, 1913 (with note).

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FOR SALE AT A BARGAIN Indiana Reports, 1 to 100 inclusive. Northwestern Reporter. 92 volumes. Also 35 volumes of Amer. & Eng. Ency. of Law. good as new. Make an offer on all or part of these books. Address Box 25, care CENTRAL LAW JOURNAL, 420 Market Street St. Louis, Mo.

Central Law Journal.

ST. LOUIS, MO., JANUARY 30, 1914.

INJUNCTION BONDS IN RATE CASESIMPOUNDING EXCESS ABOVE STATU

TORY RATES.

It is the invariable rule of this Journal to steer clear of any question sub judice, but this does not prevent it from using the question in its suggestion of a timely topic for discussion. As such we view recent ruling by two Federal district judges, respectively in Missouri and Arkansas, that there should be retention of two suits for injunction against enforcement of rate fixing statutes after it had been determined that plaintiffs' cases on the merits showed no ground for relief.

The theory of retention, as we understand the matter, is that the rates charged by the railroads, while the injunctions were in force, were, so to speak, only tentatively lawful, and, it resulting that they were actually excessive, there arises out of the final disposition of these causes charges not wholly dissimilar to costs. These the railroads should pay before they are completely rid of the litigation they instituted. In other words, the ascertainment of overcharges paid by patrons of these railroads is what may be called taxing the costs in the cases. There seems much of reason in this view, but, under our rule, we do not discuss this feature.

Assuming that this is the correct view, then it inevitably follows, that whenever a public utility applies for a stay in the operation of a rate statute or any order of a commission prescribing a rate, the bond. which should be required of it, ought to be ample to cover all damages and claims which may flow from or arise out of the granting of such stay. This is undoubtedly the rule as between the parties to the record in any case. But if there is a sort of trust representation of the public by a state's attorney general or an utility board,

the cestuis que trustent in individuals of the public, who acquire rights against a public utility in a suit against their trustee, are entitled to the same kind and degree of consideration as a party to the record. Indeed it may be said they are possible parties to the record with their indentity to be shown at the conclusion of the litigation.

are

But, if the correct view is that overcharges wrongfully, but legally, enforced pending injunction, may in no sense be likened to costs of litigation, then, if our suggestion that private individuals cestuis of the public be sound, also their rights just as much as, if not more than, the rights of the public are assailed. What, then should be the view of a judicial officer in fixing a bond upon applications for injunctions in such cases? The answer to this interrogatory seems just as inevitable as in the other view. But considering that the loss to these cestuis is merely damages, and not costs of the suit, the general rule is that a right of action accrues to them as obligees upon the final determination of the suit for injunction. 16 Am. & Eng. Encyc. Law, 2d Ed. p. 456.

So it comes around, that the view of these two judges brings to the front the duty of courts in injunctions against rates, lawfully imposed, if not confiscatory, in the exaction of a bond as a condition to their being granted. Whatever discretion there may be in or not providing against damages that may arise, there should be very little so far as providing for the costs of litigation is concerned. If rate payers' losses are to be deemed costs to be taxed the duty to exact an ample bond would seem more imperative, than were they to be considered damages.

There arises out of this subject, also, an interesting query on the subject of res judicata. If state officers in this kind of litigation represent not only the public, but individuals of the public, in their rights to the charging of just rates by public utilities, then an injunction bond is for the benefit of each of them and they may sue on it

As rates pre

lose, if it has no right to it. scribed are presumptively correct, it is not a hardship for one attacking them to have leave to have impounded the excess above such rates. Whatever legislator may embody the impounding idea in a statute will make himself remembered.

This rule, however, would seem to have an application of which the common law was not thinking, as the wrong done consists in extortion under cover of judicial process, for it would seem extortion to make one pay for service be is entitled to demand more than lawfully he should be required to pay. Instead, therefore, of the independent action being confined to malice or want of probable cause, additionally the public utility should be suable for money had and received.

We conclude, therefore, by suggesting that the cost idea may be upon money being deposited, so to speak, with the public utility, or subject to future disposition, and it would seem, that if ample bond is not required, in limine, for the protection of the depositors, the court, at least, should impound it for. their possible benefit. At all events, it is hardly to be thought, that the courts in granting these injunctions, have considered the possible ultimate rights of those who may be paying excess rates because of their wrongful issuance. Impounding the excess above prescribed rates would be an ideal arrangement, because it would contribute to the shortening of litigation and leave a mere matter of distribution at its close, by returning excess, if any, to whoever has paid it. The public utility would merely lose use of any excess while litigation is pending, something it ought to

*Since this was prepared for publication, we notice what President Wilson suggests as a statutory rule on this subject. Here the right is urged as arising out of legal principle.

LIBEL AND SLANDER

CHARGING WHITE MAN WITH BEING A NEGRO.There exists in Arkansas a criminal slander statute which makes it a misdemeanor to falsely utter or publish words which among other things will bring into disrepute the good name or character of such person so slandered." In a prosecution, in which defendant was convicted and the conviction affirmed, the charge was that the mother of prosecutrix was a negro and that prosecutrix was a half-breed. Morris v. State, 160 S. W. 387.

The court arrives at its conclusion as follows: "Under our statute, railroads are required to furnish separate coaches for the negro and white races, and it is unlawful to permit them to occupy the same coach. Street cars are also required to segregate the two races. Separate schools are also provided for white and colored children. Under our social conditions, the white and negro races do not mingle together and by law are prohibited from marrying each other, so that under these conditions it cannot be disputed that charging a white man with being a negro is calculated to bring into No disrepute his good name or character. one could make such a charge, knowing it to be false, without understanding that its effect would be injurious to the character of the person so slandered."

It easily may be thought that judicial cog. nizance might be taken of sociological condi tions and the prevalent view in a country of the negro being an inferior race so that to charge a white man with being such would be to attach to him a sort of presumption of inferiority in name or character, but to cite as proof statutes regarding segregation of races and prohibition of intermarriage be tween them seems to us beside the mark.

These statutes are constitutional only from the standpoint of the state's police power in the conserving of its peace and the recogni tion, as plausible at least, of a theory that miscegenation would produce inferior offspring. It is not necessary to say or think

that these statutes regard the negro as inferior and, indeed, they are forbidden to proceed upon this theory.

The query, therefore, in our mind is, that, if they are thus barred from so regarding the negro, how may another statute operate differently than they do? Furthermore, it is merely inferential that a stigma is cast upon one's character or good name that he is charged with belonging to a race inferior to which he belongs. It does not directly assail his name or character in the same way as to call him a thief or a grafter and when the operation of a criminal statute is to be considered, its construction is narrowed more closely than where there is a question of civil damage. It might be, too, that some white man would not deem himself injured by such a charge, for we often have heard that it has been said to negroes that they are as good as whites. Why should any law interpose in behalf of any one so asserting? It is impossible to believe, however, that any man would enjoy an accusation that he was a thief, whether the charge were false or true.

MONOPOLY-AGREEMENTS BETWEEN DEALERS IN COPYRIGHTED BOOKS CONDEMNED BY THE SHERMAN ACT.-In Bobbs-Merrill Co. v. Straus, 210 U. S 339, it was held that the copyright act did not give the right to fix a price upon books in sales by retailers to purchasers, upon the principle that when the owner of a copyrighted book exercised his right to vend, this exhausted his right in what was vended.

This decision was thought by New York Court of Appeals not to be decisive of the question whether dealers in copyrighted books could combine so as to prevent selling to retailers, who would undercut prices sought by the combination to be maintained in the trade, and, therefore, this court believed such an agreement was under the shelter of the copyright act and, therefore, not condemned by the anti-trust act. This holding the Supreme Court reverses. Straus v. American Publishers' Assn., 34 Supp. Ct. 84.

It is difficult to see how this case could have been held not to be controlled by the Bobbs-Merrill case, the principle in which was that to vend meant there was merely an exclusive first vendor, except on the theory that an agreement about who should be entitled to become vendees was action prior to vending, a phase or distinction that the Supreme Court does not discuss, seeming to be surprised that the New York court, or at least a majority

of it, (there being dissent by three judges), should not have regarded the Bobbs-Merrill case as controlling.

We see, therefore, that all that the copyright act does is to give to its owner the right to be the exclusive first vendor, but he must vend his exclusive property just as any other vends what he alone owns, and not make such right the basis of an agreement to create a monopoly in copyrighted articles. One owner of a copyright has no more connection with another owner of another copyright than one dealer in grain with another.

RECENT DECISIONS BY NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.*

In answering questions this Committee acts by virtue of the following provisions of the by-laws of the Association, Article XVI, Section III:

"This Committee shall be empowered when consulted to advise inquirers respecting questions of proper professional conduct, reporting its action to the Board of Directors from time to time.

It is understood that this Committee acts on specific questions submitted ex parte, and in its answers bases its opinion on such facts only as are set forth in the question.

Question No. 46.-In the opinion of the Committee would it be considered unethical for a lawyer to send the following form of letter to members of the Bar with whom he has a per sonal acquaintance: "Dear Sir:

In the course of your practice, you occasionally are restrained to prosecute actions to recover damages for injuries sustained through negligence. If you do not keep in close touch with the different decisions of the Courts as they are handed down daily, you may experience difficulties in framing a proper complaint.

If you will send to me a full statement of the facts in any of your accident claims, I will draw the complaint for you, and a trial memorandum applicable to such case, and charge you for my services ten per cent of the amount of the recovery or settlement. In the event of no recovery, or settlement, no charge will be made.

Trusting we may be able to do some business together in the near future, I am,"

Former decisions reported in 465 Central Law Journal 77.