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Central Law Journal, .

based on negligence of employers, and does not cover what is embraced in police power

as to recovery from an industrial establishST. LOUIS, MO., JANUARY 21, 1916.

ment on other ground than negligence, and


eral compensation act providing for recovIN INTERSTATE COMMERCE WHERE ery by federal employes, though liability EMPLOYER WAS FREE FROM NEGLI

does not depend upon the existence of negGENCE.

ligence. This confirmation would seem to In Winfield v. New York, C. & H. R. R.

be very slight indeed, for the question finalCo., 216 N. Y. 284, 110 N. E. 614, there

ly comes back as to the scope of the federal

employers' liability act at the time it was appears to have been raised, for the first

enacted. Indeed, the federal government time, the question whether New York

might well have one theory of recovery as Workmen's Compensation Act was ex

to employments under the commerce clause cluded from application to a carrier in in

and a totally different theory as to recovterstate commerce by the Federal Employ

ery comes under laws not depending on ers' Liability Act, in that recovery under the commerce clause, the latter depends on negligence, while under former act it does not. It was held by

When Congress was legislating in the a unanimous court, one judge not voting

Federal Employers' Liability Act as to car

riers in interstate commerce was it doing and another being absent, that the federal act only refers to recovery for negligence,

this to put a limitation upon their liabilities and does not exclude recovery by an em

for injuries in the performance of their

functions? When, therefore, it prescribed ploye in interstate commerce for an injury, that they should reward an employe injured not arising out of negligence.

by their negligence, impliedly was it said State opinion in such a question is not, no other penalty should be put upon them? of course, conclusive, as it remains for the U. S. Supreme Court to construe the pur

If states go beyond this they put a bur

den on the instrumentalities of commerce, pose of the federal act and to determine

which Congress may have said they shall whether that purpose would be interfered

not bear. It might be deemed that these with by state law allowing recovery in non

carriers would not be either so free or so negligence cases, when it declares that, so

able to serve the purposes of commerce as far as federal control goes, there must be negligence as a ground for recovery.

were they exempt from this burden. The New York court concedes, as other

Furthermore, let us inquire how this imstate courts declare, that all state laws re

position under state law would work, if it garding recovery by an employe injured in

is law fully imposed? the course of employment are superseded by An employe sues an interstate carrier the federal act to the extent of its scope, on the theory of negligence by his employand the inquiry is whether by its declaring, er resulting in injury. There is verdict that a condition precedent to recovery is

for defendant. This is not conclusive, bethat an employer must be negligent, takes cause it merely shows the employe should such an employer from under the police have proceeded under the state workmen's power of the state as to his being non- compensation act. negligent in an industrial pursuit.

But suppose that, in the first instance. The New York court says, however, that the employe proceeds under the state act, the scope of the federal act is as to recovery

and the carrier sets up its negligence as


taking the case over to federal liability. NOTES OF IMPORTANT DECISIONS. Does the dismissal by a commission under a finding of negligence become conclusive



WITH WIRE CROSSING BOUNDARY.-It beWe greatly doubt whether this finding by came important under the rule in Arkansas a commission would be a bar to proof of

allowing damages for mental anguish to de

termine whether a message was interstate or no negligence, for a judgment by a com

not, Western U. Tel. Co. v. Sharp, 180 S. W. mission is not a judgment by a judicial 504, decided by Supreme Court of Arkansas. tribunal. Indeed, we greatly doubt wheth- The facts show that the message in queser a commission can entertain such an is- tion was sent from a point in the state and sue, or, at least, whether it is expected to

was relayed at a point outside of the state do this. Its judgment generally is to go

and from there sent on to its destination in

the state. for the employe irrespective of negligence

The opinion refers to three cases where the or non-negligence.

same question was involved and all of them

held that the message was not interstate comBut it certainly can be ousted of jurisdic

The Arkansas Court says: “We think tion in negligence cases, where the employer

the sounder rule is to say that so far as a is engaged in interstate commerce, and we telegraph message is concerned, the right of doubt whether failure to object to proced- control is exclusively with the state where ure under the state act would preclude a

the message is sent from one point to an

other in the state regardless of the fact that carrier from showing afterward, that the

the state line is crossed and that such fact subject-matter was not within a commis

does not constitute interstate commerce.” sion's jurisdiction. It is not accident that

While this rule is generally true, it is to be gives the court jurisdiction in such a case, doubted whether it would apply to messages but accident resulting from negligence. The

which are relayed, as this fact suggests a dis

tinction from a message going direct from one two things are as distinct as are any other

point in a state to another in the same state, two things.

though in its journey it crosses into another

state. It seems to us, therefore, that if we get beyond the federal question involved,

DIVORCE. — DIRECTION OF DECREE we are then confronted with the purpose of

FROM BED AND BOARD.-Under Rhode the state act, as shown by its procedure to

Island statute divorces from bed and board ascertain the measure of liability. But to and future cohabitation until the parties be us it seems clear, that, if the federal act for- reconciled may be granted for the causes for

which divorces from the board of marriages bids any recovery from an employer except

may and in judicial discretion "for such other as arising out of negligence, this should be

causes as may seem to require the same." construed to mean that no penalty where

In Walker v. Walker, 95 Atl. 925, Rhode there is no negligence should be imposed.

Island Supreme Court granted such a decree The federal act is not alone for the protec- under judicial discretion as to conduct "allytion of employes, but also it may be deemed ing it in its moral attributes with adultery," for the protection of employers. The that is for "conduct extending over a long

period, although not amounting to acts of whole question, therefore, resolves itself

adultery, yet had such a character of liceninto the inquiry, whether or not there is

tiousness as allied it to that offense and was a strong negative pregnant in the federal

like it in kind." act against any penalty being visited on a It would seem there ought to be some way federal instrumentality where it is not at

to have reconciliation made a matter of record

of equal dignity as the decree thus set aside. fault. As federal law has no office merely

The separation standing as justified, the reto right a civil wrong, but to protect fed

union should rest on judicial decree as well. eral means, this question ought to be an- The court had no occasion to speak on this swered in the affirmative.

point in the case. The decree, however, pro

vided for separate maintenance and how long that was to continue should be definitely marked and its cessation judicially shown.

An interesting point in procedure is to be noted as occurring in this case. The wife as appellant was allowed to have her amendment to have the decree under judicial allowed, but the Supreme Court ruled that, as required by statute, "respondent will be given an opportunity on December 20, 1915, to show cause why an order should not be made remitting the case to the Superior Court with direction to enter a decision granting to the petitioner a divorce from bed, board and future cohabitation with the respondent until the parties be reconciled,” etc., etc.

The practice here indicated shows that, if evidence has been submitted in the court below, it will be given effect without remand because of error in lower courts refusing to consider it and give it effect. This statute is in the line of practical procedure, saving time, expense and numerous bites at a cherry.

other class of public officials. If the purpose of the provision is to prevent suits being brought against members of the General Assembly in foreign counties into which they may be required to go in the performance of their official duties, then the law applies only to a portion of the public officials of this state, who are at times required to leave their home counties to perform their official duties."

But this assumes that were there a law passed for exemption of such latter class of officials, it would not rest upon a proper classification. We think that compelling a public officer to leave his home county to perform a public duty in another county ought to exempt him from civil process in another county, or that a statute to this effect would be valid. There is not free locomotion on his part, but only that in obedience to a public duty. He ought to be made exempt from having to answer in an inconvenient jurisdiction because he is faithful to his public duty,

And so as to a legislator away from his home county, there ought to be no temptation to sacrifice his public duty to his private interests. It is but a slight step beyond this to give a member exemption from service of civil process in his home county. The statute being based generally on reasonable classification, would be maintained as to its incidental features.

As is well pointed out by the dissent, there exists classification in the facts, that a session of the legislature is only for a part of the year and that a member cannot perform his duties by deputy, but his personal presence is necessary.

CONSTITUTIONAL LAW EXEMPTION OF MEMBERS OF LEGISLATURE FROM CIVIL PROCESS DURING LEGISLATIVE SESSION.—Illinois Supreme Court held that a statute of Illinois exempting members of its Legislature from the service of civil process during a legislative session was unconstitutional, in that it was not based on any reasonable classification, is a special law and that independently of such statute a constitutional provision exempting members of its Legislature from arrest during a session, except for treason or felony did not cover service of civil process. Phillips v. Browne, 110 N. E. 601. There was dissent upon the first ground by two judges.

There is diversity of view as to the second of the above propositions, but it is believed that the weight of authority is with the Illinois court in this holding, some early cases ruling that the privilege from arrest is not to be narrowly confined.

But it seems to us that the majority err in holding that there is no reasonable classifications for the validity of the statute as ruled.

It was said: “The members of the General Assembly constitute but a portion of the public officials chosen to transact the business of the state, and we perceive no good reason why they should be singled out as immune from service of civil process while engaged in the line of their duty any more than any

BANKRUPTCY-LIEN OF JOINT JUDGMENT AGAINST HUSBAND AND WIFE ON ESTATE BY ENTIRETY.-In 1913 a joint judgment was obtained against a husband and wife. In 1914 he was adjudicated a bankrupt but the trustee made no claim upon property held in entirety. About two months after his discharge in bankruptcy, the wife died. The judgment creditor then sought to enforce his judgment against the property held in entirety, and it was ruled by Maryland Court of Appeals that this could be done. Frey v. McGaw, 95 Atl. 960.

The court said: "The discharge of the bankrupt was only personal to the debtor. It was entirely without effect as to any liens subsisting at the time."

But, if a general judgment is discharged by the discharge in bankruptcy, this is equivalent

to saying that it has been paid. If it has That a laudable custom (salutary law) been paid, the lien certainly has passed out

of one nation has been a crime (infraction of existence. Where there is a special lien on

of custom) in another, confirms the rule. specific property it is easily understood that the lien is not destroyed under the terms of

Common custom is the common law, the bankruptcy act creating an exception to the rule of discharge.

where reason, sense, common sense, that

too much overworked term, has necessarily It seems to us that after the discharge of the bankrupt, this judgment remained only

no part, for we have common customs, but against the wife and had she survived the no common sense. husband, it could have been enforced

Like travelers starting on a journey, but against the estate by entirety.

all choosing different ways, different modes of travel, and different conveyances, all

eventually arriving at the same destination, THE LAW IS CUSTOM, NOT

all delighted with the trip from necessarily REASON.

different motives, so common customs are eventually arrived at by diverse, individual

—not common, collective sense. "Whatever is reason is law,” is the popular way of expressing the error, while the If, now, reason be not law and common classic employs such sayings as, “The law

sense nonexistent, neither should opinion, is the embodiment of reason," "The law is more especially, be made law. right reason."

As the law is now sought to be adminis

tered, the opinion (judgment, conclusion), Possessing more sense than learning, the

of the judge is what he thinks or deterlaity mistake reason for law, while the pro

mines the law, (the custom, the rule) to be, fession, with more learning than sense, de

but this may or may not be the correct declare law reason.

termination, chiefly because he has reasonLaying aside the meaning, if any, in ed to a conclusion, instead of searching these sayings, the grammatical construc- for a fact. tion makes law and reason equivalent

In ascertaining what the law is, the terms, not one the property or quality of

judge should be an investigator after fact; the other.

for, what the law is, is as much a question When, however, we discard words and of fact as the acts of the parties, commonsubstitute ideas, we readily perceive that ly called the "facts of the case.” neither is reason law nor law reason, for

No intuitive powers of mind or depth of reason exists only in the mind, while law is manifest in action, in custom. This gives law, (a rule, a custom) or the supporting

reasoning can ever lead us to a principle of us the most comprehensive dictionary def

ground, any more than to a fact of history inition of law, universal uniform activity

and the motive of the character involved : in matter, custom in men.

for the law (custom) is matter of history. Custom, therefore, among men is law. A thing done is history, but why done is What men are accustomed to they regard usually a question for speculation, and freas law, as a rule of action, as binding, the quently unknown even to the actor himself; older and more universal the more pro- yet these speculations now make up the found.

body of our law. “Custom (law) is the king (dominant The correct determination of the law, authority) of all men," said an ancient, therefore, is a historical inquiry and inves

the law) applicable to the particular case

LAWS AND REGULATIONS REunder consideration.


IN PAN-AMERICAN COUNTRIES* Here, then, is the genus of an action: The parties have done or omitted certain

Scope of This Discussion :—The prothings. These are judicially determined.

per utilization of the natural resources of Now, do or do not these things, (acts,

the Pan-American countries is of the greatfacts) conform to the established and rec

est importance to their internal developognized custom (the law) ?

ment as well as to their industrial and poliTo answer this, such custom (law) must tical relations with each other. be known and declared, laid down, shown, Of all such resources, the fresh-water not as matter of opinion, judgment, con- streams of these countries are ever present, clusion, determination, resulting from any ever renewed, and, therefore, inexhaustprocess of reasoning, but as matter of factible, resources for industrial supremacy. after investigation.

Unlike the fuel resources of coal and No difference, therefore, exists between oil, the energy of the water fall is not lathe correct determination of the two con

tent, and, if not confined and utilized, it troversies in a lawsuit, the FACT and the

is forever wasted and becomes a part of LAW. The first step is to determine the

the great useless waste of Nature which individual case (the acts, the facts), the

cannot be recouped. second, the general, (the custom, the rule)

Conservation of the natural resources of both investigations for the ascertainment

a country demands the greatest and most of facts, while the third is to measure the

immediate prevention of this constant individual with the general, and this is the

waste of energy from undeveloped water ascertainment of a fact, also.

powers, and requires the greatest and most

extensive utilization which can possibly be This process differs not from the mathe

made consistently with proper protection matical, for we have not two methods of

of the interests of individuals and of the reasoning. As between the moral and the public at large. mathematical, the difference is only in the

The principal cause of this uneconomic definiteness of the terms, acts or facts in

waste is, in all cases, that legislation for one, number in the other.

the regulation and use of water resources, I am writing particularly of the common instead of promoting their use, has belaw, (the common customs of any coun- come an obstacle to their use. Legislation try) of course, but what has been here said has not kept pace with the progress of the applies as well to statutes, only easier of science of water-power development and determination.

It is the main scope of this paper to Our judicial decisions are thus shown to

summarize, with reference to the uses of be formulated in the exercise of opinion,

water, and particularly of water powers, reasoning about rules and principles, as

the laws, and regulations under public controversies were settled in medieval and

authority, existing in the Pan-American scholastic times, when the methods used

countries, and especially to note certain bore no relation to the end sought. That

ways in which such laws are obstacles to these decisions are sometimes right, is

that utilization of these resources which merely fortuitous, as right things may be

would otherwise be made, as well as to done in wrong ways. No improvement

*This article is a summary of the principal can be expected until the method is

points made in an address by the author before changed.

A. A. GRAHAM. the Second Pan-American Scientific Congress

held in Washington, Dec. 27, 1915, to Jan. 8, Topeka, Kansas.



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