No. 1. In How Far May Acts of the Legislature be Made Contingent upon being Accepted by Popular Vote Without Violating the Princi- ple that Legislative Power Cannot be Dele- gated. By F. E. Williams, 3. No. 2. The Constitutionality of a Statute Author- izing the Erection of Telegraph Poles in the Public Highway Without Compensation to the Abutting Property Owner. By William No. 3. When Will an Innkeeper's Lien for the Board and Lodging of His Guest Extend to the Property of Third Persons Brought to the Hotel by the Guest? By Walter J. No. 4. Municipal Ordinances Relating to Ma- terials Entering Into Public Work which In- terfere with Interstate Commerce and the Privileges or Immunities of Citizens of Other States. By Eugene McQuillin, 65. No. 5. When Negligence of Carrier Will Render him Liable for Loss of Goods Caused by Act of God. By John T. Marshall, 84. No. 6. Disqualification of Executors, on Other than Statutory Grounds-Personal and Im- moral Unfitness. By John W. Smith, 106. No. 7. The Common Law in Federal Jurispru- No. 8. Mental Anguish as an Element of Dam- No. 9. Effect of Payment of a Promissory Note at Place of Payment Named in the Instru- No. 10. When is Notice to an Agent Notice to his Principal? By Robert .M Rowland, 183. No. 11. Restricting Competition in Contracts for Public Work-Test of Vilidity. By Eugene No. 12. Do Gas and Oil Contraets or Leases Convey or Affect Such an Interest in Real Estate as to Come Within the Meaning of the Statute of Frauds Requiring all Conveyances of Real Estate or an Interest Therein, or an No. 13. The Doctrine of Imputed Negligence, as Between an Infant, non sui juris, and its No. 14. Exit of the Doctrine of Situs. By John No. 15. Right of Court to Interfere with the Determination of the Amount of Damages No. 16. Recent Insurance Decisions which Add Uncertainty to Future Litigation Involving the Construction of Policy Provisions. By No. 17. Stipulations in Fire Insurance Con- tracts Affecting the Insured's Right of Re- covery. By Roy Elias Ressler, 325. No. 18. Lord Tenterden's Act in the United International Court of Arbitration. By No. 20. Federal Control of Insurance. By An- No. 21. The Criminal Liability of an Inciter or Abettor of Suicide. By Sumner Kenner, 406. No. 22. Statutes Regulating Medical Practice. No. 23. The Doctrines of Assumed Risk and Contributory Negligence as Defenses to Ac- tions for Damage Resulting from a Failure to Comply with Express Statutory Provisions. No. 24. The Legal Rights of Automobile Driv- ers upon the Public Streets and Highways. Judge James M. Leathers, of the Criminal Court at Indianapolis, recently construed the Indiana anti-cigarette law. The case is not officially reported, it being a nisi prius decision. It seems that a lawyer whose name is William W. Lowery, was prosecuted for having cigarettes in his possession. He was able to show that the cigarettes were purchased out of the state and for his exclusive use. Judge Leathers held that the statute while otherwise constitutional was inoperative as to interstate commerce cases. He is reported to have said in part: "The immunity of the defendant from prosecution under the admitted facts of this case necessarily follows from the firmly established doctrine repeatedly announced by the Supreme Court of the United States, that the police power of a state is subordinate to the commercial power of the nation, and in the absence of congressional permission, it is equally clear that the constitutional right of a nonresident to ship into the state and the right of a resident of the state to receive for his own use any legitimate article of commerce cannot be subjected to conditions which are wholly incompatible with and repugnant to the existence of such right. It, therefore, necessarily follows that the statute in question is inoperative as applied to the admitted facts of this case. The defendant will therefore stand acquitted of the charge in the indictment. I am of the opinion that the right to keep and own or use a cigarette is inseparably incident to the right of importation. The right of a citizen to import eigarettes from another state carries with it the right to keep and own the same for his personal use and enjoyment. The interstate commerce clause of the federal constitution is shield against the prosecution of the defendant as long as he himself exercises complete control and dominion over the cigarettes in question. Inasmuch as this court is not convinced that the clause of said act, making unlawful the keeping or owning of a cigarette, is, beyond all reason able doubt, in conflict with the mandates of the federal constitution, with regard to the liberty and property of the citizen, I am, therefore, constrained to uphold the constitutionality of anti-cigarette law. It therefore follows that, having been condemned by the state of Indiana through its legislature, the cigarette can no longer afford opportunity or occasion for the exercise and display of courtesy and hospitality; and the amenities of social life among cigarette smokers must to that extent be curtailed." It seems too bad that a lawyer of Indianapolis should have been the one to have practically broken the law of Indiana. The legislature of Indiana put its stamp of condemnation on the pernicious habit of smoking cigarettes; a lawyer introduces them into the state and escapes punishment upon the grounds stated in the above opinion. If there is any class of persons who ought to uphold the enacted laws of a state, it is the lawyers of that state. When an evil has gone far enough to require legislative enactment to check it, the class of persons having the most to do with legislative enactments and which has the best means of grasping the full purpose and intent of laws, is dishonored, when one of its class, through an effort to show off his smartness, or for any other reason, deliberately defies the law of his state. He would be a disgrace to his profession, were it not that human nature is compelled to bear the greater part of the disgrace. It seems to us that in such cases public policy may be made to enter into the opinions and that the judge might well have given that as a ground upon which to have made a good example of one who has sworn upon his oath to uphold the laws of his state and breaks a law of it. which was enacted solely for the purpose of the public good. The example is a bad one and its effect ought to be regarded as much an injury to the public welfare as the actual giving or selling it to others, for which the law would have made him amenable. There is more in example than precept. The interpretation of our interstate commerce laws should ever look to the general welfare and take a thing as it is. If a thing is evil in itself as the cigarette habit is and has been so stamped by a state legislature, we can see no difference between the actual use of the prohibited thing, which actual use must have a tendency to injure the morals of others, as by bringing it into the state to dispose of to others whereby there is an injury, which the above opinion would punish. The law is made to command what is right and prohibit what is wrong and this being the soul of it, the judge who sits on the bench to administer it has the right to array such elements as will tend to command what is right and prohibit what is wrong, even though such elements may be brought to bear for the first time, to make effective the emergency. Our interstate commerce laws are emerging into an era when great changes must and will take place. The judge who advances something which will enable a wise and useful administration of those laws is the kind who deservingly lives in the hearts of the people. One other consideration: When a state condemns the sale of an article, it should be a practical and sound principle of the law that such article is not a legitimate subject of commerce between the state prohibiting the article and that state wherein it is not prohibited, for it should be the policy of the interstate commerce laws not to impinge the laws of any state through their operation. Interstate commerce should be reciprocal to be just. NOTES OF IMPORTANT DECISIONS. MUNICIPAL CORPORATIONS-REQUISITE STATU TORY NOTICE OF INJURY.-The case of Lyons v. City of St. Joseph, decided recently by the Kansas City Court of Appeals. 87 S. W. Rep. 588, seems to us wrongfully decided. The case arises on the construction of the statutory provision providing that no action shall be maintained against a city on account of the injuries growing out of any defect in a street or sidewalk, unless notice shall have been given to the mayor stating the character and circumstance of the injury. Sec. 5724, Rev. St. 1899. The notice given was as follows: "You are hereby notified that I, Elizabeth Lyons, will institute an action against the City of St. Joseph and others who may be jointly liable for damages by reason of injuries sustained by me on the 5th day of October, 1903. Said injuries were sustained by me while walking upon the sidewalk of said city at the intersection of Dewey Avenue and Louis street, more particularly described as that part of the sidewalk lying and being situate on the southwest corner of lot one, block 23, Robidoux Addition of the City of St. Joseph. The nature of the injuries were sprains to the limbs and severe bruises to the body resulting in blood poisoning to the right arm and shoulder which said injury is likely to remain permanent." In the case of Reno v. City, 169 Mo. 655, the court said: "The notice is intended for the benefit of the city, in order to put its officers in possession of salient facts upon which claim for damages is predicated, and the place where the injury is said to have occurred, in order that they may investigate them, and thereby ascertain whether the claim be a just one or fictitious and fraudulent.“ The Kansas City court after having quoted the above goes on to state that "the giving of notice in substantial compliance with the requirement of the statute is a condition precedent to the right to recover. Four points must be covered therein: The time, place, and circumstances of the occurrence must be stated together with the character of the injuries sustained." The Kansas City court goes on further to quote from Reno v. City, "that substantial compliance is all that should be exacted. The notice need not detail the facts elemental to recovery with the exactness required in a petition. Its function is to impart imformation sufficient to enable the city to ascertain the cause reli d upon, and when this is done a strict construction of the statute should not be indulged to destroy the efficacy thereof because of formal defects." The extroardinary part is that in view of the above language the Kansas City court should proceed to do just what that language has told it not to do. By its decision the Kansas City court proceeds to destroy the efficacy of the statute by the most strict of strict construction. And the reason given is on a par with the construction of the statute, common sense ought to be the essence of every decision. Blackstone says the law is made for the purpose of commanding what is right and prohibiting what is wrong. The constitution of the state guaranties the plaintiff the right to recover for injuries sustained such as the plaintiff complained of and no legislative fiat can wipe out a fundamental guarantee but this question was not raised. But leaving out of consideration the constitutional question, the supreme court told the Kansas City court that the function of the notice is to impart information to the city to enable it to ascertain the cause relied upon and when this is done, a strict construction of the statute should not be indulged, to destroy the efficacy thereof because of formal defects. Judge Jerre Black distinguished for the manner in which he administered the law said: "The law is made for practical uses, it listens to no metaphysica! subtleties and will not upon any terms consent to regard that as right which every sound heart feels to be wrong." One thing is cer ain and that is that the Kansas City judge's heart was all right, for he said "much as we regret turning the plaintiff out of court on this ground." etc. in order that they may investigate and thereby ascertain whether the claim be a just one or fictitious or fraudulent." Suppose the notice had been so perfect that not even the Kansas City court could have found fault with it, would it have enabled the officers any better to investigate and thereby ascertain whether or not the claim was a just one? The notice tells who the plaintiff is, the time of the injury, the place where and the nature and extent of the injuries. If that is not enough to put the officers in possession of facts upon which to proceed to make an investigation to ascertain if the claim is just or not, then we are at a loss to determine what kind of officers they have in St. Joseph and vicinity. It seems to us that the Kansas City court upon a careful consideration of the matter will see its error. It certainly must follow that, if the notice is sufficient to enable the officers to investigate there would be little danger of the door being open to fraud or leave the city in the dark, and this is the criterion by which the Kansas City court is guided in its judgment. IN HOW FAR MAY ACTS OF THE LEGISLATURE BE MADE CONTINGENT UPON BEING ACCEPTED BY POPULAR VOTE WITHOUT VIOLATING THE PRINCIPLE THAT LEGISLATIVE POWER CANNOT BE DELEGATED. Part I-Introduction.-The theory of governmental powers and their application in the American system of government. - It is a cardinal principle in our system of government that the sovereign powers shall be separated and assigned to distinct and independent departments.1 Aristotle observed that the func tions of sovereignty were naturally classified as legislative, executive and judicial; Montesquieu contended that the separation of these functions and their delegation to independent branches was indispensable to civil liberty; and the founders of this Republic recognizing the wisdom of these ideas instituted a form of government comparatively free from feudal custom and royal prerogative, in which is found an advanced type of constitutional polity and the most complete separation and independence of the different departments. 4 1 Kilbourn v. Thompson, 103 U. S. 168. Aristotle's Politics (Welldon), p. 292. 3 Montesquieu's Spirit of Laws (Pritchard), II. 163. Politics and Administration (Goodnow), p. 11. 4 Farewell Address (Washington), par. 16; Federalist (James Madison), No. 47; Works of John Adams, p. 186; Notes on Virginia (Thomas Jefferson), p. 195; 5 In France and Germany the judicial systems are within the control of the legislatures, and in England, according to Sir Edward Coke, "the power and jurisdiction of Parliament is so transcendent and absolute that it cannot be confined, either for persons or causes, within any bounds."*6 In these countries the question of the delegation of power by the legislatures does not arise because the legislatures may delegate power as they desire, and no other body has the authority to pass upon the validity of their proceedings. On the other hand, in this country where the sovereign people, through written constitutions, regulate the division of the sovereign powers, balance them against each other and direct to what persons each is to be confided, there may be presented this question: "Can the legislature grant away the law-making power which has been delegated to it through the constitution?" But the answer follows as a corollary from the doctrine of the separation, apportionment and balancing of powers, and constitutes a fundamental principle of constitutional law both in state and nation, namely, that the authority conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. This principle is inherent in the character and genius of our system of government, the causes from which it sprung and the purposes for which it was established, and, independent of any express constitutional limitation, it rises above and restrains and sets bounds to the powers of legislation which the legislature cannot pass without exceeding its rightful authority. It is the province of the legislature to make the law, to provide for the future, to direct the forces employed in the preservation of the state and the members thereof. Nevertheless, the legislature cannot foretell coming events with absolute certainty and prescribe inflexible rules of conduct with respect to them, thus it is often necessary to pass a law relating to things future and uncertain, or to a state of affairs not fully developed, and make the effect and execution of the law depend upon the determination of such future event or some hypothetical state of affairs, consequently, in addition to the rule previously laid down and consistent with it, there is another which is undisputably fixed, namely, that the legislature may pass a law to take effect or go into operation on Federalist (Hamilton), No. 48; Const. Hist. in Am. Law, p. 41; Story's Com. on Con., sec. 510; Ordroneaux's Const. Leg. ch. I-VI. 5 Pol. Sci, and Con. Law (Burgess), II., pp. 131, 364; Con. Hist. in Am. Law, p. 11. 64 Inst. 36. 7 Locke on Civil Govt., sec. 142; Cooley's Con. Lim. 7th Ed., p. 163; 19 Am. and Eng. Enc. of Law 489; 16 Harv. Law. Rev. 218. 8 Locke's Civil Govt., sec. 142; The State, By W. Wilson, 562. |