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in no case practice his system in this state; for, however well qualified he may be, he cannot be examined as a physician, and he could not, without abandoning his practice as an osteopath, obtain a diploma from a medical college. If the statute applies to him, it also applies to trained nurses, and all others of that class, who for compensation administer to the wants of the sick. The result of such a construction of the statute would be to compel every one, whether willing or unwilling, to employ a registered physician to care for him when he is sick, or to trust himself entirely to gratuitous services, however much he might prefer skillful nursing to medical treatment. It is doubtful if the legislature has the right under the constitution thus to restrict the free choice of the citizen in a matter concerning only himself, and not the people at large."

NOTES OF IMPORTANT DECISIONS.

MINES AND MINING-JUDGMENT LIENS-UNPATENTED CLAIMS.-The effect of a judgment lien upon an unpatented mining claim came up recently in the case of Butte Hardware Co. v. Frank, 65 Pac. Rep. 1, where the Supreme Court of Montana held that a judgment lien on an unpatented mining claim is not lost by the transfer of the claim by the judgment debtor, on the ground that such transfer is an abandonment thereof, since the transfer of an unpatented claim does not amount to an abandonment. The court said: "The point is raised by respondents that a judgment, if a lien, would not be such after sale of the mining claim,-he giving up possession to the vendee, for the reason that such sale would be an abandonment, and all his rights would be gone, and the lien with them. In support of this position counsel cite Murley v. Ennis, 2 Colo. 300, which declares that title by location may be lost by abandonment, and that if, without writing, he yield up the possession to another, 'the right of the first occupant is gone by abandonment, and by virtue of his occupancy a new right has arisen in him who succeeds.' It is to be noted that the transfer is said to be abandonment if made without writing. The alleged transfer from Ritchie to Frank was in writing; hence the authority does not fit the averment of the complaint. Section 2332, Rev. St. U. S., clearly contemplates the buying and selling of mining claims, as it provides that, upon application for patent, evidence may be offered to show the possession of and work done by the applicant's grantors. It would be absurd to permit sales for the benefit of the vendees, and then declare such sales proof of abandonment of all rights of the grantor."

HOMESTEAD-FAILURE OF DEBTOR TO OCCUPY LAND UNTIL AFTER EXECUTION WAS LEVIED. It is the general rule that the homestead right is never forfeited when there has been an occupancy, and then a temporary removal, with the intention to return and make the premises a home; but where there has never been an actual residence and use of the property as a home, a mere intention to so occupy it some future time will not be sufficient to protect the homestead. Solary v. Hewlett, 18 Fla. 756. An interesting phase of this question recently arose in the case of Marshall v. Mahorney, 63 S. W. Rep. 471, where the court of appeals of Kentucky held that land acquired by purchase could not be held exempt as a homestead, where it was not occupied as such until after the creditor's execution was levied thereon, though it was so occupied at the time it was sold under the levy. The court in this case says: "We are aware that in a number of cases this court has held that, where the title to the homestead was derived by descent, the heir was entitled to a reasonable time after the death of the ancestor to claim homestead, and that until such time had elapsed it could not be levied on and sold, even if the debt existed at the time it was inherited. See Jewell v. Clark's Exr., 78 Ky. 398; Dwelly v. Galbraith, 5 Ky. Law Rep. 209, and Miller v. Bennett (Ky.), 12S. W. Rep. 194. The opinions are predicated upon the idea that the statute does not deny exemption if the title be derived by descent, and not by purchase. But this doctrine has not been extended to cases where the title to the homestead was acquired by purchase, and the construction by this court seems to be generally supported by those of other states." Authorities sustaining the position of the court are as follows: Austin v. Stanley, 46 N. H. 51; Jackson v. Bowles, 67 Mo. 609; Kelly v. Dill, 23 Minn. 435; Ingels v. Ingels, 50 Kan. 755, 32 Pac. Rep. 387; Tiller v. Bass, 57 Ark. 179, 21 S. W. Rep. 34; Freeman v. Stewart, 5 Biss. 19, Fed. Cas. No. 5088. It may be stated, therefore, as the general rule, that in cases of levy under execution, the homestead exemption must exist or be claimed at the time the writing came into the officer's hands. The defendant, moving into the property thereafter, cannot hold it exempt as a homestead.

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MON CARRIER.-Whether receivers in control of a railroad are liable as common carriers has always been an interesting question. It is well settled, however, that in his official capacity, at least, he is liable to the same extent as a common carrier. He is liable for injuries to passengers. Dillingham v. Anthony, 73 Tex. 47; Brown v. Railroad, 96 Ill. 297; Newell v. Smith, 49 Vt. 255; Bartlett v. Keim, 50 N. J. Law, 250. He is liable for goods lost or damaged in transportation. Nichols v. Smith 115 Mass. 332; Melendy v. Barbour, 78 Va. 544. He is liable for injuries

to employees from defective appliances and for the negligence of other servants. Meara v. Holbrook, 20 Ohio St. 137; Sloan v. Railroad, 62 Iowa, 728; Kain v. Smith, 80 N. Y. 458. But in recent case of Powell v. Sherwood, 63 S. W. Rep. 485, the Supreme Court of Missouri ran up against the question in its relation to laws relating to fellow-servants, and held that Laws of 1897, p. 96, defining the liabilities of railroad corporations in relation to damages sustained by their employees, and stating who are fellow-servants, applies to receivers of railroad corporations, as well as to the corporations themselves. There is some conflict of authority on this point, some cases affirming the position of the Missouri court. McNulta v. Lochridge, 141 U. S. 327, 12 Sup. Ct. Rep. 11; Sloan v. Railroad, 62 Iowa, 728; Pierce v. Van Dusen, 78 Fed. Rep. 693. Other cases take a contrary view: Henderson v. Walker, 35 Ga. 481; Campbell v. Cook, 86 Tex. 630, 26 S. W. Rep. 486; United States v. Harris (1900), 20 Sup. Ct. Rep. 609; Thurman v. Railroad, 56 Ga. 376. In Henderson v. Walker, supra, the court construed a statute commencing "Railroad companies shall be liable to such employees as to passengers for injuries,” etc. Suit was brought under this statute against the receivers of a railroad to recover damages for injury to a servant caused by the negligence of a fellow-servant. It was held that the statute referred only to servants of a railroad company, and would not be construed as extending to servants of the receivers of a railroad company, and that the receivers were not liable. In the principal case, however, the court said: "In respect of liability, such as is set up. here, the receiver stands in the place of the corporation. In other words, the receivership is pro hac vice the corporation itself under the management of one man, instead of that of a board of directors. To hold, therefore, that the statute applies to corporations of a certain kind under one management, and not to corporations of the same kind under another management, would be to create the inequality before the law."

TAXATION MUST BE FOR A PUBLIC PURPOSE.The power of a legislature to levy or to authorize the levy of a tax and to create or authorize the creation of a public debt to be paid by taxation is limited to its exercise for a public purpose. Sharpless v. Mayor, 21 Pa. 147; Cole v. City of La Grange, 113 U. S. 1, 5 Sup. Ct. Rep. 416. The decision of the question whether a tax or a public debt is for a public or private purpose is not a legislative, but a judicial function. Thus, in the recent case of Dodge v. Township, 107 Fed. Rep. 827, it was held that the promotion of the ●onstruction and operation of mills and factories to manufacture sorghum cane into sugar or syrup is a private and not a public purpose, and township bonds issued for this purpose, and the Act of March 1, 1889, authorizing their issue, are beyond the powers of the legislature and the township, and are void. The court said:

"A legislature which has no power to authorize the levy of a tax or the creation of a public debt for a private purpose, has no power to draw that authority to itself, or to create it by its mere declaration that a private purpose is a public one. A legislature cannot make a private purpose a public one by its mere fiat, and the determination of the question in any case whether or not a given object is public or private is a judicial, and is not a legislative function. Allen v. Inhabitants of Jay, 60'Me. 124, 11 Am. Rep. Rep. 185; Tyler v. Beacher, 44 Vt. 648, 651, 8 Am. 398; In re Eureka Basin Warehouse & Mfg. Co., 96 N. Y. 42, 47, 48. If the bonds and coupons upon which this action is founded are ever paid, the money to discharge them must be raised by the levying of taxes upon private property situated in the township of Mission. Their validity, therefore, must depend upon the answer to the question whether they were issued for, and their proceeds were applied to a public or a private purpose. They were issued to raise money to pay a subscription made by the township to the stock of a private corporation organized to erect and operate mills to make sugar and syrup from sorghum cane, and their proceeds were applied to that purpose. The question, then, is whether or not the construction and maintenance of factories owned by private corporations to manufacture sugar and syrup from sorghum cane is a public or a private purpose. The true answer to the question seems to be plain and certain. Speaking generally, a public purpose is a governmental purpose, one of the purposes for which governments are instituted and maintained among men, such as the maintenance of order, the prevention and punishment of crime, the care of highways, the relief of the destitute, the education of youth, the erection of buildings for the use of schools and of the officers of the government; while a private object is one which is ordinarily sought and attained by individuals or private associations of individuals, such as the cultivation of the soil, the manufacture of useful and attractive articles, the purchase and sale of merchandise, and the thousand and one purposes which enlist individual enterprise and energy in a complex and advancing civilization. There seems to be no doubt in which category the promotion of the construction and maintenance of sugar factories falls."

THE APPLICATION OF THE "ALIEN CONTRACT LABOR LAWS" OF

THE UNITED STATES.

The "alien contract labor law" of the United States provides that it shall be unlawful to "assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States, under contract or agreement, parol or special, express or implied, made previous to the im

portation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States."'l Section 5 of the act designates the classes of aliens whose employment is not forbidden, namely: (1) private secretaries, servants or domestics of foreigners temporarily residing here; (2) skilled workmen to perform labor in or upon any new industry not at present established here, where such skilled labor cannot be otherwise obtained; and (3) professional actors, artists, lecturers or singers, and persons employed strictly as personal or domestic servants. The act, it will be observed, forbids in broad and general terms the employment of aliens "to perform labor or service of any kind," and specifies the classes of laborers or persons performing services to whom the prohibition shall not apply. In the case of United States v. Church of the Holy Trinity,2 it was held in 1888, by the circuit court of the United States, that the act was violated by the employment of a foreign clergyman to officiate as rector of a church in New York. The court said that every kind of industry and every employment, manual or intellectual, was embraced by the words "to perform labor or service of any kind," and prohibited the employment of alien ministers, lawyers, surgeons and all others who labor in any professional calling, and that the, mention of certain classes of professionals as not being within the prohibition of the act was equivalent to an express prohibition of the employment of all other classes of professionals.

This decision was reversed by the Supreme Court of the United States in 1892,3 upon the ground that the act was intended to prohibit only the employment of foreign "cheap, unskilled labor." In other words, the supreme court indirectly decides that the employment of an alien skilled laborer is not prohibited by the act. A person who receives as much as $2 per day for his labor or services cannot

that extent the decision is, of course, a mere obiter dictum, as the court did not have before it the case of an artisan or mechanic or other "skilled laborer," as distinguished from the case of a professional man. In consequence of this difference of opinion between the courts as to the true construction of the act, it was amended in 1891 by adding to the second proviso, excepting certain classes of persons from the operation of the law, the words "nor to ministers of any religious denomination, nor persons belonging to any recognized profession nor professors for colleges and seminaries." In the case of United States v. Laws, the supreme court held, affirming the court below, that a foreign chemist, employed to superintend the making of sugar on a plantation in Louisiana, was a member of a "recognized profession," within the meaning of the amendment of 1891, and that his employment was therefore not a violation of the law. But the court went further and reiterated the dictum of Mr. Justice Brewer in Holy Trinity Church v. United States, that the act prohibits only the em. ployment of "cheap, unskilled foreign labor." The construction which the treasury department and the public at large have placed upon the law, as it now stands, is that the employment of aliens in any business, calling or occupation, or to perform any labor or service, is prohibited by the act of 1885, unless the employee falls within one of the classes specially excepted by section 5 of that act, or by the amendment of 1891, from the operation of the law. The obiter dictum of the supreme court that the prohibition of the act extends only to the employment of "cheap, unskilled labor" has not been enforced by the treasury department, nor taken seriously by the great body of employers throughout the United States.

Inasmuch as the case of the employment of an alien mechanic or other "skilled laborer" not within the professional or quasi

the "cheap, unskilled labor" theory if the question were squarely presented there, the writer conceives that he may, with propriety, submit several reasons why the construction placed upon the act by the treasury department and the public should be maintained, at least so far as it applies to persons who receive wages of $2 per day and upwards, and who cannot be described as "cheap, unskilled laborers."

1. The express prohibition of the employment and importation of aliens "to perform labor or service of any kind" in the United States. Lest this language might be construed to extend to certain classes who could not come in competition with the great mass of American laborers, congress, in the fifth section, excepted professional actors, artists, lecturers, and singers from the operation of the act, and afterwards, by the amendment of 1891,7 extended the exception to "ministers of any religious denomination, persons belonging to any recognized profession, and professors for colleges and seminaries." Congress by these provisions unmistakably construes the act to extend to every class of laborers not embraced in the exceptions. It would be difficult to find any better evidence of the kind of laborers intended by the act. Congress having specified the classes of persons not within the operation of the statute, may the courts add another vague, general and indefinite class, namely, all persons coming here under contract "to perform labor or service" who capnot be classed as "cheap, unskilled laborers."

2. Section 5 of the act of 1885, provides s that the act shall not be so construed as to prevent the employment of "skilled workmen in foreign countries to perform labor in the United States in or upon any new industry not at present established in the United States, provided that skilled labor for that purpose cannot be otherwise obtained." This is as much as to say that no foreign skilled workman can be brought to

lished industries, to prohibit the introduction of alien skilled laborers under contract to perform labor or services here. This pro

vision of the law is not referred to by the supreme court in either of the two cases mentioned, and no attempt is made to reconcile the statement that the act was intended to exclude only "cheap, unskilled labor" with this indirect, but unmistakable, declaration that the purpose of the act is to exclude skilled as well as "cheap, unskilled laborers." 3. There is another provision in the act which shows that the prohibition is not to be restricted to the employment and importation of cheap, unskilled laborers. Section 4 imposes a severe penalty upon the master of any vessel who shall permit any "alien laborer, mechanic, or artisan" to land in the United States, knowing him to be under contract to perform labor or services here." mechanic or artisan is not a "cheap, unskilled laborer." The average wage paid him in America is from $2 to $3 per day, a sum three to four times as great as that paid laborers of the low and degraded kind referred to in the case of Holy Trinity Church v. United States.10 The opinion in that case contains no reference to this provision of the act.

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Other statutes also show that congress construes the prohibition to extend to the employment and introduction of alien skilled laborers. By the act of August 5, 1892,11 it was provided that exhibitors at the World's Columbian Exposition at Chicago might contract with and bring in "such mechanics, artisans, agents, or other employees as they may deem necessary for the purpose of installing or conducting their exhibits," and that any such alien remaining in the United States a certain length of time after the close of the exposition should be subject to all the penalties of the alien contract labor law. A similar provision is contained in a number of acts relating to fairs and expositions. 12 Of course, there would have been no necessity for any of these acts

act.

1885 is At that

placed by congress upon the act of found in the amendment of 1891.18 time the construction given the act by the treasury department was well known to congress. It had been brought to their attention by the proceedings against Trinity church in 1888 to recover the penalty of $1,000 for a violation of the law in bringing an alien to this country under contract to officiate as a clergyman. The application of the law was, at that time, the subject of much discussion and of many interviews between committees of congress and the officials charged with the enforcement of the Yet the amendment consisted merely of a provision which excluded professional persons from the operation of the statute. It seems reasonable to assume that if congress intended the act to apply only to the employment and introduction of "cheap unskilled labor" having knowledge of a different construction adopted by the treasury department, they would have set the matter at rest by expressing such intention in the amendment. Their failure to restrict the application of the act to "cheap unskilled labor" at this opportune time must, under such circumstances, be deemed a legislative adoption or affirmation of the departmental construction of the act.

5. The cases which have been decided by the courts, with the exception of the two cases already referred to and the case of United States v. Gay," recognize no distinction between skilled and unskilled labor in the application of the contract labor laws. The first case which arose was that of United States v. Craig, 15 which was a suit to recover the penalty for violating the law in employing and bringing to this country an alien ship carpenter. There was a demurrer to the declaration on the ground that the act was unconstitutional, but judgment was rendered for the plaintiff. It was not even suggested by the defendant that the employment of such a highly skilled mechanic was not forbidden by the act. The remarks of Mr. Justice Brown in this case were quoted in Holy Trinity Church v. United States as supporting the view that the act applies only to the employment of cheap unskilled labor

13 26 Stat. 1028.

14 05 Fed. Rep. 226.

15 28 Fed. Rep. 795.

ers. The result of the suit scarcely justifies the citation.

The next case was that of United States v. Thompson.16 Here the penalty of $1,000 was recovered from the defendant for employing and bringing in a French woman under contract as a milliner. Such a person, if very expert in her business, might be considered somthing more than a skilled laborer; the defense was that she was a "professional artist," within the exception of the statute. The court held that she was not such in the sense of the statute; but it was not suggested by any one that the act did not apply to the class of highly skilled operatives to which this person belonged.

In the case of United States v. McCollum17 it was held that the manufacture of "French silk stockings" was a "new industry" in the United States, which would justify the employment of alien skilled laborers if such laborers could not be found in the United States, but judgment for the penalty $1,000 was rendered against the defendant upon the ground that he failed to show a proper effort to find skilled weavers in this country. In the case of United States v. Bromley, 18 in which the alleged violation of the law consisted in employing and bringing foreign lace curtain makers to this country, judgment was rendered for the defendant on the ground that the manufacture of fine lace curtains was a "new industry" in the United States.

In all these cases it must be conceded that the employees were, to say the least, skilled laborers of a high class, yet in none of them was it intimated by the court or suggested by the defendants themselves, that the act applied only to the employment and introduction of cheap unskilled laborers.

In the case of the United States v. Gay,19 decided by the Circuit Court of Appeals in 1899, the question was squarely presented whether a certain person, who was not a common laborer, and who was not within any of the exceptions of the acts of 1885 and 1891, might lawfully be brought to the United States under a contract of employment. The employee in this case was a

16 41 Fed. Rep. 28. 17 44 Fed. Rep. 745.

18 58 Fed. Rep. 554. 19 95 Fed. Rep. 226.

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