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J. Q. B. Div. 119, shook the authority of NOTES OF IMPORTANT DECISIONS. some of the older decisions in England and America. In that case, wbich was very ex
UNBORN CHILD — Right OF ACTION FOR tensively considered, boiler makers in com
WRONGFUL DEATH.-Wbat rights have unborn
children or their parents for injuries sustained mom employment with the respondents, who
while in that state of existence? This is certainly were shipwrights working on wood, objected a very novel question of law, even if it is not one to work with the latter on the ground that in which is likely to arise with important frequency. a previous employment they had been en
An interesting phase of the qnestion arose in the gaged on iron work. The appellant an offi
recent case of Gorman v. Budlong, 49 Atl. Rep.
704, where the Supreme Court of Rhode Island cial of the boiler makers' union, in response
held that where a mother was injured tbrough to a telegram from one of the boiler makers, the negligence of defendant so that she gave came to the yard and dissuaded the men premature birth to a child, which died as a result from immediately laying down their work, as of the premature delivery, the statute did not they threatened to do, indicating that, if they
entitle the child's father to maintain an action,
as the next of kin, for its wrongful death. In did so, he would do his best to have them
this case Gen. Laws, ch. 233. $ 14, provides that deprived of the benefits of the union, and
whenever death shull result from a wrongful act also fined. They must wait until the matter the next of kin may maintain an action therefor, was settled. The appellant then saw the if the negligence was such that the deceased managing director, to whom he said that if
could have maintained an action bad be survived.
A cbild en ventre sa mere is a child wbile yet the respondents, who were engaged from day
unborn. Under Lord Campbell's Act, therefore, to day, were not dismissed, the boiler mak
an infant may claim compensation for the loss, ers would leave their work or be called out. while en ventre sa mere, of an immediate relative. The respondents were thereupon dismissed. Nelson v. Railroad, 78 Tex. 621. This is about Held by six of their lordships as against as far as the cases go in giving right to infants tbree, tbat no actionable wrong had been
or parents to sue for injnries to either wbile
the former are en ventre sa mere. That a committed by the appellant. In the very
| parent cannot have a right of action in such case recent case of Hollenbeck v. Ristine, 86 N. is based upon the fact that the sole reason giving W. Rep. 377, the Supreme Court of Iowa a right of action in such cases is altogether wantheld generally that one person cannot advise ing, i. e., loss of services. The services of a child another to discbarge an employee, accom
in that stage of being is, of course, of no value
whatever, and the father suffers no pecuniary loss panying bis advice with libelous charges
in its death. and escape liability therefor. In this case the surgeon of a street railroad
ASSIGNMENT OF UNEARNED SALARY. - The intimated to the president that he would dis question of the validity of an assignment of uncontinue his relation with the company un earned wages is often litigated. In its application less a certain employee, & conductor on the
to public officers this question arose recently in the
case of Holt v. Thurman, 63 S. W. Rep. 280, where road, was discharged. It seemed that the
the Supreme Court of Kentucky held that the as. conductor owed the physician a bill for sery
signment by a public officer of salary to be earned ices which the latter claimed he refused to | in future is void as against public policy. We pay but was “cowardly slinking behind the review the latest authorities on this question as statute of limitations.” The court, in com
follows: An assignment of wages to become
due, without limit as to amount or time, and menting on the case of Allen v. Flood, says:
without acceptance by the employer, and without “In that case the appellant made no mali.
notice to attaching creditor is void as to such cious charge against the complainants. There creditor. Steinbach v. Brant, 29 Minn. 383, 82 N. was no evidence of threat or coercion. We W. Rep. 651. An assignment of future wages which thi:k the case is not in point, and, if it were,
may be earned under a contract of employment that the rule announced is well sustained
not yet in existence is void. Tohman v. Roofing
Co., 9 Ohio S. & C. P. Dec. (1899) 501. An asby the authorities of this country, and we
signment of salary to become due to a pulbic of. see no reason to depart from it.” Recent ficer is void. August v. Crane, 59 N. Y. S. 583. cases supporting the court in this case are It was also held in this case that an assignee in the following: Moran v. Dunphy (Mass.), 59 such a case cannot claim that he was misled by N. E. Rep. 125; Martens v. Reilly (Wis.),
an assurtion in the written assignment tbat the
claim was a "legal claim" against the city, the 84 N. W. Rep. 840; Angle v. Railroad
assignment being void. One bired by the day (U. S.), 14 Sup. Ct. Rep. 240.
may make a valid assigement of his future earn
ings. Dolan v. Hughes (R. I. 1898), 40 Atl. Rep. I court, it can invest him with the power of sale, 344; Wellborn v. Buck (Ala. 1897), 18 South. Rep. the intention of the testator is defeated. The 786. Where an assignment of salary or fees to be power to make the devise is useless if equity can, come due to a district attorney is not filed until in effect, annulit. Many American courts hold. after such services are rendered, the assignment to the English doctrine on this subject; while will be considered as made before the rendition | many also hold that equity may decree the sale of of such services. State v. Barnes (S. D. 1897), 73 land of an infant whenever it shall be for its inN. W. Rep. 80. An assignment by an assessor or terest to have a sale of them made. In reference other public officer of bis salary or compensation, I to these American cases we are disposed to repeat for future service, is contrary to public policy and what was said by the court in Freeman v. Guion, void. Tbis rule applies also where the service is 11 Smedes & M. 58, above quoted, at most, if not continuing and incomplete, not yet payable. Ste all, the American cases holding a doctrine adverse venson v. Kyle (W. Va. 1896), 24 S. E. Rep. 886. to the English rule, bave been decided since the
adoption of our constitution of 1832, and of necesREMAINDERS-SALE BY PARENT AS LIFEsity it was not adopted with any reference to their TENANT FOR REINVESTMENT.-Whether a court holdings." A list of the authorities on each side of equity has authority to authorize a parent, of the question may be found in the case of kielwho has a life estate in realty, with remainder | ards V. Railway Co., 106 Ga. 614, 33 S. E. Rep. over to her minorchildren, to sell ihe property in 193. fee for the purpose of reinvestment, or to enhance the interest of the remainder-men, JUDGMENT - EQUITABLE ASSIGNMENT.-The and whether such a sale defeats the interest equitable assignment of judgment is a quesof such remtinder-men, has always been tion often litigated. An interesting pbase of the an interesting and controverted question. In the question appeared recently in the case of Harris recent case of Hoskins v. Ames, 29 South. Rep. | v. Manufacturing Co., 30 South. Rep. 273. 828, the Supreme Court of Mississippi held that that case complainant recovered a judgment of where a mother, who owns a life estate in real $436.13 against defendant, and a few days later estate, with remainder over to her minor children, defendant recovered a judgment of $200 against sells the property in fee under an order of court, complainant. Defendant was insolvent, and had which sale is invalid as to the remainder, limita agreed to give his attorneys 40 per cent. of the tions in favor of the purchaser do not commence judgment recovered in his favor. Complainant to run against the remainder men until the death sued to set off the defendant's entire judgment of of the mother. The court gives this interesting $200 against a like amount of complainant's judgreview of the origin of the review in England: ment. Held, that there was an equitable assign
In England the rule is well settled that such ment in præsenti of 40 per cent. of the judgment equity has no inherent power to sell the real estate to defendant's attorneys, and it was error to grant of an infant as being forits best interest or for rein. the set-off for the full amount. The most striking vestment. Lord Chancellor Hardwicke, declared part of the court's opinion is its reference to the by Lord Campbell to be the most consummate briefs of counsel. The court said: “The pri njudge who ever sat in the court of chancery, in ciples of law applicable, and the auborities Taylor V. Philips, 2 Ves. Sr. 23, said: "There is in which they may be found on both sides, no instance of this court's binding the inberit. are 80 admirably set forth by the respective ance of an ipfapt by any discretionary act of the counsel for appellant that we direct their briefs court. As to personal things, as in the composi- 1 to be published in full.” We quote from appeltion of debts, it has been done, but never as to the lant's brief as follows: inberitance; for that would be taking on the court "An assignment of a cause of action may be a legislative authority.-doing that which is either a legal assignment or it may be equitable properly the subject of a private bill.' And since assignment. In case of a legal assignment, as that time—a period of more than 150 years—we a matter of course, all the formalities of transfer find no case in the English decisions that contra have to be complied with. But where it is an venes the doctrine established in that case. The equitable assignment it does not obtain ite validity English parliament was accustomed, at the sug from the observance of legal formalities, but gestion of the judges, to pass a bill authorizing from the intention of the parties. Any order, the court of equity to decree a sale of the infant's writing, or act, or any oral or written declaration real estate for reinvestment; but the court of its evidencing an intention to make an assignment, own authority, as an equity court and without the is just as effectual as the most formal instrument. power conferred by a legislative act, has always The leading authority is to be found in Pass v. declined to order the sale of the inheritance of an McRhea, 36 Miss. 143; 3 Pom. Eq. Jar. $$ 1271, infant. Edmund · Hatch, in his will, devised 1282; and Williams v. Ingersoll, 89 N. Y. 518. a life interest to his daughter and a fee to Also the following authorities are cited: Bisp. her children, his grandchildren. It is the Eq. $ 167; Macklin v. Kinealy, 141 Mo. 113, 41 S. clear intention of the testator tbat the life W. Rep. 893; Story, Eq. Jur. 376. The agreement tenant should have no power to dispose of the i by Harris to give his attorneys •40 per cent. of fee; and yet if, by & petition in the chancery the amount that they should recover in judg
ment vested in the attorneys, then and there a yalid equitable interest in the judgment. Harris bas done all that he could do to make an equitable assignment to his attorneys. And if it is an equitable assignment as to him, it must be an equitable assignment to all parties who represent him, and they cannot avail themselves of any irregularties that Harris bimself could not take advantage of. A leading case on this subject is to be found in Patton v. Wilson, 34 Pa. 299, and at the close of the opinion to be found in Ramsey's Appeal, 27 Am. Dec. 301; 3 Pom. Eq. Jur. $$ 1271, 1282; Bisb. Eq. § 167.
"A judgment creditor only gets the right to satisfaction of his judgment out of the property that his judgment debtor actually owns, and bis judgment lien only extends to the actual interest of the judgment debtor in any property on which he attempts to have his judgment satisfied, and if his judgment debtor is the apparent owner of any property, and an execution is levied by the judgment creditor on that property, and it is impressed with an equitable ownership in some third party, the equitable owner of the title is obliged to prevail, as against the execution of the judgment creditor without notice, for the reason that he can only succeed to such interest as the judgment debtor bad in the property, and, being a volunteer, so to say, he cannot complain that he has no notice of the equitable ownership. Foute y. Fairman, 48 Miss. 536; Mississippi Val. Co. y. Chicago, St. L. & N. 0. R. ('o., 58 Miss. 846." Other cases wbich might be cited : Ames v. Bates, 119 Mass. 399; Hovey v. Morrill, 60 Am. Rep. 316; Van Pelt v. Boyer, 8 How. Pr. 320; Swiit v. Prouty, 64 N. Y. 546; Hackett v. Connett, 2 Edw. Ch. 73; Deans v. Robertson, 64 Miss. 195.
colonies and Great Britain, it is declared "that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do." This clause, considered in coppection with the events succeeding the promulgation of the instrument which contains it, indicates an intention on the part of the colonists to be "free and independent” from restraint of whatever character, to the fullest extent consistent with the protection and conservation of their individual rights and liberties. The game instrument indicates further the state of mind to which oppression of various kinds had led the founders of our government, wben it is declared that "we hold these truths to be self-evident that all men are created equal; that they are endowed by their creator with certain unalienable rights ; that among these are life, liberty and the pursuit of bappiness.”
It cannot be doubted that the same ideas were present in the minds of the framers of our constitution, or that it was sought in the latter instrumeat to give permanent effect to the declarations of the former. In the present inquiry it becomes, therefore, pertinent to investigate the meaning of the “full power to * * * establish commerce,” and of “life, liberty, and the pursuit of bappiness.” The federal constitution, article 1, section 8, provides that: The congress shall bave power, * * * to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Concerning what constitutes commerce between the several states Judge Cooley, in his Principles of Constitutional Law, at p. 66, says: “To constitute commerce between states it is essential that it be pot confined to one state exclusively, but concern more than one. * * * The commerce of a state which congress may control uust in some stage of its progress be extraterritorial.” In this connection be cites the following cases.' In Veazie v. Moor? it is said: "A pretension as far reaching as this—that because the products of domestic enterprise in
DOES THE UNITED STATES CONSTI.
TUTION INHIBIT STATE LAWS LIM.
It is proposed to deal with this question irrespective of the wording of particular statutes, on its merits, in the light of judicial determination which seems to be in point, and the language of the constitution itself, as construed by the courts and leading text book writers. Should it or not seem possible, under existing law, that such statutes may be enacted, it is beyond the purpose of this article to discuss the desirability of doing so. In the absence of a constitutional bar, the latter question is purely legislative in cbaracter and thus beyond the purview of judicial inquiry, to which is confined the question here propounded. In the Declaration of In. dependence, which severed the political bonds theretofore existing between the American
1 Gibbons v. Ogden, 9 Wheat. I, 189; The Passaic Bridges, 3 Wall. 782; Veazie v. Moor, 14 How. 568, 674.
14 Hon. 568, 674.
agriculture or manufactures or in the arts | Principles of Constitutional Law, p. 225, may ultimately become the subjects of com Judge Cooley says: “Life and liberty. merce outside the state, that the control of These words are used in constitutional law the means or the encouragements by wbich as standing for and representing all personal enterprise is fostered and protected is implied rights whatsoever, except those wbich are in the important grant of power'—would ex embraced in the idea of property. The tend to contracts between citizen and citizen comprehensive word is liberty; and by this of the same state, would control the pur is meant, not merely freedom to move about suits of the planter, the grazier, the unrestrained, but such liberty of conduct, manufacturer, the mechanic, the immense choice and action as the law gives and prooperations of the collieries, the mines and tects.” furnaces of the country; for there is not one In bis Constitutional Limitations, at p. 734, of these avocations the results of which may the same author says: “In the early days not become the subjects of foreign commerce, of the common law it was sometimes thought and be borne, either by turnpikes, canals, necessary, in order to prevent extortlop, to or railroads, from point to point within the interfere, by royal proclamation or otherwise, several states, towards an ultimate desti- and establish the charges that might be exnation. Such a pretension would effectually acted for certain commodities or services. prevent or paralyze every effort at internal The price of wages was oftener regulated improvement of the several states; for it can than than of anything else, the local magisnot be supposed that the states would exhaust trate being generally allowed to exercise autheir capital and their credit in the con thority over the subject. The practice was struction of turnpikes, canals, and railroads, followed in this country and prevailed to the remuneration derivable from wbich might some extent up to the time of independence. be immediately wrested from them, because Since then it has commonly been supposed such public works would be facilities for that a general power in the state to regulate commerce which, whilst availing itself of prices was inconsistent with constitutional these facilities, was unquestionably interpal, liberty. It has nevertheless been conceded although immediately or ultimately it might that in some cases this might be done; become foreigo.”
* * * the ground appears to be that the emIt follows that, because of its very nature, ployment * * * is a public or quasilabor is not to be included within the com public employment; that their property in merce, power to control and regulate wbich the business is affected with a public inis granted to congress. What, then, may be terest.' and thereby brought under that the federal powers, touching labor, under general power of control which the state pog. other clauses of the constitution? The sesses in the case of other public employ. clauses which bear upon the question are as ment. * * * What circumstances shall follows: “The citizens of each state shall affect property with a public interest is not be entitled to all privileges and immunities very clear. The mere fact that the public of citizens in the several states.""No per have an interest in the existence of the busison shall be deprived of life, liberty or prop ness and are accommodated by it cannot be erty without due process of law; nor sufficient, for that would subject the stock shall private property be taken for public use of the merchant and his charges to public without just compensation.'4 * * * regulation. The public have an interest in "No state shall make or enforce any law which every business in which an individual offers shall abridge the privileges or immunities of his wares, his merchandise, his services, or citizens of the United States ; nor shall any bis accommodations to the public; but his state deprive any person of life, liberty or offer does not place him at the mercy of the property without due process of law, nor | public in respect to charges and prices. * * * deny to any person within its jurisdiction In the following cases we should say that the equal protection of the laws.” In his property in business was affected with a pub
lic interest: 1. Where the business is one 3 Article 4, Section 2.
the following of which is not of right, but 4 Amendments, Article 5. 5 Amendments, Article 14.
s permitted by the state as a privilege or
franchise. * * * 2. Where the state, undertake to provide that persons following on public grounds, renders to the business some specified lawful trade or employment special assistance, by taxation or otherwise. should not bave capacity to make contracts, 3. Where, for accommodation of the business, or to receive conveyances, or to build such some special use is allowed to be made of houses as others were allowed to erect or public property or of a public easemeni. 4. | in any other way to make such use of their Where exclusive privileges are granted in property as was permissible to others, it can consideration of some special return to be scarcely be doubted that the act would tranmade to the public. Possibly there may be scend the due bounds of legislative power, other cases."
even though no express constitutional provisThus clearly is it stated by the eminent ion could be pointed out with which it would authority quo'ed that the rights indicated by come in conflict. To forbid an individual or the words “life, liberty and property,” as a class the right to the acquisition or enjoy. here used, include all personal rights what ment of property in such manner as should soever, emphasizing meanwbile the proposi be permitted to the community at large, tion that the only rights wbich our constitu would be to deprive them of liberty in partion contemplates shall be conserved to the ticulars of primary importance to their 'purindividual are such as may be exercised with suit of happiness ;' and those who should due consideration to the equal rights of claim a right to do so ought to be able to others. He also points out that the right to show a specific authority therefor, instead of labor and to contract for the employment of calling upon others to show how and where labor as shall seem best to the contracting the authority is negatived."? Also: "The parties, bas, since the institution of our gov general rule undoubtedly is, that any person ernment, been considered so distinctively a is at liberty to pursue any lawful calling, and matter of personal concern, properly inde- to do so in his own way, not encroaching pendent of governmental interference, as upon the rights of others. Tbis great right that its regulation by the state has been cannot be taken away. It is not competent, deemed "inconsistent with constitutional therefore, to forbid any person or class of liberty." Concerning the right of the in | persons, whether citizens or aliens, offering dividual to seek employment for his labor, | their services in lawful business, or to subthe same learned authority says: "The gen | ject others to penalties for employing them.”8 eral rule is that every person sui juris bas a Again: “Every person sui juris bas a right right to choose bis own employment, and to to make use of his labor in any lawful emdevote his labor to any calling, or at his ployment on his own behalf or to bire it out option to hire it out in the service of others. in the service of others. This is one of the This is one of the first and highest of all civil first and highest of civil rights."9 Also: rights, and any restrictions that discriminate “Every man controls his own property as he against persons or classes are inadmissible. pleases, puts it to such use as he pleases, im* * * Employments are nevertheless sub- proves it or not, as he may choose, subject ject to control under the state power of only to the obligation to perform, in respect police, and may be regulated in various ways, to it, the duties be owes to the state and to and to some extent restricted : 1. The state | bis fellows. The state cannot substitute its may forbid certain classes of persons being judgment for bis as to the use he should make employed in occupations which their age, of it for his own advantage."10 sex or health renders unsuitable for them. | Along similar lines is the following: “In * * * 2. The state may require special so far as the employment of a certain class training for some employments, and forbid | in a particular occupation may threaten or persons engaging in them who have not inflict damage upon the public or third perproved their filness on examination, and | sons, there can be no doubt as to the constibeen duly licensed. * * * 3. Any oc tionality of any statute wbich prohibits their cupation opposed to public policy, like that of gaming, may be prohibited altogether.”6
I Cooley's Constitutional Limitations, p. 486.
8 Cooley's Constitutional Limitations, p. 745. Again he says: "If the legislature should
9 Cooley on Torts, p. 326. * Cooley's Principles of Constitutional Law, p. 231. I 10 Cooley on Torts, p. 337.