432

commerce, interstate as distinguished from where it furnished and installed a heating plant, which was not so complicated that it had to be installed by the corporation; the installation representing 42 per cent. of the cost.-PeckWilliamson Heating & Ventilating Co. v. McKnight & Merz, Tenn., 205 S. W. 419.

Law

Discrimination.. 19. Constitutional Tax Law, § 221b, added by Laws 1917, c. 700, providing for an additional tax on investments in certain cases, held to constitute a discrimination, and not a classification, and repugnant to the Constitution, in that it deprives of their property individuals who succeed to property of particular individuals who have not stamped their securities or paid a personal tax.-In re Watson's Estate, N. Y., 172 N. Y. S. 29.

20. Estoppel.-A person who obtains a license and seeks to enjoy the benefits thereof cannot afterwards, when the license is sought to be revoked, question the constitutionality of the act requiring it.-Cofman v. Ousterhous, N. D., 168 N. W. 826.

of Obligation.-An ordi21. Impairment nance granting a franchise to a water company for 20 years, and agreeing to pay a yearly sum for fire hydrants, and also before or at the end of the term to buy the waterworks at appraised value, or to extend the company's "rights and privileges" for 20 years, constituted a contract, binding the city to either buy or extend, which was protected from impairment by the federal Constitution.-Ashland Water Works Co. v. City of Ashland, U. S. C. C. A., 251 F. 492.

22. Contracts-Public Policy.-A contract between a corporation stockholder, suing for a receivership, and a majority stockholder that the complaint would not be filed, that the action would be dismissed, and that no information as to its commencement should be given, thereby preventing a prospective purchaser of the corporation's property from learning the true to its condition, was against public facts as Eggleston and unenforceable.-1d., policy Pantages, Wash., 175 Pac. 34.

V.

of

Compensa

-Damages.-The

ues

34. Executors and Administrators-Continuing Business of Deceased.-Where personal representative of deceased, a liquor dealer, continwithout obtaining a business deceased's transfer of the business, the continuing sale is a violation of law, by which no claim to reimbursement is acquired, if loss results therefrom. land on In re Moran's Estate, Pa., 104 A. 585. Where 35. Fixtures-Machinery. which gins stood was sold, and deed of trust given, and company with notice of deed sold machinery for gins, chattel mortgage to secure price stipulating it should remain personalty, as against vendor of gins, seeking to foreclose deed of trust, machinery became part of realty, and deed could be foreclosed on it.-Murray Co. v. Contract. Jacksboro Oil & Milling Co., Tex., 205 S. W. 517. 36. Frauds, Statute of-Executed -If a bill of sale was delivered to plaintiff as a present conveyance, with actual or construetive possession, and he in turn conveyed land to defendant, the contract was fully executed, and the statute of frauds would not apply.Poplin v. Brown, Mo., 205 S. W. 411. Attachment.37. Fraudulent Conveyances — Where person settled his property in irrevocable trust for his own use for life, reserving power to devise by will, and that his wife and children should take if he did not exercise such power, property is subject to attachment by creditor of settlor.-Benedict v. Benedict, Pa., 104 A. 581. 38. -Proportionate Payment.-One who has recovered judgment against an insolvent for used to pay corporate money borrowed and debts, to the betterment of stock belonging to the insolvent's wife as well as to the insolvent, is entitled to subject her shares to the payment of a proportionate part of the judgment.-Starr v. Penfield, Mo., 205 S. W. 541.

39. Husband and Wife-Ratification.-Where wife, with knowledge that the husband had acted for her in two instances of extension of timber contract, failed to repudiate his action for one year in one instance, and two years in the other, she ratified his acts.-Bethea v. Beaufort County Lumber Co., S. C., 96 S. E. 717. boycott by a 40. Injunctions-Boycott.-A labor union invades the constitutional rights of the employer to conduct his business on terms of equality with others, and is illegal, even though the ultimate object is the welfare of the union members rather than injury to the

employer.-Webb v. Cooks, Waiters' and Waitresses' Union, No. 748, Tex., 205 S. W. 465.

41. Equity.-Merchant's covenant not to sell or permit to be sold on its premises during contract term any other patterns, and not to sell specified patterns except at label prices, being auxiliary to performance of agreements which could not be specifically enforced, could not be enforced by injunction until such relief was shown to be clearly necessary to prevent substantial injustice, in absence of adequate remedy at law.-Standard Fashion Co. v. Magrane Houston Co., Mass., 251 F. 559.

42. Mandatory. Where fire limits ordinance of town reserved to council discretion to determine whether violative building should be torn down, plaintiffs, dependent for standing in court on the ordinance, cannot call upon equity to exercise by mandatory injunction such discretion, reserved to the council, against defendant's violative wall.-Landon v. Kwass. Va., 96 S. E. 764.

- License.

43. Innkeepers Young Men's Christian Association, operating restaurant in its building, containing some 99-odd sleeping rooms, for accommodation of members and others, who may apply, is exempt from payment of restaurant license tax required by Ky. St. § 4224; the operation of the restaurant being in furtherance of the purpose for which the association was organized, and the association being exempt from taxation under Const. § 170, exempting from taxation "institutions of purely public charity."-Corbin Young Men's Christian Ass'n v. Commonwealth, Ky., 205 S. W. 388.

44. Insurance-Possession of Premises.-After the contract for exchange of properties, which the insured could not enforce, and by which the other party was not bound, the insured might recover for a loss under а fire insurance policy, though the other party had possession, and had paid as much as one-fifth of the agreed price.-Aetna Ins. Co. v. Aston, Va., 96 S. E. 772. 45.

Intoxicating Liquors-Liquor Selling by Club. Where members of local Order of Moose in no-license territory, desiring liquor, notified steward who ordered from wholesaler, liquor being shipped to and charged to club, and upon arrival distributed among members and kept either in locker used in common or in refrigerator indiscriminately until served by steward, the club, and its chairman of house committee and steward as its agents, were acting in violation of Wylie Local Option Act, § 14, prohibiting keeping, etc., of place within no-license territory where alcoholic liquor is sold, served, or distributed.-People v. Tinney, Cal., 175 P. 17. 46. Landlord and Tenant-Condemnation Proceedings.-A lessor is not bound to protect the lessee against condemnation proceedings, and, if part of the premises are taken thereunder, the tenant is nevertheless liable for the rent for the remainder not taken.-Schmid v. Thorsen, Ore., 175 P. 74.

47. Estoppel.-Where landlord's agent, after tenant's sale of his restaurant business and personalty in the premises, received rent payments from the buyer and called on him for further payment, the landlord did not thereby necessarily accept the buyer as a tenant.Pantaze v. Farmer, Tex., 205 S. W. 521.

48. Underletting.-Where lease made to three partners provides for forfeiture on assignment or underletting, and one lessee dies, and surviving lessees purchase his interest from his executors, covenant against assignment or underletting is not broken.-Swartz v. Bixler, Pa., 104 A. 591.

49. Libel and Slander-Libel Per Se.-Act of seller of clothes on installment in placing yellow cards, headed "Please take notice," in front door and in windows of buyer's residence, and on a stick driven near a sidewalk, stating that their collector had called and would not further annoy buyer, if she would pay the balance, tended to disgrace her in public estimation, and was libelous per se.-Thompson v. Adelberg & Berman, Ky., 205 S. W. 558.

50. Logs and Logging-Reservation in Deed. -Deed conveying land, "except any timber and coal upon said land that the party of the first part may want to use during his lifetime," except only such timber as grantor might want for personal use during life, not such as he might

desire to sell to others.-Bates v. Gayheart, Ky., 205 S. W. 559.

51. Mandamus — Ministerial Duty. Where county clerk, required by Code 1904, § 137, to "immediately make out" a certificate of election as mayor of a town and to deliver it to him on his request, failed to do so without good reason, mandamus will lie to compel him to issue and deliver the certificate.-Gregory v. Hubard, Va., 96 S. E. 775.

52. Master and Servant-Course of Employment. Chauffeur may be presumed prima facie to have been acting in course of his employment, where it appears, not only that master was owner of automobile, but also that car was being used as it was normally used in connection with master's business.-Frank v. Wright, Tenn., 205 S. W. 434.

53.- -Illiterate Employee.-Where an illiterate foreign laborer, without knowledge of methods of quarrying, was injured by an explosion while tamping a loaded hole with an iron bar, that being the only implement furnished to him, the master was liable, though he did not supply the particular bar, it having been the practice in the quarry to use iron bars for that purpose. -De Nardo v. Stephens-Jackson Co., Pa., 104 A. 584.

54.

-Respondeat Superior.-The owner of a car is not relieved of responsibility because he is not personally at the wheel, where another is driving with his permission, especially where the owner tacitly assents to the manner in which the car is driven.-Bell v. Jacobs, Pa., 104 A. 587. 55. Workmen's Compensation Act.-Servant in general employment of ice company injured at work in yard of coal company to which ice company let horses, wagon, and servant as driver, latter taking his orders from coal company, was in employment of coal company, and his remedy under Compensation Act was against its insurer.-Scribner's Case, Mass., 120 N. E. 350. -Workmen's Compensation Act.-An employer dealing in domestic fruit and vegetables, not involving storage, except as incidental thereto, at a place having a sign reading "Wholesale Vegetable and Fruit Market," was not within Workmen's Compensation Law (Consol. Laws. e. 67) § 2, group 29, as amended by Laws 1916, 622, defining as а hazardous employment "storage of all kinds and storage for hire."Dugan v. Harry J. McArdle, Inc., N. Y., 172 N. Y. S. 27.

c.

56.

57. Mortgages-Redemption.-Where a mortgage was foreclosed, and the property purchased at the foreclosure sale for mortgagor's benefit. under an oral agreement that mortgagor might redeem within reasonable time at price bid and 10 per cent. profit, together with an attorney's fee, or that the property might be resold, the balance, after deducting price bid, the profit, and the fee, to be paid over to mortgagor, the transaction constituted a mortgage and not a sale with liberty of repurchase.-Taylor v. Elgin, Tenn., 205 S. W. 428.

58.

Municipal Corporations-Breach of Contract. A provision, in a bond for performance of a construction contract, that the contractor shall pay all expenses that the village and its engineer may be put to by failure to complete on time, does not create liability for engineering services prior to the breach of the contract. Village of Council v. United States Fidelity & Guaranty Co.. Idaho, 175 P. 44. 59.

-Negligence.-Where a city has authority by statute to do a particular thing through its officers, it is not liable to a citizen for consequences that follow the doing. in the absence of negligence.-Lessenger v. City of Harlan, Iowa, 168 N. W. 803.

60. Use of Street.-City is not required to open all its streets for public travel, and its liability for injuries to pedestrian does not attach as to street neither accepted, opened, nor improved; but, if city permits use of street as such, though without improving it, it is liable. -City of Roanoke v. Sartini, Va., 96 S. E. 763. 61. Negligence-Intoxication. If deceased. with others, had engaged in a drinking bout. and all had become intoxicated, each was much responsible for the driving of the car by a drunken person as was the driver, and none could recover for injuries caused by negligent driving, under Highway Law, § 290, as amended

as

by Laws 1910. c. 374; it being a misdemeanor for an intoxicated person to drive an automobile on a public highway.-Kinnie v. Town of Morristown, N. Y., 172 N. Y. S. 21.

62. Proximate Cause.-Even if negligence is shown, it cannot be deemed the proximate cause of loss or damage, if an independent illegal act of a third party intervenes to cause the loss.-The Lusitania, U. S. D. C., 251 F. 715.

63. Partnership—Liquidation.-A liquidating partner of a firm dissolved by the death of a partner cannot make a firm note, whether it be a new contract or a renewal of a pre-existing film indebtedness; a rule applicable only when not differing from the law of the place where the partnership business is done and note given.— Wood v. Todd, U. S. C. C. A., 251 F. 530.

64. Physicians and Surgeons-Negligence.That an operation for cataract and for removal of plaintiff's right eye was unsuccessful, and that vision of left eye was lost, was not alone sufficient to establish the operator's negligence, as a surgeon cannot insure recovery, in view of the fact that, with due care, loss of sight results in a percentage of cases in operations for cataract depending largely on patient's condition.-Curran v. Holt, Me., 104 A. 579.

65. Principal and Agent-Agency.-Where purchaser of land at sale under power of sale in deed of trust buys the land pursuant to an agreement with mortgagor's husband whereby, in making purchase, he is to act for latter and is to be repaid indebtedness, purchaser is bound by such agreement, although he did not know husband was acting in behalf of his wife.-William v. Honeycutt, N. C., 96 S. E. 730.

66.--Burden of Proof. In an action for the value of a carload of lumber, defendant, setting up counterclaims on the ground its sale of lumber to a corporation was a sale to its officers and stockholders, including plaintiffs, and that as undisclosed principals they were liable for the corporation's default in payment, had the burden of proof.-Luedinghaus v. Dant & Russell, Ore., 175 P. 75.

67. Railroads - Breach of Contract. Purchaser of the property of a railroad in suit to foreclose a particular mortgage is not liable to third person for alleged breach of contract by the mortgagor or prior owner, unless by a decree of sale and confirmation and deed such purchaser has assumed such liability.-Brown v. Western Maryland Ry. Co., W. Va., 96 S. E. 799. 68.-Negligence.-The fact that persons injured in a collision at a crossing were in an automobile does not change the rule of ordinary care for their own safety at the time of the accident, but is a circumstance for consideration in determining the standard of care which must govern them and the degree of care they must exercise.-Hurt v. Yazoo & M. V. R. Co., Tenn., 205 S. W. 437.

69. Receivers Earnings of Receivership.Debts incurred by a railroad receiver and claims for materials and supplies for operation furnished within six months prior to his appointment are payable out of the earnings of the receivership, or even in a proper case from the corpus of the company's property, in preference to mortgages foreclosed.-New York Trust Co. v. Detroit, T. & I. Ry. Co., U. S. C. C. A., 251 F. 514.

70.- -Possession by.-Where the federal District Court, through its receivers, was in complete possession of all of the property of a railroad company against which a creditors'

bill

had been filed, that court, after having granted permission to a party to sue in the state court, may, it appearing that such litigation would not be for the benefit of the res, which was in the possession of the federal court, revoke the permission; there being no question of comity.-Investment Registry v. Chicago & M. Electric R. Co., U. S. C. C. A., 251 F. 510.

71. Reformation of Instruments-Documentary Evidence.-Where father-in-law executed deed to his daughter-in-law for expressed consideration, and in action to recover the consideration expressed grantee alleged that transfer

was a gift, the writings must prevail, unless the jury was clearly satisfied beyond any reasonable doubt that defendant's statement of the transaction was true.-Quinter v. Quinter, Pa., 104 A. 580.

72. Sales-Conditional Sale.-In replevin for an automobile, plaintiff's title being based upon a bill of sale signed by defendant, the question of the actual or constructive delivery of the property covered by the bill of sale at the time of the manual delivery of bill of sale by defendant to plaintiff, while not vital, had a bearing on the issue whether delivery of bill was conditional. — Heidenheimer, Strassburger & Co. v. Alexander & Baird, Tex., 205 S. W. 458.

73. Express Warranty. The description of millet seed contracted to be sold as "good, merchantable seed" is not properly an "express warranty," which is collateral to the contract, while a description of the quality of the goods is regarded as a part of the contract itself. Ferguson v. Johnson, Tex., 205 S. W. 512.

74.- -Modifying Contract.-Where plaintiff purchased defendant's accumulation of steel scrap, approximately 8,200 tons, and mailed an order in usual form, which called for the exact amount of 8,200 tons, plaintiff's mistake in assuming that the agreement called for an exact tonnage was one of law, and, not being disclosed to defendant, did not modify the written terms of the original contract.-Upson Nut Co. V. American Shipbuilding Co., U. S. D. C., 251 F. 707.

75. Non-Performance.-Where seller made unconditional agreement to sell specified amount of corn of certain grade, expecting to procure the corn from certain growers, the impossibility of obtaining the corn from such source will not excuse non-performance.-Nelligan v. Knutsen, Cal., 175 P. 18.

76. Street Railroads Contributory Negligence.-Plaintiff's intestate, a guest of the driver of an automobile, was guilty of contributory negligence, barring recovery for injuries received in a collision of the automobile with a street car at a crossing, where he paid no attention to the surroundings, although the street car was plainly visible, and neither the intestate, the driver nor the motorman saw the danger until it was too late to avert the collision.— Laudenberger v. Easton Transit Co., Pa., 104 A. 588.

77. Telegraphs and Telephones-Public Service Commission.-Under Page & A. Gen. Code, § 614-23, the public utilities commission, in fixing reasonable rates for a telegraph and telephone company, must have due regard to the value of all the property used, excluding the value of any franchise in excess of the amount actually paid therefor, and exclusive of any value by reason of monopoly, and as to necessity of reservations for surplus, depreciation, and contingencies.-Lima Telephone & Telegraph Co. v. Public Utilities Commission of Ohio, Ohio, 120 N. E. 330.

78. Trusts Constructive Trust.-There was no fraud against devisees, giving rise to a constructive trust, from the fact that, in the distribution of the estate, under a compromise agreement, under which there was decreed to an attorney, who had previously represented heirs given nothing by the will, the residue, known or hereafter known, such attorney failed to disclose his knowledge, acquired from papers in the executor's possession, of lands belonging to the estate, but not listed.-Heydenfeldt v. Osmont, Cal., 175 P. 1.

79. Due Process of Law.-Where corporate stockholders agreed for development of mining property of company and division of stock in certain proportions, complainant stockholder's portion of capital stock was impressed with trust in his favor, in accordance with contract, and was not liable, either at law or in equity, without his consent to be taken and sold to other persons, save by due process of law.Beltz v. Great Western Lead Mfg. Co., U. S. D. C., 251 F. 696.

Central Law Journal.

ST. LOUIS, MO., DECEMBER 20, 1918.

CAN A DEPARTMENT STORE BE DIFFER

ENTIATED FROM OTHER STORES FOR
PURPOSES OF TAXATION OR REGULA-
TION?

A correspondent has asked the question. whether department stores can be taxed differently from other stores, having regard to the fact that they constitute a group of separate business ventures, and that therefore each separate department ought to be separately taxed.

Such legislation, if properly framed, should not fear a test of its constitution

ality. The reason why "department store" legislation has heretofore proven a failure is the animus which peeps out of every provision in such acts. The intention is to destroy or cripple department stores in the interest of small merchants. This leads to the imposition of a heavy license tax on stores selling articles in more than one group of related merchandise. The distinction here employed is clearly void if regarded as a method of raising revenue, on the ground of lack of uniformity, not applying to all merchants alike; and, if regarded as a license regulation, it is also void, since the distinction rests on no consideration of public welfare, and is therefore purely arbitrary. The usual weakness of such legislation is shown by two leading cases on this question. Wyatt v. Ashbrook, 154 Mo. 375; Chicago v. Netcher, 183 Ill. 104.

In State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 48 L. R. A. 265, it was held that a statute which prohibited retail stores having more than one department of related goods, wares and merchandise, as specified in the act, from engaging in business without first securing a license therefor, which license was to be issued by the license commissioner of cities having a population of 5,000 or over, to which cities only the act applied, was unconstitutional, because,

if regarded as a tax, the law was not uniform and, if regarded as a license for the purpose of "regulating" a business, the statute did not come within the police power, since it did not tend to the preventing of any offense or manifest evil and could not be said to be aimed at the preservation of the public health, morals, safety or welfare.

The court recognizes that a particular class in a community may be singled out for the imposition of restraints or burdens. not imposed upon and not to be borne by all, "and that even particular individuals in a class can be so restrained and burdened, provided the imposition of the particular restraint" is based, "upon existing distinctions that differentiate the particular individual of the class to be affected from the body of the community." But the court declares that in the absence of such differentiating distinctions or of some public purpose to be served, the statute is class legislation of a most reprehensible type. The court voices its feelings as well. as its judgment against this form of class legislation in the following language:

"No reason has been given or suggested, and, to our minds, none can be conceived, why the arbitrary selection of persons and corporations having or exposing for sale, in the same store or building, under a unit of management or superintendency, at retail, in the cities of the state having a population of 5,000 inhabitants, any article of goods, wares or merchandise of more than one of the groups designated in the act, was made for the imposition of the license fee provided in the act, from which all other persons and merchants of the state are exempted. Such classification is wholly without reason or necessity. It is so arbitrary and unreasonable as to defy suggestion to the contrary. The simple statement of its creation is a most fatal blow to its continued existence. It is truly "classification run wild." To have made the act apply to all merchants of a given avoirdupois or to those employing clerks