the jurisdiction of New Jersey, he having been brought into court by service of notice as a non-resident defendant in New York, in accordance with the provisions of our statute and the practice of the Court of Chancery." The decree of the vice-chancellor, dismissing the bill for divorce, on the ground that the plaintiff had acquired the New Jersey domicile for the purpose of procuring a divorce, is reversed.

"But it was insisted by the learned vice. chancellor that, in addition to the requirements of the statute as to residence as above defined, the residence cannot be acquired with the desire or intention to procure a divorce. On page 519, 62 N. J. Eq., 50 Atl. 792, Wallace v. Wallace, supra, he says: 'It has been my rule, and I believe that of the other members of the court, not to grant a decree for divorce for desertion based upon a service out of the jurisdiction and a domicile not matrimonal, unless such domicile has been acquired under circumstances showing sufficient and controlling reasons for its acquisition, other than the desire to procure a divorce, and certainly never when the avowed object was to obtain that relief.'

"The practical effect of this doctrine is to prevent a citizen who removes into this State from another, even though such removal be made bona fide with animus manendi, from acquiring a residence here sufficient to sus

It is impossible to say what the general condition of interstate matrimonial law will be after the Supreme Court of the United States shall have passed upon additional cases that may arise. In Atherton v. Atherton (181 U. S., 155) it appeared that the parties had had a matrimonial domicile in Kentucky and that the wife had left the same and gone to New York. A divorce procured by the husband upon substituted service of process in Kentucy, where he had remained, was held extra-territorially valid. Much of the discussion in the opinion sug-tain an action for divorce, unless some reason gested the probability that the Supreme Court would recognize divorces upon substituted service in subsequent cases if it did not appear that the plaintiff had been guilty of actual fraud upon the court or upon the defendant. The decision of the Supreme Court of the United States, in Andrews v. Andrews, 23 Sup. Ct. Rep. 237, however, took the ground that if a spouse had procured a temporary foreign domicile merely for the purpose of obtaining a divorce, the same would not be extra-territorially valid, although the defendant had actually appeared in the action. Neither of these Supreme Court decisions is necessarily inconsistent with the New Jersey case first above cited, because in the latter it appears that the domicile was bona fide for general purposes. Nevertheless, in Andrews v. Andrews supra, as in Bell v. Bell, 181 U. S. 175, and Streitwolf v. Streitwolf, 181 U. S. 179, the question was expressly reserved "whether jurisdiction to render a divorce having extraterritorial effect could be acquired by a mere domicile in the State of the party plaintiff, where there had been no matrimonial domi

cile in such State." The New Jersey case presents such reserved question. Upon the point passed on by the Court of Errors and Appeals, the following language from the opinion is of interest:

for acquiring such residence be shown other, than the desire to procure a divorce; its legal effect is to substitute for the public policy established by the legislature a judicial policy of contrary import. I concur entirely in the principle laid down by the special master in this case that a person may legitimately move to another State in order to avail himself of the laws of that State, and this includes necessarily the right to remove into the jurisdiction of this State for the purpose of procuring a divorce, the only requirements being absolute good faith in the taking up of such residence and of the animus manendi. In other words, the factum of residence and the animus manendi prove the domicile; Magowan v. Magowan, 57 N. J. Eq. 324, 42 Atl. 330, 73 Am. St. Rep. 645; Harral v. Harral, 39 N. J. Eq. 285, 51 Am. Rep. 17."-New York Law Journal.

Chicago's Liabitity for Iroquois

Theater Fire.

Considerable discussion has appeared in the public press, respecting the suits brought against the ciy of Chicago on account of the Iroquois Theater fire. They are said to be based on the failure of the city to enforce its ordinances that would have prevented the

fire. But the decisions of the courts give A statute requiring the weekly payment of wages is held, in Republic Iron & S. Co. v. State (Ind) 62 L. R. A. 136, to deprive citizens of their liberty and property without due process of law, interfering with the liberty of contract.

A railroad company carrying mail under contract with the United States government is held, in Boston Insurance Co. v. Chicago, R. I. & P. R. Co. (Iowa) 59 L. R. A. 796, to owe no duty to the sender of a particular registered package of mail, which will give him a right of action in case the package is destroyed through the negligence of the company's servants.

little basis for such suits. The courts have usually denied the liability of a city for failure to enfore ordinances against fireworks in streets, even when the city officers participated in setting off the fireworks, or even when they expressly suspended the ordinances for the occasion. Cases to this effect are collected in a note in 16 L. R. A. 395. To similar effect it is held, in O'Rourk v. Sioux Falls (S. D.) 19 L. R. A. 789, that a city is not liable for the violation of an ordinance, with the acquiescence of the officials, by firing a cannon in a public street. Fail ure to enforce other ordinances, such as those against coasting on a public street, has been held, as in Wilmington v. Vandergrift (Del.) 25 L. R. A. 538, to create no liability Although a railroad company enters into against the city. But an apparent exception a joint contract with another company for to the general rule is found in the Maryland the transportation of goods to a point beyond case of Hagerstown v. Klotz, 54 L. R. A. the end of its own line, it is held, in Union 940, holding the city liable for failure to enState Bank v. Fremont, E. & M. V. R. Co. force an ordinance Jimiting the speed of (Neb.) 59 L. R. A. 939, to be competent for bicycles on streets. And where the city exit to enter into an express contract with the pressly authorized the explosion of fireworks, shipper limiting its liability to the transwhich constituted a dangerous public nuis-portation of the property over its own line. ance, it was held liable, in Speir v. Brooklyn (N. Y.) 21 L. R. A. 641.

Upon trial of an indictment for murder, proof of the killing of a third person is held in People v. Molineux (N. Y. 62 L. R. A. 193, not to be admissible. A very elaborate note to this case reviews all the other authorities on evidence of other crimes in criminal cases.

The commission of incest by a man, is held in State v. Burt (S. D.) 62 L. R. A. 172, not to be a crime against his wife, within the meaning of a statute forbidding the latter to be a witness against him without his consent, except when he is prosecuted for the commission of a crime against her.

That a corporation has acquired its corporate name from the state, is held, in Peck Bros. & Co. v. Peck Bros. Co. (C. C. App. 7th C.) 62 L. R. A. 81, not to prevent a Federal court from enjoining it from using the name at the suit of a corporation of another state, if the statute permitted the corporators to select the name, and it was chosen fraudulently for the purpose of appropriating the good will of the other corporation.

A denial of the equal protection of the laws is held, in Rogers v. Alabama, adv. Sheets U. S. 1904, 257, to be made by ruling of a state court upon a motion to quash an indictment because of the exclusion of negroes from the grand jury lists, by which such motion, though but two printed octavo pages in length, was struck from the files under the color of local practice for prolix

An aggravation of personal injuries caused by the neglect or failure of the injured person to obtain the needed medical or surgicality, because it contained an allegation that assistance is held, in Texas & P. R. Co. v. White (C. C. App. 5th C.) 62 L. R. A. 90, not to be chargeable against the party by whose negligence the orignal injury was received.

certain provisions of the newly adopted state Constitution claimed to have the effect of disfranchising negroes because of their race worked as a reason in the minds of the jury commissioners for their action.

Pittsburgh Legal Journal Fox, secretary.

ESTABLISHED 1853.

EDWARD B. VAILL, EDITORS.
THOMAS EWING,

N. S. Vol. XXXIV.

0. S. Vol. LI.

PITTSBURGH, PA., APRIL 6, 1904.

That an adjourned, or

special, meeting of the board was held on the evening of December 14, 1903, at which all members were present. After being called to order by the president the board proceeded to ballot for a representative to No. 38. the Central Board of Education. George N. Stirling and John T. Fox, having been placed in nomination, a ballot was taken with the result that each candidate received

Court of Common Pleas No. 2, three votes. Six ballots were had with the

ALLEGHENY COUNTY.

COMMONWEALTH ex rel. v.

FOX, et al.

same result. During the balloting unsuccessful efforts were made by the Stirling supporters to suspend voting for the purpose of considering other business and also to adjourn. After the result of the sixth ballot had been announced and a motion to adjourn had been lost by a tie vote, Messrs. Stevenson, Wallace and Whitney, all of whom had voted for Mr. Stirling, withdrew from the meeting. Immediately following the withdrawal of these three members those remaining, namely, Messrs. Fox, Ward and Ginniff, elected Mr. Ward president pro tem, declared the seats of Messrs. Stevenson, Wallace and Whitney vacant, elected others to take their places, and with the three new members who were brought into the meeting elected Mr. Fox as representative to the central board. Since that time respondents The proceeding was not in accordance with the 44th section of the Act of February 12, 1869, pro-bers of the board, and have refused to perhave declined to recognize relators as mem

School Directors-Duties-Right to oust direct-
ors-Act of February 12, 1869, section 44.
At a special meeting of a board of school directors
numerous ballots were taken for a representative
to the central board. Three members, including
the president, then left the meeting, and the
other three members proceeded to declare their
places vacant, elect others in their place, and
thereafter refused to recognize the three who left
the meeting as members of the board. Held,
that this action was void, and a peremptory
mandamus should issue requiring respondent to
recognize and meet with the relators as lawful

directors.

viding that director's seates be declared vacant when the directors neglect to act in their official capacity when in attendance upon meetings. The directors ousted had not neglected to attend to

their duties while in attendance.

No. 998 Jany. T., 1904. Demurrer to return to alternative writ of mandamus.

Opinion by FRAZER, P. J. Filed January 26, 1904.

mit them to take part in the board meetings. Relators now ask that respondents be re quired to recognize and act with them as the lawful board of directors of the Moorehead sub-school district. The minutes of the board referring to the removal of the relator, Dr. Stevenson, and the election of his successor, are as follows:

"At this point, President Stevenson and Messrs. The answer which, under the demurrer, Wallace and Whitney refused to transact the prowe must assume to be true, sets forth that per business before the Board and refused to remain A. M. Stevenson, John Whitney, James T. at the meeting and a declaration was made by one Wallace, John T. Fox, E. H. Ginniff and or more of them as follows: 'We are not going to Robert S. Ward were duly and legally elected remain here all night; you can if you want to,' and members of the board of directors of the they all abruptly and unlawfully left the meeting Moorehead sub-school district of the city of and the place of meeting. The Chairman having Pittsburgh, and in pursuance of such election refused to perform the duties of his office and havwere, on the 14th day of December, 1903, Ginniff, seconded by Fox, that Mr. Ward be made ing unlawfully left the meeting, it was moved by entitled to and respectively were exercising President pro tempore, which was agreed to unanithe duties of such office. That A. M. Steven-mously by the Directors present, namely, Messrs. son was president of the board and John T. | Fox, Ward and Ginniff. It was moved by Ginniff,

seconded by Fox, that the seat of A. M. Stevenson, a member of this Board, be declared vacant in accordance with the law in such cases made and provided, for refusing to return or to act in his official capacity or perform the duties of his office as above shown, which was unanimously agreed to by the

ceedings complained of were taken refers to both regular and special meetings and applies to a director's neglect to act at one meeting instead of two, which is by no means certain; its provisions can only be invoked to remove a director who neglects to act "when in attendance." The plain purpose of the law being to provide for the removal from office of a director who attends meetings of the board and by refusing to participate in the proceedings "when in attendance" impedes, delays and interferes with the transaction of business. A director present at a meeting must take part in the proceedings while there, otherwise he may be ousted from office under the clause of the act above referred to. In this case the relators did not neglect to take part in the business of the board when they were in attendance. On the other hand they were all quite active. One of their number preall quite active. One of their number preof the balloting, and generally discharged all sided, put all motions, announced the result duties devolving upon him both as a member of the board and as presiding officer. The other relators participated in all proceedings had up until the time they with"That if any person duly elected a school direc-drew. Under these circumstances, how can tor shall refuse to attend a regular meeting of the board after having received written notice from the secretary to appear and enter upon the duties of

Directors present, namely, Messrs. Fox, Ward and Ginniff. It was moved by Ginniff, seconded by Fox, that we, the Directors present, namely, Fox, Ward and Ginniff, go into an election for a Director to fill the vacancy caused by the removal from office of A. M. Stevenson, which was unanimously agreed to by the Directors present, namely, Messrs. Fox, Ward and Ginniff. Mr. Owen Jones was placed in nomination for Director to fill the vacancy caused by the removal from office of A. M. Stevenson. The roll was called and Mr. Jones was unanimously elected for a Director to fill the vacancy caused by the removal from office of A. M. Stevenson by the following vote: Messrs. Ward, Ginniff and Fox, they being the Directors present." Similar action was taken by the respondents in the cases of Messrs. Wallace and Whitney, and others elected in their places. Respondents rely for their authority in ousting relators on the 44th section of the Act of February 12, 1869, P. L. 159, which

reads as follows:

his office, or if any person having taken upon him the duties of his office as director shall neglect to attend any two regular meetings of the board in succession, unless detained by sickness or prevented by absence from the ward, or to act in his official capacity when in attendance, the directors present shall have power to declare his seat in the board vacant and to appoint another in his stead to serve until the next annual organization of the

board."

This section, being highly penal in that a few individuals, who may perhaps be actuated by personal feelings or from motives not for the best interests of the school system are permitted to summarily oust an officer elected by the people to represent them, must be strictly construed, and unless every requisite of the statute is complied with and the proceedings had thereunder appear to be legal and plainly within its provisions, action taken in pursuance of its terms will be void. Assuming for the purposes of this case that the clause of the act under which the pro

it be truthfully said relators "neglected to act in their official capacity when in attendance" at the meeting? They were certainly just as active and as much interested in the business before the board that evening as were respondents, and while their leaving the meeting in the manner in which they did is open to criticism, that course upon their part did not render them liable to removal from office and warrant the action taken by respondents. A reference to the minutes of the meeting of December 14th shows the removals were not made because of neglect upon the part of relators to act "when in attendance," but "for refusing to remain or act in their official capacity or perform the duties of their office." In other words, they were ousted for either withdrawing from the meeting before adjournment or for failure to perform the duties of their office. If for the former it is sufficient to say the law does not authorize such summary proceedings for such action. While leaving a meeting before adjournment might count for one absence in proceedings to oust