The Central Law Journal.

ST. LOUIS, NOVEMBER 28, 1890.

THE New York Court of Appeals has, in the case of Rogers v. City of Buffalo, considered the validity of the civil service reform law of that State and has rendered an interesting opinion reviewing the whole question of civil service reform and upholding its constitutionality. As stated by the court the intent of the civil service reform system is to relieve the appointee from constant anxieties as to his future means of livelihood and to leave the appointing power at leisure without a constant drain his time and temper in attending to the claims of office seekers. In the opinion of the court these two most desirable results will be fully accomplished when civil service regulations pervade every part of this land.

upon

There were three points raised, by the opponents of the law, before the court. It was urged that the civil service law was unconstitutional because it provides, that of the three State civil service commissioners not more than two shall be adherents of the same political party.

The constitution forbids that the disfranchisement or deprivation of the "rights or privileges secured to any citizen, unless by the law of the land or the judgment of his peers." The argument of the appellant was that, when two civil service commissioners belonging to one party were in office, all other members of the same party were rendered by the law absolutely ineligible and were disfranchised as to the third commissionership. The court overrules this. It cites the case of the State railroad commission and the State board of arbitration as similar instances of the creation of non-partisan boards, and says that none of these have yet been held to be unconstitutional. And it thinks the civil service board is not constituted in violation of the constitution.

The next objection was, that all city officers must constitutionally be elected by the electors of the city, or be appointed by some of the city authorities, whereas the civil service law directs the mayor to prepare general VOL. 31-No. 22.

rules under which city officers are to be selected, and these rules are of no effect until approved by the State commissioners; therefore the powers of the city officials are subordinated to those of State authorities. The court thinks not, and rules against this point.

The third objection was, that the constitution prescribes a certain oath of office and declares that "no other oath, declaration or test shall be required as a qualification for any office of public trust." Whereas other tests and qualifications are required and imposed by civil service examinations and certificates of rating. The court thinks the framers of the constitution did not mean to exclude civil service tests, but only had in mind the English test oaths and religious uniformity acts, and intended to guard against their being required here.

Ir seems that the validity of the so-called worsted law, authorizing the secretary of the treasury to classify as woolen cloths all imports of worsted cloth, passed some months ago by congress, is to be tested in the courts. Upon the application of an importing firm, Judge Lacombe, of the United States Circuit Court at New York, has granted an order requiring the government officials to file in the court all documents on which they have based their action in enforcing the duty on certain consignments of cloths imported by them. The decision to be rendered will involve the constitutional right of the speaker of the house of representatives to count a quorum in part from among members present and not voting. The question has been passed upon by the board of appraisers, who took the ground that it could not go behind the fact of the attestation of the law by the president of the senate and the speaker of the house, and its approval by the president, all of which were regular, to determine whether or not in its passage the house violated any parliamentary rule or precedent. The board argued that the house has the power to authorize its journals to be so prepared as to show a quorum to be present, although many of those included to make up a quorum are silent when a vote is taken by ayes and nays and refuse themselves to record their votes. In the view of the board this authority follows by implication from the power of the house to

keep a journal of its own proceedings which carries with it the power to make such a journal speak the truth, from its power to compel the attendance of absent members, which also implies the authority to utilize their attendance after their corporal presence is enforced, and from the power of the house to make its own rules of parliamentary procedure, which would seem to embrace the authority to adopt any mode of ascertaining the presence of a quorum in the house within the discretion of that body, not expressly or impliedly prohibited by the constitution. It will be of interest to note what the courts have to say upon the subject.

NOTES OF RECENT DECISIONS.

CRIMINAL EVIDENCE WITNESS-INSPECTION OF THE BODY-CONSTITUTIONAL LAw. — An interesting question in criminal practice came before the Supreme Court of Indiana in O'Brien v. State, 25 N. E. Rep. 138, where it was held that where a defendant when arrested is compelled to submit his body to inspection in order to discover his identity, the person making such inspection may testify on the trial as to the marks found by him on defendant's body, since the giving of such testimony is not compelling defendant to testify against himself. Berkshire, C. J., says:

William Dillon was called and examined as a witness on behalf of the State. The appellant was in jail in the town of Ashland, State of Wisconsin. The witness and one Rosebrough were sent there to ascer tain if he was the James O'Brien named in the indictment, and, if so, to take steps for his removal to Huntington county to answer to said indictment. When the witness and Rosebrough arrived at the jail where the appellant was confined, in the presence of the jailer they requested of the appellant permission to make an examination of his body for certain marks or scars thereon to be found, if he was the person accused in said indictment as James O'Brien, and the appellant refusing to grant the request, he was handcuffed, and the proposed examination made forcibly, and against his will. It was as to the marks and scars which the witness claimed to have discovered from said examination that the State proposed to have him testify. To the offered testimony the appellant objected, stating several grounds of objection, but as none of them were sufficiently specific to present any question for our consideration, save one, we shall confine ourselves to the question presented. It is contended that the proposed testimony was within the inhibition found in the last clause of section 14, of article 1 of our State constitution, and which reads as follows: "No person in any criminal prosecution shall be compelled to testify against himself." We

are not called upon to decide whether or not the court could, at the trial or anterior thereto, have compelled the appellant to submit to an examination, that the information thus obtained might be used as evidence against him on the trial, and express no opinion upon that question. But for a learned discussion of the question pro and con, see State v. Ah Chuey, 14 Nev. 79, 33 Amer. Rep. 530, and note; Blackwell v. State, 67 Ga. 76; Stokes v. State, 5 Baxt. 619. Nor was the testimony offered as to information obtained to be used upon the trial but, as we have already seen, with a view to his arrest. The question of duress and its effect upon information thereby obtained, is not involved, for the facts to which the witness was called to testify did not depend upon a confession made by the appellant, nor upon any act of his. The marks and scars upon the body had no relation to the force used to enable the witness to find them. The case is much like the examination of a person under arrest for concealed weapons with which he could have committed the crime of murder of which he is accused, or for stolen property, where he is accused of larceny, and the right to examine the accused for such purpose has never been questioned. The conclusion can only be reached that the offered testimony was within the constitutional prohibition, upon the theory that the witness was the mere mouthpiece, and that the appellant was the real witness, which would be a strained construction of the constitutional provision as applied to the offered testimony. In construing the constitution the courts should follow the ordinary import of the language employed, unless there are controlling reasons indicating that a different construction was intended. Worcester says that the word "testify" has three definitions: "(1) To make a statement or declaration in confirmation of some fact; to bear witness. (2) To give evidence of testimony in regard to a case depending in a court or tribunal. (3) Law. To make a solemn declaration under oath or affirmation before a tribunal, court, judge, or magistrate for the purpose of proving some fact." The last of these is from Burrill's Law Dietionary. Webster's definition is substantially the same. To hold that the testimony of the witness was incompetent would compel us, in every case involving the identity of a person accused of crime, to hold that testimony as to marks and scars hidden under the clothing which he wears is inadmissible, if the information of the witness was obtained without the consent of the accused, no difference under what circumstances, or in what manner, obtained. The textbooks throw but little light upon this question under consideration, and yet we are not entirely without authority. See State v. Garrett, 71 N. C. 85, and State v. Graham, 74 N. C. 646. The syllabus of that case is as follows: "An officer who had arrested a prisoner charged with larceny compelled him to put his foot in a track found near where the larceny was committed, and testified as to the result of the comparison: Held, that the evidence was not procured by duress. and was admissible." See also Walker v. State, 7 Tex. App. 245.

CARRIERS OF PASSENGERS-LOSS OF BAGGAGE. The case of Metz v. California South. R. Co., 24 Pac. Rep. 610, decided by the Supreme Court of California, is a fair illustration of what does and what does not constitute "baggage," for the loss of which a

carrier is responsible. It was there held that a man traveling alone, and carrying in his trunk for transportation a quantity of ladies' jewelry, cannot recover for the loss thereof against a common carrier. Sharpstein, J., says:

Common carriers are required to receive and carry a reasonable amount of luggage for each passenger without charge. Civil Code, § 2180. "Luggage may consist of any article intended for the use of a passenger while traveling, or for his personal equipment." Id. § 2181. Before the enactment of this Code, courts acknowledged the difficulty of defining with accuracy what should be deemed luggage within the rule of the carrier's liability, and we think this provision of the Code has disincumbered the subject little, if any, of the difficulty which previously surrounded it. If we define the word "equipment" as Webster defines it, viz., "the act of equipping or being equipped, as for a voyage or expedition," it adds nothing to what had long before been understood as comprehended in the term "luggage". In Railroad Co. v. Swift, 12 Wall. 272, the court, speaking through Mr. Justice Field, said that the contract to carry "only implies an undertaking to transport such a limited quantity of articles as are ordinarily taken by travelers for their personal use and convenience, such quantity depending, of course, upon the station of the party, the object and length of his journey, and many other considerations." To the same effect is a decision of the queen's bench in Macrow v. Railway Co., L. R. 6 Q. B. 621, where , Chief Justice Cockburn announced the true rule to be "that whatever the passenger takes with him for his personal use or convenience, according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities or to the ultimate purpose of the journey must be considered as personal "luggage." It is not found that the plaintiff carried those articles for his personal wear or convenience with reference to his immediate necessities or to the ultimate purpose of his journey, but it is found that he was carrying them for transportation; and it is found that they were proper articles of luggage and baggage for the plaintiff to carry as such. We are not prepared to hold that a gentleman traveling without a wife or other female companion would ordinarily, no matter what his rank or station in life might be, carry as baggage for his personal use or convenience a quantity of ladies' jewelry, or that if he did carry it, and it was lost, he could recover the value of it of a common carrier who had no knowledge of its being among the contents of a trunk which was being carried as luggage. In one case, McGill v. Rowand, 3 Pa. St. 451, the Supreme Court of Pennsylvania, held that where a man was traveling with his wife, whose jewelry was in a trunk which was being transported as baggage, and was lost, the husband was entitled to recover of the common carrier its value. In that case it might well have been held that the jewelry "was intended for the use of a passenger while traveling." The Supreme Court of the United States, in Railroad Co. v. Fraloff, 100 U. S. 24, says: "Whether articles of wearing apparel in any particular case constitute baggage, as that term is understood in the law, for which the carrier is responsible as insurer, depends upon the inquiry whether they are such in quantity and value as passengers under like circumstances ordinarily or usually carry for personal use when traveling." "The im

plied undertaking," says Mr. Angell, "of the proprietors of stage-coaches, railroads, and steam-boats, to carry in safety the baggage of passengers, is not unlimited, and cannot be extended beyond ordinary baggage, or such baggage as a traveler usually carries with bim for his personal convenience." Ang. Carr. § 115. In Pfister v. Railroad Co., 70 Cal. 169, 11 Pac. Rep. 686, this court had occasion to consider the provisions of the Code above cited, but the question in that case was whether a passenger was entitled to carry a large sum of money as baggage. It was held that he was not. But that decision in no way aids us in the solution of the question involved in this case.

CONDITIONAL SALES-INSTALLMENTS-LEASE. -The Supreme Court of Georgia, in Hays v. Jordan, 11 S. E. Rep. 833, considered the effect of sales of personal property made upon the installment plan. In that case the plaintiffs had delivered to the defendant a piano, she giving her notes "for value received for the rent" of the piano. The title was to be retained by the plaintiff until these notes were paid, but upon the payment of the notes "given for the use of the piano," title was to pass to the lessee. Upon default in payment the piano was to be returned. This contract the court held to be a conditional sale and not a lease, and upon recovery of this piano, for which plaintiff sued, the money already paid should be returned, after deducting a proper amount for the use of the piano. Simmons, J., says:

Although the contract does use the term "rent," and states that the notes are given for the "use" of the piano, we do not so construe it, but regard it, not as lease or renting, but as a conditional sale, with title reserved in the vendor until the purchase-price is paid. Guilford v. McKinley, 61 Ga. 232. The entire $350, styled "rent," is made payable within six months from the date of the transaction, and is the stipulated value of the piano, and the consideration for a bill of sale to be given when the full amount is paid; and the sale of the piano, and not the renting thereof, is evidently the real end and basis of the contract. The Supreme Court of the United States, in passing upon a similar contract, say: "Nor is the transaction changed by the agreement assuming the form of a lease. In determining the real character of a contract courts will always look to its purpose rather than to the name given it by the parties." Hervey v. Locomotive Works, 93 U. S. 672. Mr. Justice Davis, in the opinion, cites, Murch v. Wright 46 Ill. 487, in which it was held, as to a contract of this character, "that it was a mere subterfuge to call the transaction a lease," and says: "It is true the instrument of conveyance purports to be a lease, and the sums stipulated to be paid are for rent; but this form was used to cover the real transaction as much so as was the rent of the piano in Murch v. Wright. There the price of the piano was to be paid in thirteen months, and here that of the engine * * in one year. It was evidently not the intention that this large sum should be paid as rent for the mere use of the engine for one year. If so, why agree to sell and convey the full

title on the payment of the last installment? In both cases the stipulated price of the property was to be paid in short installments, and no words employed by the parties can have the effect of changing the true nature of the contract."

The courts now uniformly hold that such contracts are not leases, but are conditional sales. It was so held where parties expressly contracted "that no agreement of sale of said piano-forte is implied." Gerow v. Costello, 11 Colo. 560. See also Miller v. Steen, 30 Cal. 402; Manufacturing Co. v. Cole, 4 Lea, 439; Knittel v. Cushing, 57 Tex. 354, s. C., 34 Am. Rep. 498; Loomis v. Bragg, 50 Conn. 228, s. c., 47 Am. Rep. 638; Manufacturing Co. v. Graham, 8 Oreg. 17; Lucas v. Campbell, 88 Ill. 447; Greer v. Church, 13 Bush, 430; Gerrish v. Clark (N. H.), 13 Atl. Rep. 870; Garham v. Holden (Me.), 9 Id. 894; Currier v. Knapp, 117 Mass. 324; Carpenter v. Scott, 13 R. I. 477; Sage v. Sleutz, 23 Ohio St. 1; Machine Co. v. Holcomb, 40 Iowa, 33; De Saint Germain v. Wind (Wash. T.), 13 Pac. Rep. 753; Whitcomb v. Woodworth, 54 Vt. 544; Hintermister v. Lane. 27 Hun, 497.

The contract being then a conditional sale, and not a lease, and the payments made thereunder not rent but purchase-money, the plaintiffs have no right to retain them as rent; and there is no express stipulation that they shall be treated as a forfeiture. "Forfeitures are abhorred in equity and are never favored in law," and provisions for forfeitures are regarded with disfavor, and construed with strictness when applied to contracts, and the forfeiture relates to a matter admitting of compensation or restoration. Where adequate compensation can be made, the law in many cases, and equity in all cases, discharges the forfeiture upon such compensation being made. The law inclines to remedy breach of condition by damages rather than by forfeiture. Code, sec. 2295; Story Eq. Jur., secs. 1312, 1314, 1316, et seq.

On a sale reserving title till the price is paid, many of the cases hold that partial payments are forfeited on default of the residue, but in courts possessing equity powers the modern tendency is to allow the seller who rescinds a contract for default afterį receiving a part of the price to retain only so much as will compensate him. Newm. Sales, sec. 306; Preston v. Whitney, 23 Mich. 260, 267; Johnston v. Whittemore, 27 Id. 463, 470. In this case, under the practice in this State, it was within the power of the court to mould the verdict so as to do full justice to the parties, and in the same manner as a decree in equity. Code, secs. 3082, 3562; Acts 1884-85. 36; Acts 1887, 64. Although the plaintiffs elected to take the piano, and not to take a money verdict for damages, as they had a right to do under section 3564 of the code, yet we do not think that they were entitled to recover the piano and retain all the money received from the defendant. We think that under our law the court should have instructed the jury to so mould their verdict as to do justice to all parties, and should have instructed them that if the plaintiffs elected to take the specific property, and a part of the purchase-money had been paid, the plaintiffs were entitled to recover the property itself; but before they could recover they must return the money which the defendant had paid them, after deducting a proper amount for the use of the piano, if the use was of any value to the defendant, which amount the jury should arrive at from the evidence, finding the balance, with interest, in favor of the defendant against the plaintiffs, the piano tɔ be returned to the plaintiffs, upon payment to the defendant of the amount thus found. To same effect,

Latham v. Sumner, 89 Ill. 233, s. c., 31 Am. Rep. 79; Hine v. Roberts, 48 Conn. 267, s. C., 40 Am. Rep. 170, notes; 31 Am. Rep. 81, 40 Id. 21.

CONSTITUTIONAL LAW-OPIUM SMOKING.The question as to the constitutional rights of a Chinaman, or indeed any one else, to inhale or smoke opium contrary to the statute, came before the Supreme Court of Washington, in Territory v. Ah Lim, 24 Pac. Rep. 588, where it was held that Laws Wash. T. 1883, p. 30 (amendatory of Code Wash. T. 1881, ch. 149, § 2073), providing that "any person or persons who shall smoke or inhale opium, * shall be deemed guilty of a misdemeanor," is not unconstitutional as being in violation of the inalienable rights of individuals to life, liberty, and pursuit of happiness. Scott and Stiles, JJ., dissented from this conclusion in a very vigorous opinion. Dunbar, J., says: In the case at bar, no special constitutional limitation or inhibition is pointed out with which the law in question is in conflict; but it is contended by the defense that the right of liberty, and pursuit of happiness, is violated by the prohibition of any act which does not involve direct and immediate injury to another. Counsel for appellant says in his brief that the parent may be compelled to send the child to school so many months in the year; the State may prescribe his studies, and may tax the people to the verge of bankruptcy to mould the infant's mind to their liking; but this right, he urges, is on the ground that the child is the ward of the State, and that such jurisdiction ceases when it becomes of age. It is difficult to see how the question of inalienable rights can be affected by age, when the law prescribes the age at which the ward arrives at his majority, and the time at which the inalienable rights attach. Doubtless the true theory on which compulsory education is sustained is that the State has an interest in the intellectual condition of each of its citizens, recognizing the fact that society is but an aggregation of individuals, and that the moral or intellectual plane of society is elevated or degraded in proportion to the plane occupied by its individual members, and that the education is not compelled for the benefit of the child during its minority, or for its exclusive benefit after its majority. The State has an undisputed right to, and does, provide gymnasium attachments to its schools, and prescribes calisthenic exercises for the muscular development of school children. The object to be attained is not for the exclusive benefit of the child. The State has an interest in the health of its citizens, and has a right to see to it that its citizens are self-supporting. It is burdened with taxation to build and maintain jails and penitentiaries for the safe-keeping of its criminals, and to protect its lawabiding subjects from their ravages. It is taxed to maintain insane asylums for the safe-keeping and care of those who become insane through vicious babits or otherwise. It is compelled to maintain hospitals for its sick, and poor-houses for the indigent and helpless; and surely it ought to have no small interest in, and no small control over, the moral, mental, and physical condition of its citizens. If the State concludes that a given habit is detrimental to either the moral,

mental, or physical well-being of one of its citizens, to such an extent that it is liable to become a burden to society, it has an undoubted right to restrain the citizen from the commission of that act; and fair and equitable consideration of the rights of other citizens make it not only its right, but its duty, to restrain him. If a man willfully cuts off his hand, or maims himself in such a way that he is liable to become a public charge, no one will doubt the right of the State to punish him; and if he smokes opium, thereby destroying his intellect, and shattering his nerves, it is difficult to see why a limitation of power should be imposed upon the State in such a case. But it is urged by the defense that a moderate use of opium or that the moderate use of an opium pipe, is not delecterious, and consequently cannot be prohibited. We answer that this is a question of fact, which can only be inquired into by the legislature. Smoking opium is a recognized evil in this country. It is a matter of general information that it is an insiduous and dangerous vice, a loathsome, disgusting, and degrading habit, that is becoming dangerous. ly common with the youth of the country, and that its usual concomitants are imbecility, pauperism, and crime. It has been regarded as a proper subject of legislation in every Western State; and it is admitted by counsel in defense, in the argument of this case, that the statute in relation to the suppression of joints kept for the purpose of smoking opium was constitutional and right.

Granted that this is a proper subject for legislative enactment and control, no limit can be placed on the legislative discretion. It is for the legislature to place on foot the inquiry as to just in what degree the use is injurious, to collate all the information, and to make all the needful and necessary calculations. These are questions of fact, with which the court cannot deal. The constitutionality of laws is not thus to be determined.

But many courts have held that a municipal corporation can only pass ordinances punishing the same acts which are punishable under the general laws of the State when expressly authorized to do so, and that no such authority will be presumed from a grant of power general in its nature. If this be true, it

must be because the effect of such ordinances is to supersede the general laws upon the same subject. We cannot see any good reason why such authority, fitting and proper to be delegated to a municipal corporation, and plainly conferred in general terms, cannot be exercised by the municipality, unless it be because it is inconsistent with the general laws. That is the effect of the authorities which hold it cannot be. Many of them say that the effect of such ordinances, if enforced, would be to oust the State of jurisdiction, or make the same offense punishable twice-once by the State, and once by the corporation-contrary to the constitution, and therefore they are invalid. In re Sic, 73 Cal. 142, 14 Pac. Rep. 405; Jenkins v. Thomas

ville, 35 Ga. 145; Mayor v. Hussey, 21 Ga. 80; Adams v. Albany, 29 Ga. 56; Vason v. Augusta, 38 Ga. 542; Reich v. State, 53 Ga. 73; Foster v. Brown, 55 Iowa, 686, 8 N. W. Rep. 654; Washington v. Hammond, 76 N. C. 33; State v. Langston, 88 N. C. 692; State v. Brittain, 89 N. C 574; State v. Keith, 94 N. C. 933; Ex parte Smith, Hemp. 201; Ex parte Bourgeois, 60 Miss. 663. But we do not think the ordinances in question are invalid because they make offenses twice punishable.. Municipal corporations "are bodies politic and corporate, vested with political and legislative powers for the local civil government and police regulations of the inhabitants of the particular districts included in the boundaries of the corporations." In some respects, they are local governments established by law to assist in the civil government of the country. They are founded in part upon the idea that the needs of the localities for which they are organized, "by reason of the density of population or other circumstances, are more extensive and urgent than those of the general public in the same particulars. Many acts are often far more injurious, while the temptation to do them are much greater in such localities than in the State generally. When done in such localities, they are not only wrongs to the public at large, but are additional wrongs to the corporations. To suppress them when it can be done, and, when there is a failure to do so, to punish the guilty parties, in many cases, form a part of the duties of such corporations. Many of them can and ought to be made penal by the incorporated cities and towns, although they are already made so by the statute. It sometimes becomes necessary for them to do so, in order to accomplish the objects of their organization. When made penal by the State and the city or town, each act becomes a separate offense against the State and the municipality. In that event the penalty imposed by the city or town is superadded to that fixed by the general law, on account of the additional wrong done, for the offense against the municipality. In such a case the wrong-doer would not be twice punished for the same offense. In Moore v. Illinois, 14 How. 19, the Supreme Court of the United States held that the passing of a counterfeit coin, which was punishable under the federal law, might be punished by the State as a crime, and that the same act was an offense against the federal government and against the State government. In delivering the opinion of the court, Mr. Justice Grier said: "An 'offense,' in its legal signification, means the transgression of a law. A man may be compelled to make reparation in damages to the injured party, and be liable also to punishment for a breach of the public peace, in consequence of the same act, and may be said, in common parlance, to be twice punished for the same offense. Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. That either or both may, if they see

fit, punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense, but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a c nviction by the

other."

Judge Cooley says; "Indeed, an act may be a pena. offense under the laws of the State, and further penalties, under proper legislative authority, be imposed for its commission by municipal by laws; and the enforcement of the one would not preclude the en