Page images
PDF
EPUB

and scattered and contradictory decisions, is in plain print and orderly arrangement in the State statutes, where every lawyer, judge and citizen can see it on a moment's notice.

Although these great and radical changes met with the stern opposition of a large majority of the bench and bar of America, their wisdom has already been fully established by their adoption in three-fourths of the States and Territories of the Union; and finally in Great Britain itself, where in 1873, Parliament passed an act combining the Queen's Bench, the Exchequer, the Court of Chancery, and the Courts of Admiralty, of Probate, of Divorce and of Bankruptcy in one tribunal, called the Supreme Court, abolishing all dis. tinctions between law and equity jurisprudence, and establishing but one form of action in the administration of justice between private suitors.

These great reforms, including the codification of all the law which can by any construction be called public law, being on the way to complete adoption in all the States, we are brought face to face with the question whether all the remainder of the law the private law-that which most nearly affects each citizen, which governs his business and personal relations to his family and his fellow man, should not also be codified.

Where is this private law to be found? Part of it is already in the Constitution of the United States; part in the Constitutions and statutes of the States severally. So far, that is publication enough. But unfortunately, at least three-fourths of it is still buried in ancient English statutes, extending from the Norman Conquest to the reign of James II in English, Irish and Scotch decisions, old and new-in decisions of the Supreme Court of the United States, the nine Circuit Courts, and the fifty or sixty District Courts in decisions of forty-two Supreme Courts of the several States, and the thousand inferior courts of the States --decisions which are as the sands of the sea for multitude, and are increasing at the rate of thousands of volumes and hundreds of thousands of cases a year; decisions, all of which were never assembled in one library or seen by one man scattered, inaccessible, unsearchable.

Now as far so the general principles of private law are settled beyond doubt in adjudged cases, there certainly can be noļinsuperable difficulty in stating and ar ranging them in plain language in a well-systematized Code. So far as such principles are not settled in Kansas, because of contradictory decisions here or elsewhere or because the principles have never been declared at all, a body of Code commissioners, who are able lawyers, could give each of such questions a more thorough and satisfactory examination in the light of reason and authority than can an overworked judge on the Circuit, where he cannot consult the authorities, or at the State Capitol where a necessarily limited study of contradictory decisions often adds to the perplexities instead of solving them. Such commissioners would incorporate in a proposed Code what they be lieved to be the best settlement of such disputed and doubtful questions. The Code would, before adoption, undergo inspection and criticism of the bench and bar of the State, so that when enacted it would be a comprehensive and clear declaration of all the private law, leaving no known question unsettled. The volume containing such a Code would not be larger than this volume of about seven hundred pages in large type; that is, it would be not much more voluminous than the Code of Civil and Criminal Procedure. This volume is the Civil Code, prepared many years ago in New York, pursuant to a requirement of the Constitution of that State-a Code twice passed by the Legislature, twice vetoed by the governor, and still under cousideration at Albany. It comes from the hand of David Dudley Field, the father of both American and British law reform. Eminent as a lawyer, pre-eminent as a publicist, he has done more for British and American law reform than any other man of the nineteenth century.

The private law is necessarily progressive. It must advance with advancing civilization forever. Men and their recognized relations and obligations to their fellows are incessantly changing by the silent power of the Divine law of evolution which constantly raises them to higher ideas of right. The law governing our personal relations and our businesses must be constantly modified to conform to the requirements of improving moral perceptions. Besides, new applications of physical forces, new enterprises, new business relations, call for new principles and new applications of law adapted to ever-changing exigen. cies.

In an address before the State Bar Association of Virginia, delivered last year, entitled "The Provinces of the Written and Unwritten Law," Mr. James C. Carter, one of the most eminent lawyers of New York, presented an elaborate and able argument against codifying the private law. He says that all public law should be written in the statute books, and all private law should be left unwritten, so that, as he says, the judge may apply perfect justice to the circumstances of each case as it arises because "the fact must allature makes but few amendments of the private ways come before the law."

This argument, I think, is purely fanciful. Of any one hundred questions of private law arising in litigations here in Kansas, perhaps twenty have been settled by express provisions of existing statutes. Another twenty perhaps involve questions of general private law which have been in effect decided by the Supreme Court of Kansas. Another twenty would perhaps be found on examination to be settled by a great preponderance of authority of courts outside of Kansas. The remaining forty however would be found to be cases (except a very few presenting new and undecided questions) in which the decisions conflict, and a large weight of reason and authority is found on both sides. In these doubtful cases, who shall weigh the authorities by numbers, when not half of them are to be found in the State library, and not one-fifth of them in all the lawyers' offices of any town in Kansas? Who shall weigh them by reason, when the questions may be of mere arbitrary law? Who shall weigh them by conscience, when they may present no conflict solvable by the moral sense?

Mr. Carter maintains that if the private law were codified, these necessary changes would stop, and that anyhow all' but very radical improvements can best be made by the judges. I think not. The Legis

law now only because it is uncodified; and for that body to make amendments, without the entire law of the whole subject being before it would be like altering an intricate machine without seeing the relations of the part altered to the other parts. If the private law were codified, the Legislature could make changes intelligently, and without injury to litigants. At pres eut, the courts amend the private law, but every change is at the cost of a suitor, who perhaps risked his fortune on the assumption that the existing law would be applied. Jeremy Bentham said in England a hundred years ago: "It is the judges that make the common law. Do you know how they make it? Just as a man makes law for his dog. When your dog does a thing you want to break him of, you wait until he does it again and then you beat him; and this is the way the judges make the law for you and me."

Mr. Carter, in the lecture I have referred to, iuti mates that to incorporate the private laws in statutes would be inconsistent with the principles or traditions of free government. If by free government he means popular government, I say that the reduction of all

[ocr errors]

law to writing is a logical result of government by the people.

intellectual revellers in entities and quiddities-whose delight it was to

"-distinguish and divide

A hair 'twixt south and south-west side."

Unlike the British monarchy, our republic was founded on a written Constitution in which the people gave the new government each power it was authorized to exercise, and withheld all others. Every au- But sixty-five years ago three able lawyers - two thority of that government; every duty it imposes; very young, and one near middle life - Benj. F. Butevery act it prohibits, is written down. So the people ler, afterward attorney-general under Jackson; John of each State defined the powers of its government and C. Spencer, afterward secretary of war under Tyler: distributed them among its several departments. The and John Duer, afterward chief justice of the Superior power given the judiciary is to declare and enforce Court of New York city-were made a commission to the law, not to make or modify it. So far as a court compile, not codify, the laws of the State. To the changes the law, it usurps power. Judicial legislation horror of the older lawyers, but with the applause of is sanctioned by the British Constitution which is but the people, they irreverently swept away the whole a general assortment of historic precedents, but is ut- pile of learned rubbish-the rule in Shelly's Case, and terly repugnant to our Constitutions, State and Na- all the stuff that had no sound and living reason to tional. Hence the argument of Mr. Carter that the support it-and reported a Code which the Legislature private law should not be put in the statute books be-enacted, and which has since become in effect the cause that would prevent judicial legislation, might perhaps be good if addressed to British lawyers, but is certainly bad addressed to an American bar. It involves him in the dilemma that our State Constitutions should be forthwith amended so as to confer this special legislative power on the judges; or that the judges should continue to exercise these powers in disregard of the Constitutions they are sworn to obey.

The advantages of codification of the private law are great and obvious. It will bring this most important and least understood body of the law within reach of everybody, to be consulted, discussed and studied by all who have any interest or duty affected by it. The minister of the law everywhere, the judge, the magistrate, the lawyer, would have the law within his reach, and on most questions could decide or advise with confidence and comparative certainty upon it. The law would thus be brought down to the people, and largely to popular understanding. Of course there will often be doubt and misinterpretation and mistakes such as occur in the interpretation of the public laws, but only those which necessarily spring from defect of expression in forming the Code, or of judgment in interpreting it. The ambiguities, obscurities and other defects of expression in the Code would soon be cured by interpretation of the courts; and in a few years its meaning would be quite fully understood, and its latent defects and omissions cured by legislative amendment.

Mr. Carter says that his opposition to codifying the private law is confirmed by the observation that in the natural growth of the law of a nation, its public law is written and its private law unwritten -- "left to be shaped by its judicial tribunals." I think this is a grave error of fact, and that the tendency of American jurisprudence is clearly and strongly toward codifying all the law. In addition to the comparatively recent enactments of the Codes I have mentioned-covering, as they do, large tracts of the law heretofore unwritten-a glance at the statute books of the several States will satisfy almost any lawyer that the decided tendency is to a codification of the private law.

Take the Revised Statutes of New York, for example, and in the domain of private law we find: First. The absolute rights -- the liberties - of thepeople defined or recognized in the Constitution.

Second. We find too one of the grand divisions of private law, that relating to real property, minutely, clearly and elaborately set forth in a Code of eighty pages which is almost a complete substitute for that vast wilderness of learning known as the common law of real property.

If there were a title of the common law which a modern codifier, with a decent respect for the early fathers, should have left unchanged, it was this masterpiece of subtle refinements of the schoolmen-those

American Code of Real Property.

Turning to other parts of the Revised Statutes of New York, we find the private law to a considerable extent codified in chapters covering the law of marriage, divorce, rights and liabilities of husband and wife, parent and child, master and servant, apprentices, partnership, interest, notes and bills, chattel mortgages, assignments, property of idiots, lunatics, etc.

And turning to the private law relating to artificial persons, we find, that instead of prescribing only in general terms the mode of creating private corporations, their general powers and the manner of perpetuating and dissolving them, leaving all else to remain as it lies in the unwritten law, the Legislature has prescribed an elaborate Code of over six hundred pages, covering more than one-fifth of the whole body of the Revised Statutes.

We find too that Massachusetts has codified the private law as fully as has New York, and Georgia still more fully, while California and North and South Dakota have severally adopted the complete Civil Code now pending before the New York Legislature.

So far then from the tendency of our jurisprudence being toward leaving the private law unwritten, it is all the other way. In codifying it we will only be doing what, it seems to me, common sense dictates-that every one should have the best attainable means of knowing what are his private rights and duties as recognized and enforced by the State; what patriotism dictates that the changes made in such rights and duties necessary in the progress of civilization shall be made by the agency designated by the people to make the laws; what the experience of mankind dictatesthe reasons for codification being similar and almost as cogent to-day as when one thousand three hundred and fifty years ago the Emperor Justinian proclaimed that Code of private law which lighted all central and northern Europe from barbarism to civilization.

The Roman and the English systems of jurisprudence are the only ones of which we have a full histhey from their rudest beginnings to their completest development. The parellelis:n in their growth is striking. In the infancy of each, justice was subordinated to form-a limited number of forms of action were prescribed, and the subtlety of the lawyers and judges were exerted oftener in defeating than in establishing a just cause. As the nations advanced in civilization, a better conception of the objects of courts prevailed and the judges added new forms of action, and grew more liberal in furthering each just cause. Finally, the prætors of the Roman, and the judges and chancellors of the English judiciary, disregarding barbaric forms and precedents, boldly and avowedly legislated on each new question; and thus built up the systems of jurisprudence which illustrate, and largely created, the civilization of their peoples.

While the Roman law remained uncodified there

was no uniformity of decisions in the various divisions of the Empire. Codification brought order out of chaos throughout its wide dominions. When the empire fell, its jurisprudence, had it remained uncodified, would have fallen with it, a mass of shapeless ruins; but the Code survived as a model for other nations, the most beneficent work of man in the domain of philosophy and government. One-third of Brackton's "English Law and Customs," the earliest commentary on the common law, written in the thirteenth century, was taken bodily from it; and a century ago Lord Mansfield created the British mercantile law by legislation from the bench, which he adopted almost wholly from the Codes of Justinian.

A like necessity which led to the codification of the Roman private law by Justinian has already forced the partial codification we have accomplished in America, and will in time, I am sure, lead to a complete codification of our law. "When Justinian ascended the throne," says Gibbon, "the reformation of the Roman jurisprudence was an arduous but indispensable task. In the space of ten centuries, the infinite variety of laws and opinions had filled many thousands of volumes which no fortune could purchase and no capacity could digest." In a pamphlet published in 1866, the Lord Chief Justice of England said: "We seem to be making no progress whatever toward reducing to any intelligible shape the chaotic mass- common law, equity law, crown law, statute law, countless reports, countless statutes, interminable treatises-in which the law of Eugland, by those who know where to look for it, and not always by them, is to be found."

The western States of our Union have a spirit of intellectual independence, and freedom from the servitude of custom, beyond their eastern sisters. They are equally with them inheritors of a genius for selfgovernment. While New York has delayed and hesi tated, three of the western States, California and the two Dakotas, have already adopted the Code of private law. I would be proud to see intrepid Kansas join the head of the column in conforming our entire system of American jurisprudence to the principle of popular government, and to the convenience and interest of the people so that all our law shall be plain, consistent and open, and so that every amendment shall be made by the Legislature, and reflect the growing conscience and judgment of the people.

NEW YORK COURT OF APPEALS AB-
STRACTS.

BOND

-PARTIAL RELEASE PAROL EVIDENCE.-(1) An indemnity bond was given for $10,000, signed by plaintiff as surety, reciting the names of the execution creditors (defendants and others), and expressly covenanting to indemnify the sheriff against all damages which might arise from any levy under "such executions." By an agreement of indemnity executed by defendants to plaintiff it was recited, that as plaintiff had become surety for defendants on such bond for the sum of $214.52, a copy of which bond "is hereto annexed," defendants would indemnify plaintiff against all loss, etc., which it might sustain by reason of having signed such bond. Held, that defendants became liable for all losses sustained by plaintiff on account of such bond, though some of the other execution creditors had executed like indemnity agreements. (2) Such agreement being unambiguous, and there being no allegation of fraud or mistake in the answer, parol evidence of the understanding of the parties at the time it was executed, was properly excluded. (3) As such agreements are entirely independent, plain

tiff's release of some of the other creditors does not affect defendants' liability. April 15, 1890. American Surety Co. v. Thurber. Opinion by Earl, J. Affirming 4 N. Y. Supp. 191.

CARRIERS-DANGEROUS STATION PLATFORM.- In An action for injuries sustained by falling through the open space between the station platform and defend. ant's car, it appeared that the platform was built on a curve, so that a car touched it at a tangent. Plaintiff testified that the space between the platform and car was about fifteen inches; that it admitted her shoe, about nine inches long, without touching either heel or toe; and that she was looking at the car, and did not notice the opening until she stepped into it. One of her witnesses testified that the opening was about fifteen inches, more or less, but he could not say it was not eight inches less; and another who had been conductor on the road, said that the space was between seven and eight inches, and did not exceed the step of a child. Three civil engineers testified for defendant that the space was from three and a half to four inches at the center of the car, and from six and a half to seven at the end. Held, that it was error to leave the question of negligence to the jury, as the facts showed that the space was not wider than the necessities of the road required, and not so much so as to produce danger to passengers. April 15, 1890. Ryan v. Manhattan Railway Co. Opinion by Finch, J. Ruger, C. J., dissenting. Reversing 1 N. Y. Supp. 899.

DAMAGES-SPECULATIVE-EMINENT DOMAIN.-In an action against an elevated railway company for damages to abutting property, caused by the construction of the road along the street, evidence of what it would have cost to erect dwelling-houses on the lots, what they would have rented for if they had been built with the road there, and what they would have rented for had the road not been constructed, is inadmissible as speculative and contingent. The measure of damages is the diminished rental or usable value of the lots caused by the road computed for the time embraced in the action. There can be no certainty that the plaintiff would ever have erected dwelling-houses upon the lots, and there could be no certainty as to the rents which could have been obtained from them either with or without the railroad in the street, and the defendant was permitted by the rule adopted in the court below to have all the advantages which he could derive from keeping his lots substantially vacant and ready to sell as such, and at the same time to have all the advantages, without the investment of any money and without any risk, which he could have derived from their improved condition. He was simply entitled to the damages caused to him in the use of his lots from the defendant's interference with his easements of light, air and access; and such damages are necessarily, and from the very nature of the case, such only as flowed from the interference with such easements during the time covered by the action. If he desired a more ample indemnity for the injury he suffered from the railway in front of his lots he should, by an equitable action, have compelled the defendant, either by agreement with him to pay his damages, or to acquire the right by condemnation proceedings to interfere with and take his easements. Any other rule would open upon the trial in every case like this an inquiry into all the possible uses to which the abutting owner might put his premises, and damages, instead of being awarded upon any certain or probable basis, would rest mainly upon conjecture and speculation. Adequate sanction for these views is found in the following authorities: Greene v. Railroad Co., 12 Abb. N. C. 124; Colrick v. Swinburne, 105 N. Y. 503; Wheelock v. Noonan, 108 id. 179: Hatfield v. Railroad Co., 33 N. J. Law, 251; Dorlan v. Railroad

Co., 46 Penn. St. 520. April 15, 1890. Tallman v. Metropolitan Elevated Railway Co. Opinion by Earl, J. Reversing 2 N.Y. Supp. 130.

WILLS-CONSTRUCTION-ALTERNATIVE DEVISE.—(1)

Testator devised land to his daughter, but provided that, should he not die possessed of it, she should have other property. At the time the will was made, and at the time of testator's death, he owned only an undivided half of the land; it having been purchased by himself and brother as partners, though the legal title to the whole of it had been taken in his own name. When the will was executed there was pending against testator a suit by a third person to recover possession of the land in question, but before testator's death it was decided in his favor. Held, that testator died in possession of the land, within the meaning of the will, and the devisee was entitled to the undivided half owned by him. (2) A provision of the will that the devisee shall have other land, in case the land devised is "in litigation" at the time of testator's death, does not take effect where the only suit pending at his death was a suit against him by the executors of his partner, who owned a half interest in the land, to set aside conveyances to testator of certain other lands, and for an accounting of the partnership business; and the only question as to the land devised is a contest over the rents and profits thereof. April 15, 1890. Platt v. Withington. Opinion by Peckham, J. Reversing 47 Hun, 558.

ABSTRACTS OF VARIOUS RECENT

DECISIONS.

INJURY TO PASSENGER.

Plaintiff enCARRIERS tered defendant's train as a passenger at a station on the road. She entered the car at the rear end, carrying a satchel, and walked along the aisle of the car looking for a seat. While so walking she stumbled over two satchels, which were then in the aisle, and fell, receiving the injury sued for. None of the employees of the company were in the car at the time of the accident. The car was lighted, so that a person entering the same could, by looking, see whether there were any obstructions in the aisle. Held, that defendant was not liable for the injury, and that a nonsuit was properly directed, upon evidence showing such facts. To the contention that an accident raises a presumption of negligence on the part of the employees of the company, the cases Kirst v. Railway Co., 46 Wis. 489; Cummings v. Furnace Co., 60 id. 603, and Muster v. Railway Co., 61 id. 325, are cited. The rule stated in these cases is that there must be reasonable evidence of negligence, but where the thing (meaning the thing which causes the injury) is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." In the case at bar the thing which obstructed the passage in the car was evidently the personal baggage of some passenger, and not a thing exclusively under the control or management of the employees of the company; and so the mere fact that it was in the aisle or passageway of the car at the exact time of the accident does not, of itself, raise a presumption of negligence on the part of the employees of the company. There may be a duty on the part of the employees of the company to remove the personal baggage of passengers from the passage-ways of the cars, but in order to make it their duty to act, there must be evidence showing, or at least tending to show, that such employees had notice of such obstruction being in the aisle or passage-way,

or that it had remained there so long before the accident, that in a reasonably vigilant discharge of their duties they could have discovered the obstruction before the accident happened, and failed to remove it. The evidence in the case shows that none of the employees of the company were in the car at the time the accident happened, and in the absence of any proof to the contrary, we must presume that the duty of the employees required them to be at some other place while the train was at the station. All we have

therefore is the one fact that at the exact time of the accident these satchels were in the aisle, and that plaintiff fell over them and was injured. The personal baggage of passengers is not "a thing under the man

agement of the defendant and its servants," within the meaning of the rule stated in the cases above cited; and it therefore becomes necessary for the plaintiff to show, by other proofs, that the company or its servants were guilty of some negligence or want of ordinary care in regard to these satchels. It seems very clear that there is no evidence tending to prove such negligence. There is no evidence showing or tending to show how long these satchels had been in the aisle. It is just as reasonable to suppose that some passenger had placed them there after the train had stopped at New London as to suppose that they had been placed there before it stopped. The presumption would rather favor the conclusion that they were placed there after the train had stopped, and while the employees were performing their duty outside of the car, for the reason that negligence is not presumed, and if they had been there before the train stopped, they would have been seen by the employees, or some of them, and removed from the aisle. Negligence cannot be predicated upon a state of facts which is as consistent with the exercise of care as it is with negligence. As said in the quotation above "there must be reasonable evidence of negligence on the part of the company or its employees," and in this case there is no such reasonable evidence. Wis. Sup. Ct., Jan. 7, 1890. Stimson v. Milwaukee, L. S. & W. Ry. Co. Opinion by Taylor, J.

CONTRACT-COUNTY COMMISSIONERS-EMPLOYMENT OF ATTORNEY-PUBLIC POLICY.-A contract by a board of county commissioners, engaging a county attorney for three years, made at a time when the board had an attorney employed whose term had three months to run, and entered into with the admitted intention of binding the boards to be thereafter organized, is contrary to public policy and void. In considering this question, the effect upon the public interest must have a controlling influence. To assume that the contract is voidable only is to concede that the board had the power to enter into such a contract; and if power existed to make the contract, it must be regarded as valid and binding, unless tainted with fraud sufficient to avoid or rescind it. The execution of the contract for the purpose of binding the board in the future, and after there has been a change in its membership, will not of itself constitute fraud. McCormick v. City of Boston, 120 Mass. 499; Brick Co. v. Foster, 115 id. 431; Benjamin v. Wheeler, 8 Gray, 409; Soon Hing v. Crowley, 113 U. S. 703; Oglesby v. Attrill, 105 id. 605. The contract must be regarded as a valid and binding contract, or as void ab initio because of the fact that it is a contract which is against public policy. The board of commissioners has authority to employ counsel in matters pertaining to the business of the county, and to give to the members of the board legal advice in relation to their official duties. If the contract in question is binding, the board of commissioners at one session may employ counsel to serve the board as then organized, and at the same time employ counsel to serve it in advance, and at a time when it is known the membership of the board will be different. It is

fendant, and to give him the exclusive agency for such sale, is not in restraint of trade. The rule that contracts that are in restraint of trade shall be void, as against public policy, is among our most ancient common-law inheritances. In Alger v. Thacher, 19 Pick. 51, Morton, J., says: "As early as the second year of Henry V (A. D. 1415) we find, by the year-books, that this was considered to be old and settled law. Through a succession of decisions, it has been handed down to us unquestioned, till the present time." The learned judge traces the history of the rule to its modern modification, that "contracts in restraint of trade, generally, have been held to be void; while those limited as to time or place or persons have been regarded as valid, and duly enforced." He gives the reasons for the rule in the following language: "(1) Such con. tracts injure the parties making them, because they diminish their means of procuring livelihoods, and a competency for their families. They tempt improvi dent persons, for the sake of present gain, to deprive themselves of the power to make future acquisitions, and they expose such person to imposition and oppres sion. (2) They tend to deprive the public of the ser. vices of men in the employment and capacities in which they may be most useful to the community as well as themselves. (3) They discourage industry aud enterprise, and diminish the products of ingenuity and skill. (4) They prevent competition, and enhance prices. (5) They expose the public to all the evils of monopoly; and this especially is applicable to wealthy companies aud large corporations, who have the means, unless retrained by law, to exclude rivalry, monopo lize business, and engross the market. Against evils like these, wise laws protect individuals and the public, by declaring all such contracts void." See also cases in that opinion cited. The doctrine is again well stated in Lawrence v. Kidder, 10 Barb. 641, in which case the court, Selden, J., cites with approval Bronson, J., in Chappel v. Brockway, 21 Wend. 157, as follows. "There may be cases where the contract is neither injurious to the public nor the obligor, and then the law makes no exception, and declares the agreement valid." In Navigation Co. v. Winsor, 20 Wall. 68, Mr. Justice Bradley says: "There are two principal grounds on which the doctrine is founded that a contract in restraint of trade is void as against public policy. One is the injury to the public by being deprived of the re

true that under the contract in question the beginning
of the term for which the appellees were employed
was only postponed three months from the date of the
employment, but in the meantime the term of office of
one member of the board expired, and that of another
began; and if, under such circumstances, attorneys
could be engaged three months ahead, why not for one,
two or three years in advance? But the most obnox-
ious feature which we find in the contract is the length
of time for which the appellees were employed. We
now as a matter of law, as we have already said, that
the membership of the board will be changed as much
as three times from the date of the employment to the
expiration of the term of service, unless some of its
members are re-elected, and in that case the terms of
office will be different. Unless some of the members
are re-elected, there must be an entire change in the
membership of the board between the date of the em-
ployment and the expiration of the time covered by
the contract. This contract deprives the board, as re-
organized from year to year, of the right to employ its
attorney for the next following year. If such contracts
are binding, then, no difference how distasteful an at-
torney may be to the members of the board, or how
little confidence they may have in his ability, legal
learning or honesty, so long as he performs the condi-
tions of the contract on his part they are bound to
recognize him, accept his services, and assume the re-
sponsibility; and if the contract in question, extend-
ing, as it does, over a period of three years, is valid,
why may not a like contract, covering a period of six,
nine or a dozen years, be upheld? Our conclusion is
that the contract is against public policy and void. In
Railroad Co. v. Ryan, 11 Kans. it is said by the
court: "Railroad corporations are, as we have seen,
public agencies, and perform a public duty. They are
agencies created by the public, with certain privileges,
and subject to certain obligations. A contract that
they will not discharge, or by which they cannot dis-
charge, these obligations, is a breach of that public
duty, and cannot be enforced." This portion of the
opinion is quoted with approval by the Supreme Court
of Iowa in the case of Williamson v. Railroad Co., 53
Iowa, 126. See Fuller v. Dame, 18 Pick. 472, opinion
by Shaw, C. J., which is a leading case upon the sub-
ject under consideration. See Guernsey v. Cook, 120
Mass. 501. In Craft v. McConoughy, 79 Ill. 346, the
Supreme Court of Illinois said: "Whatever is injuri-stricted party's industry; the other is the injury to the
ous to the interest of the public is void on the ground of
public policy." This language is quoted and approved
in the recent case of People v. Trust Co., decided by
the same court, in a learned and exhaustive opinion.
22 N. E. Rep. 798. In Wiley v. Baumgardner, 97 Ind.
66, whatever is injurious to public interest is recog-
nized as contrary to public policy. It is evident that
the contract involved in this litigation is of that char-
acter. It ties the hands of the board of commission-
ers, and is prejudicial to the free exercise of its power
and functions for the public good. In Transportation
Co. v. Pipe-Line Co., 22 W. Va. 600, the court says:
"The common law will not permit individuals to
oblige themselves by a contract either to do or not do
any thing, when the thing to be done or omitted is in
any degree clearly injurious to the public; citing
Chappel v. Brockway, 21 Wend. 159. See People v.
Trust Co., supra. In the case of Reubelt v. Noblesville,
326 Ind. 478, the employment was only for one year.
We apprehend that if the board of trustees had under-
taken to employ the superintendent for three years, a
different conclusion would have been reached. Ind

Sup. Ct., Feb. 4, 1890. Board of Commissioners v.
Taylor. Opinion by Berkshire, J. Elliott and Coffey,
JJ., dissent.

CONTRACTS-RESTRAINT OF TRADE.-A contract to seli a brand of cigars to no one in the State but de

party himself by being precluded from pursuing his occupation, and thus being prevented from supporting himself and his family. It is evident that both these evils occur when the contract is general, not to pursue one's trade at all, or not to pursue it in the entire realm or country. The country suffers the loss in both cases; and the party is deprived of his occupation, or is obliged to expatriate himself in order to follow it. A contract that is open to such grave objections is clearly against public policy. But if neither of these evils ensue, and if the contract is founded on a valid consideration, and a reasonable ground of benefit to the other party, it is free from objection, and may be enforced." We have cited these reasons for the rule in full, in order to apply them to the contract under construction. They embody the modern doctrine, as held by the authorities. A recitation alone, of the rule and its reasons, seems to us sufficient to take the contract under consideration out of the operation of its prohibitions. The contract is not general; it is lim ited as to place and person. The public is not deprived of the alleged restricted party's industry. On the contrary, the contract provides for the placing upon the Montana market the product of the plaintiffs' industry, by the selection and services of a local Montana agent, interested in the success of sales, and to be rewarded by such success. Nor is there any injury to the party himI self, the plaintiffs, by their being precluded from pur.

« PreviousContinue »