But it has been held that the personal representatives of the insured cannot recover under such circumstances, partly on the ground that suicide is not a risk assumed by the insurer, but principally on the ground that the assumption of such a risk is against public policy. There seems to be no sound reason for the distinction.' If it is against public policy for personal representatives to recover on a provision insuring against suicide which is included in the broad language of the contract, it is against public policy for such a provision to be included in any insurance contract, and the contract must be void to that extent. At least one case has taken this view and has denied recovery to a beneficiary. But as the great weight of authority is opposed to this case and to the reasoning in the cases denying recovery to the representatives of the insured, it must be taken as settled that where the insured has committed suicide there is no public policy against recovery on a silent policy. The two lines of cases seem irreconcilable in principle. For, whereas in the former it is said to be against public policy to insure against death as the result of a crime; in the latter it is considered not against public policy to insure against suicide which, if not a crime, is clearly an act against the policy of the law. On principle the former view seems the sounder. The argument that an express stipulation to insure against death at the hands of justice is against public policy as tending to encourage crime is unanswerable. Nor should it make a difference that the stipulation is embodied in a wider contract of indemnity. Probably no court would hold valid an accident policy insuring a robber against injury while plying his trade. And certainly an insured cannot recover on a fire insurance policy where he intentionally burns the property insured, even though the policy is broad enough in its terms to cover all risks. These analogies, however, have been disregarded in the suicide cases, and the modern tendency of the law as there evidenced is not to limit recovery on silent policies, even though considerations of public policy in some cases would seem to forbid it.10 The case under discussion, however, seems to accord with that tendency, and it is not improbable that, on the analogy of the suicide cases, it may be followed in spite of prior contrary decisions. 9 EFFECT OF ADJUDICATION OF BANKRUPTCY ON THE TITLE TO THE PROPERTY OF THE BANKRUPT. The Bankruptcy Act of 1898 provides that the title of the trustee shall vest as of the date of adjudication.1 This fiction has caused a diversity of opinion as to the nature and location of the title after adjudication and before the appointment of a trustee. Title has been said to be in custodia legis. But it is significant that because of the opposition of the law to lapses in title, and the difficulty in conceiving the court as a title-taking body, courts have taken this view only when Life Ins. Co., 183 Pa. St. 563; Patterson v. Mutual Life Ins. Co., 100 Wis. 118; Campbell v. Supreme Conclave, 66 N. J. L. 274; Seiler v. Life Ass'n, 105 Ia. 87; Lange v. Royal Highlanders, 110 N. W. 1110 (Neb.). Ritter v. Mutual Life Ins. Co., 169 U. S. 139. See Supreme Commandery v. Ainsworth, 71 Ala. 436, 446. 7 Campbell v. Supreme Conclave, supra. See 11 HARV. L. REV. 547. 8 Hopkins v. Life Assur. Co., 94 Fed. 729. 9 Washington Union Ins. Co. v. Wilson, 7 Wis. 169. 10 McDonald v. Order of Triple Alliance, 57 Mo. App. 87. But see Hatch v. Ins. Co., 120 Mass. 550. 1 § 70 a, Act of July 1, 1898; 30 Stat. at L. 544. 6 necessary in order to protect property during the interval either from the elements, the fraud of the bankrupt, foreclosure sales, or seizure by state officers. As the court's agent in such interference must maintain any action in the bankrupt's name, and as the bankrupt himself has been allowed after adjudication to redeem land sold for taxes and to prosecute an infringement of a copyright, it must be concluded that the court's interference was with possession, not with title. It would follow, then, that title remains in the bankrupt on adjudication. This title, however, is sometimes said to be subject to a constructive trust in favor of the creditors. Adjudication indicates that the bankrupt will on a future day be stripped of his assets. And from adjudication a duty is imposed on the bankrupt to surrender such property as he had on the day of his adjudication to the trustee on appointment. But this inchoate duty would never become absolute if for one of many possible reasons no trustee was appointed, and in such event the creditors would never have had any estate in the assets. In the interim the bankrupt has the insurable interest; and has the beneficial user and possession of the assets, except as the Bankruptcy Act expressly limits. his right of transfer and allows the court to interfere with his possession in cases of fraud or neglect. These statutory provisions. designed to protect the creditors, should not, therefore, be interpreted as creating a strict equitable interest, particularly since the creditors may thereby suffer detriment.' For example, in a late Louisiana case the bankrupt's property, covered by an insurance policy which would be avoided by a change of interest, burned between adjudication and appointment, and the court held that no change of interest had been effected by adjudication. Gordon v. Mechanics', etc., Ins. Co., 45 So. 384. Raising a strict equitable interest has been held to constitute such a change, and placing the legal title in custodia legis undoubtedly would do so. But the fiction of relation was intended to protect the creditors. It is impossible that interest or title passes to the trustee before his appointment; on his appointment he can take title only to property then in fact in existence, though he takes such property as of the date of adjudication. This general rule that title remains in the bankrupt subject to the court's interference with possession would logically make bona fide payments to the bankrupt and sales to bona fide purchasers in the interval incontestible by the trustee. But an express provision of the Act in support of the fiction of relation back protects only bona fide holders before adjudication.' In the absence of fraud by the bankrupt a contrary rule, by obviating the paralysis of the estate in the interval, might benefit the creditors and would not despoil innocent parties, who derive small comfort from the further resulting fiction that petition and adjudication are constructive notice of bankruptcy, 10 2 In re Carow, 41 How. Pr. (N. Y.) 112; White v. Schloerb, 178 U. S. 542; In re Engel, 105 Fed. 893; Taylor v. Robertson, 21 Fed. 209. But cf. Rand v. Sage, 94 Minn. 344. Lansing v. Manton, Fed. Cas. No. 8077; Sutherland v. Davis, 42 Ind. 26. Myers v. Callaghan, 5 Fed. 726. 6 See Fuller v. Jameson, 98 N. Y. App. Div. 53, aff'd 184 N. Y. 605; Fuller v. N. Y. Fire Ins. Co., 184 Mass. 12. 7 See Rand v. Iowa Central R. R., 186 N. Y. 58. Cf. 20 HARV. L. REV. 411. Skinner v. Houghton, 92 Md. 68; Gibb v. Phila. Fire Ins. Co., 59 Minn. 267. 9 $70 e. 10 See Mueller v. Nugent, 184 U. S. 1; State Bank of Chicago v. Cox, 143 Fed. 91. Local or special assess SPECIAL ASSESSMENTS FOR SPECIAL BENEFITS. ments are different in nature from ordinary taxes both in the purposes for which they are levied and in the principles by which they are apportioned. Nevertheless special assessments are properly within the taxing power inherent in sovereignty1and therefore, in the absence of express constitutional provisions, are subject to judicial limitation only in so far as such limitation results from the nature of the power itself. The theory upon which special assessments are levied is that, because of the situation of property with reference to some contemplated expenditure of public funds, a portion of the community will be specially benefited by the enhancement of the value of that property, and that those who are to be so benefited should make special contributions to help defray such expenditure. Whether or not a municipality has the power to levy such assessments and the extent of such power if it exists depends not only on the authority which the legislature has actually undertaken to grant to the municipality, but also on the power of the legislature to give such authority. As to this latter limitation it has been generally held that, subject to express constitutional restriction, the legislature may authorize a municipality to levy special assessments for local improvements. But owing to the well-known principle that a delegation of the taxing power must be strictly construed, a general enactment conferring upon a municipality power to levy taxes does not include the power to levy special assessments. Furthermore the limitation on the general taxing power that it must be for a public purpose applies as well to the authorization of special assessments as to other taxes." On the other hand, such limitations as those requiring that "all taxes shall be assessed in exact proportion to the value of the property" or that "taxes shall be equal and uniform throughout the state" have usually been held to apply only to general taxation. Yet there is a limitation on the power to levy special assessments which is not applicable to taxes generally, but which exists even in the absence of express constitutional provisions a limitation based solely on the nature of the tax. It has been repeatedly held that a special assessment can be justified only when the parties so assessed receive a special benefit over and above that enjoyed by the general public, and only to the extent of that benefit.8 The question of the validity of city ordinances providing for the levy and collection of special assessments for street sprinkling involves an application of the foregoing considerations. The few cases that have arisen on this point are in decided conflict. A recent Michigan case holds invalid a statute expressly authorizing cities to levy such assessments, on the ground that there is no substantial special benefit to the property of the parties assessed. Stevens v. City of Port Huron, 113 N. W. 291. The better view would seem to be that continued and regular street sprinkling does materially increase the enjoyment and hence the value of realty abutting 1 Raleigh v. Peace, 110 N. C. 32. 2 People v. Brooklyn, 4 N. Y. 419. 3 See City of Denver v. Knowles, 17 Colo. 204; Boston v. B. & A. R. R. Co., 170 Mass. 95. 4 In re Piper, 32 Cal. 530. 5 City Council of Augusta v. Murphey, 79 Ga. 101. 6 In re Market St., 49 Cal. 546. See 21 HARV. L. Rev. 277. 7 City of Denver v. Knowles, supra. See 2 Cooley, Taxation, 3 ed., 1201. 8 Hammett v. Philadelphia, 65 Pa. St. 146. 9 Accord, Chicago v. Blair, 149 Ill. 310; N. Y. Life Ins. Co. v. Prest, 71 Fed. 815; Kansas City v. O'Connor, 82 Mo. App. 655. on the sprinkled street, and that this is a special benefit for which special assessments may be lawfully levied, and on these grounds such assessments have been sustained in several states.10 LIABILITY OF PUBLIC AGENT FOR INJURY TO PROPERTY RIGHTS. There is some confusion as to the extent to which a defendant entering into transactions in some special character may be held liable personally for claims arising out of such transactions. An interesting phase of this problem is seen in cases where damage is caused to third persons by a public agent acting under a statute enumerating a certain class of contracts on which he may sue and be sued, and an action not included in this enumeration is brought against the agent for a claim based upon a transaction arising within the course of his employment. Of such a kind is a recent case in which a bankrupt had made payments to certain township trustees intending to prefer the township and the assignee in bankruptcy sought to recover these payments, although such a suit was not one of those enumerated in the statute authorizing the trustees to be sued. Painter v. Napoleon Township, 156 Fed. 289 (Dist. Ct., N. D. Oh.). The opinion of the court that he should recover such payments is correct, because the defendants were not entitled to priority under the National Bankruptcy Act, and a state statute cannot relieve from liability under a national act. But the case suggests the more difficult question of the trustees' liability when the statute restricting it is not overridden by a national act a situation that, in the case of a preference, can arise today only where the former statute is federal. If a private agent of a creditor knowingly receives a preference from a bankrupt, the assignee can recover it from the agent. This is said to rest on the theory that where an agent receives money which the law prohibits him from taking, there is a sort of tortious misdealing with property to which the fact of the agency is no defense. It has been said, however, that a public agent is not liable for injuries to property rights,* in that, while he is acting as a public agent, his identity as an ordinary person is merged in his special character, and where the latter is created by statute, liability is restricted to the kind of actions enumerated in the statute. The answer to this reasoning is that the term agent, trustee, or public agent is descriptive and not inherent. A, public agent. is still A, individual. It is a fiction to say that while he is the former he is not the latter. If the agent's negligent acts have caused loss to the plaintiff, or if he has received the plaintiff's property from another, knowing that his principal is being illegally favored and the plaintiff defrauded, he has injured the plaintiff, and should therefore make restitution.5 This principle is well brought out in a case where the plaintiff paid a sum of money to the defendants, parish officers, under an illegal contract to indemnify the parish against certain claims. The defend 10 Sears v. Boston, 173 Mass. 71; State v. Reis, 38 Minn. 371. 1 A demurrer to the bill was sustained on other grounds. 2 In re Debs, 158 U. S. 564, 579; U. S. Const., Art. VI. 8 Larkin v. Hapgood, 56 Vt. 597; Perkins v. Smith, 1 Wils. 328. 4 Jacobs. Hamilton County, Fed. Cas. No. 7161; Feeholders of Sussex v. Strader, 18 N. J. L. 108. Cf. Commissioners of Hamilton County v. Mighels, 7 Oh. St. 109. Contra, Mitchell v. Harmony, 13 How. (U. S.) 115; Head v. Porter, 48 Fed. 481. And cf. May v Board of Commissioners, 30 Fed. 250. 5 Cf. Berghoff v. McDonald, 87 Ind. 549. Contra, Carey v. Bright, 58 Pa. St. 70. The ants went out of office and paid the money over to their successors. claims against the parish were void, and the court allowed a recovery, holding that the defendants could not shield themselves behind their official position. The cases of a private agent and of a public agent not expressly relieved from liability should be governed by the same principle as to their liability in their individual capacity.". In the present case the statute might be interpreted as giving freedom from liability only in actions of contract not enumerated. It would still more clearly afford no protection from individual liability for tortious misdealing with the property of others. THE ACT OF AN ADMINISTRATIVE OFFICER AS ORIGINAL CORPORATE ACTION. "A corporation can do nothing but by attorney." Such a declaration comes readily enough from lawyers who have the conception that a corporation is a metaphysical being created by law, with none of the attributes of personality except the power to hold property and to do business through agents. Under the pressure of modern analysis this fiction tends to yield to more rational ideas, and corporate action is perceived more truly as simple group action. But even though the body of associates is itself looked upon as the corporation rather than as the guardian of a fictitious "legal being," the fact remains that all corporate action which is not performed directly by the representative members of the group must be done through the medium of agents to whom the associates have given authority to act. Thus, under either theory as to the nature of a corporation, administrative officers can exercise only a delegated authority. A new theory of corporateness must be devised to meet a recent decision of the New Jersey Court of Errors and Appeals in which it was held that the execution of an affidavit by the vice-president of a corporation was corporate action per se and not per alium. American Soda Fountain Co. v. Stolzenbach, 68 Atl. 1078.3 For many centuries before the time of Lord Coke it was the habit of scholars to draw analogies between social institutions and the human body. As the "body in Christ" and the "body politic" were pictured with many fanciful details, so too was that lesser institution, the corporation.* At one time this analogy found a place in English law. It was said that a body without a head is incomplete and cannot act. If, therefore, the lands of a monastery which was temporarily without an abbot should be disseised by one who died before a new abbot was appointed, still the new abbot could enter on the heir of the disseisor, for the corporation was headless and there was no person who could make continual claim. It was even held that a bond between the Mayor of Newcastle and the Mayor and Commonalty of 6 Townson v. Wilson, I Camp. 396. The rule of in pari delicto was not enforced because the plaintiff was under duress at the time of the contract and payment. 7 Cf. In re Johnson, 15 Ch. Div. 548. 1 See 3 Comyns's Digest, 405. 2 See Freund, The Legal Nature of Corporations, 7 et seq.; Kyd, Law of Corporations, 15, 16. Cf. Liverpool Ins. Co. v. Massachusetts, 10 Wall. (U. S.) 566. 3 Bank of Toronto v. McDougall, 15 U. C. C. P. 475. See 1 Pollock and Maitland, History of English Law, 489 et seq.; Gierke, Political Theories of the Middle Ages, 22. 5 See Carr, Corporations, 154, n. I. 6 See Co. Lit. 263 b. |