Gambar halaman
PDF
ePub

such court and criminal jurisdiction as may festly for the purpose of allowing the Legisbe conferred by “law," and section 28 of the lature to pass a different act for cities, towns, same article, requiring that all laws relating and villages, and another act for counties to courts shall be general and of uniform and political subdivisions of counties. If the operation throughout the state and the or- plural had not been used, and the Legislature ganization, jurisdiction, powers, proceedings, had been simply authorized to pass a genand practice of all the courts of the same eral law, then it would have been compelled class or grade so far as regulated by "law" to pass one general law, applying alike to shall be uniform. The word "law," as that cities and counties. Blakey y. City Council word is used in section 23, obviously means of Montgomery, 39 South. 745, 746, 144 Ala. law which is enacted by the legislative de- 481. partment of the state government which the

As domestic laws Constitution has created, and "law" found in

The statutes of a state have no extratersection 28 is of the same character. Const. art. 20, provides for the organization of the

ritorial force, and are not "law” in another city and county of Denver. By section 4 of

state, in the ordinary sense of the term. Mu

tual Life Ins. Co. of New York v. Prewitt, the article the people of the new organization

| 105 S. W. 463, 465, 127 Ky. 399. are vested with the exclusive power to make their own municipal charter, and under this By-laws of corporation constitutional authority a charter was adopt That a day fixed by the by-laws of a cored. Section 182 of the charter provides that poration for the regular monthly meeting of all cases of contested elections shall be tried the directors fell on a holiday did not warby the county court, with certain exceptions. rant a meeting the next day, where the byConst. art. 6, $ 23, makes of the county court laws made no such provision; Civ. Code, 8 a tribunal of limited jurisdiction, not includ- 11, permitting an act appointed by "law or ing matters of election contests. Section 28 contract” to be performed on a particular provides that all laws relating to courts shall day, which falls on a holiday, to be performbe of uniform operation throughout the state.ed on the next business day, being inappliConst. art. 7, 8 11, provides that the General cable. Cheney v. Canfield, 111 Pac. 92, 93, Assembly shall pass laws to secure the purity 158 Cal. 342, 32 L. R. A. (N. S.) 16. of the elections. Section 12 that the Gen

Constitutions and amendments eral Assembly shall by general law designate the courts by whom the election contests not

The word “law," in Const. 1867, art. 2, therein provided for shall be tried. Held,

$ 17, declaring that a bill shall, before it that legislation relating to the jurisdiction

becomes a law, be presented to the Governor, and procedure of the state courts is exclu

etc., does not include a proposed constitusively within the purview of the General As

tional amendment authorized by article 14, sembly, and that section 182 of the charter is

empowering the General Assembly to propose void. Hence the county courts did not have

constitutional amendments, and a proposed jurisdiction of a proceeding to contest an elec

constitutional amendment adopted by the tion on the proposition of granting certain

General Assembly need not be submitted to franchises in the city streets. Williams v.

the Governor for his approval. Warfield v. People, 88 Pac. 463, 465, 38 Colo. 497.

Vandiver, 60 Atl. 538, 540, 101 Md. 78, 4

Ann. Cas. 692. Const. 1901, $ 45, providing that no

The term “law," as used in Const. art. "law' shall be revived, amended, or the pro

5, § 31, providing that no law shall extend visions thereof extended or conferred, by ref

the term of any public officer after his elecerence to its title only, but so much thereof

tion, does not refer to the Constitution and as is revived, amended, extended, or confer

the will of the people expressed at the polls red shall be enacted and published at length,

in the matter of proposed amendments to reaches only those cases where the act is

that instrument, but relates to statutes enactstrictly amendatory or revisory in its char

ed by the Legislature. State ex rel. Teague acter; and if a law is in itself complete, in

| v. Board of Com'rs of Silver Bow County, telligible, and original in form, it does not

87 Pac. 450, 451, 34 Mont. 426. fall within the meaning of the Constitution. Miller V. Griffith, 54 South, 650, 651, 171

The state and federal Constitutions are Ala. 337.

laws," within How. Ann. St. C. 164, $ 4, giv

ing mutual benefit associations power to "There is no merit in the contention that

make regulations for their own government section 222 of the Constitution prohibits the

not contrary to the laws of the United States passage of a single law covering the issuance

or this state. Kern v. Arbeiter Unterstuetof bonds, and that it requires that more than

zungs Verein, 102 N. W. 746, 750, 139 Mich. one law should be passed to authorize a city

233. or town to issue the bonds. The authority to the Legislature, given by this section, is to

Decisions pass general laws authorizing counties, cities, Where a statute or decisions of the courts towns, villages, districts, or other political authorizes a revisal on the ground that the subdivisions of counties, to issue bonds; and verdict is contrary to the "law,” the “law" the plural word 'laws' was employed mani.) referred to means the "law" of that case as

a

given by the court, whether right or wrong. I person who commences or carries on any Lynch v. Snead Architectural Iron Works, business, etc., for the transaction or carrying 116 S. W. 693, 695, 696, 132 Ky. 241, 21 L. on of which a license is required, by “any R. A. (N. S.) 852.

law of this state," without taking out a liA judicial decision is not a “law." It is cense prescribed by such law, is guilty of a merely evidence of what the law is, and a misdemeanor, includes a "county ordinance." change of decision is not the promulgation of Plumas County v. Wheeler, 87 Pac. 909, 913, a new law. Hence the constitutional pro- 149 Cal. 758 (citing In re Lawrence, 11 Pac. vision as to laws impairing the obligations 217, 69 Cal. 608). of contracts does not apply to judicial de- A complaint by a city filed in the recordcisions. Swanson v. City of Ottumwa, 106 N. er's court of the city which alleges that acW. 9, 13, 131 Iowa, 540, 5 L. R. A. (N. S.) 860, cused committed the prohibited act within 9 Ann. Cas. 1117.

the police jurisdiction, contrary to law and Municipal ordinance

in violation of an ordinance of the city, charg

es a violation of the ordinance, for the word Ordinance distinguished, see Ordinance.

"law" may include an ordinance, and accused "Ordinances" are mere rules or by-laws must know that he is prosecuted for a violaof municipal corporation. The word tion of an ordinance of the city. Dowling v. "law” does not ordinarily include a munici- City of Troy, 56 South. 116, 117, 1 Ala. App. pal ordinance. Wright v. City of Macon, 64 508. S. E. 807, 813, 5 Ga. App. 750.

A complaint by a city by its attorney A city ordinance may be considered a which alleges that accused did the probibited law of the state, within the constitutional act "contrary to law” fails to charge a vioprovision prohibiting the state from passing lation of a municipal ordinance; the phrase laws impairing the obligation of contracts. "contrary to law" having been appropriated Cumberland Telephone & Telegraph Co. v. by Code 1907, § 7353, to the definition in inCity of Memphis, 198 Fed. 955, 956.

dictments of violations of statutes, and the Though an ordinance of a county re-word “law," unless otherwise qualified in a quiring one engaged in the business of rais- penal proceeding, presumptively referring to ing cattle to pay a license fee does not de- the common law, in the absence of a statute nounce failure to obtain the license as a giving it another meaning. Rosenberg v. crime, one so failing is subject to prosecution City of Selma, 52 South. 742, 743, 168 Ala. by virtue of Pen. Code, s 435, declaring 195. guilty of a misdemeanor every person who Order of court commences or carries on any business without procuring a license required by "any 1903, § 4129, providing that the sheriff shall

The term "by law," as used in Ky. St. law of this state” for the carrying on of the be collector of all taxes unless the payment same; an ordinance being a law within such thereof is "by law” directed to be made to code provision. Ex parte Miller, 110 Pac.

some officer, means a statute and does not 139, 13 Cal. App. 564.

include an order of the fiscal court. ComIn Ky. St. $ 3096, as amended and re-monwealth v. Wade's Adm'r, 104 S. W. 965, enacted by Acts 1910, c. 107, providing that | 966, 126 Ky. 791. when, in any city of the second class having a street railway, the railway company is re

Special laws quired by law or its franchise, or by any The word "laws,” in a constitutional contract with the city, to pave any part of a provision that all laws not repugnant to the street or alley, the cost shall be assessed Constitution shall be continued in force un. against the company, the term "required by til they expire by limitation, etc., applies to law" applies where the general council pass- all special as well as general laws. Butes an ordinance making the requirement and ler v. City of Lewiston, 83 Pac. 234, 236, 11 such a requirement by ordinance is authoriz- Idaho, 393. ed by the act. City of Newport v. Silva, 137 S. W. 546, 549, 144 Ky. 450.

Statutes and common law A municipal ordinance providing what The expressions "required by law," "alofficer of a municipality shall sign the certifi- lowed by law," and "limited by law," and the cate of legality to be indorsed on municipal like, employed in a statute, refer to statutory bonds issued under authority of Rev. St. 1899, law. People v. Knapp, 132 N. Y. Supp. 747, 88 1719-1724, is a provision of “law," with- 750, 147 App. Div. 436. in the constitutional requirement that such A plea averring that arbitrators were certificate shall be indorsed on the bond of sworn according to the law is not subject to any county, etc., to be signed by the coun- the objection that it omits to aver that the ty auditor or other officer "authorized by arbitrators were sworn in accordance with law." Diefenderfer v. State, 83 Pac. 591, Civ. Code 1896, 8 515, since the term “law," if 593, 14 Wyo. 302.

unqualified, except in cases involving penal The clause "law of this state," as used matters, embraces legislative enactments, as in Pen. Code, $ 435, providing that every well as the common law. Tennessee Coal,

Iron & R. Co. v. Roussell, 46 South. 866, 870, Rep. 348 (citing and adopting Savage V. 155 Ala. 435, 130 Am. St. Rep. 56.

O'Neil, 44 N. Y. 298, 300, 301 ; Owen v. Boyle, The term "laws,” in Const. art. 3, vest- 15 Me. 147, 32 Am. Dec. 143; Flato v. Muling the legislative power in the Senate and hall, 72 Mo. 522; 2 Starkie, Ev. [4th Am. House of Representatives, constituting togeth- Ed.] 568; Whart. Ev. $$ 314, 315, 1292 ; er the General Assembly, and declaring Smith, Merc. Law (10th Ed.] Introduction). that the style of their “laws" shall be, etc.,

LAW OF THE CASE denotes action of the General Assembly in its legislative capacity, and their style must be The opinion delivered on a former apthat of enactment, and they are the outcome peal is the "law of the case." Hocker y. of a bill for an act which has been presented Louisville & N. R. Co. (Ky.) 96 S. W. 526, to the Governor for his approval. McGovern 527. V. Mitchell, 63 Atl. 433, 441, 78 Conn. 536.

"The doctrine of 'law of the case' extends The word “laws," as used in the federal only to the questions squarely presented and statute denouncing conspiracies to commit of- distinctly passed upon on the former appeal." fenses against the laws of the United States, Hunter v. Porter, 77 Pac. 434, 439, 10 Idaho, means statutory laws. United States

V. 86. Thomas, 145 Fed. 74, 79.

A decision of the Supreme Court on apIt is a general rule of construction that, peal, is the “law of the case” on a subsewhere an act of the General Assembly requent trial, whether right or wrong. Neary fers to the “laws' of its own state, the ex

v. Northern Pac. Ry. Co., 110 Pac. 226, 235, pression will be held to refer to statute law, 41 Mont. 480. rather than to unwritten law, unless the con- A decision of the Supreme Court on aptext requires a different construction; and peal is the “law of the case" governing the especially is this true of acts which are them- trial court on a subsequent trial. Berger v. selves in derogation of the common law. Metropolitan Press Printing Co., 111 Pac. 872, Southern Bell Telephone & Telegraph Co. v. 61 Wash. 35. Beach, 70 S. E. 137, 138, 8 Ga. App. 720 (cit

The phrase "law of the case," as applied ing 5 Words and Phrases, pp. 4021, 4022).

to the effect of a decision of an appellate Unconstitutional act

court in an earlier appeal in the same case, "An unconstitutional act is not a law. merely expresses, in the absence of statute, It confers no rights. It imposes no duties. the practice of courts generally to refuse to It affords no protection. It creates no of- reopen what has been decided, and not a limfense. It is in legal contemplation as inop- it to their power. Messinger v. Anderson, 32 erative as though it had never been passed." Sup. Ct. 739, 740, 225 U. S. 436, 56 L. Ed. Wright v. Davis, 48 S. E. 170, 172, 120 Ga. 1152. 670 (quoting Norton v. Shelby County, 6 Sup. The opinion of the Court of Appeals is Ct. 1121, 118 U. S. 425, 30 L. Ed. 178). the "law of the case" on the subsequent trial.

South Covington & C. St. Ry. Co. v. Schilling LAW DAY

(Ky.) 89 S. W. 220, 221. "Foreclosure" and "law day" are synonymous in the sense that it is the time when

The “law of the case" is a rule of expedithe mortgagor declares a default and sub- ency, which should not be lightly disregardmits his case to a court of competent juris- ed; but it should be restricted to such quesdiction. The word “foreclosure," as used tions as have been presented to and decided with reference to the rule under which a

on the former appeal, and those necessarily mortgage is discharged by a tender before involved in such decision, and should not apforeclosure, must be taken in the meaning ply to a mere expression of opinion in regard which is commonly and generally accepted

to matters not actually involved in the deby the laity, as well as by the bar; that is, cision, nor should it apply to questions rethe institution of a suit, or the “aw day," ferred to by intimation only, and not deteras contradistinguished from the “law day" of mined. First Nat. Bank of Hastings v. the common law. Murray v. O'Brien, 105 Farmers' & Merchants’ Bank of Platte CenPac. 840, 844, 56 Wash. 361, 28 L. R. A. (N. ter, 95 N. W. 1062, 1064, 2 Neb. (Unof.) 104. 8.) 998.

The decision of certain questions by a

District Court of Appeal, with a view to furLAW MERCHANT

ther proceedings in the case, only concurred See, also, Commercial Law.

in by two of the justices of such court, does There is no presumption that the so- not constitute “the law of the case” for furcalled “law merchant,” taken as a vaguely ther proceedings. Turner v. Fidelity Loan defined portion of the common law or in its Concern, 83 Pac. 70, 2 Cal. App. 122. widest interpretation of the law of European The evidence on retrial being substantialcountries having the Roman and the Frankish ly the same as on the first trial, the decision law for its parents, prevails in other coun- on the questions presented on the former aptries. Aslanian v. Dostumian, 54 N. E. 845, peal is the “law of the case” on a subsequent 846, 174 Mass. 328, 47 L. R. A. 495, 75 Am. St. appeal. Teakle v. San Pedro, L. A. & S. L.

R. Co., 102 Pac. 635, 637, 36 Utah, 29 (citing / was properly refused. Illinois Cent. R. Oo. 5 Words and Phrases, p. 4024).

v. Seitz, 73 N. E. 585, 586, 214 III. 350, 105 A decision on appeal that, upon the facts Am. St. Rep. 108. in the record, plaintiff cannot recover, be- Where, in an action by a servant for incomes the “law of the case" on a subsequent juries, the cause was reversed on appeal on appeal, wherein the record discloses a sub- the ground that plaintiff was guilty of constantially unchanged set of facts. Thuis v. tributory negligence, as shown by his testiCity of Vincennes, 73 N. E. 1098, 35 Ind. App. mony that he was not looking, at the time of 350.

the injury, at the piece of machinery which On the first appeal of a suit concerning caused the injury, but on the next trial he the title to land, the question involved was: testified that he was looking at it, the holdDid a decree in a former suit to correct a ing on the former appeal was not the "law of deed to the land by striking therefrom the the case" on the next appeal. Buehner words “her bodily heirs,” inserted after the Chair Co. v. Feulner, 73 N. E. 816, 817, 164 name of the grantee, finding that the deed Ind. 368. should be so corrected and the master's deed Where the only question involved or made pursuant to that decree, to correct the decided on a former appeal was the suffformer deed, devest the plaintiffs, T. and S., ciency of an answer setting up the statute bodily heirs of the original grantee, of the of limitations as a defense, and no question fee-simple title thereof? And it was held as to the sufficiency of the complaint was that the decree was inoperative, and that disclosed, but, after the case was remanded, the master's deed did not devest these plain- plaintiff filed an amended complaint which tiffs of the fee-simple title, but that it still was not shown to be substantially the same remained in them. On a second appeal the as the original, the ruling on the former apquestion presented was: Did the court prop- peal that the answer was insufficient was no erly decree upon the cross-bills filed after bar to a subsequent objection to the suffithe case was reinstated, on the evidence sub- ciency of such amended complaint. Stafford mitted to it, that the deed should be correct- 1 v. St. John, 73 N. E. 596, 600, 164 Ind. 277. ed, and in correcting it and decreeing the feesimple title to the land to be in defendants, appeal on a will contest as to the insufficien

The decision of the Supreme Court on the remote grantees of the original grantee? Held, that the decision of the court on the cy of the evidence to overthrow the will is first appeal is not conclusive against the fall v. Wait, 73 N. E. 1089, 1091, 165 Ind. 353,

the "law of the case" on those facts. Westrights of the defendants on the second ap- 16 Ann. Cas. 788. peal, since the question presented for determination is not the same. Teel v. Dunnihoo,

The “law of the case" does not mean the 82 N. E. 844, 847, 230 Ill. 476, 120 Am. St. application of the recognized rules of law to Rep. 319.

the proven facts but is a precise application A decision on a former appeal is the of the law as laid down by the trial judge “law of the case” as to all questions then though given at the request of the complain

and if erroneous is ground for reversal, decided, so far as the facts remain the same; ing party. Weeks v. Auburn & S. Electric the court on a subsequent appeal being enti- Ry. Co., 113 N. Y. Supp. 636, 637, 60 Misc. tled to look to the report of the former ap

Rep. 400, peal to determine to what extent the rule applies. Gipe v. Pittsburgh, C., C. & St. L. Where the instructions of the court Ry. Co., 82 N. E. 471, 472, 41 Ind. App. 156. on the second trial of a cause conform to

the opinion on appeal from the judgment A holding on appeal that plaintiff's evi

on the first trial, it is not error to refuse dence entitled him to have the issues submitted to the jury is not conclusive that requested instructions. Where, on the first

trial of a cause, a peremptory instruction plaintiff is entitled to go to the jury on a

was not given or requested, and that question retrial, but that question depends the evidence introduced on retrial. Hartley of giving a peremptory instruction on the

was not presented on appeal, the propriety v. Chicago & A. R. Co., 73 N. E. 398, 399, 214 second trial must be determined by the eviIll. 78.

dence, without reference to the opinion of That principle of the “law of the case,” | the appellate court. Miller v. Metropolitan when applicable to a subsequent appeal of Life Ins. Co. (Ky.) 89 S. W. 183, 184. the same case, is limited to decisions on a

The rule of the "law of the case" has prior appeal on points necessary to a determination of the cause.

no application to questions of fact, so that

City of Rushville v. Rushville Natural Gas Co., 73 N. E. 87, 89, facts can bind the trial court or be conclusive

nothing said on a former appeal as to the 164 Ind. 162, 3 Ann. Cas. 86.

on a second appeal. Where, in an action on Where, in an action at law tried to the a policy, the Supreme Court reversed a judgcourt, the facts were in dispute, a submitted ment in favor of plaintiff, and remanded the proposition as the “law of the case,” which cause for new trial, holding that the policy was a mixed proposition of law and fact, was void for breach of a condition, and that

on

the facts proved did not establish a waiver, 700, 157 Cal. 339 (quoting Tally v. Ganah), 90 thereof, such judgment was not res judicata Pać. 1049, 1050, 151 Cal. 418, 421). of the issue of waiver on the retrial at

The rule of the “law of the case” is apwhich the evidence was materially different. plicable only where the same matters de Hartford Fire Ins. Co. v. Enoch, 96 S. W. termined in a previous appeal are involved 393, 394, 79 Ark. 475.

in a subsequent appeal, and a judgment on The decision of the appellate court will appeal sustaining a demurrer to a complaint be followed on a subsequent appeal, where is not conclusive on a subsequent appeal, the record therein supports the conclusion where the facts alleged are different and reached on the prior appeal. Malone's Com- present different questions of law. Flood v. mittee v. Lebus (Ky.) 96 S. W. 519, 521. Templeton, 92 Pac. 78, 83, 152 Cal, 148, 13

L. R. A. (N. S.) 579. Under Acts 1903, p. 55, c. 39, making it the duty of the court to charge the law of LAW OF CONTRACT the case, “the law of the case” means the

“The law of contract may be described substantial issues of the case. Gibson &

as the endeavor of the state, a more or less Cunningham v. Purifoy, 120 S. W. 1047, 56 imperfect one, by the nature of the case, to Tex. Civ. App. 379.

establish a positive sanction for the expec“According to the more rigid rule, an tation of good faith which has grown up in expression of opinion, however deliberate up- the mutual dealings of men of average righton a question, however fully argued, if not mindedness.” Viles v. Barre & M. Traction essential to the disposition that was made of & Power Co., 65 Atl. 104, 105, 79 Vt. 311 the case, may be regarded as a dictum; but(quoting and adopting Williston's Wald's Pol. it is, on the other hand, said that it is diffi- Cont. 1). cult to see why, in a philosophical point of

LAWS OF THE COUNTRY view, the opinion of the court is not as persuasive on all the points which were so in

See Conformably with the Laws. volved in the cause that it was the duty of The treaty between the United States counsel to argue them, and which were de- and the Argentine Republic of July 27, 1853 liberately passed over by the court, as if (article 9, 10 Stat. 1009), provides that if any the decision had hung upon but one point." citizen of either of the two contracting parBouvier. Where, in an action on a contrac-ties shall die without will in any of the tertor's bond for the construction of a high ritories of the other, the Consul General or school, the constitutionality of the Code pro- consul of the nation to which decedent be vision providing for such bonds, and the longed, or the representative of such Consul validity of the bond in question given there General or consul, may intervene in the posunder, were directly presented and decided session, administration, and judicial liquidaby the court, to the effect that the bond wastion of decedent's estate, conformably with enforceable as a common-law bond voluntari- the laws of the country, for the benefit of the ly given, regardless of the validity of the creditors and legal heirs. Held, that the statute, such decision was not obiter, but con- phrase "laws of the country,” so far as stituted the "law of the case" and was con- the United States is concerned, means the clusive on the parties on a subsequent ap- local laws of administration and procedure peal. People's Lumber Co. v. Gillard, 90 of the respective states, and qualifies the Pac. 556, 557, 5 Cal. App. 435.

right and the method of intervention, as well The doctrine of the “law of the case” as the procedure after intervention takes

place, so that if a consul intervenes he presupposes error in the enunciation of a principle of law applicable to the facts of a for the purpose prescribed by the laws of the

must do so in the manner, to the extent, and case under review by an appellate tribunal, but the ruling adhered to in the single case

jurisdiction where the property is situated, where it arises is not carried into other and the Italian Consul General, under the cases as a precedent. Allen v. Bryant, 100 treaty of May 8, 1878, between Italy and Pac. 704, 705, 155 Cal. 256.

the United States (article 17, 20 Stat. 732),

providing that the respective Consuls Gen"The doctrine of the 'law of the case'is eral, etc., shall enjoy in both countries all this: That where the Supreme Court, in de the rights which are or may hereafter be ciding an appeal, states in its opinion a prin- granted to the officers of the same grade of ciple of law or rule necessary to the deci- the most favored nation, would not have sion, that principle or rule becomes the law the right to be appointed administrator of of the case,' and must be adhered to through- the estate of a subject of Italy resident in out its subsequent progress, both in the California, leaving property there with his lower court and upon subsequent appeal, heirs resident in Italy, in view of the Cali

** and this, although in its subse- fornia law providing that the public adminquent consideration this court may be clear-istrator of the county shall officiate in such ly of the opinion that the former decision a case. In re Ghio's Estate, 108 Pac. 516, is erroneous in that particular.” Wester- 518, 157 Cal. 552, 37 L. R. A. (N. S.) 549, 137 feld v. New York L Ins. Co., 107 Pac. 699, Am. St. Rep. 145.

« SebelumnyaLanjutkan »