Osborne v. Blackburn (Wis.) Conflict of Laws-Judicial Packer v. Bird (Cal.) Waters-Navigable Waters- Peasley, In re (U. S. D. C. Ill.) Interstate Commerce Law-Prosecution-Refusal to Answer Criminating Penn. Co., Ex parte (U. S. S. C.) Removal of Causes- Pico v. Cohn (Cal.) Decree-Vacation for Fraud- People v. Flack (N. Y.) Criminal Law-Conspiracy-In- Peoria & P. U. R. Co. v. U. S. Rolling Stock Co. (Ill.) Putnam v. State (Tex.) Seduction-What Constitutes Ray v. Western Penn. Nat. Gas Co. (Penn.) Stare Deci. Rebman, Ex parte (U. S. S. C.) Constitutional Law- Renihan v. Wright (Ind.) Custody of Corpse-Right of Burial-Administrator-Next of Kin, R. D. 71. Republic Life Insurance Co. v. Swigert, (Ill.) Receiver- Insurance Company - Corporation- Stockholders, Reigelman v. Focht (Penn.) Frauds, Statute of-Agree Proof of Claim, R. D. 402. Rude v. Nass (Wis.) Libel-Privileged Communication, Schmedding v. May (Mich.) Records of Court-Power Schmueckle v. Waters (Ind.) Negotiable Instrument- Bohemian Oat Note-Validity - Innocent Holder- Scott v. Hartley (Ind.) Usage and Customs-Parol Evi- Shahan v. Swan (Ohio) Specific Performance-Parol Sharpless Appeal (Pa.) Contract-Consideration-Mor Shellenberger v. Ransom (Neb.) Right of Murderer to Shipman v. Bank of State of New York (N. Y.) Banks Simpson v. Grayson (Ark.) Seduction-What Consti- Smith's Appeal (Pa.) Trusts-Beneficiaries-Corpo- Snider's Sons Co. v. Troy (Ala.) Corporations-De Facto-Contract-Liabilities of Stockholders, R. D. Springer v. City of Chicago (II.) Trial Evidence- St. Nicholas Nat. Bank v. The State National Bank (N. Y.) Banks and Banking-Collection of Draft-Cor- Stanley v. Powell (Eng) Trespass to the Person- Wounding with Gun-Accident-Absence of Negli. State v. Frank (Mo.) Criminal Law-Attempt-Sodomy, State v. Jones (Mo.) Bill of Exceptions-Signing-By- State v. Kansas Mercantile Ass'n (Kan.) Criminal State v. Kirby (N. C.) Disturbance of Religious Wor. State v. Matthews (Kan.) Deed- Acknowledgment- State v. Wheeler (Oreg.) Criminal Law Forgery- Promissory Note-Fictitious Name, R. D. 198. Storey v. Adams (Ill.) Dower-Divorce-Estoppel - Ali- Straus v. Sole Leather Pad Co. (Mo.) Execution-Pur- chase Money-Levy-Priorities, K. D. 181. Suan v. Caffe (N. Y.) Married Woman-Trader-Part- nership-Statute, ann. case, 117, 126. Susquehanna Fertilizer Co. v. Malone (Md.) Nuisance -Noxious Odors-Factories and Slaughter Houses Thompson v. Penn. Ry. Co. (N. J.) Injunction-Viola- tion-Contempt-Punishment, R. D. 317. Thompson v, Whipple (Ark.) Municipal Assembly - Powers of Presiding Officer-Parlimentary Law- False Imprisonment, R. D. 444. Thompson Houston Flectric Co. v. Simon (Oreg.) Com- mon Carriers-Street Railways-Right of Eminent Throop v. Hatch Lithographic Co. (N. Y.) Insolvent Corporations-Attachment by Director, R. D. 403. Todd v. Pennington (N. J.) Partnership-Accounting- Toomey v. Southern Pac. Ry. Co. (Cal.) Railroad Com panes-Injuries to Persons on Track, R. D. 23. Town of Laurel v. Blue (Ind.) Municipal Corporations -Liability for Acts of Marshal, ann. case, 490. United States v. Harmon (U. S. D. C. Mo.) Federal Of- ense-Obscene Matters, C. E. 461. Village of Carthage v. Frederick (N. Y.) Constitutional Vorhees v. Carpenter (Ind.) Assignment for Benefit of Creditors-Preference-Fraudulent Conveyance- Walker v. Great Northern Ry. Co. (Irish), Injury to Un- Wallace v. Lincoln Sav. Bank (Tenn.) Banks and Bank ing-Liabilities of officers-Actions by Stockholders What Constitutes Mismanagement, R. D. 53. Ward v. Fagin (Mo.) Landlord and Tenant-Covenant Wellman v. Chicago & G. T. R. Co. (Mich.) Constitution- Western Wooden Ware Ass'n v. Starkey (Mich.) Con. Wilbur v. New York Electric Const. Co. (N. Y.) Con- Williams v. Chicago & A. Ry. Co. (Ill.) Railroad Com - Williamson v. Newport News & Miss. Valley Co. (W. Wiseman v. Northern Pac. R. Co. (Oreg.) Evidence- Secondary Evidence-When Admissibie-Diligence, Witting v. St. Louis & S. F. R. Co, (Mo.) Carriers of Goods-Injury to Freight-Negligence- Burden of Wood v. Wood (Ark.) Divorce-Jurisdiction-Alimony, Woodward v. Blue, (N. C.) Parent and Child-Legiti. 70. No. 1. The Law as to Married Women in Mis- souri, as Affected by the Revised Statutes of 1889, Section 6864-by Edward C. Wright, 5. No. 2. Gifts Causa Mortis-by James W. Hyde, No. 3. Moral Obligation as a Consideration for Contracts-by Curtis P. Smith, 53. No. 4. What Constitutes Interstate Commerce Qutside the Operation of Regulations by State No. 6. The Modern Doctrine of "Volenti Non Fit Injuria" by Edward C. Wright, 120. No. 7. Disseisin and Adverse Possession-by A. No. S. Australian System of Land Transfer-by No. 9. How Far the Power of a State over Rail- roads is Restricted by Legislative Charters by Lyne S. Metcalfe, Jr., 181. What do We Mean by the Term "Fixt- ure?" by Walter D. Coles, 202. No. 11. Power of Municipal Corporation to Take Property for Local Improvements-by D. H. No. 12. Bills of Exceptions-by W. E. Bain- No. 14. Title to Lands under Fresh Water Lakes and Ponds-by Thomas Dent, 291. No. 15. Territorial Jurisdiction of Criminal Of- fenses-by H. Campbell Black, 318. No. 16. Continuity of the Relation of Master and Servant by J. R. Berryman, 337. No. 17. De'enses to Municipal Aid Bonds-by No. 18. Privilege of Witnesses from Giving No. 19. I.-Former Jeopardy, Former Convic- tion and Former Acquittal-by D. R. N. No. 20. II-.Former Jeopardy, Former Convic- No. 21. The Right of an Individual to Abate a Public Nuisance-by Thomas R. Harris, 445. No. 22. Defense of Non-corporate Existence to Municipal Aid Bonds-by Lyne S. Metcalfe, No. 23. The Doctrine of Stare Decisis-by Ver- upon Mortgagees's Insurance by W. W. No. 25. Nature of the Securities upon which The Central Law Journal. ST. LOUIS, JANUARY 2, 1891. THE appointment of United States District Judge Henry B. Brown, of Michigan, to the vacancy in the United States Supreme Court, is not the best that could have been made, but it is in every respect more satisfactory than would have been the nomination of some whose names were mentioned prominently for the position. It can be said, at least, that the new supreme judge is a man of more than ordinary attainments, has made a creditable record as judge of the district court, and will compare favorably with some of the more recent appointments to the highest court. Besides, the appointment is in line with the civil service policy of the government, and for that reason should be warmly commended. As a matter of fact, the president, in his appointment to judicial positions, has so far, in every instance we believe, carried out the civil service theory. Judge Brown is a native of Massachusetts, is 54 years of age, and has been fourteen years judge of the United States District Court for the Eastern District of Michigan. THE recent decision of Judge Gresham, in Re Counselman and Re Peasley, involving the refusal of certain witnesses in a prosecution, under the interstate commerce law, to answer certain questions propounded to them, upon the ground that they could not do so without criminating themselves, is an interesting and important one. The witnesses declined to give figures and produce papers before the federal grand jury, relating to the manipulation of freight rates, thus practically making it impossible to investigate their proceedings as agents of the railroad companies by which they were employed. Judge Gresham says they must answer the questions asked them, no matter what admissions of personal wrongdoing they may have to make, because section 860 of the Revised Statutes of the United States provides that such admissions shall not be used in any proceedings against them. He holds that the VOL. 32-No. 1. constitutional provision does not, as is generally supposed, give a witness the right to close his mouth whenever a point is touched that may involve a confession of guilt on his part. The witness cannot be compelled to disclose facts to a court or grand jury which might subject him to a criminal prosecution or his property to forfeiture. But where there is a statute declaring that such testimony shall never be repeated against him in any other case, he is estopped from entering the plea of constitutional exemption. There is a difference of opinion among lawyers as to the authority of congress to pass a law which thus sets aside the operation of the constitutional provision. The view of Judge Gresham, however, seems to be conclusive. The intention of this article of the constitu tion, he argues, was not to shield men from the necessity of furnishing evidence against themselves. And when the disclosures of a witness, however guilty they may show him to be, can never be repeated in any subsequent proceeding against him or his property, he is as fully protected as the constitution intended he should be. The consequences of this decision, so far as railroad companies are concerned, will be far-reaching, as it places them in a position where they must require their agents to obey the law, since those agents may at any moment be forced to divulge the secrets of their service. The cases have gone to the United States Supreme Court, where their fate will be awaited with great interest, though it is generally believed that the view of Judge Gresham is eminently sound, and will be upheld. AN English law journal tells of an exceedingly embarrassing question which is occupying the earnest attention of the coroners of two adjacent counties, and as the question is one that might arise in this country, we call attention to it. It seems that a man was killed by a train on one of the English railways. The body of the man was found near the scene of the accident, but his head was carried by the engine into another county. The question is, in what county is the inquest to be held? Under the act as to coroners, it appears that the coroner only has jurisdiction in whose county the body of the person is lying, and as no definition of "body" is provided, the coroner for the county in which the head was found has some ground for contending that the corpse without a head lying in his brother coroner's jurisdiction is not the body of the person. It certainly is not the whole body. On the other hand, the coroner for the county in which the headless corpse was found has stronger ground for saying that the head of a person is not the body. We agree with the law journal which notes this embarrassing question, and which hazards the opinion that inasmuch as both the body and the head were at one time-namely, after the accident and while the train was passing on its way to the adjoining county-lying in the same county, the fact that the engine, after the death of the deceased, carried off his head into another county, does not deprive the coroner, who has got the body, of jurisdiction. It seems to us, on the whole, that the head must come back. NOTES OF RECENT DECISIONS. more CONSTITUTIONAL LAW MUNICIPAL CORPORATION ORDINANCE SIDEWALKS.-- A question of constitutional law of than ordinary interest, and involving the validity of municipal ordinances, came before the Court of Appeals of New York, in Village of Carthage v. Frederick, 25 N. E. Rep. 480. There it was held that a village ordinance, passed pursuant to legislative authority, prohibiting the accumulation of ice, snow or other obstruction on sidewalks, and requiring the removal thereof by the lot owner or tenant by 10 o'clock of the forenoon of the day the same shall have fallen or collected thereon, under penalty of a fine, is a legitimate exercise of the police power, and is not a taking of private property for public use, within Const. N. Y. art. 1, § 6. Vann, J., says: Mr. Sedgwick, in his work on Constitutional Law, says that "the clause prohibiting the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tranquility of every well-ordered community, nor of that general power over private property which is necessary for the orderly existence of all governments. It has always been held that the legislature may make police regulations, although they may interfere with the full enjoyment of private property, and though no compensation is given." Sedg. St. & Const. Law, 434-437. A recent writer upon the Limitations of Police Power says that "where the letter of the constitution would prohibit police regulations, which, by all the principles of constitutional government, have been recognized as beneficient and permissible restrictions upon the individual liberty of action, such regulations will be upheld by the courts, on the ground that the framers of the constitution could not possibly have intended to deprive the government of so salutary a power; and hence the spirit of the constitution permits such legislation, although a strict construction of the letter may prohibit." Tied. Lim. 12. "A large part of the police power of the State is exercised by the local governments of municipal corporations, and the extent of their police powers depends upon the limitations of their charters." Id. 638. "The limit to the exercise of the police power can only be this: The legislation must have reference to the comfort, the safety, or the welfare of society, and it must not be in conflict with the provisions of the constitution." Potter's Dwar. St. 458. Judge Dillon, in his work on Municipal Corporations (volume 1, p. 212), says that "every citizen holds his property subject to the proper exercise of this [police] power, either by the State legislature directly, or by public or municipal corporations to which the legislature may delegate it. • It is well set tled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. If one suffers injury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure." The courts have been equally emphatic in their declarations upon the subject. In Thorpe v. Railroad Co., 27 Vt. 140, the court said: "There is also the general police power of the State by which persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity, of the perfect right in the legislature to do which no question ever was, or, upon acknowledged general principles ever can be, made." Chief Justice Shaw, in deciding a case involving the collection of penalty imposed for the violation of a municipal ordinance requiring the owners or occupants of houses bordering on streets to remove the snow from their respective sidewalks within a specified time, used this significant language: "It is not speaking strictly to characterize this city ordinance as a law levying a tax, the direct or principal object of which is the raising of revenue. It imposes a duty upon a large class of persons, the performance of which requires some labor and expense, and therefore indirectly operates as a law creating a burden. But we think it is rather to be regarded as a police regulation, requiring a duty to be performed highly salutary and advantageous to the citizens of a populous and closely-built city, and which is imposed upon them because they are so situated that they can most promptly and conveniently perform it; and it is laid, not upon a few, but upon a numerous class-all those who are so situated, and equally upon all who are within the description composing the class. * Although the sidewalk is part of the public street and the public have an easement in it, yet the adjacent occupant often is the owner of the fee, and generally has some peculiar interest in it, and benefit from it, distinct from that which he enjoys in common with the rest of the community. He has this interest and benefit often in accommodating his cellar door and steps, a passage for fuel, and the passage to and from his own house to the street. * For his own accommodation, he would have an interest in cleaning the snow from his own door. The owners and occupiers of house lots and other real estate, therefore, have an interest in the performance of this duty, peculiar and somewhat distinct from that of the rest of the community. Besides, from their situation, they have the power and ability to perform this duty with the promptness which the benefit of the community requires; and the duty is divided, distributed, and apportioned upon so large a number that it can be done promptly and effectually, and without imposing a very severe burden upon any one." In re Goddard, 16 Pick. 504, 509, 510. In a recent case, this court, referring to the police power, said: "That power is very broad and comprehensive, and is exercised to promote the health, comfort, safety, and welfare of society. * * Under it the conduct of an individual, and the use of property may be regulated so as to interfere to some extent with the freedom of the one, and the enjoyment of the other." In re Jacobs, 98 N. Y. 98-108. And in another late case the court declared that "all property is held subject to the general police power of the State to so regulate and control its use in a proper case as to secure the general safety, and the public welfare." People v. Gillson, 109 N. Y. 389, 398, 17 N. E. Rep. 343. In both of the cases last referred to, the police power was distinctly recognized, but it was held that a statute, to be sustained as an exercise of that power, must have some relation to the public health, comfort, or safety, and that the rights of property could not be invaded under the guise of a police regulation for the protection of health, when it was manifest that such was not the object of the regulation. The following authorities, some expressly and others in principle, justify the passage of the ordinance in question as a proper exercise of police power lawfully delegated to a municipal corporation by the legislature: People v. Mattimore, 45 Hun, 448; Mayor, etc., v. Williams, 15 N. Y. 502, 505; Phelps v. Racey, 60 N. Y. 10: Cronin v. People, 82 N. Y. 318: Moore v. Gadsden, 93 N. Y. 12, 17; Dixon v. Railroad Co., 100 N. Y. 170, 176, 3 N. E. Rep. 65; People v. Arensberg, 105 N. Y. 123, 11 N. E. Rep. 277; Vanderbilt v. Adams, 7 Cow. 349; Coates v. Mayor, etc., Id. 585, 606; Stokes v. City of New York, 14 Wend. 88; Sharpless v. Mayor, etc., 21 Pa. St. 147; Beer Co. v. Massachusetts, 97 U. S. 25, 33. If this power of local legislation can be conferred upon the largest city in the State, it can also be conferred upon the smallest village that the legislature sees fit to incorporate. In this latitude the accumulation of snow upon sidewalks in large quantities is a matter of course. Its presence retards travel, interrupts business, and interferes with the safety and convenience of all classes. It is a frequent cause of accidents, and thus affects the property of every person who is liable to assessment to pay the damages caused by a failure to remove it. But how is it possible for the authorities of a large city, with many hundred miles of streets, to remove the snow in time to prevent injury to those who have the right to travel upon the sidewalks, unless they can require the owners and occupants of adjacent property to remove it? Every man can conveniently and promptly attend to that which is in front of his own door, and it is both reasonable and necessary that he should be compelled to do so. We think that the ordinance under consideration is valid; that it conflicts with no provision of the constitution; and that it is the duty of the courts to enforce it. In reaching this conclusion we have not overlooked the case of Gridley v. City of Bloomington, 88 Ill. 554, but have given it the attention to which it is entitled by the high standing of the court that decided it. The argument upon which the opinion in that case rests is that, as the fee of the street was in the corporation, and the sidewalk was a part of the street, the lot-owner had no more interest in the sidewalk in front of his premises than any other citizen of the municipality, because it was set apart for the exclusive use of persons traveling on foot, and was as much under the control of the munic ipal government as the street itself. We are unable to yield to this reasoning, because it overlooks not only the public safety and general convenience, but also the peculiar interest that every owner or occupant of real property has in a clean sidewalk in front of his own premises. REBATE-DISCRIM CARRIERS OF GOODSINATION.-The Supreme Court of Iowa, in Cook v. Chicago, R. I. & P. Ry. Co., 46 N. W. Rep. 1080, decide that a rebate secretly paid by a common carrier to certain shippers being an unjust discrimination against others shipping the same class of goods under the same conditions at the regular rate without rebate, is illegal at common law. Rothrock, C. J., says: It is well to keep it mind the fact that the defendant is a public common carrier. At common law a public or common carrier is bound to accept and carry for all upon being paid a reasonable compensation. The fact that the charge is less for one than another is only evidence to show that a particular charge is unreasonable. In Story on Bailments, § 508, note 3, it is said: "There is nothing in the common law to hinder a carrier from carrying for favored individuals at an unreasonably low rate, or even gratis." And in 1 Wood, Ry. Law, 566, it is said: "A mere discrimination in favor of a customer is not unlawful unless it is an unjust discrimination." In volume 2, p. 95, Redf. R. R., the following language is used: "It has been held in this country, where there is no statutory regulation affecting the question, that common carriers are not absolutely bound to charge all customers the same price for the same service. But as the rule is clearly established at common law that a carrier is bound by law to carry everything which is brought to him, for a reasonable sum to be paid to him for the same carriage, and not to extort what he will, it would seem to follow that he is bound to carry for all at the same price, unless there is some special reason for the distinction. For, unless this were so, the duty to carry for all would not be of much value to the public, since it would be easy for the carrier to select his own customers at will by the arbitrary discrimination in his favor. Hence, it was held at an early day that all that could be required on the part of the owner of the goods, by way of compensation, was that he should be ready and willing to pay a reasonable compensation, and to deposit the money in advance, if required. Carrying for |