The Central Law Journal.

ST. LOUIS, JANUARY 23, 1891.

THE exposure of the fraudulent divorce lawyers in New York City, and the evidence concerning their practices, form an interesting chapter in the study of the divorce problem. It is evident that these swindlers have been doing a lucrative business in the furnishing of fraudulent divorce papers, but the fact still remains that their clients are equally culpable, and that the outrageous work could not have been done unless there had been a demand for it, or a connivance on the part of men and women who had no good ground for seeking divorce. In a few instances the guilty parties may have supposed that they were obtaining proper and legal decrees of divorce, and this may be the case with the unfortunate ex-mayor of Fort Worth, whose experience with the conspirators led to their exposure. But as a general rule, those who sought divorces in this clandestine way knew that they were perpetrating frauds, and that they were not entitled to a valid release from connubial obligations. And it seems improbable that the gentleman above referred to, whose ability as a lawyer is said to be good, should not have known what he was bargaining for, and it will not be denied at least, that he was endeavoring to obtain by stealth and outrageous means, that which he was not legally entitled to. It is to be hoped that this exposure will be the means of calling the public attention to the laxity of the laws as to divorce. It is notorious that divorces everywhere are granted with a degree of readiness and an indifference that cannot be excused, and beyond the necessity of an improved order of public sentiment regarding the solemnity of marriage, we need everywhere more stringent laws governing divorces, so that the frauds and subterfuges now rendering them easily obtainable may be altogether prevented.

UNDER the title of "The Right to Privacy," Samuel D. Warren and Louis D. Brandeis, of the Boston bar, contribute an article to VOL. 32-No. 4.

the December number of the Harvard Law Review. By reason of the thorough research into authorities bearing upon the question, and the bold application of principles so established, to a new order of things, the contribution is made interesting to all readers, but more especially so to lawyers who may be ambitious to make precedent rather than follow it.

Conceding at once that the very generally recognized abuses of the press present a problem, at least as serious for the people at large, as for the individual whose privacy is immediately invaded, the authors limit themselves to a discussion of the rights of the latter; and contend that without the aid of legislation, the common law affords the needed protection. In proof of this they trace how the court, at first restricted to the remedy for physical interference with life and property, gradually extended its protection to include a recognition of man's spiritual nature-the right to be let alone. The remedy for actual bodily injury was enlarged to prohibit mere attempts to do such injury. Then came in turn the law of nuisance, and the law of slander and libel; and finally, a man's family relations were recognized; and alienation of a wife's affections was held remediable. From corporeal property arose incorporeal rights; and with them came intangible property, products of the mind, as works of literature and art, good-will, trademarks and trade-secrets. The legal recognition of thoughts, emotions and sensations is taken as 66 evidence of the beautiful capacity for growth which characterizes the commoi. law."

It would be but just to refer the reader to the authors for the balance of the argument. Suffice it is to say that they undertake by the authorities to show that protection of private letters has been afforded, not only because of an invasion of property rights; but because of an interference with the individual's right to be let alone. They disclaim all reliance upon the apparently similar complaint for libel, which " after all secures property, or the ability to enjoy property;" but they contend that the protection of intellectual property, as granted, is a recognition of a general right to privacy; because it is given without inquiry into the question of value. "It is for the author to say what shall become pub

lic." So much conceded it is but natural to argue, that when courts have enjoined the publication of letters, in which the idea of literary value or of property was excluded, they should not refuse to protect the individual against the terrors of the instantaneous photograph, and the annoyance of newspaper enterprise. Indeed, it must be said that a careful reading of the argument is calculated to point to only one escape from its conclusion; and this is to insist, that in our country we not only have no privacy, but were never intended to have it.

The form of a new statute which the authors finally suggest, would of course have value for judge and citizen, as a distinct expression of the law, but the objection that the enactment of such a law is impossible, is probably well taken. The wisdom of the judge interpreting old principles to embrace modified conditions is probably greater, than is the courage of the legislator giving expression to an old thought in modern language. Indeed no greater temptation could be offered to transgress the rule contended for by the authors, than an opportunity to take an instantaneous photograph of a judiciary committee sitting on such a bill.

Another objection made to the article itself is, that even if the law be as claimed, no citizen will venture to seek its protection at the risk of inviting still worse publicity. To this it might readily be said, that it is never safe for any power to assume that an English speaking race will submit to an acknowledged wrong. Von Ihring's "Struggle for Right" clearly shows, what the Englishman's disposition to suffer any inconvenience for the assertion of a right has done for his country. Further, the revolution contended for by the authors need not necessarily be worked out through the courts, but may be established by public sentiment alone. The press seeks to please its readers-the character of one makes that of the other-and the press will be the first to conform to a more enlightened demand. The courts will be more especially needed to protect against those instrumentalities, which are at the easy command of individuals, who sustain no responsibility or relation to the community at large.

Without new laws, or even decisions, on such a subject, consideration alone must lead to good; and this article certainly gives the discussion both direction and material.

NOTES OF RECENT DECISIONS.

CONSTITUTIONAL LAW DUE PROCESS OF LAW-SPECIAL APPEARANCE - JURISDICTION. The Supreme Court of the United States, in York v. State of Texas, 11 S. C. Rep. 9, decide that the Texas statute providing that a special appearance by a non-resident defendant for the purpose of pleading to the jurisdiction, is a voluntary appearance, which brings defendant into court for all purposes, are valid, and not in conflict with Const. U. S. 14th Amend., forbidding the deprivation by any State of a person's life, liberty or property without due process of law. Bradley and Gray, JJ., dissented. Brewer, J., says:

It was conceded by the district and the supreme courts that the service upon the defendant in St. Louis was a nullity, and gave the district court no jurisdiction; but it was held that, under the peculiar statutes of the State of Texas, the appearance for the purpose of pleading to the jurisdiction was a voluntary appearance, which brought defendant into court. Plaintiff in error questions this construction of the Texas statutes; but, inasmuch as the supreme court, the highest court of the State, has so construed them, such construction must be accepted here as correct, and the only question we can consider is as to the power of the State in respect thereto. It must be conceded that such statutes contravene the established rule elsewhere, a rule which also obtained in Texas at an earlier day, to-wit, that an appearance which, as expressed, is solely to challenge the jurisdiction is not a general appearance in the cause, and does not waive the illegality of the service, or submit the party to the jurisdiction of the court. Harkness v. Hyde, 98 U. S. 476; Raquet v. Nixon, Dall. Dig. 386; Dewitt v. Monroe, 20 Tex. 289; Hagood v. Dial, 43 Tex. 626; Robinson v. Smith, 48 Tex. 19. The difference between the present rule in Texas and elsewhere is simply this: Elsewhere the defendant may obtain the judgment of the court upon the sufficiency of the service without submitting himself to the jurisdiction; in Texas, by its statute, if he asks the court to determine any question, even that of service, he submits himself wholly to its jurisdiction. Elsewhere he gets an opinion of the court before deciding on his own action; in Texas he takes all the risk himself. If the service be in fact insufficient, all subsequent proceedings, including the formal entry of judgment, are void; if sufficient, they are valid. And the question is whether, under the constitution of the United States, the defendant has an inviolable right to have this question of the sufficiency of the service decided in the first instance and alone. The fourteenth amendment is relied upon as invalidating such legislation. That forbids a State to "deprive any person of life, liberty, or property without due process of law." And the proposition is that the denial of a right to be heard before judgment simply as to the sufficiency of the service operates to deprive the defendant of liberty or property. But the mere entry of a judgment for money, which is void for want of proper service, touches neither. It is only when process is issued thereon, or the judgment is sought

to be enforced, that liberty or property is in present danger. If at that time of immediate attack protection is afforded, the substantial guaranty of the amendment is preserved, and there is no just cause of complaint. The State has full power over remedies and procedure in its own courts, and can make any order it pleases in respect thereto, provided that substance of right is secured without unreasonable burden to parties and litigants. Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. Rep. 91. It certainly is more convenient that a defendant be permitted to object to the service, and raise the question of jurisdiction, in the first instance, in the court in which suit is pending. But mere convenience is not substance of right. If the defendant had taken no notice of this suit, and judgment had been formally entered upon such insufficient service, and under process thereon his property, real or personal, had been seized or threatened with seizure, he could by original action have enjoined the process, and protected the possession of his property. If the judgment had been pleaded as defensive to any action brought by him, he would have been free to deny its validity. There is nothing in the opinion of the supreme court or in any of the statutes of the State of which we have been advised gainsaying this right. Can it be held, therefore, that legislation simply forbidding the defendant to come) into court, and challenge the validity of service upon him in a personal action, without surrendering himself to the jurisdiction of the court, but which does not attempt to restrain him from fully protecting his person, his property, and his rights against any attempt to enforce a judgment rendered without due process, and therefore void, deprives him of liberty or property, within the prohibition of the fourteenth amendment? We think

not.

V.

CUSTODY OF CORPSE-RIGHT OF BURIAL— ADMINISTRATOR - NEXT OF KIN.-The Supreme Court of Indiana, in Renihan Wright, 25 N. E. Rep. 823, refuse to follow the English law as to the right to the custody of a corpse, and decide that both the custody and the right of burial belong to the next of kin, and not to the executor or administrator, and that the courts have power to protect the next of kin in the exercise of their right. Coffey, J., says:

The decided cases bearing upon the question are somewhat confused, and are not free from conflict. This confusion and conflict arises, no doubt, in the attempt, on the part of some of the courts in this country, to follow the decisions of the courts in England, while other courts have asserted that the rule of decision in that country can have no application in the American courts. It is quite clear to us that but little light can be had upon the question now under consideration from the decision found in the English reports, for the reason that the jurisprudence of that country is peculiarly compounded, embracing largely the ecclesiastical element not found in our jurisprudence. In that country, the partition of judicial authority between the church and the State has materially narrowed the powers and actions of the common-law courts. This condition is peculiar to England, and for that reason their decision upon questions kindred to the one before us should not

exert any controlling influence over the courts of this country, where no such partition exists. It is asserted and perhaps truthfully, that Cuthbert, archbishop of Canterbury, first introduced burial in church-yards in England in the year 750. The exclusive power of the ecclesiastics, denominated "ecclesiastical cogniz. ance," became both executive and judicial soon after the Norman conquest. It was executive in taking the dead body into actual possession, and guarding its repose in consecrated ground, and it was judicial in deciding all controversies involving the possession or the use of holy places, as well as in adjudicating upon the question as to who should be allowed to lie in consecrated earth and, in fact, who should be allowed to be interred at all. The clergy monopolized the Judicial power over the subject of burial; while the secular courts, stripped of all authority over the dead, were confined to the protection of the monuments, or other external emblems of grief erected by the living. The heir could maintain no action in the common-law courts for the disturbance of the remains of his buried ancestors, the remedy for such wrong belonging to the person in whom was vested the freehold of the soil in which the burial was made. 3 Coke Inst., p. 203. The power exercised by the ecclesiastical tribunals of England is not spiritual, but temporal, and judicial. It is a legal, secular authority, which they have gradually abstracted from the ancient civil courts, to which it had originally belonged. It will thus be seen by this brief review of the law in England, upon the subject now in hand, that the decisions of the courts of that country, upon the subject of the right of relatives to control the bodies of the dead, are not authorized in this country. As we have no division of power between the church and the State in this country, it follows that much of the power exercised by ecclesiastical tribunals in England is vested, of necessity, in the secular courts here charged with the general administration of the law. The necessity for the existence and exercise of such power must be apparent to all. Without it, the right to take the exclusive control of a corpse, and care for and bury it, could not be enforced. The father could not legally protect the remains of his children, or the husband of his wife, in the absence of such power. While the law might punish the body-snatcher who desecrated the grave, it would be powerless to restore the body to the relatives. The courts of this State, in our opinion, possess the power to enforce the rights of the appellees, in this case, to the body of the deceased daughter if the law gives them the right to its custody, and the right to give it decent burial; and they also possess the power to assess such damages as may accrue to them on account of being deprived of such right. It will not do to say that the custody of a corpse belongs to, and must be interred by, the executor or administrator of the deceased, for under our law, no letters of administration can be granted, except to relatives, for the period of 20 days after death. In the event of the inability of the relatives to give the bond required by law, no provision for the burial could legally be made during that period. Certainly our law-makers did not understand that no one except an executor or administrator had the legal right to the custody and burial of a corpse. Then, in whom is the right vested? In the case reported in 4 Bradf. Sur. 503, this question is fully considered and passed upon by the Supreme Court of New York. * *The report contains a statement of the learned referee's investigation of the of the law of burial, and it is believed to be the most accurate and elaborate collection and statement of the

The

law, upon that subject, yet published. final conclusion reached by Mr. Ruggles upon the subject of the legal aspect of the matters referred to him for his report were "(1) That neither a corpse nor its burial is subject in any way to ecclesiastical cognizance, nor to sacerdotal power of any kind; (2) that the right to bury a corpse, and to preserve its remains, is a legal right, which the courts of law will recognize and protect; (3) that such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin; (4) that the right to protect the remains includes the right to preserve them by separate burial, to select the place of sepulture and to change it at pleasure." Following the law as announced by Mr. Ruggles in the court above referred to, this court held, in the case of Boggart v. City of Indianapolis, 13 Ind. 134, that the bodies of the dead belong to the surviving relatives in the order of inheritance as other property, and that they have the right to the custody and burial of the same.

NON-RESIDENCE

V.

-METHODIST PREACHER. The Supreme Court of North Carolina, in Carden Carden, 12 S. E. Rep. 197, say that a Methodist preacher assigned to and living in a district outside his State, is a non-resident within the meaning of attachment laws, though he intends to return, and still claims a residence in the State, and visits it once or twice a year. Shepherd, J., says:

We are unable to distinguish this case from that of Wheeler v. Cobb, 75 N. C. 21. It is there said that, "without deciding who in law is a non-resident in other respects, but confining the decision to a construction of this statute, the conclusion is that where one voluntarily removes from this to another State for the purpose of discharging the duties of an office of indefinite duration, which required his continued presence there for an unlimited time, such a one is a non-resident of this State for the purposes of an attachment, and that, notwithstanding he may occasionally visit this State, and may have the intent to return at some uncertain future time." The prominent idea is "that the debtor must be a non-resident of the State where the attachment is sued out; not that he must be a resident elsewhere. * The essential charge is that he is not residing or living in the State, that is, he has no abode or home within it where process may be served so as effectually to reach him. In other word, his property is attachable if his residence is not such as to subject him personally to the jurisdiction of the court, and place him upon equality with other residents in this respect." Wap. Attachm. 35. We cannot understand how these latter conditions could have existed when the defendant was living in Maryland, visiting this State only once or twice a year, and with only a general intention of returning at some indefinite time, and making his home here. Nonresidence within the meaning of the attachment law, means the "actual cessation to dwell within a State for an uncertain period, without definite intention as to a time for returning, although a general intention to return may exist." Weitkamp v. Loehr, 53 N. Y. Super. Ct. 83.

-

CONSTITUTIONAL LAW INTERSTATE COмMERCE-TELEPHONE MESSAGE — TAXATION. A new application of established princi les of constitutional law was made by the New Jersey Court of Chancery in the case of In re Pennsylvania Tel. Co., 20 Atl. Rep. 846, where it was held that a message sent by telephone from one State into another is commerce between the States, and cannot be prohibited or regulated by injunction in either State against persons or corporations engaged in sending such messages, because they or it do not pay the taxes assessed against it by such State. Bird, V. C., says:

The assessors were not contented with the gross proceeds returned by the defendants of business done within this State, but proceeded, as they suppose they might under the act, to ascertain what in their judgment was the proper amount of gross proceeds to be assessed from other sources, and assessed $3,122.53, in addition to $3,643.47. This additional assessment the defendant insists is unlawful. Its resistance to the payment of this additional tax is based upon the doctrine that it is unconstitutional for any State to attempt to regulate commerce between the States; and that business of this character originating in one State and terminating in another is such commerce. I believe this principle was so recognized in the case of Cable Co. v. Attorney General, 1 Dicks. 270. In that case Mr. Justice Knapp said, in delivering the opinion of the court of errors and appeals; "Railroads and telegraphs may become instruments of interstate or international commerce, and when, as such instrument, they are in action, they may not be obstructed by statute imposition and restrictions; hence it was held, in Telegraph Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. Rep. 961, that, the telegraph company having brought itself within the provisions of the act of congress of July 24, 1866, entitled 'An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes,' collection of a tax imposed upon the telegraph company on its property in Massachusetts could not be enforced by injunction, although the taxing act provided for that as one mode of enforcing payment; the reason being that an injunction enforced in that State would put a stop to its general operation. The tax, however, was held to be valid, and the State was left to its other remedies for its collection. Pensacola Telegraph Co. v. W. U. Tel. Co., 96 U. S. 1; Telegraph Co. v. Texas, 105 U. S. 460, are all instances of illegal interference with companies as instruments for commerce. But each of these cases holds the companies to be subject to taxation, otherwise legal, which do not obstruct or place a direct burthen upon them either as instruments of general commerce or as agents of the United States." "The case of Coe v. Errol, 116 U. S. 517,6 Sup. Rep. 475, marks the point where the subject of commerce pass out of the State's power to tax, and come within federal protection." "That point is not reached when they become finished production. It is there held that goods, the product of a State, intended for exportation to another State, are liable as part of the general mass of property of the State of another origin, until actually started in course of transportation to the State of their destination, or are delivered

These prin

to a common carrier for that purpose." ciples are as applicable to messages by telephone as to merchandise. There can be no reasonable distinction made between the office of common carrier of telephone, and the office of a common carrier of goods by railway or steam-boat. In both cases it is commerce between the States. In every such instance, the consideration is, when is the transaction within the constitutional regulation? The disputes which have led to judicial determination of the various questions have been respecting those conditions which upon the one hand was deemed commerce, and upon the other not. I think, therefore, the injunction prayed for in this case ought not to be allowed; for, if it were to be allowed it would most certainly, though indirectly, control commerce between States.

WITNESS-PRIVILEGE-SERVICE OF WRIT— NON-RESIDENT.-As to the exemption of a witness attending court from service of process, the Court of Appeals of Maryland, in the case of Bolgiano v. Gilbert Lock Co., 20 Atl. Rep. 788, decide that a non-resident who is within the State solely as a witness, is exempt from service of process for the commencement of a civil action against him in the State, and the privilege protects him in staying and returning, provided he acts bona fide and without unreasonable delay. Miller, J., says:

A witness is protected from arrest on any civil process while going to the place of trial, while attending there for the purpose of the cause, and while returning home; eundo, morando, et redeundo; and it matters not whether he attends voluntarily or by compulsion. 2 Tayl. Ev. § 1199; 1 Greenl. Ev. 316; 1 Whart. Ev. 389. Tae rule stated in these terms is almost universal application, .whether the privilege be regarded as a personal one to the witness or the privilege of the court. But does it protect a witness or a party from service of a summons in order to secure his appearance to an ordinary civil suit? On this question there has been some conflict of decision. The tendency, however, of the courts in this country is to enlarge the the privilege, and afford full protection to suitors and witnesses from all forms and process of a civil nature during their attendance before any judicial tribunal, and for a reasonable time in going and returning; and we think the decided weight of authority has extended the privilege so far at least as to exempt a resident of another State, who comes into this State as a witness to give evidence in a cause here, from service of process for the commencement of a civil action against him in this State, and that the privilege protects him in staying and returning, provided he acts bona fide, and without unreasonable delay. The cases bearing upon the subject have, with commendable zeal and industry, been collected by counsel on both sides and appear in their respective briefs. We refer to Person v. Grier, 66 N. Y. 124; Matthews v. Tufts, 87 N. Y. 568; Dungan v. Miller, 37 N. J. Law, 182; Massey v. Colville, 45 N. J. Law, 119; Miles v. Mc Cullough, 1 Bin. 77; Huddeson v. Prizer, 9 Phila. 65; Wilson v. Donaldson, 117 Ind. 356, 20 N. E. Rep. 250; Mitchell v. Judge, 53 Mich. 541, 19 N. W. Rep. 176; Sherman v. Gundlach, 37 Minn. 118, 33 N. W. Rep. 549; Bank v. Ames, 39 Minn. 179, 39 N. W. Rep. 308; Palmer v.

Rowan, 21 Neb. 452, 32 N. W. Rep. 210; Ror. Int. St. Law, 26. To the same effect are the decisions in the federal courts: 11 Fed. Rep. 582, Atchison v. Morris; 23 Fed. Rep. 707, Small v. Montgomery; 25 Fed. Rep. 785, Kauffman v. Kennedy. Many other cases, both in the State and federal courts, to the same effect could be cited, but we deem it unnecessary. The reason for the exemption is placed by the New York court of appeals, and by Judge Cooley in the Michigan case, on the grounds of public policy and the due administration of justice, and there we are content to rest it.

The question of the power of the State legislature to regulate the charges of common carriers for the transportation of persons and property within the State is fully determined in the affirmative by numerous decisions of the federal supreme court.1 The legislatures of the various States have the right to pass appropriate laws prohibiting excessive freight charges and unjust discriminations, and such statutes are constitutional and valid,2 and rates of freight established by the legislatures may be enforced by penalties. Prior to the passage by congress of the interstate commerce act, many of the States had adopted constitutional provisions, or enacted special laws regulating the freight rates of railroads, and other laws have since been adopted. Such statutes were passed, however, in recognition of the restrictions imposed upon the States by the United States constitution, or, where those restrictions were neglected, the legislation was declared unconstitutional. But many of the provisions of State statutes remain unaffected by the act of congress. It is recognized, however, that the right of a State to regulate common 1 R. Co. v. Fuller, 17 Wall. 560.

2 Olcott v. Supervisors, 16 Wall. 694; R. Co. v. Richmond, 19 Wall. 584; Com'rs. v. P. & O. R. Co., 63 Me. 279; Shipper v. Com., 47 Pa. St. 340; Blake v. Winona & St. Peter, R. Co., 19 Minn. 418; Beekman v. R. Co., Paige (N. Y.) Ch. 45; State v. Winona, etc. R. Co., 19 Minn. 434; Fuller v. Chicago & N. W. R. Co., 31 Iowa, 188; Hudson Co. v. State, 4 Zab. (N. J.) 718; McGregor v. Erie R. Co., 6 Vroom (N. J.) 89; Tilley v. Savannah, etc. R. Co., 5 Fed. Rep. 641; s. c., 1 Am. & Eng. R. R. Cas. 615; Chicago & Alton R. Co. v. . People, 67 Ill. 11.

3 Minnesota v. Winona, etc. R. Co., 16 Minn. 434; McGowan v. Wilmington & Weldon R. Co., 27 Am. & Eng. R. R. Cas. 64.