Instruments Law is not a negotiable instrument, and cannot be acted upon or affected by it. Section 96 is a declaration of the general principle stated by us, and has no relation to the rule which is an exception to it. toppel might be a defense in a proper case, saying in part, at pages 1027-8 of the L. R. A. Report: "The rule that an estoppel cannot exist whereby a party to a gambling contract is "Our conclusion is in harmony with the prevented from setting up illegality as a dejudicial decisions of other states." The court cites authorities from Iowa, Kentucky and West Virginia. fense is applicable in all cases as between the original parties, or as against assignees who simply stand in the shoes of the original party. But where the estoppel is invoked by an innocent purchaser who has been induced to purchase the paper by the representations of the maker, a different rule should be applied." One form of illegality sometimes involved is that where the instrument has been executed to a foreign corporation within a state where it has not become authorized to do business in accordance with the statutory requirements, and where such corporation has transferred the instrument to the plain-bling tiff, who sues as a holder in due course. The general rule here is that the plaintiff can recover, unless the particular statute makes the note and contract void, which is in accord with the Kentucky and other decisions I have just considered.15 The question of notice is also said to be here involved, and it is generally held that the plaintiff is not chargeable with notice, as defined in Section 56 of the Negotiable Instruments Law.16 Though it has been held this present year in New Hampshire that knowledge that the payee is a foreign corporation should constitute such notice.17 This decision, however, is obviously open to the criticism that it sets up the standard of "the ordinary man," which is in defiance of the requirements of Section 56. In certain cases, it must be noted, some of the courts, in this connection, concern themselves with the question of whether or not there is an estoppel to assert the defense. For example, in Holzbog v. Bakrow,18 the court, while holding that in the particular case, the defendant had not changed his position for the worse in reliance upon the facts set up as the basis of the estoppel, nevertheless, decided that es And again at page 1033: "While gambling is unlawful and gam contracts void, the sale of promissory notes is lawful. There was no unlawfulness in the assignment of the note to Bakrow. As between the original parties there can be no estoppel of the defendants from showing the illegality of the transaction, but when they induce an innocent third party to buy the note by representing the note to be valid and assuring him it will be paid, he is not affected by the illegality of the original transaction, of which he had no notice. His rights arise out of a transaction which is entirely lawful." And this appears to be the weight of authority. It is submitted, however, that the conclusion is illogical and inconsistent. The statute should be vindicated, even if, thereby, the defendant seems to profit by his own wrong, or a wrong to which he was a consenting party. In Holzbog v. Bakrow, the court cites and approves Alexander v. Hazelrigg.19 Logic and consistency would seem to demand the application of the rule to the fullest extent. If, as has been said, an instrument is void, it is void for all purposes and in all connections. In effect, the principle has been ignored, that what the law makes void, estoppel cannot make valid.20 And it should not be construed to do so any more than the language of the Negotiable Instruments Law should be interpreted to repeal former gambling statutes, or be considered as having been in (19) Supra. (20) Kyser v. Miller, 144 Ill. App. 316; Montreal Bank v. Griffin, 154 Ill. App. 616. tended to relate to or deal with instruments which never had any legal existence. As to "the innocent purchaser," in the language of Sabine v. Paine, he should be "bound to know the character of the paper he is dealing in." True, it would seem that in such cases, the courts appear to rely for the most part upon there having been renewed representations by the original party to the paper, constituting in effect another transaction. But this, after all, is only an apparent and not a real distinction. The original undertaking is the thing actually relied upon, and the representations are brought forward merely as matters of estoppel, so that the difficulty really persists, and it seems impossible to escape the conclusion that, "hard cases make bad law." However, as stated at the outset, my main discussion does not concern itself with this class of cases, and they are only referred to incidentally, and for the sake of completeness. This should not be understood to be an exhaustive examination of the authorities upon the general question, as it has been intended only to consider sufficient of them to fully disclose the diverse holdings, and the grounds upon which they are put. The better rule appears to be that laid down in the Kentucky, West Virginia and New York cases. It would seem to be founded in the better law, and sustained by the most satisfactory reasoning. It is no doubt true that the other view arose out of an assumed necessity of giving full scope to the operation and effect of the Negotiable Instruments Law. While such an attitude toward the law is highly desirable, it is entirely conceivable that it can be pushed too far, and it is submitted, this was done in this particular instance. The fact should never be lost sight of that the fundamental and primary purpose of the law was not to write an original statute, but to codify the law merchant, or some one particular in terpretation of it. On the whole, there would seem to be involved two conflicting considerations of what may be called public policy. On the one hand, it is deemed to be in the best interests of society, and particularly of those classes of it that have dealings with commercial paper, that such paper, under all circumstances, should circulate with the utmost possible freedom, and that any holder who is "one in due course" should be fully protected in the enjoyment of all rights which such instruments would appear to confer, regardless of previously existing defects in consideration or title.21 On the other hand, it is contended that gambling and usury, the two most common subjects of statutory inhibition in this regard, are concededly against the best interests of society, and so, manifestly contrary to public policy, and hence, statutes relating to the prevention thereof should be so construed and applied as to preclude as far as possible the practice of the acts at which the statutes are incontrovertibly aimed. And supporting and strengthening this view is the immemorial reluctance of the courts to declare repeals by implication. It can scarcely be seriously denied that those practices, of which gambling and usury are typical, are, and are increasingly becoming, very grave menaces to the wellbeing of our social structure, and, therefore, anv attempts by the body politic for protection against them should be encouraged and assisted by the courts rather than hampered. So that, when the legislative power has deliberately declared that instruments, in form negotiable, in anywise connected with the prescribed acts are void, there should be no hesitancy on the part of the judicial power to supplement and support the efforts of the co-ordinate power. Even if it is considered that there is presented a real dilemma, and a necessary choice between two evils, it would scem that the re latively few losses of individual holders of commercial paper do not bulk large, as compared to the very general evils growing out (21) Bank v. Kellogg, 183 N. Y. 92, 95, 75 N. E. 1103, 1104. of the practices at which the original statutes, ordinarily drawn in question, were aimed. And, furthermore, there is likewise to be considered, what may be deemed, perhaps, also a matter of public policy, namely, that no legislative enactment shall be held to have been repealed, unless a subsequent act so states expressly, or unless the implication is so necessary as to be unescapable. For in this way the integrity and certainty of the laws will be maintained. Finally, since it seems clearly apparent that the weight of authority is now against the repeal and in favor of the defense, another principle of policy in connection with the Negotiable Instruments Law becomes operative, namely, that of uniformity of decision. Uniformity, probably more than aught else, was the end and aim of the compilers and framers of the law. It is certainly a consummation devoutly to be wished, so that everywhere there may be one rule to determine the rights of a holder of negotiable paper. Generally, but in this particular field, perhaps, more than any other, law should be law, regardless of state lines and geographical boundaries, just as equity at last came to be equity, regardless of "the size of the Chancellor's foot." And there is in reality no more hardship in requiring a taker of instruments, in form negotiable, at his peril to acquaint himself with the nature of the transaction in which the paper had its inception, than there is to hold him to a like duty in respect to the signatures involved. And forgery is a real defense by the express terms of Section 23 of the law. It is to be hoped, therefore, that what appears at last to be the true rule will be adopted as the ratio decidendi, even by those jurisdictions which have heretofore declared themselves for the opposite view. The value of the rule of stare decisis has its distinct limitations, in a case of this kind. H. W. DANFORTH. Denver, Colorado. COMMERCE-MAIL AS COMMERCE. CLEVELAND, C., C. & ST. L. RY. CO. v. 128 N. E. 566. Supreme Court of Illinois. Oct. 23, 1920. A railroad company, carrying pouches of interstate mail is engaged in "interstate commerce" within the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), though it is not a common carrier of the mail, either as to the government or the persons transmitting the mail, so that there can be no compensation awarded by the Industrial Commission for the death of an employe killed while handling the pouches. There is no dispute as to the facts in this case. The sole question for decision is whether the facts bring it within the Workmen's Compensation Act of Illinois (Law's 1913, p. 335), or whether deceased was engaged in interstate commerce at the time of the accident, and as a result thereof the case falls within the purview of the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). com Plaintiff in error insists that United States mail cannot be considered as merce, and that a railroad company engaged in the transportation of mail is an instrumentality or agent of the government, and not a common carrier within the purview of the federal Liability Act and not engaged in interstate commerce, and therefore not subject to the provisions of that act. Several cases are cited and relied upon in support of that contention. One of them is Atchison, Topeka & Santa Fe Railroad Co. v. United States, 225 U. S. 640, 32 Sup. Ct. 702, 56 L. Ed. 1236, in which the railroad company sued the United States to recover the reasonable value of railway post office car service furnished to and actually used by the post office department. In the course of that decision the Supreme Court held that the railroad company in carrying the mails was not hauling freight, nor was it acting as a common carrier with corresponding rights and liabilities, but in this respect it was serving as an agency of the government, and as much subject to the laws and regulations as any other branch of the post office. That case cannot be held de cisive of the question now before us. The gov ernment, on such cars as were furnished by the railroad company in the case just cited, furnishes its own mail clerks, and they ride in the cars, handle, sort, distribute, place the mail in the pouches, and throw off the pouches at the various stations to which the mail is destined. The railroad company is not the real transporter of the mail, but only transports it as an agent of the government, and it has never been considered that the relation between the government and the railroad company is that of a common carrier. In the case of Boston Ins. Co. v. Chicago, Rock Island & Pacific Railroad Co., 118 Iowa, 423, 92 N. W. 88, 59 L. R. A. 796, the suit was to recover the value of a registered mail package, which the railroad company, as one of the agencies of the government for carriage of its mails, undertook to carry from Kansas City, Mo., to Kinsley, Kan., and which it was claimed was destroyed by fire at Volland, Kan., caused by the negligence of the railroad employes. The Bankers' Mutual Casualty Company paid the loss to the owner of the package, and the insurance company which had reinsured the loss, repaid the amount thereof to the casualty company, and then sued the railroad company. The Iowa Supreme Court held that the railroad company, carrying mail under contract with the United States government, owed no duty to the sender of the particular registered package of mail which would give him a right of action in case the package was destroyed through the negligence of the railroad company's servants. The court also held in its decision that the railroad company in carrying the mail is neither a private nor a common carrier, and owes no duty to the sender or to the addressee of mail matter; that the law makes it an instrumentality of government for the performance of acts in execution of functions assumed and controlled by it, and that, at best, the railroad company is simply a public agent or agency discharging public duties. To the same effect as this latter case are the holdings in the cases of Bankers, Mutual Casualty Co. v. Minneapolis, St. Paul & Sault Ste. Marie Railroad Co., 117 Fed. 434, 54 C. C. A. 608, 65 L. R. A. 397, and Foster v. Metts, 55 Miss. 77, 30 Am. Rep. 504. The further reason given for the holding in these cases is that the sender of mail matter has no contract with the carrier of the mail bags, and does not commit his mail matter to him, but to the government, which has undertaken to receive, carry, and deliver it. The railroad company does not carry for individuals or receive any compensation from them for carrying mail matter. tainly, then, the railroad company could not be either a private or common carrier for such individuals. Cer There is no case decided by this court or by the Supreme Court of the United States that passes on the identical question now before us, so far as we are aware. The latter court has passed upon several propositions that are more nearly related to the question now under consideration than those decided in the cases cited by plaintiff in error. In International TextBook Co. v. Pigg, 217 U. S. 91, 30 Sup. Ct. 481, 54 L. Ed. 678, 27 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103, the Supreme Court of the United States held that sending the means of educa tion by correspondence through the mails is commerce. The same court has held that the transmission of intelligence by means of the electric telegraph is commerce, and that an electric telegraph company transmitting such intelligence for hire is engaged in commerce. Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 24 L. Ed. 708; Western Union Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067; Leloup v. Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311; Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. Ed. 355. In Marconi Wireless Telegraph Co. v. Commonwealth, 218 Mass. 558, 106 N. E. 410, Ann. Cas. 1916C, 214, where the question was directly up for decision, the Supreme Court of Massachusetts held that the transmission and receiving of wireless messages for hire to and from ships on the high seas and to and from foreign countries is foreign commerce, and that the company so transmitting and receiving messages for hire is engaged in interstate or foreign commerce. If the sending of wireless messages or messages by telephone or telegraph for hire from state to state is engaging in interstate commerce when done for individual persons, it is none the less interstate commerce if done for the United States government under contract for hire or under provisions of the United States statutes. The same character of intelligence is sent in letters by mail, the difference usually being that the messages by letter are more elaborate. The carrier of this mail for hire from state to state is engaged in interstate commerce. The government is the principal in the transmission of letters, but a railroad company in transmitting such mail for hire for the government is also, like its prin As to the government it may not be a common carrier within the legal significance of that term, but it is nevertheless engaged in interstate commerce. In the case at bar the defendant in error was, without question, at the time of this accident, a common carrier engaged in transmitting from one state to another freight and merchandise for hire. It was also engaged in interstate commerce in transporting the mails Our conclusion is that the federal statute applies to this case, and therefore, under all the decisions on that subject, excludes any action under our state statutes. The federal statute provides that every common carrier by railroad, while engaged in commerce between any of the several states or territories, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, his or her personal representatives. "The true test of employment in such commerce in the sense intended is, Was the employe at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?" Shanks v. Delaware, Lackawanna & Western Railroad Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797. We are supported in our conclusion in this case by two very strong and well-reasoned cases rendered by the California and Massachusetts Supreme Courts, viz., Zenz v. Industrial Accident Com., 176 Cal. 304, 168 Pac. 364, L. R. A. 1918D, 423, and Lynch v. Boston & Maine Railroad Co., 226 Mass, 522, 116 N. E. 248, L. R. A. 1917E, 819. The judgment of the circuit court is affirmed. Judgment affirmed. NOTE-Carrying Mail as Interstate Commerce. -It seems to the writer that the cases referred to by plaintiff in error were more in point than those the court refers to as sustaining the contention that plaintiff in error was engaged in interstate commerce. The true question ruled in Atchison, Topeka & Santa Fe R. R. Co., v. U. S., 225 U. S. 640, 56 L. ed. 1236, involved no consideration whatever of the character of the intelligence in the mails, but the fact that the carrier was an agency of the government was the determining factor. Nor was there in the cases the court cites any question except in an incidental way about the character of what was transported or conveyed. It was ruled, in effect, that intelligence did not take away the character of the service. It constituted no exception to the rule. But in the Atchison, Topeka & S. F. R. Co. supra the effect of the holding was to say that mail as mail was in being transported not interstate commerce. If plaintiff in error handled the mail by employment of the government, it was governmental authority. In Zenz v. Industrial Acc. Com., 176 Cal. 304, 168 Pac. 364, L. R. A. 1918D, 423, the ruling was that mail carried under an agency contract with U. S. Government was interstate commerce. And so in Lynch v. Boston & M. R. Co., 227 Mass. 123, 116 N. E. 401, L. R. A. 1918D, 419, and recovery must be had where the carriage was between states under the federal and not the state law. It cites from Shanks v. Delaware L. & W. R. Co., 239 U. S. 556, 60 L. ed. 436, L. R. A. 1916C, 797, that: "The true test of employment in such commerce," etc. But if mail is not "in such commerce" or in any commerce when moved by the government the test spoken of can have no application, and, therefore, the action should be under remedies given by the state and the Massachusetts decision was wrong in refusing to an injured employe of a carrier acting as an agent of the government. These are the only two decisions we find on this interesting question, and it seems to this annotator that letters sent by express or private hand is intelligence coming under the ruling in International Text Book Co. v. Pigg, 217 U. S. 91, 27 L. R. A. (N. S.) 493, and Marconi Wireless Telegraph Co. v. Com., 218 Mass. 558, 106 N. E. 310, Ann. Cas. 1916C, 214, but when letters are sent by a government agency, it makes no difference that the envelopes contain only a blank sheet, or whether they are packages sent by parcel post, conveying of themselves no intelligence whatever. In either event they are things admitted to governmental custody, not as intelligence but solely only as articles entrusted to such custody. The government is in no way essentially interested in how the carrier holds himself out. C. CORRESPONDENCE. PROGRAM OF THE MEETING OF THE IDAHO BAR ASSOCIATION. Editor, Central Law Journal: I send you the following for your publication: The program for the meeting of the Idaho State Bar Association, which is to be held in Boise, Idaho, on January 13, 14, 15, 1921, will treat of subjects of practical interest and benefit to the lawyers of the State. Sessions will be held each morning, afternoon and evening, beginning at ten o'clock a. m., two and eight o'clock p. m. respectively, except the evening of the 15th, when will be held the banquet of the Association beginning at 6:30 o'clock. The banquet will be held at the Chamber of Commerce Rooms, Boise City National Bank Building. The morning session of Thursday, the 13th, will be devoted to reports of officers and stand |