negligence wife was injured will not constitute her husband her agent and render her bound by his acts in procuring a settlement and in obtaining her signature to a release; wife maintaining that the release was obtained by fraud. -Ralston v. Philadelphia Rapid Transit Co., Pa., 110 Atl. 336.

61. Injunction-Trespass.-That a trespasser has expended large sums in improving the land and in completing a pumping station thereon after injunction was dissolved and while the complaining parties were perfecting their appeal cannot move the Supreme Court to refuse such parties the relief of injunction asked for, and to attempt to award them damages only for the interference with their property rights.-Bainton v. Clarke Equipment Co., Mich., 178 N. W. 51.

62. Insurance Condition Precedent.-Unconditional delivery of a policy, by its terms requiring payment of the premium as a condition precedent to its taking effect, is sufficient to constitute a waiver of such term; it being presumed from such delivery that the insurer intended to extend at least a temporary credit to insured.-Ginners' Mut. Underwriters' Ass'n v. Fisher et al., 222 S. W. 285.

63. Consideration.-"Insurance" is a contract by which one party, in consideration of a price paid to him adequate to the risk, becomes security to the other against loss by certain specified risks; its dominant and characteristic feature being to grant indemnity or security against loss for a consideration.-Everly v. Equitable Surety Co., Ind., 127 N. E. 616.

64. Forfeiture.-Where an insurer, on last day of grace for payment of $19.88 quarterly premium on life policy, had in its hands $20 belonging to insured as a benefit payable to him under a health policy issued by insurer, it cannot claim the life policy was forfeited for insured's failure to pay the quarterly premium; if insurer had in its possession funds belonging to insured derived from any source, it was its duty to appropriate and apply them to prevent forfeiture.-Reliance Life Ins. Co. v. Hardy, Ark., 222 S. W. 12.

65. Health Policy.-Where a health policy provided benefits if the insured should by disease be compelled to "remain continuously and strictly within the house" under treatment of a regular physician, the fact that insured took air and exercise under direction of his physician will not preclude recovery, but insured cannot recover if the disease was one which required him to remain outside of the house rather than within it; the insurer having fixed the terms of the

contract.-Interstate Business Men's Acc. Ass'n v. Sanderson, Ark., 222 S. W. 51.

66. Jury-Right of Trial by.-There is no right in a civil case to a trial by jury, unless and except so far as there are issues of fact to be determined.-In re Peterson, U. S. S. C., 40 Sup. Ct. 543.

67. Landlord and Tenant-Surrender.-An "abandonment" of premises by lessee is not the equivalent of a "surrender"; for, to show a surrender, a mutual agreement between lessor and lessee that the lease is terminated must be clearly proved, which surrender releases the tenant from further liability.-Noble v. Sturm, Mich., 178 N. W. 99.

68. Libel and Slander-PrivilegedCommunication. In a libel suit brought against a railroad company by a discharged baggageman in the joint service of an express company and defendant, based upon a letter to the express company by defendant's superintendent requesting his discharge because he had carried a passenger in the baggage car contrary to regulation, the letter was privileged; the superintendent in good faith believing the information upon which it was based to be true.-International & G. N. R. Co. v. Edmundson, Tex., 222 S. W. 181.

69. Limitation of Actions-Amendment.Where the original declaration alleged negli-, gence in fastening a cable suspending a political banner to a chimney, and alleged that the fall of the chimney was due to such use, it was sufficient, and an amendment after the statute of limitations had run, alleging also that defen

71. Master and Servant-Negligence.-If street railway superintendent was not a passenger when riding on a car after his day's work, he was a fellow servant of the men operating the car, and those operating that with which it collided, and cannot recover for injuries due to their negligence.-Bernard v. Michigan United Traction Co., Mich., 178 N. W. 43.

72. Municipal Corporations-Subordinate Tribunals.-The municipal subdivisions are public and political organizations as distinguished from private corporations, and have not the same rights to judicial trial and determination touching obligations imposed on them for the support of strictly public burdens as have other corporations and persons. In re Opinion of the Justices, Mass., 127 N. E. 635.

73. Negligence-Res Ipsa Loquitur.-The fact that a customer falls upon a stairway does not raise any presumption of negligence on the part of the proprietor of the store, and the doctrine of res ipsa loquitur does not apply.-Broadston v. Beddeo Clothing Co.. Neb., 178 N. W. 190.

74. Parent and Child-Consent of ParentThe sister of a minor who was intrusted with the child's temporary custody does not have authority to give consent to an operation, but only the father of the child may give consent.Moss et al. v. Richworth, Tex., 222 S. W. 225.

75. Principal and Surety-Consent of Surety. -Whether injury results to the surety or not. the creditor has no right to make any contract with the principal changing the contract without the consent of the surety to the contract actually made.-Wilson v. J. W. Crowdus Drug Co. et al., Texas, 222 S. W. 223.

76. Intent.-While a contract for a surety cannot be extended beyond its terms. it should not be construed so strictly as to defeat the manifest intention of the parties.-State Camp of Pennsylvania of Patriotic Order, Sons of America, v. Kelley et al., Pa., 110 Atl. 339.

77. Railroads-Vigilant Watch.-A railroad track is a danger signal, and it is the duty of an automobile driver approaching the crossing to have his machine under control and keep a vigilant lookout for trains.-Hines, Director General of Railroads. v. Johnston et al., U. S. C. C. A., 264 Fed. 465.

78. Release-Fraud.-The mere circumstance of a release not being read to injured party does not convict the party obtaining it of fraud in procuring it.-Ralston v. Philadelphia Rapid Transit Co., Pa., 110 Atl. 329.

79. Sales-Breach of Contract.-Where buyer of lumber breached contract of sale by insisting that inspection should be made at place of delivery as condition precedent for payment. while contract required payment when loaded. seller was entitled to refuse to further perform. -Chas. F. Luehrmann Hardwood Lbr. Co. v. Coats & Green, Ark., 222 S. W. 18.

80. Rescission.-Slight loss is sufficient to justify a court of equity in rescinding a contract of purchase and sale where the purchase was induced by the sellers' fraud.-Kanaman v. Hubbard, Tex., 222 S. W. 151.

81. Rescission.-An executed sale may be rescinded on account of actual fraud; and, since fraud voids all contracts, no title to the property passes under such sale. Snellgrove Dinglehoef, Ga., 103 S. E. 418.

V.

82. Vendor and Purchaser-Rescission.-A vendee's right to avoid and rescind a contract of sale for fraud of vendor in procuring its execution, or for mistake inducing its execution. is not lost by his default on payments due on the contract.-De Barros v. Barlin, Cal., 190

Pac. 189.

Central Law Journal.

ST. LOUIS, MO., AUGUST 27, 1920.

ALTERNATE JUDGES.

Manifestly, a full court is preferable, if not essential, to the upholding of the faith. of the people and possibly to the administration of justice. The country feels itself entitled to the contribution of every judge that the legislative department has seen fit to provide as a suitable personnel for an appellate court, whatever may be the individual or professional opinion as to the necessity for the number. For the purpose of this argument it may be viewed as a question of psychology. Therefore, it may not be out of place for provision to be made for filling temporary vacancies caused by absence or disqualification, like personal interest or relationship.

come

Obviously such a relief must through the legislative department and it appears that a bill has been introduced in Congress affecting the Federal Supreme Court. Granting for the purpose of argument an affirmative voice in behalf of the innovation, it is in order to address ourselves to the necessary legislation, for in that way some aid may be given in promoting the thought and research necessary to its proper formulation.

In giving consideration to the Federal Supreme Court the first thought is the personnel. Conceding that "there are as good fish in the sea as have been caught out of it," there is plenty of judicial timber on the Circuit Courts of Appeals ready to be called and who can satisfactorily serve temporarily on the highest court. But, like everything in life, there are exceptions to this rule. Selection, therefore, becomes necessary and is vital. The thoughtless will argue that the personnel is not very material since the man will be but a "bench warmer" in any event and almost without a voice because of the novelty and awe of

his new surroundings and duties. Obviously, if that statement be true, such persons present a satisfying argument against the proposed legislation. But while they argue from a false premise, a valuable thought is suggested. The "Substitute" or "Alternate," Judge, as he may be designated, must of course, be a man of judicial temperament and experience and big enough to measure up to the sacred, profound, dignified and awe-inspiring duties set for him to perform. Simply stated he must be qualified and that is a sufficient an

swer.

This leads to the second thought, which is the selection of the judge, and neither geography nor political or religious inclinations should be an element in passing upon qualification. Let us for convenience go about it through the process of elimination. The power should not be vested in the President because his is naturally a political office. It would not be feasible to call the Senate to his "advice and assistance," because of the frequency of vacancies often occurring during the recess of the Senate. Besides, politics would inevitably be injected into the matter because of the influence of many decisions upon great public questions espoused by one or the other of the major political parties. The interests of politics--the same politics that have excited an embattled world and suppressed the purest emotions of rational men--would search out the man entertaining their respective views. For the same reason the Senate should promptly eliminate itself as a selecting agency of temporary judges.

It follows, therefore, that the Supreme Court itself should select all "substitute" or "alternate" judges. This great body thinks, reasons and acts judicially. It is free or freer from politics and other influences than any other organization on earth. It has a reputation to sustain unsurpassed in the history of the civilized world. It would go about the selection in a deliberate, thoughtful manner that would insure

such a careful analysis of all potential material as no other agency could devise or would have the patience or reason to put into effect.

The third thought is when the selection should be made. There are obvious reasons why it should be done in advance of the actual need. This would supply somewhat the element of permanency of the regular judge. Except in case of illness the cause to be heard is nearly always featured in advance because of the known disqualification of the judge whose place is to be filled. This great court often divides on purely personal views particularly concerning constitutional matters. It being possible that even these great and disinterested men may succumb to the loyalty of humanity to one's own views, the temptation should not be placed before them.

It is suggested, therefore, if constitutional, and if deemed desirable, that legislative provision be made so that vacancies occurring temporarily in the Federal Supreme Court may be filled by that court, to be selected from the list of United States Circuit Judges during the first week of its October term; that as many as three judges shall be so designated at one time and that they shall serve in the order of their designation, unless the one called shall himself be disqualified. In that event the next in order shall serve.

The same principle could be applied to State Appellate Courts.

THOMAS W. SHELTON.

NOTES OF IMPORTANT DECISIONS.

THE FAILURE OF THE LEVER ACT TO REGULATE PRICES OF NECESSARIES.The High Cost of Living is maintaining its advanced position in spite of the Lever Act, which was designed to keep the prices of necessaries from becoming unreasonable.

The trouble with the Lever Act is that it took the form of a criminal statute rather than an administrative measure. For that

reason it ran up against the Sixth Amendment which provides that "in all criminal prosecutions the accused shall enjoy the right *** to be informed of the nature and cause of the accusation."

The federal courts, as well as state courts, have in all cases, except possibly in the case of obscenity laws, required that any law making a certain act a crime shall sufficiently describe the criminal act as to enable any person to avoid it and the court to enforce it. In the recent case of Detroit Creamery Co. v. Kinnane, 264 Fed. Rep. 845, the District Court for the Eastern District of Michigan held the Lever Act unconstitutional for failing to set up any standard of reasonableness by which to test the prices charged for necessaries. In this case the milk dealers of Detroit secured an injunction against the Fair Price Commission and the District Attorney against the enforcement of the criminal penalties of the Lever Act for failure of the plaintiffs to reduce their prices to those fixed by defendants. In holding the Lever Act unconstitutional the Court said:

"The only question, therefore, now involved is whether the provision of Section Four of this Lever Act as amended to the effect that 'it is hereby made unlawful for any person

* $ to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,' is constitutional.

"What is an unjust rate or an unreasonable charge? In determining this question, what elements are to be taken into consideration? What is the test or standard or basis which is to be used in attempting to ascertain whether this statute has been violated? The statute itself furnishes no assistance in the way of answering this question. Is the reasonableness or justice of a rate to be determined by the amount of profit derived therefrom? If so, what percentage of profit from the business of selling a certain article makes the rate or charge in handling or dealing in that article unreasonable and therefore unlawful and criminal? If such profit is derived from a business devoted to the sale of several kinds of articles, how is the portion of such profit properly chargeable to each of such articles to be determined so that the person engaging in such business may know whether or not he is a criminal? What elements enter into the question whether any particular charge is just or unjust, reasonable or unreasonable? What relation to the reasonableness of a rate have the cost of labor, the cost of machinery and of raw material, the cost of overhead charges, and the other expenses of production? How is the amount properly chargeable to these expenses to be fixed and ascertained? To what extent are differences in market conditions in different places to be considered? Is the existence or absence of competition to be taken

into account? Is any allowance to be made for losses and misfortunes which affect costs and profits? To whom must a rate or charge be unjust, to be 'unjust' within the meaning of this statute? Is it the effect which a rate or charge has upon the seller or which it has on the purchaser which renders it reasonable or unreasonable? These and other questions which readily suggest themselves naturally and perhaps necessarily enter into a consideration of the nature of the proper test or standard by which the criminality of any act under this statute must be determined. To the statute itself we look in vain for answers to any of such questions. It furnishes no means for the guidance of courts, juries or defendants in determining when or how the statute has been violated. No standard or test of guilt has been fixed. We are left to the uncontrolled and necessarily conjectural judgment, or rather conclusion, of each particular jury, or perhaps, court, before which the accused in any given case may be on trial for his liberty. Making, as it does, the question of guilt dependent upon this mere conclusion, or opinion, of the court or jury as to whether the rate or charge involved be just or unjust, reasonable or unreasonable, I cannot avoid the conclusion that this statute is too vague, indefinite and uncertain to satisfy constitutional requiremens or to constitute due process of law. United States v. Brewer, 139 U. S. 278, 35 L. Ed. 190; Louisville & Nashville R. R. Co. v. Railroad Commission of Tennessee, 19 Fed. 679; Tozer v. United States, 52 Fed. 917; Hocking Valley Ry. Co. v. United States, 210 Fed. 735; United States v. L. Cohen Grocer Co. (recent unreported decision of the United States District Court for Eastern District of Missouri); United States v. Capital Traction Company, 34 App. D. C. 592; Louisville & Nashville R. R. Co. v. Commonwealth, 99 Ky. 132, 33 S. W. 129."

The Lever Act does not give the Fair Price Commission a right to fix prices; it merely makes an unreasonable charge a criminal of fense. If a commission were created to fix prices its chances for running the hurdle of the Constitution would be better, since the Supreme Court has been as liberal in its interpretation of the Fourteenth Amendment as it has been strict in the enforcement of the Sixth Amendment. The right to fix prices of things which are vital to the public welfare is well established and the extension of the field of public necessities is only a matter of time and changed conditions.

For instance, lawyers are amazed at decisions upholding the right of rent commissions to fix the rentals of real estate. But the end is not yet. Our changed economic condition has brought about conditions which only the state can control. But we shall have more to say about rent fixing statutes at some other time.

THE INDUSTRIAL CRISIS AND THE

BAR.*

It is my belief that within the next ten years our Constitution is going to be subjected to the severest strain that it has ever been called upon to bear. During the World War organized labor took advantage of the Nation's peril to boost wages to a point never dreamed of in human annals, and Mr. Gompers and the American Federation of Labor declare that these wages shall never be reduced. Once upon a time their plan might have been feasible. Our home markets sufficed for all the products of organized labor, and if the rest of the community would have submitted, prohibitive tariffs could have been imposed on foreign commerce, so that any rate of wages could be paid to labor at home. But that time has passed. We are now the greatest manufacturing nation on earth. We must look abroad for markets, and to the inexorable laws of competition even Mr. Gompers must submit.

Since the war we have been reaping a golden harvest. We have been the Danae of the nations, whom the gods have wooed with golden showers. During the five long years of conflict we alone had been manufacturing on a large scale, and the naked and hungry nations have had to buy of us on our own terms. Like Joseph of old, we have been piling up our abundance in the fat years and have been selling them to the starving Egyptians at ruinous prices. But the end is already in sight. England, France, Belgium and Germany are recovering from the disasters and demoralization of the war. The industries of Spain and the Scandinavian countries received an impetus in the years of conflict. When its controversy with Jugo-Slavia is settled, Italy will disarm and return to the arts

*[This very interesting and suggestive article is a revision of an address delivered by Hon. George B. Rose before the Tennessee Bar Association, July 15, 1920.-Ed.]

of peace. Some day even Russia must cast off the nightmare of Bolshevism, and resume civilized labor. The time when we have almost the monopoly of feeding and clothing the nations must inevitably pass away, and then wages in America must be lowered, and when that time arrives we may expect serious trouble and bitter attacks upon our Constitution and its guaranties of property rights.

It is not likely that wages will ever again be as low as in the past. The three mighty empires which have been swept away by the World War were great stabilizers of labor. Few employers pay more than they are compelled to pay. Wages are usually raised in consequence of a strike or the threat of a strike; and a strike with no possibility of using force or intimidation is sure to fail, unless there is behind it a united public sentiment. The despotic governments of the great empires permitted neither violence nor threats on the strikers' part, and so strikes in those countries nearly always ended in submission to the masters. Germany, Russia and Austria had therefore vast armies of laborers working long hours for small pay, and they set the price of commodities so low that, in order to compete, other nations had to hold down the wage scale. But the three great despotisms have met the doom that they deserved, and the governments which have succeeded grant to the labor unions even wider latitude than they are accorded in England, France and America. The toilers of those countries will not voluntarily submit to the long hours and inadequate compensation of the past. Even in Japan. so long the abode of cheap labor, industrial troubles are now springing up on every hand, so that we see an amazing increase in the price of Japanese goods.

The danger is augmented by the prodigious increase in our urban population revealed by the census whose results are

Everywhere the

now being published. youths of the country, tempted by the enormous wages extorted by the labor unions, are flocking to the cities, so that the urban population, a majority of whom are probably composed of organized labor and those affiliated with it, are coming to dominate the land with their revolutionary ideas, while the farming class, who are usually conservative and attached to our ancient institutions, are being thrust into the background.

But there are also signs of great hope. A few years ago when the American Federation of Labor undertook to get control of our government, Mr. Gompers seemed to have more influence with the administration than all the Cabinet officers combined. He strode through the halls of Congress, and Congressmen and Senators bowed to do him reverence. The weakness of the Government permitted him to organize large sections of the public servants into unions affiliated with the American Federation of Labor. The

Scripture wisely says: "No man can

serve two masters; for either he will hate the one and love the other, or he will hold to the one and despise the other." And between the Government, whose function it is to enforce a rigid performance of duty, and the Federation of Labor, whose sole purpose is to secure higher wages and shorter hours, it is not hard to see which master the functionary would give his true allegi

ance.

Having crippled the National Government as far as possible, the American Federation of Labor next sought to get control of the city governments, and owing to the incredible weakness and folly. of our municipal authorities, it was allowed to unionize the policemen in a large number of our American cities, and having done this, it invited a trial of strength to prove its power. At the dic