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authorities are, by the Constitution, wholly free to that it will not be disputed for an instant that, in confer public stations upon any person according to the absence of an express constitutional exclusion, their pleasure. The Constitution giving the right a provision which should declare that no person in of election and the right of appointment, these receipt of an income of more than $650 a year shall rights existing essentially in the freedom of choice, be eligible to any city office, position or employand the Constitution also declaring that certainment, would be flatly unconstitutional. It is diffipersons are not eligible to office, it follows from cult to see how the provision would suddenly bethese powers and provisions that all other persons come constitutional or how it would cease to be an are eligible. * I, therefore, conceive it to be interference with the individual's constitutional entirely clear that the Legislature cannot establish right to be regarded as eligible to all positions if it arbitrary exclusion from office, or any general should deny eligibility to those receiving that regulation requiring qualifications which the Con- amount of income from a city department. The stitution has not required” (at p. 303). If we exam- receipt of the income does not constitute holding an ine the disqualifications which are recognized we incompatible office; it does not preclude the posshall find that, barring arbitrary constitutional session of either the general or special qualifications exclusions, they fall either within the class requiring already referred to, nor is it in anywise related to any certain necessary qualifications for all offices, or other express disqualification. Arguments may be within that requiring necessary qualifications for a advanced in its favor from the standpoint of muniparticular office. Of the former class are mental cipal economy, but not from that of constituincapacity, insufficient age or residence, lack of tionality. The Constitution might arbitrarily procitizenship, holding a prior or incompatible office, vide that test if the people saw fit to adopt it, but in criminal character, and, perhaps, property qualifica- the absence of such a provision the legislature is tions (Mechem, Public Officers, $ 68, et seq.). Of powerless to enact it. It is not a means to secure the latter class are those professional attainments efficient or intelligent service, and amounts to an deemed necessary for the proper performance of the arbitrary, unwarranted exclusion from constitutional duties of specific office. “ Looking at it as matter right and privilege. I realize that this section of the of common sense, we are quite sure that the framers charter would at first blush strike the average reader of our organic law never intended to approve a as entirely proper and constitutional. Proper, perconstitutional barrier to the right of the people, haps, it is if we consider solely the end in view; but through their Legislature, to enact laws which unconstitutional it also is if we consider the means should have for their sole object the possession of adopted to secure that end. It is not my purpose fit and proper qualifications for the performance of here to enter into an analysis of the theory of a the duties of a public office on the part of him who pension. Whether the intent of the legislature was desired to be appointed to such office" (Rogers v.
that no person should at the same time derive Buffalo, 123 N. Y. 173). So provisions that only income from two city sources; or that the recipient lawyers shall be eligible to the office of corporation of a pension, thus securing some means of livelihood attorney, physicians to health boards or civil engi- for life, should not be allowed to deprive a less neers to boards of public works, are reasonable and fortunate brother of a position in the city service, proper (Throop, Public Offices, 73; 19 Am. & much might be said in favor of either construction Eng. Ency. of L. 398). It is difficult to see, how- on social and economic grounds. But here we have ever, how the receipt of a pension from a city to deal simply with the proper execution of that department should disqualify one either generally intent. A remedy, to my mind, if one be sought, or specially for the performance of all the duties of exists, and the underlying appreciation that the any of the thousands of the offices or positions at principle involved may be right leads to the conthe disposal of the municipality, especially so in fusion of ideas as to the law's constitutionality. If this case, where old age or infirmity is not a factor. it is deemed advisable to limit a city pensioner's
A policeman, who has served faithfully and con- right to his pension to his continued non-acceptance tinuously for twenty years, may, on his own applica- of city employment, the prohibition would have to tion, retire on half pay. The period of required be incorporated, if at all, in the act granting him his service as a condition to the allowance of a pension pension. It is settled beyond dispute that a pension permits retirement in prime of life when the pen- is a mere bounty or gratuity, an allowance without sioner is presumably in the possession of full bodily consideration which the granting authority may canand mental powers. To say to him, by virtue of a cel, withhold, distribute or recall in its discretion. sweeping, general provision, entirely unrelated to It confers no vested rights, and acts repealing the particular act or law under which he receives his statutes awarding to certain persons gratuities or pension, you shall not be eligible to any office, posi- bounties have repeatedly been held to be constitution or employment so long as you are in receipt of tional (Nagle v. Stagg, 15 App. Pr. [N. S.) 348; your pension, or unless you give up your pension, is People ex rel. Cunningham v. Roper, 35 N. Y. 629; to my mind equivalent to partial disfranchisement United States v. Teller, 167 U. S. 64; Walton v. and to the denial of those privileges and rights Cotton, 19 How. Pr. 355: Frisbie v. United States, secured to other members of the State. I take it 157 U. S. 160; Pennie v. Ries, 80 Cal. 226, 132 U. S.
464). I am not now called upon to consider the the present discussion. The vital question is, assumquestion whether the particular fund from which ing that this is a combination, will it be stopped — the relator derives his pension has characteristics not whether it ought to be, but will it be? which would prevent the application of the general When trusts were first “invented ” the public rule. It is unnecessary to do so, as the charter sec- looked upon them as horrible monsters designed to tion under construction is sweeping and applies to impoverish, if not to devour, the people. It was all pensions. The rule is applicable wherever the prophesied that every economic ill would come from allowance is strictly a pension as that term has been them. Therefore, almost every lover of his people construed in the law, and under that rule it seems racked his brain to evolve some means or measure that the legislature, being the granting authority, to prevent or suppress them, as every good citizen would have ample power to incorporate a provision would endeavor to prevent or put down a pestilence. in the act allowing the pension to the effect that it The great danger anticipated was the raising of should terminate or become forfeited if the pen- prices, and thus forcing the consumer to pay outsioner accepts another office. There is the remedy, rageously for his necessaries. Laws were enacted if remedy be sought, but the end cannot be accom- in every State and by the federal government to plished by a general act announcing a rule as to exterminate combinations tending to raise prices. eligibility in conflict with the general provisions If a law was found weak, a stronger and more and the spirit and intent of the Constitution. So stringent one was put in its place, but all this bore far as I have been able to discover the question here no fruit that was gatherable. Then it was said that discussed has never been passed upon in this State the danger was so much with combinations and no specific authorities can be cited in its tending to elevate prices as with those tending to support. The numerous opinions, however, in the reduce them, and thus freeze out competition. The case of Rathbone v. Wirth (6 App. Div. 277, 150 legislative guns and cannons were trained on that N. Y. 45), and especially the unreported one of sort of combinations, but still without any result. Mr. Justice Parker at Special Term, may be referred In the face of all this legislation, the most bitter, to with profit for underlying principles equally vitriolic and drastic that the law-makers could applicable to the case at bar. The relator is entitled devise, trusts have multiplied and grown beyond the to a writ.
wildest dream of the “ father of trusts," whoever he may be. To-day there is no place in this coun
try where they find any real difficulty in doing TRUSTS AND HOW THEY REFUSE TO BE business. EXTERMINATED.
One might, from the foregoing, jump to the con
clusion that the courts have come under the shadow What can the governor of Minnesota do about the of corporate influence, and have favored trusts and Northern Securities Company? Can the governor of combinations by failing to give judicial sanction to Minnesota or any other State, or anybody else, pre- the legislative enactments, or by placing obstacles vent the completion of the plans of the Northern in the way of the enforcement of the legislative Securities Company in their present form or some
will — but not so. In almost every State the proother effecting the same results?
nouncements of the courts against trusts have been These questions have been asked of probably every
radical, with decrees intended to be destructive. important corporation lawyer in this city many times But the trusts seem to have found the judicial poison within the past month. It is alleged that the com
designed to accomplish their death, fattening food. pany was formed effectually to consummate a bril
In this State one of the early cases liant plan to combine competing railroads. Now, dissolution in 1890 by the Court of Appeals of the assuming that it was, are the laws now in existence sugar trust. The court, in passing that solemn death adequate to prevent this? If not, will there be suffi- sentence, said: cient human ingenuity to frame new laws to meet In this State there can be no partnership of sepathe situation? And, if new laws are enacted that rate and independent corporations, whether directly meet the necessities of the case, will they really pre- or indirectly, through the medium of a trust; no vent the combination? These are the riddles to be substantial consolidations which avoid and disregard solved.
the statutory provisions and restrictions, but manuA distinction is sometimes sought to be drawn facturing corporations must be and remain several between “trusts," so-called, and enormous corpora- | as they were created, or one under the statute. tions combining competitors, but as far as the public That decree, which was hailed with delight as the is concerned this differentiation is merely a play on salvation of the people, unwittingly pointed the way words. It is immaterial to the public whether the to a vast corporation accomplishing the precise thing combination is doing business as a trust or under which the decree intended to render impossible. Out corporate form.
of the ashes in the urn in that judicial crematory Whether trusts and combinations are or are not there sprang a new and mighty corporation, and the hurtful, or whether laws for their suppression should sugar trust o 1901 can look at the sugar trust of 1890 or should not be enacted, is not within the scope of us a man looks upon a boy.
In 1892 the Supreme Court of Ohio, in dissolving In every instance the real result attained in the the standard oil trust, said:
end (not the nominal result, but the tangible result) Its object was to establish a virtual monopoly has been very much like the “finding" of the Indiana of the business of producing petroleum and of manu- justice of the peace in favor of a widow who sued facturing, refining and dealing in it and all its prod- a bank. After the justice had wiped away the tears ucts throughout the country, and by which it might inspired by the powerful appeal of the widow's lawnot merely control the production, but the price, at yer, he said: “The judgment must be for the bank, its pleasure. All such associations are contrary to but the record of the court will show that the plaintthe policy of our law, and void.
iff has the sympathy of the court.” In the cases of But it is notorious that the decree did not, as a trusts and corporations controlling combinations, the matter of fact, dissolve that trust, and, besides, the courts have always shown their “sympathy for the present yearly dividends of the Standard Oil Com- people” by rendering decrees against the trusts and pany would make a very respectable percentage of combinations, but these decrees have uniformly the capital“ stock" of the Standard Oil trust of 1892. turned out to be impossible of genuine enforcement.
The highest court of Texas forfeited the right of Therefore, if experience is to be our guide, it the Waters-Pierce Oil Company, the then local would seem that the objects sought to be accomname of the Standard Oil Company of the South- plished by the Northern Securities Company will be west, to do business in Texas, and that decision was attained — in one form or another. affirmed by the United States Supreme Court. The
HENRY WOLLMAN. Texas agents of the company were arrested, and they appealed in vain to the Supreme Court at Washington for relief. One would think that all this
MEDICINE AND THE LAW. would have put an end to that mighty corporation, as far as Texas was concerned, but a new Standard
It should be difficult for anyone to write drily on Oil Company was organized under the laws of
a subject of such varied fascination as forensic Texas, and is doing business in that State, and it is well known that the Standard Oil interests are most medicine, but to make the theme of vivid interest powerful in the newly discovered Texas oil fields.
by word of mouth in the class-room may possibly In Illinois a great victory (?) was won for the be a more exacting task. Dr. Vivian Poore is to be people in the decree abolishing the whiskey trust. credited with the double success of having proA new company was immediately formed to take duced a very good book which is at the same time its place, and I believe by the very men who brought an entirely delightful series of lectures. His about the proceedings which resulted in its dissolu- Treatise on Medical Jurisprudence (Murray) is tion, and the present whiskey trust is a much more “ based on lectures delivered at University Colpowerful institution than the old one.
lege," and, if the professor's platform style in any Quite recently corporate interests were driven into way resembles his literary style, the students to a cold perspiration by the sensational opinion of whom these lectures were addressed must have been the Supreme Court of Illinois against the glucose sorry when the last of them had been delivered. trust (a corporation) because of the fear that no
Racy is not the most usual epithet to apply to a combination, under whatever form, could thereafter do business in that State; and yet even the glucose book of medical jurisprudence, but it fits this one trust seems to be running along as well as ever, and with an uncommon degree of precision. It is, in a every other trust in America is doing business in word, while wholly practical and intended solely for Illinois without a particle of real friction.
students, such capital reading from the first page to The Supreme Court of the United States "
the last, so taking, and so lighted up with wit, that tled the market" for a few days by deciding in the it might easily secure a success not less popular Trans-Missouri Freight Association case that an than professional. This might shock Dr. Poore, agreement between interstate railroads for making but it would be his merited penalty for having rates contravened the federal law known as the proved to demonstration that a subject in its very Sherman act, and yet such agreements are in effect essence technical — a subject involving, moreover, to-day to a greater extent than ever before.
such things as murder, assault, sudden death, homiThese cases are only samples. The highest courts cide, poisoning, and insanity — may be so handled of nearly every State in the Union have rendered
as to result in literature, and literature of the most opinions against trusts and combinations in language
genial description. that was eloquent of the wrongs of the people, and in almost every instance the decision was adverse
It is not my intention to talk text-book at you," to the combination. The federal courts have shown says Dr. Poore in his introductory lecture, and this them no friendliness. The Supreme Court at Wash- gives the keynote to the spirit of the series. The ington has been unsparing of them. But whether the treatment is free and colloquial throughout, but at case was in the State or federal court, there has al- every step the student is placed in possession of the ways been the same net result - nothing.
facts he ought to know in the general practice of
medicine and law, and the full and effective use that ployed sandwich men to invite clients, and a is made of illustrative cases should assist to fix fatherly medical gentleman who was prepared to essential details in the memory. Take, as an in- stick at nothing in the way of testimony, is not stance of Dr. Poore's method, his advice to the man only one of the happiest things in the book, but a of medicine on giving evidence in a court of law. practical warning to young doctors into the Medicine is “hedged about by very long words, bargain. and the use of jargon has become a mischievous
Another chapter or lecture packed with shrewd habit with most of us.” Always ready to tell a counsel is that on “ Persons Found Dead.” It is story against himself in illustration of his point, an important department of the subject; for the Dr. Poore goes on to say that in his house surgeon police generally and very properly summon first to days he had to give evidence in a case in which a the scene the nearest medical practitioner. To the man had been knocked down by an engine. “I doctor thus fetched Dr. Poore says: “Keep your described the various wounds the man had, and eyes and ears open and your mouth shut.” The amongst others, one going from the commisure of post mortem will probably be the next step in the the eyelids backwards, and I said that after he was business, and this, if there be anything suspicious admitted he suffered from traumatic delirium. The in the affair, demands the utmost care and skill on newspapers next day reported that the man was 'a the doctor's part. London, and possibly most of connoisseur of the eyelids' and had 'aromatic de- the large provincial towns, are nowadays fairly well lirium.'" The bench itself will sometimes make provided with public mortuaries and coroners' post short work of a pedantic medical witness. “You mortem rooms, but, if the examination has to be mean, I suppose,” said a judge to one of these, made in an out-of-the-way place in the country, "that the man had a black eye?”
"you must take every single thing with you which Witness Yes.
is likely to be necessary.
I had almost said you Judge - Then why don't you say so at once?
mus take the water and towels, and a bit of soap Be dry in the witness box, says Dr. Poore to the to wash yourself with. You can never rely upon young practitioner; avoid the adjective, the adverb, getting anything.” If possible, also take with you and the metaphor. Say that the wound was so
a fellow expert, and let your notes be written in many inches long; that the man may have lost six such a manner that there may be no fear of their ounces of blood. It is much better than saying he failing you in court. Here is a useful hint respecthad a frightful wound' and 'enormous hemor- ing the search for signs of external injuries: “I shage.' If the medical expert in the witness box would remind you that sometimes these external is forced to speak of what has passed in the sick injuries are hardly noticed. For instance, a stab room, “I think,” says Dr. Poore, “it is a wise with a stiletto under a pendulous breast may pass course to make it appear to the public that you unnoticed if it is not looked for, and there are cases divulge these professional secrets under judicial where sharp instruments have been put up the compulsion. I have taken that course more than nostrils. There is a record of a case in which death once myself.” Should the expert quote authorities? resulted from the end of a clay pipe being driven He may, says Dr. Poore, but he had better not. up the nostril and through the ethmoid. That is a “You must remember that you may have an au
thing which requires to be hunted for, as it may thority quoted at you." If called as a skilled wit- easily escape notice." ness, “ do not go unless you are really and prac- In making a post mortem for a coroner, it is tically conversant with the facts concerning which obligatory on the doctor's part to examine all three you go to testify." A specialist in medicine, for cavities of the body — the thorax, abdomen, and example, who had long abandoned general practice, the head. This was a fact learned by Dr. Poore should avoid appearing as witness in a case re
when he was house surgeon. A man who had fallen quiring very intimate knowledge of midwifery. from a railway engine was admitted to the hospital “Solicitors' actions” are generally to be shunned smashed. The post mortem revealed ample causes by doctors; and Dr. Poore, who is seldom at a of death, and there, says Dr. Poore, was an end loss for an apt and humorous illustration, tells two of the matter until I was called one afternoon to stories in point, both of them personal experiences. give evidence to the coroner." The defense was His account of an early adventure in which he was that the man had fallen off his engine, whereupon attempted to be made a partner with “four crim- the coroner immediately asked Dr. Poore." What inals who were engaged in a conspiracy,” including was the condition of the brain ? " He had to a sporting solicitor with a straw in his mouth, à admit that he had not opened the brain, and it is a barrister with burst boots and a black eye, a pro- good case in point. prietor of a homoeopathic dispensary who em- Dr. Poore recommends the young practitioner –
or any practitioner - to let a stranger be' those faculties in the general regulation of his bepresent at a post mortem examination, and, as havior.” If law is indeed the science of human usual, he has the anecdote pat which makes his action and conduct, clearly man can engage in no reason good. In the famous case one will never higher or more honorable effort than the endeavor have done quoting this case! of the murder of to rightly understand that science, to practice himCook by Palmer, the doctor of Rugeley, the mur
self its precepts, and to aid in the due administration derer himself was present at the post mortem. “As
of its rules. No one can be indifferent to this scithe stomach was being opened, Palmer jogged bent upon every man to be acquainted with those
ence, for (agai:1 to quote Blackstone), “it is incumagainst the medical man who was collecting the laws at least with which he is immediately concontents of the stomach, and spilled some of them.” cerned, lest he incur the censure, as well as the inIt might have been an accident, but it was in fact convenience, of living in society without knowing Palmer's first attempt to escape the halter; for it the obligations which it lays him under; and a was proved at the trial that he had offered to the knowledge of the law is still more incumbent upon postboy of the carriage in which the contents of the men of rank and education, who are under duties stomach were to be transmitted to the analyist, a both to the public and to themselves, and cannot bribe of £5 to come to griei in a convenient ditch. discharge such duties without some degree of The obvious moral is, keep out of the post mortem knowledge in the laws." These are old-world room a possible adversary unknown, and use your
phrases, but they have much force; and in their injudgment."
sistence on the duty, they at the same time imply The exhaustive chapter on the “ Legal Relations The names of illustrious men who have well earned
the honor due to those who successfully perform it. of the Insane" (as intricate a problem, perhaps, as this honor will occur to most lawyers. medical jurisprudence is concerned with) might be
It is strange, then, that in spite of the honorable cited as a further example of Dr. Poore's skill in nature of the calling, in spite of the number of those that kind of exposition in which the master of his who have in the profession deserved the praise and subject gets home to the intelligence of the be- respect of men, the name of “ lawyer” should in ginner; leaving nothing unsaid, but always gripping its general acceptation be mainly suggestive of narhis hearer with an instance, and never sticking at a rowness, strife, want of business knowledge, selfishstory that shall compel the essential fact to be ness, and indifference to the rights of others. That remembered. In the domain of forensic medicine, this acceptation is general there is unfortunately no Dr. Poore might say with Macaulay, in that hack- lack of evidence. With innumerable writers, and in neyed instance which something is always freshen- ordinary conversation, the mention of a lawyer is ing, “I shall cheerfully bear the reproach of having often the opportunity for some scathing remark,
some satire or abuse. Even at the present day, notdescended below the dignity of history." He does
withstanding the personal respect which many have not, in truth, descend below that level, any more than Macaulay did; but, by eschewing the “ jargon " the exaggeration of attempts at humor in their
for individual lawyers, and making allowance for he condemns, and making his theme alive at every anecdotes, the general attitude of the public towards turn, he has produced a book which is as enter- those who practice the law, in either branch of the taining as it is completely useful. — Law Times profession, is far from favorable. Everywhere the (London).
feeling exists, either latent or expressed, that lawyers as a body have for their main objects profes
sionally the encouragement of litigation, the hedging THE HONOR OF THE PROFESSION.
round of ordinary dealings between man and man
with numberless restrictions and difficulties, the The legal profession has many claims to honor endeavor to evade the law for the advantage of and dignity. Its antiquity and learning would alone particular individuals; all with the ultimate view of be sufficient, apart from the lustre conferred on it benefiting themselves pecuniarily at the expense of by a long line of distinguished men. In every de- their clients or the public. The needful and charpartment of public life those who have had a legal acteristic exactness and care of a lawyer, his habit training take foremost place; and so far has this of looking all round a subject before committing been so, that by many the surest way to rank and himself to an opinion, his close examination of position in the State is deemed to be through the phrases to ascertain their actual meaning, are all, doors of the profession. Such facts, however, do even in private life, but further evidence to the lay not go to the root of the matter, which is found in mind of his aloofness from practical affairs, his the nature of law itself. By the term laws," says pedantry, and his fondness for the splitting of hairs. Blackstone, “it is intended to denote the rules of Even when recognizing the personal uprightness of human action or conduct; that is to say, the pre- his own legal adviser, and acknowledging the care cepts by which man, a creature endowed with both and thought which have been bestowed on his own reason and free will, is commanded to make use of 'case, a client will not seldom be found treating these