Central Law Journal.

ST. LOUIS, MO., FEBRUARY 2, 1906.

COMPELLING A TRIAL COURT BY MANDAMUS TO AUTHENTICATE COPIES OF INDICTMENTS THE ORIGINALS OF WHICH HAVE BEEN LOST OR STOLEN FROM THE FILES.

It is not an extremely rare case that an indictment is stolen, nor is it uncommon for trial courts to order duplication of such records but it is indeed rare for an appellate court to order by mandamus a trial court to substitute a copy of an indictment which the lower court has rejected on the evidence offered to prove its authenticity. But such was the decision of the Supreme Court of South Dakota in the recent case of State v. Circuit Court of Beadle County, 104 N. W. Rep. 1048, where the court held that where the circuit court refused to certify certain copies of lost or stolen indictments on sufficient proof of their authenticity, such duty might be properly compelled by the supreme court by mandamus.

It seems from the facts in this case that five indictments in a certain case had been lost or stolen. The state's attorney offered to supply duplicate copies of such indictments which the trial court rejected, whereupon the state's attorney made application to the supreme court for a writ of mandamus to compel the trial court to authenticate and establish the copies of the indictments which he offered. The trial court gave its reasons for refusing to authenticate the copies offered as follows: "The question in this case is as to the nature of the so-called copies offered by the state in lieu of the lost or abstracted indictments. The court has no power to make an indictment. Granted that the court has the power to order a copy substituted, should it not be such a copy and of such a character that it would preclude any reasonable doubt as to its being a true copy of the criminal indictment? In this case the papers presented are true carbon copies of the body of two indictments entitled in this case. There are no signatures of the officers or names of witnesses. Together with these are presented full copies, or papers which on their face are full copies, of indictments entitled herein. The

affidavits show that they were compared from copies of indictments borrowed by the clerk of court from one of the attorneys for the defendant. There is no affidavit that these are true copies of the indictments lost or abstracted. There are affidavits from the state's attorney and clerk of court which state that they believe them to be true copies. There is no affidavit of the person making the copy of which these presented papers are copies as to their being true, and the court is asked, from a search of the records and the recollection of the clerk and state's attorney, and perhaps his own recollection, to formulate, with the help of these tendered copies, an indictment or indictments upon which these causes should be tried. I do not believe the court has power so to do. Whether these indictments were interlined or not could not be ascertained. What were the names of the witnesses would be a matter of proof, as would, in fact, the matter of the contents of the indictments; and in fact the court in this proceeding is asked to practically, from whatever can be ascertained, make new indictments, and, while it is to be regretted that criminal actions can be disposed of in this manner, I do not believe the law would justify the granting of this request, and the motion is denied."

The Supreme Court of North Dakota in granting the writ of mandamus compelling the trial court to accept the copies offered says: "Every court must have inherent power to protect and preserve its own records; otherwise, it could not perform the functions for which it is created. The indictments in question became public records when filed with the clerk. Rev. Code Cr. Proc. § 217. The government, the defendant, and every inhabitant of the state was concerned in their preservation. When it was suggested that they had been lost or stolen, it was the duty of the court on its own motion, if its inherent power had not been otherwise invoked, to have caused the return of the original documents to their proper custodian, or, failing in this, to have ascertained with reasonable certainty the contents of each, and ordered the filing of copies corresponding in every material respect with the originals. Such we believe to be the power and duty of every court existing by virtue of organic law, with respect to all its records, whether civil or criminal, and that it cannot be deprived

It

of such power or excused from performing such duty by any legislative enactment. is enough, however, for the purposes of this proceeding, to hold that such power and duty existed independently of statutory authority, where, as in this instance, the accused was furnished with certified copies and entered his plea of not guilty before the indictments were lost or stolen, and in so holding we have the support of abundant authority. State v. Rivers, 58 Iowa, 102, 12 N. W. Rep. 117, 43 Am. Rep. 112; State v. Stevisiger, 61 Iowa, 623, 18 N. W. Rep. 746; State v. Gardner (Tenn.), 13 Lea, 134, 49 Am. Rep. 660; State v. Simpson, 57 Mo. 647. In disposing of the state's application, the circuit court was not called upon to exercise discretion in granting or refusing a requested favor, as where a party asks to amend a pleading. It was not called upon to consider the sufficiency of the original indictments on any question relating to prior rulings concerning the same. It having been conclusively shown that five indictments, each properly signed, indorsed, presented, and filed, had been lost or stolen, there was nothing for it to do except to ascertain the material contents of the lost papers. If the showing made by the state was deemed insufficient, the court should, on its own motion, have required the produc-| tion of the certified copies previously delivered to the defendant, or the production of any other available evidence. But the showing was amply sufficient. It was based on documentary evidence which was as cold and lifeless in the court below as it is in this. There was no oral evidence to weigh, nor was the credibility of any witness affected by his appearance or demeanor upon the witness stand. The learned circuit court was in no better condition to determine the facts than is this court, and all the facts necessary to a determination of the application were undisputed. The lower court having failed to perform its duty as indicated, this court, because of the peculiar circumstances disclosed in this proceeding, deems the case one in which it should exercise its constitutional power of control over all inferior courts, and issue its mandate commanding the circuit court to perform such duty."

We cannot agree with the action of the Supreme Court of North Dakota in this very extraordinary application of the writ of

mandamus, an application which is indeed an innovation. For, no principle of law is more securely established than the rule that the writ of mandamus lies only to compel the performance of a duty clearly enjoined by law. It does not lie against a public officer to command him how to act, unless the act sought to be compelled is ministerial in its nature, so that the law itself enjoins how the act should be done. If the act involves the exercise of a discretion, judicial in its nature, which the law has committed to the officer, this writ cannot be used for the purpose of controlling that discretion or directing the manner in which it shall be exercised. It may be, as the majority opinion in the principal case declares, that the Supreme Court of North Dakota has a supervisory control over the inferior courts of that state, but unless such control is to be exercised in a manner. peculiar to the state of North Dakota and not in harmony with general principles of law defining the limitations of such control, this supervisory jurisdiction does not go to. the extent of subjecting the discretion of the trial judges of the state to the domineering influence of a few men sitting in the capitol of the state. Were it otherwise trial judges would be purely ministerial officers whose every action (interlocutory as well as final) would be subject to constant interference from the superior tribunal. Of course where the inferior tribunal has a discretion in a certain matter and refuses to act, the superior tribunal may compel it to exercise such discretion, but it needs no argument to say that it cannot compel such inferior tribunal to exercise its discretion in any particular way.

NOTES OF IMPORTANT DECISIONS.

MUNICIPAL CORPORATIONS-LIABILITY FOR INJURY FOR NEGLIGENCE CAUSING INJURY TO ONE INTOXICATED.--Greater incentive to probibition and teetotalism could not be imagined than such decisions as that rendered by the Court of Appeals of Kentucky in the recent case of City of Covington v. Lee, 89 S. W. Rep. 493, when that court held that even though a city is negligent in leaving an uncovered hole upon the public highway, yet, if a man is in such intoxicated condition that he cannot care for himself as he might have done if he were sober, the city will not be liable for any injuries which he receives from falling into such hole.

In this case appellee was injured by falling into a hole in a public alleyway of appellant city. The hole had been there without repair, for more than a year before the accident. Appellee was walking through the alley in the nighttime, and did not see the hole. The jury found that it was not a reasonably safe street, and that its condition had existed long enough for the city to have learned of it by the exercise of ordinary care. They also found that appellee was damged to the extent of $500. The court of appeals, in reversing the verdict and judgment of the trial court, says: "It is the law that one cannot voluntarily put it out of his power to use due care to protect himself, and recover for the consequences from others. Voluntary drunkenness, that wholly or partially paralyzes the will power, and the control of one's muscles and senses, is such lack of that care which he owes to himself that it may be in fact and in law contributory negligence to any other cause that, cooperating with it, results in his injury. Although, as one case put it, a drunken man is as much entitled to a safe street to walk on as a sober man is, and needs it much more, yet the duty of the city in furnishing even reasonably safe streets is not such as to guaranty them against the traveler's own negligence. They need only be reasonably safe for those who themselves use due care to protect themselves-not necessarily reasonably safe for those who voluntarily fail to use any care whatever. Dillon's Mun. Corp., vol. 2, §§ 1019, 1020; Woods v. Commissioners, 128 Ind. 289, 27 N. E. Rep. 611. If appellee was drunk, that fact does not of itself excuse the city for its negligence. It owed to all the public, including appellee, the same degree of care with respect to furnishing reasonably safe highways. But if appellee's condition was such that it prevented him from using that care to protect himself from harm that an ordinarily prudent person would have exercised under the same circumstances if sober, then he ought not to recover in his action."

HOMESTEAD-WHETHER HUSBAND OR WIFE CAN LEAVE THE OTHER AND COMPEL PARTITION OF HOMESTEAD.-While to many lawyers at first glance, it might appear that if for good reasons one party to a marriage relation might leave the other, such person might then sue for the partition of the homestead estate the title to which each held in common, still, on more mature reflection it will become readily apparent that under the operation of such a rule the real purpose of the homestead laws would be often frustrated. This is well illustrated by the recent case of Grace v. Grace, 104 N. W. Rep. 969, where it appeared that defendant in order to compromise a suit for divorce deeded to his wife title to one half of the homestead. Later she left him because of his cruel treatment, and brought an action for the partition of the homestead. The Supreme Court of Minnesota held that partition of a homestead could not be decreed under such

circumstances. The court said: "The law and the reason of the law, deny the ability of a wife by leaving her husband to acquire the right to compel partition of her husband's homestead, in which she has an undivided half interest and which she occupied with him as a homestead. A homestead can be owned and occupied by husband and wife as tenants in common. Lozo v. Sutherland, 38 Mich. 68. There may be a homestead right in an undivided interest in premises. Kaser v. Haas, 27 Minn. 406, 7 N. W. Rep. 824; 25 Cent. Dig. § 121, cols. 2245, 2246. In this case, accordingly, defendant had at least a homestead interest in his undivided half of the premises (Riggs v. Sterling, 60 Mich. 643, 650, 27 N. W. Rep. 705, 1 Am, St. Rep. 554), although it may well be doubted whether the homestead rights of the husband are limited to that interest. Ehrek v. Ehrck, 106 Iowa, 614, 76 N. W. Rep. 793, 68 Am. St. Rep. 330; In re Emerson's Homestead, 58 Minn. 453, 60 N. W. Rep. 23. Neither the husband nor the wife can dispose of his or her right of that character without the express consent of the other. Sections 5521, 5522, 5532, Gen. St. 1894; chapter 255, p. 390, Laws 1905; Weitzner v. Thingstad, 55 Minn. 244, 56 N. W. Rep. 817. And see Eaton v. Robbins, 29 Minn. 327, 13 N. W. Rep. 143; Sherrid v. Southwick, 43 Mich. 515, 5 N. W. Rep. 1027; 25 Cent. Dig. § 191, col. 2330. It is not material to the decision of this case whether it be governed by section 5532, in force when the pleadings were drawn, or by chapter 255, p. 390, Laws 1905, in force before the order granting the motion, from which this appeal was taken, was made. Section 5532, Gen. St. 1894, provides, in part, that any married woman shall be capable of making any contract either by parol or under seal which she might make if unmarried and shall be bound thereby; except that no conveyance or contract for the sale of real estate or of any interest therein by a married woman, other than mortgages on lands to secure the purchase price money of such lands and leases for terms not exceeding three years, and instruments releasing dower in lands of her former husband shall be valid, unless her husband shall join with her in such conveyance.' The law of 1905 expressly provides, in part, that every married woman may make any contract which she could make if unmarried and shall be bound thereby, except that no conveyance or contract for the sale of her homestead or any interest therein shall be valid unless her husband joins with her therein.' The husband and the history of the use of the premises in this case had determined the homestead of the family. Moss v. Warner, 10 Cal. 296. Admitting that all the homestead rights there existed were in the husband's undivided half, under neither statute could the wife make a valid sale or conveyance destroying the homestead. The law will not allow her to do indirectly through a suit for a partition what she could not do directly by sale or conveyance. Mitchell v. Mitchell, 101 Ala.

183, 13 So. Rep. 147 (a case essentially similar to the one at bar); Brooks v. Hotchkiss, 4 Ill. App. 175; Holbrook v. Wightman, 31 Minn. 168, 17 N. W. Rep. 280; Umland v. Holcombe, 26 Minn. 286, 3 N. W. Rep. 341; Hafer v. Hafer, 33 Kan. 449, 6 Pac. Rep. 537; Trumbly v. Martell, 61 Kan. 703, 60 Pac. Rep. 741. On general principles no waiver of homestead right by husband or wife can affect the vested interest of the other spouse herein; neither can the abandonment or waiver of such homestead right by the one entitled to enjoy the same injuriously affect the interest of any other entitled thereto. Sherwood, J., in Riggs v. Sterling, supra.

*

This conclusion is in harmony with the wellunderstood purpose of the homestead laws. The trial court in its carefully considered memorandum has justly remarked: "The homestead, under our public policy and law, is the one secure place where the strong hand of the law is stayed, and over which only by consent of both husband and wife can its power be exercised. The beneficent idea undoubtedly is to make and preserve for every family a shelter of a home, to be free, as long as husband or wife or a minor child shall live and ocupy it, from the common vicissitudes of life. To hold that either husband or wife can, at will, by leaving the common homestead, destroy its legal character as a homestead, would lead to such disastrous results that it could not for a moment be tolerated. Thus at the will of either the homestead could be subjected to judgment lien and sale and the right of shelter denied to the other spouse and even the little children.' The wife is not left without a remedy applicable to such cases. She can terminate the homestead right by an absolute;divorce (Kern v. Field, 68 Minn. 317, 71 N. W. Rep. 393, 64 Am. St. Rep. 482), or, without a divorce, by an application under section 5535, whenever she would be entitled to a divorce. That the legislature has not provided relief for her under such circumstances as would justify her in leaving her husband, though not necessarily entitling her to a divorce (Stocking v. Stocking, 76 Minn. 292, 79 N. W. Rep. 172, 668), does not operate to alter the letter and spirit of the homestead laws. If she elect to take that course, she must abide by its consequences. She does not ipso facto become entitled to thereby destroy the homestead. In Ehrek v. Ehrck, supra, it was held that a wife who chooses to live apart from her husband is not entitled to any benefit from the homestead property set off in lands owned by her, and the husband has the full right during his occupancy to cultivate it."

EXECUTORS AND ADMINISTRATORS-LIMITATIONS ON ACTIONS BY HEIRS TO AVOID ILLEGAL SALES. Many states have statutes providing as does that of the state of Nebraska that "no action for the recovery of any estate sold by an executor or administrator shall be maintained by any heir or other person claiming under the deceased

testator or intestate, unless it be commenced within five years next after date of sale." This statute comes up for construction as to its relation to void as distinguished from voidable sales in the recent case of Brandon v. Jensen, 104 N. W. Rep. 1054. It was admitted that the sale in this case was void but it was contended by counsel for appellant that the above section of the statute was an absolute bar against any action to set aside such sale whether void or voidable. On the other hand, it was contended by counsel for the appellee that this section was only intended to aid irregular and voidable sales, and could have no effect on a sale made by one having no authority or semblance thereof. The court in holding that void sales did not share in the benefits of such a statute of limitations, says: "The identical question, under similar statute, has been twice before the Supreme Court of the state of Iowa for determination. It was first considered in the case of Good v. Norley, 28 Iowa, 190, and the court at that time was divided in its opinion on the question. Beck J., delivered a very able and exhaustive opinion, holding that the statute could have no application to a sale that was absolutely void. Cole, J., concurred in this view. Dillon, C. J., was of the opinion that the statute applied to all sales. Wright, J., was of the opinion that, under the facts of the case considered, the sale sought to be set aside was not void. On this division of the court, a judgment of the lower court holding the action barred was sustained: but when the same question was considered by that court in the later case of Boyles v. Boyles, 37 Iowa, 592, the court unanimously sustained the opinion of Justice Beck, and held that the statute applied to irregular and voidable sales alone. This latter decision is supported by the holdings in Staples v. Connor, 79 Cal. 14, 21 Pac. Rep. 380, and Chadbourne v. Rackliff, 30 Me. (17 Shep.) 354, and has received the approval of such standard text writers as Freeman and Black. This question was discussed in this court by Maxwell, J., in Seward v. Didier, 16 Neb. 64, 20 N. W. Rep. 12, and the language used would indicate that the writer of the opinion was favorably impressed with the language of Chief Justice Dillon in Good v. Norley, supra. The case under discussion, however, only presented questions involved in an irregular, rather than a void, sale, and as applicable to the case decided by this court the quotation from the opinion of Chief Justice Dillon was well chosen. But we think the suggestion that the statute 'would be robbed of its virtue if it was confined to cases where the sale was valid, for such sales do not need the protection of such statute,' was aptly met in the contra opinion by Beck, J., when he said: 'It is also said that "it is the infirm and de ective title, the one that could otherwise not stand the test of an action by the heir to recover, which was intended to be cured" by the statute. To this proposition I assent, and I have just pointed out that this kind of titles the stat

ute is designed to aid. An "infirm and defective title" is a very different thing, as we have just seen, from a void title. The first is a title; the second is no title at all. The first may grow into

a perfect title, for it has the germ of life in it; the second can never become a title, for it wants life, the essential element of a title.""

MUNICIPAL BENEFIT AND PENSION

FUNDS.

Scope. It is the purpose of this article to study that group of relatively modern statutes making it the duty of the municipality to provide funds for the pensioning of its employees in the various departments of its business and for the benefit of their de

pendent ones in the event of such employees' death. We say relatively modern advisedly, for such enactments have in the main been placed upon the statute books within or during the past twenty years. The groups of employees segregated for substantial distinction by these pecuniary rewards include the police and fire departments, and, in a few instances, the teachers in the public schools. These pensions are, of course, solely the creatures of statutes, but the nature of their subject matter makes an extension of this class of legislation probable, and it is not unlikely that each state will in the general plan of its scheme of pensioning follow the previous enactments of its sister state, so that a consideration of the subject of this paper, though a statutory creation, may not be unprofitable.

Constitutionality of Statutes. The constitutionality of acts of this nature has been assailed, both in creating the fund and in discontinuing it by repeal, on various grounds and with more or less success.

First as to the creative enactments: Quite all the constitutions of the several states prohibit the granting of public funds to individual or private uses and this provision, wise in its formulation, has been the stumbling block to the law making bodies in divers cases. The Missouri Supreme Court1

1 State v. Ziegenhein, 144 Mo. 283, 45 S. W. Rep. 1099. In the case cited it was argued by counsel that the grant of the pension upon retirement after a stated period of service was only further compensation and the granting of just compensation that had been withheld and not a mere gratuity, but the court held otherwise. In the course of the opinion the court

has held a police pension fund law to be unconstitutional as in contravention of the constitutional provision forbidding the authorization of grants of puble funds in aid of any individual. The California court2 has, however, reached a directly opposite conclusion under a similar statute providing for the pensioning of the same class of employees and their widows, holding such an enactment not to contravene the constitutional provision forbidding the creation of a special commission (the act providing for a commission to control the granting of pensions under it) or the granting of extra compensation to any public officer, increasing his salary, or making a gift of public moneys. Clearly, however, would it not be competent to the legislative authority to provide for the granting of a pension to one whose term of

service had been concluded before the enactment of the pensioning statute. The re

cited and quoted from the case of Mead v. Inhabitants of Acton, 139 Mass. 341, 1 N. E. Rep. 413, wherein it was held, for the same reason, that a law authorizing the payment of bounties to soldiers of the civil war was unconstitutional.

2 Pennie v. Reis, 80 Cal. 266, 22 Pac. Rep. 176; Pennie v. Reis, 132 U. S. 464, 33 L. Ed. 426, 10 Sup. Ct. Rep. 149.

3 People v. Partridge, 172 N. Y. 305, 65 N. E. Rep. 164, reversing 74 App. Div. 620, 77 N. Y. Supp. 1137; Mahon v. Board of Education of City of New York, 171 N. Y. 263, 63 N. E. Rep. 1107, affirming 74 N. Y. Supp. 172. In Mahon v. Board, etc., supra, the court considered the validity of an act empowering the board of education of the city of New York to place on the list of retired teachers on a pension equal to half the salary paid to them prior to their retirement, applying to those who had retired from the work of teaching prior to the passage of the act. After noticing the character of the funds and the extra compensation theory of counsel, the court says: "Extra compensation is compensation over and above that fixed by contract or by law when the services were rendered. No one would assert that as between private individuals there arises any equitable or moral obligation to pay for services more than the stipulated compensation where no services have been rendered additional to those contemplated by the contract. There was no obligation on the city of New York to establish a pension system in favor of teachers. Most of the servants of the state and most of the teachers in the public schools enjoy no right to be pensioned for services, The question of establishing a system of pensions is one of policy, not of obligation. The legislature migh well think that in a large city where teaching is adopted as a calling to be pursued for years and often for life. it would be wise to provide a system of pensions as an inducement both to service and to good conduct in service. But these considerations have no application to the case of officers or employees who are not in service at the time the pension system is established or in force. As to such persons the grant of a pension is a mere gratuity."