Page images

ings. The opinion of the city solicitor, that women were ineligible, remains therefore unreversed, and the advocates of the oppressed sex were for the moment nonplussed. Inasmuch, however, as women have been members of the school committee in other towns without their right being questioned, there is a practical remedy open to all who desire their presence on the committee, where we believe it would be very beneficial, especially if mothers only were chosen; and that is to elect a committee who will receive them. The legislature having now enacted that women may be eligible on school committees, the question will hardly arise again in the same form.


INJUNCTION. — Sadley v. Casey. - In this case, argued recently before Judge Donohue, in New York city, the question whether midnight music was a nuisance was considered. The plaintiff asked for an injunction against such music; and it appeared, from the affidavits read in support of the motion for the injunction, that plaintiff kept a boarding-house, and defendant kept a saloon, the rears of both premises coming together. Plaintiff alleged that defendant had nightly negro-minstrel performances, continuing until after midnight; that the performances were accompanied with loud applause; and that in consequence many of plaintiff's boarders left. We are told that defendant answered by opposing affidavits, claiming his place to be a public benefaction; " that it is about the only place in that portion of the city where a poor man can go in, sit down, smoke his cigar or his pipe, wash the dust down his throat with a glass of lager, and at the same time listen to 'consoling and elevating music;' that his four colored artists are of high reputation in their line,' and effectively render the best compositions of the great masters, including · Yankee Doodle' as an overture, and · Home, Sweet Home 'just at the proper hour; that his performances are not attended by any disorderly conduct or characters, nor are they unusually boisterous; that, on the contrary, they are patronized by gentlemen of the very highest respectability, including merchants, lawyers, journalists, artists, and such, and including such exacting critics in musical performance as James Gordon Bennett, Hugh Hastings, Jerome Buck, and others equally eminent; that plaintiff's boarders, instead of evincing feelings of repugnance to his performances, were accustomed to get out on the roof of an adjoining house, and enjoy such perforinances free of charge; and that to relieve the mind of plaintiff herself, he had voluntarily consented to close the musical accompaniment of his business at midnight. The defendant was fortified in his theory that his place was not a nuisance, and not the resort of bad characters, by the affidavits of the ward detective and a number of his immediate neighbors, living closer to him than the plaintiff. It further appeared that the saloon was in operation before plaintiff took her house, and that she then knew the character of the performances carried on there. After argument by counsel, Judge Donohue denied the motion for an injunction, holding that, under the well-settled law applicable in such cases, all the equities of the complaint and accompanying affidavits having been fully met and denied by the papers presented on the part of the defendant, an injunction was improper. — Albany Law Journal.



THE PROPOSED CONSTITUTION. - The general dearth of legal news during the summer months was somewhat alleviated by the vote on the new constitution, which was rejected by a large majority. The causes which led to this result were manifold; and we hope that the result itself will show those gentlemen who in the future may be called at great expense to reform and modify a state constitution, that attempts at legislation in its narrower sense are not within their province, are dangerous as precedents, and imperil the success of their whole enterprise. If our government is to continue one whose fundamental sanction is a written constitution, it were far better to have that constitution an enunciation of first principles, rather than a code of minor legislation. · The attempt to engraft an annual on a perennial has failed in this state, and we hope will always fail, wherever repeated.

Hon. SAMUEL S. FISHER. - The death by drowning of the Hon. Samuel S. Fisher, of Cincinnati, the patent lawyer, and author of Fisher’s Patent Reports, took place on Friday, the 14th of August. On the convening of the United States Circuit Court at Cleveland, appropriate resolutions were passed and entered of record.


Right TO RIDE ON UNCANCELLED TICKET. SUPREME COURT. Vankirk v. The Pennsylvania Railroad Co. — We extract the following from the opinion by MERCER, J. :

By the uncontradicted testimony it appears the plaintiff had purchased a ticket from Northumberland to Williamsport. He had ridden upon it as far as Milton, being less than one-third of the distance. Several days thereafter he endeavored to ride upon it from Milton to Williamsport. The conductor refused to permit him to so ride, took up the ticket against the plaintiff's will, and put him off the train.

The court rejected the evidence offered by the plaintiff to prove that before he was put out of the cars he offered to pay his fare, if the conductor would return his ticket; that the conductor refused to return it, but insisted upon retaining it, and also upon the plaintiff's paying his fare; to be followed by evidence that, in claiming to ride upon the ticket, he was acting in good faith, upon information given to him by the ticket agent of whom he had previously purchased the ticket.

It appears the plaintiff voluntarily left the train at Milton, without having communicated his intention to the conductor in charge, and without making any arrangement for a subsequent continuation of the trip. It is claimed that this was an abandonment of his right to demand a passage upon that ticket over the untravelled portion of his journey. This view is sustained under the general rules of the company, by the authority of Dietrich v. Pennsylvania R.R. Co., 21 P. F. Smith, 442, and kindred cases. His legal right had terminated. If he thereafter procured a ride upon it, it would be through favor only of the company. Waiving the question, then, whether the plaintiff, under the general instructions given to the conductor, had a right to ride upon the ticket, it does not follow that the conductor had any right to take it from him. The conductor assumed the ticket to be of no value to the plaintiff, and persisted in retaining it. His determined persistency in retaining it was a most expressive declaration of its value to the defendant.. The plaintiff believed it to be of value to him. The ticket agent had informed him that he was entitled to ride upon it. Thus the

employés of the company differed. The plaintiff desired to test the question by legal proceedings. This ticket was to him important. It was evidence of value paid. It was evidence of a claim which he desired to establish by law. By denying the plaintiffs right to ride upon it, the conductor waived all right to take or retain it. The defendant had no more claim to this ticket than to any one of a half-dozen other tickets, either cancelled or uncancelled, which the plaintiff may have had in his pocket. By leaving the train at Milton the plaintiff lost no other right than of riding upon the ticket thereafter. He did not forfeit the right to retain the ticket, which, according to the rules of the company, had been left in his hands. Many stations intervened between Milton and Williamsport. Before leaving the former place the defendant would have been justified in taking up the ticket without giving the plaintiff a check, or some evidence that he had paid his fare. State v. Thompson, 20 N. H. 250. The right to take up this ticket must not be confounded with a case where a person has actually ridden on the ticket the whole distance for which it calls, nor where he has obtained it in fraud of the company. In either of these cases it may be taken up. In the former the rules of the company and the implied contract in its purchase require it. In the latter the holder never had any right to its possession. In this case the conductor, under his general orders, may not have been authorized to permit the plaintiff to ride on this ticket. There was, however, nothing in equity or good morals to prevent the defendant from permitting it to be done. There was no impropriety in the plaintiff's retaining the ticket.

The conductor having ignored the plaintiff's right to ride upon it, the most he was justified in doing was to require a payment of the fare. This the plaintiff proposed to show he offered to do, but the conductor required more. He required not only pay. ment for the ride the plaintiff was then taking, but also the yielding up of a ticket on which he was not riding. The conductor had no such right. To concede to him the right to demand of a passenger any thing additional to the accustomed fare would be fraught with the most mischievous consequences. While a railroad company should be protected in the enforcement of all its reasonable rules, yet fully equal care must be taken to protect the rights of passengers from any encroachment. The plaintiff was entitled to ride upon the payment of his fare only. It was in clear violation of law to require more of him. He was justified in requiring the return of the ticket improperly withheld from him. The defendants, being in fault themselves, cannot enforce the right against the plaintiff which they seek to invoke. 1 Redfield on Railways, 105, pl. 13; Jennings v. Great Western Railway Co., 12 Jur. N. 8. 331.

MARRIAGE. Richard v. Brehm, 73 Penn. St. 140, is another contribution to the adjudications in the United States holding that marriage need not be formal in order to be legal, at least for some purposes.

In this case defendant cohabited with a woman for many years, calling each other husband and wife in presence of others, and executing deeds with acknowledgments as such. She made a will naming herself his wife, and devising property to him as her husband. She made a subsequent will, devising her real estate to the plaintiff, who, after the death of the testatrix, brought an action of ejectment against defendant. Defendant claimed possession as tenant by curtesy, and the validity of the marriage was brought in issue. Defendant admitted in his testimony that he and the testatrix were never married with the ordinary ceremonies, but that they mutually agreed to live together, and to keep it a secret that they were not married. The judge charged that the facts constituted a marriage as to all the world, in matters pertaining to business transactions, but not as between themselves, and consequently defendant could not hold the


property as tenant by curtesy. But the court on appeal held that the jndge erred in taking the case from the jury, and saying that this was not a marriage as to defendant and the testatrix. There is some force in the remarks of the judge who delivered the charge in the subordinate court, when he says, “ The defendant ought not to expect immunities from the responsibilities of married life, and possess its benefits also. For instance, under the facts disclosed he could not have been made to suffer the penalties of bigamy if he had married another woman during his supposed wife's life, nor be punished for adultery if he had committed that crime, for in these cases actual, not presumptive, marriage must be proved.” Albany Law Journal.


EVIDENCE PHOTOGRAPH. SUPREME COURT. Udderzook v. The Commonwealth. We have heretofore in this number given a summary of the facts in that romantic criminal trial known as the Udderzook-Goss case. The Supreme Court of Pennsylvania, Judge Agnew giving the opinion, have lately passed on the question of the admissibility as evidence of the photograph sworn to be that of A. C. Wilson, and read on the trial of Udderzook, not only to identify Wilson, but to show that he and Goss were one and the same

Judge Agnew says : This photograph, taken in Baltimore on the same plate with a gentleman named Langley, was clearly proved by him, and also the artist who took it. Many objections were made to the use of this photograph, the chief being to the use of it to identify Wilson as Goss; the prisoner's counsel regarding this use of it as certainly incompetent. That a portrait or a miniature painted from life, and proved to resemble the person, may be sure to identify him, cannot be doubted, though, like all other evidences of identity, it is open to disprove or doubt, and must be determined by the jury. There seems to be no reason why a photograph, proved to be taken from life and to resemble the person photographed, should not fill the same measure of evidence. It is true, the photograph we see is not the original likeness, and its lines are not traced by the hand of the artist, nor can the artist be called to testify that he faithfully limned the portrait. They are but paper copies taken from the original plate called the negative, made sensible by chemicals and printed upon by the sunlight through the camera. It is a result of art guided by certain principles of science. In the case before us such a photograph of the man Goss was presented to a witness who had never seen him, so far as he knew, but who had seen a man known to him as Wilson. The purpose was to show that Goss and Wilson were one and the same person. It is evident that the competency of the evidence in such a case depends on the reliability of the photograph as a work of art; and this, in the case before us, in which no proof was made by experts of this reliability, must depend upon the judicial cognizance we may take of photography as an established means of producing a correct likeness. The daguerrian process was first given to the world in 1839. It was soon followed by photography, of which we have had nearly a generation's experience. It has become a customary and a common mode of taking and preserving views as well as the likeness of a person, and has obtained universal assent to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate made by rays of light through the camera are dependent on the same general laws which produce the images of outward forms upon the retina, through the lenses of the eye. The process has become one in general use, so common we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses.


The Wisconsin RAILROAD Law. We have given a large portion of our space in this number to the history of the litigation to which this law has given rise; and we hope in a future number to present our readers with some discussion of the questions raised and the principles involved, for which we have no opportunity here. The policy of such laws is perhaps a matter more for the consideration of political than legal writers; but their absurdity seems so obvious that we fancy the law will be repealed before the question of its constitutionality is argued in the Supreme Court. Nothing more clearly proves the wisdom of the Chancellor Oxenstein's oft-quoted remark, “Vide, mi fili, quam parva sapientia regitur mundus,” than the persistency with which generation after generation of men go on repeating the blunders of their ancestors. We are paying the penalty now for the mistakes of our rulers at the outbreak of the Rebellion, as our forefathers paid for theirs after the Revolution. The mistakes were the same, so is the penalty; and if one chooses to compare the history of the two periods, the parallel is striking. Jack Cade's political economy would seem sufficiently absurd to the Wisconsin legislature; yet their own rests on the same foundation with his, and we have too much respect for the good sense of our countrymen to believe that they will be slow in finding this out.

Perhaps the text of the court's opinion refusing the injunction asked for by the creditors of the Northwestern Railroad may be interesting to our readers; and we therefore give it.

We have not had time to prepare any opinion in the case; but, as it was thought desirable that there should be a decision upon the motion for an injunction, I am instructed by the court to present the following as its conclusions upon the points made for a preliminary injunction :

1. On the assumption that the act of the 11th of March, 1874, “relating to railroads, express and telegraph companies in the State of Wisconsin,” is invalid, we think the court has jurisdiction of the case. The bill is filed on behalf of citizens of Europe and of other states to enforce equitable rights, and to prevent action by the railroad commissioners which may result, as alleged, in serious injury to those rights. It was not necessary to wait until the commissioners had put the law in full operation, and its effects upon the railroad company had become complete, before the application against them was made to a court of equity. A very important function of that court is to prevent threatened wrong to the rights of property.

2. We are of opinion that the act of the 11th of March mentioned above was not repealed by the act of the 12th of March, 1874, the second section of which declares “all existing corporations within this state shall have and possess all the powers and privileges contained ... in their respective charters,” and the act of the 12th of March, 1874, the ninth section of which imposes a penalty for extortionate charges. There are apparent inconsistencies between these last two named acts and that of the 11th of March; but it becomes a question of intendment on the part of the legislature. On the same day a joint resolution was passed (March 12) directing the Secretary of State not to publish the act of the 11th of March until the 28th of April. In this state no general law is in force until after publication. We may consider the joint resolution in order to determine whether the legislature intended that the two acts passed on the same day should repeal the act of the 11th of March, and from that it is manifest such was not the intention of the legislature.

« PreviousContinue »