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and to establish, if it can, journalistic exaggerations on our side, and its agencies will have no fear of making imputations against our heroic combatants and the martyred populations of the occupied territories.
If Germany refuse such a hearing, this in itself will proclaim the inanity of the accusations which have been hurled over Europe; it will be the most eloquent of avowals. Germany would thus condemn herself, without appeal, if she fled on the great day from the international audience, where her loyal adversaries shall have haled her.
The just sentence which awaits her, and which will proclaim the dishonor of her defeat, will be the first application of the principle which she had caused to be inserted in art. 3 of the Convention of The Hague. Germany's crimes will be smitted with the arms which Germany herself has forged. And this will be justice.41
REGULATING THE TIME OF CLOSING STORES.--The Supreme Court of Utah declares invalid a state statute providing that all mercantile and commercial houses in cities of over 10,000 population shall close on every business day in the year except the six preceding Christmas day, at 6 p. m., but exempting drug stores and houses dealing mainly in provisions of a perishable nature, which are regarded as public necessities. The statute was invalid as an exercise of the police power since the men's furnishing and jewelry business conducted by one of the complainants without help and the retail cigar business of the other complainant did not affect the health or safety of those engaged in it. Second, it was invalid as special legislation :
"It only applies to cities of 10,000 population or over. Business houses or commercial establishments in other cities and towns may keep open at all hours of the day or night, and sell anything not otherwise forbidden by law. The act further exempts drug stores, and commercial houses dealing exclusively in, or whose major portion of stock consists of, foodstuffs, meats, and provisions of a perishable nature. Under the act, such establishments or houses can keep open and sell anything after 6 o'clock. That is, a hardware, jewelry, book, dry goods, clothing, or cigar store, and many other stores, cannot keep open or sell anything ofter 6 o'clock. But a drug store, or a store whose major portion of stock is foodstuffs, can keep open after 6 o'clock, and sell anything not otherwise forbidden by law. Drug stores are not restricted after 6 o'clock to the sale of drugs merely, nor are food stores to food and provisions. They are privileged to sell, and under the admitted facts do keep open and sell, after 6 o'clock, the same things the plaintiffs are forbidden to sell after that hour. Clearly that is special legislation, and the granting of privileges forbidden by the Constitution.
Thirdly, the act offends against constitutional rights to enjoy, acquire and possess property, the most valuable of which is that of alienation, the right to vend and sell..
“There are things the sale of which may be restricted, regulated, or even prohibited by the Legislature, and enterprises which may be restricted, regulated, and controlled. But such legal interference must rest on the
police power of the state to promote or preserve public health, public morals, public safety, public convenience, and general welfare. The act here has no such purpose, and in no sense tends to promote or preserve public health, morals, peace, order, safety, convenience, comfort, or welfare. It is but an arbitrary and an unwarranted interference with a merchant's business. One or a number of merchants may desire to close their stores at 6 o'clock. They may do that. But they, by legislation, cannot compel every other merchant to close at the same hour. They can run their own business, but not their neighbor's. So employees, for motives of their own, may desire all stores to close at a certain hour. But their employers, whose business and property is affected, have a voice in that. They, if they choose, may consent to close. But they cannot, by legislation or otherwise, be coerced to do so. An employee may refuse to work for another after 6 o'clock. That is his right. But he may not, by legislation or otherwise, prevent his employer from conducting his own business in person, or with other employees who are willing to work for him. That is an unwarranted interference with the rights of others. All this is so self-evident and fundamental as not to admit of argument. Most sweeping amendments to both the federal and state Constitutions are essential to sanction such legislation as indicated in either the title or body of the act before us. If there be one thing more than others to be guarded against encroachment it is the federal and state Constitutions. These we all are sworn to protect and defend. To disobey them is to jeopardize fundamental rights and liberties of the people, imperil their welfare and happiness, and to menace the very existence of governments."1
READING THE BIBLE IN THE PUBLIC SCHOOLS.—The often recurring controversy as to the reading of the Bible in the public schools was before the Supreme Court of Louisiana quite recently. Both a Roman Catholic and a Jew complained that their religious rights were discriminated against in the reading of the Bible in the public schools. The court held that this was true so far as the Jew was concerned, but not true so far as the Roman Catholic was concerned, and the reading was prohibited.
The court examined the various Catholic and other versions of the Bible, but conceding that the Catholic version comes within the school board's rule, it was objected by the Catholic plaintiff, that the Catholic child is taught that there should be no “reading of the Bible without authoritative comment from the head of his own church,”' and daily exercises in such reading “subjects him to a form of worship of which his parents do not approve.” To this the court says: “The Catholic child may or may not be prohibited from reading the Bible without such authoritative comment, but such prohibition would not be a doctrine of that church or creed. And in view of the very recent utterances of His Eminence, Cardinal Gibbons, one would not think that such prohibition can exist. That eminent man of God and high churchmen, in a recent sermon pointed to his own college days, when he says he carried a New Testament at all times and read one chapter every day.”
1 Saville v. Corless, 151 P. 51.
After making further observations along this line, it is said: “We cannot conclude that plaintiff, Marston, or his children would have their consciences violated by the reading of the Bible.”
When it comes to the Jew, the court cites the Declaration of Independence, speaking of our “Creator,” “the Supreme Judge of the world,” and “our Lord,' and oaths, concluding with “So help me God." It is said, in regard to reading the New and old Testament, that: “with the Jew it is different. He denies that the New Testament is the word of God, and he denies our Savior. He does not deny most of the moral teachings of Jesus Christ, but he denies His divinity, and His resurrection.” Therefore it is said a Bible, as containing the Old Testament and the New Testament is not his Bible and it is a denial of his religious rights that his child should be taught that it is.?
said.ord,, Creatmt citehe Bihten word:
ction.". The New Test his ch
THE ABSOLUTE PRIVILEGE OF A JUDGE. The Supreme Court of Washington rules that while the immunity of an attorney or party from liability for slander, based on words spoken in course of a judicial proceeding, is but qualified and does not apply in the case of matter irrelevant to the proceeding, the privilege in the case of a judge is absolute, there being no right of action for slander against him for any statements made in his official capacity while trying a cause. The court cited an early New York case, where Chief Justice Kent said:
“We meet with the principle here stated as early as the Book of Assize, 27 Edw. III, pl. 18. The case there was that A. was indicted for that, being a judge of oyer and terminer, certain persons were indicted before him of trespass, and he had entered upon the record that they were indicted of felony, and judgment was demanded, if he should answer for falsifying the record, since he was a judge by commission; and all the judges were of opinion that the presentment was void.”'
And a case in the Supreme Court of the United States where Mr. Justice Harlan said:
"The same principle was announced in England in the case of Fray v. Blackburn, 3 B. & S. 576, in which Mr. Justice Crompton said: 'It is a principle of our law that no action will lie against a judge of one of the superior courts for judicial act, though it be alleged to have been done maliciously and corruptly; therefore the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which, indeed, existed for their benefit, and was established in order to secure the independence of the judges and prevent them from being harassed by vexatious actions. The principle was applied in one case for the protection of a county court judge, who was sued for slander; the words complained of having been spoken by him in his capacity as judge, while sitting in court, engaged in the trial of a cause in which the plain
2 Harold v. Parish Board, 68 S.
3 Yates v. Lansing, 5 Johns. 282.
tiff was defendant. Chief Baron Kelly observed that a series of decisions, uniformly to the same effect, extending from the time of Lord Coke to the present time, established the general proposition that no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice, and that the doctrine had been applied to the court of a coroner, and to a court martial, as well as to the superior courts. He said: 'It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law, independently and freely, without favor and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. How could a judge so exercise his office if he were in daily and hourly fear of an action being brought against him, and of having the question submitted to a jury whether a matter on which he had commented judicially was or was not relevant to the case before him?'”4
These reasons render plain the necessity of the rule of public policy which prevents inquiry into the question of relevancy of the words spoken to the public matter in hand. The exemption is absolute if they are spoken in the performance of an official act, No decision of any court is out of harmony with this view. A judge, for any such wrong, is answerable only to the public, through such process of law, impeachment, or otherwise, as may be provided.
CARD INDEX ADMISSIBLE IN EVIDENCE TO PROVE ACCOUNT.-In South Dakota in an action to recover a balance due for merchandise sold to the defendant by the plaintiff, a wholesaler, it is ruled by the Supreme Court that a card index used in the warehouse is admissible to show the state of the defendant's account at the time, the Court saying:
In Wis. Steel Co. v. Md. Steel Co., 203 Fed. 403, 121 C. C. A. 507, books of original entries (based on time cards turned in by workmen), in permanent form, were received in evidence, together with the time cards themselves. The court says: “Workmen's time cards and other parts of the system (apart from the books) were properly admitted, in our judgment, if for no other reason, because they tended to furnish the 'circumstantial guaranty' of the correctness of the book entries. But we are of the opinion that the books, time cards, and other parts of the system were admissible under the Wisconsin statutes, as well as under the general law of evidence." Feuchtwanger v. Manotowoc Malting Company, 187 Fed. 713; 109 C. C. A. 461; Wigmore, § 1730. The evidence in the case at bar shows that the ledger cards used by plaintiff in its system of bookkeeping constitute the original, permanent, and only records of accounts with its customers. This card system is substantially the same as a loose-leaf ledger system of accounts. In Presley Co. v. I. C. R. R. Co., 120 Minn. 295, 139 N. W. 609, the court says: “Error is also assigned because the court received in evidence a sheet from plaintiff's loose-leaf ledger, on the ground that it is not shown to be an account
4 Scott v. Stansfield, L. R. 3 Ex. 220, 223.
5 Houghton v. Humphries, 147 P. 641.
book within the terms of R. L. 1905, $ 4719.... The ledger entry was, however, properly received. It was, in fact, an original entry. Mr. Graupman, plaintiff's manager, testified in substance that this ledger is a record kept in plaintiff's office; that the entries in it are made, at the time of the transactions, from temporary sales slips which are not preserved; that this entry was made by a clerk in the office; that he did not know whose handwriting it was; that he saw it at the time it was made up; and that it was a true and correct statement of the account of the sale of this car. ... The foundation was sufficient.” Many of the numerous decisions upon this subject are under statutory provisions. We have no such statute in this state, and must rest our decision upon reasons which underlie the recognized rules and principles of evidence, as applied to modern business methods and conditions. The original rule has long since outgrown one of the limitations placed upon it by the earlier decisions and law writers, which was that it (Vosburgh v. Thayer, 12 Johns [N. Y.] 461) “was intended for cases of small traders who kept no clerks.”6
6 Haley & Lang Co. v. Del Vecchio, 153 N. W. 898.