Leland Stanford, Ji. 2674 - 24689 UNIVERSTEN Case and Comment NOTES OF RECENT IMPORTANT, INTERESTING DECISIONS, INDEX TO ANNOTATION OF THE LAWYERS REPORTS ANNOTATED LEGAL NEWS NOTES AND FACETIÆ VOL. 14. JUNE, 1907. 96077 No. 1. CASE AND COMMENT. interest affecting the general welfare of the state, and that, in bringing such an Monthly. Subscription, 50 cents per annum post action, the state was not merely represent paid. Single numbers, 5 cents. THE LAWYERS CO-OPERATIVE PUB. Co., ing individual citizens. A somewhat surprising contention on the part of Colorado Iwas that the Arkansas river in that state terminated at or near the state line, and that the Arkansas in Kansas was a new river, beginning some distance farther on; but the court found that the river was continuous, though at times a portion of the bed might be dry on the surface. The great question of the right of the people of Colorado to take water from a river for irrigation, thereby diminishing the flow to some extent, and causing some detriment to riparian owners in Kansas, involved, first, the question whether the common-law rule of riparian rights, or the doctrine of appropriation of waters, should govern, and, second, if the use of the waters for irrigation was lawful, to what extent it might go. The court held that it was for each state to determine whether the common-law rule, or the doctrine of appropriation, should govern in its territory; and also that, since Kansas itself recognized the right of appropriation for the purpose of irrigation, she could not complain of the adoption of that law by Colorado. As to the extent to which the appropriation might be made, the court said it must "so adjust the dispute upon the basis of equality of rights as to secure, as The conflicting interests of neighboring states in the waters of a river flowing through them present a question just decided for the first time by the Supreme Court of the United States in the suit of Kansas v. Colorado, Adv. S. U. S. 1906, p. 655, 27 Sup. Ct. Rep. 655, to prevent such use of the waters of the Arkansas river in Colorado as would cause such depletion of the waters as would cause injury to the interests of the people of Kansas. The attempt of the United States to intervene on the ground that the superior right of the national government to control the flow of the river as a part of the system for the reclamation of arid lands was denied by the court, without prejudice to the right of intervention if necessary to preserve or improve the navigability of the river. This was because the Constitution gives to the Federal government the right to regulate navigable waters, but does not grant to it any power over the reclamation of arid | far as possible, to Colorado the benefits of lands in the states. The right of the state of Kansas to bring the suit is sustained on the ground that the question involved is a matter of state irrigation, without depriving Kansas of the like beneficial effects of a flowing stream." Finding that some detriment had resulted to a portion of the Arkansas valley in Kan sas by the use of the water in Colorado, ly be required to give up quasi-sovereign the court also found that, when the amount rights for pay, but could fairly and reasonof this detriment was compared with the ably demand that the air over its territory great benefit which had obviously resulted should not be polluted on a great scale by to the counties in Colorado, "it would seem sulphurous acid gas, or its forests, crops, that the equality of right and equity be- and orchards endangered by persons between the two states forbids any inter-yond its control. Mr. Justice Harlan, while ference with the present withdrawal of concurring in the decision, expressed his diswater in Colorado for purposes of irriga- approval of the suggestion that any relief tion." It therefore dismissed the bill "with-could be granted to the state that would out prejudice to the right of the plaintiff to institute new proceedings whenever it shall appear that, through a material increase in the depletion of the waters of the Arkansas by Colorado, its corporations, or citizens, the substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of the benefits between the two states resulting from the flow of the river." The law of the case therefore seems to be that each state through which a river runs is entitled to make reasonable use of its waters, even to the extent that the state below may be somewhat damaged thereby, provided the upper state does not take waters in excess of what will give to it an equitable apportionment of the benefits of the river. not, under like circumstances, be granted to a private party. The case is interesting, particularly as an illustration of the increasing tendency to bring public actions for the protection of the rights of the general public. There are many such cases in which the wrong is extensive and affects many people, while the remedies of individuals are entirely inadequate. As intimated by the court in this case, the amount of damage sustained by any one individual might not be large enough so that a court of equity would give him an injunction interrupting a great enterprise, and at the same time the possible recovery of damages in an action at law would be too small to compensate for the trouble and expense of litigation. In such a case, where great harm is caused to a community, but what each person suffers is small, the private remedies merely aggravate the injury. A Suit by State against Outside Nuisance. suit on behalf of the public seems to be the only adequate remedy. Federal Eight-Hour Law. Another novel suit by a state, just decided, is that of Georgia v. Tennessee Copper Co. Adv. S. U. S. 1906, p. 618, 27 Sup. Ct. Rep. 618, to restrain the defendants from discharging noxious gases from their works in Tennessee into the state Some close questions arising under the of Georgia. The state owned very little act of Congress of 1892, limiting hours of of the real estate alleged to be affected. daily service of laborers and mechanics The suit was for an injury to the state employed upon public works of the United "in its capacity of quasi-sovereign." The States and of the District of Columbia, court found that the sulphurous fumes were decided by the Supreme Court in a complained of caused and threatened dam- group of cases reported as Ellis v. United age on a large scale to the forests and vege- States, Adv. S. U. S. 1906, p. 600, 27 table life, if not to health, in the state of Sup. Ct. Rep. 600. The power of the Georgia, and ordered an injunction against Federal government to enact a statute their continuance. With respect to an at- of this nature was contested, but the court tempt to balance the harm to be done to held that "Congress, as incident to its power the defendant by an injunction against that to authorize and enforce contracts for pubcomplained of by the plaintiff, the court lic works, may require that they shall be intimated that, if the suit were between carried out only in a way consistent with private parties, it might hesitate to grant its views of public policy, and may punish the relief, instead of leaving them to an ac- a departure from that way;" also, that a tion at law, but that a state could not light-law otherwise valid would not be made un constitutional by the fact that it secured court admitted that the line was not easy certain advantages to labor, though Con- to draw, and that in this case, as in many gress did not have general control over labor | others, the determination of the precise conditions. The court also held that the place of a line that had to be drawn was statute can provide for a criminal prosecu- somewhat technical. tion to enforce a violation of it, and that the government, by making a contract, did not thereby waive its sovereignty, or give up its power to make a law on the general Liquors not Ordered Shipped C. O. D. subject. The contention that it could not make a breach of contract constitute a crime was called by the court a mere confusion of ideas. One of the cases related to work on a pier in the Boston navy yard. This was obviously one of the public works of the United States; but the claim was that the employment of men for more than eight hours was due to an "extraordinary emergency," for which extra hours were allowed by the statute. But it appeared that the emergency was merely in the contractor's finding it more difficult than he expected, although he expected some trouble in getting certain oak and pine piers called for by the contract, and was somewhat delayed thereby. The court, however, refused to consider that this constituted an emer gency within the meaning of the law. The contention was also made that the contractor did not "intentionally" violate the act, because he, with the emergency, justified his conduct. But, as he intended to permit the men to work over eight hours, the court found that he intended to break the law in the only sense in which the law considers intent. Other cases grew out of the employment of men in dredging a channel in Boston. Various employees, such as deck hands, crane men, captain, mate, engineer, foreman, etc., on dredges, tugs, and scows, were employed more than eight hours a day. One question was whether the dredging was upon one of the public works of the United States. But this was decided in the negative, as the bed of the channel where the work was done did not belong to the United States. Another question was, whether these men were laborers or mechanics within the meaning of the act. This was also decided in the negative, as the scows and floating dredges were vessels within the admiralty jurisdiction of the United States, and the men were to be regarded as seamen, rather than laborers and mechanics. The was Some of the devices by which to evade the state liquor laws of the states, under the guise of interstate commerce, are described in some recent Kentucky cases that have just been decided by the United States Supreme Court. Adams Exp. Co. v. Kentucky, Adv. S. U. S. 1906, p. 606, 27 Sup. There Ct. Rep. 606. evidence in these cases that whisky shipped from Cincinnati by express C. O. D. to persons in Kentucky had not been ordered by the consignees, and the contention on the part of the state was that such shipments were not protected from state laws as interstate commerce. Unfortunately for the prosecution, however, the evidence to this effect was rendered immaterial by an averment in the indictment which declared that the shipments were made by the express company as a common carrier in the usual course of its business. Mr. Justice Harlan dissented on the ground that the cases did not constitute legitimate interstate commerce, but only devices or tricks of the express company to evade or defeat the laws of Kentucky relating to intoxicating liquors. There was a further contention by the state that, as the agent of the express company agreed, on the request of the consignee, to hold the package for some days, it lost its character of interstate commerce during this detention. But this contention was de nied on the authority of Heyman v. South ern R. Co. 203 U. S. 270, 51 L. ed. —, 27 Sup. Ct. Rep. 104, where it was held that goods from another state did not lose their character as interstate commerce until delivery to the consignee. Whatever the local law might be as to the time when the carrier's liability should end, the question as to the character of goods shipped by express from another state to one who has not ordered them, it will be seen, is left still open by the present cases; so that, under proper averments in the indictment, and clear proof that the carrier took the goods, knowing they were not ordered by the consignee, the court may still find that the shipment is not protected as an interstate transaction. Novel Patent Question. A case of first impression in patent law has just been decided by the Supreme Court of the United States in Kessler v. Eldred, Adv. S. U. S. 1906, p. 611, 27 Sup. Ct. Rep. 611. It arose on these facts: After an infringement suit, which was decided in favor of the defendant on the issue of noninfringement, and the bill therein dismissed, the plaintiff subsequently brought suit on the same patent against a customer of the former defendant. The original defendant assumed the defense of the new suit to protect his customer, and then filed a bill in equity to enjoin the plaintiff from prosecuting any suit against anyone for infringement of the patent in question, by the purchase, use, or sale of any of the articles manufactured by himself which were like those for which he had been sued in the first case. The court declined to determine whether or not the judgment in the first case was a bar to the second suit, either because the defendant in the latter was privy to the original judgment, or because the articles themselves were, by that judgment, freed from the control of that patent; but did decide that the judgment unalterably fixed the rights and duties of the immediate parties to it, and established the right of the defendant in that case to sell freely, and without hindrance from the plaintiff, the articles manufactured by him, and which the court decided did not infringe the patent. In other words, the decree in defendant's favor established his right to manufacture and sell his articles, free from all interference from the plaintiff by virtue of the patent in question, and established the corresponding duty of the plaintiff to recognize and yield to that right of the defendant everywhere and always. Since his right to manufacture and sell the articles in question would be seriously impaired, if not destroyed, by bringing suits against his customers, it was held that such suits were in violation of his rights. It was also held that actions at law would be entirely inadequate to protect him; and that, though no exact precedent could be found, equity had jurisdiction to restrain plaintiff from bringing such suits against the customers. The interposition of the original defendant for the defense in the second suit was not regarded as a reason for denying him his remedy in equity. Two Cents a Mile. A The crudeness of the laws that are proposed and sometimes passed is sharply suggested by the fact that in numerous states bills have been introduced to compel railroads to carry passengers for 2 cents a mile. The right of the legislature to enact laws fixing reasonable rates for transportation is too well settled to need discussion. large number of cases to this effect are reviewed in a note in 33 L.R.A. 177, showing that, since the case of Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77, the courts have held with substantial unanimity that common carriers and other persons engaged in business affected with public interest are subject to regulation with respect to the rates that they may lawfully charge, although the courts must pass upon the reasonableness of the rates, and will refuse to enforce a law which fixes rates so low as to be practically confiscatory, or amount to a deprivation of the railroad company's property without due process of law. In the agitation that has been going on the past two or three years for the enforcement of law against those that defy or evade it, there has grown up a strong determination that the public shall have justice. But justice to the railroads is equally to be insisted upon. Without passing any judg ment on the fairness or reasonableness of a 2-cent rate for passenger fare in any particular state or on any railroad, it is obvious, even to one who has no special information on the subject, that such a rate cannot be equally fair in all the states. It cannot be doubted that 3, or even 4, cents a mile is lower in proportion to the conditions of the service in some states than 2 cents a mile is in others. Old and wellestablished roads, where the population is dense and large cities near together, can unquestionably carry passengers at a rate which would be ruinous to roads in sparsely settled regions. Nothing could be more unjust or more absurd than an attempt to establish a uniform rate of fare on all railroads throughout the country. If, therefore, all the laws proposed in various states for a 2-cent-per-mile rate of fare should be enacted, there would probably be a gross injustice done to some railroads, and an ultimate decision against the constitutionality of some of the statutes. If that were not so, it would certainly indicate that the 2-cent-per-mile rate in some of the other states was too high. At all events it is obvious that the legality of a rate must be fixed with reference to the cost of service, and not by a merely arbitrary enactment. Compelling Railroads to Make Connections. An order of the corporation commission extent of securing to the public reasonable facilities for making connections between different roads Few things are more aggravating than to reach a railroad junction just in time to see a train one wishes to take on another road drawing out of the station. It is not a wholesome state of things when the caprices or quarrels of those in charge of connecting railroads can be allowed to punish the public. Where this has been done it has, no doubt, usually been in the case of connections with roads of minor importance. But certainly there have been many cases in which the public have had to bear with this inconvenience and unnecessary expense for the lack of a little more consideration on somebody's part for their interests. It is gratifying to know that for such a wrong there is a remedy. Policies of Insurance. in North Carolina, requiring the Atlantic Prohibiting Defense of Suicide against Coast Line Railroad to restore at Selma a connection which it formerly made with a train of the Southern Railway Company was vigorously, but unsuccessfully, fought in the state courts by the railroad company, and was recently upheld on writ of error by the Supreme Court of the United States. Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, Adv. S. U. S. 1906, p. 585, 27 Sup. Ct. Rep. 585, Affirming 137 N. C. 1, 49 S. E. 191. As the Southern Railway Company afforded the principal means of travel between the eastern and western parts of the state, and there was no other connection made by the Atlantic Coast Line company which was adequate for the public convenience, it was held that such an order was not so arbitrary and unreasonable as to amount to a denial of due process of law, or to a deprivation of the equal protection of the laws, although compliance with the order might necessitate operating an extra train at a loss, or extending with like result the run of a local train, so long as the income of the company from its business in the state afforded adequate remuneration after allowing for any possible loss from operating such train to make the needed connection. Whatever may be differences of opinion as to what constitutes reasonableness of service, the principle is clearly established by this decision that the state has power to regulate railroads to the A Missouri statute enacting that "it shall be no defense that the insured committed suicide," unless it be shown "that the insured contemplated suicide at the time he made his application for the policy;" and also providing that “any stipulation in the policy to the contrary shall be void," was brought in question in the recent case of Whitfield ex rel. Hadley v. Etna L. Ins. Co. Adv. S. U. S. 1906, p. 578, 27 Sup. Ct. Rep. 578. The insurance company had attempted to limit its liability for death by suicide to one tenth of the full amount. Without seriously attacking the constitutionality of the statute, counsel suggested that it "seemingly encourages suicide, and offers a bounty therefor, payable not out of the public funds of the state, but out of the funds of insurance companies." But the court held that the statute was a legitimate exertion of power by the state. The main contention on behalf of the insurer was that the policy was not in conflict with the statute. But the fact that the attempt was not to defeat the policy altogether, because of suicide, but only to reduce the amount of liability, was held insufficient to take it out of the statute. On this question the court said: "We cannot agree with the learned courts below in their interpretation of the statute. The |