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ants, but has been wrought out by the personal labor of the author.

New Books and New Editions.

TIFFANY ON SALES.

The eighth and latest volume of the Hornbook Series, published by the West Publishing Company, has just appeared in the hand-book on the Law of Sales, by Francis B. Tiffany, the author of the wellknown work on Death by Wrongful Act.

Because of these varied merits I have ventured to predict that it will take the field, and will hold it, for it will be long before another will undertake such a stupendous work. It is twelve years since it was announced, and during all this time it has engaged the author's attention and labors. It is a monumental work. It is evident, from the author's So much has been written upon the merits of the "Hornbook Series" that anything additional may loving and tender inscription to his wife, that he so seem superfluous, yet we cannot refrain from comregards it. We can well imagine his feelings in being permitted to behold its completion. In read-menting in passing upon the general utility, merit and scope of the series. ing his dedication and preface one is reminded of what Gibbon says of the great work on which his fame so securely rests. Let it be stated in his own inimitable language. He thus marks the conception of the Decline and Fall: "It was at Rome, on the 15th of October, 1764, as I sat musing amidst the ruins of the capitol, while the bare-footed friars were singing vespers in the Temple of Jupiter, that the idea of writing the decline and fall of this city first started to my mind."

The student has long looked in vain for textbooks which should present to the mind and to the eye a clear, concise and yet comprehensive statement of the various branches of the law which should instruct him without wearying and overtaxing his mind with useless minute distinctions and subtle differences too multitudinous for the human mind to grasp in any logical sequence.

Such a book has at last been supplied by the Hornbook Series, the several volumes of which, compiled by well-known authorities upon the different legal subjects, set forth in black-letter text the fundamental principles of the law in a style free from useless verbiage, so that both the eye and the mind readily comprehend and digest the matter presented. The principles set forth in the black

commentaries thereon, prepared in a masterly manner, which are further explained by copious references to decisions rendered in the courts of the United States and of the several States of the Union.

More than twenty years afterward he thus describes and commemorates its completion: "On the night of the 27th of June, 1787, between the hours of eleven and twelve, I wrote the last lines of the last page, in a summer house in my garden. After laying down my pen I took several turns in a berceau or covered walk of acacias, which commands a pros-letter text are elucidated by more or less extended pect of the country, the lake and the mountains. The air was temperate, the sky was serene, and the silver orb of the moon was reflected from the waters, and all nature was silent. I will not dissemble the first emotions of joy on recovery of my freedom, and, perhaps, the establishment of my fame. my pride was soon humbled, and a sober melancholy was spread over my mind by the idea that I had taken an everlasting leave of an old and agreeable companion, and that whatsoever might be the future date of my history, the life of the historian must be short and precarious."

But

The series is of untold value to the practicing lawyer, enabling him to find and refresh his mind in an instant upon any fundamental principle or variation therefrom of which he may be in doubt, and furnishing an ever ready and convenient digest of the law.

Tiffany on Sales follows in the main the arrangement of Benjamin, though the text is greatly modiSuch feelings are not difficult to understand.fied, for various reasons, by the English Sale of And so the author of the work of which I am writing, esteeming it as the most important and permanent of his published labors, expresses, upon its completion, his sense of grateful satisfaction in these solemn and impressive words:

"And to that good being who has given me the strength to persevere to the end through so many years of toil and discouragement, I tender my most grateful acknowledgments." JOHN F. DILLON.

HUSBAND AND WIFE-PARTNERSHIP PROPERTY.— When funds invested in a partnership business by the wife were community property, the husband becomes a partner in the business. (Houghton v. Puryear [Tex.], 30 S. W. Rep. 583.)

Goods Bill which was enacted in February of last year, being a codification, drafted by Judge Chalmers, of the laws relating to the sale of goods. It is a work worthy in all respects of its predecessors in the Hornbook Series which have achieved a great success both among students and the profession at large.

The West Publishing Co. has some eight additional Hornbooks in preparation, including works on Domestic Relations, Torts, Evidence, etc., making sixteen volumes in all, which together with those not yet announced will form the most complete and comprehensive series of elementary textbooks yet published or projected. Published by West Publishing Co., St. Paul, Minn.

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The Albany Law Journal.

ALBANY, JULY 20, 1895.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL.

regulations or we should acknowledge by repealing the existing law that to the victor belongs the spoils. A State, county or city is benefited by a decision of important questions at the polls and our form of government receives its severest blows in the political avoidance by parties of matters of vital importance. Is not a wise and honest stand on vital ques

All letters relating to advertisements, subscriptions, or other tions ultimately sustained by an intelligent

business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

THE

HE able and exhaustive opinion of Judge Herrick on the civil service law, deciding on the effect of the changes in the Constitution made by the late convention, is printed in full in this issue as not only of great interest because of the increasing attention given to the subject, but also by reason of the comprehensive construction given to this most important change of the fundamental law of the State. The removals made by the now dominant political party has aroused much discussion in the principal cities where the effect has been most noticed and the subject has been debated at considerable length, especially by those who desire that existing statutes should be enforced or else repealed. It is unfortunate that no political party will take a stand for or against such statutes as the liquor law, the civil service law and other enactments of a similar nature so as to have such questions decided by the people. A statute is only of value so long as it responds to the interests and wishes of the majority of the electors, and a failure to enfore the unpopular "blue laws" is a mockery to the respect which should both theoretically and practically be accorded to the statutes of the commonwealth. In Connecticut, there still remain on the statute books the so-called blue laws which do not in any way express the sentiments of the community of the present day, and it is easily seen that in New York the present position of the excise commissioners has not been upheld by popular approval. In the metropolis a majority of the citizens may be in favor of Sunday closing, but if one can judge somewhat by the press it may be ventured that some changes in the present stringent regulations would be received with favor. So in the State either we should live under a strict enforcement and construction of civil service VOL. 52 No. 3.

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public and may we not hope that the political dodger will find his insatiate thirst for trickery slacked by a permanent and long merited overthrow?

It is with considerable satisfaction that we are enabled to give part of the very excellent article on the "Salutary Results of the Income Tax Decision," published in the Forum for July, from the pen of ex-United States Senator George Franklin Edmunds, of Vermont. Α lawyer of national repute, a statesman of unquestioned integrity and ability, and an authority on constitutional law, the retired senator from Vermont is accorded the respect of the people, and articles by him are sought for on every hand. It is remembered that he was retained in the income tax cases, and it is partly at least due to his skill that the early construction of the law was given by the Supreme Court of the United States. Speaking of the results, Mr. Edmunds says, in part:

6

"The acts of 1861, and subsequent war-time acts, did, for the first time, undertake to impose a tax on personal incomes as falling within the category of duties, imposts and excises,' which the Constitution authorized Congress to lay without regard to the population and representation of the States, provided only that they should be uniform throughout the United States.' The Constitution also provided that 'representation and direct taxes shall be apportioned among the several States cording to their respective numbers,' adding to the free persons three-fifths of all other persons excepting Indians—meaning, of course, the slaves. And the Constitution also provided that 'no capitation or other direct tax shall be laid unless in proportion to the census.' These acts of 1861 and the following ones of the wartime were upheld by the Supreme Court in

* * *

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Springer's case (all the other cases can fairly be distinguished), as justifying a tax on personal incomes not apportioned among the States according to population. The law under which the Springer case arose was soon repealed, and no income tax was again attempted until 1894. All that the Supreme Court had really to embarrass it in consideration of these recent cases on their constitutional merits was, first, the Hylton carriage tax case of 1796 under a law that was finally repealed in 1814; and, second, the decision in the Springer case in 1880. There had not been a continuous carriage tax acqui

and war.

esced in-there had been none at all for more than half a century. There had been no personal income tax in the whole constitutional history of the United States for the seventy years of its experience of the urgent needs of more revenue, both in times of peace In this state of things the doctrine | of stare decisis could have, justly, very little influence in preventing a consideration of the questions involved upon their very merits. The Supreme Court was thus compelled to confront and decide a constitutional question of the deepest importance to the future, as well as to the present welfare and peaceful relations of all the people of the country. It held that taxes imposed by Congress upon personal incomes, or other property as such, were direct taxes; and, if imposed at all, must be imposed upon the people of the States according to their respective populations. It is curious and interesting to note that in the very learned, ingenious and exhaustive brief of the AttorneyGeneral of the United States (than whom there is no better lawyer in the country) defending the law, there are only two or three pages of the whole ninety-nine devoted to suggesting, even, that the true meaning (were the matter res nova) of the Constitution could warrant the imposition of a personal income tax otherwise than by apportionment among the States according to population, as provided in the Constitution. It was the high and bounden duty of the Supreme Court, then, to consider and decide the question on just and intrinsic considerations.

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practice of taxation plain. There could have been no purpose of equivocation or concealment. There was none. The danger and the injustice of allowing the force of mere numbers to impose taxes which they should not bear themselves in due proportion, by any scheme that might be invented, upon the minority of the people of the States, were perfectly understood. And so the relative equality of representation and taxation as such—just as it then was in many and still is in several States-was distinctly and emphatically provided for in the Constitution,-affirmatively by the provision that representation and direct taxes shall be apportioned among the several States which may be included in this Union according to their respective numbers," and negatively, by the prohibition that "no capitation or other direct tax shall be laid unless in proportion to the census." Those great architects and builders of government well knew-better, perhaps, than we do in these days of much apparent and some real sympathy with doctrines and practices destructive of liberty and social order when the point where virtue stops and vice begins' is becoming obscure-that the rule of taxation should not and could not safely be left to the unlimited caprice or prejudice or selfishness of mere majorities represented in Congress.

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"One of the most eminent of the counsel sustaining the late income tax statute has, in his brief, quoted that truthful and familiar definition, given by Montesquieu in his 'Spirit of the Laws,' that a tax is a portion that each subject [citizen] gives of his property in order to secure the enjoyment of the remainder.' This is an obvious truth, and the only thing that was lost sight of or ignored by the defenders of the tax in the recent discussion in 'he Supreme Court was the crucial fact that a just tax must be one that each citizen bears in proportion to his ability.

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The fears that have been expressed of the danger that this late decision is supposed to have created of crippling the government in times of war or other sore need are illusory. The whole range of voluntary social and busi"The builders of the political and social ness activities is left open, as the Constitution state composing the Union evidently intended originally stated it, to uniform and equal taxaand endeavored to make the principles and I tion, and the whole property of the country,

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ernment. This fact is that we have a government based upon the equal rights and equal responsibilities of all its people, and so constituted by its founders that no one of its proper agen

real, personal and mixed, is left subject to taxa-
tion by the just and safe rule originally de-
clared, according to representation-that is, by
taxation, that those who impose it are, with |
their own people in their several States, to cies-legislative, executive, judicial—can ex-
share in the burdens of.

Such direct taxation according to representation and numbers in the several States is by no means so unequal as has been suggested. The first direct tax eo nomine that has been laid by Congress since the Constitution was adopted was that of 1861. Twenty millions of dollars were required to be raised. This sum was apportioned among States according to population, as the Constitution required. A comparison of the sums apportioned will show how far from real inequality of burden, in the main, such a tax was found to be. For illustration: The State of New Hampshire was called on for about $218,000. It had about 9,000 square miles of land. The State of Texas was called upon for about $355,000. It had about 261,000 square miles of land. Texas, then, had approximately thirty times the real estate resources that New Hampshire had, from which to pay, in round numbers, only once and a half the sum that New Hampshire had to pay. New York was called upon for about $2,600,000. It had about 49,000 square miles of land. fornia was called upon for about $254,000. It had about 158,000 squares miles of land. But New York had to pay more than ten times the amount required from California. It will thus be seen that, in the long run, direct taxation upon property in the States, apportioned according to population, will not be greatly unequal. And it is very clear that in respect of duties, imposts and excises the States (usually) that may have the advantage in regard to direct taxes will compensate for it in the case of their far greater payments of these indirect It will be seen, then, that the patriotic fears of any citizen-whatever may be their stations, or present responsibilities for the financial future of our country in times of war or other calamity, may be greatly mitigated, if not entirely overcome. But however men may, possibly, differ in respect of some of these matters, there is one great fact not to be lost sight of by those who have faith in, and hope for, the continued success and increase of popular gov

taxes.

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ceed its authorized functions without being checked by another. The triangle of our government to use a mechanical illustration makes the strongest possible structure for the security of justice to all.

66

The Government is not the State. It is only the agent of the State, and it must act within the limits of its authority. If it acts beyond this, it becomes a a usurper, and practises tyranny. The comparison of the governmental tyranny of a single despot, or even of a small body of persons, with the tyranny of the majority of a people, unhappily shows that the tyranny of the mob or commune, or any other tyranny of mere numbers, is far worse than any other while it continues.

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"The only possible idea of a State governed by its people is one where the burdens are equally borne and all benefits equally open and secure to all. It is well to remember that the axiom stated by Jefferson, when he was assisting to establish the institutions we now enjoy, that 'the whole art of government consists in the art of being honest,' is one that states broadly the truth that this decision has applied. The court has respected and followed the truth as it appeared to it. That was the greatest and most responsible duty which the organic law the law of the people had imputed to it. The chief and only really important reason for written constitutions at all is that the people who ordain them know and feel that they cannot trust themselves to do right and refrain from wrong in times of temptation, excitement or tumult. Constitutions, then, are the pre-ordained acts of the self-control of the people as a body. They erect barriers that they themselves shall not be able to pass when temptation in its thousand forms may overcome their calm judgment of what ought to be or what ought not to be. Organized society can restrain itself only in this way, and nearly all intelligent and progressive communities have taken this the only best and surest of methods to protect their citizens from injustice. This decision goes far to make these principles

permanent, and such rights of equality and justice secure. The socialist and the anarchist should heed the power and the capacity of the government of equal law that has no fear in its various departments in protecting the rights and redressing the wrongs of all citizens."

In conclusion Mr. Edmunds writes: "The fears that have been expressed in sundry quarters of the danger of the aggrandizement of wealth and the greed of its possessors leading them to try to escape taxation, compels the inquiry, What is wealth? Is it property worth more than four thousand dollars a year? Is the ownership of property or working power of whatever kind, producing less than that sum of income, poverty? Where is the line that places the tradesman, the artisan, the common laborer, the doctor, the clergyman and the lawyer "below the salt?" No arithmetical money-definition of wealth has ever been given; and among a people who are to be free and progressive none can ever be stated. That the tangible wealth of the citizens of every community, be it nation, or State, or county, or town, should bear its financial burdens in due proportion is self-evident both in the science of government and in morals. But the wealth of such a community is all its wealth, wherever and in whatever proportions it may be distributed among the members of the community, and where the expenses of a common government are ratably and equally imposed by the taxation of all the wealth. Every citizen, sharing by his vote in the management of the government, shares also in his proportion in its responsibilities and burdens, and it is only by such equality of power and duty that he can be the peer of every other. It is such equality, and such only, that will maintain a well-ordered and prosperous State. The Act of Congress which has now been declared void did not proceed upon any such principles, but the very opposite. Now, the essential principles of the people's government of equal rights and equal duties in its management and progress are reestablished.

"There is, perhaps, little or no occasion now, to consider the salient points of inequality and consequent injustice in the provisions of the act; one may be mentioned, however, that was not, it is believed, adverted to in the discus

sions in the court. The income of the possessor of accumulated property was taxed at the common rate of 2 per cent. The income of the wage-earner (whether an artisan or clerk or professional man) who had no accumulated property, and whose sole funds were the result of his year's labor, was taxed to the same extent. Thus the capital of the property-owner was not taxed at all; while the whole capital of the wage-earner was taxed to the full extent that the mere gains of the man of property were. If this is not a discrimination against labor and industry, what can be?

We desire to call the attention of the bar to a radical change which has recently been effected in the legal procedure of our State. It is well known to lawyers that the Code provides the legal methods whereby objections may be taken to a complaint for defect of parties defendant. If the failure to make some necessary party appears on the face of the complaint, the demur for non-joinder. defendant should (§ 488, sub. 6.) If the defect does not appear on the face of the complaint, the defendant should answer, setting up the defense. (§ 498.) In prescribing this procedure, the Code merely follows the antecedent practice. These questions are thus constituted issues in the cause questions to be tried like any other issuable question.

Under the chancery system, provision also existed for the case of omission to plead a defect of parties. When the issues in the case came before the chancellor for hearing, and the evidence developed the existence of a necessary party, who had not been brought before the court, the case was ordered to stand over, or be dismissed. The framers of the Code preserved this equitable practice by section 452, which directs that the court shall not determine the case in the absence of a necessary party. same section likewise provides for applications by non-parties claiming an interest and desiring to come into the case. These various provisions constitute the entire system which has prevailed for many years, and which has been found adequate to meet all the exigencies of justice, in securing the presence of the necessary parties before the court. A defendant could demur, or answer, for absence of necessary co-defend

The

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