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existence which authorized and directed the governor of the State to determine what subordinate places in the service of the State it was practicable to classify and subject candidates to for examination.

It has been said that a constitution is, "To be held to be prepared and adopted in reference to existing statutory laws, upon the provisions of which in detail it must depend to be set in practical operation." (People, ex rel. Jackson, v. Potter, 47 N. Y. 375-80.)

The statutes in existence at the time when the present Constitution was adopted, authorized the governor to determine how far it was practicable to test the merit and fitness of candidates for subordinate places in the public service, by examination; and the rule that holds that constitutions are "prepared and adopted in reference to existing statutory laws," and in reliance upon their details to set them into practical operation, is much strengthened in this case by the similarity in meaning of the language used in the section of the Constitution under consideration, to that used in the civil service law. Let us compare the language used in each. The Constitution provides that appointments and promotions in the civil service of the State, etc., "Shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations, which so far as practicable shall be competitive."

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The civil service law (chapter 354 of the Laws of 1883), makes it the duty of the Governor, with the aid of the civil service commission, to prepare rules and regulations, which shall provide, amongst other things, As nearly as the conditions of good administration will warrant. * * * For open, competitive examinations for testing the fitness of applicants for the public service, now classified, or to be classified hereunder."

And again in section 6 of said act, it is made the duty of the governor to "Cause to be arranged in classes of the several clerks and persons employed or being in the public service, for the purposes of the examination herein provided for, and he shall include in one or more of such classes, so far as practicable, all subordinate places, clerks and officers in the public service of the State."

Where the language used in the Constitution and in a previously existing statute is so nearly similar in meaning, it seems to me that we can well say that the framers of the Constitution had such statute in view, and relied upon it to enfore the provisions of that portion of the Constitution under consideration.

The governor has acted under the power conferred upon him by the statute, and had determined that it is practicable to test the merit and fitness of

candidates for positions in the department of public works by examination; for it appears in the papers before me, on this application, that after the adoption of the Constitution, and on the 15th day of April, 1895, the governor, with the aid of the civil service commission, made a classification of the positions in the departments of public works. and State prisons of the State, and that under such classification, the position of clerk to the collector of canal statistics was included in what is known as schedule B, and that all appointments required to be made in the positions classified in schedule B are to be made by selection from those persons graded highest as the result of open competitive examinations. And it also appears that at the time of the appointment of the relator to the position in question, there were eighty-eight persons upon what is known as the "eligible list" in schedule B, who were eligible for appointment as clerks to the collectors of canal statistics.

It follows from what I have said that the superintendent of public works should have made his appointments of clerks to the collectors of canal statistics from the eligible list just referred to; that the appointment of the relator was in violation of the Constitution and of the civil service laws of the State, and that his application for a mandamus must be denied.

Motion for a mandamus denied, not as a matter of discretion, but as matter of law, without costs.

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where a saloonkeeper causes a piano to be played in his saloon each night from seven o'clock until ten o'clock, and sometimes later, to the music of which dancing is indulged in, the effect of which is to prevent the occupant of an adjoining building from sleeping, a preliminary injunction will, at the suit of such occupant be granted, restraining the use of the piano after nine o'clock. In view of a recent controversy over a disturbance of this kind in New York city, the case seems to be one which will be noticed with especial interest.

The court said: "This is an application for a preliminary injunction, restraining the defendant from the use of a piano. The defendant is the owner of a saloon next adjoining the dwelling of the complainant. In this saloon the defendant makes sale of beer and other liquors, and on the 5th of January of the present year placed therein a piano, which has been played every night except Sunday nights, from seven o'clock until ten, and sometimes until after eleven o'clock. This is accompanied with dancing and loud noises by the customers of the

defendant. The effect of this musical and pedestrian ELECTION-AUSTRALIAN BALLOT.-Though the performance is to so greatly annoy and disturb the judges of election do not preserve the ballots in the complainant and his wife and children that they are manner specified by the statute, they may be unable to sleep at night during the continuance of counted in an election contest if there is evidence these noises. Hence the application for the inter-that they have not been tampered with. (Murphy ference of this court.

"That the defendant has a right to the ordinary and proper use of a piano in his saloon, and that his customers have a right to dance to the music as expressed by such instrument, there can be no doubt. There is no distinction between citizens in this respect. Every citizen is permitted to possess him-self of the instrument, and also to enjoy a dance. But it is equally well settled that every citizen, in the exercise of his individual rights in the use of his property, is limited to such use as will not interfere with the reasonable rights of others in the enjoyment of their property. With these fundamental principles, concerning which there can be no dispute, and with the cases of Thompson v. Behirmann, 37 N. J. Eq. 345; Walker v. Brewster, 5 L. R. Eq. 25, and Soltau v. De Held, 2 Sim. (N. S.), 133, as a guide, I do not see my way clear to deny the preliminary injunction, so far as to restrain the use of this instrument after nine o'clock in the evening."

Abstracts of Recent Decisions.

ARBITRATION AND AWARD-ACTION TO VACATE.—

When, in an action to set aside an award, it appears that the arbitrators exceeded their authority and made an award in respect to matters not submitted to them, the burden is on defendant to show that the plaintiff, after seeing the award and understanding what it contained, assented to its executiou. (Leslie v. Leslie [N. J.], 31 Atl. Rep. 725.)

CARRIERS-PASSENGER-DUTY TO STOP AT STA

v. Battle [Ill.], 40 N. E. Rep. 470.)

JUDGMENT-CONFLICT OF LAWS.No suit can be brought in Missouri upon a Kansas judgment after it has by the law of that State become dormant and dead. (St. Louis Type Foundry v. Jackson [Mo.], 30 S. W. Rep. 521.)

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- ACCEPTANCE. A lessee removed before the ex

piration of the term without notice, and left the key with a neighbor for the lessors. The lessors notified the lessee that he would be held for the rent for the whole term unless the premises were rerented, that they would try to re-rent the same, and that the lessee might aid in procuring a tenant; and the lessors thereupon placed the premises with a rental agent: Held, that there was no acceptance of a surrender of the premises. (Lane v. Nelson [Penn.], 31 Atl. Rep. 864.

MORTGAGE ON GROWING CROPS-ESTOPPEL. -A creditor of a lessee who, without knowledge of the fact that the lessor had a mortgage on such lessee's crop, induced the lessee, without false representations, to remove his grain to the creditor's farm to be threshed, and afterwards attached it, was not estopped to deny the continuance of the mortgagor's lien on the crop after it had been removed from the land on which it was grown.. (Horgan v. Zanetta [Cal.], 40 Pac. Rep. 22.)

REMOVAL OF CAUSES-DISCONTINUANCE AFTER REMOVAL.-B, a citizen of Indiana, commenced an action for personal injuries, in a court of that State, against three defendants, two citizens of Indiana and one of Ohio. The Ohio defendant removed the cause to the Federal Court on the ground of local prejudice. B then discontinued the action as to the

TION.—Statements of a ticket agent that a certain train stopped at a certain station will bind the rail-Ohio defendant, and moved to remand. Held, that road company only when made contemporaneously with the sale of a ticket, and not when made several weeks before, and not referred to at the time the ticket was sold. (Atchison, T. & S. F. R. Co. v. Cameron [U. S. C. C. of App.], 66 Fed. Rep. 709.)

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CRIMINAL LAW—HOMICIDE--INSANITY. -Evidence that defendant has been in the insane asylum, and that, in the opinion of witnesses, some professional and some not, he is still insane, does not justify the reversal of a judgment of conviction, where the evidence also shows that for some years before the crime he earned regular wages, invested the proceeds, and attended to his affairs properly. (Meyer v. People [Ill.], 40 N. E. Rep. 491.)

as the cause no longer involved a controversy properly within the jurisdiction of the Federal Court, it should be remanded. (Bane v. Keefer [U. S. C. C., Ind.], 66 Fed. Rep. 610.)

TRUST-TRUSTEE OF LAND. The estate of one who held land in trust for a widow and her chil

dren, and without their consent expended rents and profits in purchasing an outstanding title to the land, is liable for the amount so expended. (Shaw v. Devecmon [Md.], 31 Atl. Rep, 709.)

WILLS-CONTEST-OPINION EVIDENCE. -A physician who has attended testatrix professionally for several years can give an opinion as to her mental capacity at the time of making the will, without stating the facts on which his opinion is based. (Crockett v. Davis [Md.], 31 Atl. Rep. 710.)

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O much has been written in various periodi

sult beyond doubt in the modification of the law so that it would not have the aspect of some of the blue laws of Connecticut. The possession of money should not entitle one man to a privilege which his unfortunate brother cannot reach, and unless it is desired to have a strict enforcement of a severe and austere law like the present one, it is better that there should be a change so that the people will respect a law because they recognize that it must be and will be enforced.

In Iowa liquor is again rampant.

Scals in regard to the enforcement of the A year and the Republicans mattered themselves

The new

that they had got rid of it by passing the so-
called "mulct law" under which prohibition
was not repealed, but localities were allowed to
have saloons and the majority of the voters
petitioned for their establishment.
law has not satisfied all parties and the estab-
lishment of saloons under the protection of the
law is a perpetual ground of offense to the ex-
treme element on one side, while the rigorous
requirements regarding signatures to petitions

tem, and a decision as to license or no license by a popular vote. Then, of course, the unfortunate controversy arises as to whether the signatures are genuine, and it is easily remembered that the saloons at Des Moines have been recently closed pending the determination by the courts as to whether there were irregularities in the petition.

liquor law in New York city, that the subject has been broadly advertised, and it is apparent that one or the other political party will undoubtedly acquire some advantage from the controversy. As was intimated in our article on enforcement of law, which appeared in the editorial columns of this journal very shortly ago, it is unfortunate that such issues should not be settled by themselves and on their own merits without regard to the partisan feeling and without being intermingled with other semi-offend those who believe in a local option syspolitical questions of an election. If the people of New York city and of the rest of the State desire some modifications and changes in the existing law, their feelings should be respected and no political boss or party should be allowed to change their wishes by sharp practices and unfortunate subterfuges. It is a matter of regret that so many statutes are yearly enacted by legislatures, which are affected by varied terests, and it is asserted by corrupt practices, for the value and quality of the work is overlooked in the mad rush which is brought about by catering to the interests of those who are fortunate enough to have a "pull." It is undoubtedly true that if a vote were taken on the question, as to whether the Legislature should meet once in two years, that it would be carried by a large and overwhelming majority. Not that the people have any objection to such statutes as are necessary to carry on legitimate and proper purposes of the government, but solely because it is too apparent that party greed and glittering gold are at the root and foundation of more than half of the laws which receive the sanction of the legislature and the executive.

In speaking of this question, The Nation recently very appropriately said:

"Though prohibition makes no progress, there is in all parts of the country a growing sentiment in favor of such restrictions upon the liquor traffic as public sentiment will enforce. A notable evidence of this tendency is found in the new liquor law passed by the Indiana Legislature, which has just gone into effect. The principle of local option is one of its chief features, the majority of the voters of any ward of a city or election precinct having the power to prevent the establishment of a saloon within its limits by filing a remonstrance, and such remonstrance acts as a bar for two years. Another important feature of the law is the attempt to remove all attractions except liquor itself from The liquor question, if submitted to the the saloon. Neither games, nor music, nor slot people, it would seem, would receive their care-machines, nor any other device for attracting ful consideration and reflection, and would re- patronage will be allowed; chairs and tables

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and lunch counters are forbidden. All places where intoxicants are sold must be situated upon a street or alley, and neither screens nor any other obstruction to a full view of the interior from the outside will be permitted. The liquor dealers are going to contest the constitutionality of the law, but unless there are some technical defects not apparent on the surface, it is likely to stand."

It would seem that there have been enough bickerings and subterfuges in relation to the liquor question. Either the people want to have a moderate sale of the commodity on Sunday or they do not, and as our form of government recognizes the majority, a fair submission to the people at a special election will decide the question for many years, and would at least put an end to the unfortunate shilly shallying on the question, which has been of serious detriment to the respect which should be accorded to the laws of the State.

We alluded in these columns a short time since to the decision of the Queen's Bench in Grilliam v. Trust et al., which determined the question as to whether a servant can delegate his authority to another. The facts were, the defendants sent our their omnibus in charge of

a driver and a conductor. When the omnibus

was about a quarter of a mile away from the defendant's yard, a police inspector, being of opinion that the driver was drunk, ordered him to discontinue driving.

The Court of Appeal, in their decision, Lord Esher writing the opinion, say: "A question of great importance has been raised in this case, whether a servant can in a case of necessity delegate his authority to another person and so make his master liable for the negligence of that person in carrying out the servant's duties, That question we have not now got to decide. A servant employed for a particular purpose clearly cannot delegate his duty to any one else unless, possibly, in cases of necessity. The question for our decision is, not what will hap. pen, assuming that there is a case of necessity. It is, whether there was any evidence before the County Court judge on which he could reasonably find that a necessity existed for the driver of the omnibus to delegate his duty to Veares. In the first place, I do not think that the County Court judge has found that any case

of necessity existed. He seems to have said that the facts found by him raised in law an inference that a necessity existed. But I will assume that he has in his judgment found that there was a necessity. The question for us to consider is, whether there was any evidence on which he could reasonably find that. Has a servant power to delegate his authority without first consulting his master? If a servant has an opportunity of consulting his master, there can be no need for him to act on his own view of affairs. The facts of this case are: That there was an omnibus in the street, the driver being incapacitated through the orders of the police from driving it, and the yard of the driver's master being only a quarter of a mile away. Could not the omnibus have been left in reasonable safely to stand in the street while some one was sent to the yard to ask the master what was the best thing to do? It is obvious that the omnibus might well have been left where it was, while the owner was being communicated with as to what should be done. Then the judge, if sitting with a jury, should have directed them that there was no evidence of any necessity justifying any delegation of authority, or, if sitting without a jury, he should have held that there was no necessity for the driver to act without first communicating with his master. The question for the Divisional Court was, whether there was any such evidence. In my opinion there was no evidence on which it can be said that a necessity arose for the driver to act without first communicating with his master. I may add that I strongly agree with what was said by Parke, B., in Hawtayne v. Bourne, ubi sup, and Eyre, C. J., in Nicholson v. Chapman, ubi sup., that the implied authority of a servant to act according to the necessity of a case is confined to certain well-known instances, such as that of a master of a ship, and the acceptor of a bill of exchange for the honor of the drawer, and in These cases are all exceptions salvage cases.

from the general rule."

Although we cannot agree with many of the arguments used by Edward B. Whitney, assistant attorney-general of the United States, in his article in the Forum on "Political Dangers of the Income Tax Decision," yet on account of the ability of the writer, the treatise should

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be read with interest, particularly by those who have carefully studied the subject and have watched the progress of Mr. Whitney, and read his brilliant arguments in favor of the constitutionality of the act of Congress. The article is still further of importance in connection with the opinion of ex-U. S. Senator Edmunds, which we recently referred to. Mr. Whitney begins with a statement of how one man has decided by his vote many questions of great moment, such as the legal tender decision. Continuing, he says:

century. A considerable amount of material
was laid before the court by the appellants'
counsel, such as fragments of partially reported
debates, controversial pamphlets, private let-
ters, official reports. Some material was added
by the research of the court; some, at the
second hearing, by the government, which, at
the first hearing, had stood upon the decisions
alone; some by volunteer newspaper contribu-
tors, who probably gave the court the benefit
of their individual researches by means of
marked copies. Much of this material will be
He will prob-
found valuable by the historian.
ably, however, regard the result as requiring
further review on his own part, for the time
was far from sufficient for such investigation as
a historian would consider it necessary to de-

would under ordinary circumstances expect to spend upon it. The rehearing, for instance, which was not expected before October, was brought suddenly on upon thirteen days' notice; and such preparation as the government was able to make upon these historical matters was made within that period. Probably much evidence of importance bearing upon this question will be found in the future."

"The Constitution gives Congress the power to lay taxes and duties. It provides that direct taxes shall be apportioned among the several States according to their populations as shown by the census. It puts no such restriction upon duties, which are, on the contrary, to be uni-vote to such a question, or as a lawyer or judge. form throughout the United States. The court decided in 1880, in Judge Springer's case, by a unanimous vote of the seven judges then sitting, that an income tax essentially like the late one was a duty and not a direct tax, and therefore valid. A similar ruling had been made in 1868, by a unanimous decision of the eight judges then forming the tribunal, upon the validity of a corporation income tax; and in these and other cases the court had said that the definitions had been substantially settled as early as the case of Mr. Hylton's carriage tax, in 1796. Congress, therefore, in enacting the revenue law of 1894, and providing that a certain portion of the existing deficit should be met by the proceeds of an income tax, acted in reliance upon very clear and definite rulings of the Supreme Court itself. It could not have laid any tax with greater assurance of safety.

It could not foreknow the future actions of the court.

It had to shape its legislation by the

decisions of the past.

"Five judges now rule, however, and these five are entitled to speak for the court,— that the seven of 1880 and the eight of 1868, that Chief Justices Chase and Waite, Associate Justices Nelson, Miller, Strong and Bradley and the rest, were all mistaken; and that an income tax is a direct tax, not a duty. The argument by which this conclusion is arrived at is, of course, a historical rather than a legal argument. The point in issue is the meaning of certain words in the parlance of the eighteenth

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Mr. Whitney then gives a short history of some of the opinions and cases which have been decided by the U. S. Supreme Court in regard to taxation.

Speaking of the constitutional limitation as to apportionment, Mr. Whitney says:

The principle of apportionment is grossly unfair as well as impracticable. The industries of our nation are closely intertwined. Each section is partly dependent on the others for its support. Wherever the men with large incomes choose to settle themselves, the incomes which they enjoy are really the joint product of the industry of the entire nation. Each man should, therefore, pay his own share; and to apportion according to legal residence would be to make a sectional tax, discriminating in favor of those parts of the country where wealthy people like to congregate.

"It may safely be assumed that the nation will levy no income taxes under this new theory of the Constitution. Nor can the States levy such taxes efficiently. The sources

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