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contend for a moment that 'ongress has any con ism and compromise, were willing to cede to the stitutional authority to legislate for any particular general government such powers as would enable it State, or to dictate to any State what kind or char- to exist for the common good and benefit of all, reacter of laws shall be enacted for the government of serving all other powers to the States and the its own domestic affairs, for the Federal Constitu- people, they were careful to specifically enumerate tion expressly declares that all power not directly in detail each and every power thus delegated to given to Congress is reserved to the States and the Congress; and it is equally significant that the people.

power, coupled with the duty of Congress, to proBut while this is true, it is further true that the

vide for the general welfare, is expressed in the very same Federal Constitution that erects all the States first of the eighteen sub-sections of section 8 of the into so many separate sovereignties expressly de- first article of the Federal Constitution, in these clares that Congress not only has the power, but is words; The Congress sholl have power to lay and charged with the special duty of providing for the collect taxes, duties, imposts and excises : to pay the general welfare ” of all the States and all the people. debts and provide for the common defense and general

This is perhaps one of the grandest powers con- welfare of the United States." fered upon the general government, and is coupled How natural that thoughts for the with a duty as noble and conservative as grand. | defense and general welfare ” of the new governWhen the thirteen colonies agreed to become thir ment should fill the minds of the good and great teen sovereign States, operating under one general men who were then about to create it. The degovernment, which was to be supreme so far as the feated British armies had just left our shores and few limited powers confered upon that parent gov- might return. The merciless Indian savages still ernment was concerned, leaving the States and the hovered around the outposts of our little armies of people to be supreme as to the exercise of all other patriots. No wonder the first thoughts of the powers, it was but just and natural that in consider- framers of the general government under such suration of the surrender of the powers by the States roundings were for the “common defense and geneand the people the Federal government should ral welfare." And these are the first thoughts of all agree and bind itself for all time to come to promote true friends of the Republic even down to the pres

the general welfare” of all the States and all the ent hour. They wrote as they thought; the blood people.

shed in recent battles and the still impending danThis solemn duty has rested upon the general ger from the savages caused them to think of their government for more than 100 years, during which

common danger, and hence the grant of power was time it has often had occasion to step forward in

written common defense and general welfare,” various ways to discharge, in some degree at least, showing that the general government was to first this obligation which it owed to the States and the provide for the common defense, and after that for people — not to any particular State or individual, the general welfare. To the credit of the greatest but alike to all the States and all the people. In republic that ever honored the world be it said, stances need not be mentioned. It was a grand that up to this good hour the Federal government compromise when the States, by surrendering a few, has at all times most gallantly and successfully disto them, immaterial powers, procured in consider

charged its entire duty in providing for the common ation thereof the solemu promise of the general

defense. No hostile fleet now threatens our shores ; government to diligently promote, for all time to

we are at peace with all the world ; and even the come, and in every emergency that future centuries might engender, the general welfare of all the States

States and people lately in rebellion have returned and all the people.

to their faithful allegiance, and are now honestly And this brings us face to face with the striking efforts to advance the growing prosperity and secure

vicing with those who never rebelled in laudable feature of the age of which we wish to speak: an

the perpetuity of the Union. emergency in which the entire population of nearly fifty States and Territories are alike interested: and

But in the closing years of the nineteenth century a complicated condition of business affairs in which

we find our government no longer consisting of thirthe entire people have the right not only to invoke,

teen feeble States, with a sparse population scatbut to expect the much needed action of Congress tered along the sea-shores, with here and there to promote the general welfare, without in the least small towns in the more fertile spots where our foreencroaching upon any of the rights or privlleges so

fathers delivered their simple crops from ox-carts and carefully and jealously reserved to the States and

carried home in exchange, and in the same conveythe people.

ances, the rude supplies for their families. Now It is a significant fact that while the framers of we have nearly fifty States and territories stretchthe Federal Constitution, in a spirit of truc patriot- | ing from the Atlantic to the Pacific, and from the

66

Penobscot to Puget's Sound, teeming with nearly marriage and divorce, and regulating the duties 70,000,000 of the most enterprising people known and obligations of husband and wife and parent to civilization. Railroads connect Portland in and child, and the general laws of descent, were Maine with Portland in Oregon, and the telegraph substantially the same in every State; that is, uniand telephone now girdle all the States and terri- form throughout the United States. Then there tories in one. The merchant in Boston ships his would be no such thing as flocking in droves to one goods and draws his bills on San Francisco, and the particular State on account of the loose laws on the cotton planter in the south sends his crops and subject of divorce in that jurisdiction. There would keeps his bank account in New York ; and in a be no such thing as divorce lawyers advertising to word, our business and commercial transactions with guarantee a divorce in ninety days. It seems to me each other have grown and multiplied and enlarged that if the law on this entire subject was reasonaand become so interwoven, that we can hardly reable, but fixed and certain and substantially the lize that we are in fact but one people, while resid same everywhere, the general result would be beting and doing business in nearly half a hundred ter hushands, better wives and better citizens. A separate States. While we are practically, from a similar line of remark is applicable to the laws govbusiness point of view, but one people, with one erning the limitation of actions, the legal rate of set of hopes and one common destiny, our business interest, bills of exchange and promissory notes, relations are hampered, compressed and oftentimes and the homestead and other laws exempting the retarded by the fact that we are at the same time property of the debtor from the payment of his the inhabitants of States and territories, each having debts. When strange merchants from a dozen local statutes which are and must continue to be States in the west go to New York to open accounts supreme within the local jurisdiction of each State, for supplies of goods on credit from year to year, as different and distinct from the local laws of the that wholesale merchant ought not to be required other States, and even of the adjoining States, as to search through the statutes of as many States as the enlightened laws of England and the edicts of he has customers to find out wliat the law is in the czar.

Now these States have the right to enact each State before he will open an account with the all these local laws to suit the pleasure and purposes proposed customer. IIow much better it would be, of their citizens, and no one claims that there is both for the wholesale merchant and the retail one any power in congress to nullify or repeal a single desiring credit, if there was but one statute to conone of them. The State is supreme on this subject, sult, with a similar statute to be found in every and so long as each State preserves a republican State in the Union ! form of government, ('ongress has no constitutional And what may be said of the law of common right to intersere. But when it is ascertained carriers ? A man in Rhode Island takes passage on beyond a reasonable doubt that the “general wel some railroad train from Providence to Puget's fare of all the States ” would be promoted by har Sound; or he ships goods from and to the same monizing some of these conflicting statutes relating places. He purchases his ticket or ships his freight, to such general subjects as affect the interests and as the case may be, at Providence for a trip across commercial pursuits of the people of all the States

the continent. I have not examined the map to be alike, can there be anything wrong in reminding sure about it, but at a guess I would say his train Congress that it not only has the express power, but would likely pass through between ten and twenty that the solemn duty rests upon it to adopt some

States to reach the Pacific coast. Each one of friendly and persuasive means of “promoting the these States has a separate local State law governgeneral welfare," ly establishing a bureau or coming the liabilities of common carriers for negligence mission, if need be, whose duty it shall be for the in all probability. If he loses his life or goods in next five or ten years to gather information on the the State of New York as be passes throngh that subject, and correspond in a friendly and respectful State, on account of some supposed negligence or manner with the authorities in each State, and in this imperfection of the railroad company, he may be way ascertain what general laws in the States able to find some New York statute allowing him are in conflict with each other to the extent that I to recover for that particular kind of negligence: any general rights of citizenship or commerce are

but if the same injury is sustained, and by the same impeded or denied, with a view to bringing about class of negligence, while passing through the a harmonious system of general laws in all the State of Indiana, on his trip to the Sound, he may States; and all this by the free and independent not be able to find any statute to enable him to reaction of the States themselves? To particularize: cover, and his case may not fall within the general No one will deny that it would promote the gene- ! law governing the liabilities of common carriers. A ral welfare" of all the States if it could be so case might arise even worse than the one above brought about that the general laws governing | supposed. It is known to all lawyers that the

Federal courts have jurisdiction of such cases where stock as an investment of her pittance, would rest the parties are citizens of different States. It is as easy and sleep as well as the millionaire who has also known that the Federal courts often go by the had time and opportunity to examine the entire laws of the State in which the suit is brought or statutes of all the States before purchasing his the injury sustained, and that it sometimes happens blocks of bonds and stocks to lay away in his that the same Federal judge holds court in two or

strong vaults for after years. more adjoining States. Now suppose an injury has

It may be said that there is no power to force the been done and suit is brought for damages in the

passage of such uniform laws, even on these general Federal court of such a judge, in a State where the subjects, affecting all the people of all the States. State law allowed a recovery for the particular kind I readily grant that no such power

resides anywhere, of negligence of which Snith, the plaintiff in that and that all the States are free and sovereign alike, case, complains.

Smith gets bis judgment for and Congress has no power, even if it had the desire, $10,000 damages, and goes home satisfied and

to compel a single sovereign State to alter, repeal or praising the law and the just judge who adminis- change a single law on her statute books. Then tered it. Ther suppose that on the very next train

how can such a herculean task as harmonizing the from the east comes his neiglıbor, Jones, who is general laws in the States be accomplished? The also going to the Sound; and be meets with ex

answer is, go at it in a business-like way. ACactly the same injury by the same sort of negligence knowledge the absolute sovereignty of the States. of the same railroad company, but his injury was

Convince them that ('ongress does not claim the received a few feet across the line of another State. right to interfere in any way with their right to pass He brings suit before the same Federal judge in the and enforce such laws as the States think proper. adjoining State, where there may be no statute But show them, at the same time, the great good to authorizing him to recover; and the same judge all the people that would result from a uniform syswho gave Smith a $10,000 judgment turns Jones tem of laws on these leading subjects. Appoint out of court because the statutes of the two States good and enlightened men to conduct so important an on the subject are not alike.

enterprise; men who believe that such a result is The same line of remark will apply, in a degree desirable, and that it ought to be, and can be at least, to a large number of other business trans- accomplished; not in one year, and, perhaps, no: actions in which the people all have similar inter- in ten; but that it may be reached at least by the ests in common with each other, especially in the time this government has sixty States and general laws governing the making and recording 300,000,000 of people. Then let the commissioners of wills, deeds and mortgages, and assignments for go to work as though they were engaged in getting the benefit of creditors, and the creation of trusts. donated to them the right of way to build a trunk What a grand consummation it would be for the line railroad from Boston to San Francisco, or a telebusiness world if there could be brought about by graphi and telephone line from Duluth to San the free action of all the States such a uniform sys- Augustine, and the people will not be slow in seeing tem of statutes on these subjects, in all the States, that the whole thing is but a praiseworthy effort on that a deed or will or mortgage or other recordable the part of the general government to comply with instrument that was valid in Dakota would be and discharge that high duty so long resting on equally valid and enforcible in Connecticut and Congress, to provide, in a practical way, for "the Florida; and what an achievement for enlightened general welfare” of all the people of all the States of justice and progress would be attained, now that the Union. Commissions expire, and men die, but the whole human family have, in a degree, become their good work, properly begun and set in motion bankers and brokers, and dealers in railroad, bank for the common good, lives after them; and while and municipal bonds and corporate stocks, if the it may be true that the closing years of the present same uniformity of laws could be obtained govern- century will not witness the entire accomplishment ing all these transactions, so that all bonds, stocks of all the high purposes you have in view, is it not and secuities that were genuine and valid as to all within the bounds of reasonable expectation to the forms of law in one State would be equally valid hope that in coming years not only our own people and enforcible wherever found in all the States. | but the inhabitants of all civilized nations will have What I here desire to suggest is that there may, in reason to rise up and bless the Congress of this certain cases, under the diversified and contradictory great republic for making it possible for fifty or laws of different States, be doubts as to the validity, sixty sovereign States to dwell together and prosper while if the laws of all the States were harmonious under such a uniform system of general State laws. on all these subjects, and this was known from one

John L. Scott. end of the Union to the other, the poor widow who

Attorney. is only able to purchase one bond or one share of Frankfort, Ky.

are

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the human race that one who cannot be conThe Albany Law Journal.

victed by fair play, should not be convicted at

all.” ALBANY, AUGUST 3, 1895.

While we

on this subject it will be Current Lopics.

well to comment on the opinion of the Su

preme Court of Oregon in the matter of [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY Law JOURNAL.

Schmidt v. The Oregon Gold Mining ComAll letters relating to advertisements, subscriptions, or other pany. The decision is a grievous mistake business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.)

and if allowed to stand must weaken the

respect for the courts and the confidence of E publish in this issue the opinion of Judge citizens, in the security for their rights of prop

Gaynor at Special Term in the matter erty and previous investments in that State of of the People v. McLaughlin. Edward C. capital from other States and from foreign James, Abraham I. Elkus and Edward E. Mc

countries. The very bad case, in question, Call appeared for the defendant, while John R. shows to what abuses this remarkable deliverFellows, district attorney, Daniel G. Rollins

ance may lead. A parcel of property sold for and Barton S. Weeks appeared for the people. $9,000, the attorneys took $5,500, and after The application was for a certificate of reason

other costs were paid, the mortgagor received able doubt, and the facts seemed so unusual and but a little over $2,500; this certainly was the opinion is so able that we think it is more

scandalous. The interest was in default and than worthy of space in our columns. It is un- the mortgage might be foreclosed, but the atfortunate that in many instances popular preju- torneys, instead of taking a decree in favor of dice enters too largely in the judgment of the their clients, took it in their own favor and jury and that their verdict is influenced by | against their client for the amount claimed as matters extraneous to the facts presented for fees, insisted upon it as the first lien and were their consideration on the trial.

But when it upheld by the Supreme Court of the State. is considered that the courts themselves appear Hon. Joseph N. Dolph, U. S. Senator from in some cases to feel the weight of popular opin Oregon, who was one of the attorneys for the ion it is not to be wondered at that individuals appellant, writes a very proper criticism to the unskilled in legal procedure and without train- Oregonian, in which he comments on the opining in law, render a verdict which is founded ion as follows and says: practically more on public sentiments than on I call attention of the legal profession in the evidence presented for consideration. By Oregon to the recent decision of the Supreme this we do not intimate that the verdict in the Court of this State, in the case of A. L. Schmidt, McLaughlin trial was brought about in this way appellant, v. The Oregon Gold Mining Comor was based on public feeling alone but we pany, respondent, not on account of my own or merely call attention to the frailty of human na my client's interest in the matter, but because I ture, which, unfortunately, has to a more or less believe the transaction which the court in that dedegree deprived many individuals of their rights. cision sanctioned, to the extent at least of holding

Judge Gaynor's opinion is very scholarly, that the wrong committed could not be corrected while he echoes the sentiments we have ex- upon appeal, is calculated to bring the legal pressed, that “history in almost every genera- profession into disrepute, and is such a transtion affords instances of trials conducted without action that no honest man or upright judge can due calmness and attention in which some times approve of it, and because the court, in my the innocent and soine times the guilty were judgment, in supposing that relief could not be convicted ; but invariably in either case with given the party injured upon appeal, has misthe like effect in the end, that the conviction taken the law, and made a decision which will was deemed unjust and proved more demoral- | not commend itself to the bar of this state, or izing and detrimental to social order than ac

to the profession at large, and which it is to be quittal would have been. It is the maxim of hoped will not be followed as a precedent by manliness and healthy human nature as old as other courts.

Vol. 52

No. 5..

This is the first time during an experience of Butcher, of counsel.

Said defendover a third of a century at the bar, I have felt ant, by his said attorneys, in open court, here it my duty to discuss a decision of a court of now consents that a judgment and decree may justice in the press.

be here now made and entered in this cause in The case briefly stated is this: The appel- favor of said plaintiff, A. L. Schmidt, trustee, lant, A. L. Schmidt, was the trustee named in and against the said defendant, the Oregon certain mortgages executed by the Oregon Gold Gold Mining Company, as prayed for in plainMining Company on mining property in Union tiff's complaint, and that in said judgment and county, Or., to secure issues of bonds by the decree the court shall fix the referee's fees at the company.

sum of $200; the court stenographer's fees at the Default having been made in payment of the sum of $, and the plaintiff's attorneys' fees interest on the bonds, the trustee brought suit at such sum as the court may find reasonable for in Union county, Or., to foreclose the mort- the services performed, and that the referee's gages.

fees, stenographer's fees and the plaintiff's atThe mortgages contained the usual provision torneys' fees shall be a preferred lien upon the that, in case of foreclosure, the trustee should mortgaged property of the defendant, and the be entitled to recover from the mortgagor such proceeds thereof in favor of the said referee, sum as costs of foreclosure, including attor- stenographer and the plaintiff's said attorneys neys' fees, as the court should adjudge rea

for the respective amounts found due each as sonable.

found and settled by the parties and the court, The complaint contained allegations sufficient and that they or either of them may have exeto authorize the court to decree to the plaintiff cution therefor against the said mortgaged attorney's fees.

property. The defendant answered, denying some or “Eighteenth · The court further finds that all the allegations of the complaint, but after the sum of $5,500 is a reasonable attorneys' fee wards, in open court, consented that the plain- in this suit for the foreclosure of the said sevetiff might have judgment and decree as prayed ral mortgages and trust deeds, and that of said for in the complaint.

sum plaintiff's attorney, T. Calvin Hyde, should Instead of taking a decree in favor of their receive the sum of $2,750, and plaintiff's attorclient, the plaintiff, as prayed for in the com- ney, T. H. Crawford, should receive the sum plaint, for the foreclosure of the mortgages, of $2,750, and that said amounts so allowed with costs and attorneys' fees, the plaintiff's at each of said attorneys should be a preferred torneys, without pleadings and without notice lien upon the said mortgaged premises and to their client, procured a decree in their favor upon the funds arising from the sale of the said and against their client, for the amount they mortgaged property for the payment of the claimed against their client for fees in the case. same, for the enforcement of which either of

There was nothing in the case concerning said attorneys should have execution.” the right of the attorneys to fees, or the meas “ It is therefore ordered, considered adure of their compensation. There was no agree-judged and decreed that plaintiff A. L. ment between them and the plaintiff as to the Schmidt, as trustee for the holders of said amount of their compensation. There was bonds, have and recover of and from the nothing in the case upon which a decree in defendant ;

and the further sum of their favor could be based.

$5,500 reasonable attorneys' fees herein in The portions of the decree in favor of the trust for T. Calvin Hyde and T. H. Crawford, attorneys and material to an understanding of plaintiff's attorneys herein ; and for the further the question under consideration are as follows : sum of $150, Stenographer's fees herein in Now, at this time, this cause came on to be

on to be trust for John Wheeler, court stenographer. heard upon the motion of plaintiff for a judg

" And it is further ordered, adjudged and ment and decree, as prayed for in the com decreed, that the judgment herein made and plaint herein, the plaintiff appearing by T. Cal- entered for attorney's fees, referee's fees, stenovin Hyde and T. H. Crawford, of counsel, and grapher's fees and costs and disbursements be the defendant by C. A. Johns and W. F. I and the same are hereby adjudged and decreed

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