33. Corporations-Act of Bankruptcy.-A corporation did not commit an overt act of insolvency by calling a creditors' meeting for a conference looking to an adjustment of its indebtedness where it continued to be a going concern.-Hicks v. Whiting, Tenn., 258 S. W. 784.

34. Indemnity Bond.-When the obligor in an indemnity bond delivers such bond to a corporation, as obligee, for its acceptance, and it is apparent from the face of the bond that the obligor is executing said bond upon faith in an agreement therein contained that the bond shall be void unless certain statements are true which it is therein recited have been made by the obligee acting through some one assuming to be its agent, the obligee by accepting the bond ratifies the authority of the assumed agent to make such statements and, as to the obligor, becomes estopped to deny such authority.-Maryland Casualty Co. v. First State Bank, Okla., 223 Pac. 701.

35.-Profit by Officer.-It is an abuse of trust for a corporate director to purchase property which he knows the corporation will need and then sell it to the corporation at an advanced price.-Gilmore v. W. J. Gilmore Drug Co., Pa., 123 Atl. 730.

36. Receivers-Where a foreign corporation entered a general appearance in a suit against it for appointment of receivers, and took no appeal from the order appointing receivers, nor from any subsequent order incidental to the conduct of the business by the receivers, which continued for 20 months. during which they contracted debts, but on appeal from a collateral order the court was held without jurisdiction, and directed to dismiss the suit, without further instructions, it will direct an accounting by the receivers and provide for the payment of their indebtedness and compensation from defendant's funds.-Riggs v. Burnrite Coal Briquette Co., U. S. D. C., 295 Fed. 516.

37. False Pretenses-Past Consideration.-Under section 710-176, General Code, the making, drawing. uttering or delivering of a check, draft, or order, payment of which is refused by the drawee, is prima facie evidence of the intent to defraud, and the mere fact that the check was given for a past consideration does not justify the court in taking the case from the jury upon the admission of that fact in the opening statement by counsel for the state.-State v. Lowenstein, Ohio, 142 N. E. 897.

38.

Highways-Pedestrian.-A person pushing a bicycle is a "pedestrian" within the meaning of Laws 1921, p. 273, § 28, Rem. Comp. Stat., § 6340. subd. 7, requiring pedestrians at night to travel along the left side of a highway, and upon meeting an oncoming vehicle to step off the traveled portion thereof.-Benson v. Anderson, Wash., 223 Pac. 1063.

39. Insurance Agent's Insertions.-Where an applicant for an automobile insurance policy gives truthful answers to defendants' agent as to the existence of a mortgage thereon, the motor number, its purchase secondhand, and the price paid, his right to recover on the policy is not affected by the agents insertion of misstatements in the application, unless he had knowledge thereof, and, the policy being a valued one within Rev. St. 1919, 6239, no forfeiture can be based on lack of value. description of the car as new, or the granting of larger insurance than was granted on cars costing less than the amount stated in the application.Andrews v. Bull Dog Auto Fire Ins. Ass'n, Mo., 258 S. W. 714.

40.- -Exact Sum.-A condition in an assessment insurance policy that, should insured carry other insurance, the insurer would be liable for only such portion of the indemnity promised as it bore to the total amount of like indemnity in all policies covering such loss, held invalid under Rev. St. 1919. § 6157, requiring policies to specify "the exact sum of money" payable upon happening of the contingency insured against: it being insufficient that such "exact sum" might be determined by a mathematical calculation.-State v. Allen, Mo.. 259 S. W. 77.

41. Interest.-The jury returned a verdict finding for the plaintiff "interest from October 30, 1920,

at the rate 7 per cent per annum." The petition alleges that the fire occurred on October 30, 1920. and "that upon the destruction of his automobile by fire" petitioner furnished proofs of said loss, gave proper notice, and fully complied with all requirements of the company as to filing notice, etc, on the same day, as we construe the petition. The policy of insurance provides that the sum för which the company is liable shall be payable 60 days after the notice and satisfactory proof of loss. Direction is given that the judgment be so amended that the interest shall be computed as beginning 60 days after October 30, 1920.-Love v. National Liberty Ins. Co., Ga., 121 S. E. 648.

42. Intoxicating Liquors-Possession.-The manual act of handling a bottle while taking a drink does not of itself constitute the unlawful possession denounced by statute where the one so doing des not claim ownership or control, "possession" being the "having holding or detention of "roper'y in one's own proper or command; ownership whether right or wrongful; actual seizing or occupancy." Sizemore v. Commonwealth, Ky., 259 S. W. 337.

43. Municipal Corporations-City Ordinance.-Neither the Supreme Judicial Court nor the superior court or any court of equity has jurisdiction to entertain a petition by ten taxable inhabitants of a town or city, or by any number of taxable inhabitants, to restrain the violation or to compel the observance of a by-law or ordinances of such town or city.-Kelley v. Board of Health, Mass., 143 N. E. 39.

44. Contributory Negligence.-Where a woman. 51 years old, and in full possession of her physical and mental faculties, started to cross the street to enter a street car which was below a street intersection, and when half way across came in contact with the rear wheel of a trailer attached to a truck, whereby she was injured, such wheel being over 20 feet behind the front end of the truck, held that she was negligent in failing to observe the approach of the truck which was visible by its size and audible from the noise it made.-Itzkovitch v. Schorling, La., 99 So. 353.

45. Law Violators.-Persons riding on a double runner sled in a city street contrary to ordinance thereof could not recover for injuries received in collision with automobile negligently driven, the unlawful sliding on the street being a contributing cause, without which the accident cou'd not have happened.-Boyd v. Ellison, Mass., 143 N. E. 41.

46.- -Motor Bus to Use Certain Streets.-An ordinance prohibiting operation of motor busses on or across certain streets held not invalid as destroying the business of certain bus companies. where it only required them to use different routes which would take a few minutes more time to cover the distance to other stations.-Waid v. City of Fort Worth, Tex., 258 S. W. 1114.

47.-Motor Bus Furnish Surety.-Highway Law, § 282-b, as added by Laws 1922, c. 612, so as to require operators of motor vehicles as comomn carriers for hire in a city of the first class to secure the payment of any judgments recovered against them for death or personal injuries by a personal bond or a corporate surety bond or an insurance policy, held a valid exercise of the police power of the state.-People v. Martin, N. Y., 203 N. Y. S. 480.

48.-Right of Way.-A pedestrian at an intersection could rightly assume that one of two approaching cars would observe the provisions of G. L. c. 89, § 8, and chapter 90, § 1, and grant the right of way to the other car.-Fraser v. Flanders, Mass., 142 N. E. 836.

49.-Speed of Automobiles.-Under Motor Vehicle Act, §§ 20a, 22a, as amended by St. 1919. pp. 215, 220, prescribing maximum legal speed and requiring that drivers of motor vehicles shall at all times operate in a careful and prudent manner with due regard to the safety of others, the driver of a vehicle unequipped with the amount or character of illumination required by law may not safely proceed at the same rate of speed as he might otherwise.-Garns v. Halpern, Calif., 223

Pac. 545.

Central Law Journal

St. Louis, June 20, 1924

OREGON SCHOOL LAW DECLARED

INVALID

The Oregon School Law, requiring every parent and guardian to send children between the ages of eight and sixteen to the public schools, has been held unconstitutional, by the United States District Court for Oregon, in the case of Society of the Sisters of the Holy Names, etc., v. Pierce et al. (not yet reported. Decision in April, 1924). This law has aroused considerable interest on account of the effect it would have on private and parochial schools. Indeed, the question decided by this case was the power of the Legislature to deprive private and parochial school organizations of the liberty and right to carry on their schools for teaching in the grammar grades.

The no

As stated by the New York Law Journal it had always-at least before the enacment of the Oregon law-been supposed that "the law does not interfere with the freedom of private instruction" (Freund on the Police Power, sec. 266). tion of Plato that in a Utopia the state would be the sole repository of parental authority and duty and the children be surrendered to it for upbringing and education was long ago repudiated as impossible and impracticable. Heretofore it had not been doubted that the true rule of constitutional law in this respect, as well as the only sound theory, was, in substance, that announced by the court in State ex rel. Kelley v. Ferguson (95 Neb., 63, 73-4), namely:

"The public school is one of the main bulwarks of our nation, and we would not knowingly do anything to undermine it; but we should be careful to avoid permit ting our love for this noble institution to cause us to regard it as 'all in all' and destroy both the God-given and consti

tutional right of a parent to have some voice in the bringing up and the education of his children. * * * The state is more and more taking hold of the private affairs of individuals and requiring that they conduct their business affairs honestly and with due regard for the public good. All this is commendable and must receive the sanction of every good citizen, but in this age of agitation, such as the world has never known before, we want to be careful lest we carry the doctrine of governmental paternalism too far, for, after all is said and done, the prime factor in our scheme of government is the American home."

Professor Freund has well stated in his work on the Police Power (sec. 266) that

"In one respect, at least, education must be constitutionally free, namely, in so far as it is essential to the freedom of religion; for the free exercise of religion implies teaching as well as worship. The state could certainly not prescribe the religious education of children in so far as it would thereby establish a religion or discriminate in favor of one; nor could it, suppress all private schools, since religious demoninations would thereby be prevented from inculcating their doctrines in the most effectual way.'

We quote a portion of the Court's opinion as follows:

"The court in the Meyer case (Meyer v. Nebraska), in stating some things that are without doubt included by the term 'liberty,' as guaranteed by the constitution, concludes: 'And generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.' And further on the court says (allusion to which has been previously made): 'Plaintiff in error taught this (German) language in school as part of his occupation. His right thus to teach and the right of parents to engage him so as to instruct their children, we think, are within the liberty of the amendment.'

"These declarations, although they

speak of the individual, are applicable here, notwithstanding complainants are bodies corporate. Their right and privilege to teach the grammar school grades, and the privilege of parents to employ them, are the same as though the individual were conducting a private school along the same lines. The mere fact that they bear corporate names afford no basis. for distinguishing them from private schools, conducted by an individual or individuals, with a corps of teachers and instructors to carry on the school work. "The established doctrine is,' continues the court, 'that this liberty may not be interfered with under the guise of protecting the public interest, by legislative action. which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect.'

"The melting pot idea applied to the common schools of the state, as an incentive for the adoption of the act, is an extravagance in simile. A careful analysis of the attendance of children of school age, foreign born and of foreign born parentage, at private schools, as compared with the whole attendance at schools, public and private, would undoubtedly show that the number is negligible, and the assimilation problem could afford no reasonable basis for the adoption of the measure. But if it be that the incentive is political, and arises out of war exigencies and conditions following thereupon, then the assimilation idea is pointedly answered by the opinion rendered in the Meyer case: 'The desire of the Legislature to foster a homogeneous people, with American ideals, prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war, and aversion toward every characteristic of truculent adversaries, were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the state and conflict with rights assured to plaintiff in error.'

"So it is here, in our opinion, the state, acting in its legislative capacity, has, in the means adopted, exceeded the limitations of its power-its purpose being to take utterly away from complainants their constitutional right and privilege to teach in the grammar grades, and has and will deprive them of their property without due process of law."

NOTES OF IMPORTANT DECISIONS

REGULATION OF THEATER TICKET BROKERS.-The Act of the New York Legisla ture (Laws 1922, Ch. 590) requiring persons engaged in the business of reselling tickets of admission to theaters and other places of amusement to procure licenses, and prohibiting them from reselling tickets for more than fifty cents above the regular price, has been held valid in the case of People v. Weller, 237 N. Y. 316, 143 N. E. 205.

Statutes and ordinances prohibiting the resale of theater tickets at an advance over the price printed on such tickets have been held unconstitutional in People v. Steele & Altschul, 231 Ill. 340, 83 N. E. 236; 14 L. R. A. (N. S.) 361, 121 Am. St. Rep. 321; City of Chicago v. Powers, 231 Ill. 560, 83 N. E. 240; Ex parte Quarg 149 Cal. 79, 84 Pac. 766, 5 L. R. A. (N. S.) 183, 117 Am. St. Rep. 115, 9 Ann. Cas. 747. All these decisions are to some extent based upon the view that in effect the purpose of the statute was to fix prices. See dissenting opinion in German Alliance Ins. Co. v. Lewis, 233 U. S. 389, at page 431, 34 Sup. Ct. 612, 626 (58 L. Ed. 1011, L. R. A. 1915C, 1189). In all these cases the reasoning of the court seems to rest upon two premises: First, that the business of conducting a place of amusement is essentially a private business and the Legislature has no more power to fix the prices that may be demanded or received in that business than it would have to regulate the price that may be demanded or received by a tailor, an artisan, or a merchant upon the sale of services or commodities. Second, that the business of reselling tickets of admission is a lawful business performing a useful service and that any person carrying on such business should be left free to contract for the performance of such service with any person who desires to avail himself of the service afforded by such business.

The New York court did not consider the first of these propositions, as the Act before it does not attempt to regulate the price of tickets sold by proprietors of places of amusement.

Relative to the question of liberty to contract, the court in part said:

"The same respect for individual liberty, which should ordinarily deter the Legislature from an attempt to restrict freedom, might under special circumstances impel the Legislature to seek a remedy for conditions which, unless controlled, will leave the patrons of the theater 'to the mercy of speculators.' The liberty of the individual citizens to contract freely should be jealously guarded even from encroachments by the state, and where barter is free and demand creates supply perhaps economic laws and not the fiat of the state is the proper corrective of exorbitant prices; but where the liberty of the individual citizen to contract freely has been restricted by the circumstance that a man or group of men has obtained control of the supply of a commodity which the public desires or commonly uses, and this control is used to compel the individual to pay any price which may be demanded though that price be far beyond the price which would be fixed by free contract between consumer and producer, a legislative mandate which regulates the exercise of the compulsive force may in effect restore and not diminish the liberty of the individual.''

CONTRACT FOR SERVICES FOR ONE YEAR COMMENCING THE FOLLOWING DAY AS BEING WITHIN THE STATUTE OF FRAUDS.-The case of Dykema v. Story and Clark Piano Company, 220 Mich. 600, 190 N. W. 638, 27 A. L. R. 660, holds that an oral contract of employment for one year, the term of which might have commenced on the day following that on which the contract was made, is not within the statute of frauds, since it is capable of performance within one year. In this case the contract was made on October 21st, 1920, and the employee could have commenced performance of his contract on October 22nd. Had he done so he would have completed performance of the contract October 21st, 1921. This, the court held, would have been within a year from the day it was entered into.

According to a note in 27 A. L. R. 665, the rule is uniformly adhered to that such a contract is not within the statute. The English case of Cawthorne v. Cordrey, 13 C. B. N. S. 405, 143 English Reprint 161, holds in accordance with the rule above stated. So also is the case of Smith v. Goldcoast and A. Explorers (1903), 1 K. B. 285, 72 L. J. K. B. 235, 83 L. T. 202. The Smith case seems to be the latest English case on the subject.

The wording of the statute relative to these contracts relates to agreements that are not to be performed within one year from the making thereof. The word "from" would seem to indi

eate that the year in contemplation is one commencing on the day next following that on which the agreement is entered into. This accords with the rule that the law does not take notice of fractions of a day, and that in such instances the day on which the agreement is made is excluded. It is so held in Dickson v. Frisbee, 52 Ala. 165, 23 Am. Rep. 565.

There are some early New York cases, Levison v. Stix, 10 Daly 229; Jonap v. Preger, 59 Misc. 187, 110 N. Y. Supp. 483, 113 N. Y. Supp. 519, which hold that such a contract is within the statute of frauds, but the later cases in that state follow the rule that a contract for a year which begins on the day following that on which it is made is not within the statute of frauds. Prokop v. Bedford Waist & Dress Company, 187 App. Div. 662, 176 N. Y. Supp. 376; Landman v. Gerstner, 174 N. Y. Supp. 202

ZONING ORDINANCE HELD INVAILD.--A village zoning ordinance restricting the class of buildings which may be built within certain distances from designated streets, and which as affecting complainant's property, consisting of a considerable tract of unimproved land, would prevent the sale and use of a large part of it for legitimate purposes, to which it would normally, because of its location, be devoted, with consequent substantial depreciation of its market value, is held, in Ambler Realty Co. v. Euclid, 297 Fed. 307, by the District Court, N. D. Ohio, E. D., void as depriving complainant of its property without due process of law, in violation of the Fourteenth Amendment, as well as in violation of provisions of the State Constitution of Ohio. We quote from the opinion of District Judge Westenhaver as follows:

*

*

"Nor, in my opinion, can it be doubted that the ordinance is void because its provisions are in violation of article 1, § 1, Constitution of Ohio, which provides, 'All men * have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property,' and of article 1, § 19, which provides, 'Private property shall ever be held inviolate,' and that, 'Where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money, and such compensation shall be assessed by a jury,' and also of section 1 of the Fourteenth Amendment to the Constitution of the United States, which provides, 'Nor shall any state deprive any person of life, liberty, or property, without due process of law.' In reaching this conclusion, I assume that the village of Euclid, by virtue of article 18, § 3, of the Constitution of Ohio, and section 4366-7 to 4366-12, inclusive, General Code of Ohio, possesses all the

police power sought to be exercised which the Ohio Legislature might properly confer upon a municipality.

"The constitutional validity of an ordinance of this nature under the Ohio Constitution has not been expressly passed on by the State Supreme Court. Euclid-Doan Co. v. Cunningham, 97 Ohio St. 130, 119 N. E. 361, L. R. A. 1918D, 700, involves merely building code restrictions of the kind usually enacted to prohibit fire risks and hazards and always and everywhere held to be within the state police power. Ohio Co. v. Rendigs, 98 Ohio St. 257, 120 N. E. 836, involves merely the power to prohibit the maintenance in a residence district of a business which upon the facts as well as by common experience either is or may become a nuisance, and exereises only the well-known power to abate existing nuisances or to prevent the creation of nuisances in the future. In Pontiac Co. v. Commissioners, 104 Ohio St. 447, 135 N. E. 635, 23 A. L. R. 866, it was said that the imposition of restrictions by the exercise even of the power of eminent domain upon property contiguous to a public park, some of which restrictions were akin to those now in question, would be a taking of property not for public use, and would violate the provisions protecting the right of property, already cited, of the Ohio Constitution.

"The argument supporting this ordinance proceeds, it seems to me, both on a mistaken view of what is property and of what is police power. Property, generally speaking, defendant's counsel concede, is protected against a taking without compensation, by the guaranties of the Ohio and United States Constitution. But their view seems to be that so long as the owner remains clothed with the legal title thereto and is not ousted from the physical possession thereof, his property is not taken, no matter to what extent his right to use it is invaded or destroyed or its present or prospective value is depreciated. This is an erroneous view. The right to property, as used in the Constitution, has no such limited meaning. As has often been said is substance by the Supreme Court: 'There can be no conception of property aside from its control and use, and upon its use depends its value.'''

UNAUTHORIZED ACTS OF INFANT'S AGENT.-It has sometimes been said that all of the contracts of an infant are voidable except two: (1) the contract of an infant for necessaries, which is binding; (2) the contract for the appointment of an agent, which is void (Fetrow v. Wiseman, 40 Ind., 148, 155).

The early cases seem to incline to the conclusion that the appointment of an agent by an infant was a void act. Of course, if void, it

could not be ratified by any subsequent act of the infant principal (Huffcut, Agency, pp. 56-58). Even in New York the early authorities made the sweeping statement that the appointment of an agent by an infant is a void act and that, therefore, all acts done by such agent in behalf of his infant principal are void (Bennett v. Davis, 6 Cow., N. Y., 393; Huffeut, Agency, 2d ed., p. 28). The later American cases, however, show a decided tendency to confine, if not indeed to avoid, this rule and to hold that the appointment of an agent by an infant is a voidable act rather than a void one (Patterson v. Lippincott, 57 N. J. L., 457).

This interesting question was recently passed upon and finally decided by the Court of Appeals in Casey v. Kastel et al. (237 N. Y., 305, 142 Northeastern Rep., 671). The lower court held (119 Misc., 116) that the act of an agent in appointing an agent for herself was totally void, and that the ratification consequently was not legally effective and that, therefore, anyone dealing with the property in reliance on the ap parent authority or the ratification was a converter (119 Misc. Rep., 116, especially at p. 123).

The Court of Appeals held, however, that the appointment of an agent by an infant is not wholly void, but merely voidable, discarding the ancient rule as illogical and unsound, and quoting, among other authorities in support of its conclusion, Professor Williston (see Williston on Contracts, vol. I, p. 444 et seq.; 237 N. Y., 305, especially at p. 310). An interesting discussion of the law is found in the Cornell Law Quarterly (vol. IX, pp. 333-334, April, 1924).

The opinion of the Court of Appeals, written by Judge Pound, contains the following discussion of this important modification of the old rule:

"The court below proceeded on the theory that it is the law of this state that an infant's appointment of an agent is void, and that it follows that an infant cannot, during minority, ratify the act of one who assumes to act as her agent. The rule is stated, but by way of dictum only, in Ely v. Ehle (3 N. Y., 506, 508), as follows:

"If an infant give or sell his goods and delivers them with his own hands, the act is voidable only; but if he give or sell goods, and the donee or vendee take them, by force of the gift or sale, the act is void, and the infant may bring trespass.'

"It is more definitely stated in Bool v. Mix (17 Wend., 119, 131; 31 Am. Dec., 285), as follows:

"The rule seems to be universal that all deeds or instruments under seal, executed by an infant, are voidable only, with the single