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what essential regard does a share of stock differ from these? For taxing purposes only it may be regarded separately from the property which makes it valuable. But after all, and essentially, it represents a liability of a corporation like a debenture does, and the evidence thereof the certificate thereforis negotiable like a debenture or other security negotiable in form. It is certain that a transferable policy of insurance or a transferable bill of exchange is as tangible a thing as a debenture or a share of stock, and yet they are, not commerce, but instruments of commerce, not protected by the commerce clause.

May you say an obligation by a corporation to issue to one a share of stock comes under the commerce clause? Surely not. Yet if the share is issued, repeatedly it has been held, that the certificate is not property but merely the evidence of property. Evidence of property is no more property, than an instrument of commerce is itself commerce. Nathan v. Louisiana, supra.

It is hard to see, that these cases, scant as they are in citing and discussing any cases distinguishing or modifying the broad declarations in Nathan v. Louisiana and in all the insurance cases from Paul v. Virginia, down to 231 U. S., supra, gave to the maxim they invoke of presumption of constitutionality of a state statute, the consideration it deserved. Possibly they may be affirmed but not upon any reasoning they submit. Surely if what they treat of are but instruments of commerce and not commerce itself, they lie in the domain of contractual rights subject to the police power of the state fully as much as the bank guaranty law of Oklahoma. The Lottery case and the Text Book case were said to involve "the transportation of property and were not mere personal contracts," like insurance policies and foreign bills of exchange. 231 U. S.. supra.

NOTES OF IMPORTANT DECISIONS

WITNESS-WAIVER OF PRIVILEGE AS TO CONFIDENTIAL COMMUNICATIONS.-— The United States Supreme Court, two justices dissenting, construes with great strictness an Arizona statute reading as follows: "A physician or surgeon cannot be examined, without the consent of the patient, as to any communication made by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by personal examination of such patient: Provided, that if a person offer himself as a witness and voluntarily testify with reference to such communications, that is to be deemed a consent to the examination of such physician." Arizona & N. M. R. Co. v. Clark, 35 Sup. Ct. 210.

In this case the plaintiff testified in regard to his injuries and called as a witness a nurse in attendance on him, who also testified as to the condition of an injured eye. It was contended that this amounted to a waiver in regard to examination of his physician as to facts learned by him in a physical examination. This claim was overruled by the trial court and its view is affirmed by Supreme Court.

Mr. Justice Pitney said in effect there was only a waiver as to any "communication" made by the patient to the physician, but the door was not opened for the latter to testify in regard to all he could ascertain by a physical examination. It was said: "The chief policy of the statute is to encourage full and frank disclosures to the medical adviser by relieving the patient from the fear of embarrassing consequences."

We fail to see any reason for dwelling thus literally upon the statute. The patient makes a communication in regard to his condition for the purpose of having the physician treat him and the physician is there to ascertain what basis of fact there is for his communication, and he makes a physical examination. If he finds the patient's communication not resting on fact he ought to be allowed to testify in regard thereto. But if he states the fact of his condition to the jury and it is drawn out on cross-examination that he told a physician about it, this ought not to open the door for the latter's testimony to contradict the communication. It ought not to be deemed a voluntary statement by the patient when it is drawn out in this way. There is nothing voluntary about it and to call it thus is in effect to wipe out a patient's free exercise of his privilege. We can imagine that in one jurisdiction such questions might be ruled outside of the rules of

cross-examination, and in another inside of

them.

But if a patient voluntarily states that he told his physician certain things, this would open the door for testimony by a physician to rebut its truth, whether by stating that he did not do this or that he did not speak the truth when he did. While he cannot use the physician to bolster up his statements, contrariwise his opponent may not force him to testify as to this for the purpose of rebutting them. The rule ought to be that in injury of this kind cross-examination ought to entail on the inquirer the penalty of being bound by the answer obtained. See 77 Cent. L. J. 264.

INDICTMENT-AVERMENT IN LARCENY THAT OWNER OF PROPERTY WAS UNKNOWN.-The Supreme Court of New Mexico holds that where no objection for variance was raised in the trial court because the proof failed to show, as alleged in an indictment for larceny, that the owner of alleged stolen property was unknown, it will not be considered in appellate court, this ruling being made on rehearing, on motion by the state. State v. Klassner, 145 Pac. 679.

This ruling, whether on the basis of variance or lack of proof seems correct on the theory of substantial justice having been done, but we wish to call attention to what the court says is the burden on the prosecution under such an indictment.

It says: "The true rule is: Where the name of the owner of an alleged stolen animal is alleged in the indictment to be unknown, it is not incumbent on the state to prove in the first instance that such fact was unknown to the grand jury; but it must show that such name is unknow or prove such a state of facts or circumstances as render the alleged unknown fact uncertain, in which event such fact is presumed to have been unknown to the grand jury; but if there is evidence tending to show that the grand jury did know, or could by the exercise of reasonable diligence have known or ascertained the name of the true owner, or that it was negligent or perverse in not alleging what was at its command to know, then the burden was upon the state to show that the grand jury did not know such alleged unknown name."

All of this, we think, wholly beside the mark. The only reason for alleging ownership is that it is necessary to aver ownership in another as part and parcel of intent to commit a theft, and that cannot be done unless the indictment describes the property in some exclusive way so a conviction or acquittal thereunder will bar any subsequent prosecution for the same larceny. If the proof in a case, therefore, shows

that a verdict in a case successfully may be interposed to any further prosecution, the intent of the averment of ownership or its absence is met. The very fact that the averment of ownership is sometimes excused shows this is but as aider in description or identification of property and nothing more.

RELEASE-WRITING SHOWING COVENANT NOT TO SUE.-The Supreme Court of Errors of Connecticut discusses very interestingly the question whether a certain writing operated as satisfaction or as merely a covenant not to sue one of several joint tortfeasors. Dwy v. Connecticut Co., 92 Atl. 883.

One of the instruments considered in this case expressly reserved the right of releasor to sue "any other party or parties" and the other said "I make no claim against any employer or hereby reserving my right to sue any other party or parties." Both instruments were under seal.

It is shown that many courts go upon the theory that "the main purpose of the releasor is the release, and that anything destructive of that purpose, is so repugnant to the main provision, that it must be disregarded." And there are cases which repudiate this doctrine.

Speaking of the latter class of cases, it is said: "They have adopted as the true rule of construction the reasonable one that the entire writing should be examined to discover the intent and meaning of the parties, and have held that when that intent has been discovered effect would be given to it."

These two instruments referred to the same transaction, and both were ruled expressly to reserve the right to sue and it need not to have been in strict technical language.

There was a concurring opinion as to the result, but a dissent to the reasoning whereby this result was reached. This opinion says: "I am unable to reach this desirable end by construing the language 'I hereby release and discharge Ley & Co. from all claim for damage' to be a covenant not to sue Ley & Co., and not a release of Ley & Co."

The writer of the opinion thinks that old ruling that a formal covenant not to sue was necessary, because "this rule of law was established by the courts because it then seemed to bring about what should be done according to the then established judgment of society. This judgment of society or custom was incorporated in a precedent, which thus became law." Now he thinks "Time has proved that the rule we are considering is wrong in principle and in operation promotes injustice."

While we believe in adhering to precedents, yet where these are not of the kind that reliance upon them affects property rights they are subject to modification in another age. Tortfeasors are not supposed to rely on property rights in the commission of torts. These are not acts supposed to be performed in reliance upon personal or property rights, but rather in defiance of such rights. Therefore we agree with the dissentient that there is no need for us to look to nicety of old forms, especially when the effect of what is res inter alios acta is being interpreted.

PROMISES OR PLEDGES OF A CANDIDATE FOR OFFICE AND HIS ELIGIBILITY; QUALIFICATIONS

markable proposition that a contract may be predicated upon ante-election promises, entitling a voter to restrain the promisor from violating such promises. If the defendant may be restrained from advocating a measure which violates an ante-election promise he might also be made subject to a mandatory injunction compelling him to affirmatively live up to such promise. The student of politico-legal science may discover a fertile field for research and thought in the study of the interesting question as to whether any legal method may be devised for compelling public officials to live up to the platforms of principles upon which they

were elected."

It is not intended herein to discuss gener

OF THE VOTER, PRIMARY ELEC-ally the substantive law or the procedure of TIONS; AND THE JURISDICTION

OF THE COURTS WITH REFERENCE THERETO.

This multiple subject is suggested by the opinion in the case of O'Reilly v. Mitchell,1 in which it is held that an ante-election promise of the candidate does not give the voter a right to restrain the successful candidate, as an officer, from violating his promises when a candidate. Omitting the statement of facts, the following is the opinion. (Italics by the writer).

"The novel theory is presented in behalf of the plaintiff that the defendant's anteelection promises constituted a contract between him and the voters of the municipality not to encourage during his term of office as mayor the passage of any state law looking

to the amendment of the Civil Service Act, and that this breach of the contract entitles the plaintiff to an injunction enjoining the defendant during his term of office as mayor of the city of New York from advocating the repeal or change in the laws and charter provisions with respect to the Civil Service Law in force at the time when he was elected. The authorities cited by the learned counsel for the plaintiff do not in the remotest degree tend to establish the re

(1) 148 N. Y. Supp. 88.

contested elections, or the general qualifications of voters, but simply to cite or review some of the decisions of the courts which present peculiar phases relative to the subject.

Eligibility to Office-It is the general rule that a person who is not a qualified elector is not eligible to an elective office, and in many instances not eligible to an ap

pointive office. Thus, in State ex rel Gray

eligible to the office of notary public, since

v. Hodges2 it was held that a woman is not

she did not have the right at common law, and it has not been given by the constitution.

Probably most of the states have constitutional or statutory provisions that make a candidate for public office ineligible if he has procured, or has been particeps criminis in procuring, his election by fraud, bribery or other willful and corrupt violation of the election laws. Some of the states make conviction of such offense literally the disqualification to hold the office sought. Thus, the constitution of Arkansas of 18743 provides "Any person who shall be convicted of fraud, bribery or other willful and corrupt violation of any election law of this state shall be adjudged guilty of a felony,

(2) 107 Ark. 272. (3) Art. 3, sec. 6.

and disqualified from holding any office of trust or profit in this state." Under similar constitutional or statutory provisions, the candidate for office has been held ineligible where he made certain promises to effect that he would serve the public for less compensation than that provided by law, if he should be elected. Thus, in the case of State ex rel v. Collier it was held: "A public offer by a candidate for public office to the electors, to perform the duties of the office for less than the legal salary or fees, invalidates his election."

In this case, it seems that a candidate for the office of Probate Judge offered to take for his own use less than the salary and fees allowed by law and the appellate court held this offer to be a species of bribery, disqualifying the candidate. Mr. Chief Justice Sherwood, speaking for the Court after citing cases, says: "For if bribery in its larger sense, in its application to election cases, is the promise by the candidate to donate, if elected, a sum of money or other valuable thing to a third party, the promise in the case at bar ought to be held as falling within the same category, since though the suitors who may have to appear before the candidate when judge of Probate, cannot in the nature of things be designated, yet the corrupting tendencies of the offer remain the same; remain to swerve the voter from his duty as a citizen; to blind his perceptions as to the sole question he should consider, the qualifications of the candidate, and to fix them upon considerations altogether foreign to the proper exercise of the highest right known to freemen, the right of suffrage; a right upon whose absolutely free and untrammelled exercise depends the perpetuity of our republican institutions. The transaction of which the state in the present instance complains may have been entered into with laudable motives, but it is, as we think has been successfully shown, decidedly demoralizing in its tendencies, and utterly subversive of the plainest dictates of public policy."

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In the case of Carrothers v. Russell," the head note states: "An offer made by a candidate for a public office for the purpose of gaining votes, that if elected he will pay into the public treasury all the fees of the office above a certain sum, invalidates his election and disqualifies for the office."

Mr. Chief Justice Adams, speaking for the court, said: "The question presented is as to whether a promise by a candidate for a county office to pay into the public treasury, if elected, a part of his compensation, where such promise is made to electors with the intent to induce them to vote for him, should be held to disqualify him to hold the office.

"The Code, No. 692, provides that an election to a county office may be contested, "when the incumbent has given or offered to any elector any bribe or reward in money, property, or thing of value for the purpose of procuring his election.'"

The Chief Justice, citing many authorities, said in the opinion: "If an offer like the one in question, when acted upon by a voter, becomes to him a bribe, it is, when not acted upon, the offer of a bribe, and under our statutes the offering of a bribe by a candidate disqualifies him for the office. In our opinion the offer made by the incumbent was the offer of a bribe, and that by such offer he became disqualified for the office."

There are other cases in which it has been held that campaign or pre-election promises did not absolutely disqualify the candidate for holding office but such matters should be taken into consideration in election contests or actions by quo warranto in determining whether such promises influenced a sufficient number of voters to render the returns doubtful, or as to excluding votes shown to have been cast under the influence of such promises. Some of the cases are cited under the following subdivision of the subject:

Qualifications of the Voter-Suffrage is not a natural right, but a political privilege

(5) 53 Io. 346, 36 Am. Rep. 222.

and is held only by those to whom it is granted, and qualifications of voters prescribed by the constitution, the legislature cannot conflict therewith.®

In the Newell case supra, where a candidate for a county office announced in a circular to the voters and taxpayers that he was willing to discharge the duties of the office for a less salary than that established. by law, it was held that such offer was illegal, and that votes influenced by it should be rejected.

fact showing that the relator or any of the
voters of the county had been guilty of the
criminal offense of bribery, and the ques-
tion is, whether any acts short of that will
justify the rejection of votes cast for the
relator." The court, after citing cases, fur-
ther says: "The doctrine which we think is
established by the foregoing authorities, and
which we believe to be sound in principle,
candidate for a
is, that a vote given for
public office in consideration of his prom-

is void. The power to reject such vote is not vested in the election canvassers, but is vested in the court which is called upon to determine judicially the result of the election."

ise, in case he shall be elected, to donate a sum of money or other valuable thing to a It seems that the relator in his candithird party, whether such party be an indidacy announced in his circulars that if elect-vidual, a county, or any other corporation ed he would serve for less than the salary fixed by law and would also bear individually certain office expenses and furnish equipment which the law provided should be at the public expense. The court speaking through Mr. Justice Lyon, said, among other things: "Had the relator offered the same or any other sum of money, or any property, to individual electors of the county for their votes, all votes which he obtained thereby would be rejected by any court called upon to determine his right to the office; and although the election might not be declared void because of such offer, yet if the number of votes so rejected were sufficient to change the result of the election judgment would go against the relator.

The case we have supposed involves the crime of bribery, but that term has a more extensive signification. It may properly be employed to define acts not punishable as crimes, but which involve moral turpitude or are against public policy. In this case the answer does not contain allegations of

(6) Gougar v. Timberlake, 148 Ind. 38, 62 Am. St. Rep. 487; Kansas City v. Whipple, 136 Mo. 475, 58 Am. St. Rep. 657; State v. Findlay, 20 Nevada 198, 19 Am. St. Rep. 346; Attorney General v. Common Council Detroit, 78 Mich. 545, 18 Am. St. Rep. 458; Spencer v. Board of Registration, D. C., 29 Am. Rep. 582; Blair v. Ridgely, 41 Mo. 63, 97 Am. Dec. 248; State ex rel v. Purdy, 36 Wis. 213, 17 Am. Rep. 485; Coggeshall v. City of Des Moines, 138 Iowa 730, 128 Am. St. Rep. 221; State v. Church, 5 Ore. 375, 20 Am. Rep. 746; Morris v. Colorado Midland R. R. Co., 48 Colo. 147, 139 Am. St. Rep. 268; Whittaker v. Watson. 68 Ark. 555; Walls v. Brundidge, 109 Ark. 250.

"Promises made to the people by candidates for public office, that, if elected, they will practice a rigid economy in the expenditures of their several departments, are unobjectionable; and if the successful candidate fulfills his pledges in that behalf, he is entitled to commendation. In such case, the candidate only promises to perform a legal and moral duty. For example, should a candidate for governor promise that, if elected, he would discharge all persons employed by the state whose services are not needed, or that he would prevent all unnecessary expenditures of public funds, so far as he may have power to do so, this is only a promise that, if elected, he will in those respects faithfully perform the duties of his office. In other words, it is a promise that he will not violate his official oath. But should such candidate propose to the voters and taxpayers of the state that if they will elect him to the office of governor he will serve the state therein gratuitously or for one-half of the salary allowed by the constitution, and pay the rent of an executive office and the expense of fuel, stationery and other incidentals pertaining thereto, out of his own pocket, his proposition has an entirely different aspect. In the one case the candidate promises that if he

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