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At the outset it is to be noticed that the practice of the judiciary to declare statutes unconstitutional is not the necessary concomitant of a written constitution, but certainly it is much too late to question the settled existence of this power in our American courts. Its tremendous importance and the danger of injudicious exercise, however, have found recognition in the chain of safeguards with which the courts have surrounded it. For example, there is the well-settled principle that a constitutional point, though squarely raised, will not be determined if the case can be disposed of on another ground; the rule that a statute is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt; and finally the rule that no one is permitted to attack a statute who is not directly affected by its operation."

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This last-named rule has had its effect upon the relation of executive officials to statutes the validity of which is in question. In general, it may be said that it is the duty of a ministerial officer to assume that the legislature has not exceeded its authority and act accordingly, since in a mandamus proceeding he will not, by the weight of authority, be permitted to defend on the ground of the unconstitutionality of the statute, his interest being conceived of as too remote. To allow every petty official to set himself up as a judge would obviously be a serious menace to any orderly scheme of government. On the other hand, one is confronted with the oath to support the Constitution required of public officers. But since the Constitution needs for its support the expeditious enforcement of the laws quite as much as the non-enforcement of what are not laws, query whether in the long run it will not be better served by unhesitating obedience to the legislature rather than recalcitrant tactics on the part of officials. The answer depends to some extent

2 See "The Origin and Scope of the American Doctrine of Constitutional Law" by the late James B. Thayer, in 7 HARV. L. REV. 129, 130. See also 9 HARV. L. Rev.

277.

The leading case is Marbury v. Madison, I Cranch (U. S.) 137.

Ex parte Randolph, 2 Brock. (U. S.) 447.

Comm. v. Smith, 4 Bin. (Pa.) 117; So. Morgantown v. Morgantown, 49 W. Va. 729, 40 S. E. 15.

6 Williamstown v. Carlton, 51 Me. 449; Supervisors v. Stanley, 105 U. S. 305; Sinclair v. Jackson, 8 Cow. (N. Y.) 543; Comm. v. Wright, 79 Ky. 22.

7 Ames v. People, 26 Colo. 83, 56 Pac. 656; State ex rel. Cruce v. Cease, 28 Okla. 271, 114 Pac. 251; Thoreson v. State Board of Examiners, 19 Utah 18, 57 Pac. 175; s. c. 21 Utah 187, 60 Pac. 982; Franklin County Comm'rs v. State ex rel. Patton, 24 Fla. 55, 3 So. 47; Comm. v. James, 135 Pa. 480, 19 Atl. 950; Smyth v. Titcomb, 31 Me. 272; People ex rel. Atty. Gen. v. Salomon, 54 Ill. 39; State ex rel. New Orleans Canal, etc. Co. v. Heard, 47 La. Ann. 1679, 18 So. 746. The leading case contra is Van Horn v. State ex rel. Abbott, 46 Neb. 62, 64 N. W. 365.

An exception, however, is generally made where the officer defending will incur liability by acting under the void statute, as in the case of an auditor who is compelled to pay out money. Denman v. Broderick, 111 Cal. 96, 43 Pac. 516. But see Smyth v. Titcomb, 31 Me. 272, 286. The acts of a commission, however, would not, it is submitted, be likely to be of this character.

But even a state auditor or similar officer would have no appeal to the federal courts, although it is the federal Constitution which the statute in question is claimed to contravene. See Braxton County Court v. West Virginia, 208 Ū. S. 192, discussed in 21 HARV. L. REV. 438. See also Smith v. Indiana, 191 U. S. 138.

* See People ex rel. Atty. Gen. v. Salomon, 54 Ill. 39, 46.

at least on the servant's chances of arriving at a correct conclusion on the question of constitutionality.9

In addition to courts and executive officials, there is another type of governmental agency to which conceivably a question of constitutionality might be presented — namely, an inferior legislative body as, for example, a municipal corporation.10 The course of action which such an organ should follow seems clear. The judicial and executive departments enjoy the distinction of being coördinate with the legislature; whereas this body is plainly subordinate, a creature of the legislature purely and simply. The legislature's mandate should be its gospel." Having examined the relation of the executive, judicial, and legislative branches of the government toward questions of the validity of statutes, the writer's task now becomes a mere matter of indexing a commission in our tripartite scheme of government does a commission function as a legislature, an executive, or a court? The line of demarcation between the first two cannot be drawn with chiseled nicety; one must be content with perceiving that a commission more nearly resembles an executive body. But for the purposes of our immediate problem it is unnecessary to pursue the inquiry thus far; we may stop when we have negatived the likelihood of a commission's being a judicial body. Some of the more important reasons may here be noticed. The personnel of a commission seems almost conclusive against its judicial character, composed entirely as it usually may be of individuals untrained in the law.12 From this fact one may argue directly, that is, aside from where a commission stands in the division of powers, against the propriety of its sitting on questions of constitutionality. A commission frequently appears itself as a plaintiff, or defendant — rather a strange rôle for a court.13 Furthermore its hearings are not conducted according to the technical rules of evidence.14 Both on principle and by the great preponderance of authority 15 a commission is not to be classified as a court, and since of the three so-called coördinate departments of government courts alone are entitled to declare statutes unconstitutional, it follows that commissions do not possess this power.

An examination of the decisions handed down by the Supreme Court of the United States between the dates October 13, 1915, and June 12, 1916, in cases involving the validity of statutes, disclosed the fact that in fifty out of fifty-nine instances the statute was held to be constitutional.

10 The notion that a legislature can under no circumstances delegate its powers has been abandoned. See GOODNOW, PRINCIPLES OF ADMINISTRATIVE LAW, 41. See also 21 HARV. L. REV. 205.

"A state legislature would seem to occupy a similar position toward the state constitution where doubts as to its conformity to the federal Constitution are raised. 12 The Interstate Commerce Act does not require the appointment of lawyers to the Commission. The Commission is at present composed of four lawyers and three non-lawyers.

13 See Peavey v. Union Pacific R. Co., 176 Fed. 409.

14 See 29 HARV. L. REV. 208.

15 Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 336; Kentucky & I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. 567; Interstate Commerce Comm. v. Cincinnati, U. O. & T. P. R. Co., 64 Fed. 981; Southern R. Co. v. Railroad Comm., 172 Ind. 113, 87 N. E. 966; State ex rel. Taylor v. Missouri Pacific R. Co., 76 Kan. 467, 92 Pac. 606. WYMAN, PUBLIC SERVICE CORPORATIONS, 1232, and 25 HARV. L. REV. 704. Cf. People ex rel. Railroad v. Willcox, 194 N. Y. 383, 87 N. E. 517.

RECENT CASES

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ADMIRALTY - EFFECT OF PAYMENT IN FULL BY AN ENEMY UNDERWRITER ON A PRIOR SEIZURE OF NEUTRAL GOODS. Goods belonging to a neutral, but insured by German underwriters, were seized by Great Britain. The underwriters paid the owners in full as for a constructive total loss, and now claim the goods or proceeds in the name of the neutral shipper. Held, that the proceeds be condemned as enemy property. The Palm Branch, [1916] P. 230. The original seizure was unjustifiable, for the goods were owned by a neutral. Yet the inevitable result of such seizure was the change to ownership by the belligerent underwriters. For the capture of goods insured against war risks is a primâ facie constructive total loss giving the owner the right to abandon. See Peele v. Merchants Insurance Co., 3 Mason (U. S. C. C.) 27, 52, 65. See 6 Edw. 7, c. 41, § 60, sub-sec. 2 (Marine Insurance Act.) And the underwriter is liable whether the capture is lawful or unlawful. Goss v. Withers, 2 Burr. 683, 695. An abandonment by the owner has two results: the insurer is entitled to take over the interest of the assured in whatever may remain of the property, and the insurer is subrogated to all the rights and remedies of the assured as from the time of the casualty causing the loss. See Stewart v. Greenock Ins. Co., 2 H. L. Cas. 159. See 6 Edw. 7, c. 41, § 79. Neither of these effects would seem to validate the original seizure. Subrogation in the present case should give the underwriters a perfect claim, although the court might well refuse to entertain their suit, pendente bello, because of their enemy citizenship. Cf. 28 HARV. L. REV. 312. And the underwriters' assumption of the shipper's title because of the capture could not retroactively justify the capture. Nor could a new seizure of goods or proceeds after the goods had been landed and sold be condoned in the face of the generally understood principle of international law that enemy goods in a belligerent country will not be confiscated. WESTLAKE, INTERNATIONAL LAW, Part II, 42. According to the rule in the present case, it would result that enemy-insured goods are as liable to confiscation as enemy-owned goods.

AGENCY - RESPONSIBILITY OF EMPLOYER FOR ASSAULT BY EMPLOYEE RELATIONAL DUTY. - An employee of a corporation which held itself out to diagnose, treat and furnish appliances for defective feet and limbs, feloniously assaulted the plaintiff during the course of a private examination made after the corporation had agreed to take the plaintiff's case. The plaintiff sues the corporation. Held, that she may recover. Stone v. Eisen Co., 219 N. Y. 205.

The theory of the plaintiff's complaint is tort. The court, however, granted a recovery on the basis of a breach of an implied term in the contract that the plaintiff shall be treated courteously. Undoubtedly, it is in accordance with the purposes of code procedure to allow a recovery if warranted on any theory of the facts. Bruheim v. Stratton, 145 Wis. 271; Cockrell v. Henderson, 81 Kan. 335, 105 Pac. 443; Connor v. Philo, 117 App. Div. 349, 102 N. Y. Supp. 427. But see Barnes v. Quigley, 59 N. Y. 265. But as a matter of substantive law the implication of such a term in the contract is pure fiction. The true basis of the decision must be found elsewhere. As the court seems to have recognized, it cannot be founded on pure agency doctrines. For acts which constitute an assault are, as a rule, outside the scope of a servant's employment and do not bind the master. Hardeman v. Williams, 150 Ala. 415, 43 So. 726. MECHEM, AGENCY, 2 ed., § 1977. But railroads, and according to some cases, innkeepers, themselves without fault, are held responsible for assaults by employees on passengers and guests. Craker v. Chicago, etc. R., 36 Wis. 657; Stewart v. Brooklyn, etc. R., 90 N. Y. 588; Chicago, etc. R. v. Flexman, 103 Ill. 546; Goddard v. Grand Trunk Ry., 57 Me. 202; Stanley v. Bircher's

Ex'rs, 78 Mo. 245. See also New Orleans, etc. R. v. Jopes, 142 U. S. 18, 27. The employer's duty which is violated in these cases is one based on the existing relationship. Delaware, etc. R. v. Trautwein, 52 N. J. L. 169, 19 Atl. 178; Chicago, etc. R. v. Flexman, supra. See also Gillespie v. Brooklyn Hts. R., 178 N. Y. 347, 352, 70 N. E. 857, 859; 28 HARV. L. REV. 620. The justification for imposing such an enlarged responsibility is found in the large degree to which the public in such situations surrender the care of their persons during periods of particular danger. Hayne v. Union St. Ry., 189 Mass. 551. See also Clancy v. Barker, 71 Neb. 83, 92, 98 N. W. 440. The true basis of the decision in the principal case must be along the lines of the doctrine just laid down. If so, it is an extension into what the court recognizes as private business of a relational responsibility hitherto confined to public service enterprises. But see Dickson v. Waldron, 135 Ind. 507, 35 N. E. 1. If it is recognized that the true test for such extension is the degree of danger and bodily surrender in each situation, there is no reason why this should not be done. It becomes then a question of fact and policy rather than of law. Thus, see Clancy v. Barker, 71 Neb. 83, 101, 98 N. W. 440; Clancy v. Barker, 131 Fed. 161, 165, 166, 172; Rahmel v. Lehndorff, 142 Cal. 681, 76 Pac. 659.

APPLI

CONFLICT OF LAWS EFFECT AND PERFORMANCE OF CONTRACTS CATION OF FRENCH MORATORIUM TO A CONTRACT TO BE PERFORMED IN ANOTHER COUNTRY. A bill of exchange was drawn and accepted in France, payable in New York. The holder sues on it in New York, after it is due according to its terms, but before it is due under the French moratorium. Held, that the bill is not due. Taylor v. Kouchakji, 56 N. Y. L. J. 813.

The authorities on what law governs the validity of a contract are in great confusion. Probably the most prevalent rule makes it depend on the intention of the parties. Hamlyn & Co. v. Talisker Distillery, [1894] A. C. 202. According to another line of cases the validity is governed by the law of the place of performance. Douglass v. Paine, 141 Mich. 485, 104 N. W. 781. Still a third rule makes it governed by the law of the place where the contract is made. Carnegie v. Morrison, 2 Met. (Mass.) 381. Theory as well as convenience would seem to support this last rule. See Joseph H. Beale, "What Law Governs the Validity of a Contract?" 23 HARV. L. REV. 1. For the same reasons, matters relating to performance should be governed by the law of the place of performance. Abt v. American Trust Savings Bank, 159 Ill. 467, 42 N. E. 856. Contra, Jacobs v. Credit Lyonnais, 12 Q. B. D. 589. So the sufficiency of the presentation and notice of dishonor of a negotiable instrument is to be determined by the law of the place where it is payable. Hirschfeld v. Smith, L. R. 1 C. P. 340; Pierce v. Indseth, 106 U. S. 546. Contra, Amsinck v. Rogers, 189 N. Y. 252, 82 N. E. 134. A moratorium does not affect the validity of any obligation. It simply says that the right to have payment on a certain date according to contract is a right to have payment only at a later date, according to law. It should therefore affect only such obligations as are to be performed in the jurisdiction which issues the moratorium. Roquette v. Overman, L. R. 10 Q. B. 525. If a moratorium is regarded merely as affecting the remedy, i. e., if the time of payment, both by contract and law, is the date agreed upon, but action for a breach is delayed, the principal case is the more clearly wrong, as such a question must surely be determined by the law of the forum. Great Western Telegraph Co. v. Purdy, 162 U. S. 329, 339. It seems pretty clear, however, that a moratorium affects the right of payment and not merely the remedy for a breach of such right.

CONFLICT OF LAWS - JURISDICTION FOR DIVORCE - NON-RESIDENT HUSBAND BRINGING ACTION IN STATE ALLEGED TO BE SEPARATE RESIDENCE OF WIFE. — In an action for divorce brought by the husband the jurisdiction of

the court was grounded on the alleged residence of the wife, and the residence of the husband was not pleaded. A demurrer based on lack of jurisdiction of the cause of action was sustained below. Held, that the judgment be affirmed. Aspinwall v. Aspinwall, 160 Pac. 253 (Nev.).

In England a wife is generally denied the possibility of a separate domicil. Yelverton v. Yelverton, 1 Sw. & Tr. 574. There is, however, a tendency away from the strict rule. See Niboyet v. Niboyet, 4 P. D. 1; Swathatos v. Swathatos, [1913] P. D. 46. In America a separate domicil for purposes of divorce is readily given to the wife. Ditson v. Ditson, 4 R. I. 87; Cheever v. Wilson, 9 Wall. (U. S.) 108. A few cases have permitted a separate domicil of a wife for purposes other than divorce. Shute v. Sargent, 67 N. H. 305; Matter of Florance, 61 N. Y. Sup. Ct. Rep. 328; Gordon v. Yost, 140 Fed. 79; McKnight v. Dudley, 148 Fed. 204. However, cases giving the wife a separate domicil seem to require that she leave her husband for good cause. See Suter v. Suter, 72 Miss. 345, 349, 16 So. 673, 674; Kendrick v. Kendrick, 188 Mass. 550, 555, 75 N. E. 151, 152. Applying this test to the principal case makes it appear that the husband must prove his own misconduct in order to make possible the separate domicil of the wife. This in turn defeats his action for divorce. It may perhaps be said that the wife's domicil when she sues for divorce need not depend upon having left her husband for good cause. See Williamson v. Osenton, 232 U. S. 619, 625. Such a rule would be advantageous, for in its absence a divorce decree may be overthrown on collateral attack on the ground of lack of jurisdiction, whenever a court takes a different view of the merits. But a domicil good for one purpose only is difficult to conceive and would seem to be nothing more than a privilege granted the wife on account of the necessity of the situation. Whether full faith and credit would be due a decision based on a jurisdiction of privilege only, is rather doubtful. But clearly, even under this view, the husband should not be allowed to make use of this privilege. The court seems to rely somewhat on a statute as requiring residence on the part of the moving party, but it is not clear that this is the meaning of the statute. See REVISED LAWS OF NEVADA, 1912, § 5838. Also cf. the principal case with Smith v. Smith, 15 D. C. 255.

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CONFLICT OF LAWS - RIGHT TO RECOVER FOR MENTAL ANGUISH DUE TO NEGLIGENT NON-DELIVERY OF INTERSTATE TELEGRAM APPLICATION OF INTERSTATE COMMERCE ACT. - Due to the negligence of the defendant telegraph company, a telegram sent by the plaintiff's husband from New Mexico was not delivered at its destination in Texas. The plaintiff, joining her husband, brought suit in Texas to recover for the mental anguish she suffered therefrom. Held, that she cannot recover. Western Union Telegraph Co. v. Smith, 188 S. W. 702 (Tex. Civ. App., 1916).

The plaintiff, as beneficiary of the telegram, notice of which was given the company by its context, is a proper party to maintain, independently, an action thereon for negligent non-delivery. Sherrill v. Western Union Tel. Co., 109 N. C. 527, 14 S. E. 94; Western Union Tel Co. v. Morrisson, 33 S. W. 1025 (Tex. Civ. App., 1896). The court in the principal case accepted the proposition as proven, that the law of New Mexico does not allow recovery for mental anguish. But recovery for such injury is allowed in Texas. Stuart v. Western Union Tel. Co., 66 Texas 580, 18 S. W. 351. There are at least three distinct views as to which state's law should govern. Many jurisdictions, conceiving the action to be ex contractu, hold with the principal case that the law of the place where the contract was made must govern. Johnson v. Western Union Tel. Co., 144 N. C. 410, 57 S. E. 122; Reed v. Western Union Tel. Co., 135 Mo. 661, 37 S. W. 904. Others hold that the law of the place of performance governs. See MINOR, CONFLICT OF LAWS, §§ 153, 160. Of the states taking this view, at least one regards the performance as being entirely within the state

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