Vigorous opposition, however, has been raised to the right of the second state to punish.10 In Commonwealth v. Macloon," the Massachusetts court upheld a conviction under a statute which made the homicide punishable where the death occurred, though the wounds were given in a different jurisdiction.12 Mr. Bishop in his treatise on criminal law 13 contends, first, that no act is committed within the territory of the Massachusetts sovereign and therefore no basis is created upon which he may inflict punishment; and secondly, that the statute violates the law of nations inasmuch as it in effect makes the defendant answer for an act which took place without the state. Neither objection seems tenable. True, no new independent act takes place in the second state, yet the force which the defendant set in motion outside the jurisdiction continues to operate unabated within the state until the death. The forces have not come to rest and the state may punish for what the defendant has caused within its territorial limits. Again, the statute in its true interpretation does not attempt to make striking the blow the crime causing the death is the event which it seeks to punish. A California case 14 can be supported only on this line of reasoning. A box of poisoned candy was sent from California to the victim, who partook of it in Delaware and there died from the effects. He was tried and convicted for murder under a statute in California. In this case the first event in the train of causation was made punishable by the legislature; in Commonwealth v. Macloon it was the last event. Furthermore, no rule of law prevents the legislature from calling either event murder or manslaughter and affixing to it the punishment and consequences that flow from either crime. Undoubtedly the defendant in these cases is open to double punishment since both state A and state B may bring separate indictments. Yet no established principle of international law denies the right of more than one state to punish the defendant, when his act constitutes a violation against the peace and dignity of several states." The principal case, though devoid of the international aspect, is governed by the above discussion in view of the constitutional provision limiting the right to change the venue in criminal prosecutions. The statute laying the venue either in county A or county B can be properly interpreted as making either the blow or the death the punishable offense, a trial in one county precluding further prosecution in the other. Taking that view, the trial in the principal case did take place where the offense was committed and the constitutional provision was in no way violated.

10 See BISHOP, NEW CRIMINAL LAW, 8 ed., 60, note; State v. Carter, 27 N. J. L. 499 (1859); State v. Kelly, 76 Me. 331 (1884).

11 IOI Mass. I (1869).

12 Similar statutes have been passed in other jurisdictions and have been sustained. See Reg. v. State, 7 Cox C. C. 277; Tyler v. People, 8 Mich. 320 (1860); Ex parte McNeely, 36 W. Va. 84, 14 S. E. 436 (1892); State v. Caldwell, 115 N. C. 794, 20 S. E. 523 (1894).

13 See BISHOP, NEW CRIMINAL LAW, 8 ed., 65, note.

14 People v. Botkin, 132 Cal. 231, 64 Pac. 286 (1901).

15 Cross v. North Carolina, 132 U. S. 131 (1889); Marshall v. State, 6 Neb. 120 (1877); State v. Stevens, 114 N. Č. 875, 19 S. E. 861 (1891).

ARE BONUSES TO SOLDIERS AND SAILORS GIVEN FOR A PUBLIC PURPOSE? A tax may only be levied for a public purpose. The government may take its citizens' property for its own requirements, but it may not take from one to give to another. However, like most general principles, the doctrine of public purposes is easy to state but hard to apply. In each case whether a tax is levied and the proceeds spent for a public purpose depends upon how far the public will be ultimately benefited. For instance, the government may pay salaries to its officials, but it may not loan money to private businesses. In the former case the public is directly benefited; in the latter, the ultimate public profit in the increased power of the private concerns to pay taxes is considered too remote. In one case the private benefit is incidental; in the other it is primary. But certain classes of appropriations are upheld where the public is only indirectly and indefinitely benefited. Such are gifts to charity.3 The promotion of patriotism is well recognized as a public purpose. And the legislature has generally been allowed a wide discretion in satisfying the moral obligations of the state, either where individuals have relied upon a promise extended by the government,5 or where civil employees have been injured, financially or physically," in the course of their service.

6

Gratuities to soldiers and sailors constitute an intermediate class of public appropriations which aroused considerable discussion at the time of the Civil War and are once again confronting the courts. If these gratuities take the form of bounties to encourage enlistments, they are clearly valid. Such bounties were very common in the Civil War, where each town had to raise a fixed quota either by enlistment or by draft. There was a definite public purpose in relieving other citizens from the draft and in aiding in the defense of the nation. A second type

1 Loan Association v. Topeka, 20 Wall. (U. S.) 655 (1874). This principle is either actually embodied or has been read into the Fourteenth Amendment and every state constitution. See 21 HARV. L. Rev. 277.

2 Loan Association v. Topeka, supra, Cole v. La Grange, 113 U. S. 1 (1884); Allen v. Inhabitants of Jay, 60 Me. 124 (1872). On the other hand, subsidies to railroads have generally been upheld on the ground that they constitute public highways. See GRAY, LIMITATIONS OF TAXING POWER, § 194, note 34, for a collection of cases.

3 Hager v. Kentucky Children's Home Society, 119 Ky. 235, 83 S. W. 605 (1904); State v. Edmondson, 89 Ohio St. 351, 106 N. E. 41 (1914); Denver & R. G. Ry. v. Grand County, 170 Pac. (Utah) 74 (1917); State v. Nelson County, 1 N. D. 88, 45 N. W. 33 (1890). See COOLEY ON TAXATION, 2 ed., 124. Contra, Lowell v. Boston, III Mass. 454 (1873).

United States v. Gettysburg Electric Ry., 160 U. S. 668 (1896); Daggett v. Colgan, 92 Cal. 53, 28 Pac. 51 (1891); Parsons v. Van Wyck, 56 App. Div. 329, 67 N. Y. S. 1054 (1900). See JUDSON ON TAXATION, 2 ed., § 386.

5 United States v. Realty Co., 163 U. S. 427 (1896); Woodall v. Darst, 71 W. Va. 350, 77 S. E. 264 (1912).

Leonard v. Inhabitants of Middleborough, 198 Mass. 221, 84 N. E. 323 (1908); Earle v. Commonwealth, 180 Mass. 579, 63 N. E. 10 (1910). See 21 HARV. L. Rev. 625.

7 Munro v. State, 223 N. Y. 208, 119 N. E. 444 (1918).

8 Taylor v. Thompson, 42 Ill. 1 (1866); Commissioners of Vermillion County v. Hammond, 83 Ind. 453 (1882); Lowell v. Oliver, 8 Allen (Mass.), 247 (1864); Crowell v. Hopkinton, 45 N. H. 9 (1863); Cass Township v. Dillon, 16 Ohio St. 38 (1864); Speer v. Blairsville, 50 Pa. St. 150 (1865); Brodhead v. City of Milwaukee, 19 Wis. 624 (1865). Bounties to drafted men were upheld in Booth v. Town of Woodbury, 32 Conn. 118 (1864).

11

of these gratuities that has never been questioned is the federal pension to those who have been disabled in the service of the United States." These pensions can be upheld 10 on two grounds: because they were promised before the war and so tended to encourage enlisting, and because the government is morally bound to aid those men who relied on its promise or were injured in its service. A third class of gratuities is represented by a recent Wisconsin statute,12 upheld in State v. Johnson,13 granting a bonus to every soldier or sailor who served in the late war on his discharge." These bonuses were not promised before the war, nor are they limited to those who have been disabled. They cannot, therefore, be supported on the same grounds as the bounties to encourage volunteers or the federal pensions. It is not a case of charity," since the bonuses are given to rich and poor alike. If the Wisconsin statute can be sustained at all, it must be on the ground that it tends to promote patriotism by encouraging others to follow the example of those who served.16 But it is a far cry to argue that the state's generosity will result in more volunteers for the next war,- such a public benefit is altogether too remote. In any case, from a pecuniary point of view there would be every reason to follow the example of the profiteer, no matter how large the bonus. As a means of encouraging patriotism a medal would seem more effective and permanent. In short it is difficult to see how such a statute will benefit the public in any way, directly or indirectly. It looks very much as if the state were taking from one citizen to give to another. It must, of course, be remembered that taxation is a prerogative of the legislature and that it should be sus

See 37 STAT. AT L. 112-113, 12 Stat. at L. 566–569, 1 Stat. at L. 95, 129, 244. 10 United States v. Hall, 98 U. S. 343 (1878); 1 Abb. 74 (1867). Cf. O'Dea v. Cook, 176 Cal. 659, 169 Pac. 366 (1917); People v. Abbott, 274 Ill. 380, 113 N. E. 696 (1916), in which police pensions were upheld as part compensation for services.

11 The Continental Congress originally declared its intention to grant pensions on August 26, 1776. See 5 JOURNALS OF CONTINENTAL CONGRESS, 702–705.

12 1919 WISCONSIN LAWS, c. 667.

13 175 N. W. 589 (Wis.) (1919). For a more complete statement of the facts, see RECENT CASES, p. 871.

14 Massachusetts has passed a similar act.

See 1919 MASSACHUSETTS Laws,

c. 283. Other states have provided for the distribution of medals or certificates. See 1919 DELAWARE LAWS, 673; 1919 NORTH CAROLINA LAWS, 503; 1919 NEBRASKA LAWS, 1030; 1919 NEW JERSEY LAWS, 711; 1919 NEW YORK LAWS, 220; 1919 VERMONT LAWS, 236. Others have exempted veterans from certain taxes. See 1919 CALIFORNIA STAT., 305; 1919 NEW JERSEY LAWS, 86, 91. Others have provided for free tuition. See 1919 MINNESOTA LAWS, 362; 1919 OREGON LAWS, 809; 1919 WASHINGTON LAWS, 129. And two states have urged Congress to provide a bonus. See ARIZONA LAWS, 397; 1919 INDIANA ACTS, 870. It is not stated whether financial or constitutional reasons prevented the latter two states from providing for their veterans themselves.

Compare 40 STAT. AT L. 1151, giving each soldier or sailor $60 on discharge. These bonuses may be justified as part compensation, a sort of "month's notice," or as an allowance to buy civilian clothes. A similar allowance is made for uniforms to those entering the service.

15 Compare Bosworth v. Harp, 154 Ky. 559, 157 S. W. 1084 (1913); Board of Education v. Bladen County, 113 N. C. 379, 18 S. E. 661 (1893).

16 See Opinion of the Justices, 211 Mass. 608, 98 N. E. 338 (1912), holding that a bounty as such was bad, but a testimonial to encourage patriotism was valid. The court further held that the declaration of purpose in the statute practically determined which the gratuity was.

tained by the courts unless clearly unconstitutional.17 It is one thing for the courts to consider a statute unwise and quite another to hold that the legislature has overstepped the limits of its discretion. But, as held by the slight weight of authority,18 there seems to be no sound ground upon which a bonus statute can be supported.

5

1

ESTOPPEL OF AN ATTORNEY TO ACT AGAINST HIS CLIENT. — In few fields has human inability to serve two masters been more clearly recognized or more scrupulously regarded than in the relation of attorney and client. The duty of an attorney to abstain from inconsistent employment was recognized very early in our law and, to the credit of the profession, few reported cases are found which involve a departure from professional faith and duty.2 Nor has this obligation been restricted merely to the duration of the relation.3 While the fact alone that he has once acted as counsel for a man will not bar an attorney from thereafter representing that man's adversary, this is true only when such service is consistent with, and not hostile to, the interests of the former. The test of consistency is ". . . whether accepting the new retainer will require him, in forwarding the interests of his new client, to do anything which will injuriously affect his former client in any matter in which he formerly represented him, and also whether he will be called upon, in his new relation, to use against his former client any knowledge or information acquired through their former connection." If the new service is inconsistent, he cannot act. And this rule is applicable to criminal as well as to civil proceedings. Thus, one who acted as counsel for a plaintiff in an action for malicious prosecution is disqualified to serve as prosecuting attorney against him upon a subsequent indictment for the alleged crime which was involved in that action. Conversely, a defendant in a criminal prosecution cannot be represented by an attorney who had previously, as solicitorgeneral of the state, instituted the proceeding against him. The recent

6

17 Jones v. Portland, 245 U. S. 217 (1917). See 21 HARV. L. REV. 277. 18 Mead v. Acton, 139 Mass. 341, 1 N. E. 413 (1885); Bush v. Board of Supervisors, 159 N. Y. 212, 53 N. E. 1121 (1899); Beach v. Bradstreet, 85 Conn. 344, 82 Atl. 1030 (1912). See 26 HARV. L. REV. 92. Contra, Brodhead v. City of Milwaukee, 19 Wis. 624 (1865); State v. Handlin, 38 S. D. 550, 162 N. W. 379 (1917). It should be noted that Brodhead v. City of Milwaukee, supra, relied principally upon Speer v. Blairsville and Booth v. Town of Woodbury, supra, note 8, neither of which seem in point. 1 MIRROUR OF JUSTICES, chap. 2, sec. 5.

2 Hatch v. Fogerty, 40 How. Pr. 492, 504 (1871).

3 In re Boone, 83 Fed. 944 (1897); People v. Gerold, 265 Ill. 448, 107 N. E. 165 (1914); Hatch v. Fogerty, supra.

Purdy v. Ernst, 93 Kan. 157, 143 Pac. 429 (1914); Messenger v. Murphy, 33 Wash. 353, 74 Pac. 480 (1903).

In re Boone, supra; Purdy v. Ernst, supra. See 1 FERGUSON, IRISH PRACTICE,

57, 58.

In re Boone, supra, 952. See also CANONS OF ETHICS, AM. BAR Ass., Sec. II (6). 7 State v. Rocker, 130 Ia. 239, 106 N. W. 645 (1906). And see Wilson v. State, 16 Ind. 392 (1861).

Gaulden v. State, 11 Ga. 47 (1851).

decision, People ex rel. Livers et al. v. Hanson et al., shows that the same principle applies in the case of the hybrid proceeding of quo

warranto.

Assuming then a case in which the attorney ought not to act, there still remains the problem of procedure. How is the client to protect himself against the adverse activity of his former counsel? An injunction will lie against the attorney.10 If he attempts to appear in court, he may be excluded by the court in the exercise of its plenary power over its officers, upon the motion of the former client." The Livers case,12 however, seems to have raised the point in a novel way. There, the fact of the state's attorney's prior inconsistent employment was set forth in the plea, and the Supreme Court of Illinois held the plea good. It seems going rather far to hold that it raises a good defense to a proceeding brought in the name of the people of the state, when the defendant pleads merely that the attorney presenting the claim of the people is disqualified. If an ordinary action at law were brought by A against B, surely a plea by B that A's attorney was disqualified would not be considered a good defense to A's action. And the fact that A is in this case the state, should not change the principle.

No authority is cited for the procedure in the Illinois case. Cases which in the past seem to have tended in that direction fall far short of its result, and are clearly to be distinguished. The case of Berry v. Jenkins 13 is very unsatisfactorily reported, but it seems clear that the plaintiff in that case must have assented to the dismissal of the proceedings, which distinguishes the case. In the case of Provident Institution for Savings v. White,14 a bill of interpleader filed by the attorney for one of the defendants, who purported to act for the plaintiff as well, was dismissed by Gray, C. J., the equity rules of the Massachusetts court forbidding an attorney to act in this dual capacity. But that case, too, is distinguishable, since it expressly goes upon the ground that the attorney was not authorized by the particular plaintiff to file the bill in his behalf, whereas this state's attorney had clear authority to act for the people of the state.15 Perhaps a North Carolina case 16 is more closely analogous to the case in hand. There an attorney acted for both parties to a controversy and upon his motion judgment was entered against one of them in favor of the other. The former was allowed to vacate the judgment. Yet the distinction between the cases is surely clear. In that case, the attorney acted for both parties at the same time and the defendant did not have the benefit of independent counsel;

9 125 N. E. 268 (Ill. 1919). See RECENT CASES, p. 859.

10 Earl Cholmondeley v. Lord Clinton, 19 Ves. 261 (1815).

11 Bowman v. Bowman, 153 Ind. 498, 55 N. E. 422 (1899); Commonwealth v. Gibbs, 4 Gray (Mass.), 146 (1855).

12 Supra, note 9.

13

3 Bing. 423 (1826). The complete report of that case is, "The attorney for the plaintiff having put in bail for the defendant, and having acted on both sides, deluding the parties and preventing an interview, the court, on the motion of Wilde, Serjt., set aside the proceedings, and made the attorney pay the costs."

14 115 Mass. 112 (1874).

15 ILL. REV. STAT. 1874, p. 787.

16 Wilson Cotton Mills v. Randleman Cotton Mills, 116 N. C. 647, 21 S. E. 431 (1895).