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ter might be supposed to direct the proceedings when only the single ship was in danger, but not when adjoining property was to be protected. In the Ralli case the municipal companies are said to act in all cases by virtue of their public authority. If this is sound, and I think it is, every case in which fire companies have been employed and general average adjudged is an authority in favor of my contention.

I cannot close this discussion, long as it has been, without considering two points which are relied on in the decisions here reviewed.

Mr. Justice Field, in a passage of his opinion which is quoted with approval in the majority opinion in Ralli v. Troup, says: "The distinction between a fire put out by the authority of the master, or other person in command, and one put out by public authority is, we think, sound. When a ship has been brought to a wharf, so far as it had become subject to municipal control, if that control is exercised, we think that it stands no differently from any other property within the municipality over which the same control has been exercised; and that the general maritime law does not cover the reciprocal right and objections of the parties to the maritime adventure so far as the consequences of this control are concerned, but that they are to be determined by municipal law." By municipal law is here meant the law of things on land. I must confess my inability to follow this reasoning. That because there is no general average for damage to a house, there should be none for damage to a ship, if both are damaged by fire companies, does not seem to follow, any more than the converse, - that if a fire in a warehouse were extinguished by the fire-pumps of a ship, there should be a contribution.

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In the opinion of the Supreme Court a new point is introduced: That the sole object of the sacrifice must be the common good of the particular adventure; and therefore, if the fire companies acted, or may be supposed to have acted, in part with a view to saving the spread of the fire to other property, there can be no claim for general average.

If so, owners must be careful to instruct their masters not to indulge in any altruistic feelings in such cases.

No point is better settled in the law, both civil and criminal, than that if the legal character of an act depends upon the motive with which it was done, and that motive is found to have existed, the case is made out, no matter how many other motives may

have moved the actor in the same direction. I have already shown that the motive of a fire company in pouring water upon a fire is to put out that fire.

The law of general average does not, in my opinion, differ in this respect from the law applied in various ways to other subjects. The three cases cited by the court to establish a difference do not appear to have that effect. Two of them decide that strangers cannot be forced to contribute, as, for instance, if by cutting a cable the master saves his own ship, and thereby benefits another ship, he cannot claim contribution from the latter because it has no connection with the adventure of ship No. 1.1

It would seem to follow that if strangers are not to contribute for a benefit conferred on them, the intent to benefit them must be wholly immaterial. These two cases seem to favor my view, if they have any bearing at all upon the question.

The third case is The Mary. 2 In that case certain goods had been landed at a port of necessity, and were afterwards destroyed by fire. The evidence was that they were so much damaged that they must have been landed in any event; and also that the examination of the ship would have required them to be landed. Judge Sprague held that the value of the burned goods was not to be brought into the adjustment. No question was made about the extraordinary expense of the unlading itself, and no doubt the adjusters charged this to general average. The decision simply was that the loss could not be considered to have been voluntarily incurred, as it was one which would have occurred in any event. I do not consider that any question of sole motive was present to the mind of the learned judge. At all events, the case does not support the proposition that if the landing of the goods had conferred some possible benefit on a stranger, but was otherwise a subject for contribution between the parties to the adventure, that contribution would not have been due.

In a case in the House of Lords, 3 where a ship was wrecked on the coast of France, and the shipowner sent an agent from England, who incurred large expenses in landing and dealing with the cargo, partly for the purpose of saving the freight, and partly for

1 The John Perkins, 3 Ware, 89, and 21 Law Reporter, 87; The James P. Donaldson, 19 Fed. Rep. 264. The decision in this case is by Brown, J., who gives the dissenting opinion in Ralli v. Troup.

2 1 Sprague, 17.

Rose v. Bank of Australasia (1894), A. C. 687.

the general good of ship, freight, and cargo, and the trial judge had charged these expenses to general average, his judgment, which had been reversed by the Court of Appeal, was restored. No question of sole motive was raised in either court.

Considering the underlying principle of general average, which is that he who receives the benefit should share the burden, and that this has been applied to many cases where neither the master nor any one connected with the command of the adventure has ordered the sacrifice, as in the instances of captors, passengers, seamen, money awarded for a recapture, and for saving a derelict, and that even where the master acts, it is often rather as one in authority than as an agent for the owner of the cargo, I cannot but conclude with Mr. Justice Brown that "there is no distinction in principle between a sacrifice made by a master, and one made by authority of law, provided the common safety of the ship and cargo be the object of the action. "

J. Lowell.



WHEN a court of last resort not only overrules in effect three

direct adjudications made by itself, but also refines away

to the vanishing point two other of its decisions, and thereby cripples an important and necessary power and function of a coordinate branch of the government, and delivers an opinion in which is laid down a doctrine that is contrary to what has been accepted as law for nearly one hundred years, it is neither improper nor unprofessional carefully and earnestly to scrutinize that decision and the authorities and reasons upon which it is founded. Indeed, it is absolutely necessary to the science of jurisprudence and to the survival of correct legal principles that such a judgment should be subjected to analysis and to whatever criticism an examination of the reasons given for it may reasonably suggest. If it be demonstrably wrong, the consensus of opinion of the legal profession will in time work out the right. If it be demonstrably right, it will stand. As was said by Mr. Justice Gray and Judge Lowell on page 52 of their joint article, "A Legal Review of the Case of Dred Scott," which first appeared in 20 Law Reporter, 61, under the title "The Case of Dred Scott," and was afterwards printed in pamphlet form:

"We have freely exercised the right, which is allowed to every member of the profession, of controverting arguments and opinions advanced on any legal question by any individual, however distinguished by ability or position, so long as it is not judicially adjudged and settled. But upon the single point adjudicated, more deference is due to the deliberate judgment of the highest tribunal of the country. As two judges, however, and those not the least eminent, do not concur even in the judgment, we feel it to be our duty to examine the soundness of the positions upon which it rests.

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No case of recent times has occasioned so much discussion and notoriety as that of Pollock v. Farmers' Loan and Trust Company, 157 U. S. 429, and 158 U. S. 601, the so called "Income Tax Case."

That cause was a bill in equity filed in the Circuit Court of the United States for the Southern District of New York by a citizen

of Massachusetts, a stockholder of shares of a value greater than five thousand dollars in the respondent company, which was a corporation organized under the laws of the State of New York, and having its usual place of business in the city of New York, and certain sums of its capital invested in real estate and in municipal bonds of the said city, and in other personal property. The bill charged that the respondent was about voluntarily to comply with the provisions of sections 27-371 of the Act of Congress of August 27, 1894,2 which it alleged were unconstitutional, null and void,3 and if the respondent did comply with said sections of the said Act of Congress, it would be exposed to a multiplicity of suits; and the prayer of the bill was that it might be adjudged and decreed that sections 27-37 of the Act of Congress of August 27, 1894, were null and void; and that the respondent might be restrained from voluntarily complying with the provisions therein contained.

The respondent demurred to the bill for want of equity. The demurrer was sustained by the Circuit Court, which allowed an appeal directly to the Supreme Court of the United States.

Although it is nowhere so stated in the report of the case, the government of the United States was evidently allowed either to intervene or to be heard by the Court as an amicus curiæ.

Upon the first hearing and argument it was adjudged by a majority of the Supreme Court that so far as these sections attempted to lay and collect a tax upon income derived from rents, they were unconstitutional, as laying a "direct tax" within the meaning of the Constitution without apportioning it; and that also they were unconstitutional so far as they assumed to tax income derived from State and municipal bonds, as being a tax upon the instruments and govenmental functions of State governments,

1 A most satisfactory summary of these sections will be found in 157 U. S. 434, which lack of space forbids reprinting here.

2 28 Stat. 509, 553.

8 Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers. - United States Constitution, Art. I., sect. 2, clause 3.

The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.- Id., sect. 8, clause 1.

No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.- Id., sect. 9,clause 4.

No tax or duty shall be laid on articles exported from any State. — Id., sect. 9. clause 5.

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