Central Law Journal.

ST. LOUIS, MO., NOVEMBER 12, 1915.

PRESIDENT WILSON AND PROCEDURAL

REFORM.

President Wilson's specific recommendation, in his forthcoming message to the 64th Congress, of the modernization of judicial procedure would assure the success of the American Bar Association's campaign. The program simply has in view the transfer of the power to make rules of procedure from the legislatures to the courts.

The importance and rush of other mat ters, largely party policies, have heretofore crowded out of the President's message the consideration of the modernization of the courts. Yet it is one of the most fundamentally important matters confronting the American Nation. Indeed, how long will either peace or prosperity reign if faith in the courts be lost?

President Wilson's favorable attitude towards the Bar Association's campaign is well known and understood. The great American Bar does not appeal to him in vain. His speech before the Kentucky Bar Association, before he became a candidate for President has been often quoted. His late address at Springfield was equally emphatic. But, in order for the measure to be assured of Congressional attention, it should be specifically included in the President's message as a part of the coming legislative program. A majority of both Senate and House favor the necessary legislation. The House Judiciary Committee has unanimously recommended it.

An organized nation has been patiently awaiting action. Only a reactionary, here and there, has been heard to object. In nearly every commonwealth there are state

and district committees at work educating the people to the real cause of their unrest, and suggesting that they call upon their congressmen for relief. Willing enough to help, the answer always is that the program has no official recognition, although Democrats, Republicans and Progressives are in perfect accord. It is one of those measures in the interest of the public welfare that patriotic congressmen have not permitted to be politically exploited.

The Commercial Law League of America, the Chamber of Commerce of the United States, the Southern Commercial Congress, the Bar Associations of forty-five states, and the National Association of Credit Men, as well as hundreds of other organizations, have formally expressed themselves and are working in sympathy with the American Bar Association's Committee on Uniform Judicial Procedure. The demand is unique in legislative history.

And it is not amiss to remark that the greatest compliment ever paid any profession is found in the cheerful willingness of business men to adopt the program of their lawyers for simplifying judicial procedure. This is largely inspired by the magnanimous and unselfish spirit evidenced by the unanimity of the bar in support of this new method of reforming procedure. The new plan received the unanimous support of the American Bar Association and many state associations are equally active in supporting the propaganda.

Four years ago there was every appearance that business men would carry this important feature of government into politics. The demand for a statutory code and the "recall" was rampant and insistent. The chairman of the Committee on Uniform Judicial Procedure of the American Bar Association, Mr. Thomas W. Shelton, of Norfolk, Va., and Ex-President Taft, one of its members, have gone quietly over this country patiently and modestly carrying

home the truth until there has been won the confidence of the business men in the Bar Association's campaign. It has been learned that there is relief and that it lies in an equable division of power between the legislative and judicial branches of government. There will be peace and confidence when Congress shall set the Supreme Court free to regulate the detail procedure of the nisi prius courts. The administration of justice. will then become a duty of both judge and lawyer. It is sincerely hoped and it is believed that the President will embody in his forthcoming message the specific recommendation to Congress that the American Bar Association's program be promptly legislated into effect, that the Supreme Court may be empowered to do for the law side what it has done so well for the equity side of the federal courts.

The recent success of Mr. Elihu Root, in the New York Constitutional Convention of 1915, in persuading the convention to adopt the plan for reforming procedure recommended by the American Bar Association, is more than a personal achievement, it is an indication that the bar has awakened to its responsibilities in directing public opinion and while the people are not always willing to follow the advice of the profession rather than the wild appeals of selfserving demagogues, it nevertheless becomes the duty of the profession to assert its influence and leadership as never before.

NOTES OF IMPORTANT DECISIONS.

posing of a question which by a rule of necessity had to be decided by the court. It was a question of a public nature and it was not the fault of the judges that they were so intimately interested in the result. This interest should have been ignored, we saying, in effect, that had they pursued this course, the case should not return to plague them. We made no claim to being a prophet, but it seems that the case "came back."

In the later case, respondent Kirby was proceeded against for contempt and disbarment. He was counsel in the former case and he sent out a pamphet commenting on the opinion in McCoy v. Handlin. The particular thing for which he was proceeded against was his prediction that the court which had rendered such a decision would not dare to disbar an attorney who was a candidate for governor, in a proceeding that was pending against him on charges.

The language that the respondent used seemed somewhat open to explanation, but the court went back to this pamphlet and makes excerpts from respondent's brief in McCoy v. Handlin, in both of which occurred expressions of a contemptuous nature. What was said in the brief was not noticed in the opinion in McCoy v. Handlin, but in the proceeding against the respondent it was unearthed to explain his intent in the utterance for which he was proceeded against. Respondent was fined $500 for contempt and the disbarment proceedings were dismissed.

The South Dakota Court seems to have been greatly troubled by the respondent, both latterly and formerly, and it has borne with him apparently a long time, he having first been proceeded against in a case reported in 39 L. R. A. 856; and if any criticism might be made of its latest decision, it would be that it erred too greatly on the side of leniency. Respondent appears to have been running amuck with the public in his assaults upon the South Dakota Supreme Court, and it is rather surprising to see how anyone employing him could conclude that his methods probably would benefit his clients not that we suppose the court would be tempted to whip them over his shoulders. At all events, it might be considered bad policy to be represented by one, whom a court would not respect because he does not respect it. Credit for the possession of that ingenuousness which has its legitimate weight would hardly be accorded to such an advocate.

INTOXICATING LIQUORS-POLICE POWER PROHIBITING RECEIPT BY ANY PERSON FOR ANY PURPOSE.-The Supreme Court of Alabama first sustaining the constitutionality of the Webb-Kenyon Law, then holds that a state statute forbidding receipt from any carrier by any person of liquor beyond a certain amount in a certain period, of spirituous, vinous or malt liquors, is also the rightful exercise of legislation. Southern Exp. Co. v. Whittle, 69 So. 652.

The question considered by the court is said to be resolved by the following inquiry: "Is the police power of this state validly exerted, when, in promotion of the suppression of the evils of intemperance, the state enactment places a limitation in respect of quantity upon the possession or receipt of intoxicating liquors within its borders?"

The conclusion arrived at by the court is based greatly on Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, and, especially, on an expression therein, as follows: "If in the judg ment of the legisature the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts upon their views as to what is best and safest for the community, to disregard the legislative determination of that question." Thus we see, that not only may right to trade in liquor be restricted, but also there may be restricted the personal, private possession of property under the police power of the state, provided such private possession may by abuse, not reasonably possible to be guarded against, interfere with the protection of public morals, public health or public safety.

Considering the statute in question, it is said: "The law under review does not deny to consumer or consignee in 'dry territory' the right to receive or possess at one time what would seem to be an entire adequate quantity of the character of beverage here involved for the satisfaction or gratification of a reasonable appetite or desire for such liquors. Looking, as doubtless the legislature did, to the historic and more or less familiar fact that evasions of laws against the sale or other distribution of intoxicants are habitually undertaken by the lawlessly disposed, it was conceivable that the minimization of the quantity of whisky, etc.,

one might lawfully receive or possess in a 'dry territory' at one time, would render, directly, the lawful sale or other disposition less likely to occur." But, after all, it is seen, that one's personal rights are limited because another, and not he, may and probably will, be a lawbreaker. This is, at least, a very wide application of the police power.

CARRIER OF LIVE STOCK-LIMITATION OF LIABILITY NOT APPLICABLE WHERE LOSS WAS FROM CONVERSION OR WILLFUL CONDUCT.-Georgia Court of Appeals holds that: "A carrier cannot exempt itself by contract from the consequences of a tortious act committed through its agents or employes, though not liable as an insurer where it undertakes to transport live stock." N. C. & St. L. Ry. Co. v. Truitt, 86 S. E. 421.

This ruling proceeds on the theory that the commission of such tortious act amounts to abandonment of the contract of shipment, and there is an estoppel against insistence on a stipulation therein limiting liability of the carrier for loss in transportation.

It is said: "A carrier cannot exonerate himself from the fraud or felony of himself or his servants, and a contract will not avail if the act of the carrier or his servants amounts to misfeasance, though ordinary neglect alone in the course of the bailment will not deprive the carrier of the benefit of a contract fairly made, which it limits. Where there is a conversion the wrong-doer cannot take advantage of an agreed valuation of the property in order to lessen the amount of his liability.'

This case concerned the shipment of mules and the substitution of three of them by delivering three greatly inferior mules, SO different in appearance that the carrier must have noticed the substitution. In other words, though the mules delivered were not the same as those shipped, the substitution did not prove intent to convert, unless there was gross negligence in not observing they were not the same.

The principle announced by the court would seem easier of application in conversion cases than in others, unless every act of gross neglect in the caring for property being transported should be held to amount to conversion. If this is held, then the limitation of liability could be held to apply only to cases of ordinary negligence, a question finally for the Federal Supreme Court to determine when the limitation is as to an interstate shipment.

VICTIMS OF CRIMINAL ACTS AS POSSIBLE ACCOMPLICES OR CONSPIRATORS.

View that Victim May be Conspirator.A recent opinion by the Supreme Court of the United States, concurred in by six of the eight sitting members and dissented from by Mr. Justice Lamar and Mr. Justice Day, seems to me to support a rule quite important in the administration of criminal law. This rule, if carried to its logical end, would make all persons, whom the primary purpose of criminal statutes is to protect, under police power in its effort to guard public morality or other public interest, accomplices or conspirators, according merely to their individual capacity to commit crime, though the theory of such statutes be, that they are merely the victims of criminal acts denounced thereby.

This case showed an indictment against a woman for a conspiracy with another, for him to cause her to be transported from one state to another for the purpose of prostitution, in other words, a conspiracy between them to violate what is known as the Mann Act. The trial court sustained a demurrer

to the indictment on the ground that, though

the offense could not be committed without

her, she was no party to it, but only the victim. This ruling is reversed on writ of error by the United States.

We might here observe that, if the woman' could participate in any violation of the Mann Act by consenting to her own transportation in interstate commerce, Congress ought to have embraced her in its provisions. That it did not do so warrants the conclusion that Congress intended, as matter of law, that she was to be regarded as an inanimate article in interstate commerce. Why she should be regarded as otherwise in overt acts (for the Federal conspiracy section requires overt acts) in a conspiracy to accomplish such transportation, it is difficult to discern.

We may say here, also, that ordinarily conspiracy in American law differs from conspiracy at common law, in the requirement of proof of overt acts. In this country a man may think what he pleases, so long as he gives no voice to his thoughts, and under the doctrine of free speech, generally, he may only make himself liable or culpable for its abuse.

But to return to the case above cited we find that Mr. Justice Holmes cites many cases to the effect that there may be conspiracy by one to accomplish a crime which he may commit himself, but plainly these cases do not apply to a woman conspirator with regard to her own transportation under the Mann Act. She is not denounced thereby. Neither does it seem to me are cases cited by him which refer to cases of conspiracy by one to accomplish what he is free or not to do. In point of concept the theory of law is, that consent to do an act has no bearing on its being done. But there are other cases which do appear to be relevant, and these I will notice.

Thus, there are cited many cases to the proposition that, "a woman may conspire to procure an abortion upon herself

when, under the law, she could not be an accomplice." There are three cases cited, one English and two American cases. The first of these cases shows a conviction of a woman and two others for conspiring to commit an abortion upon the woman, all of them believing she was pregnant when, as a matter of fact, she was not so. The conviction was upheld, but no consideration was given to the fact of the woman being a victim, one of the judges saying: "I cannot entertain the slightest doubt that if three persons combine to commit a felony they are all guilty of conspiracy, although the person on whom the offense was intended to be committed could not, if she stood alone, be guilty of the intended offense."

́As a general proposition this might be true, as for example, where a man conspired with others to engage in a riot or insurrection. This case, as reported in 8 American Criminal Reports, supra, is followed by a note, which says: "Accomplice to an abortion. It is doubtful whether the doctrine of Reg. v. Whitchurch would be fully accepted in this country; because it is held by many respected authorities here that the woman upon whom an abortion is committed is not an accomplice, which view would seem to militate against the doctrine laid down in the foregoing case. For instance, it is held in Kentucky that the law looked upon her rather as a victim than as a co-offender. Peoples v. Commonwealth, 87 Ky. 487, 9 S. W. 509. The same view was taken in Dunn v. People, 29 N. Y. 523; Com. v. Wood, 11 Gray 85; State v. Owens, 22 Minn. 238; State v. Hyer, 39 N. J. L. 598.

It is to be noticed in the excerpt taken supra from the opinion of Mr. Justice Holmes that he deduces that because "a woman may conspire," etc., therefore, she "could not be an accomplice," while the note I quote deduces that because she could not be an accomplice, therefore she could not be a conspirator. I think not many will agree with the learned Justice.

In one of the American cases, the question was, whether the acts and declarations of a woman, who lost her life in the performance of an abortion, which she aided in bringing about, were admissible in a prosecution for manslaughter against the persons performing the abor

tion.

The court, after referring to New York and Massachusetts decision that she was not an accomplice, but "rather the victim of the act," said: "But it is not necessary that she should appear to be an accomplice in order to make her declar

(3) Golander v. People, 2 Colo. 48, 63.

ations accompanying acts done in furtherance of the criminal purpose evidence against another, who has joined in the unlawful act. She may be, and usually is, a party to the illegal combination to effect the abortion, and as this is the ground upon which the declarations are admitted, it can make no difference that she is not criminally liable for the act done. some cases, probably, the woman is an unwilling subject, submitting to, but not actively joining in, the unlawful attempt, and in such cases the community of purpose, which alone can make the acts and declarations of one admissible as evidence against his associate in crime, may be wanting."

This case seems to me to be rather opposed to, than supporting, the proposition, to which it is cited. The court concedes she is the victim so far as her own safety is involved, but as the policy of law is intended to accomplish only this much, its benefits are not to be carried over to the protection of others. It is to be noted, also, that this case rejects the proposition that one, who may be a conspirator, cannot be an accomplice.

In the other American case the learned Justice cites, there was a prosecution for murder. The question was the same as in the Solander case, and ruled the same way. The court construing the abortion. statute of Iowa, said: "This language indicates the design of the law-makers to treat the woman upon whom the act is perpetrated as the victim, and she cannot be guilty of this crime. This is in harmony with the conclusion reached by courts generally, and she is not to be regarded as an accessory or accomplice. (many cases are here cited)." The court then relies on the Solander case and quotes therefrom as follows: "If the woman is not technically an accomplice, she may, nevertheless, conspire with