the must be conceded that newspapers and the mation they contain are interstate comha but this necessity may or may not mean because they may advertise in Missouri de of cigarettes where they lawfully may d. they may do the same thing in The Delamater case held that a trav agent could not solicit sales of Lysor tin libition territory in South Dakota, and are case said advertising was but a of solicitation for sale. The Brewster says that these cases are distingué from it which aromas cigarettes bea288 # Wilson act do not, however, perte.Te this dataDomnestie polky can prevent further de ace of property admisele 22 It has prce to the mass of jorgeen a re i becce siet to local poate A peddler cannot carry on ba bus bess 1 because be as petting amides stopped THE 27Kar Do & TVI :1 บ 1 177 IT "The general tendency of the law, in regard to damages at least, is not to go beyond the first step. As it does not attribute remote consequences to a defendant, so it holds him liable if proximately the plaintiff has suffered a loss. The plaintiffs suffered losses to the amount of the verdict when they paid. Their claim accrued at once in the theory of the law and it does not inquire into later events. Olds v. Mapes-Reeve Construction Co., 177 Mass. 41, 44. Perhaps, strictly, the securing of such an indemnity as the present might be regarded as not differing in principle from the recovery of insurance, as res inter alios, with which the defendants were not concerned. If it be said that the whole transaction is one from a bus iness point of view, it is enough to reply that the unity in this case is not sufficient to entitle the purchaser to recover, any more than the ultimate consumer who in turn paid an increased price. He has no privity with the carrier: State v. Central Vermont Ry. Co., 81 Vt. 459. See Nicola, Stone & Myers Co. v. Louisville & Nashville R. R. Co., 14 I. C. C. 199, 207-209; Baker Manufacturing Co. v. Chicago, Northwestern Ry. Co., 21 I. C. C., 605. The carrier ought not to be allowed to retain his illegal profit, and the only one who can take it from him is the one that alone was in relation with him, and from whom the carrier took the sum: New York, New Haven & Hartford R. R. Co. v. Ballou & Wright, 242 Fed. Repr. 862. Behind the technical mode of statement is the consideration well emphasized by the Interstate Commerce Commission, of the endlessness and futility of the effort to follow every transaction to its untimate result: 13 I. C. C. 680. Probably in the end the public pays the damages in most cases of compensated torts." In further reasoning the justice distinguishes between cases where recovery for discrimination is by those paying reasonable rates and complain because of lower rates being given to others. As to such cases the justice says: "The damage depends upon remoter considerations. But here the plaintiffs have paid cash out of pocket that should have been required of them." This is not a very illuminating statement in view of the fact that the carrier was contending that no damage was suffered at all by the shipper. The matter was better stated by Ninth Circuit Court of Appeals, which said that in a reparation case the court would not be diverted into a wholly collateral issue, which in fact was between shipper and his customers. COMMERCE ADVERTISMENTS IN NEWSPAPERS PRINTED IN FOREIGN STATE VIOLATING LOCAL POLICY.-It has been held by U. S. Supreme Court that a state statute preventing personal solicitation by an agent of a non-resident dealer in intoxicating liquors is valid. Delamater v. South Dakota, 205 U. S. 93. And Alabama Supreme Court has held that under said ruling a state statute forbidding the sale within the state of newspapers containing liquor advertisments applied as well to newspapers printed elsewhere in the state, State ex rel. Black v. Delaye, 193 Ala. 500, L. R. A. 1915 E. 640. as In Post Printing & Publishing Co., v. Brewster, 246 Fed. 321, decided by District Court of Kansas, it is held that a Kansas statute forbidding the sale and advertisment of cigarettes did not apply to a newspaper printed in Missouri and sold in Kansas. It must be conceded that newspapers and the information they contain are interstate commerce, but this necessity may or may not mean that, because they may advertise in Missouri the sale of cigarettes where they lawfully may be sold, they may do the same thing in Kansas. The Delamater case held that a traveling agent could not solicit sales of liquor | in prohibition territory in South Dakota, and the Delaye case said advertising was but a form of solicitation for sale. The Brewster opinion says that these cases are distinguishable from it which concerns cigarettes because of the Wilson act. We do not, however, perceive this distinction. Domestic policy can prevent further disposition of property admissible into a state. When it has gone into the mass of property in a state, it becomes subject to local police power. A peddler cannot carry on his business merely because he is peddling articles shipped to him in interstate commerce, without paying a license required to peddle. May not a state, when a foreign newspaper containing an advertisement for things to be sold in a state in violation of its laws, forbid the sale of the newspaper? If it can restrain a peddler from selling cigarettes, may it not prevent soliciting advertisements intending to effect a sale? In Browning v. Waycross, 233 U. S. 16 it was held not interstate business to send an agent to put up lightning rods shipped in interstate commerce. Is it interstate business to forbid the distribution of an article sent into a state forbidden thus to be disposed of? The commerce clause it may be said secures the right to purchase and sale and necessarily delivery to purchaser. But the latter has no more right to dispose of what is delivered, than if an article formerly was not in interstate commerce at all. BENEFICIAL ASSOCIATION RETROSPECTIVE OPERATION OF BY-LAWS.-In Fitzgibbon v. Bowen, 165 N. W. 1059, the Supreme Court of Minnesota interprets a by-law for affording relief to members suffering permanent injury incapacitating them for work as extending to an injury. so resulting in the past even prior to the existence of the bylaw. The by-law in this case says: "Any member having a continuous membership of ten years who, by reason of permanent injury, not contributed to or brought about by his own improper conduct, is totally incapacitated for work may receive the sum of $5.00 per week." The facts show that plaintiff joined a beneficiary association in 1903, and suffered an injury in 1905 that incapacitated him for work. At that time there was no pension plan for members of the association, but one was adopted in 1914, in which plan the above by-law was embraced. There was a levy of 25 cents per month on all the membership of the association to maintain a fund for the plan. The court, after premising with the statement of rule that there should be liberal construction of such a by-law, said that this bylaw "must be construed to provide for all of its members, who were then or might thereafter become totally incapacitated for work. It speaks in the present tense. To say that an assessment was placed upon all members, those incapable of performing work as well as those capable, and deny those incapacitated from the benefits thereof, would, in our opinion, do violence to the purpose and intent for which the order was organized." The court's assumption that the order was organized to establish a pension fund is contradicted by the facts. It had existed for years without having provided for such a fund. When it provided therefor it would be thought to be acting only prospectively and not also retrospectively. But this construction also violates an inherent principle in such an organization, namely, the principle of equality of burden and equality of benefit. To allow one member to be paid for a past injury and to confine others to prospective injuries puts members on an inequality. Take the case in hand and the construction adopted compels the association to pay $5.00 a week arising as a certainty in consideration of dues of 25 cents a month. Why this gratuity, when the member though suffering from a permanent injury may have had hopes of recovery therefrom? If he had, then, as to future permanent injury he is placed on an exact equality with members generally. All of this ignores the general rule of construction applicable to statutes, ordinances and rules operating pros pectively, unless it is evident they also operate retrospectively. See Lynch v. Turrist, 236 Fed. 653, 149 C. C. A. 649; Jacobs v. Colgate, 217 N. Y. 235, 117 N. E. 837. It is said this occurs more often with remedial and curative statutes than with others. Waddill v. Masten, N. C. 90 S. E. 694. But of all contracts aiming solely at future contingencies an insurance contract is by its very nature such a one. WAR LEGISLATION.* The beginning of the New Year finds the greatest nations still in deadly war. Our own republic, after more than two and onehalf years of hesitation was irresistibly drawn into the conflict. Perhaps it is yet too soon to anticipate the verdict of history as to the final causes, but it seems apparent that the predominant reasons for the catastrophe are to be traced to the opposition of two ideals. On the one hand, the unmora! Prussianized leaders of modern German thought rejected with scorn the theory of a democratic government, while on the other, all who consciously, or unconsciously, are striving to maintain the essential dignity of the individual man, are arrayed either actively or in sympathy in support of democracy. It has been well said that "there have been earlier crises out of which human fate proceeded in new directions; but the contestants in those conflicts understood only obscurely, if at all, the ultimate stakes for which they were fighting. We can plead no such ignorance. We know the issue and whither it leads." If the mighty power which now threatens to engulf the ancient land of Europe and stretch its military and commercial empire from Berlin to Bagdad should succeed, it would reverse the progress made during two thousand years of effort towards the attainment of the Christian philosophy of government and abase. the whole world before the War Gods of Northern Paganism. The cruel selfishness of Thor and Woden would supplant the religion taught by the Divine Redeemer of mankind, a religion which however imperfectly it has been practiced by the masses of men, has been the only real cause of *This article is a revision of an address delivered by Hon. Walter George Smith, President of the American Bar Association, on January 2, 1918, to the Vermont Bar Association. We are glad to publish this very timely article by Mr. Smith, who has graciously consented to act as one of our associate editors, and whose articles and editorials in recent issues have been read with great interest by our subscribers. (1) William Roscoe Thayer. those blessings which make civilized life as we know it at its best. For forty years, under the guidance of their statesmen, their philosophers, their historians and their poets, the German people have learned a lesson of cruelty and hardness, while with a persistency and thoroughness unprecedented in history they have perfected the devilish enginery of de struction, Their armies of spies have sought out the hidden secrets of all nations. and peoples. No art of treachery has been left untried as the complement of brutal force. From the great body of perverted intellect which has aided their propaganda, that of Nietzsche stands out as perhaps the most effective. Thus he formulates their answer to the religion first preached by the Crucified: "Ye shall love peace as a means to new wars and the short peace more than the long. loweth even war! I say unto you that it is "Ye say it is the good cause which halthe good war which halloweth every cause. War and courage have done more great things than charity. * * * Be not considerate of thy neighbor. * * * What thou doeth can no one do to thee again. Lo, there is no requital. "Thou shalt not rob! Thou shalt not slay! Such precepts were once called holy. *** Is there not even in all life robbing and slaying? And for such precepts to be called holy, was not truth itself thereby slain? * * * * This new table, oh, my brethren, put I up over you: Become hard."2 Whole volumes have been made up of such diabolism; and the genesis and conduct of the present war have shown too well that the German people have been apt scholars. Where the tread of their columns has fallen they have left only marks of devastation. St. Jerome has been quoted as saying: "When the barbarian ancestors of these modern savages fell upon the Roman Empire, they left naught but earth (2) "Thus spoke Zarathrusta." Translated by Thomas Common, pages 52, 242, 243, 246 and 262. "Out of their mouths," pages 33 and 34. and the sky." Upon the sullen retreat of the Kaiser's armies from France, the earth itself was destroyed. We need not dwell upon the atrocious incidents which have outraged every better human instinct, whether by the torture and murder of men, women and children, in bombardment of hospitals and undefended dwellings and school houses, or the destruction of the noblest monuments of antiquity. It is patent that the civilized world has girded itself for a mighty struggle for the preservation of all that makes life worth living. Failure means the contemptuous overthrow of a democracy and the enthronement of outworn tyranny. All that has been gained for mankind by four centuries of growth of the principles of selfgovernment on the American continent is at risk, for it is fatuous to believe that a triumphant Prussian junkerdom would permit the continuance of the living protest against its iniquity embodied in our democratic republic. Though we are confident we should win in the end, it would be at heavy cost. In this crisis of the world's affairs our national government is bending all of its powers to concentrate and mobilize our resources for effective action. Our soldiers are in France, our destroyers are coping with submarines, our young men are being drafted into the military and naval service and are training in camp. Food and fuel, the great staples of foreign and domestic commerce, the transportation systems by land and water are taken under government regulation. Direct and indirect taxes in many forms are levied, capital is invested in government loans and financial stability is tested by withdrawing from active business and from investments sums, the magnitude of which staggers the imagination. These are the obvious physical means for coping with the unprecedented peril; but there are other considerations and other means of even greater importance. In the language of one who is an active partici pant, "This war has turned out to be not merely a military war. merely a military war. Its final decision will depend much more upon political, economical and psychological than upon merely military factors.3 The outbreak of the war came with such suddenness as to find this nation unprepared in every way. We were so engrossed in our own domestic matters that we had fol lowed with but little real interest the political and military plans of the Central Powers of Europe, though it required no spirit of prophecy during the past generation to foretell their outcome. Even after the invasion of Belgium and the tragedy of the Lusitania there were large bodies of our people who still believed it possible to maintain our neutrality. Although our foreign population with a large part of those born of foreign stock and speaking and reading foreign languages and maintaining as far as possible a foreign attitude of mind, formed nuclei for disloyal plots, it was with surprise we witnessed the outcome in a wholesale destruction of life and property in pursuance of plans traced to the embassies of Germany and Austria while we were still at peace. It may be doubted whether even now there is a thorough realization of the danger to our dearest ideals and interests from any relaxation of effort by any part of the community. The national administration has made a special appeal to the lawyers of all the states to aid its efforts in making effective the conscription laws so that no injustice. be done to any individual. The American Bar Association has responded by putting its vice-presidents, local councils and its entire membership in the various states at the disposal of their governors. It is not probable that these duties will impose onerous obligations on more than small groups, but there is a more general and more important duty that the American lawyers may and should perform each in his separate sphere and in the various organizations which give (3) The Coming Victory, Gen. Smuts. |