The Project Gutenberg eBook of "The New Jersey Law Journal. Vol. XLV. No. 2. Feb., 1922", by A. Van Doren Honeyman [Editor].

Ever since my boyhood the drama of the courtroom has interested me more than the drama of the theatre. I well remember my introduction to litigated business. I was a youngster on a visit to Boston when some one took me to a Court where a patent case was on trial. I was duly impressed by the imposing personality of the Judge, but my attention was soon fixed by the witness on the stand, whom I happened to know, for my father had once introduced me to him. He was Professor James Jay Mapes, of Newark, New Jersey, a chemist and inventor, one of whose many activities was the manufacture of fertilizers. I had visited one of his factories, somewhere between Newark and Elizabeth, and was surprised to see him at Boston in the rôle of a mechanical expert in a patent case. As the examination carefully proceeded I concluded, with the rashness of inexperience, that the examiner was a very dull man, for he seemed so slow to get an idea. What I then mistook for dullness I now recognize as professional skill, employed by counsel to unfold to the Court and jury the details of a complex mechanism. I know now more about that case than I did then, for, rather to my surprise, I have recently found a report of it in the first volume of Fisher's "Patent Cases," at page 108. The time was August, 1851, when I was not quite eleven years old. The courtroom was that of the Circuit Court of the United States for the First Circuit. Samuel Colt was plaintiff. The Massachusetts Arms Company was defendant. The counsel for the plaintiff were E. N. Dickerson, C. L. Woodbury and G. T. Curtis, and for the defendant R. A. Chapman, G. Ashmun and Rufus Choate, and the Judge was Mr. Justice Levi Woodbury of the Supreme Court of the United States, who was then testing the validity of the patent for the Colt revolver. The charge is reported in full. The verdict was for the plaintiff.

Judge Woodbury was a New Hampshire man of some note, then in his sixty-second year, called by Thomas H. Benton "the rock of the New England Democracy," who had been Senator of the United States from New Hampshire, and a member of the Cabinets of Jackson and Van Buren, and, on the nomination of President Polk, had succeeded Judge Story as a member of the Supreme Court of the United States. The trial of the case in which I saw him was one of his last official duties, for he died in the following month. He was succeeded by Benjamin R. Curtis, of Boston, on the nomination of President Fillmore.

[pg 34] While I was at the Harvard Law School in 1863-4, Richard H. Dana was United States District Attorney at Boston, and I often saw him at Cambridge, where he lived. His book, "Two Years Before the Mast," was and is a favorite of mine. I suppose that I have read it twenty times, and I hope that the boys of this day read and love it. It is in a class by itself. There is, I think, not in English, and probably not in any language, another account of seafaring life written in the forecastle by one of the crew, who was also a gentleman and a scholar and master of a charming style. The veracity and spirit of the narrative have made it a classic both here and in England. In California it is particularly valued, for Dana was one of the pioneers and had sailed through the Golden Gate on the "Alert" in the winter of 1835-6, many years before the Mexican War and the discovery of gold, when San Francisco as yet was not. When, at the end of the visit, the good ship floated out on the tide, herds of deer came down to the northerly shore to watch the unusual sight. Dana left college and went on this voyage to cure an affection of the eyes. After his return he graduated at Harvard in the class of 1837 and became a lawyer.

Mr. Dana was qualified by nature and training to become a leading figure in the public life of this country, and his ambition was that way, but the cards ran against him. As Goldsmith said of Burke, he was "too nice for a statesman, too proud for a wit," high-strung and sensitive as a race-horse, well bred and distinguished in bearing, a clear, graceful and forcible speaker, an admirable advocate, and an accomplished jurist. One of his greatest professional efforts and triumphs was his argument before the Supreme Court of the United States in the Consolidated Prize Cases, when he had to make it clear to the Court how it was that the stupendous struggle in which the country was engaged could be a-war with belligerent rights as between ourselves and other nations, and a local insurrection as between ourselves and the South.

It may be remembered that, at the centennial anniversary of the battle of Lexington, Mr. Dana delivered the oration. It begins with the words, "How mysterious is the touch of fate which gives immortality to a spot of earth, to a name." It is a noble commemorative address. Concord has always plumed itself because it had a real fight, while the Lexington men only stood up to be shot at and did not damage the English. As the anniversaries were approaching and good-natured rivalry was in the air, Concord issued a prospectus of some kind, which did not suit Mr. Dana's fastidious taste, and he said to Judge Hoar, of Concord: "How is it, Judge, that you folks at Concord have sent out such a shabby, badly-written paper? It is positively ungrammatical." "O," said the Judge, "you know, Dana, at Concord we always did murder the King's English."

While Mr. Dana was United States District Attorney he tried the last slave-trading case. The vessel was the "Margaret Scott," which was fitted out, I think, at New Bedford, but did not actually embark on the voyage. The trial was before Mr. Justice Nathan Clifford, of the Supreme Court of the United States. I heard Mr. Dana's summing up and the charge to the jury. Judge Clifford was a tall man of great girth. He stood throughout his admirable charge, which took him an hour to deliver. After about half an hour he told the jury that they might be seated.

[pg 35] Governor Hoadley, of Ohio, who was a friend of Judge Swayne of the United States Supreme Court, once told me this story, which he got from Judge Swayne. Judge Grier, when on the Bench sat next to Judge Swayne and, during the latter part of his service, was crippled and dozed a good deal, and sometimes used to annoy Judge Swayne by speaking to him in a stage whisper. A prize case was on trial and there was discussion about belligerent rights, which one of the counsel pronounced belligerent. The novelty of the pronunciation roused Judge Grier, who said to Judge Swayne quite audibly: "Brother Swayne, Brother Swayne, Judge Clifford is the belliggrent member of this Court."

In 1868, while at Boston, I heard part of the argument in the remarkable case of Hetty H. Robinson v. Thomas Mandell, Executor and others. The case was tried before Judge Clifford in the Circuit Court of the United States. Sidney Bartlett and Benjamin R. Curtis (who was then an ex-Judge of the Supreme Court of the United States), were leading counsel for the complainant, and Benjamin F. Thomas, an ex-Judge of the Supreme Court of Massachusetts, was leading counsel for the respondents. The complainant, who is better known to us by her married name of Hetty Green, had filed her bill setting up a special contract between herself and her aunt, Sylvia Ann Howland, for an exchange of mutual wills, and that neither should make any other will without notice to the other and a return of the other's will. Miss Howland had died, leaving a will not in favor of Hetty, but largely to charity. The respondent, Mandell, was her executor. The case is reported in 3 Clifford's Circuit Court Reports, page 169. Judgment was for the respondents, Judge Clifford saying, in his decision: "In this case there was no competent evidence to show that there was any agreement as to the making of mutual wills, and there was nothing on the face of the instruments to warrant any such conclusion."

Mrs. Green, whom I saw for the first time, was in Court with her husband, a large, dressy man, looking like an English guardsman. Much testimony had been taken. There was a question of forgery, and enlarged photographs of signatures were standing about. Judge Curtis spoke for two days, one day on the facts and one day on the law, a length unusual for him, for he was generally brief. I heard Mr. Bartlett's opening and part of Judge Curtis's discussion of the facts. Mr. Bartlett was a great lawyer, but not, I should say, a very good speaker. His reputation was for condensation and concentration; for making a direct thrust at the central point, with small regard for introductory and collateral matters. Someone, I think a Judge of the Massachusetts Supreme Court, said that Mr. Bartlett's mental operations on matters of law bore about the same relation to those of the average lawyer that a book of logarithms does to a common school arithmetic. He continued in active practice until about the age of ninety, made a large fortune, and was famous for his high charges. He was no recluse, but a club man and citizen of the world.

This was not the first time that I heard Judge Curtis. To follow any argument of his was an ever fresh delight. I remember as though it were yesterday the neatness and felicity with which, in the case just mentioned, he dismissed one of several propositions submitted by his adversary, saying, with his usual dignity and composure: "I now come to [pg 36] another of this series, I believe it is the ninth. Like all of them, it is not pleaded; like most of them, it is not proved; and, like each and all of them, it would be totally immaterial if it were both pleaded and proved." And then, in his last sentence, with exquisite tact, he lightly touched a certain string: "On one side of this case stands the complainant, with a large fortune; on the other side is a charity; but this Court observes the divine injunction, 'Thou shalt not respect the person of the poor, nor honor the person of the mighty, but in righteousness shalt thou judge thy neighbor!'"

My friend, Mr. Frank E. Bradner, of the Essex Bar, has referred me to some lines in "The Professor At The Breakfast Table" which speak of Judge Curtis, who was a classmate of Dr. Holmes:

He who runs may read. The class of '29 had its twenty-five years meeting, always a great event, in 1854. Judge Curtis was then on the Bench and it was probably then that he spoke for the manhood of the class. He resigned his office in September, 1857, and became a "Squire."

Judge Curtis was a master of the difficult art of Nisi Prius duty. No one could be more courteous, patient and impartial, better equipped with law, more accurate as to fact, or clearer in his rulings and instructions. Any Judge who has spent several of the best years of his life in learning how easy it is to try badly a case with a jury and how hard it is to do it well, will be interested to read the passage which I quote from a private letter written by Judge Curtis to Mr. Webster after he had been on the Bench for about a month:

"I presume you will agree with me that there is no field for a lawyer which, for breadth and compass and the requisitions made on all the faculties, can compare with a trial by jury; and I believe it is as true of a Judge as of a lawyer that, in the actual application of the law to the business of men, mingled as it is with all passions and motives and diversities of mind, temper and condition, in the course of a trial by jury what is most excellent in him comes out and finds its fitting work, and whatever faults or weaknesses he has are sensibly felt."

The great event of his judicial career was his dissenting opinion in the case of Dred Scott v. Sandford, (10 Howard 393, Dec. Term, 1856), in which he asserted the constitutional power of Congress to prohibit slavery in the territories. This was the doctrine of Webster and Mason and of the coming Republican party. Mr. Lincoln, in his debate with Douglas, carried this dissenting opinion with him. There were nine Judges, each of whom filed an opinion. Five Judges were from slave States and were probably themselves slave-holders. Chief Justice Taney wrote an opinion which is called "Opinion of the Court," but may be more accurately described as the opinion of Chief Justice Taney and Judge Wayne, for Judge Wayne, who also filed a separate opinion, was the only one of the six Judges voting with the Chief Justice who concurred in all his points, reasonings and conclusions. Even at this day one cannot read without a shudder the Chief Justice's unflinching declaration as to the helpless and [pg 37] hopeless status of the negro. Judges McLean and Curtis filed dissenting opinions.

There are complexities in the record which make it difficult for even a lawyer to determine just how much of the opinions filed by a majority of the Court is decision and how much is dictum. The Chief Justice withheld from the files the so-called "Opinion of the Court," and made additions and alterations to the extent of eighteen pages, in evident answer to the filed dissenting opinion of Judge Curtis, and instructed the clerk not to furnish a copy of the "Opinion of the Court" to anyone without the permission of the Chief Justice before it was published in Howard's "Reports," so that Judge Curtis, on application to the clerk, was unable to obtain the amplified opinion. There ensued a correspondence between Judge Curtis and the Chief Justice in which Judge Curtis kept his temper admirably and the Chief Justice nearly, if not quite, lost his, and did so, I think, because he felt that he was in the wrong.

Judge Curtis, by leaving office in 1857, at the age of forty-seven, surprised his friends and the country. There were two reasons for it. The state of the Court was such that he did not feel comfortable in it. This does not refer to his controversy with the Chief Justice, to whose memory he afterwards paid a cordial tribute. Indeed, it may be doubted whether he would have felt much more comfortable as a member of the Court under the reign of Lincoln than he was under the reign of Buchanan. He was no party man and did not belong in either camp. His all-sufficient and avowed reason for resigning was that he could not live on a salary of $8,000, and felt bound to secure for himself and his family what Burns calls "the glorious privilege of being independent." This purpose was amply realized. He went at once and inevitably to the front rank of the American Bar and remained there for seventeen years, during which time his professional earnings amounted to about $650,000. This was not in our day of big business, when members of the Bar, who are great men of affairs, but not necessarily great lawyers, receive, or are supposed to receive, rich rewards for services in the organization, manipulation and combination of colossal corporate interests. The annual income of Judge Curtis was not much over $38,000, but, like Mercutio's wound, it was enough, it would serve, and it was fairly earned in the regular practice of his profession, at his office desk, in the trial of cases, and in writing opinions on important questions submitted to him from all parts of the country. He stood so high that his written opinion would often be accepted by both sides of a controversy as the veritable voice of the Law itself.

I first saw and heard Judge Curtis at New Haven in 1864, in the trial of a suit in equity brought in the Circuit Court of the United States for the Second Circuit by the Lowell Manufacturing Company against the Hartford Carpet Company for an injunction and accounting. Judge Curtis led for the complainant, and the special interest of the case was that he had against him an opponent worthy of his steel, a man five years his senior, of different race, creed, politics and temperament, Charles O'Conor, the brilliant leader of the Bar of New York. The two men were evidently no strangers to one another. Judge Curtis had said at a dinner party that he regarded Mr. O'Conor's management of the Forest Divorce Case as the most remarkable exhibition of professional skill ever [pg 38] witnessed in this country. In the case which I heard at New Haven the associate counsel were able men, Mr. Edwin W. Stoughton for the complainant and Mr. George Gifford for the respondent, both prominent patent lawyers of New York. The Judges were Samuel Nelson of the Supreme Court of the United States and William D. Shipman of the District Court.

It was pleasant, after the crudities of county practice, to see the mutual courtesy of the two leaders. I happen to remember a few gracious words of Judge Curtis: "and such rights, as no one knows better than the admirable lawyer on the other side, do not lie in covenant, but do lie in grant." The argument was not fully intelligible to me, for it dealt largely with considerations arising out of written contracts with which I was not familiar, but it was entertaining and instructive to watch the two men. There came on each side a grateful gleam of fun. While Mr. Stoughton was speaking of the terms of a contract, Judge Curtis, who sat near him, interjected the words: "and no longer." Mr. O'Conor in his argument laid hold of this and said: "Why, you might as well say, 'as long as grass grows and water runs,' 'and no longer'." I recall only one precedent for such an expression. It comes from a land from which we get very little law, though it has given us some lawyers. It is a verse of an old Irish song:

Mr. Gifford, in his argument, had referred to a certain United States statute which, as he said, the Supreme Court had found difficulty in construing. Mr. Curtis, in his closing argument, said: "That statute reminds me of a story of a learned divine of this State who once preached a sermon upon a difficult text in one of St. Paul's Epistles, and said, finally: 'My brethren, I have now given you the results of my most careful study and reflection upon this passage of Scripture, but I feel that, in justice to myself, I ought to say that I very much wish that the Apostle had not used those words'."

When Mr. O'Conor, who followed his junior, Mr. Gifford, took his seat after speaking for five hours, the afternoon was getting late, and I heard Judge Curtis say to Mr. Stoughton: "I have to answer more than seven hours of solid argument. I cannot do it in two hours, and shall ask that the case go over until to-morrow." It was so ordered. In the evening he said to a friend of mine: "Nothing has been said on the other side which cannot be answered. The question is whether I can do it." He spoke the next day for two hours and twenty minutes and closed the case.

This litigation resulted in a victory for Mr. O'Conor and his associates. In July, 1864, Judge Nelson wrote a short opinion dealing with contractual rights and gave judgment for The Hartford Carpet Company. (Case No. 8569, 15 Federal Cases, page 1021, 2 Fisher's Patent Cases, 472).

The Judges and counsel, with the juniors from the Boston and Hartford offices, dined together every day at the New Haven House, and a [pg 39] congenial company it was. Mr. O'Conor, when he was at liberty, would put on the back of his head the silk hat which he always wore and say: "Who's for a walk?" and go off on a tramp under the elms. He was a spare, active man, of nervous temperament and great vitality. In New York he lived at Fort Washington, on the Hudson, and used to rise early, walk to his club on Fifth Avenue, breakfast there and then go down to his office.

The keynote of Judge Curtis was serenity, that of Mr. O'Conor was intensity. Beginning to tread law at the age of sixteen, Mr. O'Conor fought his way to the lead, an achievement which no one who knows New York City will be disposed to underrate. In the fine old common law phrase, he "made war for his clients." He was tremendously combative within the rules of the game, and absolutely fearless and independent. His opinions were often extreme and sometimes eccentric. I heard him say at the New Haven House, in the middle of the War for the Union, to a man who asked for political advice: "Take the bull by the horns. Every dollar spent and every life lost in this War is just so much thrown into the great deep." It was like him to offer his professional services to Jefferson Davis in his evil day. He prophesied or hoped that "some future Tacitus" would arise to pronounce the verdict of history on Chief Justice Taney as ultimus Romanorum. There was a noble side to Mr. O'Conor's nature. With all his law he was an idealist. In accepting some now-forgotten nomination to the Presidency, he wrote this ringing sentence: "To spend in one's allotted place a blameless life of honest effort, and at its end to perish nobly contending in the Thermopylæ of an honest cause, has always been to me the perfection of a happy individual destiny." Let this be his epitaph.

It remained for Judge Curtis, a few years later, to perform a professional duty which made him for the second time a prominent figure in the law and politics of the country. This was his opening argument for the defense in the Impeachment Trial of President Johnson. In a private letter written during that trial, he said: "There is not a decent pretense that the President has committed an impeachable offense." Most intelligent persons will now agree with him. His argument is a masterpiece of luminous reasoning and exposition, and concludes with this grave warning:

"It must be unnecessary for me to say anything concerning the importance of this case, not only now, but in the future. It must be apparent to everyone in any way connected with or concerned in this trial that this is and will be the most conspicuous instance which ever has been or can ever be expected to be found of American justice or American injustice, of the justice which Mr. Burke says is the great standing policy of all civilized States, or of that injustice which is sure to be discovered and which makes even the wise man mad, and which, in the fixed and immutable order of God's providence, is certain to return to plague its inventors."

A landlord is held to be deprived of his property without due process of law by a statute giving the tenant the privilege of holding over at pleasure at expiration of his lease, in Hirsh v. Block, 267 Fed. 614, annotated in 11 A.L.R. 1238, on the constitutionality of rent laws.

Case of Louise Sylvester, Plaintiff, against George S. Pinyuh, Defendant. On motions to vacate certain Rules and Orders.

PER CURIAM: This is a motion by the defendant to vacate certain rules heretofore made in the above entitled cause, and a counter motion by the plaintiff to strike out the restraint imposed upon her in a rule to show cause granted by Mr. Justice Minturn on the 25th day of October, 1921, and for permission to perfect her proceeding for a new trial. The facts are substantially as follows:

In September, 1921, the case (a Supreme Court issue) was tried in the Monmouth Pleas on an order of reference made by a Justice of the Supreme Court.

The jury found a verdict for the defendant, and the plaintiff, on the 22d day of September, applied to the trial Judge for a rule to show cause why a new trial should not be granted, which order was allowed by the trial Judge and was made returnable before him on the 6th day of October, 1921.

On the return day of the rule, the attorney for the defendant appeared before the Judge and objected to his hearing the rule on the ground that, it being a Supreme Court issue, the rule must be heard by the Supreme Court. Judge Lawrence reserved decision in the matter, and thereafter came to the conclusion that the action had become a Common Pleas case, and that the rule could properly be heard before him, and fixed October 7th, 1921, for the hearing of same.

In the meantime defendant's attorney procured from Mr. Justice Minturn a rule to show cause, returnable before the Supreme Court on the first Tuesday of November, 1921, why judgment should not be entered in favor of the defendant against the plaintiff on the postea, and why the trial Judge should not sign the postea, and restraining the plaintiff from further proceedings until the further order of the Court. A copy of this rule was served upon Judge Lawrence and he thereupon concluded that the rule must be heard before the Supreme Court, and he signed the postea.

Plaintiff's attorney was evidently under the impression that, after the postea had been signed by Judge Lawrence, the object of the rule allowed by Justice Minturn was served, and that the stay contained therein was no longer effective and did not restrain him from taking the necessary proceedings to bring on the argument of the rule before the Supreme Court. He accordingly obtained from Judge Lawrence (who evidently entertained the same view) a rule amending the previous rule granted by him to the extent that the argument should be heard before the Supreme Court on the first Tuesday of February.

Apparently, because of the uncertainty on the part of plaintiff's attorney as to whether the rule originally granted by Judge Lawrence, [pg 41] and the reasons on which plaintiff rested her motion for a new trial, should be filed in the office of the Clerk of the Supreme Court, or in the office of the Clerk of the Court of Common Pleas, these papers were withheld from the files and were not filed within the ten days required by the rules of this Court. A copy of the reasons and rule were, however, immediately served on the attorney for the defendant. Depositions were also taken by the plaintiff under the rule.

On the 15th day of December, 1921, plaintiff's attorney obtained from Mr. Justice Kalisch a rule permitting plaintiff to file the rule to show cause allowed on the 22d day of September, as amended by the rule made by Judge Lawrence on the 30th day of November and the reasons on which plaintiff based her motion for a new trial, with the same force and effect as if the same had been filed within the time limited by law, and, immediately after that rule was granted, filed the rule made by Judge Lawrence and the plaintiff's reasons in the office of the Clerk of the Supreme Court. A copy of the depositions which were taken under the original rule granted by Judge Lawrence were also served on the defendant's attorney.

No state of the case has yet been prepared and served, but it is stated to be the plaintiff's intention, should the Court permit her to do so, to immediately prepare and print her case and bring on the rule for argument at the February Term of the Supreme Court.

The defendant moves to vacate the rule of September 22d, and the rule of November 30th, amending it; to vacate the rule allowed by Justice Kalisch permitting plaintiff to file such rules and the reasons. The plaintiff moves to vacate the restraint imposed upon her by the rule allowed by Justice Minturn October 25, 1921, and also moves to be allowed to perfect her proceedings for a new trial, and to bring on the same for argument, according to the rules and practice of the Court, at the February term.

We think the defendant's motion should be denied and the plaintiff's motions granted.

It is of course apparent, and the plaintiff freely admits, that the rules to show cause why a new trial should not be granted were irregular and defective and that they have not been brought on in accordance with the rules of the Supreme Court; but evidently the sole reason therefor was the confusion existing, both in the mind of plaintiff's attorney and that of the trial Judge, as to whether the application for a new trial should be heard before the trial Judge or before the Supreme Court.

It seems not to be disputed that substantial reasons exist for giving consideration to plaintiff's application for a new trial. In granting the rule to show cause why a new trial should not be granted the trial Judge evidently felt that the plaintiff should be given her day in Court upon the reasons which were presented to him why the verdict of the jury should not be set aside. We feel that this Court should not allow the technical infirmities in the proceeding to deprive the plaintiff of an opportunity to be heard when, by a suspension or relaxation of its rules, a possible injustice may be avoided. Rule 217 of the Supreme Court provides: "The time limited in these rules for the doing of any act may, for good cause, be extended (either before or after the expiration of the time), by order of the Court, or a Justice or a Judge thereof." Rule 218 provides: "These [pg 42] rules shall be considered as general rules for the government of the Court and the conducting of causes; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the Court in any case where it shall be manifest to the Court that a strict adherence to them will work surprise or injustice."

We therefore deny defendant's motion to vacate the rules heretofore obtained by the plaintiff to perfect her proceedings for a new trial, and we grant the plaintiff's motion to vacate the restraint imposed in the order of Mr. Justice Minturn, and also grant the plaintiff permission to perfect her proceedings for an application for a new trial, and also permission to bring the same on for argument at the February term of this Court, according to the rules of this Court. The relief thus granted to the plaintiff will be upon terms that she pay the defendant costs upon these motions; all other costs to abide the event.

City Ordinance Against Disorderly Conduct--The Disorderly Act--Removal of Persons from Railroad Train.

Case of The State against Jacob Gross, Prosecutor. On certiorari dismissing conviction.

MINTURN, J:. The prosecutor of this writ was convicted before the Recorder of the City of Passaic for violating section 72 of an ordinance of that city which provides as follows: "That any person, who shall in any place in the city of Passaic, make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner, or make use of obscene or profane language ... shall each be liable to a penalty of five dollars for every offense."

The violation complained of was that, while he was a passenger on an Erie Railroad train, and while the train had stopped at Passaic, he refused to remove his baggage from between the seats to the baggage compartment at the request of the conductor, as a result of which the prosecutor became noisy and boisterous, and the conductor thereupon caused the removal of the prosecutor and his baggage from the car, and turned him and it over to a local police officer. He was thereafter prosecuted as a disorderly person and convicted of that offense.

Various legal grounds are advanced as a basis for vacating the conviction. One only I deem fatal to its validity.

The ordinance in question was intended to apply to public places within the city for the purpose of suppressing disorderly conduct therein, and, while in a limited sense a steam railroad car is a quasi public place as between the State and the railroad, it cannot be reasonably construed as furnishing such a public place within the contemplation of the local legislative body, when they passed this ordinance. A similar contention was before this Court in State v. Lynch, 23 N. J. L. J. 45, where it was held that a saloon, although a public house in contemplation of law, is not a [pg 43] "public place" within the contemplation of the provisions of the Disorderly Act. The words "public places" in this connection were held to be "such places as are in general use for travel by all citizens, and in which all have at all times an equal right of passage and repassage." Adopting this rule of construction the railroad coach in question was not a "place" to which the jurisdiction of the city can be said to extend, and the word "place," therefore, in this connection, must be held to be equivalent to "public place." That this is so is made manifest from the context of the section of the ordinance invoked upon the doctrine of noscitur a sociis. Thus, the person charged must not only be in "a place in the city of Passaic," but he must "make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner or make use of obscene or profane language."

This enumeration of specific acts of misdemeanor connotes, generally speaking, the ordinary offense of disorderly conduct, such as is condemned in our Disorderly Act; and, as has been observed, such disorderly conduct, to be the subject of public prosecution, must occur in a "public place," within the jurisdiction of the City Magistrate, and the environment of the city. A travelling car manifestly is not such a public place. 32 Cyc. 1249 and cases.

The fact that the prosecutor was noisy in asserting his rights can make no difference in the result, for we may, from experience, judicially notice the fact that the inter-urban railroad train presents no suitable accommodation for one inclined to indulge in either introspection or somnolence. Therefore, an ordinary conversation in a major key when indulged, as was the case here, between a conductor, with a book of railroad rules in his hand emphasizing his duty, and a protesting commuter with an innocuous bag, the owner of which attempted to vindicate in Yiddish-English the rights of the American travelling public, might be the means of provoking an innocent mental diversion for the benefit of the curious passengers, but could hardly be said to evolve the serious accusation of disorderly conduct in a public place, within the meaning of the ordinance. A discussion in an elevated key on a railway carriage, whether it concern a bag or the suspected contents of a bag, is not an unusual episode in everyday American railway life; nor can it be said to be without its compensation and exhilarating effect upon the general body of passengers, so long as it does not assume the intolerant form of vulgarity, or obscenity, and thus warrant the ejection from the train of the malodorous disputant.

The fact, of course, is that the voluminous resonance of a conversation cannot be utilized as a standard to guage either its criminality or its literary value, and yet debates in the halls of legislation, in the Courts of justice, not to speak of fulminations from the pulpit, are often measured by the volume of vocalization and the density of lung power behind them.

If precedent were invoked from the classics, we have it in "Sweet Auburn;" where, in fancy, we hear the

and Goldsmith's pen picture has placed the vociferous schoolmaster among the immortals, whose

[pg 44] All of this, and more, is familiar experience on the railway train, and thus far has escaped the proscription of the authorities.

In Mullen v. State, 67 L. 450, the prosecutor in asserting his rights at a schoolmeeting became, in the language of this Court, "quite noisy and excited." His conception of public duty led him to indulge in what the complainant called "loud language," and for this he was prosecuted under the provisions of the Disorderly Act, which prohibits in "public places" the use of "loud, offensive or indecent language." There was no proof of the indecency or offensiveness of his speech, and this Court held that the uttering of "loud" language was not enough to sustain the complaint.

These considerations, without reference to the other objections presented, lead me to conclude that the judgment of conviction should be vacated, and such will be the order.

Prohibition Enforcement Act--Search Warrant--Seizure of Liquor Permits and Certain Liquors.

Case of State against Luigi Caprio. On application to restore property and liquor taken under search warrant issued under the Prohibition Enforcement Act. Before Hon. Fred G. Stickel, Jr., a Judge of the Court of Common Pleas, acting as Magistrate under the Prohibition Enforcement Act.

STICKEL, Jr., Magistrate: On October 3rd, 1921, acting as Magistrate under the Prohibition Enforcement Act, I issued a search warrant directed to Richard Roe, authorizing a search of the drug store, cellar and rooms attached at 7 Bloomfield Avenue, Belleville, New Jersey, and a seizure of the liquor there found, together with all vehicles, fixtures, containers, utensils, machines, contrivances, or paraphernalia whatsoever, there found used or intended to be used in the illegal keeping, manufacture, transportation or sale of liquor. This warrant was based upon an allegation by Nick Takush that he believed liquor was unlawfully possessed in such place, and that he based his belief upon the fact that he had on several occasions purchased whiskey at that address for beverage purposes, and on the 30th day of September, 1921, had purchased two gallons of alcohol there for beverage purposes.

Acting under this warrant, the sheriff, through under-sheriff Alfred C. Walker, returned the body of Luigi Caprio, admittedly the owner of said 7 Bloomfield Avenue and of the drug store, cellar and rooms attached. The said under-sheriff also filed an inventory showing that he had seized under said search warrant a two gallon can labeled, "Columbia Spirits;" a five gallon can labeled "Alcohol;" one bottle labeled "Columbia Spirits;" some liquor permits; one five gallon can, full, labeled, "Columbia Spirits;" one bottle labeled "Aromatic Elixir;" one bottle labeled "Alcohol."

Application is now made under sections 63 and 64 of the Prohibition Enforcement Act to restore the liquor and property so taken, on the [pg 45] ground that there was no probable cause for believing the existence of the grounds on which the search warrant was issued, and on the further ground that the liquor and chattels taken upon such search warrant are not the same as referred to in the search warrant.

There is absolutely nothing in the testimony taken before me to support the contention that there was no probable cause for believing the existence of the grounds upon which the search warrant was issued, but there is some merit in the other contention.

The search warrant directs the taking by the sheriff of "liquor found in and upon the premises aforesaid, together with any and all vehicles, fixtures, containers, utensils, machines, contrivance, or paraphernalia whatsoever found, used or intended to be used in the illegal keeping or sale of liquor." It will be readily seen that the sheriff would only be justified in his seizure of the liquor permits if they came within the description "paraphernalia," and clearly the word "paraphernalia" cannot be interpreted, particularly in the light of the words which precede it in the search warrant, to cover liquor permits. The testimony also showed that the five gallon can labeled "Columbia Spirits" was delivered by a drug concern to Caprio while the sheriff's men were there or about the time they arrived. Certainly this liquor is not the liquor referred to in the search warrant, and consequently, not being the liquor referred to in the search warrant, it must be restored to the person from whom it was taken.

Therefore an order may be presented, reciting that, so far as the Prohibition Enforcement Act is concerned, the search warrant issued by virtue of the authority thereof is not sufficient to justify the sheriff in retaining the liquor permits and five gallon can labeled "Columbia Spirits," and that in view of the Prohibition Enforcement Act the said liquor permits and "Columbia Spirits" be restored to said Caprio.

Workmen's Compensation Acts in New Jersey and New York--Applying to Wrong Tribunal--Election of Tribunal.

Case of Julia Harsel, Petitioner, against William Fichter and John Engelhardt, copartners trading as Fichter & Engelhardt, Defendants. On petition for compensation under Workmen's Compensation Act.

STICKEL, Jr., J.: The employers contend that the petition for compensation in this case should be dismissed because the contract of employment was made in New York, and because the petitioner elected to proceed under the compensation law of New York, subsequently petitioning for compensation under the New Jersey law.

In considering the case, I felt I would be aided if I had before me the testimony taken in the New York compensation action, and counsel for the defendant very kindly supplied me therewith.

From such testimony, which I have filed in this case, as well as from the deposition filed, I am satisfied and find as a fact that the deceased was hired in New Jersey by Fichter & Engelhardt. It is quite clear to me that the deceased heard of the New Jersey job of Fichter & [pg 46] Engelhardt at the Union rooms in New York and that, being attracted thereby, he, after giving up the New York job, came to the New Jersey job, was seen by the foreman, Millhouse, and employed on the spot. Engelhardt appears to be a silent partner of Fichter, according to his own testimony, and the firm is, in fact, made up as stated in the title to this cause.

Furthermore, even though the contract of employment had been made in New York, the accident causing the deceased's death having taken place in New Jersey, the case falls within the New Jersey Compensation Act, and this notwithstanding the existence of a New York Compensation Act. American Radiator Company v. Rogge, 86 N. J. L. 436, aff. 87 N. J. L. 314; 245 U. S. 630; David Heiser v Hay Foundry & Iron Works, 87 N. J. L. 688 (at this time the New York Compensation Act was in force); West Jersey Trust Company v. Philadelphia & Reading Realty Company, 88 N. J. L. 102.

As to the question of election, the contention of the employers is wholly without merit. The petitioner, through attorneys other than those who now represent her, applied for compensation under the New York Compensation Act. The Commission held that it had no jurisdiction; that the case was not within the New York jurisdiction, apparently, from the testimony taken, because the Commission found that the contract of employment with petitioner was made in New Jersey and the accident took place there. Thereupon petitioner applied for compensation in New Jersey, and an informal award had been made in New Jersey, and a day fixed to hear the case on the formal petition, before someone in New York claiming to represent Mrs. Hassel, the petitioner, had applied for a reopening of the finding of no jurisdiction by the New York Commission.

Petitioner in that posture of affairs advised the New York Commission of the New Jersey proceeding, and asked that the New York proceeding be stayed "pending the trial of her case in New Jersey, and then after and when we receive compensation over there, as I understand the law in this State, Mrs. Hassel can still come in and get the deficiency claim from the Compensation Bureau here," and this request was duly granted.

What acts of petitioner constitute the election which should bar this New Jersey proceeding? Certainly not the original application for compensation in New York, for that application was dismissed, and it now appears erroneously, for lack of jurisdiction, and, under such circumstances, it is clear that she has not made a final and binding election such as would preclude her applying to the tribunal in fact possessing jurisdiction. 15 Cyc., p. 262, and cases cited; 20 Corpus Juris, p. 37, and cases cited.

If a mistake of a petitioner in applying to the wrong tribunal for relief would not preclude application to the right tribunal (see 15 Cyc., supra) certainly the erroneous finding of no jurisdiction by the tribunal applied to could not have a greater and more binding effect upon the petitioner. And even a correct finding of no jurisdiction would not preclude application for relief to the tribunal possessing jurisdiction. 20 Corpus Juris, p. 27.

The only other conduct of petitioner which is relied upon to constitute an election is her request to the New York Commission after someone unauthorizedly had applied for a re-opening of the case, and after the institution of the New Jersey suit to stay the New York proceedings [pg 47] until the completion of the New Jersey proceeding, so that petitioner might obtain in New York the difference between the New York compensation allowance and that of New Jersey, and clearly such conduct, which is, in effect, an election to proceed in New Jersey on the main case, cannot be held to constitute an election to proceed in New York.

I, therefore, find that the petitioner is entitled to compensation for three hundred weeks at the rate of twelve dollars per week, and to one hundred dollars, the statutory allowance for funeral expenses, and I will allow counsel for the petitioner a counsel fee for services in this Court of two hundred and fifty dollars.

A determination of facts should be prepared by counsel for the petitioner, submitted to counsel for defendant for inspection, and then transmitted to me for signature.

Case of State of New Jersey against Joseph A. Ash. On appeal from Third Criminal Court of Newark.

STICKEL, Jr., J.: The defendant-appellant was found guilty in the Third Criminal Court in the City of Newark, Judge Horace C. Grice presiding, for driving an automobile while under the influence of liquor, in violation of Section 1, Chapter 67, of the Laws of 1913, a supplement to the Disorderly Person Act, and he now appeals to this Court.

The first point urged as a ground for reversal of the conviction is that "at the close of the case there was a reasonable doubt as to the applicant's guilt; that the State had not sustained the burden of proof, and that the weight of the evidence favored the appellant."

It is to be doubted whether this Court has any power to review the evidence at all, in view of the Laws of 1895, Page 197, section 7, 3 Comp. Stat., p. 3993, providing: "That it shall not be necessary to set forth in said conviction [convictions in Police Courts of first-class cities] the whole or any part of the testimony upon which such convictions is had," but, assuming it possesses such power, it cannot extend beyond the point of determining whether there was any evidence before the trial Court to support its finding. See Sec. 39, Laws of 1915, p. 411, Supp. Comp Stat., p. 490; State v. Lynch, 3 N. J. L. Journal 45; Lyons v. Stratford, 43 N. J. L., 376; Orange v. McGonnell, 71 N. J. L. 418. No power to weigh the evidence rests in this Court, and, if it did, I would be unwilling to say, after a reading of the evidence in this case, that the trial Court was wrong in its conclusion of facts; that it should have disregarded the officer's testimony and that of Doctor Mitchell, and believe the story of the defendant and his friend; or even that the Court must have or should have entertained a reasonable doubt of the defendant's guilt on the whole case. The trial Court saw the witnesses, had the benefit of the atmosphere of the trial, witnessed the demeanor of the witnesses on the stand, their manner of testifying, and, consequently, was in a better position to determine [pg 48] questions of fact than this Court is, relying, as it must, upon a paper record.

There was ample evidence, if believed, to support the charge. The police officer testified that he saw the defendant driving the car, smelled alcohol on his breath, took him to Doctor Mitchell, the police surgeon, to whom the defendant admitted that he had been drinking, and who found him under the influence of liquor, and on the stand the defendant told of having had two drinks of whiskey.

The point stressed--that the police officer's claimed identification of the defendant as the driver on South Orange Avenue is so improbable and impossible as to make his whole story increditable incredible and unbelievable--presents a question of fact and argument peculiarly the province of the trial Court, but, in any event, the fair intendment from his testimony, it seems to me, is that either because of the speed of the auto in question, or because of the auto chasing the car in question, with the occupant waving his hand to the officer, he was attracted to the automobile in question, caught a glimpse of the driver, turned around, followed the car, ordered it to stop, saw the defendant while thus endeavoring to bring the car to a stand-still, and then saw him step out of the car and away from the driver's seat.

The next point urged is that the Court erred in sustaining an objection to this question addressed to Officer Moffatt by counsel for the defendant: "How many conferences have you had about this case this morning with Captain McRell, or Doctor Mitchell?" After this question was asked the Court said: "Is that material?" "Mr. Manning: I do not see that this is material. We have a right to prepare our case. I object." The Court: "Objection sustained. I think you [counsel for the defendant] probably talked about your case with your client." No objection was made to the Court's ruling by counsel for the defendant, no exception taken thereto, and no effort made to point out the materiality or relevancy of the question, or that it was but the foundation for some legitimate attack upon the credibility of the witness. In that posture of affairs the overruling of the question was in the discretion of the Court and was harmless. State v. Panelli (N. J.) 79 Atl. 1064.

The third and last ground urged for reversal is the action of the Court in permitting Doctor Mitchell to answer the following question over objection of counsel for defendant and exception duly taken: "And, in your opinion, would you say his condition to be such as to prevent his driving a car?"

Assuming the action of the Court constituted legal error, it could not prejudice the defendant, for the State was not required to prove that the defendant was so far under the influence of liquor that he could not safely drive a car, but merely to prove that he drove the car while "under the influence of intoxicating liquor." This is clearly pointed out by Justice Trenchard in State v. Rodgers, 102 Atl. 433 (at p. 435), where the Justice says: "It will be noticed that it is not essential to the existence of the statutory offense that the driver of the automobile should be so intoxicated that he cannot safely drive a car. The expression 'under the influence of intoxicating liquor,' covers only all the well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in [pg 49] intoxicating liquors, and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess." The State, prior to the propounding of the said question, had submitted testimony showing or designed to show that the defendant had driven the car while "under the influence of intoxicating liquor," and Doctor Mitchell had already testified that when he examined him he found him under the influence of intoxicating liquor.

No legal error being shown or appearing in the record, the conviction is therefore affirmed.

Exceptions to Accounting--Depreciation of Securities--Continuing Investments--New and Unlawful Investments.

Messrs. Riker & Riker (Mr. Theodore McC. Marsh and Harvey S. Moore), Proctors for Exceptant.

STICKEL, Jr., J.: August F. Eckert, of Orange, New Jersey, died on or about October, 1914, leaving a last will and testament, whereby he bequeathed his property to his wife, Caroline Eckert, and to his children Annie M. Eckert and Clara M. Eckert, to be divided equally between them as soon as the youngest child should arrive at the age of twenty-one years. He appointed William Scheerer, executor. Both of the children were of the age of twenty-one years at the time of testator's death. Scheerer duly qualified as executor, and from 1914 to the present time he has been in charge of the administration of the estate. After being cited to account he filed the account here in issue, and Annie M. Eckert, who has married and is now known as Annie Maxwell, filed numerous exceptions to the account. All of these exceptions were disposed of at the hearing except certain exceptions which fell into two classes, first, those relating to the depreciation on certain issues of bonds, generally described throughout the hearing as Public Service securities, and, second, the exceptions based upon the executor's failure to invest the cash on hand.

I will overrule the exceptions falling within the first class, namely, those seeking to surcharge the executor for depreciation of securities invested in by the testator and received by the executor as part of his estate.

The securities, the subject matter of the exceptions now under consideration, are investments made by the testator. Consequently, unless it can be shown that in continuing these investments the executor failed to exercise reasonable discretion and that there was an absence of good faith in so continuing them, he cannot be charged with depreciation of such stock. The burden of proving such lack of good faith and failure to exercise reasonable discretion is upon the exceptant.

This burden she has failed to sustain. I am convinced that whatever the executor did in the management of this estate was done solely with the best interests of the estate in mind.

When the decedent died his widow and two daughters remained together as a family and the executor proceeded to administer the estate [pg 50] possessed of the complete and entire confidence of the beneficiaries of the man who had had sufficient confidence in him to appoint him his sole executor.

It was his strict duty, perhaps, to close up the business of decedent, collect the assets, pay the debts and at the end of the year distribute, and had he done so he would early have been relieved of his responsibility. But he wanted to help the family, and so he departed from his strict duty and permitted the business to be continued for a time so that the family might benefit from the receipts thereof.

Again, he permitted the informal use and division of some of the debts collected and personal property left. But it is entirely clear to me that this was done by common consent of those concerned, including the exceptant. The three, constituting the family, were treated as an entity, and these and other departures from the strict line of the executor's duty were committed because they were for the common good.

In line with this policy of helpfulness on Scheerer's part, and of confidence and reliance upon the part of the devisees, the executor was given charge of the lands and permitted to continue the management of the estate long after it should have been wound up. He became, by tacit consent and common understanding, the trustee of the family. They wanted the benefit of his judgment and experience until the real estate could be sold and the proceeds properly invested. This he gave to them.

This continued during 1915, 1916 and 1917. No question seems to have arisen as to the propriety of continuing the investments, nor, indeed, were the executor's acts in any respect challenged during this period. Then the exceptant left the family and became Mrs. Maxwell, and in 1918 demanded an accounting.

Up to this point no evidence at all of bad faith or unreasonable exercise of discretion appears.

The result of the demand of the exceptant was the agreement by the executor and the exceptant, in the office of John P. Manning, her attorney, upon a settlement which provided for a payment of part of her share in cash and part in investments of decedent continued by the executor. The settlement fell through, not apparently because the securities or settlement were unsatisfactory, but because exceptant disapproved of the word "heirs" in the release requested of her by the executor.

At the time, in 1918, the exceptant was willing to take, as her share of the estate, some of the same investments which she now declares the executor was negligent in continuing. Thereafter, and up to the filing of the account, the attorneys of the exceptant and the attorneys of the executor were in frequent negotiation, endeavoring to settle the differences of the parties and agree upon a distribution or division. Certainly, during this period, the executor would not be charged with bad faith or failure to exercise reasonable discretion in keeping the subject matter of the negotiations in statu quo, ready for immediate distribution or division in the event of an agreement.

Where, then, is the evidence of lack of good faith and failure to exercise reasonable discretion? I can find none. Indeed, when it is realized that two of the beneficiaries are entirely content with the executor's retention of the securities in question; that that which the securities in question represent is as valuable to-day as when the decedent died; that the [pg 51] depreciation is a paper or market one, due to abnormal conditions general throughout the world; that with the return of normal conditions these securities are likely to find their old level, and that the exceptant herself has continued to hold her individual securities, of the same general type as those here in question, it is easy to believe that had the distribution of the estate taken place heretofore, to-day would have seen all parties holding on to their securities, collecting their accustomed income, hoping for the return of the conditions which would mean a rise in the market value of their said securities. The mere fact that the executor did not close up the estate within a year or two after the decedent's death, but continued to manage and administer it, including the real estate, with the consent of beneficiaries, did not increase or change his liability. He was bound to take the same care of the estate as before, no more, no less. Perrine v. Vreeland, 6 Stew. 102.

We will now take up the claim that the executor should have invested the cash on hand instead of keeping it in the bank, and that, having failed to do so, he must be charged with the difference between the interest he did get and that which he might have received had he invested it.

This exception is also overruled. It is true that, generally speaking, it is the duty of an executor to invest funds in his hands; but the propriety of charging an executor or trustee with interest because he has failed to invest the funds depends upon other facts than the mere possession of the funds, and I know of no case holding that where, pending negotiations for settlement and distribution, an executor left the funds of the estate in saving banks, he must be charged with the interest he might have received had he invested the funds of the estate and perhaps thereby interfered with the immediate liquidation and settlement of the estate. On the contrary the tendency of the decisions is to uphold such conduct.

His course prior to the demand in 1918 was acquiesced in by the exceptant; his actions since then were governed, and necessarily, by the continually pending negotiations. In any event the uninvested funds at best scarcely equalled at any time, as far as I can discover, two or three thousand dollars, sums perhaps not always easy to quickly and satisfactorily invest.

This leaves for consideration only the act of the executor in investing five thousand dollars of his cestui que money in Public Service funds. These were securities in which a trustee had no right to invest. They are not among those investments which our statute permits trustees to invest in, and, in establishing the investments, the exceptant has made out a prima facie case requiring explanation by the executor.

Undoubtedly the executor acted in good faith, but that will not protect him as in the case of continuing investments made by a decedent. His explanation, other than that he acted in good faith, appears to be that the investment was made with the acquiescence of the exceptant; that she is estopped from questioning the investment.

I doubt that the exceptant had actual knowledge of the investment when it was made, and the general acquiescence which negatived bad faith in the executor in continuing the decedent's investment would not suffice to protect the executor in making an investment of this kind. Nor do I find that she possessed the knowledge of this transaction that would permit of the application of the doctrine of estoppel.

[pg 52] As a consequence, unless there are facts which have escaped or have not been brought to my attention which relieve the executor from the normal effect of an investment of this kind, he must be charged with the depreciation of these bonds, unless the beneficiaries agree to accept the bonds as such.

[Note By Editor.--The above case, which has attracted much local attention, was in part sustained and in part overruled in the Prerogative Court on Jan. 31, and may go to the Errors and Appeals].

Insolvent Debtor--A preferential payment of a bona fide debt by an insolvent debtor does not bar his discharge under the Act for the Relief of Persons Imprisoned on Civil Process.

In the matter of Frank A. Vreeland. Application for discharge as insolvent debtor.

FLANNAGAN, J.: On June 29th, 1921, Peter M. Dalton recovered a judgment in tort against Frank A. Vreeland, in the Orange District Court, in the sum of $211.80 and costs; execution was issued and returned unsatisfied. On September 9, 1921, the debtor was taken into custody on a capias ad satisfaciendum and released on bail on the following day. The debtor now applies to this Court for a discharge as an insolvent debtor under the Act for the Relief of Persons Imprisoned on Civil Process, having filed what he claims is "a just and true account of all his real and personal estate," as provided by Section 6 of the Act.

It appeared from the testimony of the debtor on the hearing before this Court that, after entry of said judgment and on July 5, 1921, he executed to his sister, Laura A. Vreeland, a chattel mortgage, for the sum of $1,505, being the amount of a pre-existing debt for cash advanced by her to him between August 30, 1920, and the date of the mortgage (to wit, July 5, 1921). The debtor has no property of any substantial value remaining, and, while the value of the property mortgaged is questioned, it represented substantially all his resources and appears to be by no means equal in value to the amount of the loan against it, $1,505.

The creditor contends that the debtor, having thus made a preference in favor of his sister since the entry of the judgment, he is not entitled to a discharge. This is the only question which is involved in the present application.

The statute provides (Section 8) that the Court shall "consider and examine the truth and fairness of the account and inventory," and (Section 11) that, if the Court is "satisfied that the conduct of the debtor has been fair, upright and just," it may proceed to grant his discharge upon compliance by him with the further provisions as to assignment, etc., set forth in the statute.

Under Section 15 of the Act it is provided that if it shall appear that the debtors have "concealed or kept back any part of their estate or property, or made any ... mortgage ... with intent to defraud his creditor ... then ... said debtors shall be refused ... discharge."

[pg 53] The provision which requires the debtor's conduct to be "fair, upright and just" is restricted to his conduct in making his account and inventory, and "in delivering up to his creditors all his estate" (Meliski v. Sloan, 47 N. J. L. 83; Reford v. Creamer, 30 N. J. L. 253), and, unless the mortgage to the debtor's sister was with intent to defraud, it would seem he is entitled to his discharge. Of course, if the mortgage is fraudulent, he would not be entitled to it. Iliff v. Banhart, 60 N. J. L. 253; affd. 61 N. J. L. 286.

There is no evidence in the case that the consideration paid for the mortgage by the debtor's sister was fictitious, or was not bona fide, or that the mortgage was with any promise or expectation of future benefit to the debtor, or was otherwise improper. On the contrary the testimony is that the mortgage was given for money advanced. The only objection to the discharge which the evidence would justify is that the mortgage was given when the debtor was in failing circumstances while insolvent and after the creditor's judgment had been entered.

There is nothing fraudulent or wrong, within the meaning of the Act for the Relief of Persons Imprisoned on Civil Process in the giving of a preference knowingly by a person in an insolvent condition.

At common law every man, even when in failing circumstances, has a right to dispose of his property, to pay one honest creditor in preference to another one. Garretson v. Brown, 26 N. J. L. 437; affd. 27 N. J. L. 644; Stillman's Ex. v. Stillman, 21 N. J. Eq. 126. If the debt was honestly due the debtor had a right to select his favorites. There is nothing in the Act to change the common law on this subject and hence the debtor was within his legal rights when he made the preference referred to his sister.

Certiorari--Railroad Land Acquired by Park Commission by Condemnation--Disuse of Land by Railroad.

New York and Greenwood Lake Railway Co., a Corporation, and Erie Railroad Co., a Corporation, Prosecutors, against Essex County Park Commission. Application for writ of certiorari before Hon. William S. Gummere, Chief Justice.

GUMMERE, C. J. (orally): As I understand the situation with relation to the law and the facts, it is this:

The Park Commission, having been created by the Legislature for the purposes specified in the Act under which it was organized, conceived the idea of acquiring land to be devoted to the uses of a park up in Verona, and that was done, of course, under a form of resolution, and I assume, unless I am corrected, that the land to be embraced in the park was described, in a general way at least, in the resolution. Having taken that step they started in to acquire the land to be embraced in the [pg 54] proposed park, and in carrying out that purpose they approached this railroad company for the purpose of buying from them, for the purposes of a park, this particular piece of land, but they were unable to make any arrangement with the company with relation to its purchase and sale. I say that from my recollection of the provisions in the petition which was submitted to me, and the accompanying affidavits.

The railroad company at that time, and that was prior to the first of November, knew that this Park Commission proposed to acquire a tract of land, of which this particular piece was an integral part, for the purposes of public recreation, not only for the citizens of Verona and neighborhood, not only for the citizens of the county of Essex, but for all the citizens of the State who desired to enjoy that public benefit. Now, the Park Commission either had or had not the right to acquire this land in invitum, that is, against the will of the railroad company and by the exercise of the power of eminent domain given to them by the State itself, and so if they had desired to do so (and when I say "they" I mean the railroad company), they could have ascertained just what the steps were that had been taken by the Park Commission antecedent to the negotiations for the purchase of this land. They would have ascertained that this resolution had been passed and that this particular piece of land was only a part, perhaps a small part of the whole territory which was to be acquired and devoted as a unit to park purposes, but they did not do it. They sat still until they received notice that an application had been made to the presiding Justice here for the appointment of commissioners to condemn that piece of land, and a representative of the railroad company appeared here in response to that notice.

Of course, there was nothing that could be done in that particular phase of the matter which would operate as a stay, because the Judge in a matter of that kind sits as a mere legislative agent. But, after the Court had appointed the commissioners, this railroad company, having neglected to act promptly in the way that I have already suggested, by certioraring the resolution, and thereby preventing the expenditure of comparatively large sums, I suppose, of public moneys, still waited; not only waited, without attempting to halt the proceedings, but they actually attended before the condemnation commissioners. Counsel says with a reservation, or with an expostulation, or a protest, or what not, but they appeared there for some purpose, and I suppose to see what the award would be. I don't know whether they offered testimony or not as to the value of the land. That has not been spoken of.

The Court: With the apparent idea, then, that they hold on to their legal rights with one hand, and, if the award justified them in letting go, they would let go of their legal rights and take the money.

Now the question is whether in that situation this railroad company is in a position to ask relief from a Judge of the Supreme Court, the relief being in the shape of a writ of certiorari; and whether or not the writ will be awarded is a matter resting in the discretion of the Court. I am not speaking about the question of laches, but, in determining whether this writ ought to issue, I must take into consideration all of the circumstances. It appears that the railroad company, instead of acting promptly, has stood by supinely and seen the county of Essex expend a large amount [pg 55] of money for the purpose of acquiring property, the value of which for public purposes would be greatly depreciated if they were to be prevented from taking this land as a part of the scheme to be carried out.

So, I would be inclined to say that, in view of that situation, in the exercise of a proper discretion, I ought to tell the railroad company that I cannot see my way clear to allow this writ; that it would be greatly injurious to the people of Essex county and the people of the State, even, and would produce that injury, although the people and their representative, the Park Commission, are in no way responsible for it.

This railroad company received from the State of New Jersey a grant, by the terms of which it was permitted to acquire lands for the construction and operation of a railroad between given points. That grant was not as a matter of course made to the railroad company for the purpose of benefitting it, but to provide a means of transportation by which the public would be served; and it was an implied part of the contract which was created by the tender of the grant and its acceptance, that this corporation would, within a reasonable time, not only acquire the land but build the railroad and carry the people of this State backward and forward across it for the compensation which the Legislature permitted the railroad company to charge; and for over half a century they have violated the implied condition of their agreement. They have acquired the land. They have not attempted, and so far as I know never will attempt, to devote this land to the purposes for which alone they were entitled to acquire it. They are holding it out of the general property of the State, and by doing so prohibiting its use for the benefit of the State, or any of its citizens, or anybody else. In other words, it is not land that is being held by this company for railroad use. It has never been so used by them, since it was acquired over a half century ago, and, so far as anybody can tell, it is quite uncertain whether it ever will be used for the purposes for which its acquisition was permitted.

Now, in that situation, the State comes along and through its agent, the Essex County Park Commission (for that Commission is a State agent) says: 'We need this land for public use. You have had your chance to devote it to that use; you have consistently declined, by inaction at least, to so devote it, and now we are going to devote it to the uses and benefits of the State and of the people of that part of the State located within the borders of the County of Essex,' and I am inclined to think that this was the situation contemplated by the Legislature which induced the reservation in the Act of 1921 that railroad companies should not be permitted to act as dogs in the manger and hold out land which they cannot use themselves, never have used, and perhaps never will use, for the only purpose to which they could devote it under their charter. And so, I think, for this reason also this application should be denied.

In re West Shore & Seashore R. R. Co.--Application to discontinue maintaining an agent at Forest Grove, as revenues do not warrant expense of the agency; the place to be put under the supervision of the agent at [pg 56] Minetola, who would keep the station open, lighted, etc. The Board permitted the discontinuance, adding that "if future conditions change to the extent of warranting the re-establishment of an agent, the matter will be given further consideration." Report dated Nov. 4, 1921. Mr. George A. Bourgeois for the Company. Mr. Joseph Little and Mr. Charles H. Lincoln for Protestants.

Another application was made at the same time by the same Company for the discontinuance of the agent at Buena. The Board said: "While the reasonableness of the Company's desire to reduce operating expenses is recognized, the discontinuance of the agent would undoubtedly result in inconveniencing shippers and receivers of freight and express to an extent that would not be justified considering the volume of business. The necessity for the presence of an agent or clerk for a portion of the day is manifest, and arrangement should be made to have a representative at the station from 8 A. M. until 1.30 P. M. daily, excepting Sundays: also that the station be kept open during the hours it is at present open for the convenience of passengers. If the Company will arrange to have a representative at the station for the transaction of necessary business from 8 A. M. until 1.30 P. M., and keep the station open covering hours now in effect, the Board will approve such an arrangement in lieu of agency now effective." Report dated Nov. 4, 1921. Mr. George A. Bourgeois for the Company. Mr. Charles Wray for Protestants.

In re Pennsylvania R. R.--Application to discontinue an agent at Allaire. Permit granted. Report dated Nov. 4, 1921. Mr. W. Holt Apgar for Petitioner.

In re City of Newark.--Application for a change in the colorific standard of gas. The Board was about to investigate the rates charged for gas by the Public Service Gas Co., when the City of Newark gave notice of a demand for an increase in the standard. "There was thus," said the Board, "injected into the proceeding a question which had to be decided before the Board's investigation into the rates could proceed, it being impossible to fix a price for gas until the Board should fix the standard for gas under Newark's petition. The rule fixing the standard for gas being applicable to all gas companies in the State, general notice of hearing was given, and the gas companies were represented." Testimony was begun in August last, and the general purport appears in the Report. The Board said: "It does not appear that the gas supplied by the Public Service Gas Company compares favorably with that furnished by other companies, which, confronted by the rule [IX of the standard adopted by the former Utility Board] alone, have applied it in accordance with its apparent literal significance. The rule, however, should be free from any misunderstanding as to its meaning. As the Public Service Gas Company supplies the greater part of the gas consumed in the State, and to now require it to change its interpretation of the rule might result in undesirable complications in the rate proceeding being conducted by the Board without corresponding advantage to its customers, it is deemed inadvisable to insist upon such change. In order, however, that there may not be a continued apparent conflict between the rule as worded [pg 57] and the practice of the Company, the Board will change the wording of the rule so that there will be no doubt if gas is supplied with a minimum daily average of 525 B. t. u. it will be in compliance therewith." Report dated Nov. 4, 1921. Messrs. E. W. Wakelee, E. A. Armstrong and G. H. Blake for Public Service Gas Company. Mr. Jerome T. Congleton and Mr. J. G. Wolber for the City of Newark. Mr. George L. Record for City of Jersey City. Mr. Benjamin Natal for City of Camden. Mr. William A. Kavanagh for City of Hoboken. Mr. Joseph T. Hague for City of Elizabeth. Mr. A. O. Miller for City of Passaic. Mr. William P. Hurley for Town of Nutley. Mr. Welcome W. Bender for Chamber of Commerce of Elizabeth. Mr. F. R. Cutcheon for Consolidated Gas Company. Mr. S. J. Franklin for Cumberland County Gas Company. Mr. H. S. Schutt for Atlantic City Gas Company. Mr. William Wherry, Jr. for New Jersey Gas Association. Dr. W. G. Hanrahan for Rent Payers' Association of Essex County and Federation Improvement Associations. Mr. James W. Howard on his own behalf.

In re Blackwood Water Co.--Application for increase in rates. The Board required, first, that changes must be made in the system so as to provide for continuous operation of the filter plant, additional power to operate the pumping machinery, etc., six different improvements in all. Doing this the Company could make certain increases in rates beginning Jan. 1, 1922. Report dated Nov. 9, 1921. Mr. Lewis Starr for Petitioner. Mr. Samuel P. Hagerman for Township of Gloucester.

In the habeas corpus proceeding of Jones v. Hicks, decided by the Georgia Supreme Court and reported in 104 Southeastern Reporter, 771, portions of the statement of facts and opinion of the Court by Judge Gilbert are as follows:

"Jones was arrested under a bench warrant issued by the Judge of the city court of Macon, based upon an accusation charging him with violating the prohibition law of this State on January 21, 1920. He filed a petition for the writ of habeas corpus, based upon the ground that the Eighteenth Amendment to the Constitution of the United States, which was ratified on January 16, 1920, and the 'National Prohibition Act' known as the Volstead Act (41 Stat. 305), superseded and abrogated all State laws on the subject covered by said Eighteenth Amendment, and that therefore, at the time this defendant is alleged to have committed the criminal offense charged in the accusation, there was no valid State law in existence. The court refused to release the petitioner, and that judgment is excepted to....

"The second section of the amendment as proposed to the States and ratified, provides that 'The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.'

"Three views as to the proper construction of the second section have been generally discussed: (1) That concurrent power means joint power; (2) That the power is given to each, the legislation of either Congress [pg 58] or the States being of equal force with the other; and (3) that the power is in each, but that the legislation of Congress, as the supreme law of the land, will supersede any inconsistent State legislation....

"The Supreme Court of the United States having adversely disposed of the contention that 'concurrent power' means joint power [State of Rhode Island v. Palmer, 40 Sup. Ct. 486], there remain two other views to be considered. Similar, but not identical, questions have been discussed heretofore by Courts of several States and by the Supreme Court of the United States. None of these involved construction of delegated powers to be exercised concurrently. They are cited here for comparison, and not as controlling....

"The sphere in which the Congress, under the Eighteenth Amendment, may legislate for the enforcement of prohibition, is limited to the precise terms stated in the amendment, to wit, 'concurrent enforcement....' From a consideration of the question as above presented, we reject the view that the legislation of Congress will supersede and abrogate the laws of the State which are appropriate for the enforcement of the amendment. We conclude that the power of Congress and of the State is equal and may be exercised by the several States for the purpose of enforcement concurrently within their legitimate constitutional spheres. Ex parte Guerra (Vt.) 110 Atl. 224, and authorities cited. The first section of the amendment is in no way affected or qualified by the words 'concurrent power,' found in the second section."

An automobilist, driving his car at an excessive rate of speed along an improved country road in the night-time, struck and killed two cows being driven along the highway. The animals were walking, one behind the other, in or near the wheel track on the side of the road on which they belonged. The machine, after striking the leading animal, skidded and struck the other cow, killing her instantly and casting her dead body, a distance of 57 feet. The driver admitted he was going "about" 25 miles an hour; and the Court comments: "The result of the catastrophe indicate rather strongly that he underestimated his speed."

The Vermont case of Bombard v. Newton, 111 Atl. 510, is based on this occurrence, and was instituted by the owner of the animals to recover damages for their negligent killing. The Court held that the right to drive an automobile along a public highway is not superior to that to drive cows along the highway. "The parties," states the opinion, "had equal and reciprocal rights to the use of the road, and each owed the other the duty of so exercising his own right as not to interfere with that of another.

The fact that it was in the night-time affected the rights of the parties only as it bore upon the amount of vigilance each was bound to exercise. The fact that the defendant was operating an automobile, an instrumentality whose capacity for harm is well exemplified by the results in this case, and the fact that the plaintiff was driving cows, animals whose viatic vagaries have come to be known of all automobile drivers, were conditions affecting merely the degree of care required of the parties respectively."

On Dec. 2 the Court of Errors and Appeals, by a tie vote, 7 to 7, practically affirmed the decision of Vice-Chancellor Griffin in denying an injunction to the Public Service Railway Co. to prevent operation of jitneys on the public highways. The affirmative votes were by Justices Black, Kalisch, Parker, Swayze and Trenchard, and Judges White and Van Buskirk; the negative by Chief Justice Gummere, Justices Bergen, Katzenbach and Minturn, and Judges Williams, Gardner and Heppenheimer. Justice Minturn wrote an opinion for the negative view.

The essential points relied upon by counsel for the railway company in support of the application for an injunction against the jitney owners were that none of the defendants had applied for and obtained consent for the use of the streets and highways on which they operated, as required by the Limited Franchise Act of 1906; that none of the defendants filed with the chief fiscal officer of the city in which they operate a policy of insurance, as required by the Kates Jitney Act of 1916; that Barnett, though filing a policy of insurance in Newark, filed only a copy of the policy in Elizabeth; that Banker filed a policy in New Brunswick, but none in South Amboy; that the Public Service Railway in the enjoyment of a legal franchise is entitled to an injunction against the alleged illegal competition on the part of jitneys, and that the Public Service is entitled to protection of its franchises and business by injunction under decisions of the New Jersey court.

Merritt Lane, counsel for the jitney owners, questioned the jurisdiction of the Court of Chancery to grant the injunction, contending that the rights of the Public Service are not of such a nature as to justify it in seeking relief in any Court, and argued that the franchise of the company was not to transport passengers for hire and reward but to lay and maintain rails in public streets and to operate cars thereon. Mr. Lane also submitted that to grant the injunction would create a result manifestly opposed to public policy and would result to the disadvantage of the public. He submitted that the Company was not in a position adequately to handle the traffic and that if the jitney were eliminated hundreds of thousands of persons would be obliged to walk or stand while riding.

The County Clerk of Sussex, Mr. Harvey S. Hopkins, has appropriately called the attention of municipal clerks in that county to their neglect of duty under the hunting and fishing license law. Doubtless the same neglect has resulted in other counties. In sending out the supply of 1922 licenses Mr. Hopkins wrote:

"In every monthly report compiled by this office I can see instances where resident hunting licenses have been improperly issued to foreigners who have not yet acquired their final naturalization papers. This is both unjust and unlawful and sooner or later some issuing clerk will encounter serious trouble through his laxity in this matter. Unless you have personal [pg 60] knowledge respecting the applicant, there is but one safe procedure: Compel him to produce his certificate of final naturalization. His first papers, or declaration of intention are not sufficient."

Mr. Hopkins also called the attention of the municipal clerks to the change in the fish and game laws which no longer exempt women from the necessity for procuring a license. Formerly women were not required to have licenses to fish, although they had to get them to hunt. Now they have to have licenses for both, as per Chapter 112, Laws of 1921.

Mr. Nelson B. Gaskill, formerly Assistant Attorney-General of New Jersey, and now a member of the Federal Trade Commission, has been elected chairman of that body. He is the second Jerseyman to enjoy that honor, the late J. Franklin Fort, former Governor, having been chairman several years ago.

Mr. Gaskill is a son of former Judge Joseph H. Gaskill of Burlington County, was for many years connected with the New Jersey National Guard and during the late War held the rank of Lieutenant-Colonel in the Judge Advocate-General's Department. He was appointed to the Federal Trade Commission by the then President Wilson.

The New Jersey Law School Alumni Association has completed its organization. The officers elected are: Judge Clyde D. Souter, President; John A. Ammerman, first Vice President; Miss Irene Rutherford O'Crowley, Second Vice President; John A. Matthews, Third Vice President; Miss Helen Oppenheimer, Secretary; Raymond Foster Davis, Treasurer.

At the dinner in the Berwick Hotel, Newark, more than 100 lawyers in this State, all graduated from the school, attended. Richard D. Currier, President of the law school, told the guests of the advantages gained by promoting good fellowship in the form of an alumni association.

A certain lawyer was asked by an acquaintance how it was that lawyers contrived to remain on such friendly terms with each other, although they were famed for their cutting remarks.

"Yes, but they're like scissors; they only cut what comes between."--Japan Advertiser.

His Honor: "Get the prisoner's name, so we can tell his mother." Rookie: "He sez his mither knows his name."--Vaudeville News.

"I don't mean t' say nothing," said the prisoner, stoutly, "but I ain't taking no chances. I done some plumbin' work for you last winter!"--Richmond Times-Dispatch.

There recently died in Illinois an aged farmer, reputed to be wealthy. After his death, however, it was discovered he left nothing. And his will ran like this:

[pg 61] "In the name of God, amen. There's only one thing I have. I leave the earth. My relatives have always wanted it. Now they can have it."

Mr. Hardfax: "So your son left us to go into a bank in the city? How did he acquit himself?"

Mr. Timbertop: "He didn't acquit himself. It took the best lawyer in the county to get him acquitted."--Boston Globe.

The 146th session of the New Jersey Legislature opened at Trenton on January 10. The Senate consisted of 16 Republicans and 5 Democrats; the Assembly of 45 Republicans and 15 Democrats.

There are two women in the Legislature, Mrs. Catherine Brown, Democrat, of Hudson county, and Mrs. Margaret B. Laird, Republican, who was reëlected from Essex county.

Senator William B. Mackay, of Bergen county was elected President of the Senate; and Assemblyman T. Harry Rowland, of Camden, Speaker of the House of Assembly.

Among the recent appointments by Governor Edwards the following will prove of special interest to the Bar:

Judge Walter P. Gardner, Jr., of Jersey City, member of the Court of Errors and Appeals.

Mr. Samuel M. Shay, of Merchantville, Common Pleas Judge of Camden county in place of Judge John B. Kates.

Mr. Willis T. Porch, of Pitman, Prosecutor of the Pleas of Gloucester county, to succeed Oscar B. Bedrow.

On Jan. 5 former Judge Maja Leon Berry, solicitor of the Ocean County Board of Freeholders, entertained that body, the county officials and newspaper men at a dinner at the Ocean House. The occasion was the host's forty-fifth birthday and he has followed this custom of entertaining the officials for the past twelve years.

Mr. James R. Nugent, of Newark, was nominated on January 16 by the Governor for Prosecutor of the Pleas of Essex county, but, a week later, was refused confirmation by the Senate, by a vote of 17 to 3.

Mr. William E. Holmwood, of Newark, has removed his law office to 43 Washington street.

Mr. J. Victor D'Aloia, of Newark, has gone to Europe for a stay of about two months, so as to visit his parents in Italy.

A testimonial dinner was given to Judge Rulif V. Lawrence, of Freehold, at the Hotel Belmont at that place, on January 2, and he was presented with the gift of a gold watch.

The Monmouth Co. Bar Association held its annual meeting at Freehold on January 3 and reëlected its President, Halstead H. Wainwright, of Manasquan.

The Union Co. Bar Association [pg 62] held its annual meeting at Elizabeth on January 3 and elected as its President Mr. Clark McK. Whittemore. It decided to ask the Legislature to increase the jurisdiction of the District Courts.

State Senator Thomas Brown, of Perth Amboy, was appointed counsel for the Public Utilities Commission on January 3, to succeed Mr. L. Edward Herrmann, although the latter is still retained by the Commission as special counsel in the prosecution of the Public Service rate case before the United States Supreme Court. Senator Brown has practiced law at Perth Amboy since 1907.

Mr. George Walker Jenkins, one of the best known lawyers of Morristown in former years, afterward as active in corporation matters in New York City, died in Memorial Hospital, New York City, on January 19, 1922. He had been out of health for some months, but went to the Hospital only a few days before his death.

Mr. Jenkins was born November 7, 1848, at Catasauqua, Pa., his parents being George and Hannah (Morgan) Jenkins, who were Welsh people and born in Wales. After the usual early education he entered Yale College, from which he was graduated in 1870. He studied law with Messrs. Parker & Keasbey, in Newark, and was admitted to the New Jersey Bar at the November Term, 1873, and became counselor at the February Term, 1880. He began practice at Boonton, but later went to Morristown, where he soon became one of the most active lawyers of the place. He had ability, assiduity and exactness in office matters, being so exact in fact that he became one of the most popular Special Masters of the Court of Chancery to whom other members of the Bar referred their cases whenever practicable. Taking early to politics he was soon prominent in the Republican party, and was elected and served as a Member of the Assembly during the years 1883, 1884 and 1885. He was also counsel to the Board of Chosen Freeholders, and at one time served as Journal Clerk of the New Jersey Senate. In 1886 he ran for State Senator for Morris county, but was defeated by George T. Werts, who afterward became Governor.

About twenty-five years ago Mr. Jenkins, while not removing from Morristown, went to New York City, and was engaged from then until recently, when his health became impaired, in carrying on legal business connected with various extensive corporation enterprises. He was Vice-President and director of the Bridgeport (Conn.) Gun Implement Co. and Remington Arms Co., director of the M. Hartley Co., Treasurer and director of the Union Metallic Cartridge Co., Trustee of the Washington Trust Co., etc., in all of which his legal knowledge was used with skill and real ability. He owned a large and handsome residence in Morristown, and also the Silver Lake Farms at Green Village. He was a member of the Morristown Club, Morris County Golf Club and the University, Yale and Union League Clubs of New York City.

Mr. Jenkins married Miss Helen Hartley, daughter of Marcellus Hartley, of New York City, who, with one daughter and two grandchildren, survive him. His eldest daughter, Mrs. Frances Greer, of New York City, died about two years since; the surviving daughter [pg 63] is Mrs. Winter Mead, of Sand Beach, Conn. He is also survived by a sister, Mrs. A. L. Dennis, of Plainfield, and by nieces. The interment was at Boonton.

Mr. James A. Gordon, an active practicing lawyer at Jersey City, died suddenly at his home, 638 Pavonia avenue, on January 11. Complaining that he felt ill, Mr. Gordon left his office the day previous, but his illness gave no indication that death was near.

Mr. Gordon was the son of John A. and Isabella (Leslie) Gordon, and was born in the city of Bergen (now Jersey City), October 7, 1860. He was graduated from the Jersey City High School in 1881; read law with Mr. John Linn and Linn & Babbitt, and was admitted as a New Jersey attorney at the June Term, 1885, and as counselor at the June Term, 1888. He soon became one of the ablest of the younger members of the Hudson Bar. His office was at 586 Newark avenue, Jersey City, at the time of his death. He was unmarried and made his home with a sister, Miss Isabelle Leslie Gordon, who, with a brother, William Stewart Gordon, survives him. He belonged to the Bergen Lodge, F. and A. M., and the Hudson Bar Association.

Mr. Robert Imlay Hopper, of Paterson, long a prominent attorney of that city, died on January 24th after a few days illness from a general breakdown.

Mr. Hopper was the son of the late Judge John Hopper and Mary A. (Imlay) Hopper, of Paterson, and was born in that city May 28, 1845. After a public school education he entered Rutgers College, being graduated there in 1866. He studied law with his father and became a New Jersey attorney at the June Term, 1869, and a counselor three years later. For many years father and son were associated in practice in Paterson, being severed only because the father was elevated to the Bench. In 1878 he was chosen counsel to the Passaic Board of Chosen Freeholders and served as such for ten years. He was also secretary to the Paterson & Hudson River Railroad (now part of the Erie R. R.), holding that office at the time of his death. He was active in the National Guard of New Jersey, having been Major and Judge Advocate, and was prominent in Masonic circles and in various clubs. His wife, who was Miss Ida E. Hughes, died April 24, 1878. One daughter, Ida, survives.

On February 2 the Court of Errors and Appeals of this State declared the Van Ness Prohibition Enforcement Act unconstitutional. This decision reverses the Supreme Court in the three test cases involving the constitutionality of the Enforcement Act and sets aside the opinion written in the lower Court by Mr. Justice Minturn, presumably concurred in by Justices Trenchard and Bergen, who heard the argument below. Had they sat in the full Court there would have been so close a division that the Court would have stood, as we see it, almost even.

The news comes to us just as we are going to press, so that the text of the decisions and dissents is not available. The newspapers state, however, that four opinions were filed and that results on single propositions tended to sustain the constitutionality of procedures while as a whole the Act was overthrown. Says one newspaper:

[pg 64] "On the question of a jury trial, the Justices found that the denial of it was proper, six votes to five. That the Act was not unconstitutional in describing as a misdemeanor what the Federal Volstead Act describes as a crime, the Court agrees six to six, which upholds the Act. On the two questions of whether the Act was properly described in its title, and whether the functions put upon the magistrates by it could properly be exercised, the Court upholds it nine to two. In other words, each one of these features is in itself constitutional. But there are eight Justices who disagree with it on one point or another and only four who found nothing to disagree with. Therefore, we have the curious phenomenon of a piece of legislation constitutional in each separate part, but under which, as it stands, it is impossible to secure a conviction that will be affirmed. In other words, the Act will not stand as it is."

Chancellor Walker devoted the main part of his opinion to consideration of the constitutional question involving the right of indictment and trial by jury, in which he held that the Act was defective. Among other things he said:

"It is almost superfluous to say that the proceedings under view are void because there has been no indictment, as that is a mere corollary to the proposition that they are void because the defendant was denied the right of trial by jury. No one can be put upon trial before a traverse jury in New Jersey for a commission of a crime unless upon the presentment of indictment of a grand jury, except in cases of impeachment or in cases cognizable by justices of the peace (or certain military or naval cases)."

Chief Justice Gummere's opinion was concurred in by Justice Swayze and Judges Gardner, Ackerson and Van Buskirk. It approached the subject from a different angle than the chancellor, reaching the conclusion that, with the passage of the Eighteenth Amendment, the State had to surrender part of its police power to the Federal Government, and therefore was bound to legislate in conformity with the Volstead Act, which, passed under authority of the Federal Constitution, becomes the supreme law of the land.

Justice Kalisch held that the supreme law of the land, embodied in the Volstead Act, having made certain offenses a crime, it was not within the power of the State to classify them as petty offenders.

Consideration was given by Judge White to the questions relative to the right of trial by jury and the alleged erroneous interpretation on the question of concurrent power. As to the first objection, that relating to the right of trial by jury, Judge White said he thought the real underlying historically established test depends upon the character of the offense involved rather than upon the penalty imposed.

"The offense must be a petty and trivial violation of regulations established under the police power of the State in order that the offender may be summarily tried, convicted and punished without indictment by a grand jury and without trial by a petit jury." It must, of course, Judge White said, be assumed that the punishment for a petty and trivial offense will also be comparatively petty and trivial, otherwise it would violate another provision of the State Constitution which prohibits cruel and unusual punishment.

Transcriber Notes:

Errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted.

On page 38, a single quote was added after "and no longer"

On page 48, "increditable" was replaced with "incredible".

On page 48, "canot" was replaced with "cannot".

On page 52, "execuetd" was replaced with "executed".

On page 58, "nighttime" was replaced with "night-time".

On page 60, a dash was added before "Japan Advertiser".

On page 64, "qustions" was replaced with "questions".

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The Project Gutenberg eBook of The New Jersey Law Journal, Volume XLV, No. 2, February, 1922

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