Central Law Journal. ST. LOUIS, MO., APRIL 30, 1897. The question as to the jurisdictional locality of the crime of homicide is often difficult of determination. Two recent Kentucky cases, the facts of which have been given national prominence, are of interest and value on the subject. Jackson v. Commonwealth and Walling v. Commonwealth, 38 S. W. Rep. 422, 1091. It was held by the Court of Appeals that although an attempt to commit murder by administration of poison in another State is supposed by the guilty party to have been successful, and he brings the victim into Kentucky and there beheads her for the purpose of concealing his crime, he can be convicted of murder in Kentucky, although, contrary to his supposition, the victim was at the time of the beheading still alive. In the view of the court, when the result of a criminal act is death within the territorial limits of the State of the forum, the perpetrator may be liable for murder in such State, though the wrongful act itself was performed in another State and evidence of acts performed in another State, though they may not have been actually potential in the commission of murder, is nevertheless competent to show probable motive. In any view the liability for murder was in Kentucky. If the cause of death was the beheading, the evidence of the administration of the poison was competent to show motive, and if the poison was the cause of death, the liability for administering the same was in Kentucky, because the fatal result occurred there. A case somewhat similar and in which the court reached the same legal conclusion is State v. Hall, 40 Cent. L. J. 141, 148, decided by the Supreme Court of North Carolina. In that case it appeared that defendant standing in his own State very near to the Tennessee line, fired a shot which caused the death of one who was across the boundary line in Tennessee. The defendant was tried and convicted of murder in North Carolina, but the conviction was reversed on appeal on the ground that in contemplation of law the defendant was in Tennessee when the killing was done; that the courts of Tennessee alone had jurisdiction, because the prisoners "were deemed by the law to have accompanied the deadly missile sent by them across the border, and to have been constructively present when the fatal wound was actually inflicted." In other words as the Kentucky court in the present case says, "the locality of a crime is the place where the wrongful act accomplishes its effect." The technicality of legal contention is seldom carried to so absurd an extreme as by the appellant in the recent case of Moore v. Jones, 39 S. W. Rep. 593, decided by the Court of Civil Appeals of Texas. The action was by a railroad conductor against his employers for damages resulting from collision. It appeared that the injury was caused by the parting of a freight train wherein the conductor and brakemen were left in the caboose and the engineer, fireman and head brakeman went on in charge of the engine and a few cars. The separation of the different parts of the train was not discovered by the conductor until the collision occurred. In order to relieve himself from the effect of the common law doctrine prevailing in that State, that a conductor and engineer of a railroad train are fellow-servants, the counsel for the conductor contended that, as the train had parted, new relations existed between him and the engineer; that the hind end was under his control, while the front end was under the control of the engineer; and that this parting of the train created the same relations between him and the engineer as would, under the law, have existed between conductors of different trains. The court appeared to consider the point seriously, in so far as to say that they could not assent to the proposition, because the relation of fellow servants undoubtedly did exist between him and the engineer before the parting of the train, and this relation was not changed by the accident which brought about the injury. mercial Travelers' Mut. Acc. Assoc. v. Fulton, decided by the United States Circuit Court of Appeals for the Second Circuit, was an action upon a policy of accident insurance, providing, among other things, that the insurance should not extend to or cover accidental injuries or death, resulting from or caused directly or indirectly, wholly or in part, by hernia, fits, vertigo, somnambulism or disease in any form, or while "effected" thereby, where it appeared that the deceased suddenly fell on the sidewalk of a street, striking an iron waterspout, thereby visibly bruising his head and face, and there was evidence from which the jury were entitled to infer that the fall was caused by an accidental slip upon snow or ice, and it also appeared that the deceased was at the time of the accident affected with a seriously diseased condition of the heart. It was held that although many passages in the charge to the jury plainly indicated the correct rule that the beneficiaries could not recover unless the jury were satisfied that the accidental injury was sufficient of itself to cause death to a healthy man, yet in its general effect the charge failed sufficiently to impress upon the jury that if the diseased condition of the heart contributed to cause death the beneficiaries could not recover. In Hess v. Preferred Masonic Mut. Ace. Assoc., 70 N. W. Rep. 460, the Supreme Court of Michigan held that a banker, who, while in a saw-mill to get some boards sawed for a cabinet to be used in the bank, operates a saw to cut off some pieces for handles, is not controlled by the provision of an accident policy declaring it void as to accidents occurring when engaged in any profession, employment or exposure not rated in the policy as a preferred occupation, he not being engaged in sawing as a business. USURY-NATIONAL BANKS.-It is decided by the Supreme Court of Texas in Boerner v. Traders' Nat. Bank, 39 S. W. Rep. 285, that under Rev. Stat. U. S. § 5198, providing that the taking of usury by a national bank "shall be deemed a forfeiture of the entire interest," and that the person paying it may recover back "twice the amount of the interest received," the measure of recovery is double the whole interest received. The court says: In Crocker v. Bank, 1 Thomp. Nat. Bank Cas. 317, 4 Dill. 358, and Fed. Cas. No. 3397, decided in 1876, Dillon, circuit judge, in passing upon this question, said: "The next question is whether the recovery shall be for double the whole amount of interest paid, or only double the amount in excess of the legal rate, whether that be 7 or 12 per cent.? Where an illegal rate of interest is charged, and an action is brought on the contract, the statute declares a 'forfeiture of the entire interest;' and, if the usurious interest has been paid, the statute gives an action to recover back, not simply the excess over the legal rate, but 'twice the amount of interest thus paid,' that is, paid in pursuance of a usurious contract or transaction. National banks owe a duty to the public to observe the limitations of the act of congress in respect of the rate of interest,-limitations wisely imposed, but in many of the Western States at least, very frequently disregarded. They have privileges enough, without usurping others. They have powers enough, without exercising those not conferred, or transcending the limits of their charters. They ought not to become usurers; and, if they do, public policy is promoted by an enforcement of the penalties which the statute has denounced. It should be borne in mind that the statute confirms the action to the person who has paid the illegal interest, or to his legal repre sentatives, thus showing that it was in part its purpose to repair this loss or reimburse his estate; there being superadded, for the purpose of preventing such violations of the law, the infliction of a penalty of twice the amount of interest paid. This penalty was doubtless supposed by congress to be no more than would be reasonably sufficient to cover the excess of interest over the legal rate, and costs and expenses of litigation, and at the same time make it more profit. able, to the banks to obey the law than to violate it. Judgment will be entered for the plaintiff for $2,219.92, that being twice the full amount of interest paid on the usurious transactions set out in the petition not barred." The same ruling was made by Gresham, district judge (Drummond, circuit judge, concur ing), in Bank v. Davis, I Thomp. Nat. Bank Cas. 350, Fed. Cas. No. 10,038, decided in 1867, and by Wheeler, district judge (second circuit, Vermont), in Hill v. Bank, 15 Fed. Rep. 432, decided in 1883. We know of no decision by the Supreme Court of the United States directly in point. In Bank v. Dearing, 91 U. S. 29, decided in 1875, it was held that a State statute avoiding a contract for usury could not affect national banks, the penalties as to them being prescribed solely by the act of congress above quoted, in reference to which it was said: "The 46th section of the banking act of February, 1863, declared that reserving or tak ing more than the interest allowed should 'be held and adjudged a forfeiture of the debt or demand.' In the act of 1864 (being the one above set out) the forfeiture of the debt is omitted, and there is substituted for it the forfeiture of the interest stipulated for, if it had only been reserved, and the recovery of twice the amount where the interest had been actually paid." This language is made the basis of the opinion of Gresham, district judge, above cited. In Oates v. Bank, 100 U. S. 239-250, referring to this statute, it was said: "It denounces no penalty other than a forfeiture of the interest which the note or bill cre ates, giving to the debtor the right to sue for and recover twice the amount of interest so paid." While, as above indicated, the Supreme Court of the United States has not passed upon this question, nevertheless, in the two opinions just cited, we think the views of that court are clearly stated, as being in ac cordance with those above cited from the judges of the inferior federal tribunals. Thus it appears that, as far as the question has been decided or foreshadowed, the federal courts, whose special province it is to determine the true construction of the act of congress in question, have construed and favor the construction of the statute which permits a recovery of double the whole interest paid. The same construction has been adopted in the following cases: Bank v. Trimble, 40 Ohio St. 629; Bank v. Karmany, 98 Pa. St. 65; Bank v. Bollong (Neb.), 40 N. W. Rep. 413, 45 N. W. Rep. 164; Bank v. Alves (Ky.), 15 S. W. Rep. 152; Wiley v. Starbuck, 44 Ind. 298. We will now notice the two cases holding a contrary doctrine. In 1872, in Bank v. Lab, 50 N. Y. 95, it was held that the State statute avoiding the entire contract for usury was applicable to transactions by national banks. The same doctrine was asserted by that court in Bank v. Dearing, but the cause having been removed by writ of error to the Supreme Court of the United States, it decided in 1875 (91 U. S. 29), as above indicated, that the statute of New York could not impose upon a national bank a penalty for usury other than that prescribed by the national banking aet, and therefore reversed the decision of the court of appeals of New York holding the entire contract void, and held that the bank was entitled to recover the principal of the note sued upon, less the amount of interest unlawfully reserved. In the opinion in this case is found the expression above quoted, indicating the views of the supreme court upon the ques tion under discussion as being in accord with those of Judge Dillon. In 1876. in Hintermister v. Bank, 64 N. Y. 212, the court of appeals of that State, after referring to the fact that the Supreme Court of the United States, as above indicated, had recently overruled the doctrine of Bank v. Lamb, 50 N. Y. 95, and drawing therefrom the inference that that tribunal would interpret all doubtful language in the nationai banking act favorably to the banks, reluctantly held that, in a suit against a bank to recover the penalty prescribed by the statute where usurious interest had been paid, the plaintiff was not entitled to recover double the entire interest paid, but could only recover double the excess of the interest paid over what might have been lawfully charged. In support of its opinion the court there say that "the Supreme Court of Pennsylvania have given the same interpretation to the act of congress in Brown v. Bank, 72 Pa. St. 209." We have examined the Pennsylvania case, and are of opinion that no such question was therein involved, discussed, or decided. The statement of the ease shows that the bank sued Brown on certain notes. The defendant, among other propositions, asked the court to declare the law to the jury to the effect that, the bank "having charged and received unlawful interest on money, notes, and bills preceding those in suit, it thereby forfeited and became liable to pay double the amount of interest so paid," and that same should be "credited on the notes now in suit." The court below gave the same construction to the statute as given it by Judge Dillon in the language above quoted, but refused to give the charge requested by defendant, on the ground that his cause of action for the penalty was barred, saying: "For, having taken usurious interest on previous loans, the bank might have been sued within two years, and double the amount so received recovered by the party injured. This was not done, and therefore all redress for that infraction of the law is gone. It is enough to say of that claim that it is outlawed." For the refusal of the courtito charge the jury that he was entitled to double the unlawful interest as an offset, Brown removed the record to the supreme court by writ of error, and, among other things, there assigned such act of the court as error. The supreme court affirmed the judgment of the lower court. Thus, we see that this case affords no support whatever for the decision of the Court of Appeals of New York. We are confirmed in this by the fact that the Supreme Court of Pennsylvania, in the case above cited from 98 Pa. St., declined to follow said decision of the court of appeals, saying that, "its reason and conclusion are directly at variance with the statute." ELECTIONS-WOMAN SUFFRAGE-CONSTITUTIONAL LAW.-In Gougar v. Timberlake, 46 N. E. Rep. 339, decided by the Supreme Court of Indiana, it was held that under Const. Ind. art. 2, § 2, which provides that, "in all elections not otherwise provided for by this constitution, every male citizen of the United States of the age of twenty-one years, and upward *** shall be entitled to vote," sex is a qualification on the right to vote for public officers; that such section is not in violation of Const. U. S. Amend. 15, providing that "the right of the citizens of the United States to vote shall not be denied or abridged," etc., and that Const. U. S. Amend. 14, providing that all persons born and naturalized in the United States are citizens of the United States, and no State shall abridge their privilege, etc., does not give to women the elective franchise. The court says in part: In Morris v. Powell, 125 Ind. 281, 315, 25 N. E. Rep. 221, 228, this court said: "It is because this right of suffrage is a political right, abiding in the fountain of power, that the legislature cannot lay so much as a finger upon it, except when expressly authorized by the organic law; and for this reason it is that the legislature cannot make a classification of its own, no matter whether there is or is not equality. It is be. cause the right of suffrage is a political right, as has been decided by the Supreme Court of the United States and by other courts, that the provisions of the constitution respecting the bestowal of special privileges and immunities have no application to legisla tion upon the subject." Our constitution sought to establish a representative government, a government wherein only limited numbers express the will of all the people; and it was declared that those to represent the whole number should be males, possess ing the qualifications enumerated. The government thus established is but the agent or trustee of the State, the people; and it has derived its authority through the constitution. In forming this government, the people declared that their authority should be exercised by and at the command of males of a designated class. That the exercise of such authority may be intrusted to enlarged classes with fewer restrictions there is and can be no doubt, but to do so is with those who gave the authority,-the people; and it is no more within the power of the judicial or the legislative branch of the government to modify the will of the people, as expressed in the constitution, than it is for the agent, in any case, to stand above the principal in authority. As said in Morris v. Powell, supra, the right of suffrage is one for the consideration of the people in their capacity as creators of constitutions, and is never one for the consideration of the legislature, and we may add of the courts, "except in so far as the constitution authorizes a regulation of its mode of exercise. The people create, define, and limit their own right to vote." Those of us who have come into the State since the adoption of the constitution, and those who did not vote for its adoption, as well as those who may have voted against its adoption, are alike bound by its provisions, and we can exercise no political or governmental right or privilege which is not given by it. Such privilege as that of suffrage was not given to women; and if it only exists by grant, as we have shown, it must be admitted that those to whom it was given may exercise it as the agents for the State, the whole people, males and females, not possessing it. If an agency exists which is contrary to our ideas of advancing civilization, and the highest sense of liberty, our privilege is to change it, but only through the au thority of the principal,-the State. That the privi lege of voting does not exist in the absence of grant from the people or their authorized representatives is consistent with the decisions which declare that legis latures may not abridge the privilege as declared in the constitutions by adding restrictions or limitations not therein defined. Green v. Shumway, 39 N. Y. 418; McCafferty v. Guyer, 59 Pa. St. 109; People v. Canaday, 73 N. C. 198; Monroe v. Collins, 17 Ohio St. 665; Rison v. Farr, 24 Ark. 161; Randolph v. Good, W. Va. 551; Brown v. Grover, 6 Bush, 1; State v. Williams, 5 Wis. 308; State v. Baker, 38 Wis. 71; Davies v. McKeeby, 5 Nev. 369; Clayton v. Harris, 7 Nev. 64; Cooley, Const. Lim. (6th Ed.) p. 753; Black, Const. Law, p. 471; Morris v. Powell, 125 Ind. 281, 25 N. E. Rep. 221; Quinn v. State, 35 Ind. 485. See, also, Feibleman v. State, 98 Ind. 516, where the same principle is adhered to. Giving full force to the decis. ions of this court just cited, there is no escape from the conclusion that sex is one of the qualifications, under our constitution, upon the privilege of suffrage. It was held in Morris v. Powell and Quinn v. State, that the qualifications specified in the constitution could not be enlarged or diminished, and in the former it was particularly pointed out that sex was a qualification. Not only do authority and the assumption by all of the States, in the form of their grants of suffrage, establish the theory that the privilege exists only with those to whom it is expressly given, but it is supported by the fact that, if it should be held that females were not denied the privilege, there would be an entire absence of restriction upon the privilege as to them. Age, residence, naturalization, would be required of males; but as to females the youngest and the oldest, non-residents, aliens, and all, there would be no restriction. If intention should be considered as a rule of construction,-and it is always of first importance,-there could be little doubt that the framers of the constitution did not intend any such consequences. The direct question before us has frequently been decided by courts of the highest authority. Spencer v. Board, 1 MacArthur, 169; Van Valkenburg v. Brown, 43 Cal. 43; Minor v. Happersett, 21 Wall. 162; Bloomer v. Todd (Wash. T.), 19 Pac. Rep. 135; U. S. v. Anthony, 11 Blatchf. 200, Fed. Cas. No. 14,459. It is insisted, further, that the fourteenth amendment to the constitution of the United States secures to the appellant the elective franchise. The provision referred to is that "all persons born and naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or prop erty, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." If this amendment had created universal suffrage, there could have been no need for the fifteenth amendment, which provides that "the right of the citizens of the United States to vote shall not be denied or abridged by the United States; or by any State, on account of race, color or previous condition of servitude." Judge Cooley says: "The constitution of the United States confers the right to vote upon no one. That right comes to the citizens of the United States, when they possess it at all, under State laws, and as a grant of State sovereignty. But the fifteenth amendment confers upon citizens of the United States a new exemption, namely, an exemption from dis crimination in elections on account of race, color or previous condition of servitude." Cooley, Const. Law, p. 277. In the same work (page 274) he says: "The second clause of the fourteenth article was intended to influence the States to bring about by their voluntary action the same result that is now accom plished by this amendment. It is provided that when the right to vote was denied to any of the male inhabit ants of a State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in crime, the basis of repre sentation in congress should be reduced in the proportion which the number of such male citizens should bear to the whole number of male citizens twenty one years of age in such State. By this the purpose was to induce the States to admit colored freemen to the privileges of suffrage, by reducing the representation and influence of the States in the federal government in case they refused." That suffrage is not given by the federal constitution, but is the right of the States. See, also, Story, Const. § 1932; Black, Const. Law, 467; Minor v. Happersett, 21 Wall. 162; Bloomer v. Todd (Wash. T.), 19 Pac. Rep. 135: ['. S. v. Reese, 92 U. S. 214; U. S. v. Cruikshank, Id. 542; U. S. v. Crosby, 1 Hughes, 448, Fed. Cas. No. 14,896; Kinneen v. Wells, 144 Mass. 497, 11 N. E. Rep. 916; Desty, Fed. Const. 287; Huber v. Reily, 53 Pa. St. 112; U. S. v. Anthony, 11 Blatchf. 200, Fed. Cas. No. 14, 459; Spencer v. Board, 1 MacArthur, 169; Spragins v. Houghton, 3 Ill. 377; Anthony v. Halderman, 7 Kan. 50; Van Valkenburg v. Brown, 43 Cal. 43. It is upon this theory alone that the great variety of provisions with reference to suffrage and the qualifications upon the privilege is found in the several constitutions of the States, and, although not always in accord, they are not in conflict with the constitution of the United States. Appellant is in error in assuming that citizenship and suffrage are by the federal constitution made inseparable. Many are citizens, and not voters, unless we may hold that the State constitution does not discriminate against persons on account of age, restdence, etc., and that disfranchisement for crime, etc., may not be made by law. Nor do negroes get their right of suffrage, under the fourteenth and fifteenth amendments to the constitution, simply by reason of citizenship, as appellant earnestly insists. The fif teenth amendment, as we have shown, takes from the State the right, in extending the privilege of suffrage, to discriminate against citizens "on account of race, color or previous condition of servitude." It cannot be said, therefore, that the constitution of Indiana is in conflict with the fifteenth amendment in discriminating against the appellant on account of sex. By the language of all of the constitutions, which but affirms the right of voting in those intended to possess it, by the holdings of the courts passing upon the question of the origin, existence, and grant of political privileges, including the decisions cited from this court, and upon the reasoning of those eminent authors who have written upon constitutional law, it must be held that the general rule of constructionthat that which is expressed makes that which is silent cease-applies in the case before us. LIABILITY FOR THE SALE OF INTOXICANTS. Most of the States of the Union have stat utes on the subject of the sale of intoxicating liquors resulting in injury. This is a subject of growing importance and one deserving attention and consideration. The courts are not entirely uniform in their conclusions, though upon most of the main questions there is no very great variance in opinions. For convenience, I shall treat this subject, in this short article, as concisely and logically as I can, under three divisions. First, who liable, second, when liable and third, for what liable. Who Liable.-Most of the statutes on this subject are very comprehensive. The phrase, "any person". found in most of them, has been held to extend to son, clerk and servant; thus not only making the proprietor of such a business responsible, but the person who works for, or acts in his stead, in his place of business. If there are several distinct vendors, all are liable as contributors to the result; and each is liable to the full amount or extent of the injury in a single act of intoxication. But should the injury be the result of long and continuous drink, this rule will not apply; as where the period of drink had continued for two years. "It cannot be said the man who sold the first drink is equally liable with the man who sold the last one." In the case of La France v. Krayer, the court said: "A joint liability Worley v. Spurgeon, 38 Iowa, 465; Peterson v. Knoble, 35 Wis. 80; Smith v. Reynolds, 8 Hun, 128. 2 Woolheather v. Risley, 38 Iowa, 490; Fontain v. Draper, 49 Ind. 441. 3 Hackett v. 71 Ill. 273. 42 Iowa, 143. Smelsley, 77 Ill. 109; Emory v. Addis, arises when an immediate act is done by the co-operation or joint act of two or more persons. Mere successive wrongs being the independent acts of the persons doing them will not create a joint liability. If the defendant's illegal sales were under the circumstances sufficient in quantity and frequency to cause habitual drunkenness, he is engaged in an unlawful act that will create a liability for the consequences, though others without pre-concert, united in causing it." But however many may be responsible, only one satisfaction can be had. Under statutes where the owners of premises are made liable for "suffering" or "knowingly permitting" the use of their premises for the sale of intoxicants, it must be shown that they had knowledge of the use. This, of course, will make the lessor liable as well as the lessee when the premises are let for the purpose of carrying on the business of the sale of intoxicants. The salesman or clerk who sells liquor is a joint wrongdoer with his principal, and may be joined with him in an action for damages. The liability cannot be apportioned. Each is liable to the full extent of the injury.10 When Liable.-The statutes of most of the 39C.L.. States have a clause substantially as that 04. found in the Illinois statute, where a right of action is given "for all damages sustained in the sale of intoxicating liquors in whole or in part." The law makes every one, except those laboring under some legal disability, responsible for the natural and probable consequences of his acts."1 But the application of this principle is not always easy. Where the person to whom the intoxicants are sold wastes his means and neglects his family on account of the liquor habit, the liquor vender is responsible to those injured by such neglect, if the State statute so makes it. In this and other cases where there is no intervening cause, and the injury or loss is directly traceable to the sale of the intoxicants, 5 Boyd v. Watt, 27 Ohio St. 259. 6 Kearney v. Fitzgerald, 43 Iowa, 580; Emory v. Addis, 71 Ill. 273. 7 Mead v. Stratton, 8 Hun, 148; State v. Ballingall, 42 Iowa, 87; State v. Abraham, 6 Ind. 117. 8 Baker v. Pope, 2 Hun, 556; Bertholf v. O'Reilly, 8 Hun, 16; State v. Ballingall, 42 Iowa, 87. 9 Barnaby v. Wood, 50 Ind. 405; English v. Beard, 51 Ind. 489. 10 Steele v. Thompson, 42 Mich. 594. 11 Wharton on Neg. sec. 138. |