JURISDICTION OVER FOREIGN CORPORATIONS THAT HAVE CEASED TO DO BUSINESS IN THE STATE. By comity, a corporation, though logically incapable of existing outside of the state which has chartered it, is recognized by the courts of a foreign state in which it does business when it comes to them seeking their aid.1 When, however, the situation is reversed, when the courts are seeking the corporation, it is somewhat difficult to see how it can be found for the purposes of jurisdiction, unless, by express or implied compliance with legislative enactment, the corporation has submitted itself to the jurisdiction of the court. The decisions, however, are in conflict. The courts of Massachusetts and Connecticut, following a dictum in an earlier New York case," have denied their jurisdiction in the absence of express statutory enactment. In England and New Hampshire the opposite rule has been established. It must, to be sure, be noted that neither the English nor the New Hampshire court dispenses entirely with statutory aid in sustaining its jurisdiction. In both cases statutes existed providing for service upon officers and agents of corporations. It might possibly be said that the courts have held only that the statutes applied as well to foreign as to domestic corporations. Whether, however, the rule in these cases is not in substantial conflict with the principle of the others is an inquiry of little moment to-day, in view of the almost universal modern legislation expressly providing for the service of process on foreign corporations as a condition to their doing business in the state. The same principles, however, are involved in a question which has of late rather frequently arisen under these modern statutes. May a foreign corporation which has done business in the state but has withdrawn, still be amenable to process served upon its agent in the state? It seems clear that the terinination of business dealings in the state need not ipso facto terminate the statutory agent's authority to receive service. In the absence of express provisions, however, such authority should not easily be implied. The company has submitted to the jurisdiction of the courts in return for the privilege of doing business in the state; when it voluntarily withdraws, the presumption would be that it has withdrawn for all purposes. A common class of statutes, however, provides for the designation of special agents-frequently state officers other than the officers or business agents of the company, to receive service; and under these statutes some courts have held that jurisdiction over the company remains in respect to all liabilities incurred by the company while in the state." This was the result reached in a recent case decided in the New Jersey court of chancery. Groel v. United Electric Co. of New Jersey, 60 Atl. Rep. 822. Under substantially identical statutes the decisions are about equally divided. The view of the statute taken by the New Jersey court, however, 1 Bank of Augusta v. Earle, 13 Pet. (U. S.) 519. 2 See St. Clair v. Cox, 106 U. S. 350; United States v. American Bell Telephone Co., 29 Fed. Rep. 17, 34. 8 Peckham v. North Parish, 16 Pick. (Mass.) 274. Middlebrooks v. Springfield Fire Insurance Co., 14 Conn. 301. Newby v. Von Oppen, L. R. 7 Q. B. 293. Libby v. Hodgdon, 9 N. H. 394. 8 See, however, Barrow S. S. Co. v. Kane, 170 U. S. 100 (1898). 9 Sustaining the jurisdiction, Collier v. Mutual Reserve Fund Life Ass., 119 Fed. Rep. 617; Davis v. Kansas and Texas Coal Co., 129 Fed. Rep. 149. Contra, Swann v. Mutual Reserve Fund Life Ass., 100 Fed. Rep. 922; Freedman v. Empire Life Insurance Co., 101 Fed. Rep. 535. See also Mutual Reserve Fund Life Ass. v. Phelps, 190 U. S. 147. appears reasonable, since, if jurisdiction were intended to continue only while the company remained in the state, provision for service on any persons other than the regular business agents of the company would scarcely be necessary. "POLICE POWER" UNDER THE WILSON ACT OF 1890. The right of a state to prohibit or regulate in any way the sale of domestic intoxicating liquors has long been undisputed.1 But these prohibitions and regulations were rendered partially ineffective in 1890 by a decision of the Supreme Court that a state could not interfere with the sale of imported liquors still in their "original packages." " As these "original packages" could, under the decisions at that date, be of any size, the liquors were imported in convenient parcels; and, under the protection of the court's decision, were sold with impunity. To remedy this, the Wilson Act of 1890 was passed by Congress, providing that all liquors "transported into any state, or remaining therein, for use, consumption, sale, or storage therein, shall, upon arrival in such state, be subject to the operation and effect of the laws of such state enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state." In 1891 a prohibition law was pronounced constitutional under the Act, as being enacted in the exercise of the state's police powers. The court based its decision on the ground that the Act gave no new powers to the states, but that it simply removed a restriction on their police powers which the silence of Congress (implying that Congress wished interstate traffic in that commodity to be untrammeled by State laws) had imposed upon them. If a state has the right to prohibit the sale of liquor entirely, it is but logical that it can allow that business to be carried on subject to such regulations as the public welfare demands. On these grounds, a law of South Carolina which gave the state officials a monopoly of the liquor traffic, was held to be within the Wilson Act. Similarly the courts have upheld city ordinances (enacted under state laws) which exact license fees from all liquor dealers and impose on them other "regulations," even though these ordinances result in large revenues. On the other hand a federal court in 1899 held invalid a licensing ordinance, in which no provision was made for regulation or inspection in the interests of the public welfare. Such an ordinance, the Court said, was not a police measure and so not within the Wilson Act. The reasoning of this case seems somewhat arbitrary in implying that a licensing act without "regulation" may not of itself be a police measure, since it may be a means of restricting or even prohibiting the sale of liquors. A broader view of the question has recently been taken by the United States Supreme Court. Pabst Brewing Co. v. Crenshaw, 25 Sup. Ct. Rep. 552. In this case, a Missouri "inspection law" providing for an examination as to the purity of all beer held for sale in the state was declared constitutional under the Wilson Act, although the fee exacted was 1 Mugler v. Kansas, 123 U. S. 623. 2 Leisy v. Hardin, 135 U. S. 100. 3 In re Rahrer, 140 U. S. 545. Vance v. Vandercook, 170 U. S. 438 (1897). 5 Duluth Brewing and Malting Co. z. City of Superior, 123 Fed. Rep. 353 (1903). Pabst Brewing Co. v. City of Terre Haute, 98 Fed. Rep. 330. much greater than was demanded by the somewhat inadequate inspection. This stand of the court, though it rested in part on the fact that a state court had already held the law valid as far as it applied to domestic beer, seems to show a tendency toward a broader interpretation of the term "police powers," allowing the states to exercise more discretion in the control of the liquor trade. CARRIER'S LIABILITY FOR DELAY CAUSED BY STRIKES. The reasons of policy which underlie the common law rule that a carrier is liable for loss of goods unless caused by act of God or the public enemy do not hold where the action is for delay in delivery. The fear of collusion between the carrier and robbers which led Lord Mansfield to enunciate the doctrine that a carrier is an insurer,1 had no application to delay, and a less strict rule of liability has therefore been applied. Where there is no express stipulation in the contract as to the time of delivery, a carrier is bound to deliver within a reasonable time under the circumstances, and where delay arises, the carrier is excused if it has exercised due diligence in the matter.2 It would seem that this rule should apply to delays caused by strikes among its workmen, as it does to delays arising from other causes. In strikes unaccompanied with violence, a distinction must be made. If the strike is caused by a dispute as to wages, the carrier must pay whatever is necessary to retain its old employees or to obtain new ones to fill their places. It is under a public duty to run its trains regularly, and due diligence therefore requires it to forward its freight at the earliest possible moment without regard to cost. But where it is unable, as in the case of a "sympathetic strike," to fill the places of its recusant employees at any advance in price, it should be excused for delay in the absence of negligence on its part. A doctrine, however, has gained currency by repetition, though supported by only two decisions (one since weakened by a limiting decision), to the effect that a carrier is liable absolutely for a delay which is caused by a strike unaccompanied with violence. These decisions proceed on the ground that the delay is caused by the misconduct of the carrier's agents, for which the former is liable under the doctrine of respondeat superior. They assume that a strike is always wrongful, which would negative the proposition that a man may, in the absence of agreement, terminate his employment when he wishes. But whether the strike is wrongful or not, how long can the acts of former employees impose liability upon their former principal? A principal is liable for the acts of its agents done in the usual course of their employment. But an employee by the very act of striking terminates his agency, so that he is no longer able, except under circumstances working an estoppel, to subject his principal to liability." Consequently, there seems to be no reason for imposing upon the carrier a stricter liability than that which holds him to due diligence in avoiding delay. When violence is present in a strike, however, the courts have worked 1 Forward v. Pittard, 1 T. R. 27. 2 Geismer v. Lake Shore, etc., R. R. Co., 102 N. Y. 563; Pittsburg, etc., R. R. Co. v. Hollowell, 65 Ind. 188. 3 People v. New York, etc., R. R. Co., 28 Hun (N. Y.) 543 4 Read v. St. Louis, etc., R. R. Co., 60 Mo. 199; Blackstock v. New York, etc., R. R. Co., 20 N. Y. 48; limited by Geismer v. Lake Shore, etc., R. R. Co., supra. 5 Geismer v. Lake Shore, etc., R. R. Co., supra. out a more logical result. As illustrated in a late case in the Texas Court of Civil Appeals, they hold that where a carrier uses all reasonable means to fill the places of striking workmen, and is prevented from forwarding freight only by the violent acts of the strikers, it is not liable for the delay. Sterling v. St. Louis, etc., R. R. Co., 86 S. W. Rep. 655. Since the courts reach this result without adequately distinguishing the cases involving strikes without violence, it seems to constitute a tacit disapproval of the doctrine of those cases. TROVER FOR CONVERTED MONEY.-The rule of law which allows the owner of stolen property to succeed in an action of trover against a bona fide purchaser for value1 must be qualified by exceptions in the cases of money and negotiable securities payable to bearer. It seems in these cases to be accepted law that a bona fide transferee is not liable, either in trover or in any other form of action, provided that he has in the technical sense given value for the securities or money.2 That the reason for the exception is obscure is evidenced by a recent decision of the Supreme Court of Indiana, which held, opposing the authorities, that where the maker of a note took it up with stolen money at a bank to which the payee's bank had forwarded it, the payee was liable in trover for the amount, though the money was received in ignorance of the theft, and the facts afforded evidence of value under the Indiana law. Porter v. Roseman, 74 N. E. Rep. 1105. The well-established exception made in the case of money and securities has been usually based on the ground of public policy, that it would be a very serious hindrance to the conduct of business if negotiable securities, and above all, money, did not carry a clear title to a bona fide transferee.3 A more satisfactory line of reasoning, perhaps, is suggested by the theory of a German scholar, Prof. Heinrich Brunner, who argues that paper on its face payable to bearer, such as bank-notes and government certificates, passes title to its holder, who, by virtue of his very possession, being the bearer, becomes the legal owner, no matter how he may have come by the paper. Though the theory is not in terms extended to coined money, the same must be true in that case, since the stamp of the government on a coin is a guarantee to the bearer, as such, of its value. If this is true, the action of trover would not be a proper one even against the thief. When, however, the bearer is a wrong-doer, he has in equity no right to keep either paper or coined money, and should be held a constructive trustee for the real owner. In allowing trover against the guilty holder of such a title, but denying redress against one who has acquired title in good faith, and is hence bound by no constructive trust, the courts seem unwittingly to have allowed an equitable remedy, with its characteristic equitable limitations, under the forms of a common law action." PRESUMED DEDICATION OF A JUS SPATIANDI. The unorganized public as such is incapable of acquiring interests in realty by deed; consequently, 1 White v. Spettigue, 13 M. & W. 603. 2 Nassau Bank v. National Bank of Newburgh, 159 N. Y. 456; Wheeler v. King, 35 Hun (N. Y.) 101. 3 Miller v. Race, 1 Burr. 452. 4 2 Endemann, Handbuch 163. Cf. cases cited in Ames, Cases on Trusts, 2d ed., 10, n. 2. where the legal fiction of a lost grant persists, the public cannot, strictly speaking, take by a prescriptive right. This reasoning is recognized in England, since the Prescription Act of William IV. is held not to extend to easements in gross. In that country, too, dedication to public purposes is yet in its infancy. Highways, bridges and squares are of course subjects of express dedication, and from adverse public user, generally for the period of the Statute of Limitations, English courts sometimes draw an inference of dedication or of condemnation by the proper authorities.3 To find an actual dedication for purposes other than those mentioned, they demand strong evidence, and the assertion is made, moreover, that from user merely for purposes of recreation and instruction, no right can be gained by the public. This statement of the law was affirmed by a recent English case which denied to the public any right in the grounds covered by the ancient monuments at Stonehenge. Attorney-General v. Antrobus, [1905] 2 Ch. 188. The road through private property to the stones was also said not to be a highway, but to be accessory to the monuments and dependent upon the same principles as the jus spatiandi in their neighborhood. 7 4 In this country courts are much more ready than in England to find actual dedication. It is also quite generally held that adverse user for the statutory period raises a conclusive presumption of dedication. To this process the term prescription is often loosely applied. Indeed, where the analogy to the Statute of Limitations is adopted as the basis of prescription, the presumption of a grant or of dedication becomes unnecessary, and the term is perhaps properly applicable. In American as well as in English courts it has been stated that nothing but highways and the like can be acquired by adverse public user. It is argued in support of this contention, first, that landowners should be encouraged in allowing access to private grounds attractive in themselves or by reason of some monument thereon,10 and second, that the user by the public is permissive and with no claim of right. 11 These two considerations seem to apply indifferently to all prescription, and to furnish no ground for a distinction. The second of them constitutes always a question of fact, but in the case of private prescription where there is found a twenty years' user without license, the court seldom appears to require explicit evidence as to the state of mind of the landowner or the trespasser. Whether an easement is for pleasure or for profit or whether a road is a highway or ends in public or in private property 12 appears on theory to be unimportant when adverse user for the prescriptive period is found. The 1 Washburn, Easements § 404; see Pittsburgh, etc., Ry. Co. v. Town of Crown Point, 150 Ind. 536. 2 Shuttleworth v. Le Fleming, 19 C. B. (N. S.) 687. 3 Board of Works v. Maudslay, L. R. 5 Q. B. 397; Queen v. Inhabitants, II Q. B. 877. Tyne Improvement Commrs. v. Imrie, 81 L. T. R. 174. 5 See Bourke v. Davis, 44 Ch. D. 110; Giant's Causeway Case, summarized in 32 Ir. L. T. 211. 6 See Campbell v. Lang, 1 Macq. H. L. Cas. 451; Young v. Cuthbertson, ibid. 455; Elliott, Roads and Streets I. 7 See 16 HARV. L. REV. 332. 8 See State v. Kansas City, etc., R. Co., 45 Ia. 139; Schwerdtle v. County of Placer 108 Cal. 589; Commonwealth v. Coupe, 128 Mass. 63. 9 Post v. Pearsall, 22 Wend. (N. Y.) 425; 16 HARV. L. REV. 128. 10 69 J. P. 217. 12 Nichols v. State, 89 Ind. 298. 11 Attorney-General v. Antrobus, supra. |