the Exposition, nearly all of them officially. The manufacturers and jobbers in eastern cities best appreciate the wonderful possibilities of the growing markets of the west and southwest and the necessity for a large representation, particularly of the manufacturing interests, under State auspices at the coming Exposition. Their presence at the World's Fair will not only place them in touch with the people of the middle west and south, but their goods will thus be displayed before buyers from all parts of the world. "THE POET'S DREAM." BY "DEERMONT." A poet there lived, and he dreamed of fame, In his darkling, lonesome den; reform, stands an excellent chance of becoming a law at this session. Though the day of final adjournment is only a month away, Mr. Blackwell expresses extreme confidence that the bill will pass both houses and be signed by the governor. THE ALBANY LAW this bill, and again urges the members of the legislaJOURNAL has heretofore gone on record in favor of ture to support it. The bill will effect a real reform, and will save the State and the legal profession a very large amount, in the aggregate. Notes of Cases. Railroad Employe Assumption of Risk by Fellow Employe.- In the decision of the United States Circuit Court of Appeals, Second Circuit, in Lindsay v. N. Y., N. H. & H. R. R. (December, 1901, 112 Fed., 384), the rules regulating assumption of risk by employes in general, and railroad em He dreamed of Parnassus, he dreamed that his ployes in particular, are formulated in the opinion name of the court, by Judge Lacombe, as follows: "The Would there be crowned by his toil - but when, employe has a right to assume that the employer And oh, what a shame, what a shame! A poet lived once, what visions he saw His thoughts were inspired, and melody, ah, The poet he sang, and the sounding spheres But the music divine missed mbrtal ears; On the cold, cold earth - ah, the tears! The poet he pined in his darkling den And he wailed to the wailing wind, will use reasonable care to secure him a safe place to work in; he may rely on this assumption, subject, however, to the exception that, where there exists a defect known to him, or plainly observable by him, he cannot recover for an injury caused by such defect if he continues to work where it exists (Railway Co. v. Archibald, 170 U. S., 665). Where there is reasonable ground for difference of opinion as to whether the defect was 'plainly observable by him' the jury should decide; but when it is plainly thus observable, the court will dispose of the case by direction of a verdict." In that case it was held, as matter of law, that a brakeman had assumed the risk of danger, where it appeared that, while working during the night in a railroad yard of the de And the mournful blasts whined mournfuller then, fendant, he stepped or slipped into a sluiceway, or The poet, he died, and his soul is in peace, He sings with the heavenly choir, But the mournful blasts, do they ever cease? Sometimes, sometimes, but they never tire; Yet, poet, dream thou in peace. drain, that ran under and across the tracks of the defendant railroad, which was open and uncovered and lay directly in his path, in the discharge of his duty. The plaintiff had been continuously employed in the railroad yard in question for more than nine months previous to the happening of the injury, and the drain into which he slipped, together with one hundred and eighteen other similar drains, had plainly existed in the yard during such FAVORABLE REPORT ON THE ANTI-HUN period. A further significant fact, upon which the BILL. Just as we go to press, information reaches us from the legislature that Mr. Blackwell's bill to legislate Marcus T. Hun, Appellate Division Reporter, out of office, has been ordered favorably reported by the Codes Committee of the Assembly, by a decisive vote. The bill has been very thoroughly ventilated in committee, and despite the peculiar tactics and the specious pleas of the opposition to this much-needed court laid some stress, is shown in the following language from the opinion: "If the plaintiff's sole opportunity of observation had been in the obscurity of night, he might have worked there a long time without observing them. But when it appears that during the months of April, May and June, and the first week in July, he was moving back and forth over these open and projecting drains every day from daybreak until 7 A. M., he must be held chargeable with knowledge of their existence, and of whatever risk to one using the pathway their appearance would indicate even to the casual observer." In contrast on the facts with the case, cited, yet consistent with it in principle and illustrating the legal distinctions therein laid down, is the decision of the Appellate Court of Indiana, in Pittsburgh, etc., Railway v. Parish (January, 1902, 62 N. E., 514). It was therein held that the danger from limbs of a tree which a railroad company permitted to hang over a side track of its road, which branches were above the top of an ordinary box freight car, but still were so low that they might come in contact with employes engaged in their duties on the tops of cars, was not a risk incident to the service which an employe necessarily as sumed when he entered the service. The court said in part: any opportunity to know of, this obstruction, if in fact it then existed. Moreover, the question here would be whether decedent knew of the obstruction when injured, rather than as to his knowledge at some prior time (see City of Bluffton v. McAfee, 23 Ind. App., 112, 53 N. E., 1058). The jury answered that from May 31 to July 21, 1898, decedent made forty-six trips, and that during this time he passed over the side track seven or more times. They also answered that these branches, in so far as they constituted any obstruction to the side track, were not at all times an open, apparent and obvious obstruction to a person passing the same on the side track on the outside of a train. The overhanging limbs constituted an obstruction over the side track only. The branches were above the top of an ordinary box freight car. Decedent may have passed over the side track a number of times in the performance of his duties as a conductor, and yet never have seen the overhanging branches. And he may have seen the tree and its branches while passing along on the main track, and yet the danger from them would not necessarily have been apparent. It was not an obstruction always dangerous to employes passing over the switch, but was dangerous only to a person on top of a car; and, unless the tree and its branches were seen with reference to a car, their dangerous character might not be apparent. So that knowledge of the existence of the tree and its branches, and knowledge of the danger from them, are not necessarily one and the same. It was admitted that he had been given no actual notice of the obstruction. There is nothing in the record to show that he was "The obstruction here complained of is not one that was erected and maintained and necessary for use in the operation of the road. It is a familiar rule that by the contract of service an employe assumes such risks as are naturally incident to the particular service. And he assumes the risk of injury from such dangerous obstructions as are known to him in fact, or which ordinary care on his part would discover (Pennsylvania Co. V. Ebaugh, 152 Ind., 531, 53 N. E. 763; Railroad Co. v. Ray, 152 Ind., 392, 51 N. E., 920.) And he assumes the risk of injury from dangerous obstructions which, by reason of their open and obvious character, in and of themselves give him notice. The jury answered that decedent did not know of the obstruction, nor did he have reasonable oppor-ever at any time in a position where he must necestunity to know of it. The theory of the trial court was that the nature of the obstruction was such that the jury should determine from all the facts and circumstances proven whether decedent had actual notice or knowledge of its existence, or had reasonable opportunity to know of it, and that, if he did not, the risk was not assumed. Upon this theory the court correctly instructed the jury. Appellant's counsel seem to proceed upon the theory that the obstruction was of such a character than an employe was necessarily bound to know of its existence, and that the answers of the jury upon the question of notice or knowledge must be ignored. But whether such an obstruction as that in question| Pac., 283; Boss v. Railroad Co., 2 N. D., 128, 49 is an open and obvious defect, and the danger therefrom obvious and apparent, were questions of fact for the jury. Decedent had been in the employ of appellant as conductor over this line of road from 1891 to September, 1895, and from that time until May 31, 1898, he had made no trip over the line. The record does not show that during the time prior to September, 1895, he knew of, or had sarily have seen the obstruction (see Fonda v. Railway Co., 71 Minn., 438, 74 N. W., 166, 70 Am. St. Rep., 341). When all the evidence in the case is considered, it must be concluded that whether decedent assumed the risk, or was charged with notice of the danger to which he was exposed, was a question for the jury (see Kelleher v. Railroad Co., 80 Wis., 584, 50 N. W., 942; Sweet v. Railroad Co., 87 Mich., 559, 49 N. W., 882; George v. Clark, 29 C. C. A., 374, 85 Fed., 608; Pidcock v. Railway Co., 5 Utah, 612, 19 Pac., 191, 1 L. R. A., 131; Railroad Co. v. Irwin, 37 Kan., 701, 16 Pac., 146, 1 Am. St. Rep., 266; Johnston v. Railway Co., 23 Or., 94, 31 N. W., 655, 33 Am. St. Rep., 756; Hulehan v. Rail- Contracts Public Policy - Waiver of Illegality Supreme Court of Washington in December, 1901 (67 Pac., 381), it was held that a contract whereby plaintiffs agreed to convey a one-half interest in certain land to defendant in consideration of his efforts to procure the location of a depot by a railroad corporation on the land was against public policy and void, where prior to its execution defendant had an agreement with certain officers of the railroad corporation by which each of them was to receive one-fourth of the proceeds of whatever lots were so conveyed to defendant, because tending to induce the officers of the corporation to disregard their duties toward it. It was further held that a party to a contract void as against public policy cannot waive its illegality by a failure to specially plead the defense or otherwise, but, whenever the same is made to appear, it becomes the duty of the court to refuse to enforce it. It was also decided that validity cannot be given to an illegal contract through any principle of estoppel. The court said in part: In the case of Bestor v. Wathen (60 Ill., 138), a contract was involved which was similar to the one here under consideration. The construction firm that was building the railroad, together with the president of the railroad company and another of its directors, and also its construction agent, entered into a contract with the owners of 160 acres of land situated where the road then in process of construction was expected to cross the Illinois Central Railroad, by the terms of which the owners agreed to sell the first-named parties an interest in the land. No money was to be paid by the purchasers, but the land was to be laid out into town lots and sold. The first proceeds of the same, to the amount of $4,800, were to be retained by the owners, and when this sum was received they were to convey to the other parties an undivided half of the residue of the land. The only consideration for the agreement was that the so-called purchasers should “aid, assist and contribute to the building up of a town on said land." Precisely as is sought by the cross-bill in this case, the so-called purchasers in that case brought suit against the owners of the land, asking for an acount of sales and for conveyance of an undivided half of the lots unsold. The court refused to enforce the contract and dismissed the bill. The language of the court in discussing the principle involved is of great emphasis and weight. The necessary space forbids an extensive quotation from the opinion, but the following extract is particularly pertinent: "A court of equity will not enforce a contract resting upon such official delinquency, or even tending to produce it. Such is the character of the contract before us. If we enforce it, we lend the sanction of the court to a class of contracts the inevitable tendency of which is to make the officers of these powerful corporations pervert their trusts to their private gain at the price of injury at once to the stockholders and to the public. Rendered into plain English, the contract in this case was a bribe on the part of Wathen and Gibson to the president and other officers of the railway company, and to the contractors who were building the road, of an undivided half of one hundred and sixty acres of land, in consideration of which the road was to be constructed on a certain line and a depot built at a certain point. * In this particular case no wrong may have been done and yet public policy plainly forbids the sanction of such contracts because of the great temptation they would offer to official faithlessness and corruption." The principle adopted in the above case is sustained by the following authorities: Fuller v. Dame (18 Pick., 472); Holladay v. Patterson (5 Or., 177); Bliss v. Matteson (52 Barb., 335); Berryman v. Railway Co. (77 Ry., 755); West v. Camden (135 U. S., 507, 10 Sup. Ct., 838, 34 L. Ed., 254); Woodstock Iron Co. v. Richmond & D. Extension Co. (129 U. S., 643, 9 Sup. Ct., 402, 32 L. Ed., 819). In the last-named case the court said: The business of the extension company was one in which the public was interested. Railroads are for many purposes public highways. They are constructed for the convenience of the public in the transportation of persons and property. In their construction without unnecessary length between designated points, in their having proper accommodations, and in their charges for transportation, the public is directly interested. Corporations, it is true, formed for their construction, are private corporations; but, whilst their directors are required to look to the interests of their stockholders, they must do so in subordination to and in connection with the public interests, which they are equally bound to respect and subserve. All arrangements, therefore, by which directors or stockholders or other persons may acquire gain by inducing those corporations to disregard their duties to the public, are illegal and lead to unfair dealing, and, thus being against public policy, will not be enforced by the courts." It will be noted that the language of the above opinion not only applies the rule to directors or stockholders, and declares that all arrangements by which they may acquire gain by inducing these corporations to disregard their duties to the public are illegal, but also applies the same rule to "other persons; " the words being particularly applicable to the claim made in this case that Johnson, not being an officer of the railway company, is entitled to have his contract enforced. Further addressing ourselves to the lastnamed point, we refer to the case of Embrey v. Jemison (131 U. S., 336, 9 Sup. Ct., 776, 33 L. Ed., with respondents under the contract. Validity cannot be given to an illegal contract through any principle of estoppel (1 Warv. Vend., p. 162, sec. 4; Durkee v. People, 155 Ill., 354, 40 N. E., 626, 46 Am. St. Rep., 340; Brown v. Bank, 137 Ind., 655, 37 N. E., 158, 24 L. R. A., 206; Pullman's Palace Car Co. v. Central Transp. Co., 171 U. S., 138, 18 Sup. Ct., 808, 43 L. Ed., 108). While one is not estopped to raise the illegality of a contract, yet he is not entitled to recover for losses thereunder. 172). The contract involved in that case was a wagering contract, and it was held that the broker who negotiated between the parties for the purpose of entering into the illegal agreement was particeps criminis, and could not recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction. In the case of Armstrong v. Toler (11 Wheat., 258, 6 L. Ed., 468), the following instruction was given to the jury below: "That where the contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it; and if the contract be, in fact, only connected with the illegal transaction, and growing immediately out of it, though it be in fact a new contract, is is equally tainted by it." The instruction was sustained by the Supreme Court of the United States in an opinion rendered by Mr. Chief Justice Marshall. The learned jurist says the law was correctly stated by the trial court. To the same effect are the following cases: Barton v. Road Co. (17 Barb., 397); Deans v. McLendon (30 Miss., 343); Howell v. Fountain (Ga., 46 Am. Dec., 415); Branch v. Haas (C. C., 16 Fed., 53); Gunter v. Legal Notes. Assemblyman Landon's bill to tax posters one cent for every two square feet of surface, has been amended by the insertion of a clause to exempt the ordinary business signs on an express or delivery wagon, or moving van or vehicle where such signs usually appear. The bill comes from the State commission on historic and scenic places, and is merely designed to tax off the streets, rocks, buildings and other public places the big, unsightly and often disgusting posters, paintings and advertisements of all kinds that so mar not only the Leckey (30 Ala., 591); Buck v. Albee (26 Vt., 184, landscapes of New York, but of the whole country. 62 Am. Dec., 564); Bartle v. Coleman (4 Pet., 184,¦ 7 L. Ed., 825); 15 Am. & Eng. Enc. Law (2d ed.), 992. It cannot be successfully urged that appellants have waived objection to the illegality of this contract by not specially pleading the same. The nonenforcement of illegal contracts is a matter of common public interest, and a party to such a contract cannot waive his right to set up the defense of Buffalo has established in the courts the right of these posters, and the recent Appellate Division of a municipality to regulate the size and character decision in favor of the city is used here at Albany to give warrant for this attempt of the State to get rid of sights that offend the eye and the good taste of the citizens. Unseemly noises and disturbances are now suppressed by law, and the advocates of the bill insist that the eye has as much right to be protected from annoyance as the ear. illegality in an action thereon by the other party. The proposed new law is modeled on similar stat utes now in force in France and Belgium. It is not necessary to specially plead the defense of illegality, but, when the same is made to appear to the court at any stage of the case, it becomes the In an article on "The Oligarchy of the Senate," duty of the court to refuse to entertain the action. which he contributes to the February number of The above statements of the law are sustained by the North American Review, Mr. A. Maurice Low the following cases: Oscanyon v. Arms Co. (103 argues that the senate has gradually taken to itself U. S., 261, 26 L. Ed., 539); Coppell v. Hall (7 Wall., powers which the framers of the constitution never 542, 19 L. Ed., 244); Cardoze v. Swift (113 Mass., intended that branch of the national legislature to 250); Wilde v. Wilde (37 Neb., 891, 56 N. W., 724); exercise. Through an abuse of its right to amend Sheldon v. Pruessner (52 Kan., 579, 35 Pac., 201, 22 bills originating in the house of representatives, L. R. A., 709); Craig v. Missouri (4 Pet., 410, 7 the senate has virtually assumed the control of the L. Ed., 903); Johnson v. Hulings (Pa., 49 Am. appropriating power, which was intended to be the Rep., 131); Wight v. Rindskopf (43 Wis., 344); exclusive prerogative of the house. It is the senKreamer v. Earl (91 Cal., 112, 27 Pac., 735); Mor- ate, Mr. Low avers, which dominates legislation, rill v. Nightingale (93 Cal., 452, 28 Pac., 1068, 27 the house having been in effect reduced to a negliAm. St. Rep., 207); Schmidt v. Barker (La., 87 gible quantity. Even the president may be made Am. Dec., 527); Claflin v. Credit System Co. (Mass., on occasion to feel its power, as when it rejects a 43 N. E., 293, 52 Am. St. Rep., 528); Richardson v. presidential nomination simply out of regard to the Buhl (77 Mich., 632, 43 N. W., 102, 6 L. R. A., 457). | obligations of the so-called "senatorial courtesies." The appellants are not estopped to raise the illegal- It is notorious, too, says Mr. Low, that the power ity of the contract because of their course of dealing of the senate centers in the hands of the half-dozen or so senators who are at the head of the important committees, these men being to all intents and purposes the senate of the United States. Mr. Low criticises strenuously the proneness of the senate to interfere in the conduct of our foreign relations. He says: 64 'As showing the assumption of the senate, notice the remarkable change made in the wording of a recent treaty. Last year the senate ratified a treaty with Great Britain (The Tenure and Disposition of Real and Personal Property), providing for the disposition of real estate and giving any British colony the right to adhere to the convention on notice from the British ambassador at Washington to the secretary of state; and, similarly, any possessions of the United States beyond the seas were to be included in the compact upon notice 'being given by the representative of the United States at London, by direction of the president.' The senate amended this to read by direction of the treatymaking power of the United States.' Thus, by the addition of a few words, the senate assumed to itself the right to conduct foreign relations, an assumption for which no warrant can be found in the Constitution." It has been held by the Supreme Court of Illinois, in the case of Deen v. Bloomer (61 Northeastern, 131), that a discharge in bankruptcy does not discharge the liability of a divorced husband to pay alimony, since alimony is not a debt owing from the husband to the wife, but an obligation to support the wife which is imposed by public policy. The (109 Federal Reporter, 369), has so held. It has been announced at the White House that the president has decided to appoint James P. Platt, son of Senator Platt, of Connecticut, to be United States district judge for the district of Connecticut, in place of William K. Townsend, promoted to be circuit judge. One who beat a horse in violation of the statute for prevention to cruelty to animals is held in Osborne v. Van Dyke ([Iowa] 54 L. R. A. 367), not to be able to escape liability for an injury caused by a blow falling on a bystander, on the ground that he used reasonable care to avoid the accident, which was caused by the shying of the horse and the slipping of his own foot, and that such result of his acts was not anticipated. Little, Brown & Co. will publish at once a new edition of "Washburn on Real Property," and "A Treatise on Guaranty Insurance," by Thomas Gold Frost, of New York. In the case of Wood v. Gas Co. (61 Northeastern Reporter, 674), the Supreme Court of Indiana holds The appointment of a commission to inquire into that a natural gas company which has been perthe expediency of amending the statutes relating to mitted by the city to lay its mains in the streets the criminal procedure and the punishment of crime for the purpose of furnishing the citizens with and to suggest legislation thereon, is authorized natural gas, is bound to furnish it to every citizen by a bill introduced in the New York legislature who makes application therefor and complies with by Assemblyman Rogers. The governor is to ap- the reasonable regulations of the company, and point the commission, which is to consist of three that the failure of its supply of natural gas is not district attorneys, the superintendent of State pris- a sufficient legal reason for this refusal to supply ons and the general superintendent of the Elmira new customers. The court says that the company's Reformatory. They are to examine into the sys- | powers were granted in consideration for its entem of criminal procedure in this and other States gagement to bring to the community a public beneand to suggest such changes as they deem advisable fit, and that if the beneficial agency shall fall short in the statutes of the State. The commission may it can make no difference in the right of all to employ stenographers and a clerk, and their report participate in it on equal terms. is to be presented to the legislature on or before January 15, 1903. A telegraph company is liable to a bank for a loss occasioned to the latter by its payment of money on a message purporting to have been sent by another bank, but which was in fact forged by an operator of the telegraph company. The Circuit Court of Appeals for the Ninth Circuit, in the case of Pacific Postal Tel. Co. v. Bank of Palo Alto In the case of Newark v. Board of Taxation (49 Atlantic Reporter, 525), the Supreme Court of New Jersey has considered the question of whether a street railroad company has such an interest in the soil of the highways over which it passes as is taxable as real estate. After reviewing similar cases from a number of States, the court decides that the railroad has such an interest for the purpose of taxation. The court holds that the rail |