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in consequence she became nervous and excitable, ruins of the building and its contents were immediand did not appear to be herself, without proof of ately set on fire by coals from a stove therein. Held, pregnancy or sexual disease.

that the company was liable on all the policies. Costello v. Crowell, p. 293.— A promissory note Dempsey v. Gardner, p. 381.— The mere delivery, bearing in the margin the words, “given as collat- for value, of a bill of sale of a chattel to the pureral security with agreement,” is not negotiable. chaser does not vest title in him as against a subse

National Mahaiwe Bank v. Peck, p. 298.— A bank quent attaching creditor of the vendor. discounted for B. two notes, one executed by him Commonwealth v. IIolmes, p. 424.— Although a in his official capacity as town treasurer, and in- jury may convict on the uncorroborated testimony dorsed by P., and the other his individual note. of an accomplice, yet, if evidence, introduced under B. at the time kept a deposit account with the bank, objection for the purpose of corroboration, does not but the proceeds of the official note were not put to tend to connect the defendant with the crime, but that account. The official note was not paid at it is left to the jury to say whether the principal evimaturity. The individual note matured the next dence is corroborated, and they are instructed that day after the official note, and exceeded the balance if they are satisfied of the defendant's guilt upon then on deposit to B.'s credit. The bank thereupon the whole testimony, they should convict, this is applied such balance on the individual note. Three days later P. tendered to the bank B.'s individual Commonwealth v. Munson, p. 459. — The statutes check, payable to and indorsed by himself in his of Massachusetts provide, except in the case of official character, for such balance, and money susi- Friends or Quakers, that magistrates or ministers cient therewith to pay the official note, and de- may celebrate marriages, and also provide that marmanded the note. The bank refused to give it up, riages thus celebrated shall be valid although the and brought suit on it against P. Held, main-magistrate or minister shall have exceeded his tainable.

authority or jurisdiction; and do not enact that Huck v. Globe Insurance Co., p. 306.-A fire policy marriages not thus celebrated shall not be valid. was conditioned to cease if the insured building | Held, that a ceremony of marriage, performed in should fall except as the result of fire. The build-good faith by a man and a woman, at a public reing was equally and completely divided by a brickligious meeting, no third person participating, and partition wall, with communicating doors in each no magistrate nor clergyman nor any person supstory. A girder in one half fell, bringing down posed to be such being present, and neither party substantially the whole of that part and the goods being a Friend or Quaker, is not a valid marriage stored therein, but leaving the other part standing under the law of Massachusetts. uninjured. A fire afterward broke out in the fallen Hunter v. Farren, p. 481.- Where stones were part, destroying every thing in it save the outer thrown against plaintiff's shop by a blast, carelessly walls, the partition wall, and an elevator, but not set off by a contractor employed on a neighboring communicating to the other part. Held, that no public work, and his workmen left his shop in fear, action on the policy could be maintained.

and his business was consequently suspended, held, Blumantle v. Fitchburg Railroad Co., p. 322.- A that he might recover for the interruption of his railway passenger had merchandise checked without business, and the measure of damages was the value disclosing its character. There was no evidence of of the work thus prevented from being done. any agreement to carry it as freight, nor that the baggage-master had any authority to receive it as out of possession may maintain an action for confreight or as personal baggage. Held, that the com- version against one who buys from the mortgagor pany were not responsible for its loss, although the wood and timber which the latter has wrongfully baggage-master knew the character of the baggage, cut from the premises. and received similar packages from other passengers. Potter v. Stevens Machine Co., p. 592.— A stock

Cromarty v. City of Boston, p. 329.— Where a holder of a corporation, who is also a creditor of foot-passenger, using due care, is injured by falling the corporation, cannot enforce the personal liability on a portion of a city sidewalk made of glass and of the stockholders for his debt, and one to whom iron, and worn smooth and slippery, solely in con- he has assigned his claim, for the sole purpose of sequence of its slipperiness, he cannot maintain an enforcing such liability, stands in no bener position, action against the city therefor. Dows v. Faneuil Hall Insurance Co., p. 346.

CONSTITUTIONAL LAW. Three policies of fire insurance provided substantially that the company should not be liable in case

BY SAMUEL T. SPEAR, D. D. of explosion unless fire ensued, and then only for

VE tenth volume of Otto's Reports, recently pubthe damage by such fire, one of the policies limiting | THE

lished, and giving the cases decided by the Suthe provision to the explosion of gunpowder or a

preme Court of the United States, at the October steam-boiler; and one of them also provided that if term, 1879, contains an unusual number of cases which a building should fall, except as the result of a fire, involve and determine questions of constitutional law. the insurance should immediately cease. By an ex

The purpose of this article is to submit a brief state

ment of several leading cases of this character. plosion of inflammable gas in the building insured,

1. The case of The People v. Weaver, 539, involved the larger part of the walls on two sides was blown

the question whether the law of 1866, enacted by the out, and the roof and partitions fell in, and the Legislature of New York for taxing the shares of

1c | -land

banks located in that State, and construed by the 3. In Guy v. Baltimore, 434, the court, after citing a New York Court of Appeals to exclude in the valua- series of decisions in similar cases, proceeded to say: tion of these shares any deduction therefrom on ac- “In view of these and other decisions of this court, it count of debts due by their owners, is in conflict with must be regarded as settled that no State can, consistsection 5219 of the Revised Statutes of the United ently with the Federal Constitution, impose upon the States. This section permits the shares of National products of other States brought therein for sale, or banks to be “included in the valuation of the per- upon citizens because engaged in the sale therein, or sonal property of the owner or holder of such shares, the transportation thereto of the products of other in assessing taxes imposed by authority of the State States, more onerous public burdens or taxes than it within which the association is located,” with the imposes upon the like products of its own territory. If qualification “that the taxation shall not be at a this were not so, it is easy to perceive how the power of greater rate than is assessed upon other moneyed Congress to regulate commerce with foreign nations capital in the hands of individual citizens of such and among the several States could be practically anState." The law of New York allows debt deductions mulled, and the equality of commercial privileges in the valuation of “other moneyed capital in the secured by the Federal Constitution to citizens of the hands” of its citizens ; but the act of 1866, as ex- several States be materially abridged and impaired." plained by the Court of Appeals, excluded bank shares, Applying this principle to the case in hand the court whether State or National, from this allowance.

held that the ordinance of the city of Baltimore which The Supreme Court, in the opinion stated by Mr. under the name of wharfage charges, exacted higher Justice Miller, held that under the National Constitu- fees from vessels laden with the products of other tion the authority of States to tax the shares of States than from vessels laden with the products of National banks at all is derived from the enabling or Maryland, is unconstitutional. The exaction was repermissive legislation of Congress, and that the New garded as being in effect “taxation upon inter-State York law of 1866, when applied to these shares, did commerce," and also as inconsistent with “the power not conform to the conditions imposed by this legisla- | of Congress over the subject of commerce." tion. It denied to bank shares in their valuation the 4. The Trade-mark cases, 82, brought before the debt deductions which are by law permitted in the court the question whether sections 4937-4947 of the valuation of other moneyed capital;"' and this dis- Revised Statutes of the United States, providing for crimination, when applied to the shares of National the registration of trade-marks in the Patent Office, banks, was held to be inconsistent with the law of and the act of August 14, 1876 (19 U. S. Stat. at Large, Congress.

141), providing penalties for counterfeiting or illegally The Legislature of New York has since this decision using the registered trade-marks of others, are authorchanged the law, and provided that the holder of bank ized by the Constitution of the United States. Two shares "shall be allowed all the deductions and ex- clauses of the Constitution were considered in disposemptions allowed by law in assessing the value of ing of this point. other taxable personal property owned by individual The first of these clauses gives to Congress the power citizens of this State." Session Laws of 1880, ch. 596, “to promote the progress of science and useful arts by $ 3. This obviates the objection of the Supreme Court securing for limited times to authors and inventors to the bank tax law of 1866.

the exclusive right to their respective writings and 2. The case of Kirtland v. Hotchkiss, 491, relates to discoveries." The court held that a trade-mark is the reserved power of the States to impose taxes upon neither a writing nor a discovery within the meaning their own citizens. Mr. Kirtland, who was a citizen of the Constitution, and hence that this clause gives of Connecticut, held obligations executed in Chicago, to Congress no authority to legislate in regard to it. made payable in that city, and also secured by deeds The other clause authorizes Congress "to regulate of trust upon real estate there situated. According to commerce with foreign nations and among the several the law of Connecticut these evidences of debt were States, and with the Indian tribes.” This provision taxable in that State as personal property. Mr. Kirt- does not, in the judgment of the Supreme Court, susland resisted this taxation as being repugnant to tho tain the trade-mark legislation of Congress. Even if Constitution of the United States, and finally carried the regulation of trade-marks were included in the the question to the Supreme Court.

power to regulate commerce - a point which the court The court in this case decided that “the Constitu- did not decide - still such regulation would be limited tion does not prohibit a State from taxing her resi- to the commerce placed by the Constitution under the dent citizens for debts held by them against a non- control of Congress, and could not be extended to the resident, evidenced by his bonds, paymeut whereof is purely domestic commerce which is carried on within secured by his deeds of trust and mortgages upon the boundaries of a State. The trade-mark legislation real estate situate in another State," and that “for in question is evidently pot thus limited. As remarked the purpose of taxation, a debt has its situs at the by Mr. Justice Miller, “its broad purpose was to esresidence of the creditor, and may be there taxed." tablish a universal system of trade-mark registration, The question then whether Mr. Kirtland should in for the benefit of all who had already used a tradeConnecticut, the place of his residence, be taxed on mark, or who wished to adopt one in the future withthese obligations, belonged exclusively to the legisla- out regard to the character of the trade to which it tive discretion of that State. The National Constitu- was to be applied, or the residence of the owner, with tion does not limit or qualify this discretion.

the solitary exception that those who resided in Mr. Justice Harlan, in stating the opinion of the foreign countries which extended no such privileges to court, said: “So long as the State, by its laws prescrib. us were excluded from them here.” Such being the ing the mode and subjects of taxation, does not character of the legislation, it was regarded by the entrench upon the legitimate authority of the Union, court as an attempt to exercise “a power pot confided or violate any right recognized or secured by the to Congress.” Constitution of the United States, this court, as be- As to the suggestion that the legislation might be tween the State and its citizen, can afford him no held valid in application to foreign and inter-Stato relief against State taxation, however unjust, oppres. commerce and commerce with the Indian tribes, Mr. sive, or onerous.” The cases cited in support of this Justice Miller replied that “it is not within the judigeneral doctrine are McCulloch v. The State of Nury- cial province to give to the words used by Congress a land, 4 Wheat. 428; The Providence Bank v. Billings, narrower meaning than they are manifestly intended 4 Pet. 563; St. Louis v. The Ferry Co., 11 Wall. 423; to bear, in order that crimes may be punished which and State Tax on Foreign-held Bonds, 15 id. 300.

are not described in language which brings them within the constitutional power of that body." The court this case was under section 5515 of the Revised Statutes could not undertake thus to revise and virtually alter

of the United States, and the court held that Congress the legislation of Congress. It declined to do so in The

had power to pass the law under which the conviction United States v. Reese, 2 Otto, 214.

was had, and that the Circuit Court had jurisdiction Mr. Justice Miller said in conclusion: “The ques- of the offense. The offense consisted in a violation of tions in each of these cases, being an inquiry whether

the law of Ohio, by Clarke, who was a State officer at these statutes can be upheld in whole or in part as

an election for a representative in Congress. He viovalid and constitutional, must be answered in the neg

lated that law in not conveying the poll-book, after it ative; and it will be so certified to the proper Circuit

had been sealed up and delivered to him for that purCourts."

pose, to the county clerk, and in allowing it to be 5. In Ex parte Siebold, 371, certain sections of the

broken open. Federal election laws, as contained in title XXVI of

Section 5515 of the Revised Statutes of the United the Revised Statutes of the United States, and relat

States provides that “every officer of an election at ing to the appointment, powers and duties of supervis

which any representative or delegate in Congress is ors of election and the powers and duties of marshals,

voted for, whether such officer of election be appointed and also the penal sections 5515 and 55:22 of the same

or created by or under any law or authority of the Statutes, came before the court for consideration.

United States, or by or under any State, territorial, The main question was whether this legislation lies

district or municipal law or authority, who neglects or within the constitutional power of Congress. The refuses to perform any duty in regard to such election provision of the Constitution upon which the legisla- required of him by any law of the United States, or of tion rests for its validity is in these words: “The any State or Territory thereof, or who violates any times, places, and manner of holding elections for sen- duty so imposed,'' or who does any of the other things ators and representatives shall be prescribed in each

specified in the section, “shall be punished as preState by the Legislature thereof; but the Congress scribed in section 5511" of the same Statutes. The may at any time by law make or alter such regula- recitals of this section covered the actions set forth in tions, except as to the places of choosing senators." the indictment against Clarke. Hence the court, for Art. 1, $ 4.

the reasons stated in the case of Siebold, dismissed The court held that this section of the Constitution

the application for habeas corpus and remanded the sustains the legislation, and on this ground declined prisoner to the custody of the United States marto grant the application for a writ of habeas corpus in shal. behalf of the petitioners who had been indicted and 7. The case of Tennessee v. Davis, 257, relates to the convicted under these statutes. The substantial es- right of removal in a criminal prosecution from a sence of the opinion, as found in the elaborate deliver- State court to the proper Federal court. Davis, who ancc of Mr. Justice Bradley, may be embraced in the was a United States officer duly appointed as a deputy following propositions: (1) That under this clause of collector of internal revenue, and who had been inthe Constitution Congress may “make" all the regu- dicted for murder in a State court of Tennessee, prelations in respect to such elections, “except as to the sented to the proper Circuit Court of the United places of choosing senators," or may “alter" those States his application to have the case removed thereto made by a State, either “wholly or partially." (2) for trial, claiming the right under section 643 of the That the regulations made by Congress, so far as they Revised Statutes of the United States. The judges of are inconsistent with those made by a State, supersede this court were divided in opinion on the question, and repeal the latter, and so far as they are not thus and so certified to the Supreme Court. inconsistent, leave State regulations uudisturbed, and The section of the Revised Statutes, under which simply operate concurrently with them. (3) That this right was claimed by Davis, provides that “when when Congress legislates on the subject the State laws any civil or criminal prosecution is commenced in any which it “sees no occasion to alter" and does not court of a State against any officer appointed under alter, “but which it allows to stand, are in effect or acting by authority of any revenue law of the adopted by Congress.” (4) That Congress may, in the United States, now or hereafter enacted, or against exercise of its supervisory power, impose new duties any person acting by or under authority of any such upon State officers of election, or addional penalties officer, on account of any act done uuder color of his for any breach of duty or commission of fraud, and office or of any such law, or on account of any right, may enforce either the laws of the State or its own title or authority claimed by such officer or other perlaws prescribing the duties of such officers, since the son under such law,” the case may, by the proceeding Government of the United States is directly involved specified in the section, be removed to the proper Fedein and concerned with such elections. (5) That Con- ral court for trial. The Supreme Court held that the gress has power to vest in the Circuit Courts of the petition for a removal of the case comes within the United States the appointment of supervisors of provisions of this statute. election, as provided for by the statutes in question. The question whether the statute itself is “an exer(6) That the peval sections 5515 and 5522, defining the cise of the constitutional power vested in Congress," offenses for which indictments might be framed, and, Mr. Justice Strong, in giving the opinion of the court, on conviction, punishment might be inflicted, are an stated in the following form: “Has the Constitution exercise of the power belonging to Congress, and that conferred upon Congress the power to authorize the the Circuit Courts of the United States have jurisdic- removal, from a State court to a Federal court, of an tion to try and punish these offenses.

indictment against a revenue officer for an alleged The result in this case is a judicial affirmation of the crime against the State, and to order its removal before constitutionality of those sections of the Enforcement trial, when it appears that a Federal question or a Act of May 31, 1870, and the amendatory act of Feb- claim to a Federal right raised in the case, and must ruary 28, 1871, which furnished the sections of the be decided therein ?" Revised Statutes of the United States that came under This question was answered in the affirmative. The the consideration of the court. 16 U. S. Stat. at leading points in the deliverance of Mr. Justice Strong, Large, 140 and 433. The dispute between party politi- sustaining this answer, are the following: 1. That if cians as to the validity of this legislation is settled by the fact were otherwise, the National Goverument, the highest judicial authority in the land.

acting within the States only through its officers and 6. In Ex parte Clarke, 399, the same general ques- agents, would have no power to protect these officers tions were before the court, and the same conclusions and agents against State action, and might by such reached as in Ex parte Siebold. The indictment in action be paralyzed in its operations. 2. That Con* arising

gress has authority to pass the necessary laws to carry for a mandamus to compel Judge Rives, a United into effect the judicial power of the United States. States judge in Virginia, who had ordered the removal 3. That this judicial power extends to "all cases in of the cases of two colored men to a Federal court, law and equity,” whether civil or criminal,

and bad, by writ of habeas corpus cum causa, placed under the Constitution, the laws of the United States, them in the custody of the United States marshal, to and treaties made or which shall be made under their rescind the order and restore the prisoners to the authority." 4. That such cases arise whenever a cor- proper Stato authority. The grand jury that indicted rect decision in regard to them depends upon the con- tho prisoners, as also the jury summoned to try them, struction of the Constitution or a law or treaty of the was composed entirely of the white race. After the United States. 6. That Congress, by a series of acts, trial had been entered upon, they petitioned the court commencing with the Judiciary Act of 1789, and pro- for a mixed jury, composed in part of persons of their viding for the removal of cases from State to Federal own race. This petition was rejected. They aftercourts, has expressed its legislative sense on this sub- ward applied to Judge Rives to have their cases reject. 6. That the Supreme Court of the United States moved to the Circuit Court of the United States for has, in several instances, affirmed the power of Con- trial; and he granted the application, assuming to act gress to authorize such removals. 7. That these re- under the authority of section 611 of the Revised movals constitute no invasion of State rights, as they Statutes of the United States. There was nothing in exist under our dual system of government; but on the Constitution or laws of Virginia excluding colored the contrary, that a denial of the right of the National men from serving as jurorg. Government to remove, to take charge of aud try any Such being tho material facts, the question before case “arising under the Constitution or laws of the the Supreme Court was whether, upon the showing of United States " would be “a denial of the conceded the petition for removal in these cases, Judge Rives sovereignty of that government over a subject ex- had, under section 641 of the Revised Statutes, authorpressly committed to it."

ity to order such removal. This question was anAs to the question “whether, if the case be remov- swered in the negative, and a mandamus was granted able from the State court, there is any mode and man- for the restoration of the prisoners to the State auner of proceeding prescribed by the act of Congress," thority. Mr. Justice Strong said that there was no difficulty. The controlling reason for this answer, as stated by “The Circuit Courts of the United States have all the Mr. Justice Strong, is the fact "that to such a caseappliances which are needed for the trial of any crimi- that is, a judicial infraction of the constitutional innal case. They adopt and apply the laws of the State hibitions, after trial or final hearing has commenced in civil cases, and there is no more difficulty in admin- section 641 has no applicability.” The section" was istering the State's criminal law. They are not foreign not intended to reach such cases. I left them to the courts."

revisory power of tho higher courts of tho State, and 8. The case of Strauder v, West Virginia, 303, camo ultimately to the review of this court." There buing before the court by a writ of error. Strauder, nothing in tho Constitution or laws of Virginia to exwho is a colored person, was indicted, convicted, and clude colored persons, because of their color, from sentenced for murder, in a State court of West Vir- serving on juries, tho proper remedy, in tho event of ginia, and the judgment was confirmed by the Su- such judicial infraction in tho process of trial, which preme Court of that State. He applied, before trial, could exist and be known only after tho trial was in to have his case removed to the proper Federal court, actual progress, is not a removal of the case to a Fedebecause the law of that State excluded colored per- ral court, for which section 641 gives no authority, but sons from serving as jurors, claiming the right to re- an appeal to the higher courts of the State, and if the moval under section 641 of the Revised Statutes of the infraction be not thus corrected, then a review of the United States. His petition was denied by the State judgment by tho Supreme Court or tho United States court, and the cause was forced to trial.

by a writ of error. The questions to be determined in this case were Moreover, tho right secured by the Fourteenth whether "every citizen of the United States has a Amendment is “that, in the selection of jurors to pass right to a trial of an indictment against him by a jury upon tho life, liberty or property" of a colored man, selected and impanelled without discrimination against there shall bo no exclusion of his race, and no dishis race or color, because of race or color," and whether, crimination against them because of their color." “if he has such a right, and is denied its enjoyment | This does not necessarily imply that tho jury must in by the State in which he is indicted,” he may

every such case bo composed of colored persons, or the case to be removed into the Circuit Court of the that a part of tho jury should be of this class. "A United States." Both of these questions were an- mixed jury in a particular casc," said Mr. Justice swered in the affirmative; the first, mainly in the light Strong, “is not essential to the equal protection of the of that clause of the Fourteenth Amendment which laws, and the right to it is not given by auy law of Virforbids a State to "deny to any person within its ginia, or by any Federal Statute. It is not, therefore, jurisdiction the equal protection of the laws,” and guarantecd by the Fourteenth Amendment, or within which was held to be inconsistent with the jury law the purview of section 641” of the Revised Statutes of West Virginia; the second, in view of section 641 of the United States. “The petition for a removal of the Revised Statutes of the United States, provid- stated uo facts that brought the case within the proing for the removal of cases when this right is denied visions of this section [611], and, consequently, no by any State, and also in view of sectious 1977 and jurisdiction of the case was acquired by the Circuit 1978 of the same Statutes, enumerating somo of the Court of the United States." rights and immunities guaranteed by tho Constitution, 10. The case of Ex parte Virginia, 339, was that of a among which is "the full and equal benefit of all laws petition from J. D. Coles, a judge of a county court and proceedings for the security of person and prop- of Virginia, who had been indicted in a Uuited States erty as is enjoyed by white citizens."

District Court, and was under arrest, asking for a writ The jury law of West Virginia, in its exclusion of of habeas corpus and a writ of certiorari to bring up colored persons from juries, because of their color, the record of the District Court, and of a similar pewas held to be unconstitutional, and this, of course, tition from the State of Virginia, both of which petivitiated and rendered illegal the whole proceeding tions were regarded as presenting one case. The against Strauder.

offense set forth in the indictment against Judge Coles 9. The case of Virginia v. Rives, 313, was a petition was that, being charged by law with the duty of select


ing grand and petit jurors, he had excluded or failed flicts of opinion which have existed in regard to them. to select any colored citizens as such jurors, and that The country now knows what the highest judicial trithe ground thereof was their race or color.

bunal of the land thinks in respect to these questions. The Supreme Court, after affirming its own jurisdic- Its exposition of law is alike final and conclusive. tion in the premises, proceeded to consider the merits of the case. Mr. Justice Strong, in stating the opin

DEGREE OF CARE REQUIRED FROM TRUSion of the court, remarked that the indictment and

TEES OF SAVINGS BANKS. bench-warrant rest upon the Act of Congress of March 1st, 1875, the fourth section of which declares: “That no citizen possessing all other qualifications which are

NEW YORK COURT OF APPEALS, SEPTEMBER 21, 1880. or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the

Hon, Receiver, v. CARY. United States, or of any State, on account of race,

The trustees of a savings bank are bound to exercise, in color, or previous condition of servitude; and any

the management of the affairs of the bank, ordinary officer or other person charged with any duty in the

care and prudence; the same degree of care and pruselection or summoning of jurors who shall exclude or dence that men prompted by self-interest generally exfail to summon any citizen for the cause aforesaid ercise in their own affairs, and it is a breach of duty in shall, on conviction thereof, be deemed guilty of a trustees not to bestow such care and prudence. misdemeanor, and sball be fined not more than five The trustees cannot set up as a defense for neglect, that they thousand dollars.” 18 U. S. Stat. at Large, 335. The

did not possess ordinary skill and judgment, as they by validity of this statute rests upon the Fourteenth

accepting the position of trustees undertake that they

possess such a degree of skill and judgment. Amendment, which declares that po State shall "deny

A savings bank was incorporated in 1867, and up to 1875, to any person within its jurisdiction the equal protec

when a receiver was appointed, did business in leased tion of the laws," and that “ Congress shall have power premises. The deposits in the bank at no time exceeded to enforce by appropriate legislation the provisions of about $70,000, aud during each year but one the exthis article.” The purpose of the amendment was to penses of the bank, including interest to depositors, put the colored race, as to civil rights, on a "perfect

exceeded its income. At a time when the bank was equality with all other persons within the jurisdiction

substantially insolvent, the trustees purchased a lot of the States," and this includes “an impartial jury

costing $29,000, on which a building for the use of the

bank, costing $27,000, was erected. In 1875 a receiver trial by jurors indifferently selected or chosen without

was appointed, and this building and lot, subject to a discrimination against such jurors because of their

mortgage, and other assets, producing only about $1,000, color."

Congress has power, bý appropriate legisla- constituted the whole property of the bank and the lot tion, to make this purpose effective."

and building were afterward swept away by the mort“Such legislation," said Mr. Justice Strong, “must gage. In an action by the receiver against the trustees act upon persons, not upon the abstract thing denom

for the loss, held, that a jury were justifled in finding inated a State, but upon the persons wbo are the agents

that the trustees failed in exercising tho prudence which of the State in the denial of the rights which are in

the law requires and were liable for the loss sustained.

Held, also, that the receiver of the bank might maintain tended to be secured. Such is the Act of March 1st,

the action, and that the same was triable at the Circuit 1875, and we think it was fully authorized by the Con- before a jury. stitution.” The fact that the person upon whom the Held, also, that all the trustees need not be joined. law acts holds an office under a State, and claims to Held, also, that a trustee was not relieved from liability by act for the State, does not relieve him “from obliga- a discharge in bankruptcy. tion to obey the Constitution of the United States, or

CTION by Marcus T. Hun, as receiver of the Centake away the power of Congress to punish bis disobe

tral Park Savings Bank, against John G. Cary and dience.” Moreover, the act of Judge Coles, in selecting jurors, was not a judicial act, but "merely a

others, to recover damages for the loss alleged to be ministerial act,

caused to the bank by the misconduct of defendants, and eveu if the act were judicial, he

who were its trustees. The opinion states the case. would be entitled to no immunity on this ground, sinco, as alleged in the indictment, “he acted outside

From a judgment in favor of plaintiff as to certain of of his authority, and in direct violatiou of the spirit

the defendants, such defendants appealed. From an

order of the General Term, granting a new trial as to of the State statute," which statute gave him no authority for the exclusion, in selecting jurors, of “ all

Smith, one of the defendauts, plaintiff appealed. colored men merely because they were colored.”

F. C. Barlow, for plaintiff. Mr. Justice Strong said in conclusion: “Upon the

E. Ellery Anderson, for defendants. whole, as we are of opinion that the act of Congress, upon which the indictment against the petitioner was

A. Wakeman, for defendant Smith. founded, is constitutional, and that he is correctly held EARL, J. This action was brought by the receiver to answer it, and as, therefore, no object would be of the Central Park Savings Bank of the city of New secured by issuing a writ of habeas corpus, the peti- York against the defendauts, who were trustees of the tions are denied."

bank, to recover damages which, it is alleged, they These ten cases, especially the last six, present a caused the bank by their misconduct as such trustees. body of very important decisions in the construction The first question to be considered is the measure of and application of the Constitution of the United States. fidelity, care and diligence, which such trustees owe to Seldom has the Supreme Court had occasion in a siugle such a bank and its depositors. The relation existing term to pass upon so many questions of this elementary between the corporation and its trustees is mainly that character. Its uniform practice is to express opinions of principal and agent; and the relation between the on constitutional points only as they arise in pending trustees and the depositors is similar to that of trustee cases, and even then, so far only as may be necessary and cestui que trust. The trustees are bound to obin determining these cases, The validity of the Fede- serve the limits placed upon their powers in the charter, ral election laws, the right of the National Govern- and if they transcend such limits and cause damage, ment to protect its own officers and agents against they incur liability. If they act fraudulently or do a State action, the interpretation of the Fourteenth willful wrong, it is not doubted that they may be held Amendmeut in its guaranty of civil rights, and the for all the damage they cause to the bank or its depospower of Congress legislatively to enforce this guaranty itors. But if they act in good faith within the limits form a cluster of questions, not only significant in of powers conferred, using proper prudence and dilithemselves, but also significant by reason of the con- gence, they are not responsible for mere mistakes or

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