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(Ill. Law Rev. XII 212 (216), and I. L. R. XV 52). The distinction made is between those situations where it is possible for the public to get onto the spur or switch track from a public highway, on the one hand, and those where the spur from the railroad to the private property which it serves is entirely on private property and has no contact anywhere with a public way. In the former case, the spur has capabilities of public use, and, apparently, condemnation might be resorted to; whereas, in the latter case, it is purely private.

And in that connection, attention may be called to those cases where the railroad was in a public street and contact with the spur was from the public street, and where for that reason the spur was for public use (ILL. Law Rev. XII 216).

The cases reviewed in ILLINOIS LAW REVIEW XII 216 are susceptible of the construction, however, that if the use is in connection with the railroad, even if the spur is wholly on private property, if the railroad purpose, as a whole, is a public one, then this particular spur likewise has the same purpose, even though intended only for access to or egress from private property. That construction, it is submitted, overlooks the analogous situation presented by entrance ways from public streets to private dwellings, which, surely, cannot be held to be public ways.

E. M. L.

CONSTITUTIONAL LAW-ALIENS-EQUITY_RIGHT OF ALIENS TO OWN LAND FOR AGRICULTURAL USES—INJUNCTION AGAINST PUBLIC OFFICERS—CLASSIFICATION.—The cases of Terrace et al. v. Thompson, Attorney General of Washington, and Porterfield et al. v. Attorney General of California, 44 Sup. Ct. Rep. 15, reaffirm by dicta the line of cases which assert the logically and politically untenable doctrine that the treaty making power may be used to interfere with the domestic policies of a state and to confer upon aliens the right to own and inherit land within a state, but holds that the treaty with Japan does not confer any such right. In the absence of such a treaty it holds that, though an alien has a right, protected by the Fourteenth Amendment, to earn a livelihood by following the ordinary occupations of life, the amendment does not take away from the state “those powers of police that were reserved at the time of the adoption of the Constitution," and that a statute which denies the ownership of land to non-declarant aliens will be deemed a legitimate exercise of those powers. It also holds that the creation by Congress in its immigration and naturalization laws of the two classes of declarant and non-declarant aliens furnishes a reasonable basis for a similar classification by the state and ventures the indisputable suggestion that:

"It is obvious that one who is not a citizen and cannot become one lacks an interest in, and the power to effectually work for the welfare of the state, and, so lacking, the state may rightfully deny him the right to own and lease real estate within its boundaries. If one incapable of citizenship may lease or own real estate, it is within the realm of possibility that every foot of land within the state might pass to the ownership or possession of non-citizens.”

These opinions and these discussions of course were expected by those who have read the treaty with Japan and have at any time considered our historic attitude towards the tenure of land. They will perhaps be surprising to those who have let sentiment control and who have refused to give credence to Richard Olney, who as attorney general of the United States had much to do with drawing the treaty in question, and who years ago stated that under it the right to own land was neither guaranteed to Japanese subjects within the United States nor to the subjects of the United States within the Empire of Japan. This treaty (37 Stat. 1504) gives to the subjects of both nations the right"to carry on trade, manufactories, warehouses, and shops

to lease land for residential and commercial purposes, and generally to do anything incidental to or necessary for trading." But it is explicit in its terms and certainly confers no rights other than those specifically enumerated.

Apart from these questions of basic right, the decisions are interesting because in them Mr. Justice Butler makes the sweeping assertion that "equity will interfere by injunction not only where there is not a plain, adequate and complete remedy at law but also where the legal remedy is not as complete, practical, and efficient as that which equity could afford.” If this be so, there are few cases where equity will not interfere, for none will contend that the relief afforded by a suit for damages is ever as complete, practical, and efficient as that afforded by an injunction which prevents the wrong in its very inception, and there are few instances in which the chancellor is not more efficient than the common law jury. The cases which are cited (Boise Artesian Water Company v. Boise City 213 U. C. 276, 281, 29 Sup. Ct. 426; Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 11, 12, 19 Sup. Ct. 77) hardly go this far, but we can see no objection to the rule and only hope that it is seriously pronounced. It is sufficient to say that in the case at bar the damages attendant upon an unlawful denial of the right both to sell and to buy and enjoy the use of land would be very difficult of proof and that the danger of forfeiture and even criminal prosecution under an unconstitutional statute (if it were unconstitutional) should hardly be imposed upon the innocent, and that there is, therefore, every reason for the interposition of the courts of equity.

The cases also reaffirm the holding in ex parte Young 200 U. S. 123, that a suit in equity against a state officer to enjoin the enforcement of an unconstitutional criminal statute is not a suit by a private individual against a state which, since the passage of the Eleventh Amendment, can only be brought in the state courts and with the state's consent, but is a suit against an individual who is charged with a contemplated wrong and whose only justification can be an unconstitutional statute and the exercise of an official power and a state agency which he does not possess.

A. A. B.

JUDGMENTS AND DECREES—ENTRY OF-CONTENTS AND FORM OF.—Following a hearing on a petition for adoption, the judge before whom the petition was heard made an entry on his docket "that the court found the statements in the petition to be true; that the petitioners were fit and proper persons to adopt the child; that they were able to furnish her suitable support and education, and that a decree was granted as prayed and the name of the child ordered changed to Ida Venella Bolan."

Ida Venella Bolan.” These findings and orders were carried to and entered in the journal by the clerk of the county court, but no formal decree was filed or entered in the records. Long afterwards, when the controversy arose resulting in the litigation of the case now under comment, a nunc pro tunc order was entered embodying the substance of what the court had written in his docket.

The natural heirs at law of the adoptive parents assailed the legality of the adoption, and one of the points of attack was that no decree had ever been entered in the adoption proceedings. Upon that point the Supreme Court says (In the Matter of Bohn 308 Ill. 214 (223), 139 N. E. 64):

"We are of opinion where a judge of a court which has jurisdiction as we hold the county court of Marion County had writes out on his docket what his decision is and embraces in the entry the necessary things to a valid judgment or decree, and the clerk transcribes that into the record of the court, it is not essential to the validity of the judgment that the record show any further entries.”

This situation recalls the familiar rule which is sufficiently stated in the following quotation (Chicago G. W.R. Co. v. Ashelford 268 Ill. 91):

“While the final order or decree of a court of chancery does not become effective until it is prepared by the solicitor of the party in whose favor it is announced, approved by the chancellor and filed with the clerk, ... an entirely different rule has always prevailed with reference to judgments rendered by a court of law. A judgment of law being, as defined by Blackstone, 'the sentence of the law pronounced by the court upon matter contained in the record,' becomes effective as soon as it is pronounced by the court, and the duty at once devolves upon the clerk to enter the judgment, as pronounced by the court, upon the records of the court. In contemplation of law the clerk performs this duty at once, but in actual practice the judge makes the memorandum of the judgment pronounced upon his docket and the clerk from his memorandum afterwards enters the judgment, and it frequently happens that the clerk does not enter the judgment upon the record until several days after it has been pronounced. In every such instance, however, the judgment dates from the time it was pronounced by the court, and not necessarily from the time it was entered upon the records of the clerk.”


Obviously in the above quotation the court recognized a distinction between a decree and a judgment. In order that a decree may become effective it must be prepared by the solicitor of the party in whose favor it is pronounced by the chancellor, and filed with the clerk. While the chancellor need not sign it (Moore v. Shook 278 Ill. 52), and while, once such a decree is prepared and filed, it may be amended to correct errors in it apparent from the minutes made by the chancellor on the hearing (Moore v. Shook 278 Ill. 52, 53), it would seem, such formal paper must have been prepared and filed to make the decree effective. Until then, apparently, there is no decree: Waggoner v. Saether 267 Ill. 41. Even in case of a judgment at law, while that is effective from the time the court speaks, unless some minute of it is made at that time it can never be given effect, for a judgment cannot be proved by the recollection of the judge or the clerk: C. B. & Q. R. Co. v. Wingler 165 Ill. 635. So that it would seem to follow that if there is any distinction at all between a decree and a judgment in the mode whereby it is rendered of effect, that distinction must be this, viz.: a decree does not exist from the mere fact that minutes of it appear, but a formal paper must be on file. A judgment, however, exists from the fact that minutes of its pronouncement appear.

The principal case does not indicate whether it was the impression of the court that the rules applicable to decrees in chancery or those applicable to judgments at law should govern in that particular case further than to refer to the order in question in that case as a “decree.” As a matter of law, the proceeding itself, adoption, was a purely statutory one. It was unknown at common law: MCNamara v. McNamara 303 Ill. 196. Indeed, so strictly statutory is it that there is no appeal from the proceeding (Meyers v. Meyers 32 Ill. App. 189), there being no appeal under the Appellate Court Act, because it is neither a proceeding at law nor in chancery within the meaning of those terms (Sebree v. Sebree 293 Ill. 234; Grier v. Cable 159 ill. 29). But some rules of procedure must govern, and those rules must be either those recognized for a suit at law, or those recognized for a proceeding in chancery, as a proceeding may be strictly statutory and yet use the form of practice and the principles employed in a suit at law (Grier v. Cable 159 Ill. 29) or those employed in a proceeding in chancery (Pick v. Dietz 218 Ill. App. 295).

The procedure actually followed in the adoption proceeding in the principal case was that which the court in Chicago Gt. W. R. Co. v. Ashelford 268 I11. 91, supra, said was observed in actual practice in suits at law. It would follow that such practice is not the proper way to obtain an effective decree in chancery. A reference to the Statute on Adoption indicates that the practice directed to be observed by that statute resembles a proceeding in chancery at least as much as probate proceedings in the county court: Martin v. Martin 170 I11. 18. So that if, as it appears, the procedure adopted by the court in hearing the petition in the adoption proceeding in the


principal case was that in actual practice employed by judges in proceedings at law, then no decree was, in fact, ever entered in this adoption proceeding.

The distinction is a technical one, and the court in the principal case has brushed it aside without the citation of any authority. But will anyone find fault with the court for disregarding this archaic distinction and for refusing to set aside a proceeding regular to all intents and purposes merely because of a failure to observe a technicality having its sole foundation in custom and no justification for its continued existence in any real purpose that it could conserve?

E. M. L.

WORKMEN'S COMPENSATION—“ARISING OUT OF THE COURSE of EMPLOYMENT.”—In Jersey Ice Cream Co. v. Industrial Commission 309 Ill. 187, 140 N. E. 862, an employee of the Jersey Ice Cream Co. had been employed to sell ice to peddlers and other customers from a rear platform of its plant located in Chicago. The sales averaged from $150 to $160 per day and about 25 per cent of the sales would be in cash. His work usually ended about four o'clock in the afternoon. Shortly after four o'clock on May 9, 1921, while he was still engaged in his employment, he was shot by some unknown person and died a short time afterwards. There were no witnesses to the shooting and Connelly, the employee, died without making a statement. The report of his day's sales was found with the body showing cash received amounting to $37, which sum of money was found on his person, as also was $193.50 of his own money. Nothing appeared to have been missing from his person.

The judgment of the Circuit Court confirming an award for compensation for the death of Connelly was reversed on the ground that the testimony did not disclose that the injury from which death resulted arose out of the employment of the deceased. In this case it was conceded that the injury was received in the course of the employment of the deceased, but no motive for the attack on deceased was shown. While it was strongly urged that it is a reasonable inference that the killing was in pursuance of a plan to rob deceased of his employer's money, particularly since deceased was a peaceable, sensible citizen, without any evidence of having had any personal enemies, and that the attack arose after the usual close of business hours, at a time when he would have the total of the day's receipts in his possession, the court, however, pointed out that the contention on behalf of sustaining the award was based upon theory and conjecture, and there being no evidence from which it might be concluded that the robbery theory was the more reasonable, it was not possible to sustain the award. Inferences must be based upon evidence and the court cannot sustain an award based not on evidence, but upon theory, conjecture or unsupported inference.

This case is unlike the "watchmen cases" (Ohio Building Vault Co. v. Industrial Board 277 Ill. 96 and Mechanics Furniture Co. v. Industrial Board 281 Ill. 530), in that in each of those cases, while

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