325.

But where the ordinance prescribes a definite time for doing the work, a different rule obtains. Time then becomes an essential element of the contract, and bidders are advised that in all events the work must not be prolonged beyond the period fixed. Provisions afterward inserted in the contract which attempt to soften the rigor of the ordinance are nugatory, and courts will disregard them. Nor will the council be permitted to extend the time by ordinance. This inflexible rule is supported by sound reason. And

it follows that should we find the ordinance made time essential, neither. the conflicting provisions of the contract nor the ordinance to extend the time will serve to make valid that which is invalid under the terms of the first ordinance."

The court then goes on to say:

"We do not consider these views at variance with the opinion of the supreme court in Hund v. Rackliffe, supra. There is a dictum in the opinion which lends countenance to the contention of plaintiff that the council might extend the time by ordinance even in cases where time was specified in the initial ordinance, but we do not understand the supreme court intended to decide that question, and do understand that the scope of the decision was intended to be confined to the question determined in the excerpt quoted."

Now the opinion in the Hund case, 92 Mo. 324, is to the effect that, "no good reason has been given, or is conceivable, why the municipal assembly should not have power to extend the time for the completion of a contract beyond the period specified therefor in the original ordinance, if the extending ordinance is passed prior to the expiration of the time limited in the original ordinance; and likewise no good reason appears why the municipal assembly should not have power to extend the time under such circumstances, when no time was specified in the original ordinance and the time limited was specified only in the contract. In the absence of a time limit in the ordinance, it has always been the rule in this state, as emphasized by the decision in Heman v. Gilliam, that

the contract may specify a time, but that such time specified in the contract must be a reasonable time, and that the time specified in the contract is, prima facie, a reasonable time, because the parties themselves have so agreed. But where, for any good reason shown, as the inability of the contractor to procure a portion of the materials necessary for the doing of the work, as appears in this case, the work cannot be completed within the contract time, it would be a narrow, strained, unnatural and unreasonable construction of the law to hold that the municipal assembly had not the power, during the life of the contract, to extend the time for the completion of the work; for such act of the municipal authorities would be a legitimate determination of what constitutes a reasonable time, and, as no appreciable damage could thereby ensue to the property owner by the extension, the courts will not interfere with the legislative determination of the reasonableness of the time for the completion of the work."

Assuming that this opinion of the su preme court is dictum, to say the least, it is forceful and to our opinion sound and most reasonable.

The legislative powers were delegated to the city to be carried out within reasonable limits. The city had power to protect its rights or act to, conserve the real duty it owed to the contractor, and it is impossible to conceive how the enlargement of the time specified in the original ordinance to ten days, was an unreasonable extension of time, or could have made a serious difference to any party in interest.

The law is made for practical uses, and indulges in no metaphysical subtleties, and ought not to permit a wrong to be done where it lies in its power to do justice by the exercise of good sense and morals. Lex non exacte definit, sed arbitrio boni viri permittit, and cujus est instituere, cjus est abrogare, are maxims the court should thoroughly understand.

It is the ability to handle the fundamental rules of construction which enables a man to become a great lawyer or a great judge, and in the principal case there is no evidence of the exercise of this kind of ability.

NOTES OF IMPORTANT DECISIONS

APPEAL IN CHINESE EXCLUSION CASES-HEARING DE NOVO.-The recent case of Lin Hop Fong v. United States, 28 Sup. Ct. Rep. 576, decides that in Chinese exclusion cases, where the defendant is ordered deported by the commissioner, and appeals to the district court that he is entitled to a trial de novo. After citing sec. 13 of the Act of 1888 (25 Stat. at L. 476, chap. 1015, U. S. Comp. Stat. 1901, p. 1312), providing for an appeal, the court says:

"In this case the Chinaman did prosecute his appeal from the commissioner to the dis trict judge. The statute is curiously silent as to how the appeal is to be heard; it says nothing as to what papers are to be filed or as to what testimony shall be given. In our view, giving the Chinaman an appeal, the law contemplates that he shall be given the right of a hearing de novo before the district judge before he is ordered to be deported. It is a serious thing to arrest a Chinaman who, as in this case, has been in this country a number of years, lawfully admitted upon a certificate complying with the treaty, and order his deportation without giving him a full opportunity to assert his rights before a competent court. There being no provision of the statute that the hearing shall be upon a transcript of the proceedings before the commissioner, we think, when a party demands it, Congress intends he shall have the right to a hearing and judicial determination before a district judge."

As to the evidentiary value of the certificate, the court comments as follows: "When this young man entered a port of the United States in July, 1899, he presented such a certificate, duly issued and vised by the consular representative of the United States. Upon application for admission this certificate is prima facie evidence of the facts set forth therein. 22 Stat. at L. 58, § 6, chap. 126, U. S. Comp. Stat. 1901, p. 1307; 33 Stat. at L. 428, chap. 1630. This certificate is the method which the two countries contracted in the treaty should establish a right of admission of students and others of the excepted class, into the United States, and certainly it ought to be entitled to some weight in determining the rights of the one thus admitted. While this certificate may be overcome by proper evidence, and may not have the effect of a judicial determination, yet, being made in conformity to the treaty, and upon it the Chinaman having been duly admitted to a residence in this country, he cannot be deported, as in this case, because of wrongfully entering the

United States upon a fraudulent certificate, unless there is some competent evidence to overcome the legal effect of the certificate. In this record we can find no competent testimony which would overcome such legal effect of the certificate, and the plaintiff in error was therefore wrongfully ordered to be deported."

Under such a decision, a Chinese charged with being unlawfully within the country is assured of a fair and impartial hearing before he can be deported.

THE MALICIOUS USE OF ONE'S PROPERTY.

England and the United States stand practically alone in holding that as a general rule a person has an absolute right to use his property as he desires, that he may use it for the purpose of injuring his neighbor, though his motive be solely one of malevolence.

The fact that the Roman law, as well as the law of nearly every nation, is opposed to such a principle, should alone suffice to make a prima facie case against its soundIt is the purpose of this article to show that, in fact, the doctrine is based neither on authority nor reason, and to point out the justification for a change.

ness.

Although the authorities are not abundant, it is generally conceded that the malicious use of one's property for the sole or principal purpose of injuring another was prohibited by the civil law.1 Such authorities as we have, deal principally with water rights, but the general rule also finds support.2 In Germany the doctrine that obtains there is thus expressed: "The exercise of a right is not rendered unlawful by the fact that another is damaged thereby; it is only unlawful to exercise a right solely in order to injure another.3 In Scotland, "The law interpos

(1) The word "malicious" is used in this connection with a full appreciation of the objections that have been made against it, but because of the inability to find another word that will convey the meaning intended. (2) Domat, sec. 1047.

(3) Windscheid, Pandektenrecht, vol. 1, sec. 121, 4th ed.

es so far for the public that it suffers no person to use his property wantonly to his neighbor's prejudice."4 In France the same rule exists."

In England, on the other hand, the principle has gradually grown up, in accordance with the maxim, cujus est solum ejus est usque ad coelum et ad inferos, and in disregard of the restricting maxim, sic utere tuo ut alienum non laedas, that where a person is dealing with his own property he may act as maliciously as he desires towards his neighbor, who has no redress.

The doctrine is based on the idea that since a person has an absolute right to deal with his property as he desire, the motive with which he acts cannot affect that right. The fallacy of the doctrine lies in the idea that exists in regard to the nature of the so-called "absolute rights" of man. Though the statement may at first glance appear radical, it is suggested that properly speaking, there is no such thing as an "absolute right!" Blackstone makes the classic distinction between the rights of this character, as those pertaining to one's personal liberty, his personal security and his property. Though the phrase is a clumsy one, a more accurate statement would be that the rights mentioned prima facie absolute rights. Thus in the case of the right to personal security a person makes out a case by simply stating that he has been injured by another. But the latter may answer that the injury was inflicted in self-defense. Again in the case of the restriction of one's personal liberty by arrest, the question being brought up by habeas corpus, the justification may be that the complainant is being detained for a violation of the law of the land.

are

It is thus evident that in these two cases the so-called absolute rights are not, strictly speaking, absolute, but limited by reason of a person's relations to his fellows, directly and indirectly, through the necessity of

not

obedience to the laws of the government under which he lives. Likewise in the case of property the rule should be that a person has a prima facie right to deal with his own property as he desires, but that this right is limited by the correlative. rights of his neighbors. "Property in land must be considered for many purposes, as an absolute unrestricted dominion, but as an aggregation of qualified privileges, the limits of which are prescribed by the equality of rights and the correlation of rights and obligations necessary for highest enjoyment of land by the entire community of proprietors. The proposition that soil is property conveys a very imperfect idea of the numerous and variously limited rights comprised in landed estates."

the

Besides this common reason for the doctrine under consideration, that a man's

right to his property is absolute, and hence he may use it as he desires, it is often alleged that it would be impracticable to require the courts to fathom a man's mind and to determine his motive in doing a certain work in connection with his property. But the law does attempt it in certain of its other branches, as in the case of malicious prosecution, and with a reasonable degree of success. It is alleged in reply that the effect of the malice is but to overturn a

permission, and that in this class of cases no right is involved. This answer does not, however, affect the main question, that the law in such a case lcoks to the motive of an actor. Moreover, where the courts have been required to look into the question of malice to ascertain the motive with which property rights have been exercised in a particular case, no serious difficulty has been met with. Thus in Connecticut the simple rule has been laid down that the "malicious intent must be so predominating as a motive as to give character to the structure. It must be so manifest and positive that the real usefulness of

the structure will be as manifestly subordinate and incidental." This case involved the constitutionality of a statute prohibiting malicious structures).

Finally, it should be constantly borne in mind that the courts have no right to refuse to mete out justice because of the difficulties to be met with in so doing. Yet this seems to have been an important factor in retarding the application of this doctrine by the courts."

Historically, also, the generally accepted doctrine is unjustifiable. The leading case in early English law dealing with the subject is Keeble v. Hickeringill.10 The plaintiff complained that he was possessed of a decoy pond to which wild fowl used to resort; that the defendant for the sole purpose of injuring the plaintiff, had discharged firearms near the plaintiff's pond, and had thereby frightened away the fowl from the pond. Judgment was given for the plaintiff. Said Chief Justice Holt: "Now, there are two sorts of acts for doing damage to a man's employment for which an action lies; the one is in respect to a man's privilege, the other is in respect to his property. Where a violent or malicious act is done to a man's occupation, profession or way of getting a livelihood, there an action lies in all cases." The principle could hardly be more plainly stated. Moreover, said the Chief Justice, such principle, principle, though "new in its instance, is not new in the reason or principle of it."

ty rights. Another factor in determining the courts not to allow a right of action under such circumstances, was their traditional conservatism in not departing from the old and time-honored forms of writs. Even for negligence and fraud there was for a long time no remedy on this account.

Though the English courts refused to accept the new doctrine, they, nevertheless, in the case of water rights, have accomplished practically the same result by insisting that the use of such right must be reasonable.11 It should be said, however, that even as regards water rights, the courts refuse to apply the doctrine in the case of percolating waters.

When the case of Allen v. Flood was decided,12 it was thought that the question of the position of malice in the law had been definitely settled, and that no further claim would be made that it should be regarded. But later cases, though affecting not to interfere with the prior ruling on this particular point, have, nevertheless, shown that the end has not yet come.1 13 In other branches of the law, particularly in the case of rights connected with business, motive is coming to be looked at much more closely than formerly, and it is possible that even in regard to other forms of prop- . crty, the rule may yet be broadened.14

15

In the United States the courts at the outset showed the same tendency to uphold as legal all acts concerned with or relating to the use of one's own land, and to absolutely disregard the question of motive. It is true that in the early case of Greenleaf v. Francis, the court stated that the right of the defendant over his own property "should not be exercised from mere malice." But in the subsequent case in the same state of Walker v. Cronin, in which the general rule was laid down that "The intentional causing of loss to another with

out justifiable cause, and with the malicious purpose to inflict it, is of itself a wrong," the court considered the case of Greenleaf v. Francis, and said: "It is intimated in this case that such acts might be actionable if done maliciously. But the rights of the owner of land being absolute therein, and the adjoining proprietor having no legal right to such a supply of water from 'lands of another, the superior right must prevail. Accordingly it is generally held that no action will lie against one for acts done upon his own land in the exercise of his rights of ownership, whatever the motive, without violating any legal right; that is, the motive in such cases is immaterial." But the dictum in Greenleaf v. Francis was followed in the Pennsylvania case of Wheatley v. Baugh.17 The court there made the sweeping statement that, "neither the civil nor the common law permits a man to be deprived of a well or spring or stream of water for the mere gratification of malice." This statement, as has been seen, is too broad. Greenleaf v. Francis, was relied on in a Vermont case decided a few years later,18 but the court refused to follow it, holding that the statement there made was mere obiter dictum. It was also stated that "It may be laid down as a position not to be controverted that an act legal in itself, violating no right, cannot be made actionable on the ground of the motive which induced it." It is noteworthy, however, that in a subjury desired by the defendant. The court the gave judgment for the ground that, "for aught that appeared in the declaration, the hole may have been dug for some useful or ornamental purpose, and may also have embraced in its object the malicious design to injure the plaintiff." But the court went on to say that "the act done, to-wit, the using of one's own property being lawful in itself, sequent case decided in the same state the

court emphasized the absence of any allegation of malice in connection with the action of the defendant complained of.1o

In a New York case decided in 1812,20 the unqualified statement was made that "In the exercise of a lawful right a party may become liable to an action when it appears that the act was done maliciously." The courts of that state afterwards, as we shall see, showed a strange inconsistency in dealing with this doctrine.

In Ohio the point was early raised and considered. The plaintiff alleged that the defendant for the sole purpose of injuring him, and to destroy his spring, had maliciously dug a hole on the defendant's own land, which action resulted in the inthe motive with which it is done, whatever it may be as a matter of conscience, is, in law, a matter of indifference."

The American cases thus far cited related only to water rights. The doctrine was, however, applied in other directions. In 1835 an action was brought in New York for the erection of a spite fence, which cut off the plaintiff's light. A verdict was rendered for the defendant, on the ground that "the plaintiff in this case. has only been refused the use of that which did not belong to her, and whether the motives of the defendant were good or bad, she has no legal cause of complaint."21 No reference was made to the earlier case of Panton v. Holland. In a subsequent New York case the additional reason given of the impracticability of a contrary "A different rule would lead to the encouragement of litigation, and prevent, in many instances, a complete and full enjoyment of the right of property which inheres to the owner of the soil. Malice might easily be inferred sometimes from idle and loose declarations, and a wide door would be opened by such evi

(16) 107 Mass. 555. Also cf. Plant v. Woods, 176 Mass. 492.

(17) 25 Penn. St. 528.

(18) Chatfield v. Wilson, 28 Vt. 49.

(19)

was

Harewood v. Benton, 32 Vt. 737. (20) Panton v. Holland, 17 Johns. 92, 8 Am. Dec. 369.

(21) Mahan v. Brown, 13 Wend. 261, 28 Am. Dec. 461.

(22) Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93.