Page images

The United States Court of Claims, on of Tyler against Gardener, in which Mrs. February 26, 1900, rendered its decision on Tyler, wife of President John Tyler, brought the claim preferred by Admiral Dewey, his suit against her brother over their mother's officers and men, for naval bounty under sec- will. Mr. Watson represented the appellant, tion 4635 of the Revised Statutes of the the opposing counsel being the Hon. WilUnited States, for the destruction of the liam M. Evarts. The Court of Appeals Spanish fleet in Manilla Bay on May 1, 1898. decided in favor of Mr. Watson's client, reThe claim made was for $200 for each person versing the General Term. on the Spanish fleet, upon the presumption that in determining the question of the superiority of the enemy's fleet, the shore batter

Notes of Cases. ies, torpedoes and mines should be taken into consideration. The contention of the Joint Tort Feasors. — In Grundel v. Union Iron government was that the statute having failed Works, decided by the Supreme Court of Calito provide for the contingency of the co

fornia in January, 1900, it was held that the fact

that some of the defendants, in an action in a operation of the land batteries with the naval

State court for the wrongful death of plaintiff's forces destroyed, the court possessed no

intestate on a sailing vessel, had made application, power to supply the omission. The deci

as the owners of the vessel, to a Federal court, sion of the court was to the effect that the for a limitation of their liability under the United claimants were entitled to recover the sum of States statutes relating to the merchant marine, $100 for each person on board the enemy's irom further proceedings in the State court against

and that the Federal court had enjoined plaintiff ships; that the statute was applicable only to

these defendants, is not a bar to the plaintiff prothe force of the vessels engaged in the action ceeding in the latter court against the other and that, taking the number and character defendants, where he has received no satisfaction oí vessels into account, the strength of their for the wrong complained of. The court said in batteries and all other matters which properly


The question presented on the appeal is whether go to the determination of the actual fight the plaintiff, with a cause of action alleged in the ing strength of the opposing fleets, that of complaint to be for $50,000 damages, is barred the United States clearly was superior. from recovery of a proper measure of damages, Under the decision the share of Admiral as against the respondents herein, in consequence Dewey in the amount awarded has been com

of the proceedings in the Federal court by the

nine defendants, the owners of said vessel, in puted at $9,570. It is understood that the which their liability is limited to the appraised claimants will take an appeal to the Supreme value of said vessel. The plaintiff has not actually Court of the United States.

received satisfaction in any amount, nor what in law is deemed the equivalent of satisfaction. The

law as to the liability of joint tort feasors is thus William Watson, wiose death at the ad-stated by Black on Judgments: “The general rule

followed in America is that the liability of two or of

93 years occurred recently, in Manhattan, was, next to the Hon. Benjamin sion of a tort is joint and several, and gives the

more persons who jointly engage in the commisD. Silliman, probably the oldest lawyer in same rights of action to the person injured as a Greater New York. Mr. Watson was grad-joint and several contract. Consequently, a judguated from Yale in 1829, was admitted to the ment recovered against one of two joint tort bar four years later, and until about five feasors, remaining unsatisfied, is no bar to an

action against the other for the same tort.” (2 years ago had continued the practice of his Black, Judgm., sec. 777.) Judge Cooley, in his profession uninterruptedly — a period of work on Torts (2d ed., p. 159), says: “The rule more than sixty years. From 1842 to 1845 laid down by that eminent jurist, Kent, in Livhe was Assistant United States District At- ingston v. Bishop (1 Johns. 290), which has since torney, under that great lawyer, Ogden been generally followed in this country, is that the

party injured may bring separate suits against the Hoffman. During his long and brilliant wrongdoers, and proceed to judgment in each, legal career at the bar Mr. Watson was coun- and that no bar arises to any of them until satissel in numerous causes celebres, including that faction is received.

It is to be observed,

vanced age


in respect to the point above considered, where Towns — Pollution of Stream. — In Watson v. the bar accrues in favor of some of the wrong- Town of New Milford, decided by the Supreme doers, by reason of what has been received from Court of Errors of Connecticut in January, 1900, or done in respect to one or more of the others, it was held that where a town discharges sewage that the bar arises not from any particular form from its public buildings into a stream which dethat the proceeding assumes, but from the fact that posits the same on plaintiff's land, it cannot escape the injured party has received satisfaction, or its share of liability therefor by showing that what in law is deemed the equivalent.” In Daw- others more largely than it contributed to the son v. Schloss (93 Cal. 199, 29 Pac. 31) the plain- nuisance. The court said in part: tiff had recovered a judgment in the sum of $5,000 Towns may build town houses and any necesagainst Schloss and Hinkle in an action for mali- sary outbuildings (Gen. St., sec. 130; White v. cious prosecution. A new trial was granted as to Town of Stamford, 37 Conn. 578, 586). If by condefendant Schloss, which resulted in a verdict and necting with a sewer they can save the expense of judgment against Schloss for $3,000, and he ap- outbuildings, or better accomplish the purposes pealed from the judgment. At the time of the these might otherwise serve, a reasonable consecond trial, the original judgment for $5,000 struction of the statute gives them the right so to against Hinkle was of record and unsatisfied. It do. School districts have similar powers, and in was contended by the appellant that no judgment case of consolidation the town succeeds to the should have been rendered against Schloss on the possession of their property and the responsibilinew trial, so long as the original judgment existed ties attaching to such possession (Id., tit. 35, cc. against Hinkle; that, while separate suits may be 135, 136; Pub. Acts, 1893, p. 410, C. 245). A buildbrought against each of several joint tort feasors, ing owned by a municipal corporation could not yet, if the defendants are sued jointly, there can be be relieved of the rain water falling upon the roof but one verdict and judgment. This court by precipitating it through a spout upon the lands answered this contention that such is not the of adjoining proprietors. Their rights may be prevailing rule in the United States," quoting from equally invaded by the discharge of sewage from Judge Cooley the above cited paragraph. The it upon their premises. In these respects a municicourt, continuing, says: “There is no pretense pality has no greater immunities than any private that any part of the judgment against Hinkle has landowner. A nuisance was created upon the been paid or satisfied, or even that execution has plaintiffs' land by the deposit of sewage, and sedibeen taken out upon the judgment.” Nichols v. ment from sewage, offensive from its appearance Dunphy (58 Cal. 605) was an action in tort. A or its smell. The use of the sewers which receive judgment had been obtained against defendants. the surface drainage from highways, and of that One of the defendants appealed and secured a re- built by the village improvement association, by versal of the judgment. Thereupon the other de- | the defendant, to carry off the sewage from its fendant, against whom execution had been taken public buildings, contributed to this injury. That out, moved for an order quashing the execution. others also contributed to it, and perhaps more That motion was granted, on the theory that there largely, did not relieve the town from liability could not be a several judgment when the action (Morgan v. City of Danbury, 67 Conn. 484, 496, had been joint. Discussing the action of the court 35 Atl. 499). That the plaintiffs suffered no perbelow, this court says: “We think the court erred sonal inconvenience from the nuisance, because in quashing the execution against Carmen. The they did not reside in the vicinity, is immaterial. judgment against her was unaffected by the appeal | They were entitled to nominal damages, at least, of her codefendant and the subsequent proceedings for the offensive condition of things upon their thereon.” In Butler v. Ashworth (110 Cal. 614, land, even if they never visited it, and although its 43 Pac. 386) it is said: “If one be injured by a rental and selling value remained unimpaired tortious act, he is entitled to compensation for the (Watson v. Water Co., 71 Conn. 442, 42 Atl. 265). injury suffered, and if several persons are guilty If those assessed can be regarded as substantial, in common of the tort, the injured one has his they are still so small in amount that no new trial right of action for damages against each and all of

should be granted for their reduction (Buddington

v. Knowles, 30 Conn. 26; Holbrook v. Bently, 32 the joint tort feasors, and may, at his election, sue

Conn. 508).
them individually or together.” In case one of
the wrongdoers has become bankrupt or insolvent,
the effect as to him would be to limit the liability



EXECUTIVE PROCLAto the available assets of his estate, which might MATION. be merely nominal. His bankruptcy proceeding,


of satisfaction in some form constitutes a bar in a pro- under the Constitution of the commonwealth by ceeding like the present.

proclamation to adjourn at once the general

assembly of the State, while sitting in regular ses- as now prevail in Frankfort would be sheer madsion at the seat of government, and to convene itness, and I have, therefore, in the exercise of my at another time and a different place in the State, constitutional powers, adjourned the legislature to when there is no disagreement between the two convene in London, Ky., on Feb. 6. houses with respect to the time of adjournment. I have taken every precaution to preserve the

The facts necessary in order to determine this peace, that every citizen may know that life and question may be briefly stated. The general as- property are safe and will be protected with every sembly of the commonwealth of Kentucky, pur- resource of the commonwealth. I trust that in this suant to the mandatory requirements of the

laudable effort I will have the support of every Constitution, met on the first Tuesday after the law-abiding citizen of Kentucky. first Monday in January, 1900, that is, on January

W. S. TAYLOR, 2, and its session was being regularly held at the

Governor of Kentucky. seat of government in the city of Frankfort on January 30, when the governor gave a proclama

Observe that it is recited in the proclamation

that a state of “insurrection” was prevailing in tion summarily adjourning the general assembly to meet at London, Laurel county, Kentucky, on

the State of Kentucky, and especially in Frankfort, February 6. The following is a copy of the

the capital thereof. The language of the address proclamation:

to the people is merely that the condition of the STATE OF KENTUCKY,

city was at that time one of “excitement and EXECUTIVE DEPARTMENT,

threatened violence.” It is not asserted that

there was any FRANKFORT, Ky., Jan. 30, 1900.

war or pestilence” at Frankfort

at that time, and what was in the proclamation To the General Assembly of the Commonwealth of

called “insurrection " seems not to satisfy any Kentucky:

accepted legal definition of the word. It may well WHEREAS, A state of insurrection now prevails

be doubted, therefore, whether there was as a in the State of Kentucky, and especially in Frank- matter of fact any insurrection in the city or State fort, the capital thereof, by virtue of the authority at the time of the giving of the proclamation. If vested in me by the Constitution of Kentucky,

there was no war, insurrection or pestilence, and I do hereby, by this proclamation, adjourn at once if there was no disagreement between the two the General Assembly of the State of Kentucky, to houses with respect to the time of adjournment, it meet at London, Laurel county, Ky., Tuesday, the is admitted that the governor would not have any 6th day of February, 1900, at 12 o'clock M.

constitutional power or authority to adjourn the Given under my hand at Frankfort, Ky., this regular session of the general assembly, and conjoth day oi January, 1900, at 9 o'clock P. M.

vene it at another time and a different place. For W. S. TAYLOR, the purposes of the present inquiry, however, it

Governor of Kentucky. will be assumed as a fact that insurrection was By CALEB POWERS, Secretary of State.

actually prevailing in the State and city on January

30, when the governor gave his proclamation; The following day, January 31, the governor ad

also that Taylor was in law and in fact governor dressed the people of Kentucky in writing, stating, of the State; and also that there was no disagreeamong other things, that he had adjourned the

ment between the two houses with respect to the legislature to convene in London on February 6.

time of adjournment. The reasons of the governor for taking such action are stated in the address, and hence it is given authority of the governor to adjourn the legislature

Thus arises the question of the constitutional here:

of the State while sitting in regular session at the STATE OF KENTUCKY,

seat of government, and to convene it at another EXECUTIVE DEPARTMENT,

time and place within the State, and in the mean FRANKFORT, Ky., Jan. 31, 1900.

time by force of arms to prevent it from meeting To the People of Kentucky:

at the seat of government, when there is no disThe most lamentable condition of affairs ever agreement between the two houses with respect experienced by our people has rendered prompt to the time of adjournment. action on the part of the chief executive of the The answer to this question depends upon a State absolutely necessary. A long series of un- proper construction of the provisions of the Conprecedented and unlawful acts practiced by those stitution of Kentucky. in charge of the legislative interests of the State By the Constitution of Kentucky, adopted Sephas culminated in the most fearful condition of the tember 28, 1891, in effect on January 30, at the period to the State. The dreadful tragedy, which time when the proclamation was given, no occurred yesterday and shocked and startled all, power to suspend laws

be exercised can be no more sincerely deplored by any one unless by the general assembly or its authorthan by myself. To attempt to legislate under such ity. The powers of the government of the conditions of excitement and threatened violence commonwealth are by that organic law divided



into three distinct departments, and each of them subjects to be considered, and no others shall be confined to a separate body of magistracy, to wit, considered." those which are legislative to one, those which are The seat of government is by mandatory proexecutive to another, and those which are judicial vision of the Constitution made to continue in the to another; and no person or collection of persons, city of Frankfort. being of one of those departments, can exercise Now, observe that section 36 of the Constitution any power properly belonging to either of the

of Kentucky provides, among other things, in subothers, except in the instances expressly directed

stance that the general assembly shall meet on the or permitted in the Constitution.

first Tuesday after the first Monday in January The governor stated generally in his proclama- every second year, that is, in the year 1900 on tion and in his address to the people that his January 2, and that its sessions shall be held at the action in adjourning the general assembly, while seat of government. There is a similar clause in sitting in regular session at the seat of govern- the Constitution of the United States, providing ment, to convene at another place within the State, that the congress shall assemble at least once in was " by virtue of the authority vested in him by every year, and such meeting shall be on the first the Constitution" and " in the exercise of his con- Monday in December, unless they shall by law stitutional powers.” It was stated by the counsel appoint a different day.” So Story says: “Annual to the governor that his action was based on sec- parliaments had long been a favourite opinion and tion 36 of the Constitution. Section 36 of the practice with the people of England; and in AmerConstitution relates to the regular or general ses- ica, under the colonial governments, they were sions of the general assembly, and is as follows: justly deemed a great security to public liberty.

“ The first general assembly, the members of The present provision could hardly be overlooked which shall be elected under this Constitution, by a free people, jealous of their rights; and thereshall meet on the first Tuesday after the first Mon-fore the Constitution fixed a constitutional period, day in January, 1894, and thereafter the general at which congress should assemble in every year, assembly shall meet on the same day every second unless some other day was specially prescribed. year, and its sessions shall be held at the seat of Thus the legislative discretion was necessarily government, except in case of war, insurrection or bounded; and annual sessions were placed equally pestilence, when it may, by proclamation of the beyond the power of faction, and of party, of governor, assemble, for the time being, else

power, and of corruption." where.”

So the Constitution of Kentucky fixed a constiBy subsequent sections of the Constitution a tutional period at which the legislature should smaller number than a majority of the members of assemble every second year. Thus the legislative each house of the general assembly is given power discretion was necessarily bounded, and biennial to adjourn from day to day; and during the session sessions were placed beyond the power of the of the general assembly neither house is allowed general assembly to change. But this mandatory to adjourn, without the consent of the other, for provision of the Constitution is addressed as well more than three days, nor to any other place than

to the governor as to the legislature and the that in which it may be sitting; and all orders, courts; so the regular sessions of the general asresolutions or votes in which the consent of both sembly must be held every second year in January, houses may be necessary must be presented to the and the executive is not allowed to interfere with governor for his approval or disapproval, except the time of their deliberations. on questions of adjournment. The duration of the

But the further provision of section 36 of the sessions of the general assembly is limited by the Constitution of Kentucky is: “ Except in case of Constitution to sixty legislative or calendar days, war, insurrection or pestilence, when it may, by exclusive of Sundays and legal holidays.

proclamation of the governor, assemble, for the Section 80 of the Constitution, which is the one time being, elsewhere.” Note the language of the that contains the provision as to the extraordi- exception: In case of insurrection "it (that is, nary or so-called extra or special sessions of the

the general assembly] may, by proclamation of the general assembly, provides as follows:

governor, assemble, for the time being, elsewhere." “He (the governor) may, on extraordinary oc- The language is “ may assemble; " that is, is percasions, convene the general assembly at the seat mitted to assemble, has liberty to assemble. This of government, or at a different place, if that language is permissive and discretionary; and, as should have become dangerous from an enemy or section 36 is dealing with the legislative power from contagious diseases. In case of a disagree- under the Constitution, and defining and prescribment between the two houses with respect to the ing the rights and duties of the general assembly, time of adjournment, he may adjourn them to such the power to assemble for the time being elsetime as he shall think proper, not exceeding four where is a grant to that body, and not to the months. When he shall convene the general as- executive, whose duties and powers are defined by sembly it shall be by proclamation, stating the later provisions of the Constitution.

The pro


vision is not that the governor may by proclama- tive. The Constitution intends that the two cotion convene” the general assembly elsewhere ordinate departments of the government shall act than at the seat of government in case of insur- in harmony in the performance of their respective rection. Nor is there any provision whatever that functions. In case of war, insurrection or pestithe governor may “ adjourn” a regular session of lence, the concurrence of both powers of governthe general assembly in such case. The words ment is necessary in order to effect a constitution“convene ” and “adjourn" do not appear in the ally valid meeting of the general assembly for the section at all. For the general assembly in case time being elsewhere than at the seat of governof insurrection to "assemble" in its discretion for

The general assembly has no authority in the time being elsewhere than at the seat of gov- such case to meet for the time being elsewhere, ernment is one thing. For the governor in such unless the governor by his proclamation shall case by his proclamation to command the general make known the existence of war, insurrection or assembly summarily to “adjourn” while sitting in pestilence. But the function of the governor is regular session at the seat of government, and to limited to an official declaration of the existence “convene" at another time and a different place of the condition essential to a change of place of in the State, when there is no disagreement be- meeting. The governor has no authority in such tween the two houses with respect to the time of case to adjourn a regular session of the general adjournment, is another and quite a different thing. assembly at the seat of government and order it to One is the voluntary exercise of discretion by the convene for the time being elsewhere, the power legislative power over its regular sessions, which of assembling elsewhere being confided by plain discretion is expressly confided to it by the Con- language of the Constitution to the discretion of stitution. The other is an arbitrary interference the general assembly, when once war, insurrection by the executive with the time and place of the or pestilence has been proclaimed. deliberations of the legislature, and an encroach- And finally, the language of the provision is that ment on the part of the governor upon the legis- the legislature may assemble "for the time being lative independence, which was meant by the elsewhere.” That is to say, it must meet on the framers of the Constitution to be guarded against first Tuesday after the first Monday in January, when they divided the government of the common

and must hold its session at the seat of governwealth into three departments, and expressly pro- ment. If, however, before or during its session vided that no person being of one of those insurrection shall break out, and if the governor departments should exercise any power properly proclaims that fact, the legislature may assemble belonging to either of the others.

at another place, but must still meet at the constiBut it may be suggested that the language of tutionally appointed time. The general assembly the exception is that the general assembly may, ought to be in session in case of war, insurrection " by proclamation of the governor,” assemble, etc. or pestilence breaking out, and the Constitution of Thus the question arises, What is meant by the the commonwealth contemplates that it shall be clause "by proclamation of the governor?” A in session in such case. This is the reason for the proclamation is a written or printed document, grant of power to the governor to convene the usually issued by the executive power of the gove general assembly on extraordinary occasions, such ernment, causing certain public matters to be pub- as the breaking out of insurrection. The Constilished or made known. Thus, on the breaking tution of Kentucky expressly provides that the out of war it is usual for the president of the general assembly may contract debts to repel inUnited States to issue a proclamation announcing vasion, suppress insurrection, or if hostilities are the actual existence of hostilities. So, also, in threatened provide for the public defense. Public courts of law the declaration made by the crier, policy and the general welfare require that when by authority of the court, that the court has opened the State is invaded, or arms borne against the or adjourned, as the case may be, is a proclama- government, or hostilities threatened, the legistion, that is, an official declaration of the actual lature shall meet so as to supply means for repellexistence of a fact, or happening of an event. So, ing the invasion, suppressing the insurrection, and when the Constitution of Kentucky provides that providing for the public defense. The legislature “in case of war, insurrection or pestilence" the must assemble for the time being, but it may hold general assembly “may, by proclamation of the its sessions elsewhere than at the seat of governgovernor, assemble, for the time being, elsewhere,"ment if the safety of its members demands a it means that the general assembly may exercise change of place of meeting. It was never contemits discretion to assemble for the time being else- plated by the framers of the Constitution of Kenwhere, provided the governor shall by his procla- tucky that there should be a dissolution of a mation publish and make known to them the fact regular session of the general assembly of the that war, insurrection or pestilence has actually commonwealth in the event of war, pestilence or broken out at the seat of government. In other insurrection breaking out at the seat of governwords, the executive is a check upon the legisla- ment; on the contrary, the Constitution contemture and the legislature a check upon the execu- plates, as above stated, that in such case the

« PreviousContinue »