mated on the basis of a "fair and just compensation damages awarded to the plaintiff" are to be estifor the pecuniary injuries resulting from the decedent's death to the person or persons for whose benefit the action is brought," we think the injury is for a wrong done "to the property, rights or interests" of the beneficiary, and that hence the cause of action survives, the recovery, if any, being a part of his estate, the same as it would have been if collected and paid over before his death.

was appointed administratrix of his estate. kin of such deceased person" (Whitford v. Panama Upon a petition showing the foregoing, Railroad). As, in the language of the statute, "the among other things, she applied at Special Term, on notice, for an order to revive and continue the action in her name, as plaintiff. The motion was opposed, and upon the hearing it appeared that Charles Meekin was the sole next-of-kin of Laurie Meekin, who, however, left her mother, five brothers and six sisters her surviving. From an order granting said motion, with costs, the railroad company appealed to the Appellate Division of the Second Department, which affirmed the order after striking out the award of costs. Subsequently, leave to appeal from the order of affirmance was granted and the following deceased administrator and next-of-kin, but question certified for decision: "Does an action to recover damages for negligently causing the death of his intestate survive the death of the administrator, who was also the father and sole next-of-kin of the deceased, where such intestate left her surviving other persons, who, had such father not survived said intestate, would have been next-of-kin of

such deceased?"

The opinion of the Court of Appeals, after a careful review of the cases in point, concludes as follows:

Thus, it appears, both from the statute and the authorities, that the damages awarded for the negligent act are such as result to the property rights of the person or persons for whose benefit the cause of action was created. Nothing is allowed for a personal injury to the personal representatives or to the beneficiaries, but the allowance is simply for injuries to the estate of the latter caused by the wrongful act. The statute, as it has been held, is not simply remedial, but creates a new cause of action in favor of the personal representatives of the deceased, which is wholly distinct from and not a revivor of the cause of action, which, if he had survived, he would have had for his bodily injury. "Although the action can be maintained only in the cases in which it could have been brought by the deceased if he had survived, the damages, nevertheless, are given upon different principles and for different causes. In an action brought by a person injured, but not fatally, by the negligence of another, he recovers for his pecuniary loss, and in addition for his pain and suffering of mind and body, while under the statute it is not the recompense which would have belonged to him which is awarded to his personal representative, but the damages are to be estimated with reference to the pecuniary injuries resulting from such death to the wife and next-of

This decision sets at rest a question which had been presented to the Court of Appeals in Mundt v. Glokner (160 N. Y. 571), but was not. then decided. The record of the case shows that the application to continue the action was made not by the administratrix of the

by an administratrix, de bonis non, of the person who was alleged to have been negligently killed. This, as the New York Law Journal points out, is technically in accord with section 1902 of the Code, which authorizes the executor or administrator of a decedent, whose death was wrongfully caused, to maintain action. Upon the theory of the opinion, the recovery is for the benefit of the estate of the original next-of-kin, to whom a property right inured by the wrongful act.

Botes of Cases

Insurance Damage by Smoke and Soot Due to Defective Stove Pipe.- In Cannon v. Phoenix Insurance Company (Ga., 35 S. E. 775), it is held that, under the usual clause insuring "against all direct loss or damage by fire," the insurer is not liable for damage to a stock of goods caused by smoke and soot due to a defective stove pipe, where there was no actual ignition other than the intentional combustion of the fuel in the stove.

The decision seems sound, and rests upon the distinction between a "friendly" and a "hostile " fire. Here, as the court said, the fire was purposely built and was but performing its intended function. It at no time went beyond this function. Quoting from Gibbons v. Savings Inst. (30 Ill. App. 263), the court says: "If the fire were a moral agent, no blame could be imputed to it. It was doing its duty and no more. The damage was caused by another agent, who undertaking to transmit the beneficial influence of the fire, broke down in the task."

The leading case on this subject is Austin v. Drewe (6 Taunt. 436), where it was held that the insurer was not responsible for the loss of sugar, overheated in the process of refining by the negligent closing of a register. This was clearly the case of a friendly fire and is likened by Judge May (2 May on Ins. 402) to the case of bread overbaked, or coffee burned in the roasting.

labor for a term of five years. The return admits A treaty of annexation was negotiated by the that he is now held in Oahu prison, Territory of representatives of the United States and the RepubHawaii, under the commitment issued in pursu- lic of Hawaii in February, 1893, and withdrawn ance of the conviction and sentence, as alleged in from the consideration of the United States senate the petition. by the president in March following, and another treaty was made on June 17, 1897. This last treaty was pending before the United States senate for ratification when the joint resolution was passed. This resolution reads in part as follows:

The indictment against the petitioner was returned under section 616 of the Penal Code of 1897 of the Republic of Hawaii, which reads: "The necessary bills of indictment shall be duly prepared by a legal prosecuting officer, and be duly presented to the presiding judge of the court before the arraignment of the accused, and such judge shall, after examination, certify upon each bill of indictment whether he finds the same a true bill."

The provision of the code relative to the verdict of juries reads as follows:

66

Sec. 1345. No jury for the trial of any case, civil or criminal, shall be less than twelve in number; but when nine of the jury shall agree upon a verdict, they may render the same, and such verdict shall be as valid and binding upon the parties as if rendered by all twelve."

It is contended by the petitioner that his indictment, conviction and sentence were void, and his detention is now illegal, in this, that he was placed upon trial for an infamous crime without an indictment by a grand jury, and was convicted by the minority verdict of the jury, and thus denied the rights and privileges guaranteed him under the fifth and sixth amendments to the Constitution of the United States.

It is contended in behalf of the territory that the petitioner was legally convicted under the laws of the Republic of Hawaii; that no act of congress had at that time extended the Constitution and laws of the United States to the Hawaiian Islands, and that these amendments nor any other parts of the Constitution of the United States were not in force in the Hawaiian Islands at the time of his conviction and sentence, to wit, August 16, 1898.

*

Resolved, By the senate and house of representatives of the United States of America, in congress assembled, that said cession is accepted, ratified and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are, hereby annexed as a part of the territory of the United States, and are subject to the sovereign dominion thereof, and that all the singular, the property and rights hereinbefore mentioned are vested in the United States of America. The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded between the United States and such foreign nation. The municipal legislation of the Hawaiian Islands, not enacted for the fulfillment of the treaties so extinguished, and not inconsistent with the joint resolution, nor contrary to the Constitution of the United States, nor to any existing treaty of the United States, shall remain in force until the congress of the United States shall otherwise determine."

On the 12th day of August, A. D. 1898, four days prior to the conviction of the petitioner, the ceremonies attending the formal transfer of the public property, etc., occurred; the Hawaiian flag was lowered from the capitol building and the American flag raised into place. The public property was delivered to and accepted by the representative of the United States.

Prior to the signing of the resolution of annexaIn passing upon the question raised in this case, tion the Republic of Hawaii had been an independwe cannot overlook the story of the long and ent sovereignty. She had long occupied a picturlaborious struggle for the annexation of the esque position among the governments of the Hawaiian Islands to the United States, extending world. Although annexation was brought about over a period of nearly half a century and ending by the mutual efforts and in compliance with the with the passage of the joint resolution by the desire of both governments, when annexation United States congress and its approval by Presi- became an accomplished fact the Republic of dent McKinley, on the 7th day of July, A. D. 1898; Hawaii passed into history; there was no "union" nor forget the fact that one of the strong argu- or "marriage," as has been claimed; there was ments for annexation was that American civiliza- absorption — annihilation. In the language of the tion had long been established in these islands, and resolution, "the Hawaiian Islands and their its people and institutions would easily and natur- dependencies" were "annexed as a part of the terally adapt themselves to and be assimilated with ritory of the United States," and at once became American law and government. "subject to the sovereign dominion thereof."

The Constitution of the Republic of Hawaii, adopted in 1894, contained this provision: "The president, with the approval of the cabinet, is hereby expressly authorized and empowered to make a treaty of political or commercial union between the Republic of Hawaii and the United States of America, subject to the ratification of the senate."

The resolution further provided, "until congress shall provide for the government of such islands, all the civil, judicial and military powers exercised by the officers of the existing government in said islands shall be vested in such person or persons and shall be exercised in such manner as the president of the United States shall direct; and the

president shall have power to remove said officers holding of conquered territory as a mere military and fill the vacancies so occasioned."

Chief Justice Taney says on the subject of newly acquired territory: "There is certainly no power given by the Constitution to the federal government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure."

"The power to expand the territory of the United States by the admission of new States is plainly given, and, in the construction of this power by all the departments of the government, it has been held to authorize the acquisition of territory not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to be admitted. It is acquired to become a State, anu not to be held as a colony, and governed by congress with absolute authority.

occupation, until its fate shall be determined at the treaty of peace. If it be ceded by treaty, the acquisition is confirmed and the ceded territory becomes a part of the nation to which it is annexed either on terms stipulated in the treaty of cessation, or on such as its new master shall impose" (Am. Ins. Co. et al. v. C. Canter, 1 Pet. 542).

There was no conquest" by force in the annexation of the Hawaiian Islands nor "holding as conquered territory: " they came to the United States in the same way that Florida did, to wit, by voluntary cession, and the rule for determining their status is the same. Its territory became a part of the United States on the terms set forth in the resolution and on such terms "as its new master might impose;" not one or two years after the resolution was in force and effect, but at once,

It seems clear from the authorities cited that

A power, therefore, in the general government immediately. The resolution of annexation further to obtain and hold colonies and dependent terri- provided that "the municipal legislation of the * * * not inconsistent with tories, over which they might legislate without Hawaiian Islands restriction, would be inconsistent with its own the joint resolution nor contrary to the Constituexistence in its present form. * * * It cannot tion of the United States shall remain in force until create for itself a new character, separate from the the congress of the United States shall otherwise citizens of the United States, and the duties it owes determine." them under the Constitution. The territory being a part of the United States, the government and the the Hawaiian Islands were a part of the territory of citizens both enter it under the Constitution, with the United States on the 16th day of August, 1898, their respective rights defined and marked out; as much so as was the Indian Territory or the Terand the federal government can exercise no power ritory of New Mexico. Was the Constitution of over his person or property beyond what that the United States in force here, then, or the fifth instrument confers, nor lawfully deny any right and six amendments, as claimed for the petiwhich it has reserved. * * * It could confer no tioner? These amendments are as follows: power on any local government established by its authority, to violate the provisions of the Constitution" (Scott V. Sandford, 19 How. U. S. 450-1-2-3).

In the license cases (5 How.), Mr. Justice Daniel said: 'Laws of the United States,' in order to be binding, must be within the legislative powers vested by the Constitution. Treaties to be valid must be made within the scope of the same powers, for there can be no authority of the United States' save what is derived mediately or immediately and regularly and legitimately from the Constitution."

"No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself, nor be deprived of life, liberty or prosperity, without due process of law, nor shall private property be taken for public use without just compensation" (5th Amend. U. S. Const.).

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed (which district Chief Justice Marshall, speaking for the Supreme shall have been previously ascertained by law) and Court of the United States, relative to the territory to be informed of the nature and cause of the accuof Florida acquired by the United States by sation; to be confronted with the witnesses against treaty from the King of Spain, said on the subject him; to have compulsory process for obtaining witof the status of territory ceded by treaty: "The nesses in his favor, and to have the assistance of Constitution confers absolutely on the government counsel for his defense" (6th Amend. U. S. Const.). of the Union the powers of making war and of The government of the United States is one of making treaties. Consequently, that government delegated powers. The American nation, or in the possesses the power of acquiring territory, either language of the Constitution, "the people of the by conquest or treaty. The usage of the world is, United States," is absolutely sovereign. This sovif a nation be not entirely subdued, to consider the|ereign has prescribed certain fundamental rules,

contained in the Constitution of the United States, under the authority of congress. The territories which its servants, the president and each member are but political sub-divisions of the outlying of congress, must take a solemn oath to support and dominion of the United States. Congress is defend as a condition precedent to taking office. supreme, and, for the purpose of this department of These servants are nowhere authorized to exercise its governmental authority, has all of the powers of absolute sovereignty, but their powers are limited the people of the United States, except such as by the very terms of the Constitution under which they hold their respective offices and discharge their official duties.

have been expressly or by implication reserved in the probabilities of the Constitution. It may do for the territories what the people under the Con

Mr. Justice McLean, speaking for the Supreme stitution may do for the States." Court of the United States, said:

This opinion has stood as the decision of the comes under the sovereignty of the United States highest court in the land for eighty years.