Notes of American Decisions.

CORPORATION-EXECUTION OF INSTRUMENT-CORPORATE SEAL.-An instrument averring that the parties had set their hands and seals thereto, with an attesting clause alleging that a corporation party thereto had signed, sealed and delivered it in the presence of two witnesses, who signed their names thereto, sufficiently avers, as against a demurrer, that the seal attached in behalf of the corporation was its common or corporate seal. (Jacksonville, M. P. Ry. & Nav. Co. v. Hooper [U. S. S. C.], 16 S. C. Rep. 379.)

EVIDENCE PAROL EVIDENCE OUS WRITING.

CONTEMPORANE

Where parties make an agreement partly in writing and partly by parol, and do not profess to reduce the entire contract to writing, but

only a certain part thereof, it is competent to show by parol evidence the entire contract; but the oral agreement must be consistent with and must not contradict the stipulations of the written contract. (Harman v. Harman, [U. S. C. C. of App.] 70 Fed. Rep. 894.)

- JURISDIC.

FEDERAL COURTS- CIRCUIT COURT TIONAL AMOUNT.—A Circuit Court may take cognizance of a controversy in which the United States are plaintiffs or petitioners, or of a controversy between citizens of the same State claiming lands under grants of different States, without regard to the amount involved. (United States v. Sayward [U. S. S. C.], 16 S. C. Rep. 371.)

FEDERAL COURTS REVIEW ON APPEAL CIRCUIT COURT. The fact that, in an equity proceeding in the Circuit Court, a demurrer to the petition on the ground that a proper and final decree had been made, adjudicating all the issues in the cause, and that the court had no power or jurisdiction to grant the petitioners relief, was sustained, does not so clearly show that the jurisdiction of the Circuit Court was in issue as to dispense with the necessity of a certificate to that effect to the Supreme Court, as required by act March 3, 1891, section 5. (Van Wagenen v. Sewall, [U. S. S. C.], 16 S. C. Rep.

370.)

FEDERAL OFFENSE POWERS OF UNITED STATES COMMISSIONER.— United States commissioners have no judicial power to hear and determine any matter. Their duties are those of examining magistrates, and upon the examination of a person accused of crime they have only to determine whether there is probable cause to believe that an offense was committed by the defendant, and have no authority to pass upon the credibility of testimony, or to find any fact. (United States v. Hughes, U. S. D. C. [S. Car.], 70 Fed. Rep. 972.)

Notes of English Cases.

ADMINISTRATION.- By his will, dated in August, 1890, a testator, who died in December, 1890, devised and bequeathed his residuary real and personal estate to trustees upon trust for sale and conversion, and to pay the income to his wife during her widowhood, and he directed the corpus to be held upon trust for his nephews and nieces. The will contained a power to postpone the sale and conversion, and a declaration that all income produced from the estate in its actual condition for the time being, whether consisting of property or investments of an authorized or unauthorized description, and whether of a wasting or permanent character, should be applicable as income under the will, no part thereof being in any event liable to

be retained as capital. Then followed this proviso: "But no property not actually producing income which shall form part of my estate shall be treated as producing income, or as entitling any part to the receipt of income."

A debt was due to the testator at the time of his death, of which the trustees could not obtain payment, and they therefore took from the debtor as security for it, and interest, a third mortgage upon certain policies of assurance on his life. The debtor died in the lifetime of the tenant for life without having ever paid any interest on the mortgage. After payment of the prior charges the trustees received out of the policy moneys a sum which was less than the amount of the principal due to the testator's estate.

Held, that the sum received by the trustees represented arrears of interest as well as principal, and that, according to the well settled rule of the court, it must be apportioned between the tenant for life and the remaindermen, the proviso in the will relating to property not actually producing income not being applicable. (Ct. of App., Re Hubbuck; Hart v. Stone, 73 L. T. 739.)

LANDLORD AND TENANT.-In February, 1895, the

The

plaintiff took from the defendant for a term of three years, determinable by her after the first year by a month's notice, five rooms, being Flat 21, in a building known as Oxford Mansions, Marylebone. agreement, which was on a printed form, used in fact for all the flats which were let, provided that the tenant should not carry on any business in the rooms demised, nor use them for any purpose other than dwelling-rooms; and should observe a number of regulations thereto annexed, which provided for the use of the lift and other matters, showing that the building was intended to be used for residential flats. The defendant had begun extensive structural alterations for the purpose of turning the greater

The Albany Law Journal.

ALBANY, MARCH 21, 1896.

Current Topics.

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1846, on the other hand, expressly conferred upon the superintendent of public works the power to employ, suspend, and remove persons engaged in the care and management of the canals. This constitutional grant of power was of higher authority than any mere legislative enactment, such as the Civil Service law, and the judges of the Court of Appeals unanimously agreed that the superintendent of public works could not be restricted in his selection of sub

appar

Court of Appeals of this State construing the provisions of the revised Constitution in respect to appointments to the civil service is very generally misunderstood. This is ent from newspaper comments, and also from discussions in societies and clubs professing a particular interest in civil service reform. Much that has been said on the subject would indicate that the Court of Appeals had promulgated some novel and startling doctrine of law which was to revolutionize the State so far as appointments are concerned; whereas, in fact, it has simply decided that the existing statute relating to examination for appointments to office has been extended by the Constitution so as to apply to appointments by the State superintendent of public works.

This law has been on the statute books for years. It was enacted in 1883, and amended materially in 1894, and is commonly known as the Civil Service law. It prescribes examinations for appointments to various classes in the civil service, and prohibits the State comptroller from paying any officer, clerk or other person in either of those classes, unless upon a certificate showing that he has been lawfully appointed under the rules and regulations of the civil service commissioners. In form, as it existed before the new Constitution, the statute was broad enough to include places in the State department of public works.

that time.

But the condition of things is now very different. The Constitution itself (as revised in 1894), being the highest law, now provides a rule in respect to appointments similar to that which then existed only by virtue of a statute. Hence the rule has become broad enough to reach the superintendent of public works and control. him in the exercise of the appointing power. Hereafter, in making appointments, he must obey the Civil Service law of 1883, as amended and in force when the appointments are made.

Such is the substance of the decision of the Court of Appeals in the case of the People against Roberts, which has lately attracted so much attention. It simply upholds the preexisting statute law governing appointments in the civil service of the State. The court does not declare that the new Constitution has altered the terms of that law in any respect, but it holds that the law has been extended in its range so as to govern the action of a public officer who was formerly free to choose his subordinates without reference to its provisions. "It it evident from the language of the new provision of the Constitution," says Judge Denis O'Brien, who writes the prevailing opinion, "and from the debates in the Convention which followed its introduction into that body, that it was framed and adopted with reference to existing laws, which were intended to give it immediate practical operation. So that," he continues, "in adopting the new Constitution, the people, in their original capacity, decreed that thereafter all the departments of the government should be brought within the operation of existing laws on the subject of ap

VOL. 53- No. 12.

This decision, as we understand it, is equiva

1,500,000.

(4) City or village having a population of less than 50,000 and more than 10,000.

(5) Cities or villages having less than 10,000 and more than 5,000.

(6) Towns of less than 5,000 and more than

1,200.

(7) Any other place.

less than 10,000 and more than 5,000 inhabitants. These three cities are therefore omitted from the provisions of section 11, subdivision 2. Therefore, under the Constitution it is plain that the Raines bill is a "special city law" because it does relate "to less than all the cities of a class."

division two it must be noticed that as there is no provision for cities of less than 10,000 or more than 5,000, the law applies only to towns having such population.

The bill is a "special city law" in cities of the first-class because each of the said cities is taxed a different amount for each of the different kinds of licenses, even though under the Constitution they are all known as cities of the first class. This brings them within the provision of the Constitution which defines "special city laws" as follows: "Special city laws are those which relate to a single city or to less than all the cities of a class." Obviously each provision of the Raines' bill fixing a different tax in each of the cities of the same class makes the whole bill a "special city law" in so much as said provision of the law does not relate to all cities of one or more classes.

Again, it will be noticed that under the Raines' bill the city of Buffalo, which is a city of the first class, is taxed the same amount as cities of the second class which have been enumerated, and therefore the bill is a "special city law" so far as it does not relate to all the cities of one or more classes, but only relates so far as the amount of taxes is coacerned to one city of the first class, namely Buffalo, and to all the cities of the second class which have been enumerated.

Any

mayors and common councils of all the cities under the provisions of the Constitution, otherwise if signed by the Governor it would be unconstitutional. Section 44 of the Raines bill also provides that the provisions of any special or local law, grant or charter in conflict with the act are repealed and annulled. law repealing a special city law, naturally partakes of the same nature and has within it the same special characteristics. Also such a law repealing or annulling a city charter or any part thereof, and several such cases have come to our attention, must, as a matter of course, have the characteristics of a "special city law."

If the provisions of the Constitution are to have any effect given them and if we are to consider the principle of home rule as it appears in Art XII, section 2, this bill should be certainly. submitted to the mayors and common councils of the different cities for their municipal action as given and defined in our Constitution.

A somewhat amusing situation exists as to the status of narcotic instruction law repeal in the Legislature. Several propositions bearing upon the subject are pending. One of them proposes the repeal outright of last year's ridiculous statute. Another, a modification of the 1895 law, correcting some of its harsher and worse features, was introduced and backed by the educators and the department of public instruction.