think that is inadmissible. There should be no hurtful presumption from the failure of an accused personally to testify, but that does not necessarily exclude a prejudice resulting from an entire absence of affirmative evidence in defense, nor inferences from a failure to produce evidence peculiarly within his knowledge or control, not requiring personal disclosures or his presence upon the witness stand."

The caution with which the judge put this— "does not necessarily exclude a prejudice," etc.-indicates how easily a prosecuting officer may fall into error in argument before a jury in such a case as was before the jury. It is readily conceivable, however, that the requested instruction was subject to the criticism made of it.

ΤΟ

PRACTICE OF LAW-ELIGIBILITY OFFICE AS BASED UPON CONTINUOUSNESS IN PRACTICE.-Following our editorial reference in 82 Cent. L. J. 61, anent the practice of law by corporations through retained attorneys, a case decided by Supreme Court of Iowa approaches the question from a somewhat different angle, to-wit: Endeavor by defendant to show he was a practicing attorney. Barr v. Cardell, 155 N. W. 312.

This defendant was an active practitioner for twenty-four years and then he quit trial work and sold his library with the purpose of moving to another state, but he did not move. "But he was consulted by clients at his office, gave advice, prepared contracts, wills and other instruments, and attended to some probate matters. He appears not to have advertised as attorney nor to have sought for legal business as attorneys do 'without soliciting,' but did advertise that he had money to loan." The court then naively says: "He was 'practicing as an attorney at law' quite as definitely as though he had spent his time in the trial of cases in court; in fact, many of the most learned and successful lawyers are never seen at the trial table. Theirs is commonly known as an office practice." He showed, therefore, that he was thoroughly eligible to the office of county attorney to which he had been elected.

There is something anomalous about this case. One would not seem to be a practicing attorney who has money of his own to lend or, if he had, that he would need to advertise the fact. And if he was so fortunate in this variance from a regular practicing attorney, what in the world, did he wish with the office of county attorney?

COURTS DECISIONS OF A LOCAL NATURE AND THOSE UNDER PRINCIPLES OF GENERAL LAW.-The dissenting opinion in Columbia Digger Co. v. Sparks, 227 Fed. 789, decided by Ninth Circuit Court of Appeals, where there was an action on a statutory bond says: "I think I have shown that the decision of the majority is not in harmony with the decisions of the Supreme Court of the State; but even if it were, the question here involved is one of general law which must be decided in the same way by this court in every case, whether the question arises in an action on a bond given under the federal statute or under the statute of one of the states."

The majority speaks with chariness in saying: "A federal court ought not to upset the rule thus established by the Supreme Court of a State for the guidance of its own citizens, unless that rule is against the very decided weight of authority," and it cites Detroit v. Osborne, 135 U. S. 492, 498, in its saying that: "There should be in all matters of a local nature, but one law within the state; and that law is not what this court might determine, but what the Supreme Court of the State has determined." This excerpt speaks very much more positively than the majority in the instant case spoke, but there is much uncertainty about what may be a question of local law and what a question of general law.

Generally, if not universally, it ought to be said, that if a right of action is predicated upon the terms of a statutory bond, construction of that bond should be deemed a local matter exclusively, and not unless that construction "is against the very decided weight of authority" ought to control. Indeed, there can be no authority at all unless it is local in character.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS ASSOCIATION COMMITTEE ON PROFESSIONAL ETH

ICS.

QUESTION No. 97. Employment-Relation to Client.-Inconsistent interest of attorney in public employment. He should decline to advise when his personal interest conflicts.

In the opinion of the Committee, is it proper professional conduct for a lawyer, who is the attorney for a Board of County Commissioners, to advise it in answer to its inquiry whether in his opinion it has legal power to grant an application for the reduction of an assessment on the personal property of a class

of institutions, where the lawyer is not only the attorney for the Board but is also a large property holder and tax-payer, and a director and stockholder in one of the institutions of the class concerned? In the opinion of the Committee, is it sufficient that in advising the Board he should disclose the fact of his interest, or should he decline to advise on account of such conflicting interests?

ANSWER No. 97.-In the opinion of the Committee, the attorney should decline to advise on account of his conflicting personal interest in the matter involved. His personal interest, and the quasi-judicial character of the municipal body, differentiate this case from those where full disclosure of his professional relation to both parties to a controversy, a lawyer may advise either party as to the law applicable thereto.

QUESTION No. 98. Collection Agency Fees-Partnership between attorney and layman.-Division of fees with layman disapproved.

A. B., an attorney, is in partnership with C. D., a layman, in the collection business, and, under the partnership agreement, divides the earnings of that business with C. D. He does not divide with C. D. the fees which he may receive upon any act or service perform ed under his name and by virtue of his office as an attorney. A part of the partnership earnings, however, is derived from commissions charged upon collections made by attorneys to whom claims are sent by the partnership. Is there any impropriety in the above practice?

ANSWER No. 98.-In the opinion of the Committee, it is improper for a lawyer to engage in partnership with a layman and divide fees. (See Q. & A. 47, Ia, Ib, IIa.)

A fee charged for professional services is none the less a reward for professional services because it is called "a commission." Lawyers in other states, who are dividing with a collection agency here the compensation they receive for professional services, are themselves, in the opinion of the Committee, guilty of unprofessional conduct. That the service excludes the bringing of suit or appearance in court does not change the inherent character of the situation. In performing the service the lawyer's professional skill and responsibility are engaged. There is no objection to a lawyer engaging in the collection of an account (See Q. & A. 47, Ib), but when he does so, he does so as a lawyer and is subject to the ethics of his profession.

IN ACTIONS UNDER FEDERAL EMPLOYERS' LIABILITY ACT, HOW SHOULD STATE COURTS INTERPRET THE COMMON LAW?

The Act in and of itself "constitutes the sole and supreme law as to the subjects upon which it touches."1 It may not be pieced out by "resorting to the local statutes of the state.' The common and statutory laws are here on a parity, both being "rules of conduct proceeding from the supreme power of the state. e."3 Congress having acted, state laws to the extent that they "cover the same field are superseded, for necessarily that which is not supreme must yield to that which is." When the laws of Congress are to be construed "the rules of the common law furnish the true guide. The Act uses the word "negligence" without defining it. Before the Act it was settled that in dealing with questions of negligence the federal courts would not follow the state court decisions, but would exercise an independent judgment as to what constitutes negligence."

The probabilities are that a majority of cases under the Act will be tried in the state courts and so receive the impress of the Federal Supreme Court upon writ of error only. This situation presents the subject-matter of this article as one of some significance. Notwithstanding the suit is one arising out of a federal statute exclusive in its sphere and operation, the power to review being controlled by § 237 of the Judicial Code, the court may not be required to examine further than to ascertain "whether plain error was committed in relation to the principles of general law involved," but it will review and decide those questions which "in their essence involve the existence of the right of the plaintiff to

(1) So. Ry. Co. v. Jacobs, 116 Va. 189.
(2)

Michigan C. R. Co. v. Vreeland, 226 U.
Western U. T. Co. v. Commercial Co., 218

S. 54. (3) U. S. 416.

It

Whether the proof shows "facts necessary to establish liability under the federal law" presents a federal question." When there is presented a federal question it is "to be determined under the general common law, and, as such is withdrawn from the field of state law or legislation."10 may then be safely asserted that what constitutes negligence under the Act presents a federal question. In as much as the Act does not define negligence, etc., we must look to the common law. But to what common law, that of the United States, or of the states? Grant that generally there is no common law of the United States, may there not be, with respect to interstate transactions which by Congressional action have been withdrawn. from the realm of state action and control, a common law of the Federal Union? May the United States be not considered as a separate entity distinct from the states comprising the union for this purpose? In commenting on the statement that there is no common law of the United States dis

tinct from the common law of the several states, the Supreme Court, in Kansas v. Colorado, said:

11

"Properly understood no exception can be taken to declarations of this kind * * *. But it is an entirely different thing to hold that there is no common law in force throughout the United States."

(8) Seaboard, etc., Ry. Co. v. Padgett, 236 U. S. 668.

(9) St. Louis, etc., Ry. Co. v. McWhirter, 229 C. S. 265; Central, etc., Ry. Co. v. White, 238 U.

S. 507.

(10) Missouri, etc., R. Co. v. Harriman, 227 U. S. 657.

(11) 206 U. S., at p. 96.

The subject-matter of the suit arises out of and depends upon a federal statute, so that the questions involved arise under the laws of the United States, which are declared to be the supreme law of the land, and which are therefore superior to the laws of the states that compose the Union. Where a federal question is to be passed upon there should be no doubt of the law to be applied: it is the law of the United States in the sphere of its sovereignty: the law of its own government. That the laws of the United States shall be ultimately and finally construed by the courts. of any other government is a proposition not seriously to be considered.

"If there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws decides the question. Thirteen (48) independent courts of final jurisdiction over the same causes, arising under the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed."

So wrote Hamilton in the "Federalist." If it be an accepted principle that every government ought to possess the means of executing and interpretating its own laws. by its own authority, it will follow that the "Head and Front" of the Federal Union must have the final and determinative word upon an act of that Union's legislative body, dealing with a subject in a sphere where the Federal Union is supreme. Of what avail will it be to withdraw by Congressional action the relation of an interstate carrier to its interstate employe from the realm of state action and control, yet leave to those states the opportunity and power to finally determine what those rights and duties are, save in those respects where the Act speaks its own interpretation. Give me the right to interpret a law by which I am to be bound, and I care not who makes it.

Under the Carmack Amendment the liability of the initial carrier is limited "to some default in its common law liability." In Adams Ex. Co. v. Croniger, 12 the court says: "To hold that the liability therein. declared may be increased or diminished by local regulations or local views of public policy would either make the provisions less than supreme or indicate that Congress has not shown a purpose to take possession of the field. The first would be unthinkable and the latter would be to revert to the uncertainties and diversities of rules which led to the amendment."

Before Congress had shown a "purpose to take possession of the field" and when the right of the federal courts to pass upon questions of negligence depended upon the adventitious circumstance of diversity of citizenship, the national aspect of the subject was recognized. In the Baugh case13 where the question was whether the Supreme Court should adopt the state court's interpretation of the common law as to who were fellow-servants, or should exercise an independent judgment, the court observed: "The question is essentially one of general law. *** It is a question in which the nation as a whole is interested. It enters into the commerce of the country. *** The lines of this very plaintiff in error extend into half a dozen or more states, and its trains are largely employed in interstate commerce. As it passes from state to state, must the rights, obligations and duties subsisting between it and its employes change at every state line?" It may be admitted that prior to the Act, there was no federal law of negligence, and that the federal courts applied the law of negligence as a part of the law of the state where the injury occurred. This statute for the first time created a substantive federal right in the employe, distinct from the right theretofore given him by the law of the state. The system of

(12) 226 U. S. 491.

(13) 149 U. S. 368.

federal liability created by the Act is exclusive of the laws of the states upon the subject, which means that it is exclusive of the grounds of liability available to the employe under the state law, whether statutory or common, and of the grounds of defense afforded by the law of the state to the carrier. If it cannot be "pieced out" by reference to state statutes, why should it be "pieced out" by the adoption of the common law of the states? There is for

this purpose no distinction between the two. If "a substantive right or defense arising under the federal law cannot be lessened or destroyed by a rule of (state) practice"15 why shall the common law of the state have that effect when a recovery cannot be "had under the common or statute law of the state?"'16 Is it not then necessary as well as proper that there be created a federal law of negligence? It matters little whether it be created through the establishment of a law of negligence distinct and separate from the common law of the states, or whether it be created by yielding to the Federal Supreme Court the authority to exercise its own and independent judgment of what the law of negligence is in so far as it arises out of a matter of national import. In North Carolina as to railroads, assumption of risk as a part of the common law is abolished by statute. To what law did the court look in Horton's case,17 when it held that such defense was open to the carrier?

In Missouri, when the injury is caused by the negligence of the defendant, such defense is not open to the carrier. This rule has been applied to a case under the Act. This decision nullifies the decision in the Horton case. Yet if the common