just before he was run over, is not chargeable with his own negligence, but recovery for his death is precluded by reason of his trespass. Pennsylvania R. R. Co. v. McMullen, S. Ct. Pa., Feb. 3,

1890.

Contributory negligence is not chargeable to a passenger in the caboose of a freight train, who gets up and starts to go out at the sound of a whistle indicating approach to a station and is thrown down by a sudden jerking of the train and injured, unless it is shown that the jerking was so usual that he should have anticipated it. Lusby v. Atchison, T. & S. F. Ry. Co., U. S. C. Ct., D.

Colo., Jan. 21, 1890.

Stockholder of a railroad company is not liable for the negligence of the officers, agents or employes of the company in the operation of its road, and it makes no difference that the stockholder is another railroad corporation which lawfully owns a majority of the stock of such company. Atchison, T. & S. F. R. R. Co. v. Cochran, S. Ct. Kan., Feb. 8, 1890.

Stumbling over baggage in the aisle of a passenger car, which could have been plainly seen, will not entitle a passenger to damages for the injuries thereby sustained. Stimson v. Milwaukee, L. S.& W. Ry. Co., S. Ct. Wis., Jan. 7, 1890.

Train despatcher of a railroad company, who has absolute control over the runing of its trains and is charged with the duty of directing their movements, is not a fellow-servant of the employes in charge of the trains, who are bound to obey his directions. Hunn v. Michigan Central R. R. Co., S. Ct. Mich., Dec. 28, 1889.

Yard switchman is not a fellow-servant with a locomotive engineer. Louisville & N. R. R. Co. v. Sheets, Ct. App. Ky., March 13, 1890.

SLANDER.

Words spoken of a public officer, in order to be actionable without averment of special damage, must impute to him some incapacity or lack of due qualification to fill his position, or some positive past misconduct which will injuriously affect him in it, or the holding of principles hostile to the maintenance of the government; when the words spoken simply express the speaker's opinion of the public officer referred to, but do not charge any positive misconduct, special damages must be averred. Sillars v. Collier, S. Jud. Ct. Mass., Feb. 25, 1890.

SUNDAY LAWS.

Indictment for running trains on Sunday cannot be sustained against a railroad company in West Virginia; there is no law to warrant such an indictment. State v. Norfolk & W. R. R. Co., S. Ct. App. W. Va., Jan. 29, 1890.

Will made on Sunday is valid, although the testator was in good health at the time. Rapp v. Reehling, S. Ct. Ind., Feb. 26, 1890.

TRADE-MARKS.

"Lightning Hay-Knives," when used and advertised for years as

the description of knives made by certain manufacturers, who have registered the word "lightning" as a trade-mark, will be protected by injunction against the use of the name "Lightning Pattern Hay-Knives," as the word "lightning" is not merely descriptive of the quality or characteristic of the knives. Hiram Holt Co. v. Wadsworth, U. S. C. Ct., N. D. N. Y., Dec. 30, 1889.

Old machines, of another make than his own, may be bought by a manufacturer, repaired, repainted and sold again, without removing the trade-mark put upon them by the original manufacturer. Singer Mfg. Co. v. Bent, U. S. C. Ct., N. D. Ill., Dec. 23, 1889.

"Singer," the name which has come to publicly identify the special kinds of sewing-machine made by the patentee, Singer, and his successors, cannot, after the expiration of their patent, be protected to the latter as a trade-mark so that they may have the exclusive right to use the name as applied to sewing-machines. Singer Mfg. Co. v. June Mfg. Co., U. S. C. Ct., N. D. Ill., Dec. 23, 1889. Tycoon," having been in common and general use, as descriptive of a certain class of teas for many years, cannot now be appropriated by a particular dealer as a trade-mark. Corbin v. Gould, S. Ct. U. S., Feb. 3, 1890.

་་

WATER-RIGHTS.

Pollution by oil of a spring of water upon an adjoining property to that on which the oil is stored in large quantities, such pollution being caused by the oil leaking from the casks containing it, saturating the ground and penetrating to the hidden veins of water feeding the spring, will entitle the owner of the spring to recover damages from the person thus storing the oil. Kinnaird v. Standard Oil Co., Ct. App. Ky., Jan. 25, 1890,*

WILLS.

Contract to make a will, bequeathing all the property of a decedent to an adopted daughter, is not shown by evidence that such decedent, before adopting such daughter and procuring an act of the legislature changing her name and making her capable of inheriting from him, agreed to make her his heir, entered into some written contract with her father, which could not be produced at trial, and afterwards declared that she would have all his property. Davis v. Hendricks, S. Ct. Mo., Jan. 27, 1890.

Devise of all my estate, both real and personal, that I shall inherit as my portion after my father's death," made by a testatrix whose father was living, and whose only estate in land was that inherited by her from her mother, subject to her father's estate by the curtesy, passes her estate in such land. Graham v. Grugan, S. Ct. Pa., Feb. 3, 1890. James C. Sellers.

THE

AMERICAN LAW REGISTER.

JUNE, 1890.

THE RIGHT OF THE FEDERAL COURTS TO PUNISH OFFENDERS AGAINST THE BALLOT BOX.

1.

The propositions advanced in this article may be broadly laid down as follows :—

The Federal Courts have jurisdiction to punish crimes against the ballot box, at Congressional elections: Ex parte Siebold (1879), 100 U. S. 371; Ex parte Yarbrough (1883), 110 Id. 653.

This rule obtains, even though the offenders had no intention of falsifying the returns, as to the Congressional vote, and did not interfere with them. The reason of this doctrine is, that the entire vote, both for State officers and for Congressmen, must be considered as an unit; hence, an interference with the returns of the State vote, violates the laws of Congress, and the offenders are criminally liable under the statutes of the United States: In re Coy (1888), 127 U. S. 731; In re Coy (1887), U. S. Circ. Ct., Dist. Indiana, 31 Fed. Repr. 794.

Over other elections, the Federal Courts have no jurisdiction to punish violators of the election laws, except when there is a discrimination on account of race, color, or previous condition of servitude, within the prohibitions of the Fifteenth Amendment: U. S. v. Reese, et al. (1875), 92 U. S. 214.

[Since the decision of the Supreme Court of the United States, in Fitzgerald v. Green (March 24, 1890), there is doubt VOL. XXXVIII.—22.

337

as to the elections where State officers and Presidential electors, or Presidential electors alone, but no Representatives in Congress, are balloted for: infra, page 344.

II.

The first Article of the Constitution of the United States provides

SECTION 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and Electors in each State shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such vacancies.

[It would be neither necessary nor profitable to quote the opinions of different writers upon the qualifications of the voters or electors for Representatives, as this is a legal and not a political essay and is intended rather to be an exposition of the various decisions of the Federal courts. Still, a reference to a well-known work will be proper, in view of the authority conceded to it by Chief Justice MARSHALL, especially in Cohens v. Virginia (1821), 6 Wheat. (19 U. S) 264, 419.

The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent upon the Convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper, for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason, that it would have rendered too dependent on the State governments, that branch of the Federal government which ought to be dependent upon the people alone. To have reduced the different qualifications in the different States, to one uniform rule, would probably have been as dissatisfactory to some of the States, as it would have been difficult to the Convention. The provision made by the convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State; because it is conformable to the standard already established, or which may be established by the State itself. It will be safe to the United States; because, being fixed by the State Constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their Constitutions, in such a manner as to abridge the rights secured to them by the Federal Constitution: The Federalist, No. 52.

While this Second section of the First Article of the Constitution adopts the qualifications prescribed by the States for a voter at an election for the popular branch of the State legislature, yet Congress has a supervisory power over the subject, under the provisions of the Fourth section of the same Article of the Constitution (infra), in order to secure legal and fair elections, a free and safe exercise of the right to vote thereat, and to prevent fraud and violence thereabout. Congress can make altogether new regulations or add to or alter those already made by the State; impose new duties on the State officers of election and provide for the appointment of other officers; and compel the enforcement of State and Federal laws regulating elections. A regulation made by Congress is of superior authority, and any State law repugnant to it is void as to Congressional elections. Congress has plenary and paramount jurisdiction over these elections: In re Coy (1888), 127 U. S. 731.

The provision in relation to vacancies in the Representation from any State is enforced by the Revised Statutes

SEC. 26. The time for holding elections in any State, District or Territory for a Representative or Delegate to fill a vacaney, whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected, may be prescribed by the laws of the several States and Territories respectively.

[Under these provisions of the Constitution and the Revised Statutes, the Supreme Court of Rhode Island were of opinion that a vacancy caused by the House unseating a member was one to be filled at an election ordered by the Governor; but if the count of the votes established no election, then under a law of Rhode Island the legislature might order a new election, and the Governor, even if he had power under the Constitution of the United States, might wait for the action of the General Assembly so long as it was in session: In re Representative Vacancy (1887), 15 R. I. 621; In re Congressional Elections (1887), Id. 624, 627.

[The First article of the Constitution also provides—

SECTION 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years.

*