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sustained the validity of similar prohibi-, tions. Schmidinger v. Chicago, 226 U. S. 578, 57 L. ed. 364, 33 Sup. Ct. Rep. 182, Ann. Cas. 1914B, 284; Armour & Co. v. North Dakota, 240 U. S. 510, 60 L. ed. 771, 36 Sup. Ct. Rep. 440, Ann. Cas. 1916D, 548. It is specially urged that the statutes are unconstitutional because they do not merely define the term "ice cream;" but arbitrarily prohibit the sale of a large variety of wholesome compounds theretofore included under the name "ice cream." The acts appear to us merely to prohibit the sale of such compounds as ice cream. Such is the construction given to the act by the supreme court of Iowa. State v. Hutchinson Ice Cream

bile Law (N. J. Laws 1908, p. 613), in addition to providing for the registration of automobiles and the licensing of drivers, requires a nonresident owner to appoint the secretary of state as his agent upon whom legal proceeding caused by the operation of process may be served "in any action or his registered motor vehicle within this state against such owner."

[Ed. Note.-For other cases, see Constitutional

Law, Cent. Dig. § 683: Dec. Dig. 235.
For other definitions, see Words and Phrases,
First and Second Series, Equal Protection of
the Law.]
CONSTITUTIONAL LAW 230(1)--“EQUAL
PROTECTION OF THE LAWS"-STATE AUTO-
MOBILE LAW-DISCRIMINATION AGAINST
NONRESIDENT.

2. The absence from the New Jersey Co. 168 Iowa, 1, 15, L.R.A. 1917B. 198. Automobile Law (N. J. Laws 1908, p. 613), 147 N. W. 195, which is, of course, binding tomobiles and the licensing of drivers, of which provides for the registration of auon us. We cannot assume, in the absence of any reciprocal provision by which nonresia definite and authoritative ruling, that the dents whose cars are duly registered in supreme court of Pennsylvania would con- their home state are given for a limited strue the law of that state otherwise. The period free use of the highways in return conviction here under review was for selling for similar privileges granted to residents the "compound" as ice cream, so that we are of New Jersey, does not involve an unconnot called upon to determine whether the stitutional discrimination against nonresistate may, in the exercise of its police not so large as to be unreasonable, and dents, where the annual fees prescribed are power, prohibit the sale even of a whole-where any resident owner would be subjectsome product, if the public welfare appeared to the full annual charge for the use of to require such action-and if, as here, in- the highways for any period, however brief. terstate commerce is not involved. See [Ed. Note.-For other cases, see Constitutional Powell v. Pennsylvania, 127 U. S. 678, 685, 32 L. ed. 253, 256, 8 Sup. Ct. Rep. 992, 1257; Schollenberger v. Pennsylvania, 171 U. S. 1, 15, 43 L. ed. 49, 54, 18 Sup. Ct. Rep. 757.

Law, Cent. Dig. § 687: Dec. Dig. 230(1).]
COMMERCE 10-STATE AUTOMOBILE LAW
-NONRESIDENTS-CONGRESSIONAL INAC-

TION.

3. The requirements of the New Jersey Automobile Law (N. J. Laws 1908, p. 613), In view of the conclusion stated above, it for the registration of automobiles and the is unnecessary to consider whether the stat-licensing of drivers, are not invalid regulautes are or are not sustainable as health measures; and upon this we express no opinion.

The judgment in each case is affirmed.

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CONSTITUTIONAL LAW 235 "EQUAL
PROTECTION OF THE LAWS"-PRIVILEGES
AND IMMUNITIES-STATE REGULATION OF
MOTOR VEHICLES DISCRIMINATION
AGAINST NONRESIDENTS.

-

1. Nonresident automobile owners are not denied rights under U. S. Const. 14th Amend., because the New Jersey Automo

tions of interstate commerce,-until Connonresident owner who is driving his car gress acts in the matter,-as applied to a through the state on his way from New York to Pennsylvania.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. 8; Dec. Dig. 10.] CONSTITUTIONAL LAW 230(1)—“EQUAL PROTECTION OF THE LAWS" AUTOMOBILE LAW-LICENSE FEES.

STATE

4. The fact that the fees collected under the New Jersey Automobile Law (N. J. Laws 1908, p. 613) exceed the amount required to defray the expense of maintaining the regulation and inspection de

be applied to the maintenance of improved nonresidents, under U. S. Const. 14th highways, does not render invalid as to Amend., the requirements of that law for the registration of automobiles and the licensing of drivers.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 687; Dec. Dig. 230(1).] [No. 51.]

Argued October 31, 1916. Decided December 4, 1916.

I

IN ERROR to the Court of Errors and Appeals of the State of New Jersey to review a judgment which affirmed a judg ment of the Supreme Court of that state, affirming a conviction in the Recorder's

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Court of the City of Paterson of violating
the state automobile laws. Affirmed.
See same case below, 81 N. J. L. 594, 80
Atl. 453, Ann. Cas. 1912D, 237.

The facts are stated in the opinion.
Messrs. John W. Griggs and Charles
Thaddeus Terry for plaintiff in error.

Messrs. Herbert Boggs and John W. Wescott, Attorney General of New Jersey, for defendant in error.

Kane, a resident of New York, was arrested while driving his automobile on the public highways of New Jersey, and tried in the recorder's court. The following facts were stipulated: Kane had been duly licensed as a driver under the laws of both New York and New Jersey. He had reg-, istered his car in New York, but not in New Jersey. He had not filed with the secretary of state of New Jersey the prescribed instrument appointing that official

Mr. Justice Brandeis delivered the opin- his attorney upon whom process might be ion of the court:

The New Jersey Automobile Law of 1908 (P. L. 1908, p. 613) provides in substance that no person, whether a resident or nonresident of the state, shall drive an automobile upon a public highway unless he shall

have been licensed so to do and the automobile shall have been registered under the statute; and also that a nonresident owner

er."

served. When arrested he was on his way from New York to Pennsylvania. The aggregate receipts from license and registration fees for the year exceeded the amount required to defray the expenses of the motor vehicle department, so that a large sum became available for maintenance of the improved roads of the state. Kane contended

that the statute was invalid as to him, a nonresident, because it violated the Constitution and laws of the United States regulating interstate commerce, and also because it violated the 14th Amendment. These contentions were overruled, and he was fined $5. The conviction was duly reviewed both in the supreme court and by the court of errors and appeals. The contentions were repeated in both of those courts; and both courts affirmed the conviction. Kane v. State, 81 N. J. L. 594, L.R.A. 1917B, 553, 80 Atl. 453, Ann. Cas 1912D, 237. The case was brought here by writ of error.

shall appoint the secretary of state his attorney upon whom process may be served "in any action or legal proceeding caused by the operation of his registered motor vehicle within this state against such ownThe statute fixes the driver's license fee for cars of less than thirty horse power at $2, and more than thirty horse power at $4. It fixes the registration fee at $3 for cars of not more than ten horse power; $5 for those from eleven to twenty-nine horse power; and $10 for those of thirty or greater horse power. Both license fees and registration fees, whensoever issued, expire at the close of the calendar year. The moneys received from license and registra- The power of a state to regulate the use tion fees in excess of the amount required of motor vehicles on its highways has been for the maintenance of the motor vehicle recently considered by this court and broaddepartment are to be applied to the main-ly sustained. It extends to nonresidents as tenance of the improved highways. Penal- well as to residents. It includes the right ties are prescribed for using the public highways without complying with the requirements of the act. The material portions of the statute are copied in the margin.1

to exact reasonable compensation for special facilities afforded as well as reasonable provisions to insure safety. And it is properly exercised in imposing a license fee graduated according to the horse power of the en

1 "Part IV.-The Operation of Motor Ve- third class. Automobiles of ten horse power

hicles.

"16. (1) Every resident of this state and every nonresident, whose automobile shall be driven in this state, shall, before using such vehicle on the public highways, register the same, and no motor vehicle shall be driven unless so registered. Every registration shall expire and the certificate thereof become void on the 31st of December of each year; provided, it may be lawful for any automobile duly registered, to operate under said registration certificate for a period not exceeding thirty-one days after the expiration of said registration certificate. . The applicant shall pay to the commissioner of motor vehicles for each registration, a fee of $3 for automobiles of the first class; $5 for the second class, and $10 for the

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or less, shall be of the first class; from
eleven to twenty-nine horse power, inclusive,
of the second class; and of thirty horse
power or more, of the third class.
Each owner having a residence outside of
the state shall file with the secretary of
state a duly executed instrument, constitut-
ing the secretary of state and his successors
in office, the true and lawful attorney upon
whom all original process in any action or
legal proceeding caused by the operation of
his registered motor vehicle, within the
state, against such owner may be served,
and therein shall agree that any original
process against such owner shall be of the
same force and effect as if served on such
owner within this state; the service of such
process shall be made by leaving a copy of
the same in the office of the secretary of

gine. Hendrick v. Maryland, 235 U. S. 610, | since the trial of this case in the lower 59 L. ed. 385, 35 Sup. Ct. Rep. 140. Several court. But it is not an essential of valid reasons are urged why that case should regulation. Absence of it does not involve not be deemed controlling:

discrimination against nonresidents; for 1. The Maryland law did not require the any resident similarly situated would be nonresident to appoint an agent within the subjected to the same imposition. A resistate upon whom process may be served. dent desiring to use the highways only a But it was recognized in discussing it, that single day would also have to pay the full "the movement of motor vehicles over the annual fee. The amount of the fee is not highways is attended by constant and seri- so large as to be unreasonable; and it is ous dangers to the public." (p. 622.) We clearly within the discretion of the state to know that ability to enforce criminal and determine whether the compensation for civil penalties for transgression is an aid the use of its highways by automobiles shall to securing observance of laws. And in be determined by way of a fee, payable anview of the speed of the automobile and the nually or semiannually, or by a toll based habits of men, we cannot say that the leg- on mileage or otherwise. Our decision susislature of New Jersey was unreasonable taining the Maryland law was not dependin believing that ability to establish, byent upon the existence of the reciprocal prolegal proceedings within the state, any vision. Indeed, the plaintiff in error there financial liability of nonresident owners, was essential to public safety. There is nothing to show that the requirement is unduly burdensome in practice. It is not a discrimination against nonresidents, denying them equal protection of the law. On the contrary, it puts nonresident owners upon an equality with resident owners.

was not in a position to avail himself of the reciprocal clause; and it was referred to only because of the contention that the law discriminated between nonresidents; that is, that Maryland extended to residents of other states privileges it denied to residents of the District.

3. In Hendrick v. Maryland, it appeared 2. The Maryland law contained a recipro- only that the nonresident drove his automocal provision by which nonresidents whose bile into the state. In this case it is adcars are duly registered in their home state mitted that he was driving through the are given, for a limited period, free use of state. The distinction is of no significance. the highways in return for similar privi- As we there said (622): “In the absence of leges granted to residents of Maryland. national legislation covering the subject, a Such a provision promotes the convenience state may rightfully prescribe uniform regof owners and prevents the relative hard-ulations necessary for public safety and ship of having to pay the full registration order in respect to the operation upon its fee for a brief use of the highways. It has highways of all motor vehicles-those movbecome common in state legislation; and ing in interstate commerce as well as New Jersey has embodied it in her law others." state with a service fee of $2 to be taxed on | the provisions of this act, whether from the plaintiff's costs of suit. Said commis- fines, penalties, registration fees, license sioner of motor vehicles shall forthwith notify such owner of such service by letter directed to him at the post-office address stated in his application.

fees, or otherwise, shall be accounted for and forwarded to the commissioner of motor vehicles and by him paid over to the treasurer of the state of New Jersey, to be ap"17. No person shall hereafter drive an propriated annually to the commissioner of automobile upon any public highway in this public roads, to be used as a fund for the state, unless licensed to do so in accordance repair of the improved roads throughout with the provisions of this act. No person the state, whether they had been originally under the age of sixteen years shall be li- built by state aid or not, and to be by the censed to drive automobiles, nor shall any said commissioner, apportioned once each person be licensed to drive automobiles until year among the several counties of this said person shall have passed a satisfactory state according to the mileage of improved examination as to his ability as an operator. roads in each county, the share apportioned There shall be two classes of drivers' each county to be used for the repair of licenses. Those authorizing the licensee to improved roads in that county under the drive cars of less than thirty horse power direction of the commissioner of public shall be of the first class, and those author-roads or his authorized representatives, and izing the licensee to drive cars of thirty and greater horse power shall be of the second class. The annual license fee to be charged shall be $2 for drivers of the first class, and $4 for drivers of the second class.

"Part X.-Miscellaneous.

"37. Moneys received in accordance with

to be paid in the same manner as state funds are now paid for the improvement of public roads. The term 'improved roads' as used in this section shall not include streets paved with cobblestones, Belgium block or asphalt."

4. In the Hendrick Case it did not appear, as here, that the fees collected under the Motor Vehicle Law exceeded the amount required to defray the expense of maintaining the regulation and inspection department. But the Maryland statute, like that of New Jersey, contemplated that there would be such excess, and provided that it should be applied to the maintenance of improved roads. And it was expressly recognized that the purpose of the Maryland law "was to secure some compensation for the use of facilities provided at great cost from the class for whose needs they are essential and whose operations over them are peculiarly injurious."

The judgment should be affirmed.

Mr. Justice Pitney took no part in the consideration or decision of this case.

(242 U. S. 169)

See same case below, 124 Md. 411, 92 Atl. 1060.

The facts are stated in the opinion. Messrs. Duncan K. Brent, George A. Pearre, A. Hunter Boyd, Jr., and George E. Hamilton for plaintiff in error.

Messrs. Frank A. Perdew and Albert A. Doub for defendant in error.

Mr. Justice Brandeis delivered the opinion of the court:

Whitacre, a freight train brakeman, while walking through a railroad yard on a dark and foggy night, fell into a water cinder pit and was seriously injured. He brought suit under the Federal Employers' Liability Act of April 22, 1908 (chap. 149, 35 Stat. at L 65, Comp. Stat. 1913, § 8657), in a state court and recovered a verdict. Exceptions were taken to certain refusals to rule. The court of appeals of Maryland affirmed the judgment of the court below. 124 Md. 411, 92 Atl. 1060.

It appeared at the trial that, although

BALTIMORE & OHIO RAILROAD COM- the pit was of modern construction and well

PANY, Plff in Err.,

V.

HARVEY W. C. WHITACRE.

COURTS 399(2)-ERROR TO STATE COURT
-FOLLOWING DECISION BELOW.

adapted to the purpose for which it was constructed, it was not protected by a guard rail. There was testimony that at the time of the accident certain lights alleged to have been provided about the pit were 1. Only in case of clear and palpable not lighted; that it had been raining; and error will a unanimous ruling of the high- that the top of the water was covered to est state court that the trial court had some extent with ashes, which made it properly left to the jury a suit under the difficult to distinguish the surface of the Employers' Liability Act of April 22, 1908

(35 Stat. at L. 65, chap. 149, Comp. Stat. Pit from solid ground. It was admitted 1913, § 8657), be disturbed by the Federal that Whitacre was engaged in interstate Supreme Court on writ of error.

[Ed. Note. For other cases, see Courts, Dec. Dig. G 399(2); Appeal and Error, Cent. Dig. 3396.]

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commerce. The defenses relied upon were assumption of risk and denial of negligence.

The defendant (plaintiff in error) requested a peremptory instruction in its favor, on the ground that there was not sufficient evidence to entitle the plaintiff to recover. The appellate court was unanimous in holding that the trial court had properly left the case to the jury. No clear and palpable error is shown which would justify us in disturbing that ruling. Seaboard Air Line R. Co. v. Padgett, 236 U. S. 668, 673, 59 L. ed. 777, 781, 35 Sup. Ct. Rep. 481; Great Northern R. Co. v. Knapp, 240 U. S. 464, 466, 60 L. ed. 745, 751, 36 Sup. Ct. Rep.

Argued November 7, 1916. Decided Decem- 399. The defendant further complains that

ber 4, 1916.

I the State of Maryland to review e judge
N ERROR to the Court of Appeals of

ment which affirmed a judgment of the
Circuit Court for Washington County, in
that state, in favor of plaintiff in an action
under the Federal Employers' Liability Act.
Affirmed.

the trial court refused to give certain in-
structions on the issues of negligence and
These instructions
assumption of risk.
were properly refused; because in each in-
stance the recital therein did not include
all the facts which the jury was entitled to
consider on the issues presented and con-
cerning which there was some evidence.
The judgment is affirmed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
37 S.C.-3

(242 U. S. 171) HENRY H. KRYGER, Plff. in Err.,

V.

EDWARD H. WILSON.

Mr. Justice Brandeis delivered the opinion of the court:

This case comes here on writ of error to the supreme court of North Dakota to review a decree quieting title in the defend

COURTS 394(2)—Error to STATE COURT
-SCOPE OF REVIEW-QUESTIONS OF LO-ant in error-the plaintiff below-to land
CAL LAW.

1. Whether the cancellation of a land contract is governed by the law of the situs or of the place of making and performance is purely a question of local common law with which the Federal Supreme Court is not concerned on writ of error to a state

court.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 1049; Dec. Dig. 394(2).] CONSTITUTIONAL LAW 309(1)—DUE PROCESS OF LAW-NOTICE-CANCELLATION OF LAND CONTRACT.

2. The nonresident vendee in an executory contract of sale may not say that his rights thereunder were foreclosed without due process of law because of lack of actual notice of cancelation proceedings taken by the vendor under the law of the situs of the property, where, in fact, his rights were foreclosed not by the cancelation proceedings, but by a decree of a court of the state of the situs, quieting title in the vendor, rendered in a suit in which the vendee appeared and asked for the land under the contract of sale, the court basing its decree upon the finding that a default occurred of which the vendor is entitled to take advantage, having complied with the cancelation law, which the court held to be controlling, i. e., the law of the situs rather than the place of making and performance. Law, Cent. Dig. §§ 929, 930; Dec. Dig. 309(1).] COURTS 394(9)-ERROR TO STATE COURT -FEDERAL QUESTION-IMPAIRING CONTRACT BY JUDICIAL DECREE.

[Ed. Note. For other cases, see Constitutional

3. Impairment of a contract by judicial decision does not raise a Federal question which can be reviewed by the Federal Supreme Court on writ of error to a state court.

[Ed. Note.-For other cases, see Courts, Cent. Díg. 1055; Dec. Dig. 391(9).]

[No. 99.]

situated in that state. The plaintiff in error, a resident of Minnesota, claimed under an executory contract for the purchase of the land in controversy, and the rights of the parties turned upon whether this contract was outstanding or had been duly canceled. Both Minnesota, where the contract was made and to be performed, and North Dakota, had statutes providing that a vendor in a contract for the sale of land may not cancel and terminate the same upon default, except after written notice to the vendee, giving him at least thirty days within which to make good his nonperformance. Minn. Rev. Stat. 1905, § 4442; N. D. Rev. Codes 1905, chap. 30, art. 3, N. D. Comp. Laws 1913, chap. 30, art. 4. The material provisions of the latter statute are copied in the margin.1 The vendor in this case (grantor of defendant in error) had given to the sheriff of the county where the be served upon the plaintiff in error if found land lay a written notice of cancelation to within the said county, and upon return of not found, caused the same to be published in a county newspaper, and later filed for record affidavits of publication and of nonredemption,-all in conformity with the North Dakota statute, if it applied.

When the present action was brought to quiet title, plaintiff in error defended, and asked for counter relief, contending that his contract was still valid and subsisting, as

1 N. D. Rev. Codes 1905, chap. 30, art. 3; "Par. 7494. Owner must give written notice to vendee or purchaser.-No owner of real estate, or owner of any equity therein, [who] shall hereafter make or execute a contract for deed, bond for deed, or other instrument for the future conveyance of

Submitted November 13, 1916. Decided any such real estate or equity therein, shall

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ment which affirmed a judgment of the District Court of Kidder County, in that state, in favor of plaintiff in a suit to quiet title. Affirmed.

have the right to declare a cancelation, termination or forfeiture thereof or thereunder, except upon written notice to the vendee or purchaser, or his assigns, as here

given to such vendee or purchaser or his condition in any such instrument to the assigns, notwithstanding any provision or contrary.

"Par. 7495. In case of default. Contents See same case below, 29 N. D. 28, 149 N. of notice.-Whenever any default shall have W. 721.

The facts are stated in the opinion. Messrs. O. E. Holman and William W. Fry for plaintiff in error.

Messrs. George S. Grimes and Jesse Van Valkenburg for defendant in error.

been made in the terms or conditions of any such instrument hereinafter made, and the owner or vendor shall desire to cancel or terminate the same, [he] shall, within a reasonable time after such default, cause a written notice to be served upon the vendee or purchaser, or his assigns, stating that

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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