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sustained the validity of similar prohibi- , bile Law (N. J. Laws 1908, p. 613), in tions. Schmidinger v. Chicago, 226 U. s. addition to providing for the registration 578, 57 L. ed. 364, 33 Sup. Ct. Rep. 182, of automobiles and the licensing of drivers, Ann. Cas. 1914B, 284; Armour & Co. v. requires a nonresident owner to appoint the North Dakota, 240 U. S. 510, 60 L. ed. 771, secretary of state as his agent upon whom

process may be served "in any action or 36 Sup. Ct. Rep. 440, Ann. Cas. 1916D, 548. | legal proceeding caused by the operation of

It is specially urged that the statutes are his registered motor vehicle within this unconstitutional because they do not merely state against such owner.” define the term "ice cream;" but arbitrarily (Ed. Note.-For other cases, see Constitutional prohibit the sale of a large variety of whole. Lai Cent. Dign 683: Dec. Dig: 235.

For other definitions, see Words and Phrages, some compounds theretofore included under First and Second Series, Equal Protection of

the Law.] the name "ice cream.” The acts appear to

CONSTITUTIONAL LAW 230(1)--“EQUAL us merely to prohibit the sale of such com

PROTECTION OF THE LAWS"-STATE AUTOpounds as ice cream. Such is the construc- MOBILE LAW - DISCRIMINATION AGAINST tion given to the act by the supreme court

NOXRESIDENT. of Iowa. State v. Hutchinson Ice Cream

2. The absence from the New Jersey Co. 108 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 au. on us. We cannot assume, in the absence of

any reciprocal provision by which nonresi& 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 nonresi. state 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 appear ed 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

Law, Cent. Dig. $ 687 ; Dec. Dig. Om 230(1).] Powell v. Pennsylvania, 127 U. S. 678, 685, 32 L. ed. 253, 256, 8 Sup. Ct. Rep. 992, COMMERCE -10_STATE AUTOMOBILE LAW

-NONRESIDENTE-CONGRESSIONAL INAO1257; Schollenberger v. Pennsylvania, 171 TIOX. U. S. 1, 15, 43 L. ed. 49, 54, 18 Sup. Ct. 3. The requirements of the New Jersey Rep. 757.

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 regula

tions of interstate commerce,--until Conutes are or are not sustainable as health

gress acts in the matter,-as applied to a measures; and upon this we express no

nonresident owner who is driving his car opinion.

through the state on his way from New The judgment in each case is affirmed. York to Pennsylvania.

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

Cent. Dig. § 8; Dec. Dig. 10.) 1942 U. S. 153)

CONSTITUTIONAL LAW P 230(1)—“EQUAL SANDERS ICE CREAM COMPANY, Pill. PROTECTION OF THE LAWS" STATE in Err.,

AUTOMOBILE LAW-LICENSE FEES.

4. The fact that the fees collected unSTATE OF IOWA.

der the New Jersey Automobile Law (N.

J. Laws 1908, p. 613) exceed the amount [No. 39.]

required to defray the expense of mainN ERROR to the Supreme Court of the taining the regulation and inspection dethis case was heard and submitted upon the be applied to the maintenance of improved record in Hutchinson Ice Cream Co. v. nonresidents, under U. S. Const. 14th

highways, does not render invalid as to Iowa, ante, p. 28.

Amend., the requirements of that law for

the registration of automobiles and the li(242 U. S. 160)

censing of drivers.

(Ed. Note.-For other cases, see Constitutional FRANK J. KANE, Piff. in Err.,

Law, Cent. Dig. $ 687; Dec. Dig. 230(1).] STATE OF NEW JERSEY.

(No. 51.)

Argued October 31, 1916. Decided DecemCONSTITUTIONAL LAW 235 “EQUAL PROTECTION OF THE LAWS"_PRIVILEGES

ber 4, 1916. AND IMMUNITIES--STATE REGULATION OF MOTOR

N ERROR to the Court of Errors and ApVENICLES DISCRIMINATION AGAINST NONRESIDENTS.

peals of the State of New Jersey to re1. Nonresident automobile owners are view a judgment which affirmed a judgnot denied rights under U. S. Const. 14th ment of the Supreme Court of that state, Amend., because the New Jersey Automo. I affirming a conviction in the Recorder's

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

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V.

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Court of the City of Paterson of violating Kane, a resident of New York, was arthe state automobile laws. Affirmed. rested while driving his automobile on the

See same case below, 81 N. J. L. 594, 80 public highways of New Jersey, and tried Atl. 453, Ann. Cas. 1912D, 237.

in the recorder's court. The following facts The facts are stated in the opinion. were stipulated: Kane had been duly

Messrs. John W. Griggs and Charles licensed as a driver under the laws of both Thaddeus Terry for plaintiff in error. New York and New Jersey. He had reg.,

Messrs. Herbert Boggs and John W. istered his car in New York, but not in Wescott, Attorney General of New Jersey, New Jersey. He had not filed with the for defendant in error.

secretary of state of New Jersey the pre

scribed instrument appointing that official Mr. Justice Brandeis delivered the opin. his attorney upon whom process might be ion of the court:

served. When arrested he was on his way The New Jersey Automobile Law of 1908 from New York to Pennsylvania. The ag(P. L. 1908, p. 613) provides in substance gregate receipts from license and registrathat no person, whether a resident or non- tion fees for the year exceeded the amount resident of the state, shall drive an automo required to defray the expenses of the motor bile upon a public highway unless he shall vehicle department, so that a large sum behave been licensed so to do and the auto

came available for maintenance of the immobile shall have been registered under the proved roads of the state. Kane contended statute; and also that a nonresident owner that the statute was invalid as to him, a shall appoint the secretary of state his at. torney upon whom process may be served nonresident, because it violated the Con “in any action or legal proceeding caused stitution and laws of the United States reg. by the operation of his registered motor ulating interstate commerce, and also bevehicle within this state against such own.

cause it violated the 14th Amendment. er.” The statute fixes the driver's license These contentions were overruled, and he fee for cars of less than thirty horse power was fined $5. The conviction was duly at $2, and more than thirty horse power reviewed both in the supreme court and at $4. It fixes the registration fee at $3 by the court of errors and appeals. The for cars of not more than ten horse power; contentions were repeated in both of those $5 for those from eleven to twenty-nine courts; and both courts affirmed the conhorse power; and $10 for those of thirty viction. Kane v. State, 81 N. J. L. 594, or greater horse power. Both license fees L.R.A. 1917B, 553, 80 Atl, 453, Ann. Cas and registration fees, whensoever issued, ex. 1912D, 237. The case was brought here by pire at the close of the calendar year. The writ of error. 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 broad. department 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 to exact reasonable compensation for special highways without complying with the re- facilities afforded as well as reasonable proquirements of the act. The material por- visions to insure safety. And it is properly tions of the statute are copied in the mar. exercised in imposing a license fee graduatgin.

ed according to the horse power of the en. 1“Part IV.–The Operation of Motor Ves, third class. Automobiles of ten horse power hicles.

or less, shall be of the first class; from

eleven to twenty-nine horse power, inclusive, "16. (1) Every resident of this state and of the second class; and of thirty horse every nonresident, whose automobile shall power or more, of the third class. be driven in this state, shall, before using Each owner having a residence outside of such vehicle on the public highways, register the state shall file with the secretary of the same, and no motor vehicle shall be state a duly executed instrument, constitutdriven unless so registered. Every registra ing the secretary of state and his successors tion shall expire and the certificate thereof in office, the true and lawful attorney upon become void on the 31st of December of each whom all original process in any action or year; provided, it may be lawful for any legal proceeding caused by the operation of automobile duly registered, to operate under his registered motor vehicle, within the said registration certificate for a period not state, against such owner may be served, exceeding thirty-one days after the expira- and therein shall agree that any original tion of said registration certificate.. process against such owner shall be of the The applicant shall pay to the commissioner same force and effect as if served on such of motor vehicles for each registration, a owner within this state; the service of such fee of $3 for automobiles of the first class; process shall be made by leaving a copy of $5 for the second class, and $10 for the 'the same in the office of the secretary of

reasons

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

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, by ent 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 not in a position to avail himself of was essential to public safety. There is the reciprocal clause; and it was referred nothing to show that the requirement is to only because of the contention that the unduly burdensome in practice. It is not law discriminated between nonresidents; a discrimination against nonresidents, deny that is, that Maryland extended to residents ing them equal protection of the law. On of other states privileges it denied to resithe contrary, it puts nonresident owners dents of the District. upon an equality with resident owners. 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 move become 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 fees, or otherwise, shall be accounted for notify such owner of such service by letter and forwarded to the commissioner of motor directed to him at the post-office address vehicles and by him paid over to the treasstated in his application.

urer of the state of New Jersey, to be ap17. 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 to be paid in the same manner as state and greater horse power shall be of the funds are now paid for the improvement of second class. The annual license fee to be public roads. The term 'improved roads' as charged shall be $2 for drivers of the first used in this section shall not include streets class, and $4 for drivers of the second paved with cobblestones, Belgium block or class.

asphalt." "Part X.-Miscellaneous. *37. Moneys received in accordance with

!

4. In the Hendrick Case it did not appear, See same case below, 124 Md. 411, 92 Atl. as here, that the fees collected under the 1060. Motor Vehicle Law exceeded the amount re- The facts are stated in the opinion. quired to defray the expense of maintaining Messrs. Duncan K. Brent, George A. the regulation and inspection department. Pearre, A. Hunter Boyd, Jr., and George But the Maryland statute, like that of New E. Hamilton for plaintiff in error. Jersey, contemplated that there would be Messrs. Frank A. Perdew and Albert such excess, and provided that it should A. Doub for defendant in error. be applied to the maintenance of improved roads. And it was expressly recognized that Mr. Justice Brandeis delivered the opinthe purpose of the Maryland law "was to ion of the court: secure some compensation for the use of

Whitacre, a freight train brakeman, while facilities provided at great cost from the walking through a railroad yard on a dark class for whose needs they are essential and foggy night, fell into a water cinder pit and whose operations over them are pe- and was seriously injured. He brought suit culiarly injurious."

under the Federal Employers' Liability Act The judgment should be affirmed.

of April 22, 1908 (chap. 149, 35 Stat. at L

65, Comp. Stat. 1913, § 8657), in a state Mr. Justice Pitney took no part in the court and recovered a verdict. Exceptions consideration or decision of this case. 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. (242 U. S. 169)

It appeared at the trial that, although BALTIMORE & OHIO RAILROAD COM. the pit was of modern construction and well PANY, Piff in Err.,

adapted to the purpose for which it was

constructed, it was not protected by a guard HARVEY W. C. WHITACRE.

rail. There was testimony that at the

time of the accident certain lights alleged COURTS E399(2)—ERROR TO STATE COURT to have been provided about the pit were -FOLLOWING DECISION BELOW.

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.

commerce. The defenses relied upon were [Ed. Note: --For other cases, see Courts, Dec. assumption of risk and denial of negligence. Dig. 399(2); Appeal and Error, Cent. Dig. 3396.)

The defendant (plaintiff in error) requestTBIAL 253(9)-REQUESTED INSTRUO- ed a peremptory instruction in its favor, TION8IGNORING EVIDENCE. 2. Instructions on the issues of negli evidence to entitle the plaintiff to recover.

on the ground that there was not sufficient gence and assumption of risk are properly refused where, in each instance, the recital The appellate court was unanimous in holdtherein did not include all the facts which ing that the trial court had properly left the jury was entitled to consider on the the case to the jury. No clear and palpable issues presented, and concerning which error is shown which would justify us in there was some evidence. (Ed. Note. For other cases, see Trial, Cent. R. Co. v. Padgett, 236 U. S. 668, 673, 59

disturbing that ruling. Seaboard Air Line Dig. $ 620; Dec. Dig. Om 253(9).]

L. ed. 777, 781, 35 Sup. Ct. Rep. 481; Great (No. 71.)

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.

the trial court refused to give certain instructions on the issues of negligence and

These instructions N ERROR to the Court of Appeals of assumption of risk,

the State of Maryland to review a judg. were properly refused; because in each in. ment which affirmed a judgment of the stance the recital therein did not include Circuit Court for Washington County, in all the facts which the jury was entitled to that state, in favor of plaintiff in an action consider on the issues presented and conunder the Federal Employers' Liability Act. cerning which there was some evidence. Afirmed.

The judgment is affirmed.

IN

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

37 S.C.-3

ance.

(242 U. S. 171) HENRY H. KRYGER, Plfi. in Err., Mr. Justice Brandeis delivered the opin

ion of the court: EDWARD H. WILSON.

This case comes here on writ of error to

the supreme court of North Dakota to reCourts Om394(2)-ERBOR TO STATE COURT view a decree quieting title in the defend.

-SCOPE OF REVIEW-QUESTIONS OF LO- ant in error—the plaintiff below-to land CAL LAW.

situated in that state. The plaintiff in er1. Whether the cancellation of a land contract is governed by the law of the situs ror, a resident of Minnesota, claimed under or of the place of making and performance an executory contract for the purchase of is purely a question of local common law the land in controversy, and the rights of with which the Federal Supreme Court is the parties turned upon whether this connot concerned on writ of error to a state tract was outstanding or had been duly court.

canceled. Both Minnesota, where the con(Ed. Note. For other cases, see Courts, Cent. tract was made and to be performed, and Dig. § 1049; Dec. Dig. 394(2).]

North Dakota, had statutes providing that CONSTITUTIONAL LAW 309(1)-DUE PRO

CESS OF LAW-NOTICE-CANCELLATION of a vendor in a contract for the sale of land LAND CONTRACT.

may not cancel and terminate the same upon 2. The nonresident vendee in an execu- default, except after written notice to the tory contract of sale may not say that his vendee, giving him at least thirty days rights thereunder were foreclosed without due process of law because of lack of actual within which to make good his nonperformnotice of cancelation proceedings taken by

Minn. Rev. Stat. 1905, § 4442; N. D. the vendor under the law of the situs of the Rev. Codes 1905, chap. 30, art. 3, N. D. property, where, in fact, his rights were Comp. Laws 1913, chap. 30, art. 4. The foreclosed not by the cancelation proceed material provisions of the latter statute are ings, but by a decree of a court of the copied in the margin.1 The vendor in this state of the situs, quieting, title in the case (grantor of defendant in error) had vendor, rendered in a suit in which the given to the sheriff of the county where the vendee appeared and asked for the land land lay a written notice of cancelation to under the contract of sale, the court basing its decree upon the finding that a default be served upon the plaintiff in error if found occurred of which the vendor is entitled to within the said county, and upon return of take advantage, having complied with the not found, caused the same to be published cancelation law, which the court held to be in a county newspaper, and later filed for controlling, i. e., the law of the situs rather record affidavits of publication and of nonthan the place of making and performance, redemption,-all in conformity with the

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. $$ 329, 930; Dec. Dig. Om 309(1).] North Dakota statute, if it applied. Courts Ow394(9)— ERROR TO STATE COURT When the present action was brought to

-FcDERAL QUESTION_IMPAIRING CON- quiet title, plaintiff in error defended, and TRACT BY JUDICIAL DECREE. 3. Impairment of a contract by, judi contract was still valid and subsisting, as

asked for counter relief, contending that his cial decision does not raise a Federal

question which can be reviewed by the Federal Supreme Court on writ of error to a state IN. D. Rev. Codes 1905, chap. 30, art. 3; court.

"Par. 7494. Owner must give written [Ed. Note.-For other cases, see Courts, Cent. notice to vendee or purchaser.-No owner Dig. § 1065; Dec. Dig. 391(9).)

of real estate, or owner of any equity there[No. 99.]

in, (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 December 4, 1916.

have the right to declare a cancelation, ter. mination or forfeiture thereof or there

under, except upon written notice to the N ERROR to the Supreme Court of the vendee or purchaser, or his assigns, as herement which affirmed a judgment of the Dis given to such vendee or purchaser or his trict Court of Kidder County, in that state, condition in any such instrument to the

assigns, notwithstanding any provision or in favor of plaintiff in a suit to quiet title.

contrary. Affirmed.

"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.

been made in the terms or conditions of any The facts are stated in the opinion.

such instrument hereinafter made, and the Messrs. O. E. Holman and William W. terminate the same, [he] shall, within a

owner or vendor shall desire to cancel or Fry for plaintiff in error.

reasonable time after such default, cause a Messrs. George S. Grimes and Jesse written notice to be served upon the vendee Van Valkenburg for defendant in error.

or purchaser, or his assigns, stating that

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

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