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196, Comp. Stat. 1913, § 8606), where there , failed to furnish such "couplers coupling was testimony showing that an engine automatically by impact” as the statute rehaving backed for the purpose of coupling quires (Johnson v. Southern P. Co. 196 U. the tender to a car, on a curve which the S. 1, 18, 19, 49 L. ed. 363, 369, 370, 25 Sup. jury were warranted in finding was slight as not to affect the case, and having Ct. Rep. 158, 17 Am. Neg. Rep. 412), nothfailed to effect the coupling automatically ing else needs to be considered. We are of by impact, the brakeman, noticing that the opinion that there was enough evidence to drawhead on the car was not in line with go to the jury upon that point. No doubt the one on the tender, put in his arm for there are arguments that the jury should the purpose of straightening it and thus have decided the other way. Some lateral making the coupling possible, and was in play must be allowed to drawheads, and, jured.

further, the car was on a curve, which, of [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1020; Dec. Dig. 286(13).] course, would tend to throw the coupler out

of line. But the jury were warranted in [No. 111.)

finding that the curve was so slight as not

to affect the case, and in regarding the Argued November 16, 1916. Decided De- track as, for this purpose, a straight line. cember 4, 1916.

If couplers failed to couple automatically

upon a straight track, it at least may be N ERROR to the Court of Errors and

said that a jury would be warranted in findIN

Appeals of the State of New Jersey to ing that a lateral play so great as to prereview a judgment which affirmed a judg. vent coupling was not needed, and that, in ment of the Supreme Court of that state the absence of any explanation believed by in favor of plaintiff in an action brought them, the failure indicated that the railunder the Federal Safety Appliance and road had not fully coinplied with the law. Employers' Liability Acts. Affirmed.

Chicago, B. & Q. R. Co. v. United States, See same case below, 87 N. J. L. 148, 93 220 U. S. 559, 571, 55 L. cd. 582, 586, 31 Atl. 574.

Sup. Ct. Rep. 612; Chicago, R. I. & P. R. The facts are stated in the opinion.

Co. v. Brown, 229 U. S. 317, 320, 321, 57 Messrs. Thomas E. French, Samuel 11. L. ed. 1204–1206, 33 Sup. Ct. Rep. 840, 3 Richards, and Charles Heebner for plain

N. C. C. A. 826; San Antonio & A. Pass tiff in error.

R. Co. v. Wagner, 241 U. S. 476, 484, 60 L Mr. David O. Watkins for defendant in ed. 1110, 1117, 36 Sup. Ct. Rep. 626.

Judgment affirmed.


· Mr. Justice Holmes delivered the opin. ion of the court:

(242 U. S. 53)

DAN. S. LEHON, Piff. in Err, This is an action brought by the defendant in error to recover for the loss of an

CITY OF ATLANTA. arm crushed while he was coupling a tender to a car. There is no dispute that the case Courts. 394(10)—ERROR TO STATE COURT is governed by the acts of Congress—the -FRIVOLOUS FEDERAL QUESTION. Safety Appliance Act of March 2, 1893, 1. The contention that municipal ordichap. 196, $S 2, 8, 27 Stat. at L. 531, Comp. nances, which subject the business of a Stat. 1913, SS 8606, 8612, and the Employ. private detective or detective agency to ers' Liability Act of April 22, 1908, chap. police supervision, and provide that no per149, 8$ 3, 4, 35 Stat. at L. 65, Comp. Stat. first being recommended by the board of

son shall carry on such business without 1913, $S 8659, 8660. The facts material police commissioners and taking the oath here are few. The engine had backed for of a city detective and giving a bond, offend the purpose of coupling with the car and against the due process of law and equal had failed to couple automatically by im- protection of the laws clauses of U. S. pact. Thereupon the plaintiff, noticing that Const. 14th Amend., is not so frivolous as the drawhead was not in line with the not to serve as the basis of a writ of error one on the engine, put in his arm for the from the Federal Supreme Court to a state

court. purpose of straightening it and thus mak

[Ed. Note.-For other cases, see Courts, Cent. ing the coupling possible, and was caught. | Dig. § 1056; Dec. Dig. 394(10).] An exception was taken to the refusal of a CONSTITUTIONAL LAW Om 238(1), 275(1) ruling that no negligence was shown on the DUE PROCESS OF LAW-EQUAL PROTECpart of the railroad company, but the court


DETECTIVES-POLICE POWER. of errors and appeals affirmed the judg. ment of the court below. 87 N, J. L. 148, the business of a private detective or detec

2. Municipal ordinances which subject 93 Atl. 574.

tive agency to police supervision, and proIf there was evidence that the railroad' vide that no person shall carry on such

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

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business without first being recommended by proved by the court of appeals and the the board of police commissioners and tak judgment affirmed. ing the oath of a city detective and giving a

The court of appeals rejected the contenbond, do not offend against the due proc. tion that the ordinances were unreasonable ess of law and equal protection of the laws and void under the Constitution of the clauses of U. S. Const. 14th Amend., but are valid exercises of the police power.

state, to review which decision we, of course, (Ed. Note.–For other cases, see Constitutional have no power; and it also sustained the Law, Cent. Dig. $$ 688, 695, 830, 839, 843; Dec. ordinances against the contention that they Dig. 238(1), 275(1).]


ment to the Constitution of the United NATION AGAINST NON RESIDENT.

States. The latter contention is repeated 3. A nonresident private detective who here. made no effort to comply with municipal His contention, in its most general form, ordinances which subject the business of a is that the ordinances abolish the occupaprivate detective or detective agency to tion of private detective by the requirepolice supervision, and provide that no per: ments of application for a permit to the son shall carry on such business witliout first being recommended by the board of police commission of the city, the approval police commissioners and taking the oath of the chief of police, oath of office, and to of the city detective and giving a bond, can work under police supervision. These renot complain that in their enforcement an quirements, it is insisted, offend the due unconstitutional discrimination was made process and equal protection clauses of the against citizens of other states.

14th Amendment to the Constitution of the [Ed. Note.-For other cases, see Constitutional United States. Law, Cent. Dig. $$ 39, 40; Dec. Dig. Om 12.] [No. 103.]

The contention makes a Federal question,

and, as we are not disposed to consider it Submitted November 14, 1916. Decided De frivolous, a motion to dismiss which is made cember 4, 1916.

will be denied. N ERROR to the Court of Appeals of the the facts of the complaint were established;

In passing upon the merits we assume which affirmed a conviction in the Recorder's Court of the City of Atlanta of a violation to have acted as a private detective, though of municipal ordinances regulating private ices were those of a "sleuth,” though he

he denied and denies it, and that his servdetectives. Affirmed.

See same case below, 16 Ga. App. 64, 84 asserts they were only those of a clerk. S. E. 608.

We make these assumptions against the The facts are stated in the opinion.

denials of plaintiff in error because, to susMessrs. John D. Little, Arthur G. tain the denials, he selects parts of the tesPowell, Marion Smith, and Max F. timony.only, and ignores also the deduction Goldstein for plaintiff in error.

that it was possible to make even from that Messrs. Samuel D. Hewlett and James

testimony. L. Mayson for defendant in error.

The only question for our decision is the

validity of the law, and of that we have no Mr. Justice McKenna delivered the opin

doubt. Nor are we disposed to take much ion of the court:

time in its discussion, notwithstanding the The question in the case is the validity earnest argument of plaintiff in error. The of ordinances of the city of Atlanta, Geor- extent of the police power of the state has gia, which subject the business of a private been too recently explained to need further detective or detective agency to police super

enunciation. The present case is easily vision, and provide that 'no person shall within its principle. It would be very com. carry on such business without being first monplace to say that the exercise of police recommended by the board of police com

is one of the necessary activities of govern. missioners, and taking the oath of a city ment, and all that pertains to it may be detective, and giving a bond in the sum of subjected to regulation and surveillance as $1,000, as prescribed by the ordinances.

a precaution against perversion. The AtPlaintiff in error was convicted in the lanta ordinances do no more.

They prorecorder's court of the city of a violation vide in effect that all who engage in it or of the ordinances, and sentenced to pay a

are connected with it as a business shall fine, with the alternative of imprisonment. have the sanction of the state, have the Under the local procedure a petition for stamp of the state as to fitness and charcertiorari was presented to the judge of the acter, take an oath to the state for faithful superior court of the county to review the execution of its duties, and give a bond for conviction, and was refused "sanction,” to their sanction. This the state may do use the local word. This action was ap- against its own citizens and may do against

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

a citizen of Louisiana, which plaintiff in, upon a plea of guilty be suspended indef. error is, or against a citizen of any other nitely during good behavior upon considerastate.

tions wholly extraneous to the legality of

the conviction. But the ruling of the local officers in re

[Ed. Note.-For other cases, see Criminal Law, fusing approval of applications of nonresi

Cent. Dig. $$ 2554-2559; Dec. D.g 1001.) dents of Georgia is urged as a construction of the ordinances or laws of the state, and,

[No. 11, Original.] it is contended, makes them discriminatory against citizens of other states. Plaintiff Argued January 10 and 11, 1916. Decided

December 4, 1916. in error, however, admits he made no effort to comply with the ordinances. The court

PPLICATION for a writ of mandamus of appeals, therefore, was of opinion that, A

to the United States District Court whether certain sections of the Penal Code of the state did or did not exclude citizens Judge for the Northern District of Ohio, of other states from engaging as private de directing him to vacate an order suspendtectives, plaintiff in error was deprived of ing during good behavior the execution of a no constitutional right, for "as to him the sentence to imprisonment. Rule made abso

lute. ordinances were not construed at all.” In

The facts are stated in the opinion. other words, that he had not asserted a right, and, in the absence of assertion, torney General Wallace, and Solicitor Gen

Attorney General Gregory, Assistant Atcould not have it judicially passed on. We eral Davis for the United States. concur in the ruling. It is within the prin

Mr. Edwin J. Marshall for respondent. ciple of Gundling v. Chicago, 177 U. S. 183,

Mr. John M. Killits, in propria persona, 44 L. ed. 725, 20 Sup. Ct. Rep. 633.


also for respondent. complain of a ruling, one must be made

Messrs. Richard W. Hale, Frank W. Grinthe victim of it. One cannot invoke, to de: nell, Homer Folks, and Charles L. Chute as feat a law, an apprehension of what might

amici curiæ. be done under it, and which, if done, might not receive judicial approval.

Mr. Chief Justice White delivered the Judgment afirmed.

opinion of the court:

The accused pleading guilty to an indict. (242 U. S. 27) EX PARTE UNITED STATES, Petitioner.

ment charging him in several counts with

embezzling the money of a national bank MANDAMUS 61-WHEN MAY ISSUE-To of which he was an officer, and making false COURT — VACATION OF ULTRA VIRES OR- entries in its books, in violation of g 5209,

1. Mandamus is the proper remedy Revised Statutes (Comp. Stat. 1913, § where a Federal district court has exceeded 9772), was sentenced to imprisonment in its power by ordering that the execution of the penitentiary for five years, the shortest a sentence to imprisonment imposed by it term which, under the statute, could have upon a plea of guilty be suspended indefi- been imposed upon him. At once at his renitely during good behavior upon considera quest, over the objection of the United tions wholly extraneous to the conviction. States district attorney, the court ordered

[Ed. Note.-For other cases, see Mandamus, that the execution of the sentence be, and
Cent. Dig. $$ 122-126 ; Dec. Dig. 61.)
MANDAMUS Om 160(5) RULE TO Show it is hereby, suspended during the good be-
CAUSE-TO WHOM DIRECTED-COURT OR havior of the defendant, and for the purpose

2. A rule to show cause why mandamus of this case this term of this court is kept should not issue where a Federal district open for five years.” The United States court has exceeded its power by ordering i moved to set this order aside on the ground that the execution of a sentence to imprison- that, as it was not a mere temporary susment imposed by it upon a plea of guilty pension of the sentence to enable legal probe suspended indefinitely during good be ceedings pending or contemplated to revise havior upon considerations wholly extrane- it to be taken, or application for pardon to ous to the legality of the conviction is prop- be made, or any other legal relief against erly directed to the judge, to compel the the sentence to be resorted to, but, on the vacation of the order of suspension, rather contrary, as it was a permanent suspension than to the clerk of the court, to compel him to issue a commitment.

based upon considerations extraneous to [Ed. Note.--For other cases, see Mandamus, the legality of the conviction or the duty Cent. Dig. § 331; Dec. Dig. 160(5).]

to enforce the sentence, the order of suspenCRIMINAL LAW Cw1001-SUSPENDING EX- sion was void, as it was equivalent to a ECUTION OF SENTENCE POWER OF FED

refusal to carry out the statute. The moERAL COURT.

3. A Federal district court exceeds its tion was denied. In the opinion giving its power by ordering that the execution of a reasons for so doing, the court, conceding sentence to imprisonment imposed by it' that the suspension was permanent, stated

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


the general considerations which it deemed , serve for the benefit of the United States it was required to take into view in decid that nothing exists in this case which moved ing whether the sentence should be enforced, the court to suspend the execution of senconceding the legality of the conviction and tence to prevent ‘an abuse of the courts procsentence and their finality, as follows: ess, or to prevent an injustice being done

"Modern notions respecting the treatment to the defendant,' so far as it may be said of law breakers abandon the theory that the that abstract justice required defendant imposition of the sentence is solely to pun- to suffer for his crime. However, we conish, and now the best thought considers sidered the defendant from many standthree elements properly to enter into the points to be as worthy of the benefit of the treatment of every criminal case after con discretion to suspend the execution of his viction. Punishment in some measure is sentence as any other convict upon whom still the object of sentence, but, affecting that favor has hitherto been bestowed.” its extent and character, we consider the Following a written demand which was effect of the situation upon the individual, thereafter made upon the clerk to issue a as tending to reform him from or to con- commitment, which was refused by him on firm him in a criminal career, and also the the ground that the sentence had been susrelation his case bears to the community in pended, and the further refusal of the judge the effect of the disposition of it upon others to direct the clerk to issue such commitof criminal tendencies."

ment, the United States sought and obtained After pointing out the peculiar aptitude a rule to show cause why a mandamus possessed by a trial judge for the appre- should not be awarded directing the judge ciation of such conditions, and the im- to vacate the order of suspension, under perative duty which rested upon such judge which the subject is now before us for conto consider and weigh the matters stated, sideration. and to determine, as an inherent attribute The remedial appropriateness of the writ of judicial power, whether a permanent sus- of mandamus is at the threshold questioned, pension of the term of imprisonment fixed but we dispose of the subject by a mere by the statute should be ordered, the cir. reference to adjudged cases conclusively cumstances upon which it was concluded establishing the want of foundation for that a permanent suspension should be di. the contention. Ex parte Bradley, 7 Wall. rected were stated in part as follows:

364, 19 L. ed. 214; Life & Fire Ins. Co. v. “We took into account the peculiar cir. Wilson, 8 Pet. 291, 8 L. ed. 949; Re Winn, cumstances under which his crime was com

213 U. S. 458, 53 L. ed. 873, 29 Sup. Ct. mitted, having regard to the temptations Rep. 515; Re Metropolitan Trust Co. 218 which from time to time encompassed him, V. S. 312, 54 L. ed. 1051, 31 Sup. Ct. Rep. and his personal necessities, and the pur-U.' s. 539, 55 L. ed. 575, 31 Sup. Ct. Rep.

18; Ex parte Metropolitan Water Co. 220 poses for which his appropriations were made. Also, the fact that his friends made his 600. In addition, however, it is urged that, employers whole, and that otherwise he had as the right to resort to the extraordinary 80 commended himself to the favor of his remedy by mandamus must rest upon the employers suffering by his crime, that they assumption that the order of suspension was at all times, as well as now, evince a dispo- absolutely void, therefore the rule for the sition to forgive his abuse of their con

writ should have been directed not against fidence, and to support him against the pun. the judge, but against the clerk, to compel ishment which the law provides. We find him to issue the commitment. But we pass that otherwise than for this crime, his dis- from its consideration, as we are of opinion position, character, and habits have so that its want of merit will be completely strongly commended him to his friends, ac- demonstrated by the slightest appreciation quaintances, and persons of his faith, that of the judicial duties of the court below they are unanimous in the belief that the ex. and the ministerial relation of the clerk posure and humiliation of his conviction are of the court to the same. a sufficient punishment, and that he can be The return to the rule and the statement saved to the good of society if nothing fur- in support of the same lucidly portray the ther is done with him."

contentions involved in the question of pow. After further elaborating considerations er to be decided, and the subject in all its of a like nature, and stating very many cir- aspects has been elaborately discussed, not cumstances confirming those mentioned, to only by the printed arguments of the parleave no room for doubt that its action was ties, but, in addition, light has been thrown intended to be permanent and was based on the general question by an argument subalone on the extraneous circumstances stat-mitted by the New York State Probation ed, the court said:

Commission, explaining the statutory sys"Passing now to the concrete case, we ob- | tem of parol prevailing in that state, and by an able argument presented by members criminal laws, and, upon conviction, to imof the bar of the first circuit in behalf of a pose the punishment provided by law, is practice of mitigating or pretermitting, judicial, and it is equally to be conceded when deemed necessary, the statutory pun- that, in exerting the powers vested in them ishment for crimes, which it is declared has on such subject, courts inherently possess prevailed in the United States courts in ample right to exercise reasonable, that is, that circuit for many years.

judicial, discretion to enable them to wisely The argument on behalf of the respond- exert their authority. But these concessions ent concedes that the order of suspension afford no ground for the contention as to was permanent, and absolutely removed the power here made, since it must rest upon accused from the operation of the punish the proposition that the power to enforce ment provided by the statute; and it is fur- begets inherently a discretion to permanentther conceded that a suspension of this char- ly refuse to do so. And the effect of the acter was the equivalent of an absolute and proposition urged upon the distribution of permanent refusal to impose, under the powers made by the Constitution will be statute, any sentence whatever. However come apparent when it is observed that inabsolute may be the right thus asserted, it disputable also is it that the authority to is nevertheless said it is not without limita- define and fix the punishment for crime tion, since it may not be capriciously called is legislative, and includes the right in into play. Passing the question whether advance to bring within judicial discretion this assumed restriction is not in the na- for the purpose of executing the statute ture of things imaginary as the result of elements of consideration which would be the scope of the authority asserted, let us otherwise beyond the scope of judicial au-, come to dispose of the contention made by thority, and that the right to relieve from examining the propositions relied upon to the punishment fixed by law and ascertained sustain it.

according to the methods by it provided, beThey are: 1. That the right to refuse to longs to the executive department. impose sentence fixed ly statute, or to The proposition might well be left with refuse to execute such a sentence when im- the demonstration which results from these posed, is a discretion inhering in the ju- considerations, but the disregard of the Condicial power to try and punish violations stitution which would result 'from sustainof the criminal law. 2. That even if there ing the proposition is made, if possible, be doubt on this subject as an original prop- plainer by considering that, if it be that osition, such doubt is dispelled as the right the plain legislative command fixing a spewas recognized and frequently exerted at cific punishment for crime is subject to be common law. 3. That the power claimed permanently set aside by an implied judicial has also been recognized by decisions of power upon considerations extraneous to state courts and of United States courts of the legality of the conviction, it would seem criginal jurisdiction to such an extent that necessarily to follow that there could be the doctrine is now to be considered as not likewise implied a discretionary authority open to controversy. 4. That whatever may to permanently refuse to try a criminal be the possibility of dispute as to this last charge because of the conclusion that a parview, at least it cannot be denied that in ticular act made criminal by law ought not both the state and Federal courts, over a to be treated as criminal. And thus it would very long period of time, the power here as- come to pass that the possession by the serted has been exercised, often with the judicial department of power to permanentexpress, and constantly with the tacit, ly refuse to enforce a law would result in approval of the administrative officers of the destruction of the conceded powers of the state and Federal governments, and has the other departments, and hence leave no been also tacitly recognized by the inaction law to be enforced. of the legislative department during the long time the practice has prevailed, to 2. The contention as to support for the such an extent that the authority claimed

proposition at common law. has in practice become a part of the ad- The common law is thus stated in Hale's ministration of criminal law, both state Pleas of the Crown, vol. 2, chap. 58, p. and Federal, not subject to be now ques. | 412: tioned or overthrown because of mere doubts

“Reprieves or stays of judgment or exeof the theoretical accuracy of the concep-cution are of three kinds, viz.: tions upon which it is founded.

“I. Ex mandato regis. 1. The contention as to inherent judicial judge reprieves before judgment, as where

"II. Ex arbitrio judicis. Sometimes the power.

he is not satisfied with the verdict, or the Indisputably under constitutional evidence is uncertain, or the indictment insystem the right to try offenses against the sufficient, doubtful whether within



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