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behind the rules not apparent upon the face of the transaction the passenger must re to some other remedy for his grievance besides the use of force against the conductor
*." Five years later, in a casel2 where the passenger was ejected because of a defective ticket caused by the mistake of the agent, recovery was allowed, but chiefly because of the fact that the conductor knew the rights of the passenger under the defective ticket, the court distinguishing the case from the Monnier case upon that ground. Although there are some decisions of the lower courts which seem to tend toward the rule of the principal case, 13 still the above decisions of the highest court indicate that the rule in this state is to contrary.
Logically, it would seem that where the fault of the carrier's agent is the cause of the passenger's predicament in having a defective ticket, he ought to be allowed to stand upon his rights as a lawful passenger. It is one thing to allow a company to make reasonable rules for the operation of its road, and another to require compliance therewith when such compliance is made impossible by the carrier itself. The only justification of the contrary rule is that it is practical and necessary for the efficient management and control of railroads. Either rule is bound to cause loss and inconvenience to the carrier or the passenger, but it is submitted that the carrier, inasmuch as it is the cause of the mistake, should bear the inconvenience rather than the passenger.
W. J. Gilleran, '18.
Choses in Action: Assignment of part of a single cause of action.In Carvill v. Mirror Films, Inc., 178 App. Div. (N. Y.) 644 (1917), the defendant contracted to employ the plaintiff for a period of one year. After the plaintiff had worked for three weeks, for which he had received compensation, the defendant discharged him without cause. Thereupon the plaintiff assigned to one Jones, all the damages which have accrued to me or may accrue up to March 6, 1916, (a period of six weeks) reserving to myself all damages which may accrue after said date." In the case at hand the defendant set up the assignment to Jones and the recovery by him in the Municipal Court of New York of $600. Judgment was rendered in favor of the defendant on the ground that there can be but one suit upon a single cause of action and a party cannot by assignment give the right to others to sue severally for their shares.
Generally the common law courts have refused to recognize the validity of the partial assignment of a chose in action made without the assent of the debtor thereto,' for the reason that it is the right of the debtor to pay his debt in solido, and not to be harassed by a series of actions on the same obligation.
On the other hand, equity does not ordinarily recognize as an objection, the fact that part only of an entire demand has been made
12Parish v. Ulster & Delaware R. R. Co., 192 N. Y. 353 (1908).
13 Elliott v. New York Central & H. R. R. R. Co., 53 Hun (N. Y.) 78 (1889); Buck v. Webb, 58 Hun (N. Y.) 185 (1890); Townsend v. N. Y.C. & H.R.R. Ř. Co., 6 T. & C. (N. Y.) 495 (1875). "Potter v. Gronbeck, 117 Ill
. 404 (1886); VanSchoick v. VanSchoick, 76 N. J. L. 242 (1908); Gibson v. Cooke, 20 Pick. (Mass.) 15 (1838).
the subject of an assignment, even though the debtor has not given his consent, the courts of equity having the power to compel all necessary parties to be brought into court, that the status of all may be determined in a single action.
It may well be doubted, however, that even in equity, the assignor would be deemed an indispensable party, if to make him a party were impossible, as for instance, where he is beyond the jurisdiction of the court, or to make him a party would defeat the jurisdiction of the court, equity having under similar circumstances dispensed with the presence of one whose presence would be required if practicable to bring him in.:
In the so-called “code states' whether the enforcement of the partial assignment were at law or equity would seem to be material only as bearing on (1) the method of trial, that is, whether before the court or before a jury, (2) whether the suit could be maintained in a court having no equitable jurisdiction, for example, a municipal court, and (3) the essential parties to the litigation.
If equity can dispense with the presence of the assignor, where his presence is impossible to obtain or would defeat the jurisdiction of the court, it would seem that the same might be done under the code and the Municipal Court of New York might proceed to judgment without the assignor being a party and without affecting his rights. If it is impossible to regard it as an action at law, the Municipal Court should not entertain jurisdiction.
In the principal case, the majority of the court held that the debtor could not be deemed to have waived his right to have the obligation the subject of one action only inasmuch as the Municipal Court is without equitable jurisdiction, the pleadings in the case were oral, and it did not appear until the trial that the assignment had been partial. These facts cannot, however, change the true character of the assignment and when it appears on the trial to have been partial, the court should refuse to proceed, or if it does not appear, it will be the fault of the defendant. It does not seem that the plaintiff who has not been a party to any vexatious litigation should have his rights prejudiced by the failure of the defendant to ascertain the extent of the assignment or by the failure of the court and the parties to that suit to comprehend the limited jurisdiction of the court. And at any rate, it is difficult to understand how any judgment of the Municipal Court can be held to determine the character of the assignment as legal and therefore entire, and bind the assignor in his absence through a failure to join him as a party.
The rule that there can be but one action on an entire obligation is for the benefit of the debtor and may be waived by him. It would seem that the debtor had waived it in the Municipal Court by his failing to point out that the assignment was partial. As he would certainly know on trial, it seems a weak argument to say that, as the pleadings were oral, he could not know that the assignment was partial.
Olive J. Schmidt, '18. Kingsbury v. Burrill, 151 Mass. 199_(1890); Bank of Harlem v. Bayonne et al., 48 N. J. Eq. 246 (1891); Peugh v. Porter, 112 U. S. 737 (1885).
'Payne v. Hook, 7 Wall. (U. S.) 425 (1868); Chadbourne et al. v. Coe, 51 Fed. 479 (1892). (Fourth National Bank v. Noonan, 14 Mo. App. 243 (1884).
Constitutional Law: Fourteenth Amendment: Segregation ordinances.-By unanimous decision, the United States Supreme Court held the Negro Segregation Ordinance of the City of Louisville unconstitutional in the case of Buchanan v. Warley, decided November 5th, 1917, and not yet reported. The ordinance sets forth that it was adopted "to prevent conflict and ill-feeling between the white and colored races,
to preserve the public peace and promote the general welfare
and it provides inter alia that it shall be "unlawful for any colored person to move into and occupy as a residence, place of abode, or to establish and maintain as a place of public assembly any house upon any block upon which a greater number of houses are occupied as residences, places of abode, or places of assembly by white people than are occupied as residences, places of abode, or places of assembly by colored people.” By section 2 white persons are in like manner forbidden to move into a colored block. Section 4 contains a saving clause for interests vested at the time of approval of the ordinance, and for all negro servants in white families. Buchanan, a white man sued for specific performance of a contract for the sale of real estate situated in the city. The defendant had agreed to purchase it, however, upon the express condition that he be able to use it for residential purposes. The defendant by way of answer, pleaded that he was a colored man and that the property in question was situated in a white block, which would preclude him from using it for residential purposes as stipulated. The plaintiff replied putting the constitutionality of the ordinance in issue by alleging that it violated the Fourteenth Amendment of the Federal Constitution, in that it was a deprivation of his private property without due process of law. The United States Supreme Court, reversing the decision of the Supreme Court of Kentucky, construing the ordinance to be a reasonable and salutary exercise of the police power, held that its effect"was to destroy the right of the individual to acquire, enjoy and dispose of his property," without due process of law.
Laws enforcing segregation of persons and businesses on the ground that they tend seriously to menace the public health, safety or morals, have been upheld in a number of cases. Thus persons having contagious diseases may be segregated under our quarantine laws, and houses of ill-fame may be restricted to certain districts. Thus laundries may be excluded from the residential districts;5 slaughter houses, and fertilizing plants? kept entirely out of the city; cow stables and dairies likewise;8 selling liquor may be confined to certain districts;' storing rags may be forbidden in the thickly populated
For a history and discussion of Segregation ordinances, see in Col. L. R. 24, 3 Va. L. R. 304, and i Va. L. Reg. (N. S.) 330.
2Buchanan v. Warley, 165 Ky. 559 (1915).
*Ex parte, Quong Wo, 161 Cal. 220 (1911); In re Hang Kai, 69 Cal. 149 (1886); Barbier v. Connolly, 113 U. S. 27 (1885).
"Cronin v. People, 82 N. Y. 318 (1880).
areas;10 farming prohibited within city limits;11 and in Idaho sheep grazing is forbidden within two miles of a house. 12
Furthermore, certain legislation based upon the distinction between whites and blacks, where there is no discrimination between the two races, has been upheld. Thus negroes may be compelled to occupy separate coaches or compartments on the vehicles of common carriers, (“Jim Crow Laws"')13 or to attend separate schools, 14 there being no vested right to ride on any particular part of the carrier's vehicles or to attend any particular school, as long as equality of accommodation is provided. Any tendency leading to the amalgamation of the races may be discountenanced by legislation.
Segregation has been attempted in several states, and has been variously disposed of. North Carolina has declared such an ordinance void upon the ground that the city had no power under its charter to enact it.15 A Circuit Court of the United States held an ordinance of the city of San Francisco providing that all Chinese within the city should move into a named district, or leave the county, absolutely void, as an arbitrary and illegal enactment.16 Maryland held a Baltimore negro segregation ordinance void in that it interfered with contract obligations and property rights already in existence at the time the ordinance took effect, but held the ordinance otherwise constitutional.17 Virginia upheld such an ordinance as a valid and salutary exercise of the police power.18 Georgia has had some noteworthy experiences in this direction. In 1915, she held the ordinance in issue void on the ground that it forbade a white man to use his own property as his residence, with an intimation that it was beyond the power of the city of Atlanta to enact such an ordinance.19 The city then amended the ordinance so that it was a reproduction of that adopted by the city of Louisville under discussion in the present case. This ordinance was held constitutional in the case of Harden v Atlanta20 (decided August 31, 1917) on the ground that it served to "uphold the integrity of each race, and to prevent conflicts between them resulting from close association," a view in which the Supreme Court of the United States refuses to indulge.
By its decision in the principal case the Supreme Court of the United States evinces a clear determination to hold void and unconstitutional any law whose operation amounts to a deprivation of property, and whose sole basis is that of race difference. Laws segregating the races in cities differ from those segregating the sick, or prostitutes, or those segregating unwholesome businesses, in that segregation in the latter cases is for the protection of health or morals. On the other hand, the court seems to think that the laws segregating the races in cities differ from those segregating the races on railroads or in schools in that segregation in the latter cases does not take the property of those segregated, while in the former it does. The court refused to acquiesce in the proposition that the ordinances in question are for the mutual benefit of the two races, or that they are the solution of problems arising from feelings of race hostility. These ends, the court said, “cannot be promoted by depriving citizens of constitutional rights and privileges.” The ordinance in question was evolved in view of the shortcomings of the previous ordinances, and was made as near proof against attack on constitutional grounds as such legislation can be. It would seem, therefore, that the Supreme Court has definitely put itself on record as opposed to all legislation looking to the segregation of the races in our cities.
10Commonwealth v. Hubley, 172 Mass. 58 (1898). 11Summerville v. Pressley, 33 S. C. 56 (1889). Bacon v. Walker, 204 U.S. 311 (1907); Bown v. Walling, 204 U.S. 320 (1907).
13 Louisville, etc. R. Co. v. Miss., 133 U. S. 587 (1890); Plessy v. Ferguson, 163 U. S. 537 (1896); Chesapeake & O. R. Co. v. Kentucky, 179 U. S. 388 (1900); West Chester & P. R. Co. v. Miles; 55 Pa. 209 (1867).
14 Bertonneau v. Board of Directors, Fed. Ćas. No. 1, 361 (1878); Cory v. Carter, 48 Ind. 327 (1874); People v. Gallagher, 93 N. Y. 438 (1883).
15State v. Darnell, 166 N. C. 300 (1914).
W. F. Chapman, '18.
Constitutional Law: Power to prohibit and regulate billboards.Three recent cases, Thomas Cusack Co. v. City of Chicago, 242 U. S. 526 (1917), Gilmartin v. Standish-Barnes Co., 10o Atl. (R. 1.) 394 (1917), and Anderson v. Shackelford, 76 So. (Fla.) 343 (1917), show clearly the law of this country in regard to the right of a municipality to prohibit or regulate billboards. In the first case the United States Supreme Court affirmed the decision of the Illinois Court holding constitutional a municipal ordinance providing that before any billboard of over twelve square feet in area could be erected in a residential district, the owners of a majority of the frontage on both sides of the street, in the block in which it was desired to erect the board, must consent in writing. In the second case the Rhode Island court held valid an ordinance regulating the size, manner of construction, and location of billboards. In the third case the Florida court held an ordinance regulating billboards to be unconstitutional
These cases are not inconsistent. None of them indicates a departure from the doctrine that a municipality cannot regulate or prohibit billboards simply because they offend the aesthetic and artistic tastes of some members of the community. In Passaic v. Paterson Bill Posting Co., the court said, "Aesthetic considerations are a matter of luxury and indulgence rather than of necessity, and it it necessity alone that justifies the exercise of the police power to take private property without compensation.” This represents the law on the subject throughout the country to-day.
In the Cusack case there was evidence that the object of the ordinance was to protect the public health, safety, and morals. It appeared that the legislation was entirely reasonable and calculated to attain the desired object. The same is true of the Gilmartin case. It was wholly upon this ground and not upon any aesthetic considerations that the ordinances were sustained as valid. In the Anderson
1267 Ill. 344 (1915).