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the Appellate Term of the Supreme Court of New York, seems to have taken it for granted that the defendant bank, which was the drawee of the check, and which cashed the check for the payee, was such a holder in due course that the bank could charge the drawer's account according to the original tenor of the check. The plaintiff in the case, an accomodation endorser, who had been charged by the drawee bank for the full amount of the check as raised, was allowed to recover the original amount of the check, he being held liable for the difference between the amount to which it was raised, and the check as originally drawn, under section 55 of the New York Act, which makes an accommodation party liable to a holder for value.

The Missouri court, though declaring that the relationship between a bank and a depositor is ordinarily that of debtor and creditor, holds, nevertheless, that where there are no funds to the credit of the maker, who signed the check in blank, the bank paying the forged paper is to be treated as a bona fide purchaser, and not in the relation of bank to depositor. This decision is based upon the fact that there are no funds to the credit of the maker, and certainly does not go the length of deciding that the bank paying the check of its depositor is, in all cases, a holder in due course.

It is surprising that there is so little authority on the question. The text book writers generally, and writers of notes in annotations to reported cases, as well as judges in their opinions, apparently overlook the specific question. This is in part due to the fact that cases on the subject are rare. People generally seem to have taken it for granted that the Act was intended to allow the drawee bank to charge its depositor with the original amount of the check, failing to notice that by the terms of the Act, the only party who can charge the maker or drawer according to the original tenor of the instrument, is a holder in due course, and that a drawee bank does not readily fall within the definition of a holder in due course contained in the Act. Even the late Dean Ames, in his quite exhaustive criticism of the Negotiable Instruments Act,18 fails to notice this defect in section 205. He approves of the section as a "judicious change for the better," but fails to notice that it hardly seems to cover the case of a drawee bank.

It seems obviously just that the drawee bank should be able to charge the drawer-depositor with the amount of the check according to its original tenor, for this partial protection to the bank is but giving effect to the intention of the drawer, and works no hardship upon him. Perhaps this may be done by giving a strained interpretation to the definition of a holder in due course or it may possibly be effected under the provision of the Act to the effect that "In any case not provided for, in this chapter, the rules of the law merchant shall govern,

,”?19 although in view of the sweeping language used in section 205 it is difficult to say this case is not provided for by the Act. It would seem that really there is here a defect in the statute which should be corrected by amendment.

M. M. Yellen, '18.

17 Allen Grocery Co. v. Bank of Buchanan County, 182 S. W. (Mo.) 777 (1916). 1814 Harv. L. Rev. 241. 19New York Neg. Instr. Law, sec. 7.

Constitutional Law: Delegation of legislative powers. The Optional City Government Lawl of New York was upheld as constitutional in the case of Cleveland v. City of Watertown, 222 N. Y. 159 (1917). The act, passed in 1914, permits any city of the state of the second or third class to adopt, providing a majority of the qualified electors of such city so determine, one of the forms of government set forth, in place of the one existing under its present charter. The city of Watertown, a city of the third class, adopted the commission form of government by a vote of a majority of the electors of the city. A taxpayer's action was brought to procure a judgment declaring the law to be unconstitutional, and to restrain the city of Watertown and its officers from organizing thereunder. It was claimed that the act was an unconstitutional delegation of legislative powers to the voters of the city. The New York Supreme Court decided that the act was unconstitutional because the legislative power was delegated to the voters of the city in violation of the Constitution of the State of New York. It was declared that the act was passed in an uncompleted state, and left to be completed by the discretion of the city council, instead of the discretion of the legislature. The Appellate Division, with a dissenting opinion by one justice, affirmed the decision of the Supreme Court. The Court of Appeals reversed these decisions and upheld the constitutionality of the law. This court argued that there was no delegation of the powers of the legislature, but that the act was complete in itself, and was to take effect only upon the happening of a certain event, namely, the approval of the majority of the voters of the locality.

Our federal and state constitutions establish governments by representatives of the people, and not governments directly by the people. All the powers intrusted to the government, whether state or national, are divided into three departments, the executive, the legislative, and the judicial. The functions of each branch of government are vested in a separate body of public servants, and the separation of powers is a fundamental theory of our government. The legislative power has been placed in the hands of the legislature, and that body has no right to delegate its powers to any other body or authority.

However an exception has been made to this general rule in the case of municipalities with regard to local affairs.? In Eckerson v. City of

1 Laws of New York 1914, ch. 444.
2Cleveland v. City of Watertown, 99 Misc. (N. Y.) 66 (1917).

3"The legislative power of this State shall be vested in the senate and assembly.” Art. III, sec. I, Constitution of the State of New York. *Cleveland v. City of Watertown, 179 App. Div. (N. Y.) 954 (1917).

The Federalist, arts, 47, 48; for sources of this doctrine, see I Montesquieu's Spirit of Laws 174 (Book XI, ch. 6); and I Black. Comm., sec. 146 (Lewis's ed.)

Locke on Civil Government, sec. 142: “The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." Also Kilbourn v. Thompson, 103 U. S. 168 (1880).

Care and control of highways: People v. Kerr, 27 N. Y. 188 (1863); Village of Carthage v. Frederick, 122 N. Y. 268 (1890); People ex rel. Collins v. Ahearn, 193 N. Y.441 (1908); City of Buffalo v. Stevenson, 207 N. Y.258 (1913). Public safety and public health: Metropolitan Board of Health v. Heister, 37 N. Y. 661 (1868); Polinsky v. People, 73 N. Y. 65 (1878); People ex rel. Lieberman v. Vandecarr, 175 N. Y. 440 (1903); City of Rochester v. Macauley-Fien Co., 199 N. Y. 207 (1910); People v. Kaye, 212 N. Y. 407 (1914); Cooley on Constitutional Limitations (7th ed.) 166, with collection of cases from all jurisdictions.


Des Moines, the court said, “We may concede that the lawmaking body of the State is not authorized to submit to a popular vote of the State the question whether or not an act proposed by it shall become a law.

But while this is so, it does not follow by any means that the lawmaking body may not reserve to the electors of a subdivision of the State—included within the intended scope of operation of an act designed to have effect upon local government conditionsthe right to determine on popular vote whether or not they will advantage themselves of the act. If an act in question is complete in itself, and requires nothing further to give it validity as a legislative act, it is not vulnerable to attack on constitutional grounds simply because the limits of its operation are made to depend upon a vote of the people.

Certain governmental and administrative functions which affect the people of the state as a whole may be delegated to a municipal corporation as a state agency, to be exercised within its territorial limits, and the municipality may be empowered to make ordinances upon the subjects thus committed to it, and such ordinances have the force of law within the territorial limits over which their jurisdiction extends. These local option laws are now always upheld.10 Various reasons have been given for their validity. Some are justifiable as police regulations in which it is proper that the local judgment should control.11 And the people of certain localities are peculiarly interested in the particular legislation. They may fairly be supposed more competent to judge of their own needs than any central authority. The reference is reasonable and expedient.

It is generally held that legislation may be enacted to take effect upon a contingency.12 If the act is complete in itself as a law when it leaves the legislature, requiring nothing to give it validity, it is immaterial that its operation may be contingent upon the performance of some condition. But it has been held that the contingency cannot be the vote of the people, as this would be a delegation to the people of legislative powers. 13 The leading New York case on the question of delegation of powers is Barto v. Himrod, decided in 1853. The constitutionality of an act, entitled “An act establishing free schools throughout the state," was involved.14 The act did not purport to be complete upon its face and whether it should ever become

8137 Ia. 452 (1908).
Note 7 Supra; 6 R. C. L. 168, and cases there cited; 12 C. J. 839.

10 People ex rel. Love v. Nally, 49 Cal. 478 (1875); Taylor v. McFadden, 84 Ia. 262 (1892); Stone v. Charlestown, 114 Mass. 214 (1873); Smith v. McCarthy, 56 Pa. 359 (1867); Fallbrook District v. Bradley, 164 U. S. 112 (1896).

11 Erlinger v. Boneau, 51 Ill. 94 (1869); Commonwealth v. Fredericks, 119 Mass. 199 (1875); Bancroft v. Dumas, 21 Vt. 456 (1849).

12Stone v. Charlestown, supra, note 10; Locke's Appeal, 72 Pa. 491 (1873); Field v. Clark, 143 U. S. 649 (1892).

13 Ex parte Wall, 48 Cal. 279 (1874); Weir v. Cram, 37 Ia. 649 (1873); Opinion of the Justices, 160 Mass. 586 (1894); Brodbine v. Inhabitants of Revere, 182 Mass. 598 (1903); State ex rel. Pearson v. Hayes, 61 N. H. 264 (1881); Barto v. Himrod, 8 N. Y. 483 (1853).

14Laws of New York 1849, ch. 140. Certain provisions in it were as follows: “Sec. 10.

The electors shall determine by ballot at the annual election to be held in November next whether this act shall or shall not become a law."

*; and in case a majority of all the votes in the state shall be cast for the new school law, then this act shall become a law

“Sec. 14.

a law was left to the electors of the state to say. In his opinion Ruggles, Ch. J., said:15 “The legislative power in this state is vested by the constitution in the senate and assembly. The power of passing general statutes exists exclusively in the legislative bodies. The exercise of this power by the people in other cases is not expressly and in terms prohibited by the constitution; but it is forbidden by necessary and unavoidable implication. The senate and assembly are the only bodies of men clothed with the power of general legislation.” The act was held unconstitutional because on its face it did not purport to be a law when it came from the hands of the legislature, but was only to become a law in case it should have a majority of the votes of the people in its favor. It was the popular vote which made the law. The legislature merely proposed the law, while the people passed or rejected it. It was legislation by the people.

Before Barto v. Himrod had been decided, two important decisions on the same subject had been made in other states. 16 In Rice v. Foster17 the court said that direct legislation by the people was against the representative system and the republican form of government, and declared that the natural result of submitting laws to popular vote would be to “demolish the whole frame and texture of our representative system of government and prostrate everything to the worst species of tyranny and despotism, the ever varying will of our irresponsible multitude.” To the same effect was Parker v. Commonwealth,18 decided in the same year. There are only two decisions19 upholding the opposite doctrine, while the weight of authority holds that in the absence of express constitutional authorization a legislative act cannot be made contingent upon being accepted by a popular

158 N. Y. 483, 488, 489 (1853).

A short review of the later New York authorities may not prove out of place: In Bank of Rome v. Village of Rome, 18 N. Y. 38 (1858), an act which left to the voters of a locality to determine whether they desired to have the municipality subscribe to the stock of a railroad corporation or not, was held to be constitutional. The constitutionality of similar acts was also upheld in Starin v. Town of Genoa, 23 N. Y.439 (1861), and Bank of Chenango v. Brown, 26 N. Y. 467 (1863). People v. Fire Association of Philadelphia, 92 Ñ. Y. 311 (1883), holds that the legislature might pass statutes to take effect upon the arising of a future contingency. See also Stanton v. Board of Supervisors, 191 N. Y.428 (1908), where the court recognized the difference between enactments pertaining to the whole state and those pertaining to localities. In People ex rel. Unger v. Kennedy, 207 N. Y. 533 (1913), an act of the legislature entitled, “An act to erect the county of the Bronx" was held constitutional, although it contained a provision that the new county should not be formed, and the act should not become effective until a majority of the qualified electors of the territory, out of which the proposed county was to be erected, should vote in favor of it. The court held that the act was complete when it left the legislature, and the fact that it was for the voters to determine whether or not they would accept it, did not make it unconstitutional. Hiscock, J., at page 545, referring to the Barto case, said: "Subsequent decisions have declared that the doctrine of that case should not be pushed beyond the question there involved and that the legislature may pass a statute which is a completed law affecting or conferring rights upon a restricted locality but to become operative only in the event of an affirmative vote by the people of such locality."

16Rice v. Foster, 4 Harr. (Del.) 479 (1847); Parker v. Commonwealth, 6 Pa. 507 (1847).

17 Supra, note 16. 18 Supra, note 16. 19State v. Parker, 26 Vt. 357 (1854); Smith v. Janesville, 26 Wis. 291 (1870).


vote of the state at large.20 The remarks of Holmes, J., in Opinions of the Justices, 21 are interesting:22 “But the question

is whether an act of the Legislature is made unconstitutional by a proviso that, if rejected by the people, it shall not go into effect. If it does go into effect, it does so by the express enactment of the representative body. I agree that the discretion of the legislature is intended to be exercised. I agree that confidence is put in it as an agent. But I think that so much confidence is put in it that it is allowed to exercise its discretion by taking the opinion of its principal, if it thinks that course to be wise."

The legislature is unable to exercise its power over municipal subdivisions of the state without the co-operation of local officers, and in order to facilitate local administration it is necessary to delegate powers with respect to local government to designated agents. The legislature cannot manage all the public interests of a certain locality. If local legislative power may be conferred upon officials of municipal corporations as representatives of the people, why not confer certair: legislative powers upon the electors themselves? As was said in Locke's Appeal,23 "Can anyone distinguish between committing the determining power to the authorities of the district, and to the people of the district? If the power to determine the expediency or necessity of granting licenses to sell liquors in a municipal division, can be committed to a commission, a council, or a court, which no one can dispute, why cannot the people themselves be authorized to determine the same thing?"

The spirit of localized government, by local territorial subdivisions, found early root and growth in the notions of English liberty. It was believed to be essential to freedom. From an early period the local territorial subdivisions of England, such as shires, towns, and parishes, enjoyed a great degree of freedom and were permitted to manage their local affairs. Our ancestors brought these notions with them to this country and they were given an opportunity for free development. These laws are in accordance with the general theory of our government, that all our laws should be made in conformity to the wishes of the people.

William E. Vogel, '19.

Constitutional Law: Due process: Segregation of prostitutes.An ordinance passed by the City of New Orleans provided that after a certain date it would be unlawful for any prostitute or woman notoriously abandoned to lewdness, of the black or colored race, to occupy, inhabit, live, or sleep in any house, room or closet situated outside of prescribed limits. Section 2 of the ordinance provided similarly for those of the white race, with the exception that a different territory was designated for their segregation. În the case of City of New Orleans v. Miller et al, 76 So. (La.) 596 (1917), this ordinance was attacked as outside of the power of the commission council of New

20See note 13, supra. 21 Supra, note 13. 22See his dissenting opinion at page 594. 23772 Pa. 491, 499 (1873).

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