Central Law Journal.

ST. LOUIS, MO., MAY 19, 1916.

EXERCISE OF RIGHT OF EMINENT DOMAIN OVER PUBLIC LANDS OF THE UNITED STATES.

In Utah Power & Light Co. v. United States, 230 Fed. 328, decided by Eighth Circuit Court of Appeals, there is incidental, if not necessary, discussion of the question, whether under a State statute, generally speaking, any part of the land of the United States in its public lands is subject to the power of eminent domain, and, particularly, whether provisions of the enabling act of a State disclaiming for its people all right or title in such land avoids the exercise of such right, if it otherwise exists.

Van Valkenburg, D. J., says: "It is true that in some of the earlier decisions the validity of the exercise of the right of eminent domain by a State over the lands of the United States has received apparent recognition." Citation of these earlier decisions shows many circuit court cases and one Supreme Court case.

Proceeding, he says: "This view is predicated upon the assumption that while the government lands are not held or reserved for specified national purposes, the United States occupies the position of a mere individual proprietor with rights and remedies neither less nor greater. An examination of the cases cited, however, discloses that the peculiar facts with which they dealt, and the later cases leave little doubt that the Supreme Court has not recognized and will not recognize, the limited control of Congress over the territory and property belonging to the United States, for which defendant contends. The public lands of the United States are held by it, not as an ordinary individual proprietor, but in trust for all the people of all the States, to pay debts and provide for the common defense and general welfare under the express term of the Constitution itself. ***Congress has the exclusive right to control and dispose of them, and no State can interfere with this right or embarass its exercise." Here are cited several Supreme Court cases.

This reasoning, based on "the express terms of the Constitution," it is apparent, could have been as effectually employed when these early decisions were rendered

as at this date, and it would have been greatly more illuminating to look to the peculiar facts one, at least, of these decisions took into consideration than to cite later cases in which there only could be claimed an argumentative inconsistency.

For example, it is said the United States "does not and cannot hold property as a monarch may, for private or personal uses, and it can prohibit absolutely or fix the terms on which its property may be used, and it holds land in trust," etc., etc., for all of which appropriate decision is cited. But to what do all of these comprehensive general statements come, if a single infacts connected with it, the exercise of the stance, no matter what were the peculiar right of eminent domain over such property has been recognized by our Supreme Court? The only peculiar facts that could exist are subordinate to the all-embracing power of the United States.

If that power recognizes in a single instance the right by the state to condemn land owned by itself, it recognizes permissive domination by the state, so far as public uses are concerned.

Furthermore, what has the holding in trust to do with this question? If not to hold in trust subjects the property to exercise of the right of eminent domain, surely what is held for one cestui que trust does not escape this power.

It may be said this holding in trust is for a public purpose. In other words, holding for some of the people as cestuis is not for a public purpose, but holding for such of all of them as wish to acquire the land is a holding for a public purpose. We do not believe this to be true, because, if each one after he acquires a portion of such land makes it subject to the exercise of the right of eminent domain, his right to acquire ought likewise to be so subject. This is but a sort of franchise in each one of us in land and it has long been held that a franchise in land is as subject to the right of eminent domain as is the land in which it exists.

As to the other branch of the query suggested, we think it apparent that provisions

of enabling acts of the character suggested cannot fairly be construed as meaning, that any different rule could have been contemplated in states with such acts than obtains in other states. The fact that the government holds title to such lands in trust not for residents of a particular state but for those of all the states, shows this to be true.

The learned judge held, however, that both generally and in Utah particularly, public land is not subject to be taken under the right of eminent domain under a State statute.

NOTES OF IMPORTANT DECISIONS.

DIVORCE-GRANTABLE

WHERE MARRIAGE WAS ENTERED INTO FOR CONVENIENCE.-In Spady v. Spady, 155 Pac. 169, decided by Oregon Supreme Court, the husband brought suit and there was crimination and recrimination, the wife filing a cross-bill of which the court observes that "the most important part is her allegation about his realty and personal property and her demand for alimony."

The court then goes on to say: "It is of no moment that we recite the testimony, although it has been carefully read. It is enough to say that it is apparent that the plaintiff wanted a housekeeper and that defendant wanted not only a home, but a considerable part of the plaintiff's property. This, taken together with the friction between the defendant and the children constitutes the real essence of the case. Neither party is without fault. The case presents no equitable aspect. The marriage contract ought not to be degraded to the level of a mere barter nor rescinded as one would a sharp trade of scrub horses. The proper solution of the case is that neither party is entitled to relief."

How greatly could not such a remark about degradation of the marriage contract find occasion for application in suits for divorce that come before the court? Ought not all "trial marriages" receive the sort of disposition this case received? And when we reach this point ought not the principle to be extended so that the same inviolability should be fastened on marriage, in the interest of society, where it is deliberately entered into? Especially is this not true when children come into the relation and have rights, which civilization

should protect notwithstanding the inconvenience, disappointment or even abject misery of the principals to the contract? Ought not a married couple seeking a divorce be required to show and by other testimony than their own, as a condition of a decree for divorce being granted, that this looks to the interest and not to the detriment of offspring?

BANKRUPTCY-DAMAGES FROM ANTICIPATORY BREACH OF CONTRACT PROVABLE AGAINST BANKRUPT.-In Central Trust Co. v. Chicago Auditorium Co., 36 Sup. Ct. 412, it is said: "Whether the intervention of bankruptcy constitutes such a (anticipatory) breach (of a contract) and gives rise to a claim provable in *** bankruptcy proceedings is a question not covered by any previous decision of this court and upon which the other Federal courts are in conflict."

In answer to the contention that such a breach must "result from the voluntary act of one of the parties and that the filing of an involuntary petition in bankruptcy, with an adjudication thereon, is but the act of the law resulting from an adverse proceeding instituted by creditors," the court said: "Commercial credits are, to a large extent, based upon the reasonable expectation that pending contracts of acknowledged validity will be performed in due course; and the same principle that entitles the promisee to continued willingness entitles him to continued ability on the part of the promisor. In short, it must be deemed an implied term of every contract that the promisor will not permit himself, through insolvency or acts of bankruptcy, to be disabled from making performance; and, in this view, bankruptcy proceedings are but the natural and legal consequence of something done or omitted to be done, in violation of his engagement. It is the purpose of the bankruptcy act, generally speaking, to permit all creditors to share in the distribution of the assets of the bankrupt, and to leave the honest debtor thereafter free from liability upon previous obligations."

This last clause implies that, if assets in bankruptcy are not subject to damages from anticipatory breach of contract, the bankrupt then would be liable to suit notwithstanding his discharge in bankruptcy. The exceptions provided for do not, as to all of them, at least, prohibit sharing in such assets. They give the creditor an election. We confess, however, that it is not clear why the court theorizes about expectation in "commercial credits," when if the principle decided is sound at all, it ought to apply to other credits as well.

The court continues thus: "Executory agree

ments play so important a part in the commercial world, that it would lead to most unfortunate results if, by interpreting the act in a narrow sense, persons entitled to performance of such agreements on the part of bankrupts were excluded from participation in bankrupt estates, while the bankrupts themselves, as a necessary corollary, were left still subject to action for non-performance in the future, although without the property or credit often necessary to enable them to perform." Again we suggest that the "commercial world" is not all of the world that the bankruptcy act applies to; and possibly it is not the most important part of that world.

MAKING LAW AND FINDING LAW.

The Recurrence of Legal Problems.— Few things are more impressive to the student of social institutions than the perennial character of the problems which each time is wont to think of as peculiar to itself. A few years ago a German scholar made a minute comparison of the Code of Hammuravi, a Babylonian king of at least the twentieth century B. C., and the laws of the Salian Franks, dating from the end of the fifth century or the beginning of the sixth century, A. D. It would be hard. to find two bodies of law more absolutely unrelated in the sense of derivation or influence or two peoples more unlike than the Babylonian of twenty centuries before Christ and the Frank of the fifth century, A. D. And yet their codes are marvelously alike. Point after point is dealt with in precisely the same way; point after point appears alike in each.

Again, in the fourteenth century the great Italian commentator, Bartolus, discussed at some length the question of the conflict of laws which arose with reference to the different statutes of different cities, or rather different city republics in Italy. In the twentieth century the Supreme Court of North Dakota had that identical. question before it, arising between different states of this Union, and although that court probably had never read Bartolus. and very possibly had never even heard of him, the two reached the same conclu

sion, and they reached it by the same line of reasoning.

Apparently there is, some common fundamental element in human nature which calls forth the same jural institutions and gives rise to the same juridical puzzles under the most diverse circumstances and in the most distant times.

The problems of legal history then are recurrent problems; they are perennially recurrent problems. Our own legal history, of our Anglo-American law, is full of illustrations of this recurrence of the same problem under different circumstances and in different forms.

For instance, the making over of the strict law through equity in the sixteenth and seventeenth centuries, the making over of the law again in the eighteenth century through the law merchant, the making over of the law again which is going on to-day through the influence of economic ideas of social justice, are essentially different types of the same phenomenon. The law was made over through equity by the absorption of moral ideas of fifteenth and sixteenth century clergymen; the law was made over in the eighteenth century by the absorption of business ideas through the influence of the merchants of that time: the law is being made over under our eyes to-day through the absorption of ideas of social justice derived from twentieth century social science and economics. And yet, these are essentially the same phenomena. In each case the law for a time had become over-rigid and it attained the necessary measure of flexibility through the absorption of ideas developed outside of the law, contributed by sixteenth century clergymen or eighteenth century merchants or twentieth century economists.

To-day the task of the American lawyer is to make the juridical materials fashioned for pioneer, rural, agricultural America of the nineteenth century into a law for urban, industrial America of the twentieth century. Obviously it is but the same problem in a new form-it is the problem

that will always confront lawyers till the triumph of anarchy or the advent of the millennium do away with the need for law, namely, to shape the rules that have come down to us as a part of the civilization of the past so as to further the civilization of the present. Hence, also, the contest between legal reason and authority, which the process of achieving that task is bringing out, is but illustrating the tendency of legal history to repeat itself. The same contest raged between the great lawyers of the classical American law and those, on the one side, who would worship every jot and tittle of the law in the English books and those on the other side, who would have codified a supposed law of nature. To-day the contest appears superficially one between common law and legislation. But to look at it in this way is to lose its real significance and in so doing to imperil the lawyer's position. It is not conscious making of law that we are to resist. It is rather the setting up of will, merely as will, as the measure of law in the place of reason. So viewed, the contest between what I have ventured to call finding law and making law is but a phase of the perennial contest in social institutions between reason and force as modes of social control.

The Purpose and End of Law.-When to-day, with the experience of the past, with legal history behind us, we try to frame an account of the purpose and end of law in the modern world, I suppose we should say that there are certain interests, social, public and individual, which require to be secured, and that the law is that agency which secures those interests through reliance upon the force of organized political society. But in its beginnings the law was by no means so ambitious. The law by no means in the beginning sought to secure as many of these. interests as it could. The law was brought into being by the exigencies of one single fundamental human interest, the social interest in the preservation of the peace,

peace and order in society, without which civilization is quite impossible. And the whole nature of law, the whole course of legal development, has been shaped by the exigencies of that one interest, which called law originally into being. To primitive society the one great problem was the simple one of keeping the peace, of providing some means whereby controversies might be peaceably adjusted, whereby men might resort to some peaceable arbitration, instead of fighting out their controversies through private war.

In the beginnings of society this compelling disputants to arbitrate is exactly what the law endeavored to do, and all it endeavored to do. In the old Roman lawsuit of the period just before Cicero, there is preserved for us a ceremony which takes us back to the very beginning of the law. If the plaintiff and defendant were contending over a piece of land, a clod from that land was brought before the magistrate. The parties each had in their hands a staff, representing, we are told, a spear. The plaintiff put his staff, or spear, upon the clod and said, "I say that land is mine by legal title." The defendant then put his staff upon the clod and said, “I say by legal title the land is mine." Then the praetor stepped between them with his staff, representing a spear, put it down between them, and said, "Let go, both of you," and the ceremony was gone through, resulting in an arbitration. There was no direct judgment of the law throughout the whole course of the republic of Rome, but every proceeding ended with reference to an arbitrator. Down well into the imperial period, the judge who decided the cause, or rather the arbitrator who decided the cause, sent out for an expert to tell him the law, while he attended to the function of investigating the facts.

We say then that in the beginnings of law all that can be done, all that the law seeks to do, is to induce a peaceable settlement, but, as men will not be satisfied with a decision of causes upon authority, rest

ing upon force rather than upon reason, the next step which the law had to take was to find some principles or standards for decision, so that decisions might be grounded upon reason and not upon force; and from that it was an easy further step to the establishment of general rules of conduct in advance of controversies, by which controversies might be not merely decided but even averted.

The Two Types of Legal Rules.-If we bear this bit of history in mind we see that, first, the law devoted its whole energy to finding simple rules of decision. The modern conception of rules of conduct is one which was evolved as the result of the perfecting of these rules of decision.

These rules of decision, which are also rules of conduct, may be either of two types. They may be rules which are discovered by experience of the adjudication of controversies and are handed down as parts of a traditional body of legal principles, or they may be rules not found in this way but made consciously, rules authoritatively declared, or deliberately made as the will of the political sovereign. And so we have in every developed body of law two elements, in the legal system, an imperative element resting upon the authority of the State, and a traditional element resting upon the experience of the past in the adjudication of controversies. We think commonly of this imperative element as the modern element. But there is a progression from each of these to the other. In time the imperatively enacted rule becomes part of the legal tradition. A gloss of interpretation grows up around it, and it is swallowed by the common law. For example, the old English legislation prior to the Revolution is a part of the common law of this country, as for example, the statute of limitations and the statute of frauds. In like manner in our Western States, the homestead statutes have become practically through their construction and interpretation a part of the common law. On the other hand, as the

traditional element is developed by juristic. science, presently it comes to be declared and formulated authoritatively, as, for example, in our negotiable instruments law or sales act or the new uniform partnership act, which simply codify what has been worked out through judicial experience. We have then in our law these two elements. On the one hand, the traditional element resting originally in the customary modes of decision of causes, but presently developed by judicial experience and by juristic science, until it becomes a scientific body of principles resting, as men believe, upon reason, and having the basis of its authority in conformity to ideals. of right and justice, and, on the other hand, the imperative element, which avowedly rests simply upon the authority of the State.

Let us look for a moment at each of these elements, and at the part which it plays in the administration of justice.

The Traditional Element in the LawIts Disadvantages. And first of the traditional element. The common law has been. praised so often and so justly that I am going to look first at the other side of the picture, because in appraising our legal system for the purposes of the present and the future we must look without prejudice. at both sides of this immemorial tradition. of our common law. And if we look at it critically, I think there are three difficulties in the utilization of a traditional body of law for the future which at once suggest themselves.

The first is a tendency in the traditional part of the law when it comes to be worked over scientifically to an over-abstraction, a tendency to be satisfied, for example, with an abstract liberty, or an abstract equality, to be satisfied if the rules looked at abstractly measure up to these abstract conceptions of liberty and equality, although in their concrete, every-day applications they may as like as not defeat them.

To avoid anything controversial, I am going, by way of illustration, to relate an