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Central Law Journal.
challenged power to represent the nation
in controversies with foreign powers; and ST. LOUIS, MO., MARCH 26, 1920. his power to make treaties restricted only
by the necessity of securing the concurSHOULD THE EXECUTIVE POWER BE
rence of the Senate. He contrasts these SEPARATED FROM THE OFFICE OF PRESIDENT AND MADE RESPONSIBLE
powers with the powers of the King of TO CONGRESS?
England, who is an executive without ex
ecutive power. On this important point of The Canadian Law Times (March, the separation of the executive powers 1920) charges that the United States is an from the executive the writer says: Autocracy and not a Democracy because all "The executive officers are always in executive power is placed in the hands of
| either one House or the other, and they are the President. While using President Wil
open to interrogative enquiries in relation
to their several departments—the Army, the son as a "bad example” the writer disclaims
· Navy, Foreign, Colonial and Domestic Afany intention to attack the President per- fairs; and the Premier of the day as the sonally but, on the contrary, concedes that acknowledged head of all is specially under he is a man of exceptional ability. He con- | obligation to make declaration to the House tends, however, that our Constitution, by
in which he is of anything involving the
Peace of the Kingdom or its war with any giving such great and uncontrolled powers
other Nation. A vote of the House of to the chief executive makes it impossible
Commons hostile to any act done by an into place the United States in the category dividual minister will cause him to resign ; of democracies.
and a vote of the House hostile to any In only one respect may Great Britain
avowed policy of the Government on a mat
ter of moment causes the resignation of the claim any advantage, if it be an advantage,
Executive Government; and a general elecin respect of its form of government over tion which is not long to follow this, is the that of the United States and that is in inevitable vox populi—the final decree of separating the executive power from the the people for or against the policy proexecutive or sovereign himself, making the
posed.” is former answerable to Parliament and the
We are frank to acknowledge the belatter the mere figure head of national
lief that if the Constitution of the cab power. “The sovereign of the British
United States had been made in the light Ara "Isles," says the writer, "for years has been
of the political knowledge we enjoy today, ay, a great assenting functionary to the delib
there would have been some provision for ing arate acts of the Legislative and Executive
making the executive power responsible to sns, departments of the Government. The Judi
Congress. Such a plan would have avoided ple, tiary is pre-eminently independent both of
the not infrequent and deplorable controTheSovereigns and of Factions; and the Execu
versies between the President and Con100 sive, not the Sovereign, declares war and
gress which not only have cast discredit Avnakes peace, and all international Treaties.
on the authority of both these high functake his is the complete effacement of the "one
tionaries of government but have paranotian element” of government, and the final lyzed governmental action by the ridicuWethronement of autocracy whether it be in
lous deadlocks that have resulted. wil King or a Premier."
The present deadlock over the Peace kem. The writer then goes on to call attention Treaty is only one example of the failure ecifio the attributes of autocratic power which definitely to fix responsibility for the mak52. Inder the Constitution attach to the office ing of treaties. Complaint has been made amf President. He cites the exercise by the that the Senate should have been consulted ad'President, in his own right, of all executive in the making of the Peace Treaty. We
and military power without check of any | coincide with that opinion as a matter of t. kind; his power to veto legislature; his un- abstract principle; but no provision exists
in our Constitution that would have even after the American government was formed justified the President in seeking the opin- | nor did the idea occur, so far as we are ion of the Senate in advance. Since the able to learn, to the framers of the ConPresident is in no sense responsible to the stitution. This is evident by HamilSenate for his actions, the latter might very ton's paper in the Federalist (LXIX) properly have declined to enter in advance wherein he compares the power of the King into any partnership arrangement with him of England with that of the President down in the making of a treaty. If, however, the to the minutest detail. He shows how the treaty making power had been confided to powers of the king were transferred to the a Premier or Secretary of State responsible President, curtailed, however, in many parto the Senate and not to the President, the ticulars so as to give to each department making of a treaty would have been free | of the new government a more equal share from the embarrassments that have inter- in its administration. In defending the fered with the making of the present treaty. veto power of the President in comparison Neither the President nor the Senate are with the power of the British monarch, to blame for the present unfortunate situa- | Hamilton says: tion, but rather the provision for the divi-| “The King of Great Britain, on his part. sion of the treaty making power between has an absolute negative upon the acts of with no method provided to determine dif the two houses of Parliament. The disuse ferences of opinion except by the surrender, of that power for a considerable time does on the part of either of the joint donees of
not affect the reality of its existence; and is
to be ascribed wholly to the crown's having the power, of their convictions in the mat
found the means of substituting influence ter.
to authority.” When the Constitution was framed there
On the subject of the treaty making were in existence no other republics, whose
power the framers of the Constitution form of government afforded any feasible
again followed their British “model” simply pattern for the government which the
restricting the exercise of the power. framers of the Constitution desired to set
They had no idea of a treaty making power up. It is said that the framers of the Con
confided to a responsible ministry for stitution were under the influence of Mon
Hamilton again says (ib.): tesquieu and other political philosophers of the 18th century, but their real model
| "Every jurist of Great Britain knows, as was the English Constitution itself as it
an established fact, that the prerogative of
making treaties exists in the crown in its existed in the time of George III. This
utmost plenitude; and that the compacts is clearly proven by the declaration of
entered into by the royal authority have Madison in the Federalist (Law, Ed., Vol. the most complete legal validity and perI, p. 330) that “Montesquieu viewed the fection, independent of any other sancConstitution of England as the standard, or to use his own expression, as the mirror of It is clear, therefore, that the framers political liberty.” Madison, in that same of the Constitution were governed in their letter, compares the philosophy of Montes- work_largely by Montesquieu's philosquieu with the existing British institutions ophy and his high regard for and close and then points out how nearly the framers analysis of the British Constitution as it of the Constitution followed the British then existed. Their main purpose was to model.
divide the powers of government into the It must be borne in mind that the idea three parts which Montesquieu regarded of separating the Executive Power from as essential to any republican form of govthe Executive and making the former re ernment and to keep these three co-ordinate sponsible to the legislature did not take reservoirs of power as independent of each concrete form in England until many years other as possible. The idea of separating the
Executive Powers from the Executive. So I not make the companies insuring against leak. as to put these powers, without putting the
age liable for losses that should properly come
within the purview of a fire policy or, on the Executive, under the control of the legisla
other hand, be properly compensated for under ture was a further development of the
a tornado policy. English Constitution which probably never
In the policy in this case the company propoccurred to the makers of the Constitution.
erly bound itself under the general obligation This idea of a responsible ministry is not “to pay indemnity for all direct loss or damwithout many distinct and clear advantages, age by sprinkler leakage, except as hereinand it is a matter of note that practically i
after provided." Every counselor knows that
it is better to state the obligation of a con. every new government formed in the last
tract or general terms with exceptions than to one hundred years has followed the Eng
state the exact extent of the obligations in lish Constitution in this respect rather than
detail. the American Constitution.
Among the seven exceptions to the contract were two which placed the liability of the insurer for losses midway between catagories cov
ered by fire and tornado policies. They were NOTES OF IMPORTANT DECISIONS. as follows:
"Nor for loss resulting from the leakage of
water, if such leakage is caused directly or MAKING A CONTRACT FOR INSURANCE
indirectly by fire.” COMPANIES IN THE INTEREST OF THE
"Nor for loss caused by lightning (whether INSCRED.-We hold no brief for insurance
fire ensues or not), cyclone, tornado, windcompanies. We are well aware of the shrewd.
storm, earthquake, explosion, or blasting.” ness and care with which well-paid and com
It is quite evident that if a fire broke out in petent counsel prepare every clause in the
such a building the sprinkler system might very policy. We also know that for that reason per
probably spring a leak even before the temperahaps and because of the fact that beneficiaries
ture reached the required point and damage are not usually competent themselves to un
goods by water. Such damage is clearly within derstand the conditions of the policies which
the contemplation of the parties to the fire they take out nor able to pay for competent
policy especially since the sprinkler system is advice in respect thereto, it is a rule of con
installed at the suggestion of the fire insurance struction of insurance policies, that, where the
company and for the very purpose of reducing language of the policy is inadequate, construc.
that hazard. tion adopted will be that which is most favorable to the insured,
On the other hand, it is clear that a tornado But conceding all of this we are unable to
might wreck the building, tearing the roof off follow the Appellate Court of Indiana in its un.
and causing the sprinkling system to leak and certain path toward a proper construction of
add greatly to the damages caused by the storm. a sprinkler policy which was the basis of an
This was the state of facts in the principal case, action in the recent case of Maxwell v. Spring.
the petition alleging that “on the 25th day of field Fire Insurance Co., 125 N. E. Rep. 645.
April, 1915, a severe windstorm, cyclone, or Loss from damage due to leakage in sprink.
tornado swept over said city where said factory ler systems installed in large factories, is a
was located; that said storm tore a large part
of the roof from that portion of the factory comparatively new branch of insurance. Such
which is situated on the east side of Eastern systems are installed at the suggestion of fire insurance experts to reduce the hazard of fire.
avenue, and broke the pipes and attachments
of the sprinkler system in the factory, so that In most cases it has introduced another and very serious hazard-loss from leakage. In
the water and mud from the sprinkler pipes
was precipitated and thrown in and upon the these stand pipes water is held under high pressure ready to be released when the tempera.
floors and upon the finished and unfinished ture rises to a certain point when the whole
products, stock, materials, and machinery in
the building, thereby damaging the plaintiff in interior of the building is flooded.
the sum of $21,500. But this is a risk that often falls in between other risks already covered by other insurance To this petition the trial court sustained a and it became the difficult duty of insurance demurrer interposed by the defendant on the counsel to so word these policies that it should 'ground that such loss was not covered by the
policy. On appeal the Appellate Court of In- | pellee 260,000 shares of the appellant's treasury diana took a different view and sent the case stock. The appellee moved to dismiss, on the back for trial on the theory that the leakage ground that since the decree the appellant has was within the purview of the policy and not complied therewith and transferred the stock directly due to the windstorm. On this point to the appellee, and the latter has sold and the Court said:
disposed of the same to a number of purchasers,
who now own the same. "The windstorm tore away a part of the roof of the factory, and broke the pipes and connec
The Circuit Court of Appeals (9th Cir.) detions of the sprinkler system, and that constitutes a loss by windstorm. The extent of that
nied the motion of appellee on the ground that loss could be ascertained by estimating the cost
where the trial Court would not be powerless of restoring the roof, the pipes, and connections. to afford the appellant substantial relief the But the damage to the merchandise caused di
appeal will be heard. The Court contended rectly by the water from the sprinkler system
that on reversal, the court below could give is an entirely different loss. For the purposes of this policy, the wind cannot be regarded as
the appellant adequate relief notwithstanding the direct and immediate cause of that loss, that the shares of stock have been transferred but must be regarded as the indirect and re
tc appellee. The Court said: mote cause thereof, for the reason that the very hazard which makes this species of insurance "The appellant by its affidavit shows that the possible intervened.'
said stock was issued and transferred to the
appellee more than 90 days after the date of the The exception (No. 4) provides in clear terms
decree, and when a supersedeas could not be that the insurance company should not be re
had, and that this was done solely because of sponsible "for loss” caused by lightning, cyclone, duress exercised by the appellee by means of etc. This does not mean loss of any kind but threats to institute contempt proceedings for loss from leakage due to lightning, cyclone, etc.
the appellant's failure to comply with the or
der of the court. There having been no judg. The term “loss" in a policy generally re
ment for costs in the court below, the appellee fers to the character of the loss insured argues that there is no longer a pending conagainst. In a fire policy it is a loss by fire; in a troversy between the parties to the suit. It is sprinkler leakage policy the term, "loss," unless
true that courts do not try academic questions,
where neither party will be affected by the reotherwise defined, refers to loss by sprinkler
sult; but by the decided weight of authority it leakage.. In a policy of the latter kind the is established that compliance with the judg. company insures generally against all losses ment or decree of a court by payment or perfrom leakage except losses from leakage occur
formance 'is no bar to an appeal or writ of
error for its reversal, particularly where repayring in certain specified ways. Otherwise the
ment or restitution may be enforced or the exceptions as to lightning, fire, cyclones, etc., effect of the compliance may be otherwise unwould be as meaningless as if the exceptions
done, in case of a reversal.' 3 C. J. 675." related to wireless telegraphy or to the in. There can be no doubt of the correctness of habitants of the moon. The policy is not the Court's decision in this case. Sometimes concerned with losses other than those due to | a losing party is confronted with the alternasprinkler leakage. To construe the exceptions tive of complying with the judgment of the as referring to losses in no sense within the Court or giving a supersedeas bond, if he apgeneral scope of the policy and denying their peals, so large in amount as to be prohibitive. application to situations they were evidently If compliance with the Court's judgment predesigned to cover is to make a new contract vented an appeal, not a few losing parties for the parties.
might be deprived of this valuable right. In
Dakota County v. Glidden, 113 U. S. 222, 5 Sup. IS LOSING PARTY IN A CASE ESTOPPED
Ct. Rep. 428, the Supreme Court of the United TO APPEAL BY COMPLIANCE WITH JUDG
States states the rule as follows: MENT?-It has not infrequently been declared “There can be no question that a debtor that if a money judgment is paid or an order
against whom a judgment for money is recovor decree complied with, there is an end of
éred may pay that judgment and bring a writ
of error to reverse it, and if reversed can rethe proceeding. But it has been held in a re
cover back his money, and a defendant in an cent case that the losing party can pay a judg action of ejectment may bring a writ of error, ment or comply with a decree and yet appeal
and, failing to give a supersedeas bond, may
submit to the judgment by giving possession his case. Josevig-Kennecott Copper Co. v. Ho
of the land, which he can recover, it he re warth Co., 261 Fed. Rep. 567.
verses the judgment, by means of a writ of In this case the appellee in a suit against restitution. In both these cases the defendant the appellant and its trustees for the specific
has merely submitted to perform the judgment
of the court, and has not thereby lost his right performance of a contract, obtained a decree
to seek a reversal of that judgment by writ requiring the appellant to transfer to the ap- l of error or appeal.”
PROOF OF SUICIDE IN ACTION ON "Arnold was in a quite hopeless financial INSURANCE POLICY.
position. Enjoying a salary of $14,000 a year, he owed at the time of his death about $1,000,000 which he had not the faintest
chance of repaying. But, further, it was A clause providing that the assurance
not a case of simple indebtedness. He had company shall not be liable if the assured been guilty of a long course of embezzlecommits suicide within a specified period ment in his position as managing director is a common one in policies of life assur
of the Dominion Trust Company. As he ance, and if a claim is made under such a
had confessed about a fortnight before to
Hodges, the government inspector, who had policy the company must resist payment
been sent to investigate the affairs of the on the ground of suicide, if it wishes to
company, he had committed crimes for rely on that defense.
which he was liable to be sent to the peni
tentiary. He was on the brink of exposure When such a case comes to trial the and disgrace as well as of irretrievable Court must decide whether the evidence financial ruin. He had made an appointis sufficient to prove suicide or not, and in
ment on the day on which his death octhis connection the case of Dominion Trust
curred to meet Hodges, in order to give
explanations and exhibit securities. He Company vs. N. Y. Life Insurance Com
knew that the result of such examination pany, decided by the Privy Council and
would be to confirm what Hodges already just reported in the Canadian Law reports, knew, and he knew that the presentation is of vital importance, as insurance totalling of Hodges' report to the government au$170,000 was involved, and the highest thorities meant the end so far as he was court in the British Empire lays down
concerned. The counsel for the Trust
Company was very anxious to demonsome important principles governing cases
strate that there was no particular diswhere suicide is sought to be proved. closure which on that particular day he
had to dread—that Hodges knew the worst In this case W. R. Arnold of Vancouver,
already. That, however, is not the point. Canada, died from a gunshot wound, either The point is that the end was approaching, accidental or self-inflicted, on October 12, and was even nearer as Hodges' investiga1914, and less than a fortnight before he tion proceeded and the time for sending in had taken out $100,000 insurance in the N.
his report drew nigh. Further he was in
absolute want of ready money. He owed Y. Life Insurance Company. He also car
small sums right and left, and he had no ried $50,000 in the Mutual Life of Canada,
more than a few dollars in his bank acplaced in November, 1912, and $10,000 in count. In the whole circumstances, if ever the Sovereign Life, taken out in October, there can be said to be motive for self1912.
destruction, such motive was present in this
case." All these policies contained the usual
| Although the above quotation is a strong clause exempting the company from lia
one, Lord Dunedin goes on to point out bility if the assured committed suicide
that "motive, however, can never be of
that.cmotive he within two years from the date of the
itself sufficient. The utmost that it can do policy, and the three companies named re
is destroy or attenuate the inference drawn sisted payment on the ground that Arnold from the experience of mankind that selfhad, in fact, died by his own hand on the
destruction being contrary to human in12th day of October, 1914.
stincts is unlikely to have occurred. The First of all, the insurance companies at
proof of suicide must be sought in the cirtempted to prove, and did prove, a strong
cumstances of the death." motive for suicide on Arnold's part. Lord Coming to the circumstances of Arnold's Dunedin, in delivering the judgment of the death, it appeared that “Arnold had a small Privy Council, refers to the evidence of | country ranch. He was not a sportsman, motive in the following words:
| and had no experience of shooting nor any