Central Law Journal.

ST. LOUIS, MO., JULY 6, 1917.

DUE PROCESS OF LAW NO PROTECTION AGAINST IMPERFECTION IN JUDICIAL REASONING.

The case of Chicago Life Ins. Co. v. Cherry, 37 Sup. Ct. Rep. 492, appears very suggestive as to the enforcement of the faith and credit clause of the federal Constitution.

Associate Justice Holmes thus states the situation: "This is a suit in Illinois upon a judgment recovered in Tennessee against the insurance companies, plaintiffs in error. They pleaded and set up at the trial that there was no valid service upon them in Tennessee and that the judgment was void. The defendant in error showed in reply, without dispute, that the defense was urged in Tennessee by pleas in abatement; that, upon demurrer to one plea and upon issue joined on the other, the decision was for the plaintiff; and that the judgment was affirmed by the appellate court, and a writ of certiorari was denied Ly the supreme court of that state. The insurance companies say that the present judgment deprives them of their property without due process of law."

The appellate court of Illinois, to which the writ of error in this case was directed, held that, as the issue of jurisdiction over the parties was raised and adjudicated after full hearing in the former case, it could not be reopened in this suit on the judgment. It was said by Justice Holmes, speaking of the holding by the Illinois court, that: "The matter was thought to stand differently from a tacit assumption or mere declaration in the record that the court had jurisdiction." This case was affirmed by the Supreme Court.

The learned justice concedes that a court "cannot conclude all persons interested by

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its mere assertion of its own power, even where its power depends upon a fact and it finds the fact."

He says, however, that: "When the power of the court in all other respects is established, what acts of the defendant shall be deemed a submission to its power is a matter upon which states may differ. If a statute should provide that filing a plea in abatement, or taking the question to a higher court should have that effect, it could not be said to deny due process of law. The defendant would be free to rely upon his defense by letting judgment go by default. lf, without a statute, a court should decide, as we have supposed the statute to enact, it would infringe no rights under the Constitution of the United States."

The justice then speaks of taking a question of jurisdiction to a higher court as also amounting to submission in the lower court, and then, curiously to us, he speaks as follows: "It can be no otherwise when a court so decides as to proceedings in another state. It may be mistaken upon what to it is a matter of fact, the law as to the other state. But a mere mistake of that kind is not a denial of due process of law. Whenever a wrong judgment is entered against a defendant, his property is taken when it should not have been; but whatever the ground may be, if the mistake is not so impossible in a rational administration of justice, it is no more than the imperfection of man, not a denial of constitutional rights. The decision of the Illinois court, right or wrong, was not such a denial."

It is a little difficult to say upon what particular principle this case was ruled. It may be true that the filing of a plea in abatement in the Tennessee court could be held, under express statutory provision, at least, to amount to a personal appearance. If so, what is said about appeal to a higher court in that state is of no importance. If the party decided against had not appealed, the ruling was by a court having a right to pass upon that question,

Also it may be true, that, if there were no statute providing about the effect, as submitting to jurisdiction, of the filing of such a plea, the common law or the code system of Tennessee might give the answer, and in either event the ruling of the state court might be conclusive. Such ruling should be as well respected under the faith and credit clause of the Constitution as were it under express statute. The judgment entered would be, in either case, according to regular procedure in the state where rendered.

Further, it might be said, that, if there were any federal constitutional question raised, this was in Tennessee and not in Illinois. It was justiciable and when the Tennessee courts were through with the case the losing party waived his rights by not suing out a writ of error to the Tennessee jurisdiction. The plaintiff takes that judgment, undoubtedly valid and enforceable in Tennessee, and sues on it in Illinois, and defendant, waiving, as said, his rights, attempts to set them up in Illinois.

Justice Holmes then speaks as to the Illinois ruling in the way above shown, and then adds that: "If the Tennessee judgment had been declared void in Illinois, this court might have been called upon to decide whether it had been given due faith and credit. But a decision upholding it upon the ground taken in the present case does not require us to review the Tennessee decision or to go further than we have gone."

Here it would seem, that all of the reasoning about the intrinsic validity of the Tennessee judgment goes for naught and the necessity of saying whether it was sound reasoning or not is obviated by declaring that there was a justiciable question before the Illinois court on this subject.

This does not seem to us true, because the other state predicated its ruling on whether it was bound or not to say the foreign judgment came under constitutional protection. The answer would be a square

yes or no. If the reasoning leading to either conclusion was wrong, it was not to be excused, because it was not grossly wrong.

And this is true for another reason. The Illinois court was passing on a question as to which the law ought to be absolutely harmonious in every state. One state judge should not be permitted to argue ably to a wrong conclusion and have his ruling sustained any more than one arguing ill to a right conclusion should be liable to have that set aside. "Rational administration of justice" as to such a question means logical administration and nothing else. There is no discretion in state judges in decision of a federal question.

NOTES OF IMPORTANT DECISIONS.

TO

DIVORCE-INDEPENDENT COUNSEL TO REPRESENT CHILDREN OF PARTIES SUIT. In 76 Cent. L. J. 109, an editorial treated The Unconsidered Relation of Children to the Marriage Status of Their Parents. Therein it was urged that in every divorce suit where there are children, counsel should be appointed to represent their interests, and that courts should grant no decree of divorce unless their welfare probably would be subserved thereby. This view subordinates the rights of parents to those of offspring.

In Sweeney v. Sweeney, 162 N. W. 1015, decided by Michigan Supreme Court, it is not directly held, that the rule should be as drastically applied as was urged, but we find the court remanding a divorce case upon a question of custody of children.

The question was of modifying the decree in respect to custody of children, not of granting the divorce. The court said: "We are impressed that this controversy should not be finally disposed of until the minor children are properly represented by the prosecuting attor ney appearing in their behalf under the statute which authorizes such action and requires service of process upon the prosecuting attorney where there are minor children. Whether his appearance was entered in this case in its inception we are not advised. It is not shown that a copy of this petition was served upon him. The purpose and spirit of the statute is

that, in the public interest and for the welfare of the children, the court shall have the independent aid of disinterested counsel, impartial between the contending parents, to investigate the facts and present to the court the true situation, so far as the best interests of the children are concerned. The record presents a situation where the services of the prosecuting attorney, who could independently investigate the facts and impartially present them to the court, would be particularly helpful." Therefore, the case was sent back to see what was best for the children; not as to granting the divorce, but about the custody of the children.

What it seems to us statutes should require on this subject is to make it a condition precedent to a valid decree of divorce, that the court should find, that it appears to be best for the children's interests that it be granted, and, therefore, the court decrees that certain property-specifying it-has been set aside for their support and certain arrangements have been made for their custody-specifying them. Make the successful plaintiff, even, eat his humtle pie, so to speak, in the presence of the child's paramount rights. It did not bring itself into its parents' quarrel. They brought it there.

ACCEPTING

BANKS AND BANKING CHECK OF PRESIDENT AS NOTICE OF MISAPPROPRIATION.-In Pope v. Ramsey County State Bank, 162 N. W. 1051, decided by Supreme Court of Minnesota, the facts show that the receiver of an insolvent bank sued another bank for what it received on checks of the president of the former bank drawn on it by the president as a presumed depositor.

At the times these checks were drawn the personal account of the president was overdrawn, but afterwards he had a balance in his favor. The bank seems to have been a small institution, and was one of two banks in a town. These checks were presented and collected by the other of the two banks, presumably, we may say, acquainted with the fact that the drawee bank was managed by the president and his wife, and the other directors were non-residents. The wife bore the title of assistant cashier. The defendant bank held a note signed by the president and wife and took these checks in payment of it and knew the drawer was president of drawee. The Supreme Court held there was no notice to defendant of any attempt to misappropriate and if there was the fact that the account afterwards show

ed a balance in drawer's favor took away what ever right of action may have existed against the defendant.

A bank may be regulated under the police power of the state, but, of course, it does not rest on the courts to perform the functions of the legislature in this regard. It would seem, too, that this is not like an officer giving the obligation of a corporation for his individual debt. The bank officer may have the right to keep a checking account in his bank. The court says: "We assume it to be a general practice for the officers and employes of a bank to patronize it with such deposits and checking accounts as they may wish to keep."

While all this seems true, yet the right of regulation carries the idea that the privilege of carrying on banking is akin to that of devoting private property to public use and there is something of a trust relation arising which should be uninfluenced by private interest in the administration of that trust. As nearly as possible all depositors and other customers of the bank should be treated precisely alike. If it might be inferred, that a controlling officer of a bank would treat himself differently than he would one of the general public, ought not one dealing with him be bound by such an inference?

A concurring opinion agrees to the conclusion, because the account eventually had a balance in favor of the president, but the concurring judge says: "I am of opinion that when an officer of a bank pays his own check, given for his own debt, out of the assets of the bank, without authority so to do, the person receiving the payment, with knowledge that the assets of the bank are being used, is chargeable with notice of the officer's want of authority to appropriate the bank funds to his own use."

That, however, does not touch the situation, and if it did, the wrong was immediate and could not be cured afterwards. The question was of presumptive notice. And in no way whatever could either the main or concurring opinion be right so far as concerns the later state of the account.

The case suggests material for statutory regulation.

interstate shipments, whether suit be against the initial or other carrier. A late decision by Georgia Supreme Court sums up federal decision on this subject as holding to the latter view of the amendment, which results in the superseding of all state laws on this subject. Central of Georgia Ry. Co. v. Yesbik, 92 S. E. 527.

In this summing up an excerpt from Adams Exp. Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, an initial carrier case, is as follows: "One illustration (against purpose of the act to destroy itself) would be a right to a remedy against a succeeding carrier, in preference to proceeding against the primary carrier, for a loss incurred upon the line of the former. The liability of such succeeding carrier in the route would be that imposed by this statute and for which the first carrier might have been liable."

Georgia Supreme Court interprets this to mean that the Carmack Amendment takes over entirely all rights of action in interstate shipments and excluding altogether any right of action under state statute against any of the carriers, initial, intermediate or final.

In further support of this conclusion it cites federal Supreme Court cases where others than initial carriers were sued. Thus, Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, was a suit against the final carrier and the court said: "The liability of any carrier in the route over which the articles were routed for loss or damages is that imposed by the act (Carmack Amendment) as measured by the original contract of shipment so far as it is valid under the act." See also Ry. Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469; Ry. Co. v. Harold, 241 U. S. 371, 36 Sup. Ct. 665, final carrier cases.

The first of these cases only claimed damage caused by the final carrier. So as to the Prescott and the Harold cases, and the instant case is a like suit. It, therefore, is to be thought that the federal law controls all as to the liability under federal law as to the carriers separately and, additionally, makes the initial carrier liable for damage by any of them. The chief benefit, however, of the Carmack Amendment has been thought to lie in its making the initial carrier answerable for all damages leaving the carriers to work out the proportion of liability, or ascertain the really delinquent carrier, among themselves. But it seems to be the view of the federal Supreme Court, that it was designed also to establish a uniform rule as to every carrier participating in the carriage of an article in interstate commerce.

BRITISH WORKMEN'S COMPENSATION LAW-THE AMOUNT OF COMPENSATION.*

The amount of compensation which is awarded under the Act is determined by two main circumstances: (1) Where death results from the injury. In this case if the workman leaves any dependents wholly dependent upon his earnings, a sum is awarded equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of £150, whichever of these sums is the larger, but not exceeding in any case £300, provided that the amount of any weekly payments made under the Act, and any lump sum paid in redemption thereof, shall be deducted from such sum, and if the period of the workman's employment by the said employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer. If the workman does not leave any such dependents in part dependent upon his earnings, such sum, not exceeding in any case the amount payable under the foregoing provisions, as may be agreed upon, or in default of agreement, may be determined, on arbitration under this Act, to be reasonable and proportionate to the injury to the said dependents; and if he leaves no dependents, the reasonable expenses of his medical attendance and burial, not exceeding £10.

(2) Where total or partial incapacity results from the injury, a weekly payment during the incapacity, not exceeding 50 per cent of his average weekly earnings during the previous 12 months, if he has been so long employed, but if not, then for any less period during which he has been in the employment of the same employer, such weekly payments not to exceed £1, pro

*This is the third of a series of articles on this subject; the two preceding appeared in 81 Cent. L. J. 302, 398; others will follow.

Ivided that (a) if the incapacity lasts less than two weeks no compensation shall be payable in respect of the first week; and (b) as respects the weekly payments during total incapacity of a workman who is under 21 years of age at the date of the injury, and whose average weekly earnings are less than 20 shillings, 100 per cent shall be substituted for 50 per cent of his average weekly earnings, but the weekly payment shall in no case exceed 10 shillings.

The Act then proceeds to define "earnings" and "average weekly earnings." This is a point in which the statute has succeeded in attaining definiteness, for, although the subject dealt with is complicated, yet in practice the operations of the rules as to computing earnings have come out fairly satisfactory. As this aspect of the statute is a very practical one, we quote the rules as given in the Act. (a) Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the workman was being remunerated. Provided that, where by reason of the shortness of the time during which the workman has been in the employment of his employer, or the casual nature of the employment, or the terms of the employment, it is impracticable at the date of the accident to compute the rate of remuneration, regard may be had to the average weekly amount which, during the 12 months previous to the accident, was being earned by a person in the same grade, employed at the same work by the same employer, or, if there is no person so employed, by a person in the same grade, employed in the same class of employment and in the same district; (b) where the workman had entered into concurrent contracts of service with two or more employers, under which he worked at one time for such employer and at another time for another such employer, his average weekly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident;

(c) employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause; (d) where the employer has been accustomed to pay to the workman a sum to cover any special expenses entailed to him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings; (e) in fixing the amount of the weekly payment, regard shall be had to any payment, allowance or benefit which the workman may receive from the employer during the period of his incapacity, and in the case of partial incapacity, the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the workman before the accident and the average weekly amount which he is earning or is able to earn in some suitable employment or business after the accident, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.

Needless to say, on such a question there has been a very great amount of litigation and the time is now ripe for embodying the results of decided cases in a fresh set of rules, and no doubt this will be done in future amendment of the Act. We any

shall, in a subsequent article, try to give an indication of the effect of legislation on this part of the statute. Meantime we may conclude this article by summarizing some minor number of provisions with regard to payment of the compensation. In the case. of death, payment may be made into court; the registrar of the court is instructed to invest the money for the benefit of the persons entitled to it; and in regard to weekly payments, where the person injured is under legal disability, the court may receive the money during the disability.

Important provisions exist, too, for the purpose of medically examining workmen