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THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany Law Journal.

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ALBANY, JANUARY 4, 1890.

CURRENT TOPICS.

NE would suppose that Judge Daniels, who is so sharp and hard against boodlers, would not have let off that Buffalo black-mailer with a year in the penitentiary, especially when there was no defense, and the fellow admitted that he made the story out of whole cloth, for money. The crime of blackmailing is infinitely more wanton, dangerous and despicable than boodling. Even as it is, it is said that a petition for the pardon of this criminal is in circulation, and that some of the newspaper men of Buffalo are among the signers. This is like the newspaper men their bark is always worse than their bite. It is to be hoped that the governor will pay no attention to them. A sentence of five years in the State prison might have been imposed, and the judge, after deliberate consideration, imposed the very light sentence of a year in the penitentiary. If this young man should be pardoned, the community may well infer that there is no punishment for blackmailing, and no man will be encouraged to stand up for the protection of the community. The attempted enforcement of this beneficial law will degenerate into a farce.

We have to acknowledge the courtesy of several newspapers in sending in their illustrated Christmas issues. The New York Commercial Advertiser | issued a very artistic number, and so did the Mail and Express. The latter gave a funny picture of St. Nicholas entangled in the electric wires, and threatening to skip the town until they are laid under ground. The most admirable single illustration that came to us was a full-page reproduction in the Albany Journal, of the Nativity, by Correggio. During the year we have derived great instruction, amusement and satisfaction from the Tribune, the Independent, the literary portion of the Nation, the Albany Times and Journal, the Troy Times, and have found the Critic an excellent courier of all the litVOL. 41 No. 1.

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erary undertakings of each week. We take great pleasure also in the notes of the American Law Review and in the Green Bag. The editor of the latter ought to go into the business of painting portraits. If he should flatter all his sitters as he flatters us in his last number he would meet with great success. The Christmas number of the American Musician was excellent, and this journal is the very best of its class. All is fish that comes to our net, and we contrive to find matter of interest to lawyers in all these journals.

One of the three mouths of the Cerberus which editorially guards the American Law Review has contrived, in the current number of that estimable magazine, to utter a very graceful and delicate compliment to the one-headed editor of this journal. It likens us, in our old age, to a rotten old log, emitting a phosphorescent light which increases as it decays. We feel the force of this very exquisite and doubtless well-deserved similitude. Per

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haps such a log is as useful as a green and sappy one unfit for building or even for fuel, shedding no light, and answering no purpose except for benighted wayfayers to stumble over and swear at. The said editor speaks of us in his paragraph as "the busy B" and "the lightning bee," and evidently has read the following, which is going the newspaper us with lightning: round, and wants to "Captain Howell, of the Atlanta, Ga., Constitution, says that the following remark was recently made to him by a bee-keeper of the New South': 'The bees work mighty hard all day, and lay up a heap of honey. But I think they might do a little better. My mind is running on crossing them with lightningbugs, so that they can work a little at night.'"

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Written speech has a certain superiority over extemporaneous, at least to the speaker. We felt this the other evening at that dinner of the judges. Ordinarily we are very uncomfortable on such occasions, if we have the slightest suspicion that some ill-advised person is going to have us up. Rather expecting to be unexpectedly called upon for some remarks on this occasion-not that any thing of the sort had been intimated-we thought we would be prepared for it and for a current topic here at

the same time, and so reduced ourselves to writing and heroic verse. It was a comfort and stay to us to know we had that speech all in type in our pocket, so that if anybody did molest us he could not make us afraid. Just so the dweller at the foot of Ætna or Vesuvius, or in Chicago, knowing not when the lava or the dynamite may burst upon him, gets his life insured and scoffs at fate. Across the table from us sat two of our brethren whose faces showed to us that they were expecting and dreading to be called on. They looked anxious, apprehensive and even ashy they were smoking—and we knew that they had no written speech concealed upon their persons. We felt for ours several times, and were as calm and smiling as a May morning. One thing however must be borne in mind the speaker must own up to the manuscript the moment he gets up. Then he will probably be able to go along smoothly for some minutes without looking at it, and perhaps may not be driven to resort to it at all. Feeling this security, we were enabled, on this momentous occasion, to go on glibly for several minutes extempore, and began almost to fear that we should occupy so much time as to be ashamed to produce and read the premeditated remarks. If speakers would always write in verse, as we do, it would be expected that they would read. In fact it would sound very conceited for them to spout their own verses from memory. Then again it argues a great compliment to the audience to show them that you have spent time and thought in their behalf before coming to the feast. And then the speaker may to a reasonable extent defy the influence of Bacchus, unless, like the governor, he never yields to it at all. On all accounts then, unless one is a Depew or Ingersoll, it seems wiser to be prepared to present one's thoughts in orderly, coherent, sober shape, than to flounder around like the governor when trying to defend one of his occasional veto messages, or the chancellor when he is striving to explain the uses of the regency. So we say to the young lawyer, you don't need to write a speech for a jury or for the court, for you have the facts and your brief; but when you have to make something out of nothing, and there is really something at stake, as at a dinner, write it down in verse if you can, in prose if you must. Your verse will probably be more comprehensible than Browning, if not so harmonious as Tennyson, and your prose will be palatable if only seasoned high. Beside, half your audience will not know what you have been saying, and the other half will feel too good-humored to be critical. That accounts for Depew's success.

Please desist. Don't send us any more. We have seen it. We refer to the complaint filed in the case of Theodore Frank v. Matilda Ballay, in the Brooklyn City Court, for breach of promise of marriage, and couched in Hiawathan verse. We are glad that our good old friend, Justice Neilson, is not in a position to be vexed by this prostitution of the muse. Even his good nature must have given way before such stuff as this:

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Painful, willful, bad influence
On the lives of those who love you,
For your own sex do detest you.
She the plaintiff sorely injured,
Drove him from her fateful presence
And encouraged all her kinsmen
To cast stones upon her suitor,
While she aided and abetted
All their tauntings and revilings,
Made his spirits droop and languish,
Made his heart to bleed and torture
'Mid the groanings of his spirit."

We have mended the metre a little here and there, but still it makes our heart to torture, and has a a "bad influence" on others. We hope nothing we have ever said or done has led to the commission of this serious contempt of court. Now and then, it is true, we have allowed ourselves to read a leading case in verse from the Green Bag to our lads at the law school, but as none of them have graduated since we took up that practice, it cannot be that this matter proceeds from one of them. If this plaintiff should recover damages, we hope the court will compel him to pay a substantial fine out of them for his counsel, and that the said counsel may be immured for thirty days, and condemned to read Browning, Tupper and Ella Wheeler Wilcox, the passionate poetess.

NOTES OF CASES.

N Andres v. Judge of Circuit Court, Supreme Court

25, it that

under Revised Statutes of the United States, section 2165, relating to naturalization, which provides that an alien's declaration of intention to become a citizen may be made before the clerk of the courts therein named as well as before the court, it is not necessary that such declaration should be made in declaration of intention was a proceeding on which the office of the clerk. Campbell, J., said: "If the witnesses were sworn or inquiries made, there would be perhaps some reason for formality. But it is a purely ex parte oath, which in no way dispenses with the inquiry made on final admission, and which Congress has not made of any particular value. It is difficult to see for what purpose it was devised, unless possibly as a reminder that a man should not become a citizen without two years' deliberation. Even this is dispensed with in quite a number of instances; and when Congress, by the act of 1824, adopted its present policy, it was evidently for the reason that the declaration was not deemed of any

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special importance. The final application is not required to be made to the same court, or within the same jurisdiction, where the original declaration is made; and the inquiries made at the time of his admission need not, and generally cannot, go into the minutia or circumstances of his declaration of intention, and are complete in themselves. There is no substantial reason why a clerk must be in his office or in court for this purpose any more than for any other ministerial act not pertaining to court business. There is no law requiring him to be in any particular place to administer affidavits. As shown in Whallon v. Judge, 51 Mich. 503, the clerk's movements are not fixed within any one room or set of rooms, or any one place. By our Constitution, until amended, the county clerk was clerk of both Circuit and Supreme Courts held in this county, though not held in the same building or in the same town. He is clerk ex officio of more or less other bodies, and may or must have different places of action, either of which is his official place. There is no reason why an oath may not be taken before him at any place where he happens to be, as well as before a judge, or justice, or notary, or commissioner. He is the person indicated by the law. When it dispenses with his action in open court, it dispenses with the only locality which is universally known for clerical action; and we cannot require his action under the naturalization laws to be held in any particular spot or room or building without adding to the law a qualification of our own not indicated by its language, and not required by any of its purposes. The fact that our laws give more force to these declarations than Congress has done cannot have any weight in construing congressional actions. That must speak for itself, and lay down its own conditions." Sherwood, C. J., and Long and Cham. plin, JJ., concurred. Morse, J., dissenting, said: "On the 28th of June, 1887, Emeline Charlotte Langtry, a subject of the queen of Great Britain, | made application to become a citizen of the United States, and a bound volume of declarations by aliens, in which some of the blanks had not been used, was taken from the clerk's office of the United States Circuit Court for the district of California, at San Francisco, by a deputy clerk, and carried to the private residence of Mrs. Langtry, and there her declaration was made and oath taken by the deputy clerk. This fact coming to the knowledge of Mr. Justice Field, of the Supreme Court of the United States, then holding with Circuit Judge Sawyer the Circuit Court at San Francisco, the attention of Mr. Barne, the counsel for Mrs. Langtry, was called by Mr. Justice Field to the manner of taking of her declaration, and he was advised that the court had doubts of the legality of her declaration. Mr. Justice Field said: 'He did not think that the statutes furnished any authority for the clerk of the court to take a declaration of one to become a citizen out of his (the clerk's) office except in open court, and for that purpose to carry the records of the court to the private residence of the party. To permit the proceeding to pass without comment would be to establish a dangerous precedent, and one calculated

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to give rise to gross abuses. The justice observed that to be an American citizen was a great privilege; that citizenship should be regarded as a sacred trust, and that persons seeking to take upon themselves its responsibilities ought to consider it of sufficient value to attend where the records of the court are held in proper legal custody. In some States a man is allowed to vote as soon as he makes his declaration of intention to become a citizen; and if the clerk of the court, or his deputy, can go around the country taking declarations of intention and administering oaths, it is evident that dangerous consequences might follow, especially as there is no limit to the number of deputies which a clerk may appoint.' See In re Langtry, 31 Fed. Rep. 879, 880. The record in this case also shows on the part of the relator, and is substantially admitted in the affidavits attached to the showing of the respondent, that about seven months before the general election a number of deputies were appointed by the county clerk of Ottawa county for the sole purpose of going about the county, with the necessary blanks or court records, to hunt up persons who were aliens, and to take their declarations of intention to become citizens. This was also manifestly, if the relator's showing be true, to make voters who otherwise would not have become so men who, if left to their own motion, would never take any steps to become citizens. It is a matter of common notoriety that all over the land these men, aliens, are waited upon by partisan committees, and their naturalization fees paid out of party funds in order to make them voters. And some of these persons have so little desire of their own to become citizens that they never go any further than the declaration of their intention. The man who is worthy to become a citizen of the United States, and to share in the privileges of the government, to take part in the making of its laws, and who in good faith desires to do so, will find ways and means of his own to declare his intention, and to take all necessary steps to be clothed in time with full citizenship. It is not necessary, nor is it desirable, that about six months before election the political partisans should be scouring the county, going into every highway and alley, for aliens, who, if the expense is paid, will become voters and recruits in their party. Here lies the great incentive to fraud, and the easy opportunity for it. If the alien must himself go to the office of the clerk of the court, and pay the expenses of his own advancement to citizenship, fraud in declarations of intention to become a citizen will seldom occur; and the citizen, thus acquired, will be in the future, as in the past, a welcome and desirable addition to our voting population. If our naturalization laws had been rigidly enforced in the past, our large cities would not have been cursed, as some of them now are, with a large number of voters who openly avow that the only object they have in casting the ballot is to destroy not only our government, but all government and all law, that anarchy may reign in its stead. I do not believe in this kind of business of carrying the records and books of the courts from town to town,

and from place to place, to manufacture voters, or even to accommodate an alien, who considers the privilege of American citizenship of too little value to seek it at the county-seat or at the court-room. And in my opinion, it is neither required by good policy nor sanctioned by the law. On the contrary, as I have shown, we have the highest judicial condemnation of it." Set us down with the minority.

In Lee v. Vacuum Oil Co., 55 Hun, 156, it was held that the laying and maintaining of pipes through a street, by legislative authority, for transporting oil, is not a nuisance in law. The court said: In view of the danger likely to arise to life and property from the use of a broken or defective pipe, in the locality where this was laid, so that naphtha in considerable quantities might escape, a case was made for the consideration of the jury, with proper instructions as to the rules of law applicable to the case. When safety of human life is in question a very high degree of care is required in conducting a lawful business. If naphtha in large quantities should be discharged at most any point on the line of the pipe it would be highly dangerous to property situated in close proximity thereto, and also to occupants of buildings in the immediate vicinity, as well as to individuals passing on the public streets. The learned trial judge instructed the jury, in substance, that the transportation of naphtha by means of a pipe located on the line selected, was not, as matter of law, a nuisance, but it was for them to determine, from all the evidence in the case, whether it was a nuisance as a matter of fact; and if they came to the conclusion that it was a nuisance, then the defendant was liable for any damage which came from the explosion, without regard to the question whether the defendant was negligent or not. In this connection he also instructed the jury that if they came to the conclusion that it was not a nuisance, it did not necessarily follow that the plaintiff had failed to maintain a cause of action. We are unable to discover in the facts, about which there is really no dispute, those elements of danger which justified the court in submitting the case to the jury for them to determine whether or not, as a matter of fact, the defendant was guilty of maintaining a nuisance by transporting naphtha through the pipe, or by leaving the pipe full of the same material when the pump was not in use. The pipe was in good order, and safe for the transportation of this substance on, this line, and it was lawful for the defendants to engage in that business. There is no evidence showing that there was any leakage of naphtha from the pipe, or that gas escaped therefrom, while naphtha was being pumped or during the time the pumps were not in use. These facts being conceded, we fail to discover any fact upon which the charge of maintaining a nuisance can be found. It is no more dangerous to life or property to convey naphtha in a strong and secure pipe through a populous city than it is to distribute manufactured or natural gas by the same Gas thrown off from a body of naphtha is no more inflammable or explosive than coal gas, and

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either kind must be in some degree confined before the explosion will occur. The rule is of uniform application, that while a man may prosecute such business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjacent proprietor or of his neighbors, even in the pursuit of a lawful trade. Heeg v. Light, 80 N. Y. 579. A private nuisance is defined to be any thing done to the hurt or annoyance of the lands, tenements or hereditaments of another. 3 Bl. Com. 216. Any unwarrantable, unreasonable or unlawful use by a person of his own property, real or personal, to the injury of another, comes within the definition stated, and renders the owner or possessor liable for all damages arising from such use. Wood Nuis., § 1, and authorities cited. To constitute a nuisance for keeping in store articles in common use in a community, the substance must be of such a nature and kept in such large quantity and under such circumstances as to create real danger to life and property. This rule seems to be fairly deducible from the many decisions which have been made by the courts on this subject. The fears of mankind will not alone create a nuisance without the presence of real danger. 'The well-founded apprehension of danger, which would alarm men of steady nerves and reasonable courage passing through the streets in the locality where the business is carried on, is enough to show that something is being done which ought to be prevented by condemning it as a misdemeanor.' Regina v. Lister, 3 Jur. (N. S.) 570; People v. Sand, 1 Johns. 78; Myers v. Malcom, 6 Hill, 292; Heeg v. Light, 80 N. Y. 579. In such a case the rule which exonerates a party engaged in a lawful business, when free from negligence, has no application."

CONSTITUTIONAL LAW - POLICE POWER — ELEVATOR CHARGES.

NEW YORK COURT OF APPEALS, OCT. 8, 1889.

PEOPLE V. WALSH.*

PECKHAM, J. (dissenting). The Federal Supreme Court has decided that a statute of the State of Illinois, which is somewhat similar to the one under consideration here, was a valid law, so far as the Federal Constitution was concerned, and that it violated no right, privilege or immunity protected by that instrument. A clause exists in the Constitution of this State which is similar to one of those in the Federal Constitution under which the claim of invalidity was made and denied as to the Illinois statute. The case of Munn v. Illinois, 94 U. S. 113, establishes the point that the Illinois statute there under discussion, as applied to the particular facts of that case, did not violate any provision of the Federal Constitution, nor infringe upon any privilege or immunity protected by it. The facts in these New York cases differ considerably, in certain particulars, from those in the Munn Case; and might still become of the greatest importance to disif the principles decided in that case were upheld it tinguish these differences, and to discuss and decide upon their materiality as applicable to the question of the subjection of the defendants to the provisions of this act. But the question which arises in limine is

*See vol. 40, p. 504.

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