boat a short distance away to rest, where he was injured, was entitled to compensation. "The reason for his going to the boat was that from that place he could tell the time of the tide, whereas elsewhere he could not. Under these circumstances, the learned County Court Judge has found that, in going to rest in a small boat, the man was acting reasonably and in furtherance of his duties."19

Amusement- A seventeen-year-old girl, who was paid by the hour, was injured during a half-hour intermission at noon. Although at liberty to leave the premises, she remained there and, after eating lunch, engaged with fellow employees, in accordance with a custom known to and approved by her employer, in riding on a truck, her injury being caused by falling from the truck while it was being drawn by a fellow employee. It was held that a finding was justified that the accident occurred in the course of her employment and arose out of it. "The fact that she was working by the hour, and that the accident took place out of working hours, does not conclusively establish that it did not occur in the course of her employment. The shortness of the intermission suggests that it was the expectation that most of the employees would remain on the premises, and the practice shown by the evidence confirms this. The purpose of the plaintiff and her associates in remaining in the factory after their lunch had been eaten was presumably to be on hand when work commenced, in order that there might be no delay-a matter in which the employer had an obvious interest."20

Going to Get Pay-An employee going in a proper way to receive his pay is within the course of his employment, and may recover for injuries received during such time.21

(19) May v. Isom, 110 L. T. 525, 7 B. W. C. C. 148.

(20) Thomas V. Proctor Gamble Mfg. Co., Kans., 179 Pac. 372, 3 W. C. L. J. 712.

(21) Riley v. Holland & Sons, (1911) 1 K. B. 1029, 104 L. T. 371, 27 T. L. Rep. 327, 80 L. J. K. B. 814, 4 B. W. C. C. 155; Talacznski v. Ar

This is true, although his injury may be due to "horse-play" on the part of other employees."

An employee in a lumber camp was permitted to ride on a logging train to go for his wages. On the occasion in question he told his foreman that he was going to take a vacation, and the latter gave him a time slip for that purpose. While riding on the train on his way to get the money, he was injured. In affirming judgment for compensation, the Court said: "He was entitled under his contract to receive compensation for his services. His employer directed him to go to a place some distance from his work to get his pay and offered him the means of transportation for going there. He went in obedience to the duty placed upon him by his employer and acquiesced in by him, performing the last act under the contract, whereby each could receive the full benefit thereof. Had the employer paid him at the camp, a different question would be presented."

Where, however, the employee takes a route in going for his pay which he has no right to take, and is injured as a result, he is not within the protection of the compensation acts.24

Taking Shelter from Weather-Where a section hand was killed by lightning while in a barn, where he had gone to take refuge from a storm at the direction of his foreman, it was held that his death did not result from an injury arising out of his employment, since there was nothing in his employment that rendered him peculiarly liable to lightning strokes.25

mour & Co., Ill. Ind. Bd.; 12 N. C. C. A. 664; Garls v. Pekin Cooperage Co., Ill. Ind Bd., 12 N. C. C. A. 552-553; Boesenberg v. Butterick Pub. Co., 4 N. Y. St. Dep. Rep. 367, 12 N. C. C. A. 553. (22) Pekin Cooperage Co. V. Industrial Board, 277 Ill. 53, 115 N. E. 128.

(23) Hackley, etc., Co. v. Industrial Com'n., 165 Wis. 586, 162 N. W. 921.

(24) Ames v. New York Cent. R. Co., 178 App. Div. 324, 165 N. Y. Supp. 84.

(25) Klawinski v. Lake Shore & M. S. R. Co., 185 Mich. 643, 152 N. W. 213. L. R. A. 1916A 342.

leisure for the purpose of protection laid down in a position where he was subsequently hurt by a moving car. Held, that the accident arose out of and in the course of his employment. "To protect himself from undue and unnecessary exposure to the cold was a duty he owed his master as well as himself, and it does not follow that he left his master's employment because he negligently allowed the second car to run into him while he was warming himself."

A workman on a telegraph line, who was injured while taking refuge during a storm under a freight car, where he had gone to sleep, was within the protection of the compensation law.27

Matters Personal to Employee-An employee going to and from and while using. a toilet is within the scope of his employment, and within the protection of the compensation statutes.28 But where the injury results solely from the sportive act of a fellow employee, no recovery can be had.29

If an employee leaves the sphere of his employment for some purpose of his own, entirely disconnected with and not in any way incidental to his employment, he is not within the protection of the compensation laws.

Decedent was employed by a city to spread cracked stone on the roads, and was fatally injured while talking about personal matters with the engineer of a steam roller, hired by the city by the day for work on the roads; the engineer having called to decedent, who went and climbed on the

(26) Northwestern Iron Co. V. Industrial Com'n., 160 Wis. 633, 152 N. W. 416.

(27) Moore v. Lehigh Valley R. Co., 217 N. Y. 627, 111 N. E. 1092.

(28) Zabriskie v. Erie R. Co., 86 N. J. L. 266, 92 Atl. 385, L. R. A. 1916A 315; Welden v. Skinner & Eddy Corp., Wash., 174 Pac. 452, 2 W. C. L. J. 860; Milwaukee Western Fuel Co. v. Industrial Com'n., 159 Wis. 635, 150 N. W. 998, 12 N. C. C. A. 77; Houston & T. C. R. Co. v. Turner. 99 Tex. 547, 91 S. W. 562; Hagenback v. Leppert, Ind. App., 117 N. E. 531, 1 W. C. L. J. 64; State ex rel v. District Court, Minn., 172 N. W. 310, 18 N. C. C. A. 1042; Armstrong v. Cregson & Co., (1916) W. C. & Ins. Rep. 226, 15 N. C. C. A. 265. (29) De Filippis v. Falkenberg, 170 App. Div. 153.

roller. It was held that the accident did not arise out of or in the course of the employment.30

Answering Personal Telephone CallThe rule has been stated that, "when a workman in a factory goes to a telephone which is maintained in the factory to answer a call, from whatever source, it will be presumed that he is performing an act necessary to his comfort and convenience, and that such act is an incident of his employment, where the employer has established no rule to the contrary."

1931

An injury to a factory employee while going to answer a telephone call in another part of the factory, was held to have arisen out of and in the course of the employment.32

An employee's duties included the answering of telephone calls. On the occasion in question he was injured by falling down stairs while answering a personal telephone call, after actual business hours. It was held that a finding that the injury arose out of and in the course of his employment was justified. "The evidence would warrant the conclusion that it was the duty of the employee to answer telephone calls even outside the usual business hours. If this was his duty, then the circumstance that the call happened to be one which interested him personally would not prevent his conduct in attending to the call from being service arising out of and in the course of his employment. There is nothing to indicate that the time spent at the telephone was longer than necessary to answer a call."33

The next article of this series will deal with the question of the effect on the right to compensation for injuries arising out of and in the course of the employment, of disease, pre-existing or subsequently arising.

St. Louis, Mo.

C. P. BERRY.

(30) In re O'Toole, 229 Mass. 165, 118 N. E. 303.

(31) Holland-St. L. Sugar Co. v. Shraluka, Ind. App.. 116 N. E. 330, 15 N. C. C. A. 271.

(32) Holland-St. L. Sugar Co. v. Shraluka, Ind. App., 116 N. E. 330. 15 N. C. C. A. 271. (33) In re Cox, 225 Mass. 220, 114 N. E. 281, 15 N. C. C. A. 271.

to the Constitution, providing that "the Congress and the several states shall have concurrent power to enforce this article by appropriate legislation," does not confer power on state courts to enforce a congressional act, but on the Legislature of a state to enact on state courts to enforce a congressional legislation, for enforcement of the amendment; and a defendant who has been convicted in a state court for violation of such a state statute, whether enacted before or since the amendment, cannot be again prosecuted in a federal court on the same facts for violation of the National Prohibition Act.

NETERER, District Judge. These cases are submitted together. The defendants in the several cases are charged with violation of the National Prohibition Act. Pleas in bar have been filed by each of the defendants in causes 5245 and 5568, setting forth conviction in the state court upon the same facts, and in causes 5573, 5570, and 5350, convictions in municipal courts upon the same facts. The sufficiency of the pleas is challenged.

The Washington Prohibition Law (Laws 1915), c. 2, p. 2) is more stringent in its provisions as to possession and use of intoxicating liquors than the National Prohibition Act (41 Stat. 305). It is sometimes called a "bone-dry” law. To the same effect is the city ordinance. The question for decision is: What, if any, relation do the state law and city ordinance bear to the national act?

The Eighteenth Amendment to the Constitution reads:

"Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

"Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.''

The Supreme Court, in Rhode Island v. Palmer, 252 U. S., 40 Sup. Ct. 486, 64 L. Ed. —, decided June 7, 1920, said:

"6. The first section of the amendment is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers, and individuals within those limits, and of its own force invalidates every legislative act, whether by Congress, by a state Legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits.

"9. The power confided to Congress by that section (2), while not exclusive, is territorially coextensive with the prohibition of the first section, and is in no wise dependent on or affected by action or inaction on the part of the several states or any of them."

*

Section 2, art. 18, and section 2, art. 6, must have harmonious relation, since no express declaration in the amendment was made, nor are the provisions necessarily inconsistent. The national legislation, therefore, is paramount, and the state laws, when in conflict, must yield, Ballaine v. Alaska N. Ry. Co., 259 Fed. 183, 170 C. C. A. 251, and cases cited. Much "bewilderment" is created by "concurrent power to enforce by proper legislation," granted by section 2, art. 18. This is a conferred power, not upon courts of the state, giving them concurrent jurisdiction to enforce a congressional act, but primarily a power conferred upon the state Legislature, and through it upon the state courts, by such legislation as it may enact in harmony with the National Prohibition Act, to enforce article 18, and while the amendment "of its own force repeals" all inconsistent laws, it preserves inviolate laws of the state consistent with its provisions.

The state, then, may by appropriate legislation exert its power to enforce article 18, either by new legislation or appropriate existing legislation. Neither article 18 nor the Congress sought to destroy any existing remedies by a state to curb the drink evil, and where existing remedies are provided by a state, available for the enforcement of article 18, and in harmony with the Prohibition Act, supra, the power of the state, through its courts, may be invoked, and a conviction in a state court for conduct which is in violation of the Prohibition Act, supra, is a bar to a prosecution in the federal

courts. It seems manifest that it was not the intent that a person should be punished by the state and federal law for the same offense.

The concurrent power given to the state does not, however, authorize the state to delegate that power to municipalities. It is a power which must be exercised by the state itself. Everett School District v. Pearson, et al. (D. C.) 261 Fed. 631. The state may confer power on municipal courts and officers to enforce under state authority article 18, but it has not done so. A conviction for violation of a municipal ordinance, pursuant to grant of power given by the state is not a bar to prosecution in the federal court for violation of the provisions of the National Prohibition Act.

NOTE-Conviction Under State Dry Law As Bar to Prosecution Under Federal Act.-In Tharpe v. State, Ga. App., 100 S. E. 754, the accused was indicted under the state law for making alcoholic liquors, and pleaded former jeopardy, alleging "that he pleaded guilty in the United States District Court for the offense of violation of the internal revenue laws of the United States; that the offense charged is the very same offense as that he is now charged with; that the United States District Court had full jurisdiction to try him." It was held that the plea was properly stricken, because "it shows on its face that he pleaded guilty in a different jurisdiction, and to an indictment which charged a violation of a federal statute, and to the commission of a crime which is entirely different and distinct from the one for which he was indicted and tried in the state court." See also State v. Kenney, 83 Wash. 441, 145 Pac. 450.

In Moore v. Illinois, 55 U. S. (14 How.) 13, 14 L. Ed. 306, it is said, the court speaking of the same act being punishable under both state and federal law. "The same act may be an offense or transgression of the laws of both. Thus, an assault upon the Marshal of the United States, and hindering him in the execution of legal process, is a high offense against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the state, a riot, assault, or a murder, and subject the same person to a punishment. under the state laws, for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other."

Prosecution for violation of a state prohibition law before one of two tribunals having concurrent jurisdiction is a bar to prosecution for the same act in the other tribunal. Com., Va., 101 S. E. 316; Leigeber v. State, Ala., App., 86 So. 126.

Bryan v.

It is well settled law that conviction for the violation of a municipal ordinance cannot be pleaded in bar to a prosecution for the violation of a state law. Leigeber v. State, Ala. App., 85 So. 126.

ITEMS OF PROFESSIONAL

INTEREST.

BAR ASSOCIATION MEETINGS FOR 1921WHEN AND WHERE TO BE HELD.

American-Cincinnati, Ohio, August 31, September 1 and 2.

Arkansas-Hot Springs, June 2 and 3.
Georgia-Tybee Island, June 2, 3 and 4.
Illinois-Dixon, June 9, 10 and 11.
Indiana-Indianapolis, July 13 and 14.
Iowa-Waterloo, June 23 and 24.

New Jersey-Asbury Park, June 28, 29 and 30.

Virginia-Norfolk, April 26, 27, 28.

RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS' ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.

QUESTION No. 196.

Relation to Client; Fees; Privileged Communications-Securing attachment against client's funds, to enforce payment of lawyer's billnot necessarily improper.-An attorney negotiates an agreement of settlement of pending litigation for an absent client, and thus obtains knowledge of the existence and whereabouts of the fund to be paid in settlement to his client. The payment of the fund to the client is conditioned upon the execution and delivery of a general release by the client. Client owes the attorney another bill for other professional services. May the attorney, without violation of any principle of professional propriety, secure a warrant of attachment to be levied against the fund upon learning that in order to avoid the payment to the attorney of the bill for other professional services the client is transmitting the general release through other channels so as to secure and remove the fund from the jurisdiction without paying the bill for other professional services.

ANSWER No. 196.

In the opinion of the Committee there is no professional impropriety in the course suggested; the knowledge of the fund does not appear to have originated in a confidential communication from the client. (The Committee distinguishes the question from Question No. 44 where it considered that the attorney could not under circumstances there stated, properly avail himself of confidential information received from the client.)

BOOK REVIEWS.

MONTGOMERY'S FEDERAL INCOME TAX PROCEDURE.

This is the first volume of the new revision of the series known as Montgomery's Tax Procedure, 1921. Each volume, however, is complete in itself and not connected by classification, paging or otherwise with the other volume. The first volume of the series is entitled, "Federal Income Tax Procedure, 1921." Volume II, "Federal Excess Profits Tax Procedure, 1921." The third volume is a local book covering "New York State Income Tax Procedure."

Mr. Montgomery's books are written in a clear, lucid, non-technical style in order that they may appeal to business men and laymen as well as to the professional man. This is the fifth edition of these manuals which seem to be very popular with business. We believe lawyers would also find them very valuable, especially on account of the many practical suggestions with respect to procedure which the author makes.

Volume one is a complete manual on the law and regulations for 1921 affecting the assessment, compilation and payment of the Federal Income Tax on individuals, partnerships and corporations for income received in 1920.

Like other books from the pen of Robert H. Montgomery of the New York bar, the style of this work is not only interesting and often entertaining but the subject is discussed with great accuracy, and thoroughness. There is a complete classification of departmental regulations and decisions which of itself is of great value.

Published in one volume of 1,206 pages and bound in blue cloth.

MONTGOMERY'S EXCESS PROFITS TAX PROCEDURE, 1921.

The second volume of Mr. R. H. Montgomery's work on Income and Excess Profits Procedure has just appeared. While it is part of a set of books, this volume is independent of the one on the Income Tax and is complete in itself without reference to any other volume. The work is authoritative; it is written by one who is not only a lawyer and an accountant, but is skilled in the actual administration of the Income and Excess Profits Law.

This volume in treatment and exhaustive citation of laws and departmental regulations is as noteworthy as the first volume on Income

Taxes, but its subject matter is one which is likely soon to become obsolete. Public opinion is clearly against the Excess Profits Tax and the law is not likely to be in force in 1922. Printed in one volume of 594 pages, and bound in blue cloth.

HUMOR OF THE LAW.

"You should try to curb your bad habits." "What's the use? Soon all of them will be abolished by constitutional amendments."-Life.

There is a blind man who wheels a legless comrade up and down Fifth avenue in the late afternoons. They collect a goodly sum from the passers-by. They were taken to court the other day for some petty violation regarding begging.

"I feel very sorry for you two," said a kindly Magistrate, "but, despite your handicaps, you must be careful to obey the laws. I dismiss you both."

They started away, when the legless man said: "You needn't feel so sorry for us, Judge. We have a pretty good time. I would rather be like I am than like I used to be. When I had my legs I didn't get out at all."

"How's that?" inquired the Magistrate. "I was married," was the reply.-O. W. McIntyre in Globe-Democrat.

He was one of the few remaining old-time darkies. He had finished the odd jobs for which he had been employed, and, hat in hand, appeared at the back door.

"How much is it, uncle?" he was asked.

"Yo' say how much? Jest whateber yo' all say, missis."

"Oh, but I'd rather you would say how much," the lady of the house replied.

"Yas, ma'am! But, ma'am, Ah'd rather hab de 75 cents yo' all would gimme dan de 50 cents Ah'd charge yo' all.-Life.