Central Law Journal.

ST. LOUIS, MO., JANUARY 21, 1921

A COURT OF DOMESTIC RELATIONS AND A UNIFIED COURT SYSTEM.

Attorneys in Minneapolis are engaged in a controversy over the establishment of a Domestic Relations Court having jurisdiction to appoint lay investigators to investigate the causes for divorce and make recommendations to the Court under certain conditions. The proposal is defended by Judge Horace D. Dickenson and Judge Edward F. Waite. It is being opposed by a large group of the members of the Hennepin County Bar Association who have appointed a committee headed by Mr. A. T. Conley to oppose the establishment of the new court. We quote from a press clipping recently sent us:

"Mr. Conley, in a prepared address, argued that the number of divorces now on the Hennepin county court dockets would not be there if the judges had heard divorce cases during the summer instead of letting them accumulate. He denied that any large number of the cases presented by attorneys were fraudulent, and contended that the fact that a domestic relations court was successful in some other cities did not mean it would succeed in Minneapolis.

or impede any honest plaintiff in securing a divorce we do not believe. Most plaintiffs desire to tell their story to anyone who is in a position to give them relief.

The feature about this proposal or any similar proposal that we would object to is the fact that it adds another detached judicial body to the governmental organization to make confusion in the administration of the law worse confounded. We suggest to all those interested in having the administration of justice segregated and specialized that they work along the lines of the unified court plan proposed by the American Judicature Society, whose offices are at 31 West Lake street, Chicago, and whose secretary, Mr. Herbert Harley, we are quite sure, would be glad to furnish anyone interested with very valuable information.

When there is established in any state one Supreme Court of Judicature which is supervised and controlled by a Chief Justice at the state capital and which controls the administration of justice throughout the state from the highest court of appeal down through every immediate court to the most insignificant police justice in a remote rural community, who thereby becomes a member of the same court with the chief justice, such a court will be able without legislative assistance to establish as many different branches as may be desirable and select certain judges to try certain causes and set aside as many courts and judges as may be needed to handle special subjects of

mate and proper way of separation is through divorce, who institute such proceedings, are sufficiently humiliated, and ought to be entitled to divorce, if the grounds are proven according to law."

We cannot intelligently discuss the particular proposal which is now agitating these lawyers of Minneapolis, but we are frank to say that we do not fully understand the fears of Mr. Conley and those he represents. He seems to fear the preliminary investigation feature of the new proposal. That feature may be an unnecessary expense, but that it would humiliate plaintiffs

mestic Relations, Crimes, Civil Jury Trial, Non-Jury Cases at Law, Decedent's Estates, Small Claims, Misdemeanors, etc. When, however, additional courts are established by the legislature, each unrelated and independent of the other, the jurisdiction is bound, in many respects, to overlap the jurisdiction of some other court and confusion results. Plaintiffs are compelled, if a mistake is made, to get out of one court and get into another at needless expense. So also the conditions which caused the court in the first instance to be established

may change so that the court has nothing to do and the Judge cannot be transferred to other duties.

We believe lawyers should consistently oppose the creation of new judicial tribunals until some unification of judicial administration is brought about which will put our judges under a supervising officer as all executive officials are put under the supervision of the governor.

Some of our large cities, like Chicago, New York, Cleveland and others, have made the attempt to unify their local jurisdiction by the establishment of municipal courts which, as in the case at Chicago, have attracted to themselves much of the business of the Superior Courts and Justice Courts until, in some cases, they do many times the business of all the other state courts. The Municipal Court of Chicago, it is interesting to note, is always seeking new means of adjusting the court machinery and its 27 judges to meet the changing conditions of a big city. This Court recently established an Arbitration Division which, we understand, has become popular with business men who desire a speedy determination of the facts of a controversy. This experiment of a unified court has proven so uniformly successful that it leaves no room for further debate on the relative benefits of one court controlled by a Supreme Justice and so flexible in its operations that it can accommodate itself to every new judicial emergency, and of many courts each an independent unit in itself and controlled by or responsible to no higher authority for the character of its administration nor competent to receive assistance from any other judge or court.

Under the unified court plan, whenever the legislature desires to create a new judicial tribunal it merely enlarges the jurisdiction of its Supreme Court of Judicature and provides for more judges if necessary. The responsibility, however, for the successful administration of the new jurisdiction is put upon the whole court acting

through its administrative head. In such cases there will not only be progress but there will also be harmony and efficiency.

NOTES OF IMPORTANT DECISIONS.

SELLING PROPRIETARY MEDICINES UNDER NEW DIFFICULTIES.-It may be still a fact today, as in Barnum's time, that there is one born every minute, but, if so, the federal government is making it increasingly difficult to take advantage of the situation. Two recent cases, for instance, show the difficulties in the way of those who seek fortunes by selling concoctions of uncertain efficacy, but for which they claim great virtues for healing the ills of humanity. Hall v. United States, 267 Fed. 795; Leach v. Carlisle, 267 Fed. 61.

In the Hall case the action was a libel by the United States against 141 bottles of Hall's Great Discovery. The proceeding was under the Pure Food and Drug Act (par. 3, Sec. 8) dealing with the offense of "misbranding." The "misbranding" in this case was alleged to be in a label on the bottle declaring that the medicine was good "for Kidney and Bladder Troubles, Diabetes, Weak and Lame Backs, Rheumatism and Gravel." The Court in the Hall case in affirming a decision for the gov ernment said:

"Language used in the label is to be given the meaning ordinarily conveyed by it to those to whom it was addressed. When so read and construed, it amounted to an assertion that the article referred to, if used as directed, might be expected to have a curative or alleviating effect on the classes of ailments mentioned. There was no indication of an intention to except any ailment embraced in those classes. Evidence adduced showed what were the ingredients of the article called 'A Texas Wonder,' and that those ingredients could not, singly or in combination, have any remedial or beneficial effect on any ailment of the kinds mentioned in the label."

In the Leach case the action was by a patent medicine vendor to enjoin the postmaster at Chicago from enforcing a fraud order against plaintiff doing business under the name "Organo Products Company." The postmaster acting under authority of Rev. St. §§ 3929, 4041, and after a full inquiry, declared that the business of plaintiff in selling "Organo tablets" through the mail with the claim that they would cure sexual weakness and restore lost manhood was a scheme to defraud by use of the mails.

The Court of Appeals affirmed a decree for the defendant and dismissed plaintiff's bill for injunction solely, however, on the ground that the advertising made extravagant and unfounded claims and not that the ingredients of which the tablets were compounded had no therapeutic value. It is interesting to note that the Court holds that under the "fraud order" law the postmaster has no right to determine the therapeutic value of a patent medicine for the purposes indicated. The Court said:

"Search for some clime or condition or spring or substance which would arrest human decay, and restore manly strength and vigor, is coeval with love of life and strength, and dread of decay and death. Whether wholly or partly predicated on superstition, or fact, or both, the thought is as old as the hills that to partake by way of food or otherwise of certain parts of animals will produce beneficial effect in the corresponding part in man-the brain, the heart, the stomach, and notably the testicles. There has long been more or less prevalent the practice of resorting to the testicles of animals as an article of food or medication for prolonging, restoring, or augmenting manly strength and sexual power. Among some it is believed that the lion, the tiger, the bull, and other animals of great strength are the most efficacious in this regard. The ram also has had favorable mention. In recent years scientific investigations have been conducted, with more or less beneficial result, respecting the employment of animal substances in the treatment of human ailments. Pepsin from stomachs is employed to treat some stomach troubles in persons, extracts from animal thyroid glands are used for human thyroid ailments, and other instances might be cited. Some decades since Dr. Brown-Sequard, a noted French neurologist, conducted a series of experiments on himself with hypodermic administration of animal testicular lymph, as to which he reported a very considerable degree of success; and his writings on the subject gave impetus to further experiments, and the use of such preparations in the treatment of sexual disorders and shortcomings.

"Considerable literature is extant upon the subject, and it appears that some physicians employ such remedies, and that many others decry their use. For some time back such substances have been made in considerable quantities, and the very testicular product in question is made and sold at least by one of the large packers, and by a number of the extensive manufacturers here and abroad, to supply any public demand for it. Under the record facts the most that could be said is that doctors and others, who might reasonably be supposed to possess expert knowledge upon the subject, disagree as to whether or not such substances have any remedial virtue.

"It was not the design of these statutes to vest the Postmaster General with authority to determine between contradictory views held in apparent good faith upon a subject the merits or demerits of which may fairly be said to be a matter of opinion among those who ought to know. American School of Magnetic Healing v.

McAnnulty, 187 U. S. 94, 23 Sup. Ct. 33, 47 L. Ed. 90. It would follow that, if the order herein is sustainable only upon the inefficacy and absolute want of remedial virtue of the substance which appellant sells, the injunction should have issued."

The rule as to patent medicines seems to be that the United States government has not the right, either under the "fraud order" section of the Post Office Act or under the "Misbranding" section of the Pure Food and Drugs Act, to inquire into the therapeutic efficacy of ingredients used, provided the claims made for the concoction are not extravagant or calculated to deceive the public. If some person sincerely believes that a combination of roots and herbs will cure rheumatism he is at perfect liberty to announce such belief even in the face of universal medical opinion to the contrary and to state the actual results of his investigation, but if in trying to sell his medicine he makes statements which are not true or claims for his preparations merits which are so extravagant and enticing as to be calculated to deceive the public, he can be proceeded against under either of the laws herein mentioned.

EFFECT OF EFFORTS TO COMPROMISE OFFENSES UNDER THE INTERNAL REVENUE LAWS.-The great increase in the-number and character of offenses under the internal revenue laws is bringing into prominence that section of federal statutes which permits the Commissioner of Internal Revenue, with the advice and consent of the Secretary of the Treasury to compromise any civil or criminal case arising under the internal revenue laws instead of commencing suit thereon; and, with the advice and consent of the said Secretary and the recommendation of the Attorney General, to compromise any such case after a suit thereon has been commenced.

In the recent case of Oliver v. United States, 267 Fed. 544, defendant in defense of a prosecution for a violation of the Harrison Narcotic Act offered in evidence a check for $100.00 to the Collector of the District where the trial was had, which he offered to show was given and accepted as a compromise of the criminal proceeding then pending. The trial Court exIcluded this evidence which the Court of Appeals (4th Cir.) held to be error and reversed the judgment of conviction.

The strange thing about this decision is that it does not appear that the Commissioner of Internal Revenue ever received the check sent to the local collector and it is admitted that the case was not compromised by him nor was

any promise of compromise made to him by said commissioner, which is necessary, it seems to us, to bring the case within the decisions in the cases of United States v. Chouteau, 102 U. S. 603; Rau v. United States, 260 Fed. 134. For this reason we are inclined to agree with Waddill, J., who dissented in the principal case when he said:

"It was never intended that this law, thus generously passed in the interest of an accused, should be resorted to for the purpose of having the executive authorities of the government do other than settle or refuse to settle cases, and to allow a defendant to open correspondence looking to a settlement, and without concluding the same, to interpose his action as a further defense to the prosecution, is entirely subversive of the spirit of the act in question, and would quickly result in endless confusion and conflicts between the courts and the executive branches of the government."

Such compromises, it seems to us, or agreements to compromise, should be specially pleaded and referred to the Court for decision. On the other hand, if such a compromise or agreement to compromise is proven, it should be given effect by the trial Court and the case taken from the jury. In this connection the following quotation from the opinion of the Supreme Court in the Chouteau case, supra, is pertinent. The Court said:

"The compromise pleaded must operate for the protection of the distiller against subsequent proceedings as fully as a former conviction or acquittal. He has been punished in the amount paid upon the settlement for the offense with which he was charged, and that should end the present action, according to the principle on which a former acquittal or conviction may be invoked to protect against a second punishment for the same offense. To hold otherwise would be to sacrifice a great principle to the mere form of procedure, and to render settlements with the government delusive and useless."

The defendant in the principal case neglected an important obligation resting upon him to follow up his offer to compromise by securing its acceptance. If every defendant by simply making an offering and tendering his check for an amount he is willing to pay can force the government either to return his check immediately or have its silence or neglect in that regard taken as an acceptance of the compromise, an unjust and unfair burden is put upon the government by a statute by which it was intended to confer only a privilege upon a defendant and not to arm him with more effective means of defense.

DOES THE VOLSTEAD OR PROHIBITION ENFORCEMENT ACT REPEAL STATE RESTRICTIVE PROHIBITION OR TAX LAWS?

The Eighteenth Amendment to the Federal Constitution provides in Section 2:

"The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation."

The Volstead Act, Section 35, provides that:

"All provisions of law that are inconsistent with this Act are repealed only to the extent of such inconsistency, and the regulations herein provided for the manufacture or traffic in intoxicating liquor shall be construed as in addition to existing laws."

In the case of State of Rhode Island vs. Palmer, the Court held that Section 2 giving Congress and the States concurrent power to enforce the Eighteenth Amendment by appropriate legislation does not authorize Congress or the States to defeat or thwart the prohibition contained in Section. 1, but only to enforce it by appropriate means. By authority of Section 2 of the Eighteenth Amendment, the Sixty-sixth Congress enacted the National Prohibition. Act, known as the Volstead Act. It was sustained by the Supreme Court.

Many Recent Decisions Sustain State Laws Enacted Before and After the Adop tion of the Volstead Act.-Supreme Court Justice James J. Bergla, of New Jersey, in charging the September Grand Jury of Middlesex County, under date of September 21, 1920, declared that the Eighteenth Amendment and Volstead Act did not abrogate any State Law which prohibits the sale of liquor, that all such laws are still in force and must be enforced by the State authorities. The same position was taken by Supreme Court Justice Swayzellin charging the Essex County Grand Jury in Jersey City under the same date, also by Chief Justice Gunmere in charging the Essex County Grand Jury at Newark, N. J., the same date. Judge Tuthill, of the Supreme Court of

(1) 40 Sup. Ct. 486.

New York, recently decided that all State Laws prohibiting the liquor traffic were not repealed or modified by the National Prohibition Law.

In the case of United States vs. Barnhart, a case growing out of the murder of one Indian on a reservation, the Court held a person living under two Governments may commit two crimes. By doing one act in such case, the conviction or acquittal of the crime in a forum of the State is not bar to a prosecution of the other in a forum of the United States.

Massachusetts Case on Concurrent Power. In the case of Commonwealth vs. Florence Nickerson,3 in the Supreme Court of Massachusetts, the question was: Is State Statute, enacted prior to the going into effect of the Volstead Act, repealed by this latter Act?

The Court held: "The amendment does not require that the exercise of the power by Congress and by the States shall be coterminous, coextensive and coincident. The power is concurrent; that is, it may be given different manifestations directed to the accomplishment of the same general purposes, provided they are not in immediate and hostile collision one with the other. In instances of such collision, the State legislation must yield."

"We are of opinion that the word 'concurrent' in this connection means a power continuously existing for efficacious ends to be exerted in support of the main object of the amendment and making contribution to the same general aim according to the needs of the State, even though Congress also has exerted the power reposed in it by the amendment by enacting enforcing legislation operative throughout the extent of its territory. Legislation by the States need not be identical with that of Congress. It cannot authorize that which is forbidden by Congress. But the States need not denounce every act committed within their boundaries which is included within the inhibition of the Volstead Act, nor provide the same penalties therefor. It is conceivable also that a State may forbid under penalty acts not prohibited by the Act of Congress. The concurrent power of the States may differ in means adopted, provided it is

directed to the enforcement of the amendment. Legislation by the several States appropriately designed to enforce the absolute prohibition declared by the Eighteenth Amendment is not void or inoperative simply because Congress, in performance of the duty cast upon it by the amendment, has defined and prohibited beverages and has established regulations and penalties concerning them. State statutes, rationally adapted to putting into execution the inexorable mandate against the sale of intoxicating liquors for beverage contained in Section 1 of the admendment by different definitions, regulations and penalties from those contained in the Volstead Act, and not in conflict with the terms of the Volstead Act, but in harmony therewith, are valid. Existing laws of that character are not suspended or superseded by the Act of Congress. The fact that Congress has enacted legislation governing in general the field of National Prohibition does not exclude the operation of appropriate State legislation directed to the enforcement by different means of prohibition within the territory of the State."

"The power thus reserved to the States. must be put forth in aid of the enforcement, and not for the obstruction of the dominant purpose of the amendment. It must not be in direct conflict with the Act of Congress in the same field. Subject to these limitations, growing out of the nature of our dual system of Government, the power of the States is constant, vital, effective and susceptible of continuous exercise. We think that these results follow from the words of the amendment, from the implications of conclusions 8 and 9 of the opinion in Rhode Island vs. Palmer, and from the other decisions to which reference has been made."

Chapter 455, Laws of 1919, expresses a purpose to provide for the enforcement of the Act of Congress "commonly known as War Prohibition." This does not limit the operation of the statute to the matters prohibited by the Act of Congress, if, by its terms, it is broader than the Act of Congress. The State statute is a separate, complete and independent act.*

Federal and State Liquor Tax Laws Are Not Repealed.-Section 35 of the Federal Prohibition Code provides as follows:

(4) State v. Hosmer, Minn., 175 N. W. 683; State v. Brothers, Minn., 175 N. W. 685.