The Albany Law Journal. ALBANY, FEBRUARY 1, 1896. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] issue the LAW JOUR the common council nor preside therein; that he appoint the members of all boards of administration, and that the terms of office of a majority of them shall expire with his own; that he have direct supervisory power over the police; that no city moneys be disbursed without his signature, and that he be removable by the Governor for cause. WE publish in this is at the recent meeting certain minor exceptions, the power to ive func NAL a paper read at of the State Bar Association by the Hon. John J. Linson, formerly one of the members of the statutory revision commission, on "Some Needed Improvements in our Statutes and in Statute Making. The great experience which Mr. Linson has had in the enactment of general statutes, codifying the existing laws, has given him a wide reputation, and has gained for him experience which could hardly be acquired in any other way. The suggestions are the result of years of work, and of careful study, and will be found of great use, not only to lawyers and members of the Legislature in this State, but to others in different parts of the country. The report of the committee on the revision of the statutes was made by the chairman, Daniel S. Remson, Esq., and is a short and concise statement of suggestions on this important subject. Both papers should prove of great interest, and certainly contain suggestions which, if followed, will prove most profitable. The commission appointed by Gov. Morton, pursuant to the law of last year, to report such general laws and such proposed amendments to existing laws as in their opinion should be proper and necessary for the government of cities of the third class, submitted its report to the Governor on January 30, 1896. The work of the commission affects the administration of the government in thirty cities of the State which have a population of 50,000 and under. The report recommends: That the whole executive power be lodged in the mayor, including the power of appointment and removal of all non-elective officers without confirmation by the common council; that he have a veto upon the legislative acts of the common council; that he be not a member of VOL. 53 No. 5. That the common council be deprived of the power to appoint and remove officers, which tends to make it a political machine and, with let contion and which ought not to be exercised by a tracts, which is properly an administrative funclegislative body. The election by the city at large of half the whole number of aldermen, and of a president of the common council, who shall be a member of it and have a vote upon all questions, and who shall be a member of the board of audit and of the board of review of assessments. By this method it is hoped that the friction and occasional paralysis which now result from the equal political divisions of the members of the common council may be obviated. The creation of a board of public works, with jurisdiction of the water works, streets, parks, and sewers, with full power of legislative and administrative control of those subjects, and with power to inaugurate and execute all local improvements under proper limitations. The creation of a uniform system of assessment and collection of taxes and of assessments for local improvements. assessor for every city, and the abolition of assessment by wards. The inclusion of State and county taxes in the annual city budget and the collection of State, county, and city taxes upon one roll. The receipt, custody, and disbursement of all city moneys by one officer. The erection of a city court with mingled civil and criminal jurisdiction and the abolition of all existing police courts and courts of justices of the peace in cities; the abolition of most fees and the substitution of costs therefor. A uniform organization of the police department, to be administered by one commissioner, appointed by the mayor and removable by him, and that the commissioner have power to appoint the policemen, and, with the approval of the mayor, to promulgate and enforce rules for the government of the force not inconsistent with the ordinances of the common council. A bill is submitted for the establishment of a State municipal government board, similar in some of its features to statutes for the government of cities in England, which have been found to work well, and its enactment by the Legislature is recommended. Its main features are: the law entirely, has been the subject of much discussion in the daily press and has been debated before joint committees of the senate and assembly at hearings during the whole of the past week. The measure seems to be lacking in all features that would tend to restrict and keep within proper confines the liquor trade in this State. The provisions of the bill are, in effect, to allow the issuance of a license to The appointment by the governor, with the any person to sell liquor upon payment of the advice and consent of the senate, of a board amount of tax fixed under the bill. The of commissioners who shall have general criti- most unfortunate and objectionable feature cal and advisory powers over all the local of the bill is the abolition of the present municipal governments. It is made the duty board of excise commissioners and the failof this board to criticise and report upon all ure to provide for a competent person or perproposed laws affecting cities before their pas- sons who shall have discretion in the granting sage by the Legislature; to require such exof licenses. The scheme of the present explicit reports upon the different branches of city cise boards are the best plan which has been government as they shall prescribe, and to pre- suggested or devised to properly restrict the serve, tabulate and publish the same for the liquor traffic and to keep it within confines public use; strictly to investigate the conduct agreeable to the citizens of the locality. of the government of the cities, their depart and without loss or depreciation of value to the ments and officers, and to certify all municipal property in the neighborhood. Senator Raines bond issues as to their form, regularity and has suggested that he will make amendments legality. The recommendations of the comto the bill, which he hopes will in general mission seem to be in line with the advanced terms accomplish the same results as the boards theories of municipal government, which has of excise have done in the past. It was pecutwo objects in view; first, centralization of all liar to note that objections to the abolition of power in the mayor, and second, the abridg- the excise boards came rather in the form of ment of legislative authority, at least in so far suggestions as to how to accomplish what they as special legislation towards cities is conare now doing, rather than in any positive arcerned. It is, perhaps, proper to state that gument. The present supervision and restriceither political party, as soon as they obtain tion of the liquor traffic by the excise boards. power, at once attempt to strengthen their posi- have worked to the satisfaction of citizens gention and continue in office by passing special erally, and the existing provisions of the excise acts for cities, giving the mayor power in cities law seem to amply protect any person who is which are controlled by the same dominant grieved by the granting of a license in a cerparty, and taking away power in other munici- tain neighborhood or who thinks that the board palities. Such practices are to be very much has improperly granted a license to a person deprecated and result in the speedy overthrow unfit to carry on the business. The claim of the party, while the new political machine that the present power of the excise board is seeks its speedy death by the same ill-judged arbitrary, in that its decision is final, is absomeasures that caused the downfall of its prede-lutely false and untrue, as by statute they are cessor. The establishment of a State munici- required to assign a reason for their refusal to pal government board, similar in many ways to grant any license, and in all cases a review by that existing in England, would be a step in writ of certiorari is allowed by the courts. the right direction and will certainly lead to From the standpoint of the economist the better government and will give cause for Raines bills can be severely criticized and its greater satisfaction to the citizens of each city. provisions cannot be too strongly deprecated. The great cities of the State, where great sums are annually raised under the terms of the excise law, and who should receive the benefit The Raines bill revising the excise laws, in effect almost wiping out the old provisions of of this money, are, under the provisions of the present legislation, forced to pay into the State treasury one-half of the sum so raised. The amount paid at present by the cities of the first and second class for school purposes and for care of the insane is known to be largely in excess of what is a fair proportion. These excise moneys will, therefore, be turned into the general fund, and it is safe to assert that there will be turned into the State treasury over four and a half million dollars from the first and second class cities alone, while last year the total amount of the "general tax," so-called, amounted only to a little over five million dollars. Could any tax be more unfair, more unjust, more unconstitutional and more abhorrent to the present provisions of the Constitution? The history of tax legislation shows no special tax of any kind such as is contemplated in the Raines bill. The nearest approach may be seen in the tax levied for the payment of stenographers, which is assessed among the counties composing the judicial department for which the stenographers are employed. As all the counties have to pay a proportion of the fees of the stenographers in their district, although the tax may not be the same, yet it is a tax which is assessed for the same purpose, and varies in amount only because of the difference in the number of stenographers employed in the department, or in the amount of salaries paid them. Such a tax is not in violation of the provisions of the Constituton. It has been generally claimed that the excise moneys should be turned into the State treasury because the larger part of lunatics and of other criminals are brought to their present condition because of the liquor traffic. This statement is not only false but absolutely untrue, as the report of the commissioner of lunacy shows that only about ten per cent of the inmates of lunatic asylums are in their present condition by reason of intemperance, while, on the other side, it is well known that under the general tax of one mill raised under the State Care Insane Act the cities of the first and second class paid last year more than their fitting proportion for the care of the inmates of asylums who came from the large municipalities of the State. The provisions of the Raines bill give the comptroller the right to appoint fifteen inspectors. This provision might not, under the administration of an honorable comptroller, be used for political purposes, but the power and influence of such a body of men would very likely be used by the dominant political power to raise funds for campaign expenses and most certainly would be a large part of a political machine in the State so far as bringing the saloons into politics is concerned. do not claim that the present excise laws are perfect in every respect, but it is safe to say that with a few amendments the excise boards We could administer their affairs in such a way as would tend to restrict the sale of liquor within proper confines and give such an enforcement of the law as would be for the greatest good of all concerned. There has been considerable interest in the raid of Dr. Jameson and his followers from Bechuana Land to Transvaal. Many residents of countries other than England have observed for a long time how the acquisition of British territory is accomplished, first by the purchase of land by British subjects; their gradual assumption of governmental functions over those bits of land, and, third, their encroachment upon adjoining property. It is certainly true that the British lion is glad to find a new stamping ground and roars loudly whenever his nails can scratch a bit of terra firma which before was not his own. On general principle, it is true. that nobody will acquire without seeking, and certainly the English government, with all the talk about punishing Jameson, will at least take care of their citizens in Transvaal. The Law Journal publishes a very interesting little article on British suzerainty in the Transvaal which is as follows: German jurisconsults have often been accused by the unappreciative foreigner of triumphantly obscuring the obvious. And now the German press, with their usual omniscience, have informed the British public and the world in general that there is no British suzerainty over the Transvaal. It is true that they disagree as to how this state of things has come about; but they are agreed with impressive unanimity that there is none. Some writers hold that there is no suzerainty because the convention of 1884 abolished a suzerainty established by the convention of 1881. Others adjudicate to the effect that Dr. Jameson's relief march over the Transvaal border has had the effect of rescind ing the suzerainty established by the convention of 1884, and of reinstating the primitive independence of the Boer. Let us try and find a way through the mist. An impartial consideration of the conventions of 1881 and 1884, and of the interpretation put on these conventions by the subsequent action of the Boers and of the Imperial goverment, shows that a suzerainty has existed up to the present moment. 1. As regards the proposition that the convention of 1884 abrogated the suzerainty admittedly established by that of 1881- the following facts may be pointed out. First, it could only be by implication that it was abrogated; there is no express statement that the suzerainty was abolished. Is it conceivable that so serious State or nation other than the Orange Free State, nor with any native tribe to the eastward or westward of the republic, until the same has been approved by her majesty the queen." It will be seen, therefore, that not merely treaties with foreign powers are subject to the imperial veto, but all engagements, including the acceptance of such an extraordinary offer of armed assistance as that shadowed forth in Kaiser Wilhelm's unprecedented telegram to President Krüger. The Transvaal has no more right to conclude agreements with foreign powers independently of the imperial sanction than has Canada. Nor does the right of concluding separate treaties subject to the imperial veto constitute the Transvaal for international purposes other than a subordinate cluded, with imperial assent, a separate commercial treaty with France. a change in the relations of the Imperial govern-division of the empire. Canada recently conment to the Transvaal would not be expressed in the clearest language? Secondly, a comparison of the text of the two conventions shows conclusively that there was no idea of abrogating the suzerainty. The convention of 1884 only changes "certain provisions" of the convention of 1881. It leaves unchanged the preamble of the 1881 convention, which declares the "suzerainty" of the Imperial government and the "complete self-government" of the Transvaal. Here an awkward dilemma confronts the advocate of the proposition that the 1881 convention is wholly abolished. If it be and if the preamble of that convention was abrogated by the 1884 convention, then the "selfgovernment" of the Transvaal was abrogated as well as the "suzerainty." For the 1884 convention says no more of self-goverment than of suzerainty. But this is not all. The text of the 1884 convention is not so explicit as to the supervising power of the Imperial government. It declares that it was adopted in consequence of representations from the government of the Transvaal State," that the convention signed at Pretoria on August 3, 1881, contains certain provisions which are inconvenient and impose burdens and obligations from which the said State is desirous to be relieved." And, in consequence, less onerous burdens are imposed. But what provision touching suzerainty is substituted? "The South African Republic will conclude no treaty or engagement with any Passing from the text of the convention of 1881, of which the preamble, declaring the Imperial suzerainty, is still in force, and that of the 1884 convention, which regulates the exercise of the suzerainty by its substituted regulations, we come to consider the actual practice of the Imperial government and of the Transvaal. The Transvaal has been consistently treated and described as a State subject to British suzerainty. All communications from the Transvaal administration pass through the hands of the high commissioner for South Africa. This could not be the case if the Transvaal were independent. The British consul-general is invariably described in Pretoria as the resident-the title under the 1881 convention. In February last year, before any question was raised as to the existence of the suzerainty, the then under-secretary for the colonies declared that the 1884 convention had always been construed as placing the Transvaal "distinctly within the sphere of British influence in regard to its foreign relations." No objection to this statement, made with all possible publicity, was raised by the Transvaal or Germany or any foreign power. We next come to the alternative German suggestion that the recent crossing of the border by Dr. Jameson constituted a breach of the implied conditions attached to the conventions, and that, therefore, the hitherto existing relations come to an end. 'Suffice it to say in But it is obviously not to be interpreted as the act of the Imperial government. This is admitted by the action above described of the Transvaal executive. It is palpable in view of Mr. Chamberlain's proclamation disowning Dr. Jameson's action, and of the similar action of the high commissioner. It is clear, then, that no act of the Imperial government has violated or otherwise rescinded the conventions of 1881 and 1884. But supposing for a moment that these conventions have been abrogated by acts of war from the British side, or acts of disloyalty on the Boer side in concluding agreements with foreign powers without the Imperial sanction - what would follow? The German press declares that the Boer would recover his primitive independence. As a point of international law it is plain that no such consequence would ensue. The status quo ante fœdera would revive. And what was the position of the Transvaal before the conventions? The Transvaal from 1877 to 1881 was an integral portion of the British territory under the direct rule of the Imperial government. The magnanimity of the British government restored to the Boer population their former powers of local autonomy, but, unfortunately, without providing for the political as well as the civil equality of all subjects before the law. If the conventions are at an end, the Transvaal becomes British territory under direct Imperial rule. This, of course, is from the point of view of international law, with which alone lawyers as such are concerned. In actual fact, of course, what would follow would either be civil war in which it is tolerably certain that the majority of the European population would obtain the executive power and all the sanctions of legality to their exercise of that power- or else that Imperial armed intervention would restore order. The courts of the different States that have married women's enabling acts seem, inclined more and more to recognize the absolute distinction between the assets of the husband and the wife. In the recent case of Gould v. Moulahan (33 Atl. Rep. 483), it was held that where a married woman dies, leaving an insolvent husband surviving her, a proper third person, who has borne the necessary expenses of her suitable burial, may recover from her estate. The Court said: Every person has the right to have his or her body after death, decently buried. (Reg. v. Stewart, 12 Adol. & E., 773; Chapple v. Cooper, 13 Mees & W., 252; Patterson v. Patterson, 59 N. Y., 583; McCue v. Garvey, 14 Hun, 562.) The reasonable and necessary expense of according that right is chargeable to his or her estate (Patterson v. Patterson, supra). The duty of securing the right ordinarily rests with the personal representative, and if there be no such representative, or, if existing, the representative fails to act, the exigency of the situation will permit a proper third person to afford the right, in favor of whom the law will imply, from the representative's obligation, a promise upon the part of the latter to reimburse the reasonable expense of the interment, to the extent of the assets of the decedant's estate which may become available for that purpose. The implication of such a promise is a recognized exception to the rule that an action will not lie for a voluntary courtesy. (Force v. Haines, 17 N. J. Law, 389; Patterson v. Patterson, supra; Lakin v. Ames, 10 Cush., 221.) In case of the death of a married woman, the duty to bury her and discharge the expense of so doing devolves upon her husband, if he shall survive her. (Jenkins v. Tucker, 1 H. Bl., 90 ; Bertie v. Lord Chesterfield, 9 Mod., 31; Ambrose v. Kerrison, 10 C. B., 776; Bradshaw v. Beard, 12 C. B. [N. S.], 344; Cunningham v. Reardon, 98 Mass., 538; Weld v. Walker, 130 Mass., 423; 2 Bright, Husb. & W. 521; Macq., Husb. & W., 191; Schouler, Husb. & W., sec. 412; Eversley, Dom. Rel., 305.) His liability for the expense of the interment does not arise in virtue of any interest he may have in the wife's property, but from the personal advantage it is to himself to have those personæ conjuncta with him, his wife and lawful children, properly maintained during life, and suitably |