The times. [volume] (Richmond, Va.) 1890-1903, 1900-02-09

when they told the jury that rlalHs evet
a bridge faster than walk was uiii.1"
f,,I and rightly left the jury 10 ae'ei
mine whether the negligence ccntr'.u.es
In any way to the injury OF the pial'siii-
There is a marked distinction,
the court. "between the effect upon eie
right of the plaintiff to recover tor al IN
Jury. when it is shown that he was al me
time violating a statute, the opJsct "
which IS to prevent undue wear and tear
of bridges by fast driving, and the eject
1Inon the defence OF contrfbutory negii-
sence. when il is shown that the deteI1-
dant has failed to perform positive du.y
imposed upon him by law, having ZOE IT'S
object the protection Of the puohc, hsii,e
the decisions of this court in a y ~. II.
r. Co. VS.. Reiger, 95 Va, 426; and Simons
VS. Southern R'v. Co, 90 Va, 155. relied
on by defendants counsel, have no appIl-
cation in this cae.'
VIOLATION INTERSTATE CON-
MERGE.
Adkins & Co. VS.. City of Richmond. Opln-
ion by Judge John w. Riley.
The question involved In this case is
the validity Of the license tax imposed
bv the city of Richmond upon the plaintiff
in error as merchandise broker, ana
for the non-paymsnt whereof he was
prosecuted and fined in the Hastings
Court of this city.
The question of Jurisdiction was raised
by the counsel for the city upon TAG
ground that the record did not shoiS
specially that the tax was imposed on
cons titutional grounds. The court he!d
that ..the jurisdiction of this court must
attir1natively appear upon the record, oul
it does not so appear where the court
can see that the judgment OF the lower
court necessarily involved the constltu-
I1rkA
drew in question some right under the
Federal or State constitution. Any pro-
ceeding which necessarily puts its validity
in issue, whether it be a demurrer, plea,
instructions or otherwise. is sufficient 10
give this court juridction. =
The g'!st OF the case may be said 10 oe
found in the instruction asked for by the
counsel for Mr.. Adkins in tire trial court,
which is as follows:
IF they shall believe from tha evidence
that Thomas Adkins. trading under the
name of Thomas Adkins & Co.. only car
ried on business as a resident sales agent
for nonresident principals, and that his
employment is exclusively confined TO re-
presenting nonresident principals in the
negotiations Of the 5 lies Of goods Wnfch
are in otlser States. then they must ind
for the defendant Adkins.
The court below refused TO so instruct
the jury, wt.ereupon bill Of exception Was
taken and appeal had to this court The
court said:
While the instruction asked for does
not refer to the commerce clause OF the
Feredal constitution, it is manifest that
thu defendant intended by tie Instruction
asked for to invoke its protection, and
that the trial court by refusing To give
the instruction decided that the business
of a resident sales agent. though nm!ted
exclusively to nonresident prlnclpa!s'
was not within the protection OF ART. !,
Sec. s, Clause 3. Of the Constitution OF the
United States
This was the question presented 10
and decided by the lower court against
tho contention of the defendant. ADKINS.
In summing UP It's opinion the court
of Appeals says:
= Upon the cases which have been CITED
and in accordance with the Drincl,lss
enunc;.ted in them, it must ba held that
the license tax imposed by the city upon
the plaintiff IN error for the privilege OF
pursuing his said business, was direct
burden upon Interstate Commerce. and
was, therefore. beyond the power OF the
city. Tbs rdinance under which the tax
was assessed was not in any manner the
exercise of the police power reserved to
the State.s but an ordinance adopted Hln1-
ply aud wholly tor the purpose Of sa1ssns
,eveY,.. e. !.
tbs Judgment OF The Hastings Court
is reversed. the verdict OF the jury sec
aside and "a new trial awarded the olaif-
q THE SO iaIARY
W. st CI2SRS And ~