The Washington times. (Washington [D.C.]) 1901-1902, 1901-08-17
LATE LEGAL DECISIONS.

| The circuit court has no authority to
entertain suit to restrain the municipal
| assembly OF a city from passing an ordi-
nance giving a street railroad company q
right of way in certain streets. holds the
Supreme Court of Missouri In the case Of
Albright VS.. Fisher GA 8. w. Rep, 1860.
The ground Of the decision Is that the
structure of our Government Is divided
into three distinct Observation-Disclosures
tive. executive. and judicial-each OF
which is wholly Independent OF the others:
that the municipal assembly in passing
the ordinance was engaged in the per-
Torrance of its Legislative functions. and
that therefore the courts. which are OF
the judicial department. could not inter-
fere with the exercise of those functions,
In any way manner whatsoever.
whether by enjoining the passage of an
ordinance or by mandatortly compelling
the presiding officer of either house TO
| make that an ordinance which was not
an ordinance heretofore by appending
mis- unwilling signature thereto.
In determining the constitutionaiity OF
| special assessments Judge Hanford. of
the United States Circuit Court of Wash
ington. in the case of White VS.. City OF
Tacoma Qo9 Fed. Rep. 32). held: That
State laws providing for the assessing OF
street improvements upon abutting prop
erty. which in practical operation confis-
cate the property. are obnoxious to the
Fourteenth Amendment to the Constitu-
ton of the United States, and for that
reason 1t is the duty OF the courts to de-
clare them void: that special assessments
to pay for local improvements of public
streets and highways do. In practical eff
feet. deprive owners of their property
without due process OF law unless inc
property subject to assessment IL benefit
ed by the Improvement CORES )ondingly to
the amount of the assessment, and that
owners of property have the right to
appeal to the courts for judicial protection
against the unconstitutional invasion OF
their rights by municipal governments in
enforcing State laws or local regulations
for the collection Of assessments which
are in excess OF the benefits to the prop
erty assessed accruing, or to accrue by
reason of the improvements TO De paio
for by such assessments.
Where manufacturers have used the
word excelsior to Indicate certain felt
pads manufactured by them. and have
adopted label having on 1t "Exceisior
Felt Pads which they have employed for
many years In their business as such
manufacturers, and the pads have become
known to the trade by the name and
label adopted, the New York Supreme
Court appellate division, In the case of
Volger VS. Force al N Y. Supp. 2oSl,
held that they have a valid trade mark
contended that there was no name Upon
the label, and that a person could nos ac-
quire a valid trademark unless his name
was part Of the trademark. But the
court held that this was novel PROPOSE
ton, unsupported by authority and en-
tirely opposed to the principle upon which
a trademark, when adopted, becomes
property which a court OF equity will pro-
tect.
In life insurance policy the party in
sured agreed that | will not die by my
own act =" while insane He did die
of suicide. and while insane The insur-
ance company held that the beneficiary
could not recover on the policy. But the
court Omitted States Circuit Court. s.
D., Iowa. Kelley VS.. Mutual Life ms Co.,
1Os Fed. Rep. So. held that the agree
ment did not defeat the recovery, since
1t was an agreement impossible for the
party insured to observe. and known 20 be
so by both parties. In discussing this
question, the court said: TO what ex-
tent he was insane the evidence does not
show He may have known right from
wrong He left a letter announcing his
purpose, and giving some directions about
his funeral and his insurance. He may
have been driven to suicide by an IRE
sistible and uncomfortable impulse. L am
warranted in holding the latter. If this
be so, then when Kelley agreed not TO
commit suicide while insane he was
agreeing to that which was impossible
to observe. He knew this when ne go
agreed. and the company knew It equally
we'll. 1t was an impossible contract; mn
possible to observe, and an impossibiiity
known by Doth parties when they 50
agreed"
homestead claimant. after making a
homestead entry and occupying public
land under the United States homestead
laws. executed mortgage on the land
S..l1 1fry
with the law emitting him to make final
proof and obtain title thereto he, died.
The Supreme Court of Nebraska held as
against his heirs at law, who perfected
the entry, made the required final proof
of settlement and cultivation, and obtain
ed from the Government title to such
land. that the mortgage was Intellectual
to create any valid lien thereon.
Where barber and owner of shop
sold his furniture, tools. and fixtures. and
agreed that he would not engage in the
barber business in any manner in the
town, the Supreme Court of Kansas. in
the case of Pofiiman VS.. Dawson (6o Pac-
Rep. 6S9), held that a decree entoiniDg
the barber from. working as an employe
of the owner of another barber shop in
that town will be sustained.
A brick mason was insured in an acct
dent insurance company, and his policy
provided that the company would not be
liable in case of voluntary or unnecessary
exposure to danger. While at work on
scaffolding, which was supported by
horse at each end and one in the mid
die, the support at one end was removed
without the knowledge of the mason. and
in stepping on the unsupported end he fell
to the ground. and was killed. The evil
dence showed that the contractor called
the man S attention to the loose ends, but
1t was doubtful whether the mason heard
and understood what was meant The in
surance company contended that the ma
son was guilty of voluntary and unneces-
sary exposure to danger. But the Su-
preme Court CMichigan) held that there
was no evidence of negligence. and that
the beneficiary was entitled to recover on
the policy. Qrvin VS.. Phoenix, etc, AS
ISOLATION Sc n. w. Rep, 1861
One who undertakes for a consideration
to do work requiring special skill, i'm
pliediy represents that he possesses and
will exercise such reasonable degree of
skill as the nature of the services may
require, holds the Supreme Court of Ne
oraska in the case of Van Nortwick VS..
Holbine Csc n. w. Rep, 1856: and. II he
IS to furnish his own tools, Implements.
Or machinery. there is an implied repre-
as to their fitness for the use
10 which they are to be put.
A penal bond executed by a person who
$ thereafter adjudged bankrupt, TO Sc
cure the payment to the obligee OF an an
nuity during life, is held by the United
States Circuit Court of Appeals. in the
,ase OF Cobb VS.. Overman Q09 Fed. Rep.
80. to be an instrument creating a fixed
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