The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-11-22
NOVEL POINTS OF THE LAW.

Riders IL held by the Court OF Appeals
OF Kentucky in Tandy VS.. City of Hop
kinsville, In which tho court construed a
statute providing that the city should be
liable for the full amount II property Is
injured or DESTROYED by any riotous or
tumultuous assemblage OF people ~ the
authorities thereof have ability OF them
selves or with the aid of their own cltl-
zens TO prevent such damage" The stat
ute also has clause providing that no
citizen could maintain such action II ne
contributed by word or deed toward in
citing the tumut or riot. or failed to do
what he could to suppress II. The court
said:
The plaintiff rented his property to
Independent dealers in tobacco. and this.
in the eyes Of these Night Riders was.
, we have no doubt. a grave offence, merit
| Ing the severest punishment they could
| infiict. But clearly the plaintiff had the
, lawful right TO rent his property for law
| full purposes to whom he pleased and for
what purposes he pleased, and II Is not
to be tolerated that these lawful acts Of
citizen are TO be tortured into a con-
| tribution toward exciting or aRgravating
tho vicious qualities OF n mob who might
believe that a citizen did not have the
right to mako legal use OF his property
| X 1t ran counter 90 their desires.
Neither 10 Il TO be said that because ne
ala not employ guards 20 protect his
| property ne failed 10 do what he reason
Ably could toward preventing It's destruc-
ton. Tho private citizen who owns prop
| erty In q city may, OF course, employ
guards and reeort to other lawful methods
| TO protect his property II ne desires 70
| do 30. but Ms failure TO do This. although
| he may have reason 10 anticipate its de-
| struction by mob. VIII not excuse the
| city from is duty to protect the property
| Of Its citizens from Injury or destruction.
| The citizen who comes within the shield
| OF this statute has a right TO depend On
| the city for the protection OF his prop
erty, and under this statute n the city
| fails in It's duty, its liability ls NOT d!mln-
| ished by the failure % the citizen 20
| have II guarded The statute. subject 10
specified conditions, imposes upon the city
Q liability. and this liability 1. can escape
only by performing It's duty rs described
in the statute"
Whether the duty Of keeping the streets
clean Ia a governmental or administrative
function was the question before the Su-
preme Court OF Georgia in Mayor OF
| Savannah vs. Jordan. IN which tho court
ruled that the duty Is q governmental
function. the exercise OF which would
exempt a municipality from liability for
damages to an employee without fault
who was injured by reason Of defec-
tive cart" The courts opinion on the
question. which is OF long standing con-
troversv, Is In part as follows:
1T II a matter OF common knowledge
that the sweepinss OF the streets contain
matter other than dirt and trash which
which II allowed , remain will tend TO
affect not only the comfort but the health
OF tho community az well
Even the English sparrows take cosni-
zsnce OF this and act as scavengers IN
removing 81 And II matters not that the
duty OF removing this cause OF discomfort.
Inconvenience and III health 70 the COM
nunity Is delegated TO the streets and
lanes department OF city. 1t ~ not the
character or name OF the agent who exc
cutes the duty OF removing the cause OF
discomfort and III health to the public
which fixes the character OF the duty
performed. but Il Is the act Itself which
determines whether II be governmental
or ministerial. II Is immaterial whether
the work Is done under the supervision
OF the board Of health OF a mun!cipalltS
, | or by the director Of public works, OF
under the streets and lanes department.
The duty IL the same. and that is TO re-
, move from the streets all the sweepng'
, | and garbage and whatever would con
taminate the atnosphe and breed i,s
thence and disease; and such duty is ?
governmental and not a ministerial. func
ton Il IL one that the entire pnoH'
, living within or without the municipality
ts concerned In. the enforcement Of ,aw'
, FOR The preservation OF the comfort an.
. health Of the citizen"
A conviction OF two persons for M
sale OF hsron. under which they were
: sentenced to three months in the pen!
Tertiary and TO pay a hnc ~ $500. IA
3 been reversed by Judge Mott IN Genera
Sessions, on the appeal by the defend
ants, on the ground that the section OF
I,fa not ~ ne
were convicted II unconstitutional because
: n confers powers on city Magistra'" .
, sumrnar!ly try and convict deIendan
j, for a violation OF the sanitary code, whici
, violation has been declared 20 he mis-
demeanor. Judge Mott said
THE learned Justice before whom th'
: case was tried declined TO pass upon th!'
point, saying that in his opinion an &C
OF the Legislature should be declared an
constitutional only by an appe'at" ir'
r bunal. while the Cour: az Htuotdl 500
: s,ons has appellate tn"isd.ct IN c'S"
n of convictions by CIV MAGISTRATES. I 80,
terrain the feeling that single luis'
, should be reluctant, even though si'tiu'
= in an appellate capacity, 20 declare AN ac
unconstitutional, especially wh,r" tner
0 in no right Of appeal from his decision
I Hut where such "A Judge entertaiuS ~
. doubt OF the unconstituuon1lity of AN %"
Il is his duty 20 render hls decision an'
- not evade responsibility As Section 4"
n OF the inferior criminal courts act appear
{ 10 me- clearly To be unconstitutional M FED
FAR az Il attempts to confer jur'Sdiri al
upon C!ty Magistrate 90 try acts terl'r,
. nv law TO De misdem"anors, I am en-
A strained 70 reverse the iudgmcr'.
!, In Wiley vs. Howell before the Cour
OF Appeals OF Kentucky the conr: hcl
70 that In an action against the father o
h plaintiffs wife for alternating her aifct
;. lions from tho plaintiff and persuRdin
" her to leave him a letter written by IN
o wife 10 her mother before the abandon
y mont, charging long continued mistreat
/, mont by her husband which made It i'm
, possible for her 10 live with him, va
competsnt evidence whether Il had Doe
10 brought 70 the plaintiffs attention or mo-
Tho court said
But the letter purpo-ed to be. an
10 We must assume was In che handwr't'n
Ia OF tho daughter, II was written ~ IL
p before the rnal separation took place an
ls while she was living with nor huSho"
'e and furnished. II true. tho most co0Vln,
ing reasons why she intended 70 leave he
II husband and SO 70 'hr homo 90 N'
~ parents That this lrttcr, written hE No
a would have been much more effective 'v
dence OF the causes that were op"rni 70
upon her mind 20 induce he" 20 take M
step che did than were IN" statements ID
the appellant IA 70 what mo dnuSN '