[1] Fourth of July Address at the Church of Saint
Mary's-by-the-Sea, Northeast Harbor, Maine. Published
herein by request of the Editor of the Law Journal.
See "Editorial Notes."
The exercises of to-day are a revival, temporary perhaps, but still a
revival, of the good old custom of celebrating the anniversary of the
Declaration of Independence by public meetings, with prayer and song,
the reading of the Declaration, and a patriotic address. It was a good
custom, though it tended to foster some erroneous ideas, particularly
that England as a nation was blameworthy in Revolutionary times, rather
than the political machinations of George III, the politician king. But
it was a good custom for all that, and it is regrettable that it gave
place to noise and fireworks.
In the more recent years the date has been significant of other great
crises in our history than that of Revolutionary times. That was, of
course, the greatest of all, and never to be forgotten, as it marks the
definite transition of thirteen colonies into thirteen States, organized
for war purposes as a nation. There had been over a year of war,
beginning with the skirmish at Lexington and the British retreat,
followed quickly by Ticonderoga, Bunker Hill, and the investment of
Boston. During the fall and winter there were the episodes of the
burning of Portland; the capture of Montreal (later relinquished); the
capture of Norfolk in December; Arnold's heartbreaking expedition to
Quebec through Maine forests in the dead of winter; the battle of
Moore's Creek, N. C., early in 1776, called the "Southern Lexington,"
and, to crown all, the evacuation of Boston. These events and their
concomitants, say the historians, made inevitable the Declaration of
Independence, though the struggle began only as one for greater colonial
self-government and modification of the taxing system. It was our first
"birth of Freedom," which has been re-born more than once since.
I said the date marked other great crises in our history, and take time
to mention two of them, both in the memory of living men. The first, and
the greater, was in the midst of our Civil War, when the news of the
twin victories of Gettysburg and Vicksburg flashed over the land. Dark
days were still to come, and men were still discouraged; the war was to
be proclaimed a failure by a great political party, but the power of the
Rebellion was broken, and, after July 4, 1863, the setbacks to the cause
of nationality were but temporary and comparatively insignificant. A
second great crisis was safely passed.
The third great Independence Day, great for what it brought to others
than ourselves, was thirty-five years later, when the tremendous news
came that the Spanish squadron, practically all remaining efficient of
Spain's navy, had been destroyed off Santiago. That day marked the
downfall of Spanish power on this continent, and the liberation of
oppressed peoples in both hemispheres; the culmination of a righteous
war against a civilized and honorable foe, whose principal shortcoming
was a hopelessly antiquated point of view and inability to deal
intelligently with modern conditions.
These great anniversaries all marked the definite passing of crises; the
present one rather falls within a protracted period of crisis than marks
the passing of one. If we were to celebrate the anniversary of the
greatest crisis of recent times, I should name July 18th, 1918, when, as
most of those here will remember, the glad peals of the bell above us
sounded the news that the great allied offensive had opened. Of this
more in a few minutes.
But July 4 as a date does not even mark the signing of the peace treaty.
It is suggestive, however, of two things to be borne in mind at this
time: the genius of our country as a lover of liberty and fair play, and
the relation of that genius concretely to the problems of the recent
past, and the present, and the immediate future.
The announcement of such a subject gives me pause, for it is one for
mature consideration and careful discussion by the best of statesmen.
But there are some considerations, rather obvious perhaps, but still
worthy of inclusion at this time, which I should like to present.
I mentioned a moment ago our love of liberty and fair play. With these
goes a constitutional tendency to mind our own business, let other
people's business alone, and to avoid interference until convinced of
its necessity. Until 1914 we felt secure on our own continent, gave no
offense and sustained none. Fearing no war, we deemed preparation a
waste of money and time; we were not disposed to pay expensive insurance
premiums when our house was too far removed from others to be in danger
of conflagration; against internal incendiarism we thought ourselves
guarded. The warnings of Manila Bay in 1898 and Venezuela a few years
later made no impression. Confident of our ultimate resources, we
assumed no one would attack to court ultimate defeat; and above all,
fair-minded ourselves, we were utterly incredulous of unfair-mindedness
in others. Wise and farseeing men gave warning from time to time, but
the impressions were momentary.
And so, when in 1914 the assassination at Serajevo was quickly followed
by an impossible ultimatum, and this in a very few days developed into a
general European war, while our minds and souls revolted at a great
injustice, our continental habit of thought resisted the suggestion that
we should interfere to right that wrong. We did not see far enough;
there were those who did; and I heard two wise men, summer residents
here, agree in this very town in August, 1914, that this nation should
take part, and at once. But public opinion did not run in that channel;
nor was it led into it by our chosen rulers. These also were
shortsighted, however their vision may have been clarified subsequently.
We were told that a people should be neutral in thought as well as in
deed; and so we stood by and watched Belgium, a neutral country, ravaged
and pillaged; France invaded and destroyed; Serbia depopulated; Russia
crushed. A great crisis like the battle of the Marne stirred men's
souls, but without bringing home to us as a nation the ultimate danger
to our liberty. The consummate outrage of the "Lusitania" made an
impression never effaced, but the rising indignation of the country was
met with the caution that "a man may be too proud to fight," and this
crisis passed over also.
But the great giant was stirring in his sleep. Trumpet calls came from
men high in public esteem, among whom it is sufficient now to mention
Roosevelt and Leonard Wood. "Preparedness" was their reveille. Our young
men heard it, and in 1916 at Plattsburgh, and I think elsewhere, sprang
up the training camps. The colleges offered their facilities; and
although in the fall of 1916 there was still, as in 1860 and 1861, a
large proportion of "peace-at-any-price" men, so large in 1916 as to
permit the election of a President on the party slogan "He kept us out
of war," the time was fast growing ripe. Infatuated Germany, confident
of victory in Europe and of later victory on this continent, or risking
all on the submarine issue, went a step too far, and the giant woke up.
Woke up,--yes; but about as helpless as Gulliver on the Island of
Lilliput. The "man mountain" was tied fast with the cords of
unpreparedness, red tape, departmental inefficiency, official jealousy
and hostile intrigue. As in 1812, in 1847, in 1861 and in 1898, there
was little or nothing ready; all had to be created. The lowering of the
thunder-cloud had been unheeded. We had some destroyers and battleships
and cruisers; these were sent at once where most needed. But to our
shame, be it said, we had no trained men except the little regular army;
no great guns; no appreciable number of field pieces; no machine guns;
no small arms even, although our .30 cal. Springfield rifle is justly
pronounced the best small arm in the world. I have shot it and know it
well. They cost at that time about fifteen dollars apiece. A million of
them would have cost 15 million dollars, a sum which in these days makes
us laugh at its insignificance; it is one-half of one per cent. of our
first Liberty loan. We had not even the special tools to make barrels
for these small arms in quantity, and actually had to use English tools
to make English type rifles, greatly inferior to our own, to get any at
all for our men. The other day I saw it announced with pride in the
newspapers that our rifle had won in competition over all others; but we
did not have them when wanted, and probably have not made them yet. We
had no field pieces to use abroad, and our artillery was equipped with
the French .75. A few naval guns were landed and mounted toward the
termination of hostilities. The aeroplane scandal is known of all men.
And it was a year after we declared war before we entered Europe in
force, and equipped then with English rifles and French field guns; and
our men were transported to Europe mainly on British ships.
But in this trying period several things stand out clear and bright, and
as inspirations for the future. Two are psychological: the spirit of
Americans of alien descent, and the participation of our great
educational institutions; one, official as well as psychological, the
selective service draft. The patriotism of the native American of the
old stock goes, of course, without saying.
The true ring of our heterogeneous population of foreign extraction was
to many a joyful surprise. That so many who had never seemed to
amalgamate with our customs, were largely uneducated, and did not even
speak our language, should respond so willingly and gladly to the call
to the colors, was a source of some amazement. Not being in their
confidence or intimacy, many of us little realized their loyalty: which
reminds me of an Italian bootblack who in conversation told me that he
wished to travel. I spoke of the beauties of Naples and Sorrento and
that neighborhood, and was rather abashed when he said: "Yes, but I
would rather see my own country first." I hope that lesson will always
be fresh in memory.
The same spirit of Americanism marked all nationalities, not excepting
the German. The lists of draft registrants from, let us say, the east
side of Manhattan Borough, reminded one of the Epistle for Whitsunday:
"Parthians, and Medes, and Elamites, and the dwellers in Mesopotamia,
and in Judæa, and Cappadocia, in Pontus, and Asia, Phrygia, and
Pamphylia, in Egypt, and in the parts of Libya about Cyrene, Jews and
proselytes, Cretes and Arabians," all heard, and, with the deep
realization of newly liberated peoples, showed themselves proud to
answer the call.
A recent war or Liberty loan poster is most suggestive. You read on it a
list of men's names, mostly unpronounceable, and suggestive, in the
language of the same Scripture just quoted, "of every nation under
heaven," and this is summed up in the phrase, "Americans all." Truly, a
fitting tribute to our adopted citizenry, equal in loyalty, bravery, and
self-sacrifice to the best of the old Americans. Among them, as just
noted, the German names stand out boldly. They are so numerous, in fact,
as to attract less notice in this country than they deserve; let us hope
that they will be noticed and taken to heart in the misguided country
where such names originated. I would that our American army, made up in
large part of such men, could occupy Germany for a time as it formally
occupied Cuba, for its own good, and give a much needed object lesson in
the theory and practice of free institutions.
These men, as I have said, were largely uneducated. I turn now for a
moment to those in our great seats of learning, and to the heads and
faculties and trustees of those institutions. Their stand was doubtless
one to be expected, but is still worthy of remark. That the best blood
in England suffered the most losses I think is conceded. That would have
been the case with us if the war had broken on us as it did on Great
Britain. As it was, our boys courted the posts of danger--aviation;
submarine chasers; balloon observation, and so on. Some left college to
enter the service; others stayed at college awhile, but in order to
train and perfect themselves in the art of war. The colleges themselves
became military schools; the dormitories barracks. For a short time some
anxious mothers held back, and it is little wonder that they did. But it
was not for long, and soon the woman who could wear a pin, with one,
two, or more stars in it on her bosom, gloried in it, while she who wore
a star of gold, in all her grief still cherished the solemn pride, as
Lincoln called it, of having laid so costly a sacrifice upon the altar
of her country. Whether the son was a student or ploughboy, a bootblack
or factory hand, or the son of a millionaire, the feeling was the same.
In fact, there was a tendency at first among the people at large to
suspect the well-to-do and moneyed classes of holding back their sons.
This soon wore off; and one of the most inspiring as well as instructive
sights I ever saw was on this very island; the parade of war mothers on
the Bar Harbor fair grounds; women in all walks of life, some with gold
stars on their badges.
College presidents who encouraged the entry of students into military
service came in for adverse criticism, but that soon passed, and now
that college, the largest percentage of whose students and graduates
went into the service, points with the greatest pride to its record in
that respect.
I think, however, that the greatest achievement of the war, and the one
that makes most for the future safety of our country, is the success of
the selective service draft. All the books ever written, all the
lectures ever delivered, attacking the pacifistic tendencies of our
people, fail to accomplish anything of consequence in comparison with
that achievement. Whether our people have undergone a great psychologic
change I know not. It is certain that at no time previously had they
submitted willingly to be drawn into service. For a century and a
quarter militia and volunteers were the basis of the armed power on
land. During the Civil War drafting meant riots. During all our prior
history bounties for enlistment were an accepted fact.
Some of us may have looked into General Upton's great book called the
"Military Policy of the United States." Until recently it was withheld,
for some reason, from general publication. It is the basis of a later
work by another author, "The Military Unpreparedness of the United
States," which appeared about 1916. Both exhibit in startling fashion
the fundamental evils of volunteering and bounties. But not until the
stress of this great war did the old theories give way. We had a real
man as Provost Marshal General, and his name is Enoch H. Crowder, and my
own University (Princeton) and others as well, honored themselves
recently by conferring the LL.D. degree on him. I care not whether he
evolved the draft machinery himself or whether it was suggested by
others. Probably it was a result of both processes; at least he knew a
good thing when he saw it, and, like other large men, was unconcerned
about whose idea it was. Here was the problem: several million men of
age 21 to 31 to be listed, with particulars about them; those available
for military service to be selected; from these, a certain number to be
drawn by lot. The system used in the Civil War was hopelessly
inadequate; army officers could not be spared to supervise the lists;
how were the names to be obtained? How recorded? How drawn?
The origin of the fundamental plan was told me by General Crowder
himself on the day when he received his Princeton degree. He said that
he was in his office racking his brain for a method of registry that
would not take a year to operate, when a Congressman came in, and to him
he told his difficulties. The interview terminated much like that of
Alice in Wonderland and the Caterpillar, who told her how to change her
height as it crawled off through the herbage. As the anonymous
Congressman was going out through the door, he said over his shoulder:
"If they can elect a President in one day, they can register in one
day." Let us thank God that the General had good ears, and excellent
communication between them and an active brain. "Elect in one day"--48
States; each with so many counties; each county having so many
municipalities; each municipality so many election districts; civil, not
military, officers for all of them; officers known to and knowing the
people; Governors; mayors, election boards. _Why not_? Here is the
machinery ready made, and at hand! All that is needed is to get it
going. Forty-eight Governors responded enthusiastically; all forty-eight
kept the great secret ready to pass it on to local officials; the result
we all know.
Two other things were needed; the willingness of those that were of
draft age to come and say so; and the confidence of the public in a fair
drawing. The latter was secured by the use of master numbers applicable
to every district; the former came naturally as a result of the system
itself. Every man of draft age became qualifiedly a volunteer, and
marched to the polling place, saying: "Here I am when wanted." To this
the abolition of bounties and substitutes, the curses of the old system,
largely contributed.
These are three of the great things for which we should give thanks on
this Fourth of July: the solidarity of Americanism; the leadership of
our Universities, and a practical and popularly acceptable method, now a
precedent for all time, of calling up the man power of the nation. A
fourth is the resultant of them all: a great army of young men (as has
been said many times), future leaders in political life, keenly alive to
the real freedom of our American system and determined to uphold it and
to stand no nonsense about it. But for the consciousness of our
possessing this element, and but for our faith in it, we might well look
with most anxious foreboding at many troublesome and dangerous questions
now uppermost in our national life.
For in the midst of triumph sounds the note of anxiety--many discordant
notes in fact. Will the treaty finally be ratified? Will peace last?
Will the Germans respect their promises and fulfill them? Or will they,
already talking again of a scrap of paper, straightway begin to prepare
for a fresh coup twenty-five years or so hence? Must the peace-loving
peoples of the world still apply themselves to that most distasteful of
all tasks, the invention and manufacture and practice of means of
destroying life and property in war? And what about internal affairs?
Are individual enterprise and talent to be smothered by rule? Is the
Constitution of the United States a worn-out old one-horse shay, ready
to drop to pieces all at once? Is the Senate a back number? Is the
peaceful rule by majority to be exchanged for Bolshevik dictatorship? Is
our transportation industry to be ruined by taxes and rate control at
one end and cost of labor at the other? Should we take an active part in
the affairs of the Eastern hemisphere, and invite European and Asiatic
powers to help regulate our continent; in short should the national
policy called the Monroe Doctrine be abolished?
These and many similar questions are pressing for solution. They are not
mere fancies; they are not partisan issues, though many stentorian
shouters proclaim them such; they are live and vital questions which
must be solved and will be solved, doubtless at great cost in treasure
and perhaps at some cost in blood. That they will be rightly solved in
the end I have no doubt. Nothing is settled, said someone, I forget who,
until it is settled right. It is for you and me and all of us to bear in
mind that our work is only half done: that our sacrifices and labors and
efforts during this great war that is just closed, I hope forever, are
but the beginning, and that we owe it to our country and our children to
do what we can to encourage sanity, deliberation and temperance of
thought, speech and action in all classes of the people.
Mild as that sounds, it is a stupendous task to perform. There rarely
was a time when unthinking people were not more inclined to listen to a
demagogue rather than a statesman; and few people think at all; still
fewer think straight. It is a rebellious people, saying "Prophesy not
unto us right things, speak unto us smooth things, prophesy deceits." It
is a time of epithets rather than of logic, of lying epigrams rather
than solid truths. All the wealthy, it seems, are corrupt; all money in
large amounts is tainted; even the scales of justice are accused of
falsity. Ebullitions of this kind often indicate an undercurrent little
suspected.
I realize that I am saying little or nothing that is new, and I have no
new methods or theories to offer for meeting the situation. One thing is
certain; before we can teach other people to think clearly, we must be
able to think clearly ourselves; to formulate and make others realize
the real issues; to perceive the fallacy or confusion in the opposing
line of thought, and point it out without offense. It is a maxim among
lawyers that a case well stated is half argued, and nothing can be more
to the point at this time. We still have real statesmen; let us listen
to them with attention and take care not to hurry too much in deciding.
Impulse leads to irretrievable error much oftener than does
deliberation. Sober second thought is usually the better.
But, notwithstanding this anxiety, let us rejoice in the great victory
of Liberty over autocracy and militarism. As we look back over the last
five years we see many a vision; some dreadful nightmares, others with
the seeming of the good God taking direct part in the affairs of men.
The rape of Belgium, the miracle of the Marne, the tedious deadlock in
the trenches, the ghastly failure at Gallipoli, the collapse of Rumania,
the tragedy of Russia, the debacle in Italy, the heroism of Ypres and
Passchendaele and Verdun; then the ever present dark shadow of the
submarine; the agonized cry of exhausted England and France for men,
men, men, as one offensive broke towards Calais, another towards Amiens,
another straight for Paris by way of Chateau Thierry, while our brave
boys seemed to be training interminably; the halting of the Hun at
Belleau Wood and Chateau Thierry; the crouch of the American wildcats
for their spring; until, as men's hearts seemed to fail them, and the
cry went up, "How long, O Lord, how long?" the little bell of St.
Mary's-by-the-Sea rang as it had never rung before. Peal after peal:
some good news: what is it? "The Allies have attacked; the front between
Soissons and Chateau Thierry is all crumpled up: the Germans cannot hold
the salient."
Smash after smash: it is our turn now; in Flanders, in Picardy, in
Champagne, in Lorraine: by Britain, by France, by America, singly,
doubly, and all together; each day a new victory headlined; the military
lines approaching the French boundary; the thumbtacks moved each day on
the war maps; St. Mihiel salient wiped out; Rheims freed of bombardment;
Argonne Wood, our present day battle of the wilderness, takes time and
its awful toll of human lives, but yields, for the first time in
history, to an attack by American troops; Grand Pré and open country
beyond. Forward again, until a great railroad line is cut, and Sedan,
the catastrophe of 1870, becomes the final triumph of 1918. How we
watched the telegraphic bulletins! How we studied the maps! Until, after
one false report of an armistice, the real armistice came, and our
peace-loving people, joint victors in the greatest war of all time,
turned into a horde of lunatics.
What a day it was, that eleventh of November! I was in Boston to attend
the wedding of a nephew, a Colonel of Artillery, who had commanded his
regiment at Cantigny and had later been ordered to this country in
connection with organization and training of troops. The guests had to
walk, as no vehicle could thread the crowd. Late editions of the papers
contained the armistice terms in full, and, as our somewhat numerous
family was gathered for five o'clock tea, one member was deputed to read
the terms aloud, and there were attentive listeners. After he had
finished, no one spoke for a moment; and then a voice said, "That seems
to cover the ground."
Truly we have much to thank God for, this Fourth of July. We have left
undone some things that we ought to have done, and we have done some
things that we ought not to have done; but I cannot say now that there
is no health in us. Once again we have had a new birth of freedom; once
again we highly resolve that our dead shall not have died in vain; once
again we resolve, and I think that we have shown by deeds our
determination, that "government of the people, by the people, and for
the people shall not perish from the earth."
AMERICAN STEEL FOUNDRIES v. TRI-CITY TRADES COUNCIL.
(U. S. Supreme Court, Dec. 5, 1921).
_Strikes--Picketing--The Clayton Act--Circumstances to
Be Considered in Injunction Case_.
[NOTE--The following case on picketing is so important, being the latest
and a final decision of the highest Court in the United States on a
matter which has been treated differently by various Courts, that we
reproduce the opinion here, as published in the "New York
Times."--EDITOR].
TAFT, Ch. Justice: This is a picketing case. Only two men in the employ
of the Foundries had responded to the calling of the strike by the
Tri-City Council. They were picketers, were defendants, and were
enjoined. Only one of them was a member of a union of that council. The
case involves, as to them, the application of Section 20 of the Clayton
Act, of which the provisions material here are those which forbid an
injunction in behalf of an employer against, first, persuading others by
peaceful means to cease employment and labor; second, attending at any
place where such person or persons may lawfully be for the purpose of
peacefully obtaining or communicating information; third, peaceably
assembling in a lawful manner and for lawful purposes.
The Act emphasizes the words "peaceable" and "lawful" throughout the
phrases which were used. We do not think that these declarations
introduced any new principle into the equity jurisprudence of the
Federal Courts. They are merely declaratory of what was the best
practice always.
Congress thought it wise to stabilize this rule of action and to render
it uniform. Its object was to reconcile the rights of the employer in
his business and in the access of his employés to his place of business
without intimidation or obstruction, on the one hand, and the right of
the employés, recent or expectant, to use peaceable and lawful means to
induce prudent principles and would-be employés to join their ranks, on
the other.
If, in their attempts at persuasion or communication, those of the labor
side adopt methods which, however, lawful in their announced purpose,
inevitably lead to intimidation and obstruction, then it is the Court's
duty--and the terms of Section 20 do not modify this--so to limit what
the propagandists do as to time, manner and place as to prevent
infractions of the law and violations of the right of the employés and
of the employers for whom they wish to work.
In going to and from work, men have a right to as free passage without
obstruction as the streets afford, consistent with the right of others
to enjoy the same privilege. We are a social people and the accosting by
one of another in an inoffensive way and offer by the one to communicate
and discuss information with a view to influencing the other's action,
are not regarded as aggression, or a violation of that other's right.
If, however, the offer is declined, as it may rightfully be, then
persistence, importunity, and following do become unjustifiable
annoyance and obstruction which is likely soon to savor of intimidation.
The nearer this is to the place of business, the greater the
interference with the business and especially with the property right of
access of the employer. Such an attempted discussion attracts the
curious, or, it may be, interested bystanders. They increase the
obstruction as well as the aspect of intimidation which the situation
quickly assumes.
In the present case, under the conditions which the evidence discloses,
all information tendered, all arguments advanced and all persuasion used
were intimidation--they could not be otherwise.
It is idle to talk of peaceful communication in such a place and under
such conditions. The numbers of the pickets in the groups constituted
intimidation. The name "picket" indicated a militant purpose,
inconsistent with peaceful persuasion. The employés were made to run the
gauntlet. When one or more assaults or disturbances ensued, they
characterized the whole campaign, which became effective because of its
intimidating character, in spite of the admonitions given by the leaders
to their followers as to lawful methods to be pursued, however sincere.
Our conclusion is that picketing thus instituted is unlawful and cannot
be peaceable, and may be properly enjoined by the specific term of
"picketing" because its meaning is clearly understood in the sphere of
the controversy by those who are parties to it. We are supported in that
view by many well-reasoned authorities, although there has been
contrarity of view. A restraining order against picketing by that name
will advise earnest advocates of labor's cause that the law does not
look with favor on an enforced discussion of the merits of the issue
between individuals who wish to work and groups of those who do not,
under conditions which subject the individuals who wish to work to a
severe test of their nerves and physical strength and courage.
But while this is so, we must have every regard for the Congressional
intention manifested in the Act to the principle of existing law which
declares that ex-employés and others properly acting with them shall
have an opportunity, so far as is consistent with peace and law, to
observe who are still working for the employer, to communicate with them
and to persuade them to join the ranks of his opponents in a lawful,
economic struggle.
Regarding as primary the rights of the employés to work for whom they
will, and to go freely to and from their place of labor, and keeping in
mind the right of the employer incident to his property and business to
free access of such employés, what can be done to reconcile the
conflicting interests?
Each case must turn on its own circumstances. It is a case for the
flexible, remedial power of a Court of equity which may try one mode of
restraint, and if it fails or proves to be too drastic, may change it.
McGANN CO. v. LABRECQUE CO.
(Essex Circuit Court, Jan., 1922).
_Action of Trespass--Lease and Sale of Property--Limitation
of Term--Jurisdiction of District Court_.
Case of Joseph F. McCann, trading as The McGann Company, against
La Brecque Company. Action at law. Trespass.
Mr. Milton M. Ungur for Plaintiff.
Messrs. Burnett, Sorg, Murray & Duncan for Defendant.
(CONCLUSIONS).
DUNGAN, J.: This is an action of trespass brought by the plaintiff
against the defendant for the wrongful removal of plaintiff's goods from
the defendant's premises under the following conditions:
P. Ballentine & Sons, a corporation, demised the premises in question to
defendant by lease dated August 1st, 1917, for a term commencing
November 1st, 1916, and terminating April 30th, 1926. The lease
provided:
"It is further understood and agreed between the parties hereto that a
sale of the property by the party of the first part shall terminate this
lease upon six months' written notice to the party of the second part;
and, in lieu of compensation, it is hereby agreed that the rent shall be
waived during the six months notice to vacate."
By deed dated October 15, 1918, proved October 30, 1918, and recorded
October 31, 1918, P. Ballentine & Sons conveyed the premises in question
by warranty deed to the plaintiff, subject to the above tenancy. By
endorsement dated April 30, 1918, made upon the lease, P. Ballentine &
Sons assigned said lease and all of the rights of the lessor thereunder,
to the plaintiff.
October 30, 1918, there was served personally upon defendant a notice,
dated on that day, signed by both the grantor and the grantee in the
deed last mentioned, as follows:
"You will please take notice that the premises leased by you from P.
Ballentine & Sons by written lease dated the first day of August, 1917,
have this day been sold to LaBrecque Company, Inc., and notice of the
cancellation of your said lease is hereby given you pursuant to that
clause of your lease reading as follows: 'It is further understood and
agreed between the parties hereto that a sale of the property by the
party of the first part shall terminate this lease upon six months'
written notice to the party of the second part, and in lieu of
compensation it is hereby agreed that the rent shall be waived during
the six months' notice to vacate.'"
The defendant did not remove from said premises at the expiration of six
months and the statutory demand for delivery of possession was
personally served on defendant. After the expiration of said period, he
refused to vacate the premises, and thereupon the defendant here
instituted and prosecuted summary proceedings in the Second District
Court of the City of Newark, in which Court judgment for possession of
the premises was rendered May 23, 1919, and the removal of plaintiffs,
being the alleged act of trespass for which this suit is brought, was,
by virtue of the order of removal, made by that Court upon said
judgment.
There is no contention that there was any irregularity in the
proceedings of that Court, if the Court has jurisdiction; but the
plaintiff here insists that the provisions of the lease above quoted
constituted a condition, or covenant, and not a limitation of the term,
and that consequently the District Court did not have jurisdiction.
The parties hereto have entered into a stipulation to submit this suit
to the Court for judgment upon the complaint, answer and reply, which
correctly sets forth the facts as above stated, and adds:
"If the Court is of the opinion that the plaintiff is entitled to
recover, judgment is to be rendered in favor of the plaintiff and
against the defendant, and there is to be an assessment of the damages
by a jury drawn for that purpose, reserving however all questions of law
as to the measure of damages; and, if the Court is of the opinion that
the plaintiff is not entitled to recover, judgment shall be entered in
favor of the defendant as if said cause had been tried and a verdict in
favor of the defendant had been rendered"; both parties reserving the
right to appeal from the judgment to be entered.
It is admitted on behalf of the plaintiff that, if the said provision of
the lease constituted limitation of McGann's terms, then the District
Court had jurisdiction and the plaintiff cannot recover in this suit.
The jurisdiction of the District Court in such cases is confined in its
application to the instant case, to "When any such person shall hold
over and continue in possession ... after the expiration of his ...
term," etc. Admittedly the decision of this case rests upon whether or
not the sale of the premises and the notice given by the lessor and
LaBrecque Company to the plaintiff ended the term of the McGann Company.
If it did--if this was a limitation of the plaintiff's term,--the
jurisdiction of the District Court was complete.
The case of Quidort v. Bullitt, 60 N. J. L. 119, is very much in point.
In that case it appeared by the affidavit filed with the Justice that
the defendants, in May, 1885, leased to the prosecutor a seaside cottage
at Cape May for five years, which lease was extended for two successful
periods. The lease contained the following provision: "Lessors are to
have the privilege of terminating the lease at any time upon giving six
months' notice of their intention to do so, prior to the first day of
July or any year during the lease.". On October 19, 1895, the defendants
caused to be served on the prosecutor a written notice, which, after
reciting the terms of the lease stated:
"We have determined to avail ourselves of the privilege of terminating
the lease. We now give you notice of the exercise of our privilege and
of our intention to terminate the said lease on the first day of May,
1896, and demand that you surrender us possession of the leased premises
at that time, in accordance with the provisions contained in the lease.
This right to terminate the lease is exercised in accordance with the
lease and the several extensions thereof. We shall expect you to deliver
to us, on the first day of May, 1896, the cottage and bath houses
mentioned in the said lease, and also the articles mentioned and set out
in the inventory annexed thereto."
The tenant refused to deliver possession and, on the 6th day of May,
1896, instituted proceedings before the Justice, which were the subject
of review by certiorari in that case.
It is insisted on behalf of the plaintiff that whether or not the quoted
provision of the lease and the giving of the notice constituted a mere
condition or covenant or was a limitation, was not decided in that case;
but, while it is not expressly so stated, it seems to me a decision of
that question was absolutely essential to a decision of the case. Chief
Justice Gummere, in delivering the opinion of the Supreme Court (page
120) said:
"The question for determination is whether the Justice had jurisdiction
of the cause; if he had jurisdiction, then the writ in this case should
be dismissed, but, if he had not, then the proceedings before him should
be set aside."
Again on page 122 he said:
It is alleged by the prosecutor that the facts above recited did not
bring the case within the jurisdiction of the Justice for the following
reasons: 1. That the privilege of terminating the lease was not a term,
condition or limitation of the original lease, but a special privilege,
reserved to the lessors, of ending the original term."
Thus it is plain that the precise question in issue in this case was
before the Court, and that it was necessary for the Court, in order to
reach the decision it did, to decide that the quoted provision would
constitute a limitation upon the term fixed by the original lease.
The case of Miller v. Levi, 44 N. Y. 490, is also applicable to this
case. In that case Miller demised to Levi, reserving the right to sell
the demised premises and to limit Levi's term thereon to the expiration
of sixty days after notice of sale. The sale and notice specified in the
lease was made. It was insisted that the Justice had no jurisdiction of
the summary proceedings, because this can only be resorted to where the
term of the lease of the lessee "has expired by lapse of time," which it
was said was not the fact in that case. The Court said:
"Immediately upon sale by Miller and notice thereof to the tenant the
limitation attached to the estate of the latter, without further act on
the part of Miller. There then arose a limitation of his term, to wit,
its expiration on the first of May following. The act itself, in the
lease contemplated, to wit, a sale without notice, created the
expiration. Nothing further was necessary.... The 'term' of the lease
must therefore be taken to have 'expired' on the first of May, 1864."
I think, therefore, that when the leased property was sold, and the
notice of sale given to McGann on October 30th, 1918, the term of McGann
under the terms of the lease expired six months thereafter; that the
sale and notice constituted a limitation of his term; that the Second
District Court of the City of Newark, before which proceedings to remove
McGann were instituted May 2nd, 1919, had jurisdiction to hear and
determine the matter before it; and that, therefore, the defendant is
not guilty of the trespass alleged against him.
Judgment is given, therefore, against the plaintiff and in favor of the
defendant.
* * * * *
One hunting on Sunday, in violation of statute, is held to be answerable
for injuries accidentally inflicted upon a bystander by the voluntary
discharge of his gun, in the Vermont case of White v. Levarn, 108 Atl.
564, annotated in 11 A.L.R. 1219, on violation of Sunday law as ground
for civil action for damages.
* * * * *
The keeping of high explosives in a public highway in a populous
community, without guard or signal, to the terror, alarm, and great
danger of the citizens, is held to be a common nuisance, indictable at
common law, in Kentucky Glycerine Co. v. Com. 188 Ky. 820, 224 S. W.
360, annotated in 11 A.L.R. 715.
* * * * *
False swearing by a witness is held to be such an obstruction of justice
as to constitute a direct contempt of court, in Riley v. Wallace, 188
Ky. 471, 222 S. W. 1085, annotated in 11 A.L.R. 337.
* * * * *
A petition filed against a partnership by one partner alone must, under
section 5a of the Bankruptcy Act and General Order No. 8, conform to the
requirements of an involuntary petition and must, therefore, allege
insolvency and that an act of bankruptcy was committed by the
partnership. Matter of Ollinger & Perry. 47 Am. B. R. 203.
* * * * *
A parent who takes a deed from his child soon after it reaches majority
and while it is living under his roof is held to have the burden of
clearing the transaction of every suspicion, and establishing its
fairness and good faith, in the Arkansas case of Shackleford v.
Shackleford, 223, S. W. 561, annotated in 11 A.L.R. 730.
* * * * *
Giving a broker the "exclusive sale" of a parcel of real estate is held
not to preclude the owner from selling to one whom he had reason to
believe had not been procured by the broker, in Roberts v. Harrington,
168 Wis. 217, 169 N. W. 603, annotated in 10 A.L.R. 810, on whether an
ordinary broker's contract excludes right of sale by owner.