Page:Harvard Law Review Volume 12.djvu/158

138 138 HARVARD LAW REVIEW. Bills and Notes — Overdue Paper. — The holder of paper payable to order discounted it with plaintiffs before maturity, but by mistake failed to indorse it. After maturity he indorsed it. Held, that plaintiffs, although they took without actual notice, are subject to equitable defences available against their indorser. Lyon, Potter, df Co. v. First Nat. Bank, 85 Fed. Rep. 120 (C. C. A., Eighth Cir.). The reasoning of the court is plain. Before the indorsement plaintiffs had only the rights of assignees of an ordinary chose in action, and the indorsement after maturity would not cut off equities. Against this it may be argued with some force that the rule that previous equities are available against the indorsee of overdue paper is based on the fact that there is something suspicious in such a transaction, which ought to put the indorsee upon his guard, but that the reason for this rule entirely fails where the indorsee had before maturity acquired all the beneficial interest in the bill or note. Watkins v. Maule, 2 Jac. & W. 237, 244. See also Grimm v. Warner, 45 Iowa, 106. The great majority of courts, however, have not accepted this argument, but have held that the rule as to overdue paper, whatever its origin, is not now dependent on any theory of constructive notice, and is subject to no exceptions. Haskell v. Mitchell, 53 Me. 468 ; Lancaster Bank v. Taylor, 100 Mass. 18. Conflict of Laws — Married Women — Change of Domicile. — A French- man and a Frenchwoman married in France. By the law of France, property acquired by the husband is community property. They afterwards changed their domicile to England, where the husband acquired a large fortune and died leaving a will, his wife surviving. Held, that the property is governed by French law, and the widow is entitled to one-half. De Nichols v. Curlier, [1898] i Ch. 403. While it is the rule that property acquired ante-marriage is governed by the law of the matrimonial domicile, Harral v. Htrral, 39 N. J. Eq. 279, it should be equally clear that the law of the place where the property is acquired after marriage governs its acquisition. In the principal case the husband acquired the property in England, where there is no law giving the wife an equal share. Under what law the parties were married appears to be immaterial. The decision departs from the sound rule that the effect of a transaction is governed by the law of the place where the transaction took effect. The opposite and apparently correct result has been reached in America. Saul v. His Creditors, 5 Mart. N. s. 569. Constitutional Law — Citizenship. — The defendant was born in California of Chinese parents there domiciled. He had returned to China and was refused readmis- sion to the United States. Held, that as he was born subject to the jurisdiction of the United States, he is a citizen by the Fourteenth Amendment, and should be admitted. United States v. Wong Kin Ark, 18 Sup. Ct. Rep. 456. See Notes, 12 Harv. Law Rev. 55. Constitutional Law — Delegation of Taxing Power. — A statute provided that in case of a vacancy in the local office, or failure of the local authorities of an incorporated town to levy taxes for schools, health, etc., the governor should appoint three residents of such town to levy such taxes as they deemed expedient for the above purposes. Held, that the statute is unconstitutional, as it is a delegation of the taxing power, which the legislature can delegate only to municipal bodies. Inhabitants of Bernards v. Allen, 39 Atl. Rep. 716 (N. J., C. A.). The court rests its decision on " fundamental principles of constitutional law," and not on any peculiarity of the New Jersey Constitution. The authorities most relied on are three New Jersey cases, two of which decided that the municipal body to which the taxing power had been delegated could not itself delegate the power. The third case decided that the legislature could not impose the legislative function of taxation on the courts. These cases do not support the proposition that the legislature itself can only delegate its power in one way. It is commonly said that legislative power cannot be delegated. This is very vague, however, and in the absence of a special constitu- tional provision, it is hard to see by what authority a court can limit the power of the legislature to delegate its powers if the legislature keeps within the bounds of a reason- able exercise of its discretion. If the delegation of power cannot itself be reasonably called legislation, but amounts to a shirking of the duty of legislation, it would of course he bad. Tested in this way, the statute in the principal case could hardly be declared invalid. The question might be affected, however, by the view which a court held as to the general legislative power over municipal corporations. See Bulkeley v. Williams, 68 Conn. 131, and Le Roy v. Hurlbut, 24 Mich. 44. Constitutional Law — Eminent Domain — Additional Servitude. — Held^ that an electric passenger railway, running on the highways through country towns,