Page:Harvard Law Review Volume 9.djvu/512

484 484 HARVARD LAW REVIEW. without a license, was held unconstitutional, since it gives officers power to exercise an arbitrary discretion in granting licenses. State v. Conlon, it^ Atl. Rep. 519 (Conn.). A very forcible argument might be made that the context indicates that the words "may issue a license " should be construed " shall issue a license"; and that the words "such persons as he finds proper" vest in the officer not an arbitrary discretion, but a discretion which he is bound to exercise honestly and reasonably, for the purpose of effectuating the intention of the statute. State y. Yopp, 97 N. C. 477; Singer v. Mary- land, 72 Md. 464; Comm. v. Parks, 155 Mass. 531. The act would thus be preserved, and the rights of those against whom it was directed would be sufficiently protected, since, if the officer abused his power by exercising an arbitrary discretion, his act would be unconstitutional and invalid. Yick Wo v. Hopkins, 1 18 U. S. 356. 'However, words less strong than those in the principal case have been held to confer an arbitrary dis- cretion. Mayor of Baltimore V. Radecke, /^ Md. 217; State v. Deri)ig, 84 Wis. 585. It is to be noticed that those are cases of city ordinances, and might be supported on the ground that the legislature does not give a city the right to make unreasonable ordi- nai^.ces, and the ordinances in question afford such an opportunity for unreasonable action on the part of the officers as to make them unreasonable ordinances. Constitutional Law — Seizure of Private Property as Criminal Evi- dence. — A steam boiler exploded on plaintiff's premises, killing thirty-seven persons. The engineer was indicted for criminal negligence, and ten days after the accident the court ordered the boiler and engine into the custody of the police, not to be removed from the premises, to be used as evidence against the engineer in the pending trial. Plaintiff applied for a writ of mandamus to vacate this order, as an unwarrantable in- terference with his rights of property. Held, such an order directed against private property of this character belonging to an innocent party was an unreasonable seizure of goods, and unconstitutional. McGrath, C. J, dissenting on the point of unreason- ableness. Newberry v. Carpenter, 65 N. W. Rep. 530 (Mich.). No reported case seems to have gone to the length of sustaining a seizure like the present. Most of the instances where personal property belonging to a third party has been held as evidence by public officers have been cases of stolen property, tools, and coin used in counterfeiting, gaming apparatus, etc. In the principal case it was per- fectly possible to preserve evidence of the condition of the boiler without depriving the owner of its use, and the attempted seizure seems plainly unreasonable. Contracts — Public Policy — Defence. — Held, that where a contract is not in general restraint of trade according to the rule in The Diamofid Match Co. Case, 106 N. Y. 473, a defendant who retains the consideration for his promise cannot set up as a defence that his contract is part of a conspiracy to raise prices and lower wages. National Wall Paper Co. v. Hobbs, 35 N. Y. wSupp. 932. It would seem that where a contract is shown to be part of a general scheme to lessen competition, the court should not aid either party in enforcing it. Illegality should be a perfect defence to an action on a contract. Emery v. Ohio Candle Co., 47 Ohio St. 320; 68 N. Y. 558, 566. Contracts — Salvage — Fraudulent Concealment — Compensation. — A salvage contract iX'as entered into between the master of a tug and the master of a disabled steamer, the former suppressing the fact that the owners of the steamer had already employed another tug to tow the steamer to her destination. Held; (i) the contract must be set aside on account of fraud; (2) the master of the tug is entitled to recover the amount by which the steamer was found to have been actually benefited by comparing the expense actually incurred with that which would have attended a towage by the tug engaged by the owners. Goff, Circuit Judge, dissenting on second point. The Clandeboye, 70 Fed. Rep. 631. The rule invoked, that if the sources of knowledge of material facts are exclusively within the possession of one of the contracting parties there is a duty to disclose (2 Kent, *482), would seem to be included within Bigelow's broader proposition, that "a duty to speak . . . arises wherever and only where silence can be considered as having an active property, that of misleading." i Bigelow on Fraud, 597. As to the right to recover compensation, there is a strong analogy to cases where a conveyance of land has been obtained by the fraud of the buyer ; there the seller may have a reconveyance, but is obliged to pay back the consideration money and sums laid out in improvements. Kerr, Fraud and Mistake, 2d ed., 373. One rescinding on account of fraud must put the other party in the same position, as far as possible, as he was in the beginning. Corporations — Federal Jurisdiction — Collusive Conveyance. — X., a Vir- ginia corporation, claimed to own land in Virginii which was in possession of defendant. For the purpose of trying the claim in the Federal Court, the stockholders of X.