Page:The Green Bag (1889–1914), Volume 17.pdf/276

 NOTES OF RECENT CASES with the mass of property in the country, it has perhaps lost its distinctive character as an im port, and has become subject to the taxing power -of the state; but while remaining the property of the importer in his warehouse in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution." In the Austin case the Supreme Court said: "Whether the de cision would have been the same if the original packages in that case, instead of being bales of -dry goods or hogsheads, barrels, or tierces of liquors, had been so minute in size as to permit of their sale directly to consumers, may admit of considerable doubt. Obviously the doctrine of the case is directly applicable only to those large packages in which from time immemorial it has been customary to import goods from foreign countries. It is safe to assume that it did not occur to the Chief Justice that by a skillful alter ation of the size of the packages the decision might be used to force upon a reluctant people the use of articles denounced as noxious by the legisla ture of the several states." The court holds that the small packages of cigarettes shipped loose to the retailer, not being separably or otherwise ad dressed, can in no sense be considered an original package, and says whatever the form or size employed, there must be a recognition of the fact that the transaction is a bona fide one, and that the usual methods of interstate shipment have not been departed from for the purpose of evad ing the police laws of the state. The court refers to the Austin case, and the following decisions in which the original package doctrine has been affirmed: Brown v. Maryland; Leisy v. Hardin, 134 U. S. too, 10 Stip. Ct. Rep. 681, 6 L. Ed. 678; and Schollenberger v. Pennsylvania, 171 U. S. i, 18 Sup. Ct. Rep. 757, 43 L. Ed. 49. PUBLIC NUISANCE. (LIABILITY FOR JOINT AND SEVERAL ACTS) INDIANA SUPREME COURT. MONTANA SUPREME COURT. The Indiana and Montana Supreme Courts have both recently passed upon the question as to whether the injury arising from the individual acts of different companies in discharging poison ous matter into the waters of a stream, is a joint one for which damages can be recovered without proving the particular acts or the resulting dam age which was occasioned by the acts of each or any of the companies. In the Indiana case of West Muncie Strawboard Co. v. Slack, 72 North eastern Reporter, 796, it is held that the pollu tion of streams is a public nuisance, and that each party thereto may be answerable upon a

259

joint and several action not only for what he himself does but likewise for the acts of those who with him violate public as well as private rights. In the Montana case of Watson v. ColusaParrot Mining & Smelting Co., 79 Pacific Repor ter, 15, the defendant was held liable only for whatever damage had been caused by its own particular wrongful acts, the court maintaining that this rule must obtain regardless of the dif ficulty of determining what part of the damage was occasioned by the acts of each of the wrong doers. Many authorities are cited in support of this latter proposition, and among them Chipman v. Palmer, 77 N. Y. 51, Sellick v. Hall, 47 Conn. 260, Martinowsky v. City of Hannibal, 35 Mo. App. 70, Little Schuylkill Co. v. Richard's Adm'r, 57 Pa. 142, 98 Am. Dec. 209, Miller v. Highland Ditch Co., 87 Cal. 430, 25 Pac. 550, 22 Am. St. Rep. 254, Sloggy v. Dilworth, 38 Minn. 179, 36 N. W. 451, 8 Am. St. Rep. 656, are also cited by the Indiana court and distinguished on the ground that they are cases at law for the recovery of money damages only. In both of the cases being reviewed the action was for damages and for an injunction. TELEGRAPHS AND TELEPHONES. (UsB FOR UNLAWFUL PURPOSE — MANDAMUS) NORTH CAROLINA SUPREME COURT. Mandamus was sought in the case of Godwin v. Carolina Telephone & Telegraph Company, 48 Southeastern Reporter, 636, to compel the de fendant to install a telephone with the necessary fixtures and appliances, in the dwelling house of the plaintiff and to admit her to all the privileges accorded to other subscribers. It was admitted by the plaintiff that she kept an immoral house within the corporate limits of the town and that she desired to have the telephone in this house. The court holds that mandamus will lie to compel a telephone company to furnish facilities without discrimination for those who will pay for the same and abide the reasonable regulations of the company, citing State v. Ne braska Telephone Company, 22 Northwestern Re porter 237; Telephone Company v. Telegraph Company, 66 Md. 399, 7 Atlantic 811, and several text books. It was held in Telegraph Company v. Telephone Company, 61 Vt. 241, 17 Atlantic 1071 that a telephonic system is simply one for the transmission of intelligence and news and is, in a limited, but strict sense, a common carrier. This case cites many authorities which are uni form to the effect that the telephone business must be operated without discrimination, afford ing "equal rights to all and special privileges to