Page:The Green Bag (1889–1914), Volume 17.pdf/348

 NOTES OF RECENT CASES that the city had in less than two years acquired a population of 10,000 or more, and that there were 100,000 members of the church, all of whom were desirous of residing in Zion City, and were coming to it as rapidly as they could dispose of their property interests elsewhere. It was shown that no one owned any land in the city except Dowie himself, and that leases for noo years were given. There was evidence that a corporation for the manufacture of lace had been organized, and it was expected that this industry would be very profitable and furnish employ ment for a large number of people. On these facts is based the contention of defendant's counsel; that though the market value of the property is the measure of defendant's damage, that market value cannot be calculated upon the same basis or theory as that' of any other place or city in the world, as there is no other organized upon the same plan or which had made such growth or had such prospects; that this settle ment and property of Dr. Dowie "were sui gentris." "This latter statement," says the court, "may be readily admitted when it is said that a city is organized comprising a population of at least 10,000, with but a single freeholder in it. Dr. Dowie seems to be the only person of all his church that is the owner of a freehold estate in any of the land. It may well be doubted if that number of people could be brovight together anywhere or under any .conditions other than those that seem to surround them under Dr. Dowie's leadership, who would be willing to hold their properties under such a tenure." In dis posing of the contention that the property is impressed with an additional value by reason of the peculiar conditions existing in Zion City, the court says: "The right to entertain any re ligious belief one or any number of people may see fit to adopt, so long as it does not lead to violation of law, is one that is guaranteed by the very spirit of our institutions. But that right does not bring to it or carry with it increased or additional property rights to those held by other people adopting other religious views or no reli gious views. The rule of law, as applied to the right of condemnation, is alike applicable to the property of Dr. Dowie as it is to that of any other citizen, and the fact that he may have in his mind, and may have formulated, a great plan for the upbuilding and salvation of people, cannot of itself impress his property with an increased value that must be recognized by the law when its use is demanded in the name of a state, but that property must be measured as other prop- . erty owned by other people in the same vicinity and similarly situated."

329

MANSLAUGHTER.

(ELEMENTS OF OFFENSE) MISSOURI SUPREME COURT. That even the legislature, omnipotent as it seems to be, is circumscribed by some limitations not imposed by the organic law is illustrated by State v. Hartley. 88 South western Reporter, 910, where it is maintained that the legislature is governed by the logical principle inhibiting a contradiction in terms, and has no power to declare a state of facts to constitute a crime, which ex vi termini such facts cannot constitute. The legislature of Missouri in Rev. St. 1899, sec. 1825, declared that any one who shall admin ister to any pregnant woman any medicine, drug, or substance, or shall use or employ any instru ment or other means with intent thereby to destroy the foetus or child of said pregnant woman, shall be guilty of manslaughter in the second degree. In considering the sufficiency of an indictment alleging defendant to have been guilty of the acts prohibited by this statute the court holds that it states no offense. "Manslaughter," says the court, "is distinguished from murder solely by the absence of malice as a constituent element of the crime. It is not the intent to kill or the character of the weapon used which determines the grade of the homicide, but simply the inquiry whether such intent or the use of such weapon proceeded premeditatedly from that wickedness of disposition and hardness of heart which the law denominates malice, or whether the intent was formed suddenly under the influence of some violent emotion, which for the instant over whelmed the reason of the slayer. While all kinds of homicide not murder are declared to be manslaughter by our statute, and all grades of homicide classified by it, there can be no man slaughter when there is no homicide, no more than there can be murder when there is no homi cide." In support of this conclusion the court cites State v. Young, 55 Kans. 349, 40 Pac. 659, in which the Supreme Court of Kansas in con sidering a statute in almost the exact language of the statute involved in the case at bar arrived at the same conclusion. MARRIAGE. (ILLEGAL CONTRACT — SUBSE QUENT REMOVAL 'OF IMPEDIMENT — ESTOPPEL) CHANCERY COURT OF NEW JERSEY. A case which is more than ordinarily instruc tive, especially in view of the paucity of cases involving the same question, is that of Chamber lain v. Chamberlain, 59 Atlantic Reporter, 813. The suit is for divorce, and one of the defenses