Page:The Green Bag (1889–1914), Volume 18.pdf/193

 THE GREEN BAG subject expressly left the question open for further consideration. Platt vs. Philadelphia, etc. Co. 54 Fed. 569. See article " Ancillary Receivership in Bank ruptcy " in 18 Harvard Law Review 519. Lee M. Friedman. Aside from the significance of the principal question determined in this case, the opinion of Judge Quarles is interesting in assuming that the granting of equity powers to the district courts of the United States, sitting in bankruptcy matters, justifies them in employing the procedure, writs, and remedies known to equity jurisprudence in order to exercise that jurisdiction. While the rule is well established that courts may adopt rules of procedure, provided they be reasonable and not in conflict with statutory regulations, the continued exercise by legislatures of the power of regulating procedure has led to the popular notion, occasion ally shared by members of the profession, that the courts are dependent upon the legislature for machinery wherewith to perform their functions. It has been contended, but unsuccessfully, that where the Constitution conferred jurisdiction of a particular class of actions triable by jury, the jurisdiction so conferred could not be exercised because the Legislature had made no provision for the impannelling of a jury in that court. (In re Attorney General, 40 Neb. 402). That case and the present enforce the rule that where jurisdiction exists, the court, in the absence of legislation, may devise its own processes and forms of procedure, in order that the jurisdiction may be exercised. (See also, the Epsilon, Fed. Cas. No. 4506). Indeed, the writer is of the opinion that on principle the distribution of the functions of government by American Constitutions into three departments, should have been held to prohibit the legislature from regulating judicial procedure as much as it prohibits the courts from prescribing rules for the conduct of legislative proceedings. The enormous weight of precedent, which has practically settled the rule to the contrary, is the result of a failure to distinguish between the powers of Parliament and our state legislatures. CARRIERS. (Baggage.) Mich. — In Withey v. Pere Marquette Railroad Company, 104 North western Reporter, 773, it appears very clear that the court has arrived at a correct conclusion in its ruling on the first point. The supreme court of Michigan there declares that a father paying full fare for himself and traveling with an infant child of such tender years that by custom no fare is demanded for its carriage, may recover upon the contract of carriage for loss of or injury to articles bought and used for the child, which articles are a part of the father's baggage. The defendant contended that because no fare was paid for the infant, the defendant was a gratui tous bailee as to the infant, and the transporta

tion as baggage of articles intended solely for its use was a mere incident to that gratuity. This argument, however, is satisfactorily disposed of by the suggestion that even if the child was car ried free, nevertheless its clothing was the prop erty of the father, and was in the trunks of the father carried as his baggage, so that the railroad company which agreed to transport the baggage safely, was liable to the father for the loss of the child's apparel. A question as to which there is more oppor tunity for difference of opinion is as to the hus band's right to recover in the action of contract for articles of jewelry, etc., belonging to his wife, and given to her by third persons. This is de cided in the affirmative, on the ground that the contract to carry plaintiff and his wife and their common baggage was a contract with the plain tiff. ' ' CONFLICT OF LAWS. (See Taxation.) CONSTITUTIONAL LAW. (Equal Protection of the Laws.) Mont. — State v. Cudahy Pack ing Company, 82 Pacific Reporter, 833, follows very much in the footsteps of Connolly and Dee v. Union Sewer Pipe Company, 184 U. S. 540, 22 Sup. Ct. 431, and holds invalid the Montana AntiTrust statute enacted pursuant to the require ment of the constitution. Montana Penal Code, § 321, prohibits combinations for the purpose of fixing the price or regulating the production of any article of commerce. One of the following sections declares that the provisions of the chapter shall not apply to any arrangement, agreement or combination between laborers made with the object of lessening the number of hours of labor or increasing wages, nor to persons engaged in agriculture or horticulture with the view of en hancing the price of their products. This rather awkwardly worded statute is first construed to mean that the prohibition shall not apply to any arrangement, agreement, or combination made by persons engaged in horticulture or agriculture with a view of enhancing the price of their prod ucts, and it is held not only that this exception denies the equal protection of the laws to persons not within the exception and that the section con taining the exemption is so intimately related with the other sections that the former cannot be eliminated from the act, but the whole is invalid because of the unjust discrimination effected by the exemption. CONTRACTS. (Public Policy — Physicians.) Wash. — Despite the policy of the law to dis courage litigation and its abhorrence of multipli city of suits, it would seem that courts and law